ML15012A536

14-1213(D.C.Cir.)Respondents Motion to Dismiss (Filed)

ML15012A536
Person / Time
Site:	Diablo Canyon
Issue date:	12/10/2014
From:	Andrew Averbach, Hansen-Young T, Hirsch S, Mullins C NRC/OGC, US Dept of Justice, Environment & Natural Resources Div
To:	Atomic Safety and Licensing Board Panel, US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
Creedon, Meghan
References
14-1213
Download: ML15012A536 (154)

Text

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 1 of 23 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 14-1213 FRIENDS OF THE EARTH, Petitioner, v.

U.S. NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

RESPONDENTS MOTION TO DISMISS SAM HIRSCH ANDREW P. AVERBACH Acting Assistant Attorney General Solicitor THEKLA HANSEN-YOUNG CHARLES E. MULLINS Attorney Senior Attorney Appellate Section Office of the General Counsel Environment and Natural U.S. Nuclear Regulatory Commission Resources Division 11555 Rockville Pike U.S. Department of Justice Rockville, Maryland 2085 PO Box 7415, Ben Franklin Station (301) 415-1618 Washington, D.C. 20044 charles.mullins@nrc.gov (202) 307-2710 thekla.hansen-young@usdoj.gov December 10, 2014 (Page 1 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 2 of 23 INTRODUCTION On September 16, 2013, Pacific Gas & Electric Company (PG&E) filed an Update (Revision 21) to the Final Safety Analysis Report for the Diablo Canyon Nuclear Power Plant, Units 1 and 2, with the U.S. Nuclear Regulatory Commission (NRC or Commission). 1 Friends of the Earth (FOE) subsequently filed this petition for review claiming the NRC issued a final order approving Revision 21 and that this order amended the Diablo Canyon operating licenses. See Petition for Review (Oct. 28, 2014) at 1-2. FOE alleges that it is entitled to an NRC administrative hearing under Section 189a of the Atomic Energy Act on these alleged license amendments. Id.

But FOE has already filed a Petition to Intervene and Request for Hearing with the Commission seeking this same remedy. See Petition to Intervene and Request for Hearing by Friends of the Earth (Aug. 26, 2014) (Exhibit 1) at 7. And FOE raises the same argument in its hearing request that it raises here, i.e., that approval of Revision 21 requires an NRC hearing. See Friends of the Earths Reply to NRC Staffs and [PG&E]s Answers and Proposed Amicus Curiae Nuclear Energy Institutes Brief in Response to Petition to Intervene and Request for Hearing (Oct. 14, 2014) (Exhibit 2) at 5, 12-19.

1 This Motion uses NRC to refer to the agency as a whole and Commission to refer to the 5-member body that manages the agency.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 3 of 23 Specifically, FOE argues that Revision 21 changed the seismic licensing bases of the plant, that Revision 21 required amendments to the Diablo Canyon operating licenses, and that approval of Revision 21 constituted a de facto license amendment without the required hearing opportunity. See Exhibit 2 at 12-

19. So FOE has a request for the very hearing it claims it was denied now pending before the Commission.

Assuming arguendo that any action by the NRC on Revision 21 constituted final agency action reviewable under the Hobbs Act, 28 U.S.C. § 2341, et seq.

when it was taken (an assumption we challenge, infra), FOE has appealed that action to the Commission. Thus, FOEs hearing request renders any underlying agency action non-final and this Court lacks jurisdiction over this Petition for Review.

Moreover, FOEs hearing request has been fully briefed and is awaiting Commission resolution. Thus, FOE clearly has not yet exhausted its administrative remedies, nor has it claimed that proceeding before the Commission is futile.

Accordingly, even if this Court concludes that it has jurisdiction over the Petition, it should dismiss it as premature and allow the NRC to complete its administrative process and to issue a final decision. FOE may then file a new Petition challenging any Commission decision with which it disagrees.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 4 of 23 Regulatory Background.

Each applicant for an NRC reactor license must submit a Final Safety Analysis Report (Safety Report) with its application. The Safety Report describes the facility, presents the design bases and the limits on its operation, and presents a safety analysis of the structures, systems, and components and of the facility as a whole.

10 C.F.R. § 50.34(b). The regulations then prescribe a list of specific items that the Safety Report must cover. 10 C.F.R. § 50.34(b)(1)-(12). In essence, the Safety Report is one of the facilitys governing documents and provides, inter alia, the design bases for the facility, as defined in 10 C.F.R. § 50.2.2 The licensee must operate within the design bases as described in the Safety Report or face NRC enforcement action.

NRC regulations also require that each licensee update the Safety Report on a regular basis. See 10 C.F.R. § 50.71(e)(4). This update must include any changes to the facility or its procedures, including changes made by license amendments or made under 10 C.F.R. § 50.59. See generally 10 C.F.R. § 50.71(e).

Filing the update, in and of itself, does not require either a license amendment or NRC approval. Instead, the NRC reviews updates to ensure that they accurately reflect changes made to the facility and that they meet the administrative 2

Section 50.2 defines design bases as that information which identifies the specific functions to be performed by a structure, system, or component of a facility, and the specific values or ranges of values chosen for controlling parameters as reference bounds for design.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 5 of 23 requirements in § 50.71(e). If the update does not meet these requirements, the NRC can take enforcement action and require a new update.

Changes to the plants license or technical specifications require a license amendment with a required opportunity for a hearing. Changes to the plant or its procedures as described in the Safety Report are governed by 10 C.F.R. § 50.59.

This regulation provides the criteria to determine whether such changes require NRC approval in the form of a license amendment (with a hearing opportunity) or may be made by the licensee without a license amendment. Licensees may make changes to the facility or its procedures without NRC approval if the change meets the screening criteria in the regulation.

A licensee evaluates each change it plans to make under § 50.59 and maintains these evaluations on file. The NRC routinely inspects a random sample of § 50.59 evaluations to ensure the licensee is in compliance with NRC regulations. If the inspection concludes that the licensee has made changes to the facility without obtaining a license amendment when one is necessary, the NRC will take appropriate enforcement action and, if necessary, require the licensee to apply for an amendment. If the inspection concludes the licensees § 50.59 evaluation is correct, the NRC need not take any action.

Prior to the events of September 11, 2001, the NRC routinely placed Safety Reports and those portions of the regular updates that did not contain security 4

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 6 of 23 matters in the public domain. But after those events, the NRC has limited public access to these documents. Persons may request release of these documents (e.g.,

under the Freedom of Information Act) or the NRC may release them in response to specific events. When preparing a document for release, the NRC redacts material that should be withheld from public disclosure - such as security-related material that might aid an adversary - and places the redacted document on the public portion of its ADAMS database on the agencys website.

Factual Background.

1. Diablo Canyon and the Long Term Seismic Program.

Diablo Canyon is a two-unit nuclear power plant located on the Pacific coast about 12 miles southwest of San Luis Obispo, California. In the mid-1970s, after plant construction was authorized and underway, the Hosgri Fault was discovered just offshore near the construction site. Prior to granting an operating license, the NRC required PG&E to analyze the fault, address the potential seismic loads on the plant and equipment, and modify the facility to the extent necessary to meet a higher level of earthquake protection before it could be licensed. Pac. Gas & Elec.

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 909-10 (1981).

In 1977, PG&E prepared an analysis incorporating the maximum ground motions for a hypothetical earthquake on the Hosgri Fault into the seismic design 5

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 7 of 23 and licensing bases of the facility. NUREG-0675, Safety Evaluation Report of Diablo Canyon Power Plant, Units 1 and 2 (NUREG-0675), Supplement 7 (May 1978) (ML14279A129). 3 The NRC licensed the facility but conditioned the Unit 1 license on a requirement that PG&E implement a program to re-evaluate and confirm the seismic design bases of the facility. See Diablo Canyon Nuclear Power Plant, Unit 1, Facility Operating License, § 2.C(7) (Apr. 14, 1984)

(ML053140349); Pac. Gas & Elec. Co., (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177, 179 (1985).

In response, PG&E developed the Long Term Seismic Program (LTSP or Seismic Program) to evaluate the seismic design bases of the facility. PG&E completed the Seismic Program, satisfying the license condition. See Letter from Harry Rood, NRC, to Gregory Rueger, PG&E (Apr. 17, 1992) (ML14279A132).

But PG&E voluntarily agreed to continue developing seismic information about the site and to evaluate that information for is potential impact on the facility. See NUREG-0675, Supplement 34, at 2-49 (June 30, 1991) (ML14279A130).

2. The Shoreline Fault.

In November 2008, PG&E discovered and reported a new seismic fault zone near the Diablo Canyon facility, known as the Shoreline Fault. PG&E prepared several analyses of the faults potential impact on the facility (i.e., the anticipated 3

ML citations reflect the accession number for documents that are available in ADAMS, the NRCs public database, www.nrc.gov/reading-rm/adams.html.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 8 of 23 ground motions from an earthquake on the fault) and reported this information to the NRC. The final report found the potential impact of an earthquake on this fault would not adversely impact the safe operation of the Diablo Canyon facility. See Report on the Analysis of the Shoreline Fault Zone (Jan. 7, 2011) (ML110140431).

As part of its routine oversight functions, the NRC reviewed PG&Es analyses and, in addition, prepared its own independent analysis of the potential impact of a Shoreline Fault earthquake on the facility. See NRC Research Information Letter 12-01 (September 2012) (ML121230035) (Research Letter).

The Research Letter concluded that the potential ground motions from the Shoreline Fault are bounded by ground motions for which Diablo Canyon had previously been analyzed. Id. at 95. The NRC transmitted the Research Letter to PG&E by a letter dated October 12, 2012 (ML120730106). In the letter, the NRC advised PG&E that deterministic seismic-loading levels predicted for all the Shoreline fault earthquake scenarios developed and analyzed by the NRC are at, or below, those levels for the Hosgri earthquake (HE) ground motion and the long-term seismic program (LTSP) ground motion. The HE ground motion and the LTSP ground motion are those for which the plant was evaluated previously and demonstrated to have a reasonable assurance of safety. Therefore, the staff has concluded that the Shoreline scenario should be considered as a lesser included case under the Hosgri evaluation and the licensee should update the final safety analysis report (FSAR), as necessary, to include the Shoreline scenario in accordance with the requirements of 10 C.F.R. 50.71(e).

NRC Letter to PG&E (October 12, 2012) at 2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 9 of 23

3. Revision 21 to the Diablo Canyon Safety Report.

On September 16, 2013, PG&E filed Revision 21, its next update to the Diablo Canyon Safety Report, pursuant to § 50.71(e). Revision 21 includes information related to the history of the seismic evaluations related to the Diablo Canyon facility, including the 1977 Hosgri evaluation and the Seismic Program. It also includes information about the Shoreline Fault from the 2011 PG&E Final Report and the NRC October 2012 Letter. The update describes how information about the Shoreline Fault relates to and is bounded by the 1977 Hosgri Earthquake evaluation and the Seismic Program evaluations.

4. NRC Review of Revision 21.

As noted above, under its regulations the NRC does not approve Safety Report updates, but the NRC does review them to ensure that they accurately reflect changes made to the facility and meet the administrative requirements of

§ 50.71(e). The NRC documented that it had reviewed Revision 21 and found that it accurately reflected changes made to the facility and its procedures since the previous update. See Memorandum from Peter Bamford, Project Manager, Plant Licensing IV-I, to Michael Markley, Chief, Plant Licensing IV-1 (June 23, 2014)

(Exhibit 3).4 4

As a routine internal matter, this memo was initially non-public. It is the NRCs only activity associated with Revision 21 and has now been made publicly available on the NRCs ADAMS database at accession number ML14022A120.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 10 of 23 First, the NRC found that Revision 21 was submitted in a timely fashion (the . . . submittal date for Revision 21 . . . meets the requirements[.]). Exhibit 3 at 1. Second, the NRC noted that Revision 21 correctly reflected recent changes (revision meets the requirement . . . that the revisions must reflect all changes up to a maximum of 6 months prior to the date of filing) Id. Next, the NRC found that Revision 21 correctly reflected license amendments issued during the period

([T]he FSAR Update is consistent with the updates stated in Amendment Nos.

211/213.). Id. at 2.

Finally, the NRC found that Revision 21 addressed violations contained in inspection reports issued during the period (Revision 21 . . . incorporated the corrective actions to address both these [inspection reports].), id. at 3, and the corrective action identified in a Licensee Event Report (LER) (Revision 21 . . .

incorporated the corrective actions described in the LER.), id. The NRC did not address PG&Es inclusion of information about the Shoreline Fault, much less state whether inclusion of that information required a license amendment or was proper.

5. FOEs Hearing Request Before the Commission.

On August 26, 2014, FOE filed a Petition to Intervene and Request for Hearing with the Commission, alleging that by allowing Diablo Canyons continued operation, the NRC had granted a de facto license amendment to the 9

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 11 of 23 facility in light of the threat of a potential earthquake from the Shoreline Fault. See Exhibit 1. FOE asked the Commission to order an administrative hearing on the alleged de facto amendments pursuant to Section 189a of the Atomic Energy Act, 42 U.S.C. § 2239(a)(1)(A). This section requires the agency to offer a hearing on any license amendment request.

In accordance with the NRCs rules of practice, both the NRC Staff and PG&E responded in opposition to the petition and the Nuclear Energy Institute filed an amicus curiae brief opposing the request. FOE filed a reply (Exhibit 2),

and the matter is now pending before the Commission. FOE has not filed a request for emergency relief or a stay of operations at Diablo Canyon.

Separately, the NRC received a request from a member of the public to release the portion of Revision 21 dealing with seismic matters. The NRC reviewed the relevant portion of Revision 21, redacted any material exempt from disclosure, and placed the remainder of the document, together with the transmittal letter, in its public ADAMS database on October 1, 2014. 5 Public release of the document occurred after FOE filed its petition to intervene with the Commission but before it had filed its reply. FOE focused on Revision 21 in its reply, arguing that PG&Es submission of the document supported its position that the NRC had 5

NRC normally places the letter transmitting a Safety Report update in the public domain. Here, the NRC inadvertently overlooked this action and released the letter at the same time it released the portion of Revision 21.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 12 of 23 de facto amended the Diablo Canyon licenses and, therefore, should hold an administrative hearing on those amendments. See Exhibit 2 at 10-19.

FOE argued that (1) Revision 21 changed the seismic design bases of the facility, id. at 12-14; (2) PG&Es submission of Revision 21 requires a license amendment, id. at 14-17; and (3) the NRCs approval of Revision 21 constituted a de facto license amendment, id. at 17-19. Thus, FOE asked the Commission to order a hearing with respect to the de facto amendments. FOE then filed this Petition for Review, making the same argument and seeking the same remedy.

ARGUMENT I. This Court Lacks Jurisdiction Over the Petition for Review.

A. The Petition Fails to Demonstrate Standing.

As relevant here, an association, such as FOE, must demonstrate that it has standing to sue by demonstrating, inter alia, that at least one of its members has standing to sue. Hunt v. Washington State Apple Advertising Commn, 432 U.S.

333, 342-43 (1977). At least one member of the organization must show the constitutional minimum of standing, i.e., (1) injury in fact, (2) causation, (3) and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Petitioners who cannot point to an underlying administrative record (as here, where there was no proceeding before the agency) must provide a factual basis, including affidavits, to demonstrate standing at the outset of the case. Sierra Club v. EPA, 11 (Page 12 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 13 of 23 292 F.3d 895, 898-901 (D.C. Cir. 2002); D.C. Cir. R. 28(a)(7) (standing must be demonstrated in opening brief). Generalized assertions of standing are insufficient.

Sierra Club, 292 F.3d at 898-901.

Here, FOEs Docketing Statement contains statement claiming that it has standing to pursue this lawsuit. See Attachment to Docketing Statement at 1-2.

But that statement is simply a generalized assertion that is exactly the type of statement that this Court held was insufficient to establish standing in Sierra Club.

FOE submitted a standing argument in its hearing request now pending before the Commission, see Exhibit 1 at 71-87, but it has failed to provide any factual support for its claim here. Neither the Petition nor the Docketing Statement attaches affidavits from FOE members (or even lists the members names) whom FOE claims have standing to sue.

As we point out infra, this Court should dismiss the Petition and allow the Commission to decide the matters pending before it. But even if this Court rejects our other arguments, it should not allow this case to go forward if FOE cannot demonstrate standing at the outset. Thus, FOE should now demonstrate, with specific, supporting factual material, that it has standing to pursue its Petition for Review.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 14 of 23 B. The Petition does not seek review of final agency action.

1. Legal Standard.

The Hobbs Act grants appellate courts jurisdiction to review final orders issued by the NRC. 28 U.S.C. § 2342(4). Finality under the Hobbs Act is to be narrowly construed[;] . . . [a]n order is final if it imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process. Natural Res. Def. Council v. NRC, 680 F.2d 810, 815 (D.C. Cir.1982) (citations omitted).

The Supreme Court has explained that

[a]s a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency's decisionmaking process, - it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow[.]

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). 6 And in the context of administrative adjudications, a final order is [normally] one that disposes of all issues as to all parties. Citizens for a Safe Env't v. AEC, 489 F.2d 1018, 1021 (3d Cir.1973); see also Blue Ridge Envtl. Defense League v. NRC, 668 F.3d 747, 754 (D.C. Cir. 2012).

6 Bennett v. Spear involved a question of finality under the Administrative Procedure Act (APA), but this Court has held that there is no difference between the meaning of final agency action as used in the APA and in the Hobbs Act.

Intercity Transp. Co. v. United States, 737 F.2d 103, 106 n.3 (D.C. Cir. 1984).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 15 of 23 Furthermore, [o]ngoing agency review renders an order nonfinal for purposes of judicial review, and a petition for review of the order is incurably premature. Intl Telecard Assn v. FCC, 166 F.3d 387, 388 (D.C. Cir. 1999). As this Court has previously explained:

[A] party that stays before an agency to seek reconsideration of an order cannot at the same time appear before a court to seek review of that same order, any more than the party could literally be in two places at the same time. Or from another perspective, an agency action cannot be considered nonfinal for one purpose and final for another.

Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489 (D.C. Cir. 1994); see also ICC v. Bhd.

of Locomotive Engrs, 482 U.S. 270, 284-85 (1987) (administrative appeal may render an otherwise final order non-final for purposes of APA review); cf. Wade v.

FCC, 986 F.2d 1433, 1434 (D.C. Cir. 1993) (danger of wasted judicial effort . . .

attends the simultaneous exercise of judicial and agency reconsideration).

2. The June 23, 2014 Memorandum Is Not Final Agency Action.

FOE alleges that the NRC approved Revision 21. But the only NRC action on Revision 21 is reflected in the June 23, 2014 memorandum (June 23 memorandum) (Exhibit 3). The June 23 memorandum, however, is not final agency action and is not an order in any proceeding. And even if the June 23 memorandum ever constituted final action that approved Revision 21 (which the NRC does not concede) it is crystal clear that FOE has effectively appealed that action to the Commission, making it non-final for purposes of judicial review.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 16 of 23

a. FOE alleges that the NRC approved Revision 21 and thereby amended the Diablo Canyon licenses. Petition at 1-2. But the June 23 memorandum (the only NRC action on Revision 21) does not express any NRC decision on whether PG&E correctly included additional information about the Shoreline Fault, which is the underlying issue raised by FOE. Instead, the June 23 memorandum simply documents the NRCs oversight of PG&Es reporting duties.

Nothing in the June 23 memorandum imposes an obligation, denies a right, or fixes some legal relationship. Natural Res. Def. Council, 680 F.2d at 815. And nothing in the June 23 memorandum is the consummation of a decision-making process or determines any legal consequences. Bennett v. Spear, 520 U.S. at 177-

78. Instead, the June 23 memorandum was a routine review to determine whether Revision 21 satisfied the facial reporting requirements of § 50.71(e).7 Thus, the June 23 memorandum is not final agency action, and is certainly not final with regard to the issue in this lawsuit, i.e., whether PG&E must obtain a license amendment to add information about the Shoreline Fault to its Safety Report.

b. Assuming arguendo that the June 23 memorandum constitutes an approval of the changes to the Safety Report concerning the information about the Shoreline Fault, FOE appealed that action to the Commission by seeking a hearing 7

Thus, to the extent the June 23 memorandum determines any legal obligations or has any legal consequences flow from it, Bennett v. Spear, supra, those obligations and consequences relate to the reporting requirements of § 50.71(e).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 17 of 23 on the matter. Indeed, FOE claims before the Commission that Revision 21 accomplishes what PG&E proposed to do in [a previously withdrawn license amendment request]. This kind of change cannot be made without a license amendment proceeding . . . . Exhibit 2 at 12. FOE then argues that (1) Revision 21 has changed the seismic design basis of the facility, id. at 12-14; (2) PG&Es submission of Revision 21 requires a License Amendment, id. at 14-17; and (3) the NRCs approval of Revision 21 constitutes a de facto amendment of the Diablo Canyon licenses, id. at 17-19.

To the extent the June 23 memorandum approved Revision 21, FOE has asked the Commission to reverse that action. Thus, any approval of Revision 21 is now before the Commission and is no longer final for purposes of judicial review. FOE cannot stay[] before an agency to seek reconsideration of an order and at the same time appear before a court to see review of that same order.

Bellsouth Corp., 17 F.3d at 1489. For this reason this Court lacks jurisdiction to consider FOEs Petition for Review.

II. FOE Must Exhaust Its Administrative Remedies

1. Legal Standard.

Independent of whether the Court has jurisdiction over the Petition for Review under the Hobbs Act, it is axiomatic that federal courts should refrain from reviewing agency action before the party bringing the lawsuit has exhausted its 16 (Page 17 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 18 of 23 administrative remedies. This principle allows the agency to exercise its discretion and expertise on the matter, to create a factual record, and to correct any mistakes made at lower levels and thereby eliminate unnecessary judicial reviews. See, e.g.,

Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003); Oglesby v. Dept. of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). Well-established principles of administrative law . . . dictate that the courts allow the agency to interpret the law before they determine whether the agency has violated it. Action for Childrens Television v. FCC, 59 F3d 1249, 1256 (D.C. Cir. 1995), cert. denied, 516 U.S.

1072 (1996). See generally McCarthy v. Madigan, 503 U.S. 140, 144-47 (1992).

A lawsuit is not fit for judicial review when the outcome from a pending agency proceeding may render the case moot. In re Aiken County, 645 F.3d 428, 435 (D.C. Cir. 2011).

2. FOE Has Raised The Same Claims Before The Agency.

a. This lawsuit claims that the NRC has approved Revision 21. Petition at 1-2. And FOEs Statement of the Issues in this case identifies the issues before this Court as whether the NRC (1) in failing to provide notice to the public of Revision 21 . . . and an opportunity for a hearing on the same, deprived [FOE] of its hearing rights in a license amendment proceeding[,] and (2) acted contrary to law by approving Revision 21 . . . without the required opportunity for a hearing in 17 (Page 18 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 19 of 23 a license amendment proceeding. Petitioners Non-Binding Statement of Issues To Be Raised (Dec. 1, 2014) at 1-2.

But FOE has raised those exact same issues before the Commission. For example, FOEs administrative hearing request contends that NRC has de facto amended the license for Diablo Canyon through Revision 21 to the [Safety Report]

and continues to engage in a de facto license amendment proceeding. Exhibit 2 at

11. And as we noted earlier, FOE claims before the Commission that (1) Revision 21 changed the seismic design bases of the facility, Exhibit 2 at 12-14; (2) PG&Es submission of Revision 21 requires a license amendment, id. at 14-17; and (3) the NRCs approval of Revision 21 constituted a de facto license amendment, id. at 17-19. Thus, FOE raises the same issues before this Court that its hearing request raises before the Commission, the administrative agency with primary jurisdiction over these issues.

Furthermore, not only has FOE raised the same issues before the Commission that it now raises before this Court, but it bases its request to the agency on the same action that is the basis for this lawsuit, i.e., the filing and alleged approval of Revision 21. In this Court, FOEs Petition for Review challenges the final order . . . approving Revision 21 . . . without the required license amendment proceeding. Petition at 1. But FOE bases its hearing request before the Commission on the NRCs alleged approval of Revision 21. For 18 (Page 19 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 20 of 23 example, FOE claims before the Commission that the NRC has de facto amended the licenses for Diablo Canyon through Revision 21, id. at 11, and then presents a series of legal arguments based on the approval of Revision 21, id. at 12-19.

b. Moreover, FOE seeks the same remedies from this Court that it seeks from the Commission. FOE asks that this Court remand the matter to NRC for proper execution of the public hearing requirements under the Atomic Energy Act and NRC regulations and order that Diablo Canyon temporarily suspend operation until those proceedings are complete. Petition at 3. But FOE has already asked the Commission to do exactly the same thing in the petition to intervene and request for hearing that it has filed before the agency, and is now pending for a decision:

[FOE] . . . requests . . . that the Commission empanel an Atomic Safety and Licensing Board to conduct a public adjudicatory hearing as required by section 189a(a)(1)(A) [sic] of the Atomic Energy Act, 42 U.S.C. § 2239(a)(1)(A), and . . . that the NRC order PG&E to suspend operations at Diablo Canyon pending a determination, following a public hearing, that it can be safely operated under its license as amended.

Exhibit 1 at 7; see also Exhibit 2 at 5 ([T]he NRC has violated § 189a(a)(1)(A)

[sic] of the Atomic Energy Act with respect to . . . Revision 21. The Commission should convene an Atomic Safety and Licensing Board and direct it to grant

[FOEs hearing request].). Thus, FOE has already requested the same remedies from the Commission that it has now requested from this Court.

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c. In sum, FOEs hearing request before the Commission raises the same issues, seeks the same relief, and is based on the same actions as its Petition for Review raises before this Court. FOEs hearing request has been fully briefed and is now pending before the Commission, which is the body that Congress has duly authorized to resolve such claims. See 42 U.S.C. § 2239(a); see also United States

v. Philip Morris USA Inc, 686 F.3d 832, 838 (D.C. Cir. 2012) (the doctrine of primary jurisdiction, under which a court will defer to ongoing agency proceedings that are within the agencys expertise, can enhance court decision-making and efficiency by allowing the court to take advantage of [that] administrative expertise (quoting Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1051 (9th Cir. 2000)).

Thus, this Court should dismiss the Petition for Review as premature and allow the Commission to rule on FOEs request. If the Commission grants FOEs hearing request, that decision will moot the Petition pending before this Court. In re Aiken County, 645 F.3d at 435. And if the Commission denies FOEs request, that decision would constitute final agency action that FOE can then challenge in a new Petition for Review.

CONCLUSION For the forgoing reasons, this Court should dismiss the Petition for Review.

Respectfully submitted, 20 (Page 21 of Total)

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__s/Andrew P. Averbach___

SAM HIRSCH ANDREW P. AVERBACH Acting Assistant Attorney General Solicitor

__s/Thekla Hansen-Young__ __s/Charles E. Mullins__

THEKLA HANSEN-YOUNG CHARLES E. MULLINS Attorney Senior Attorney Appellate Section Office of the General Counsel Environment and Natural U.S. Nuclear Regulatory Commission Resources Division 11555 Rockville Pike U.S. Department of Justice Rockville, Maryland 2085 PO Box 7415, Ben Franklin Station (301) 415-1618 Washington, D.C. 20044 charles.mullins@nrc.gov (202) 307-2710 thekla.hansen-young@usdoj.gov December 10, 2014 21 (Page 22 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 23 of 23 CERTIFICATE OF SERVICE I certify that on December 10, 2014, I filed Respondents Motion to Dismiss in Case No. 14-1213 with the U.S. Court of Appeals for the District of Columbia Circuit by filing it with the Courts CM/ECF system. That method is calculated to serve:

Richard E. Ayers David A. Repka Jessica L. Olson Darani M. Reddick John H. Bernetich Winston & Strawn, LLP Ayers Law Group 1700 K Street, N.W.

1707 L Street, N.W. Suite 850 Washington, D.C. 20006 Washington, D.C. 20036 Thekla Hansen-Young Attorney, Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415, Ben Franklin Station Washington, D.C. 20044 Respectfully submitted,

__s/Charles E. Mullins__

CHARLES E. MULLINS Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 415-1618 charles.mullins@nrc.gov 22 (Page 23 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 1 of 131 EXHIBIT 1 Respondents Motion to Dismiss No. 14-1213 (D.C. Cir.)

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 2 of 131 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of )

)

PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275, 50-323

)

(Diablo Canyon Power Plant) ) August 26, 2014 PETITION TO INTERVENE AND REQUEST FOR HEARING BY FRIENDS OF THE EARTH In 2008, a U.S. Geological Survey geophysicist discovered a previously unknown fault just offshore from Diablo Canyon Power Plant (Diablo Canyon) near San Luis Obispo, California. Despite its being located just 300 meters from Diablo Canyons intake structure, Nuclear Regulatory Commission (NRC or Commission) and Pacific Gas & Electric (PG&E) scientists had failed to discover the fault during the approximately 30 years since Diablo Canyon began operations or in the approximately 45 years since the plants construction permits were issued. Six years after the discovery of this fault, later named the Shoreline Fault, PG&E has not demonstrated that the plant can be safely operated under its existing operating license; to the contrary, studies done so far indicate that the Shoreline Fault and the nearby Los Osos and San Luis Bay faults are capable of producing an earthquake with ground acceleration that far exceeds the limits in the plants current licensing basis, posing a serious safety risk to the public and environment near the plant.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 3 of 131 Despite both the NRCs and PG&Es acknowledgement of this startling information, the NRC has not required PG&E to propose a license amendment and make a public demonstration that the plant remains safe to operate. Meanwhile the Staff has allowed the reactors to continue to operate outside their licensing basis, effectively amending the license de facto. In fact, the NRC appears to have suppressed a report by NRCs Chief Resident Inspector for Diablo Canyon, Dr. Michael Peck, stating flatly that the plant is no longer operating within its licensing basis.

On August 25, 2014, the Associated Press (AP) issued a major article disclosing that Dr. Peck had filed a Dissenting Profession Opinion (DPO) with the NRC.1 In his DPO, Dr. Peck concluded that that [these] three local earthquake faults [the Shoreline, San Luis Bay, and Los Osos faults] are capable of generating significantly greater vibratory ground motion than was used to establish the facility safe shut down earthquake (SSE) design basis.2 Since Diablo is not operating within its licensing basis, Dr. Peck asserted, the plant must suspend operations while the NRC considers a license amendment. Dr. Peck further noted that NRCs actions [i]n response to this issue . . . have been inconsistent with existing regulatory requirements and the facility design bases and Operating License.3 Despite Dr. Pecks explicit request that his DPO be made public, the existence of the report itself was not publically known until the APs report.

The Atomic Energy Act (AEA or Act) requires a plant to have a valid license and operate within its licensing basis. The scope of the licensing basis, as described by the NRC, is 1

The Associated Press, AP Exclusive: Expert Calls for Nuke Plant Closure, N.Y. Times, Aug. 25, 2014, http://www.nytimes.com/aponline/2014/08/25/us/ap-us-nuclear-reactor-dispute.html?hp&action=click&pgtype=Homepage&version=WireFeed&module=pocket-region&region=pocket-region&WT.nav=pocket-region.

2 NRC, Dr. Michael Peck, Differing Professional Opinion (hereinafter DPO), at 2. The DPO is provided as Attachment A to this Petition..

3 DPO, at 2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 4 of 131 comprised of the requirements imposed on the plant by its design basis, facility-specific technical specifications, NRC regulations, and other requirements. When a plant cannot operate within the specific parameters described in the current licensing basis, the AEA requires the licensee to seek a license amendment, triggering a public process with an adjudicatory hearing in which other interested parties may participate. Thus NRC regulations, and public safety, require that the plant suspend operations, as requested by Dr. Peck, the NRC official at the site most directly responsible for public safety, until PG&E can show, with evidence reviewed in a public hearing on a license amendment, that the plant can be operated safely.

Diablo Canyons licensing basis requires that the plants integral systems and parts be qualified to withstand stress caused by the strongest potential earthquake that can occur at the plant. Currently, Diablo Canyons licensing basis provides that the plant is qualified to withstand an earthquake with ground acceleration of 0.4 g.4 The Shoreline Fault has the potential to cause an earthquake with ground acceleration of up to 0.62 gmuch higher than what the licensing basis allows.5 The Los Osos and San Luis Bay faults have peak ground acceleration of 0.60 g and 0.70 g, respectivelyalso well above what Diablo Canyons licensing basis allows.6 Yet the NRC Staff (herein sometimes referred to as the Staff or the Commission Staff) continues to allow the plant to operate without a public review of whatever evidence the 4

g is a measure of acceleration due to Earths gravity. 1.0 g equals 9.81 m/s2. See NRC, Fact Sheet on Seismic Issues for Nuclear Power Plants, http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/fs-seismic-issues.html.

5 DPO, at 22. Peak ground acceleration is at 100 Hz. Id. See also PG&E Report to NRC, Report on the Analysis of the Shoreline Fault Zone, Central Coast California, (Jan. 2011), ADAMS Accession No. ML110140400, at 6-51.

6 PG&E Report to NRC, Report on the Analysis of the Shoreline Fault Zone, Central Coast California, ADAMS Accession No. ML110140400, at ES-5.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 5 of 131 NRC and the licensee can produce that it can safely withstand this far greater force, or without even PG&Es making changes to its licensing basis.

Following discovery of the Shoreline Fault, PG&E consulted with NRC Staff regarding how to evaluate the seismic risk posed by the three faults. Acting upon NRC Staffs advice, PG&E concluded that a change to its licensing basis was necessary and that the Staff would have to approve any new method used to evaluate the Shoreline Fault. Accordingly, PG&E filed a License Amendment Request.

Initially, NRC Staff determined internally to deny PG&Es request on grounds that amending Diablo Canyons license as PG&E requested would lessen the plants safety requirements below acceptable standards.7 After reviewing the License Amendment Request, NRC Staff found that the method proposed by PG&E was unacceptable from technical and regulatory perspectives.8 NRC Staff thus recognized that it could not lawfully grant PG&Es amendment request.

Rather than deny the License Amendment Request, however, PG&Ewith NRCs assistancemanaged to achieve effectively the same result as requested in the License Amendment Request. Approximately one year after the License Amendment Request was submitted, NRC Staff permitted PG&E to withdraw its request, and began a private process to amend Diablo Canyons license through closed-door negotiations with PG&E, in violation of the AEA, which requires the NRC to provide an opportunity for a public adjudicatory hearing on any 7

NRC draft document, Basis for DE Denial of Diablo Canyon 1&2 LAR 11-05, at 3, ADAMS Accession No. ML13354B992. This document, which was attached from an NRC email, was obtained through the Freedom of Information Act, NRC Request No. FOIA/PA-2014-0065.

8 Id.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 6 of 131 amendment to a nuclear reactor operating license. NRC Staff took this striking position notwithstanding, and in direct contradiction to, its own prior determinations (1) that a formal license amendment was required to make the changes PG&E wanted to make; (2) that the License Amendment Request submitted by PG&E was insufficient to ensure that the plant would remain safe; and (3) that the NRC Staff could not lawfully grant the License Amendment Request.

Rather than requiring PG&E to provide a deterministic evaluation of the ability of the plants structures, systems, and components (SSCs) to withstand the destructive forces of the worst-case earthquake caused by the Shoreline fault system, the Staff indicated that performance of the probabilistic analysis called for under the Commissions Fukushima review would provide sufficient assurance that the plant was safe to operate. But NRC policy requires a deterministic analysis of the plants ability to survive a worst-case earthquake, and prohibits use of a probabilistic analysis of the chances such an earthquake will occur to demonstrate a plants safety. PG&E cannot show, through its Fukushima analysis, that the plants SSCs would survive a worst-case earthquake caused by the Shoreline fault system, and it has not made such a showing through other means.

In allowing PG&E to avoid a license amendment proceeding, NRC Staff relied upon a claim by PG&E that, although the potential ground motion from the Shoreline, Los Osos, and San Luis Bay faults exceeded that contained in Diablo Canyons licensing basis, the seismic risk posed by the faults was less than the risk posed by another fault, the Hosgri Fault, near the plant.

But the Hosgri analysis is not part of the licensing basis for Diablo Canyon, as the Commission made clear decades ago when it licensed the plant. Since it is not part of the licensing basis of 5

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 7 of 131 the plant, the Hosgri analysis therefore cannot be used to authorize continued operation under the current license.

Moreover, it has not been shown that Diablo Canyon is capable of being safely shut down following an earthquake. Although the Hosgri Fault is indeed a large fault that poses a significant risk to Diablo Canyon, the methodologies and assumptions used to evaluate the Hosgri Faults risk to the plant are materially weaker than the assumptions that NRC regulations provide for use in determining whether a plant can safely withstand earthquakes. Indeed, PG&E has admitted that the projected ground motion at the plant site caused by an earthquake on one of the three faults is equal to or greater than potential ground motion caused by a Hosgri earthquake.9 As a result, the Hosgri Event is not a valid basis for comparison to new seismic data.

By permitting PG&E to amend its license through back channels and informal discussions, rather than through the license amendment process required by the Atomic Energy Act, NRC is conducting a de facto license amendment proceeding, in violation of the AEA and NRC decisions. Rather than holding a public hearing process as required by the AEA, where the public could challenge the NRC Staffs and PG&Es unsubstantiated assertions that the plant is safe, the Staff has used a closed-door process between itself and the licensee to work a de facto license amendment. Using PG&Es self-serving assumptions as its basis for evaluating the new ground motion data relating to the Shoreline, Los Osos, and San Luis Bay faults, the Staff continues to grant PG&E operating authority not set forth in the current operating license for Diablo Canyon. Thus, the Staff is currently permitting Diablo Canyon to continue operating in 9

Id. at ES-2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 8 of 131 the face of a serious seismic threat that has not undergone comprehensive and transparent study, posing a serious safety risk to the public near Diablo Canyon.

Petitioner Friends of the Earth (Petitioner or FoE) therefore requests (1) that it be permitted to intervene in the de facto license amendment proceeding; (2) that the Commission empanel an Atomic Safety and Licensing Board to conduct a public adjudicatory hearing regarding Diablo Canyons ability to be safely shut down in the event of the peak ground motion that can be expected given todays understanding of the potential earthquakes that could affect the plant, as required by the section 189a(a)(1)(A) of Atomic Energy Act, 42 U.S.C.

§ 2239(a)(1)(A); and (3) in accordance with past NRC practice, that the NRC order PG&E to suspend operations at Diablo Canyon pending a determination, following a public hearing, that it can be safely operated under its license as amended.

I. FACTUAL BACKGROUND

1. Seismic Evaluations At Diablo Canyon In The 1970s Diablo Canyon Unit 1 received its construction permit in April 1968, some 46 years ago.

The construction permit for Unit 2 followed in December 1970.10 Construction of Diablo Canyon took place throughout the 1970s amid continuing controversy during the hearings before the Atomic Energy Commission on the operating license. The then-recently created Nuclear Regulation Commission did not approve full power operating licenses for Units 1 and 2 until November 1984 and August 1985, respectively, some 15 years after construction began.

10 See NRC, Extension of Construction Permit Completion Dates, ADAMS Accession No. ML022320331 (Feb. 2, 1980), encl. at 1.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 9 of 131 Diablo Canyon is located on top of a web of seismic faults. Although the area had been subjected to extensive seismic study prior to the issuance of Diablo Canyons construction permit, PG&E seismologists failed to identify the Hosgri Fault, which is located about 6 miles from the plant.11 Seismologists have determined that the Hosgri Fault has the potential to cause a devastating magnitude 7.5 earthquakenearly twice as powerful as the earthquake the plant had been designed to withstand.

In response to the 1971 discovery of the Hosgri Fault, after the issuance of Diablo Canyons construction permit, a condition unique among U.S. nuclear power plants was inserted into Diablo Canyons Operating License. That condition required PG&E to develop and implement a program to reevaluate the seismic design bases used for [Diablo Canyon].12 To implement this program, PG&E modified the NRCs standard earthquake design criteria used for all other plants and developed the Long Term Seismic Program (LTSP). A panel of the Atomic Safety and Licensing Board (ASLB) then found that, using the new Hosgri Evaluation (HE) methodology, Diablo Canyon was capable of withstanding the postulated Hosgri Event.13 The ASLB refused to hear testimony offered by independent experts that the modified design criteria had no scientific basis.

11 PG&E, License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11312A166 (Oct. 20, 2011), encl. at 4.

12 Diablo Canyon Nuclear Power Plant, Unit 1, Operating License, Condition 2(C)(7), ADAMS Accession No. ML053140349.

13 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-79-26, 10 NRC 453 (1979), affd in part, ALAB-644, 13 NRC 903 (1981).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 10 of 131 Rather than require PG&E to employ the assumptions that the company was required to use in the plants design basis earthquakesthe Double Design Earthquake (DDE) and Design Earthquake (DE)the Commission treated the Hosgri Evaluation as a special case, permitting the seismic evaluation under the LTSP to use materially weaker assumptions than in the NRC standard method.14 The Commission also confirmed that the LTSP would not alter the current licensing basis or seismic qualification basis for Diablo Canyon.15 The Commission permitted PG&E to conduct its seismic analysis of the Hosgri Fault using the weaker, limited Hosgri Evaluation, rather than the comprehensive methodology used in the DDE and DE analyses.16 The ASLB determined, based on the Hosgri Evaluation, that Diablo Canyon would continue to operate with an adequate margin of safety despite the discovery of a fault with potential ground acceleration that far exceeded the plants design basis.

The evaluation of seismic information and maintenance of an adequate seismic margin are paramount considerations in ensuring the plants ability to withstand seismic events. Yet, despite the discovery of the Hosgri Fault following the issuance of Diablo Canyons construction permit and the plants location in one of the most seismically active areas in the United States, Diablo Canyons operating license contains no clear direction or guidelines regarding how PG&E is required to analyze newly discovered seismic data.17 14 The Hosgri Evaluation is a seismic analysis within the LTSP.

15 Diablo Canyon Nuclear Power Plant, Units 1 and 2, Final Safety Analysis Report Update, Section 2.5, Geology and Seismology, ADAMS Accession No. ML11145A034 (Rev. May 19, 2010), at 2.5-1 (hereinafter FSARU). See also NRC, Additional Branch Chief Comments Related to NCP 2012-001 With Annotations, ADAMS Accession No. ML12284A066, at 3.

16 For purposes of this Petition, this evaluation is referred to as the Hosgri Evaluation or HE.

17 PG&E, License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 11 of 131

2. Discovery Of The Shoreline Fault In November of 2008, history in a sense repeated itself. The U.S. Geological Survey discovered a previously unknown line of epicenters less than a quarter mile offshore from Diablo Canyons intake structure. This line of epicenters became known as the Shoreline Fault. A January 2011 PG&E report concluded that the Shoreline Fault may be significantly stronger than any of the postulated earthquakes studied in Diablo Canyons license:

The magnitude of deterministic earthquakes for the Shoreline fault (M6.5) is less than the magnitudes for the Hosgri (M7.1), but due to the shorter distance, the ground motions from the 84th percentile ground motions for Shoreline fault are greater than the updated ground motions from the Hosgri fault source.18 The 2011 private PG&E report concluded that the Shoreline Fault was not connected to the Hosgri Fault and that the Shoreline Fault is divided into segments that would act as barriers to earthquake rupture. An earthquake rupturing the Shoreline Fault and a part of the Hosgri Fault, which would be possible if the two faults are connected or are sufficiently close to each other that rupturing on one fault could trigger rupturing on the other, would produce a greater earthquake than by rupturing on only the Shoreline Fault.19 The geophysicist who discovered the Shoreline Fault, Dr. Jeanne Hardebeck of the U.S. Geological Survey, vigorously disagrees with PG&Es unsubstantiated conclusion that the two faults are not connected. Dr. Hardebecks published research concludes that the Shoreline Fault likely is connected to the Hosgri Fault and ML11312A166 (Oct. 20, 2011), encl. at 2 (The current DCPP licensing basis lacks a clear process for evaluating new seismic information.).

18 PG&E Report to the NRC, Report on the Analysis of the Shoreline Fault Zone, Central Coastal California, ADAMS Accession No. ML ML110140425 (Jan. 2011), at ES-2.

19 See Hardebeck, J, Geometry and Earthquake Potential of the Shoreline Fault, Central California, Bulletin of the Seismological Society of America, Vol. 103, No. 1, pp. 447-462, February 2013, doi:

10.1785/0120120175.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 12 of 131 that, even if the two faults are not connected, the discontinuity is so small that it would not serve as a barrier to earthquake rupture across the two faults.20 Based on her finding that rupturing on the Shoreline Fault could lead to further rupturing on the Hosgri Fault, resulting in a M7.5 earthquake, Dr. Hardebeck concluded that PG&E and NRC are wrong to rule out the possibility of a joint rupture that could cause a much larger earthquake than either fault alone.

Based on the discovery of the Shoreline Fault, PG&E also revised upward the risk posed to the plant by the nearby San Luis Bay and Los Osos faults.21

3. PG&E Submits License Amendment Request 11-05 After the discovery of the Shoreline Fault, the Staff and PG&E held a series of meetings regarding whether PG&E was required to amend its licensing basis in order to designate a method of evaluation for the Shoreline Fault. PG&E was concerned that [t]he current DCPP licensing basis lacks a clear process for evaluating new seismic information.22 Following these meetings, the Staff concluded that a license amendment was a necessary and appropriate step to clarify and resolve the issue.23 PG&E therefore filed License Amendment Request 11-05 (LAR 11-05), seeking to fill the gap in the plants operating license and designate such a process. Through the LAR, PG&E 20 Id. at 447.

21 PG&E Report to NRC, Report on the Analysis of the Shoreline Fault Zone, Central Coastal California, ADAMS Accession No. ML110140400, at ES-5.

22 PG&E, License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11312A166 (Oct. 20, 2011) (hereinafter LAR 11-05), at 2.

23 NRC, Additional Branch Chief Comments Related to NCP 2012-001 With Annotations, ADAMS Accession No. ML12284A066 (Feb. 8, 2012).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 13 of 131 propose[d] to revise the current licensing basis, as described in the Final Safety Analysis Report as Updated (FSARU) and Technical Specifications, to provide requirements for the actions, evaluations, and reports necessary when PG&E identifies new seismic information relevant to the design and operation of [Diablo Canyon].24 In all, the LAR contained 408 pages of proposed changes to the FSARU and technical specifications and supporting documentation for those changes.

More specifically, through the amendment request, PG&E sought to:

(1) clearly define an evaluation process for newly identified seismic information and incorporate ongoing commitments associated with the Long Term Seismic Plan [] into the FSARU; and (2) clarify . . . that the 1977 Hosgri earthquake is the equivalent of [Diablo Canyon]s safe shutdown earthquake, as defined in 10 CFR 100, Appendix A.25 Recognizing that the LTSP was not intended to be a part of Diablo Canyons current licensing basis and was not intended for use in future discoveries of new faults, the Staff directed PG&E to submit an accounting of precisely how the LTSP differed from the NRCs approved seismic evaluation methods. (Collectively, the set of NRC-approved methodologies, assumptions, and acceptance criteria is called the Standard Review Plan.) In response, PG&E submitted a 331-page document outlining the LTSPs deviations from the Standard Review Plan.26 Among many other differences, discussed in more detail below, the document demonstrates that the LTSP:

24 LAR 11-05, at 1.

25 LAR 11-05, at 1.

26 See PG&E Letter DCL-11-124, Standard Review Plan Comparison Tables for License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon 12 (Page 36 of Total)

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• Uses less conservative damping values for certain integral plant structures, systems, and components (SSCs), resulting in a finding that over-predicts how much kinetic energy will be dissipated as the energy travels from the fault to the SSC itself;27 and

• Uses relaxed seismic stress standards to determine the amount of seismic stress that certain SSCs can withstand.28 LAR 11-05 itself contains a summary of how the LTSP deviates from the Standard Review Plan criteria.29

4. The Staff Changes Its Mind That A License Amendment Is Necessary And Permits PG&E To Withdraw License Amendment Request 11-05 Initially, NRC Staff determined that the changes to Diablo Canyons license proposed in LAR 11-05 would weaken the plants safety requirements below acceptable standards. The Staff therefore internally proposed to deny the request to designate the Hosgri Evaluation as the plants Safe Shutdown Earthquake:

The staff finds PG&E license amendment request unacceptable based on two counts. . . . To evaluate the proposed HE as an SSE utilizing acceptance limits exceeding those specified in the SRP for the SSE is unacceptable from technical and regulatory perspectives. [First, t]here are implicit design margins for structures and components that are associated with the design for SSE. The proposed amendment explicitly reduces the accepted inherent margins in the design for SSE.

The second reason for not accepting the proposed LAR is that, despite the staffs disagreement on the evaluation criteria proposed for the SSE as discussed above, PG&E stated that it has not completed its reevaluation of the Reactor Coolant System (RC) for Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11342A238 (Dec. 6, 2011), and attachments thereto (hereinafter Standard Review Plan Comparison Tables).

27 Standard Review Plan Comparison Tables, encl. attachment 5, at 3.

28 DPO, at 17.

29 LAR 11-05, encl., at 18 et seq.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 15 of 131 the seismic and [loss-of-coolant-accident] loads. . . . The RCS is a major part of ASME class 1 systems.30 Early in 2012 the Staff reversed course. Ignoring its earlier view that a license amendment request was a necessary and appropriate step for evaluating new seismic information, the Staff permittedindeed, nearly invitedPG&E to withdraw LAR 11-05 and instead use an evaluation method to be selected in a non-public, informal proceeding.31 Following the filing of the LAR and the March 2011 accident at the Fukushima Dai-ichi plant in Japan, the newly created Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (the Task Force or Fukushima Task Force) issued a report in which it made recommendations intended to insure the U.S. nuclear fleet could withstand earthquakes.32 One of these recommendations was to [o]rder licensees to reevaluate the seismic and flooding hazards at their sites.33 In implementing this recommendation, NRC issued two documents that PG&E contends permitted it to withdraw LAR 11-05: (1) a letter dated March 12, 2012, to all U.S. power reactor licensees requesting information necessary to support the Task Forces 30 NRC, Basis for DE Denial of Diablo Canyon 1&2 LAR 11-05, at 3, ADAMS Accession No. ML13354B992.

31 FoE determined not to petition the Commission to intervene in LAR 11-05 because, after LAR 11-05 was filed and remained pending, PG&E and the NRC Staff had properly committed to proceed through a public and transparent license amendment process in compliance with the Atomic Energy Act. Therefore, the grounds that gave rise to Petitioners objections in this matter did not arise until after LAR 11-05 was withdrawn and after Dr. Pecks DPO was publicly released.

32 The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident, Recommendations for Enhancing Reactor Safety in the 21st Century, (July 12, 2011), available at http://pbadupws.nrc.gov/docs/ML1118/ML111861807.pdf.

33 Id. at 74.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 16 of 131 evaluation (the March 12 letter),34 and (2) a letter dated October 12, 2012, directing PG&E, in conducting its seismic study ordered in the March 12 letter, to compare the hypothetical Shoreline Earthquake against the largest hypothetical earthquake included within Diablo Canyons licensing basisthe DDE, which has a peak ground motion acceleration of 0.4 g (the October 12 letter).35 The Staff directed PG&E to complete this study by March 2015.36 Less than two weeks after the issuance of the October 12 letter, PG&E withdrew the LAR, asserting that the actions required by these two documents would remedy the deficiencies in its operating license that PG&E had sought to remedy through the LAR. In its withdrawal letter, PG&E made four regulatory commitments:

a. To update Diablo Canyons FSARU to include the Shoreline scenario in accordance with the requirements of 10 CFR 50.71(e)37;

b. To update its LTSP to state that PG&E will evaluate new seismic information consistent with the evaluation process defined in [the March 12 letter];

c. To use the double design earthquake for comparison with the reevaluated seismic hazard ground motion response spectrum; and

d. If new faults are discovered or information shows that the Shoreline fault is more capable than currently believed, to provide the NRC 34 NRC Letter, 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, ADAMS Accession No. ML12053A340 (Mar. 12, 2012).

35 NRC Letter, Diablo Canyon Power Plant, Units Nos. 1 and 2 - NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML120730106 (Oct. 12, 2012).

36 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 ADAMS Accession No. ML12053A340, encl. 1, at 9.

37 10 C.F.R. § 50.71(e) provides in relevant part: Each person licensed to operate a nuclear power reactor

. . . shall update periodically the final safety analysis report (FSAR) originally submitted as part of the application for the license, to assure that the information included in the report contains the latest information developed.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 17 of 131 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 March 12 letter].38 These regulatory commitments propose, in effect, (1) to amend the license without an opportunity for a public adjudicatory hearing called for by the Atomic Energy Act and NRC regulations, and (2) to allow PG&E to continue operating Diablo Canyon without complying with conditions in its operating license requiring assurance that safety-related elements will remain functional in the event of an earthquake.

As will be discussed below, PG&E was careful not to commit to amend its technical specifications, since such an action automatically requires a license amendment.39 PG&E declined to promise such action, even though in License Amendment Request 11-05 the company recognized that incorporating a new method of seismic evaluation would require a change to the technical specifications.40 38 PG&E Letter, Withdrawal of License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML12300A105 (Oct. 25, 2012), encl., at 1.

39 10 C.F.R. § 50.59(c)(1).

40 LAR 11-05, encl., at 2 (proposing two additions to Diablo Canyons technical specifications administrative controls programs).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 18 of 131

5. The Staff Determines That The Task Force Recommendations And Other NRC Directives Clarify How PG&E Must Collect And Analyze New Seismic Information, Thus Agreeing With PG&E That A Public License Amendment Designating Such A Method Is Not Necessary In an internal memorandum sent on November 19, 2012, the Staff took the position that recently issued documents had clarified NRCs expectations for addressing new seismic information.41 The memo concluded that:

The NRCs letter dated October 12, 2012, and the request for information dated March 12, 2012, provide guidance for assessing new seismic information and what PG&E is expected to do in the event that it becomes apparent that the new seismic information will lead to a [ground motion response spectrum] that is higher than the DDE.42 The memo also noted that in the [l]onger term, it should be noted that the NRC Staff plans to address Recommendation 2.2 of the Japan Lessons Learned Near-Term Task Force, which recommends that the NRC [i]nitiate rulemaking to require licensees to confirm seismic hazards and flooding hazards every 10 years and address any new and significant information[, and] [i]f necessary, update the design basis for systems, structures, and components important to safety to protect against the updated hazards.43 Based on the March 12 and October 12 letters, and the expected implementation of the Task Forces Recommendation 2.2, the Staff concluded:

Therefore, expectations related to collection and assessment of new seismic hazards information 41 Memo from Sher Bahadur, Deputy Director, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, NRC, to Kriss M. Kennedy, Director, Division of Reactor Projects, Region IV, NRC, Revised Response to Task Interface Agreement - Diablo Canyon Seismic Qualification Current Licensing and Design Basis, TIA 2011-010 (TIA 2012-012) (TAC Nos. ME9840 and ME9841),

ADAMS Accession No. ML12297A199 (Nov. 19, 2012).

42 Id. at 2.

43 Id. at 2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 19 of 131 would likely be addressed as part of this response.44 In effect, the memo recognized that Diablo Canyons licensing basis is being amended de facto to provide a method of evaluation for new seismic data.

Thus, ironically, the NRC Staff implemented the Fukushima Task Forces recommendations, which were intended to enhance U.S. reactor safety in the 21st century following the Fukushima tragedy,45 in such a way that it in fact reduced the safety of Diablo Canyon. Perversely, the NRC relied on the Task Forces recommendations to allow PG&E to bypass the AEAs public participation provision and to conduct an abbreviated seismic safety evaluation, thus permitting Diablo Canyon to continue to operate in the face of a critical and insufficiently analyzed seismic safety issue.

II.

SUMMARY

OF ARGUMENT At the time the Shoreline Fault was discovered, neither Diablo Canyons licensing basis nor NRC regulations contained any provision as to how PG&E was required to evaluate the newly discovered fault to insure that Diablo Canyon could continue to operate with an adequate margin of safety. The Atomic Energy Act and its implementing regulations require this information to be included in a plants licensing basis.46 Recognizing the significance of these 44 Id. at 2 (emphasis added).

45 Recommendations for Enhancing Reactor Safety in the 21st Century, at x.

46 10 C.F.R. § 50.59(c).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 20 of 131 deficiencies, NRC acknowledged that a license amendment request was necessary in order to fill this gap in Diablo Canyons licensing basis.47 Accordingly, PG&E filed LAR 11-05, which sought to amend Diablo Canyons licensing basis by adding a method of evaluation for the Shoreline Fault and for other faults, should any be found in the future. The proposed method of evaluation included a set of assumptions to be employed in analyzing the new seismic data, requirements regarding how the newly discovered fault is to be characterized, the criteria by which PG&E would determine that the plant is sufficient to withstand an earthquake caused by the analyzed fault, and many other requirements.48 By filing the LAR, PG&E correctly recognized that adding such provision to its licensing documents would require a license amendment, and could not be achieved through other, less formal means. Filing the LAR triggered the requirements of section 189a of the Atomic Energy Act (AEA or the Act), 42 U.S.C. § 2239(a)(1)(A), which requires the NRC to provide interested parties with an opportunity for a public hearing regarding the proposed license amendment.

Through LAR 11-05, PG&E proposed that it be permitted to evaluate the Shoreline Fault and other newly discovered seismic information under its Long Term Seismic Plan. PG&E proposed the LTSP as the appropriate evaluation method for two reasons: first, the LTSP and its associated Hosgri Evaluation permitted PG&E to use different methodologies, and less 47 See, e.g., NRC, Summary of June 20, 2011, Pre-Licensing Meeting with Pacific Gas and Electric Company on Proposed License Amendment for a New Seismic and Design Evaluation Process (TAC Nos. ME5033 and ME5034), ADAMS Accession No. ML111920567 (July 29, 2011), at 1-2; NRC, Additional Branch Chief Comments Related to NCP 2012-001 With Annotations, ADAMS Accession No. ML12284A066 (Feb. 8, 2012).

48 LAR 11-05, encl. at 11.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 21 of 131 demanding assumptions and acceptance criteria than the Standard Review Plan criteria, which were used to designate the Design Earthquake and Double Design Earthquakethe hypothetical earthquakes that constitute the seismic design basis for Diablo Canyon. For example, the LTSP employs less conservative seismic assumptions in its evaluation, thereby artificially increasing the likelihood that the evaluation will result in a finding that Diablo Canyon can withstand the seismic risk posed by the Shoreline Fault; and, second, the LTSP required a comparatively less comprehensive analysis to insure that the plant could safely shut down in the event of an earthquake. The NRCs seismic evaluation programs that were used in the original licensing of Diablo Canyon would have required a more comprehensive and much more rigorous evaluation.

NRC itself has conceded that the ground motion from the Shoreline Fault would exceed the ground motion level of the Double Design Earthquake49the greatest earthquake in Diablo Canyons licensing basis.50 Because of these deficiencies, the LTSP and its Hosgri Evaluation method are inadequate to insure that the plant is safe in light of the discovery of the Shoreline Fault. The Hosgri Evaluation and the LTSP were the result of a highly controversial compromise after the late discovery of the Hosgri Fault, which was intended to be a one-time exception from the Standard Review Plan methodologies used in Diablo Canyons licensing basis.51 Use of the Hosgri 49 The Double Design Earthquake is also known as the Safe Shutdown Earthquake.

50 NRC Letter, Diablo Canyon Power Plant, Unit Nos. 1 and 2 - NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML120730106, at 4 (The NRC recognizes that using the DDE as the basis of comparison will most likely result in the Shoreline fault and the Hosgri earthquake being reported as having greater ground motion than the SSE.).

51 Diablo Canyons Updated Final Safety Analysis Report states that the LTSP does not alter the design bases for DCPP. FSARU, Section 2.5.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 22 of 131 Evaluation and LTSP methods outside of their intended purposes poses a serious risk of harm to the public health and environment surrounding Diablo Canyon in the event of an earthquake.

In March 2012, while License Amendment Request 11-05 was still pending, the Staff abruptly decided to reconsider its determination that a license amendment was necessary to provide a new seismic evaluation method, and permitted PG&E to withdraw LAR 11-05.52 As the basis for this decision, PG&E cited its ongoing effort to implement recommendations made by the Fukushima Task Force. In accordance with these recommendations, the Staff instructed PG&E to conduct an updated seismic review of Diablo Canyon.53 PG&E then withdrew LAR 11-05 on the grounds that the Staffs directive to conduct a seismic review of Diablo Canyon rendered the license amendment request superfluous. The NRC Staff has not challenged this assertion, even though the seismic review ordered by NRC is distinct from the current design or licensing basis of operating plants.54 The NRC Staff is thus attempting to amend de facto Diablo Canyons license through an evaluation process that the Staff acknowledges is outside of the licensing basis.

52 NRC Letter, 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, ADAMS Accession No. ML12053A340.

53 This review is expected to be complete by March 2015.

54 NRC Letter to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Supplemental Information Related to Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Seismic Hazard Reevaluations for Recommendation 2.1 of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident, ADAMS Accession No. ML14030A046 (Feb. 20, 2014), at 2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 23 of 131 By its sudden reversal, NRC Staff would foreclose the public process required by the AEA when an operating license is amended.55 The AEA and its implementing regulations provide that any change to a method of evaluation used to establish a safety analysis requires an amendment to the plants operating license.56 Adding a new method of evaluation requires a change to the plants technical specifications.57 Any change to a plants technical specifications, in turn, may be achieved only through a license amendment.58 Rather than invoke the license amendment process required by the AEA and NRC regulations, the Staff is effectively seeking to make a de facto amendment to the Diablo Canyon license through an informal process, inaccessible to the public.

Moreover, the NRC Staff has failed to require PG&E to conduct the analysis necessary to show that the plant continues to be safe in light of the discovery of the Shoreline Fault. The Staff, relying on a report concluding that the seismic loading levels predicted for the Shoreline Fault and other faults, including the San Luis Bay and Los Osos faults, would not exceed the seismic loading levels predicted for the Hosgri Fault, determined that the plant could continue to be safely operated. But this finding is contradicted by the NRC Staffs own admission that, due to the Shoreline Faults location within a quarter mile of the plant, a Shoreline earthquake could cause more extreme ground motion at the plant site than a Hosgri earthquake.59 55 See 42 U.S.C. § 2239(a)(1)(A).

56 10 C.F.R. § 50.59(c)(2)(viii).

57 10 C.F.R. § 50.36(c).

58 10 C.F.R. § 50.59(c)(1)(i).

59 PG&E Report to NRC, Report on the Analysis of the Shoreline Fault Zone, Central Coastal California, ADAMS Accession No. ML110140400, at ES-2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 24 of 131 Moreover, the seismic safety of a nuclear power plantits ability to shut down safely and remain shut down following an earthquakedepends on two major factors: (1) the energy transmitted from the earthquake; and (2) the ability of the plant structure and systems to continue to safely shut down the plant despite the shaking caused by the ground movement. Simply comparing the ground acceleration numbers for the Shoreline Fault and the Hosgri Fault therefore is not a sufficient basis for determining whether Diablo Canyon is safe to operate.

Diablo Canyons licensing basis provides that the plant is certified to withstand an earthquake of up to 0.4 gsignificantly less than the potential ground acceleration of the Shoreline, San Luis Bay, or Los Osos faults. Therefore, a determination that seismic loading levels from the Shoreline Fault are no more than those of the Hosgri Fault does not satisfy either the terms of Diablo Canyons operating license requirements or Commission regulations requiring that each plant be certified to be able to withstand the maximum potential earthquake that can occur at the plant. The Staffs cavalier reliance on the HE and LTSP was challenged by the NRC official bearing the most direct responsibility to assure the safety of Diablo CanyonDr. Michael Peck, at the time the NRC Senior Resident Inspector for the plant.60 Dr. Peck was so concerned by the Staff approach to the discovery of the Shoreline Fault that he took the highly unusual step of filing a Differing Professional Opinion (DPO), detailing his profound disagreement with NRCs handling of Diablo Canyons seismic issues and recommending that the plant be shut down until it could be determined that it could operate safely.61 60 Dr. Peck is currently a Senior Reactor Instructor at NRCs Technical Training Center.

61 DPO, at 3.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 25 of 131 Dr. Peck demonstrated that evaluating the Shoreline Fault and other nearby faults under the methodologies and assumptions of the LTSP and HE is insufficient to show that the plant is operating with an adequate margin of seismic safety. Among the inadequacies pointed out by Dr. Peck are the following:

• Use of the HE and LTSP evaluative methodologies fails to demonstrate that the plant can withstand an earthquake caused by the Shoreline, San Luis Bay, and Los Osos faults.62

• Use of the HE and LTSP methods over-predicts the performance of Diablo Canyons structures, systems, and components when compared to methods prescribed by the plants Current Licensing Basis, thus leading to a deceptively optimistic picture of the plants seismic safety.63

• The HE and LTSP methods are not approved for use in a seismic safety analysis.64

• Discovery of the Shoreline Fault resulted in a condition outside of the bounds of the existing Diablo Canyon design basis and safety analysis.65

• Allowing PG&E to demonstrate that the plant can continue to safely operate independent of existing facility design bases and safety analyses requirements

[would] establish[] a new industry precedent.66

• PG&E may not simply add the Shoreline scenario to the plants existing licensing basis because such a change triggers NRC regulations that require an amendment to the plants license.67

• The Staff failed to address adequately the risk posed by the San Luis Bay and Los Osos faults, each of which is capable of producing ground motions in excess of the current plant SSE design basis.68 62 Id. at 38.

63 Id. at 3.

64 Id.

65 Id.

66 Id.

67 Id. at 2.

68 Id.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 26 of 131 For these reasons, Dr. Peck forcefully contends that [c]ontinued reactor operation outside the bounds of the NRC-approved safety analyses challenges the presumption of nuclear safety.69 The Staff thus embarked upon a drastic departure from accepted Standard Review Plan methods of evaluating seismic risk to allow PG&E to use an analytical method less rigorous than provided in the licensing basis to evaluate the danger posed by a seismic fault. The Staffs proposala de facto license amendmentis inadequate to insure that Diablo Canyon can withstand an earthquake caused by a fault that stands only 300 meters from the plants intake structure and that may be capable of producing a magnitude 7.5 earthquake.70 Finally, it is worth noting that, given the surrounding seismic features that have been discovered since PG&E received its construction permits in 1968, the Commission almost certainly would not now permit a nuclear power plant to be built or operated at the Diablo Canyon site. After discovery of the Hosgri Fault, PG&E was permitted to analyze the fault using a controversial one-time exception from its licensing basis. The NRC would be unlikely today to allow the use of this controversial methodology given the multiple faults now known to pose risks to the Diablo Canyon plant.

Petitioner thus requests to intervene in the ongoing de facto license amendment proceeding outlined above and requests that the proceeding be conducted with a public hearing 69 Id. at 3 (emphasis added).

70 PG&Es preliminary report on the Shoreline Fault concluded that the fault could produce a magnitude 6.5 earthquake. See PG&E Report to NRC, Report on the Analysis of the Shoreline Fault Zone, Central Coast California, ADAMS Accession No. ML110140400, at ES-2. Further study of the fault indicates that it could generate a magnitude 7.2-7.5 earthquake. See, e.g., Hardebeck, J, Geometry and Earthquake Potential of the Shoreline Fault, Central California, Bulletin of the Seismological Society of America, Vol. 103, No. 1, pp. 447-462, at p. 458, February 2013, doi: 10.1785/0120120175.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 27 of 131 in compliance with section 189a of the AEA, 42 U.S.C. § 2239(a)(1)(A). Such a hearing will insure that the Commission obtains the benefit of the testimony of Petitioners witnesses, and will provide other interested parties with their statutorily afforded right to participate in the license amendment process. At an adjudicatory hearing, Petitioners experts would show that use of the HE and LTSP methods to evaluate the Shoreline Fault, and the potentially related San Luis Bay and Los Osos faults, is inadequate to insure that Diablo Canyon can continue to operate with an adequate margin of seismic safety.

Petitioner further requests that PG&E be ordered to suspend operations at Diablo Canyon pending conclusion of the license amendment process described above. The heart of the AEA, section 101, 42 U.S.C. § 2131, and 10 C.F.R. § 50.10, make it unlawful to operate a nuclear power plant except in accordance with a duly issued operating license. Diablo Canyons operating license itself provides that the Commission licenses PG&E to operate the facility . . . in accordance with the procedures and limitations set forth in this license.71 It follows that where PG&E is unable to comply with the terms of its operating license, Diablo Canyon cannot be lawfully operated. The NRC therefore should order PG&E to suspend operations at Diablo Canyon pending conclusion of the license amendment proceeding.

The NRC has on a number of occasions in the past ordered a licensee to suspend reactor operations due to a licensees failure to adequately evaluate seismic risk. In 1977, following discovery of a seismic fault near the General Electric Test Reactor near Pleasanton, California, that was demonstrated to be capable of causing ground motion in excess of the plants design, 71 Diablo Canyon Nuclear Power Plant, Unit 1, Operating License, Condition 2(B)(1), ADAMS Accession No. ML053140349.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 28 of 131 the NRC ordered the plant to be placed in a cold shutdown condition and ordered GE to show cause why suspension of activities should not be continued.72 In 1979, the NRC ordered five reactors to suspend operations after it discovered that faulty inputs had been used to analyze stress levels on piping components at the reactors.73 In 1982, after it became apparent that the now-shuttered San Onofre Nuclear Generating Station might no longer be able to meet its original 0.5 g design basis, the NRC ordered the plant to suspend operations until certain modifications were completed and the NRC approved restart.74 For the reasons outlined above, PG&E is unable to operate Diablo Canyon in accordance with the terms of its license. Diablo Canyon therefore must suspend operations pending (1) conclusion of the process to amend the plants operating license to provide a method to evaluate new seismic data, including the Shoreline Fault, and (2) a demonstration that Diablo Canyon is able to be safely shut down following the occurrence of potential earthquakes that could affect the plant, including an earthquake occurring on the Shoreline Fault.

72 See General Elec. Co. (Vallecitos Nuclear CenterGeneral Electric Test Reactor), LBP-82-64, 16 NRC 596, 600-01 (1982).

73 See NRC, Information Notice No. 79-06, Stress Analysis of Safety-Related Piping, (Mar. 22, 1979),

available at http://www.nrc.gov/reading-rm/doc-collections/gen-comm/info-notices/1979/in79006.html.

The affected reactors were Beaver Valley Unit 1, Maine Yankee, FitzPatrick, and Surry Units 1 and 2. Id.

74 Southern California Edison Co. and San Diego Gas & Electric Co. (San Onofre Nuclear Generating Station, Unit No. 1); Order Confirming Licensee Commitments on Seismic Upgrading, 47 Fed. Reg.

36,058, 36,059 (Aug. 18, 1982).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 29 of 131 III. LEGAL STANDARDS REGARDING ADMISSIBILITY OF CONTENTIONS Commission regulations require that an admissible contention include (1) a specific statement of the legal or factual issue proposed; (2) a brief explanation of its basis; (3) a demonstration that the issue is within the scope of the proceeding; (4) a demonstration that the issue is material to the findings the NRC must make to support the action involved in the proceeding; (5) a concise statement of the alleged facts or expert opinions; and (6) sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.75 This standard does not call upon the intervenor to make its case at [the contention] stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.76 The requirement generally is fulfilled when the sponsor of an otherwise acceptable contention provides a brief recitation of the factors underlying the contention or references to documents and texts that provide such reasons.77 In addition, a contention of omission that focuses on the absence of a required analysis in the application is admissible and will not be deemed speculative because of any lack of detail 75 10 C.F.R. § 2.309(f).

76 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 356 (2006) (internal quotation marks omitted).

77 Id. (internal quotation marks and footnotes omitted).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 30 of 131 regarding the potential content of the missing information.78 Indeed, [a] contention may be plausible enough to meet the admission standards even if it is ultimately denied on the merits.79 IV. CONTENTIONS CONTENTION 1 BECAUSE NRC IS CONDUCTING A DE FACTO LICENSE AMENDMENT PROCEEDING THAT HAS SIGNIFICANT SAFETY IMPLICATIONS, PETITIONER IS ENTITLED TO A PUBLIC HEARING UNDER SECTION 189A OF THE ATOMIC ENERGY ACT.

Bases For Contention

1. Section 189a of the Atomic Energy Act requires, [i]n any proceeding under [the Act], for the . . . amending of any license . . . , the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.80 The AEA also makes it unlawfulfor any person within the United States to . . . use . . . any utilization . . . facility except under and in accordance with a license issued by the Commission.81 As stated by an Atomic Safety and Licensing Board in a similar recent case, [i]t is imperative that the terms of a reactor 78 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 86, n.194 (2008).

79 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 160 (2006), revd in part, CLI-07-16, 65 NRC 371 (2007).

80 42 U.S.C. § 2239(a)(1)(A).

81 42 U.S.C. § 2131. 10 C.F.R. § 50.2 defines utilization facility to include a commercial nuclear power reactor.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 31 of 131 operating license be clear and unambiguous, and also that a licensee scrupulously adhere to those terms.82

2. When the NRC authorizes activity that is at odds with the requirement under 42 U.S.C. § 2131 that a facility be operated in accordance with its operating license, such authorization is considered a de facto license amendment. The Commission in Cleveland Electric Illuminating Co. summarized the standard used to determine whether there has been a de facto license amendment:

In evaluating whether challenged NRC authorizations effected license amendments within the meaning of section 189a, courts repeatedly have considered the same key factors: did the challenged approval grant the licensee any greater operating authority, or otherwise alter the original terms of a license? If so, hearing rights likely were implicated.83

3. Stated another way by the U.S. Court of Appeals for the First Circuit, by its nature a license is presumptively an exclusivenot an inclusiveregulatory device. . . . Regulatory conduct 82 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-13-07, ASLBP No. 13-924-01-CAL-BD01, slip op. at *23, vacated by 2013 WL 6384599 (Dec. 5, 2013).

Although the Commission subsequently vacated the Boards decision in Southern California Edison, the Commission was careful to note that in vacating the ruling it did not intimate any opinion on [the opinions] soundness, but was vacating in conformance with the Commissions past practices. Southern California Edison Co., 2013 WL 6384599, at 4 n.31. The Commission stated that the ASLB opinion could be cited in future proceedings:

Regardless of vacatur, the [ASLB] decision is an agency record, and will not be excised from the public view. Like other NRC decisions that have been vacated, LBP-13-7 is, and will be, available to the public via the ADAMS system, and we expect this decision to be published as part of NUREG-0750, a compilation of Commission and Board decisions.

Future litigants can cite the decision as support for an argument; we or a licensing board then may consider whether such an argument is persuasive.

Id. at 4 (footnotes omitted).

83 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant), CLI-96-13, 44 NRC 315, 326-27 (1996)

(footnotes omitted).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 32 of 131 which is neither delineated, nor reasonably encompassed within delineated categories of authorized conduct, presumptively remains unlicensed.84 NRCs actions constitute a de facto license amendment when they authorize a licensee to engage in [activities] beyond the ambit of [its] original license.85

4. Section 50.59 requires a licensee, in certain circumstances, to request an amendment before it may make changes in the procedures as described in the [FSARU].86 A license amendment is required if the proposed change in procedure would:

(i) Result in more than a minimal increase in the frequency of occurrence of any accident previously evaluated in the [FSARU];

(ii) Result in more than a minimal increase in the likelihood of occurrence of a malfunction of a structure, system, or component (SSC) important to safety previously evaluated in the [FSARU];

(iii) Result in more than a minimal increase in the consequences of an accident previously evaluated in the [FSARU];

(iv) Result in more than a minimal increase in the consequences of a malfunction of an SSC important to safety previously evaluated in the [FSARU];

(v) Create a possibility for an accident of a different type than any previously evaluated in the [FSARU];

84 Citizens Awareness Network v. Nuclear Regulatory Commn, 59 F.3d 284, 294 (1st Cir. 1995).

85 Id.

86 10 C.F.R. § 50.59(c)(1). The FSAR is part of the application for an operating license. It contains a description of the facility; the design bases and limits on operation; and the safety analysis for the structures, systems, and components (SSC) and of the facility as a whole. Changes, Tests, and Experiments: Proposed Rule, 63 Fed. Reg. 56,098, 56,099 (Oct. 21, 1998). When a plant is licensed, the NRC states in its Safety Evaluation Report (SER) why it found each FSAR analysis acceptable. Id.

Licensees must periodically update their FSARs to reflect changes to the facility so that the [FSARU]

remains a complete and accurate description and analysis of the facility. Id. (emphasis added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 33 of 131 (vi) Create a possibility for a malfunction of an SSC important to safety with a different result than any previously evaluated in the

[FSARU];

(vii) Result in a design basis limit for a fission product barrier as described in the [FSARU] being exceeded or altered; or (viii) Result in a departure from a method of evaluation described in the [FSARU] used in establishing the design bases or in the safety analyses.87 These criteria are appropriate guides for determining whether [a licensees action] requires a license amendment, thereby converting [the action] into a de facto license amendment proceeding.88

5. Additionally, even if none of these criteria has been met, a licensee must request a license amendment if the proposed change in procedure requires a change to the technical specifications incorporated in the license.89

6. By prescribing a method by which PG&E is to analyze the Shoreline Fault and other new seismic information, where Diablo Canyons Operating License did not prescribe such a method, NRC Staff would alter Diablo Canyons license to grant PG&E greater operating 87 10 C.F.R. § 50.59(c)(2).

88 Southern California Edison Co., LBP-13-07, ASLBP No. 13-924-01-CAL-BD01, at 23.

89 10 C.F.R. § 50.59(c)(1)(i). 10 C.F.R. § 50.59(c)(1) provides in full:

A licensee may make changes in the facility as described in the [FSARU], make changes in the procedures as described in the [FSARU], and conduct tests or experiments not described in the [FSARU] without obtaining a license amendment pursuant to § 50.90 only if:

(i) A change to the technical specifications incorporated in the license is not required, and (ii) The change, test, or experiment does not meet any of the criteria in paragraph (c)(2) of this section.

(Emphases added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 34 of 131 authority than currently granted by the license. Thus there is a de facto license amendment proceeding underway with respect to the seismic licensing basis for Diablo Canyon.90 Petitioner requests that the Commission recognize that a license amendment is needed to authorize continued operation of Diablo Canyon, order a public hearing be held regarding the license amendment, as provided in section 189a of the AEA, and empanel an Atomic Safety and Licensing Board to conduct the hearing.

Supporting Evidence A. By Allowing PG&E To Use Methodologies And Assumptions Not Prescribed In The Operating License To Analyze New Seismic Data, NRC Staff Seek To De Facto Amend Diablo Canyons License, Sidestepping The Opportunity For A Public Adjudicatory Hearing Guaranteed Petitioner By Section 189a Of The Atomic Energy Act.

7. The NRC Staffs attempt to insert an analytic procedure for new seismic data, where none exists in Diablo Canyons current license, constitutes a de facto license amendment in violation of section 189a of the Atomic Energy Act, 42 U.S.C. § 2239(a)(1)(A). That subparagraph requires the Commission to provide an opportunity for a hearing to any interested person in any license amendment proceeding. Rather than proceeding through the required license amendment process, the NRC Staff proposes to de facto amend the license through a combination of regulatory commitments and Staff directives, while avoiding a public adjudicatory hearing and other licensing proceeding requirements. In short, NRC 90 This Petition does not request that NRC initiate an enforcement action pursuant to 10 C.F.R. § 2.206.

Rather, by unlawfully authorizing PG&E to engage in [activities] beyond the ambit of [its] original license, Citizens Awareness Network, 59 F.3d at 295, NRC has engaged in a de facto license amendment proceeding. In light of the greater operating authority granted to PG&E by NRC, the proper remedy is to order a public hearing as required by section 189a of the Atomic Energy Act. See Citizens Awareness Network, 59 F.3d at 295-96; Perry, 44 NRC at 319.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 35 of 131 Staff is attempting to fill a gap in the terms of PG&Es licensing basis without going through the required license amendment proceeding.

i. Diablo Canyons Licensing Basis Does Not Prescribe How PG&E Is To Evaluate Newly Discovered Seismic Data

8. PG&Es withdrawal of its License Amendment Request 11-05 is an acknowledgement that the March 12 and October 12 letters are part of a de facto amendment proceeding relating to Diablo Canyons operating license. PG&E filed a LAR because the current license does not provide instructions for how to analyze new seismic information to assure the plant can safely shut down in the event of the greatest foreseeable earthquake. The March 12 and October 12 NRC Staff letters order PG&E to use specific methodologies and assumptions to analyze new seismic data. As [r]egulatory conduct which is neither delineated, nor reasonably encompassed within delineated categories of authorized conduct, presumptively remains unlicensed,91 any new method of seismic evaluation can only be prescribed through a license amendment.

ii. The NRC Staff And PG&E Agreed That A License Amendment Is Necessary To Determine How PG&E Must Evaluate New Seismic Data

9. As shown below, PG&E and the NRC Staff each took the position after the Shoreline Fault was discovered that a license amendment would be needed to provide proper instructions to PG&E on the methodologies and assumptions that must be used by PG&E to analyze the safety of Diablo Canyon in light of the newly discovered faults.

91 Citizens Awareness Network, 59 F.3d at 294.

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10. In a Commission document summarizing a meeting between PG&E officials and the Staff held before PG&E filed the License Amendment Request, PG&E admitted that it could not make the changes it wanted to make without an amendment to its license:

The NRC Staff asked, given the information that PG&E states is available regarding the seismic design of [Diablo Canyon], why PG&E requested NRC approval rather than make this change under 10 CFR 50.59. PG&E stated that some of the methods used for the seismic reviews could not be reconciled under 10 CFR 50.59.92

11. At the same meeting, Staff members comments were appropriately cautious about allowing a drastic change to the seismic qualification bases of Diablo Canyons license without understanding in more detail how Diablo Canyons license would change:

Mr. Kamal Manoly of the NRC staff noted that he believes this is a first of a kind request as he is not aware of any other instance where a licensee has requested to change its SSE. As such, Mr.

Manoly stated that the amendment needed to describe where the methodologies and acceptance limits used in the evaluation of structures and components for the HE are deviating from the applicable provisions in the Standard Review Plan (SRP).93 Mr.

92 NRC, Summary of June 20, 2011, Pre-Licensing Meeting with Pacific Gas and Electric Company on Proposed License Amendment for a New Seismic and Design Evaluation Process (TAC Nos. ME5033 and ME5034), ADAMS Accession No. ML111920567, at 1-2.

93 The Standard Review Plan, discussed at more length below, is the integrated result of the hundreds of conscious choices made by the staff and by the nuclear industry in developing design criteria and design requirements for nuclear power plants and the most definitive basis available for specifying the NRC's interpretation of an acceptable level of safety for light-water reactor facilities. NRC, NUREG-0800, Standard Review Plan (Rev. 2, Mar. 2007).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 37 of 131 Manoly stated that a table providing the deviations from the SRP for the HE should be provided with this LAR.94

12. PG&Es License Amendment Request precipitated a disagreement within NRC Staff over whether a license amendment, or an enforcement action, was called for. Dr. Michael Peck, the NRC Senior Resident Inspector for Diablo Canyon, submitted to the NRC a formal Non-Concurrence, which asserted that the Staff had failed to insure that Diablo Canyon was operating with an adequate margin of seismic safety.95 Dr. Peck argued that the Commission should issue a violation charging PG&E with failing to insure that the plant was operable following discovery of the Shoreline Fault.

13. According to Commission procedure, Dr. Pecks supervisor, Branch Chief Neil OKeefe, submitted a response to the Non-Concurrence. OKeefe disagreed with Pecks recommended action, arguing that PG&E had correctly requested a license amendment.

Significantly, neither Dr. Peck nor Mr. OKeefe suggested that Diablo Canyon could be allowed to continue operating outside of its licensing basis.

14. In his comments, Mr. OKeefe asserted that the PG&E License Amendment Request then pending before the Commission was sufficient to address Dr. Pecks concerns. Mr. OKeefe stated:

94 NRC, Summary of June 20, 2011, Pre-Licensing Meeting with Pacific Gas and Electric Company on Proposed License Amendment for a New Seismic and Design Evaluation Process (TAC Nos. ME5033 and ME5034), ADAMS Accession No. ML111920567, at 2.

95 NRC, Dr. Michael Peck, Non-Concurrence NCP-2012-001, ADAMS Accession No. ML120450843 (Jan. 26, 2012) (hereinafter Non-Concurrence). The Non-Concurrence Process and Differing Professional Opinion Program provide avenues for NRC employees to express their disagreement with NRC documents or actions. See http://www.nrc.gov/about-nrc/values.html (describing the programs and their objectives).

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[T]he generic process for performing an operability evaluation requires a clear current licensing basis that directly relates to the non-conforming condition that is being analyzed. The actual seismic current licensing basis did not provide a way to evaluate new information that becomes available. Therefore, the licensee has proposed a methodology to perform the full operability evaluation to the NRC as a license amendment request, and the staff is evaluating the best way to proceed.96

15. In other comments on Dr. Pecks Non-Concurrence, Mr. OKeefe reiterated that any method of evaluation of new seismic data would have to be submitted for Commission approval in a formal license amendment request:

The staff position is that the license amendment request was a necessary and appropriate step to clarify and resolve the appropriate basis of comparison to be used in the operability assessment.97 Again and again, Mr. OKeefe remarked upon why the license amendment process was the proper way to determine a method of evaluation for the new seismic data:

[Dr. Peck] has the opinion that the new seismic information should be evaluated under the DDE using an operability determination.

The staff position was that this question would be addressed in the license amendment request to clarify the CLB requirements to be used as a basis for comparison.

There is no specific regulatory requirement to specify how new information needs to be addressed. Since DCPP has three earthquakes in the CLB and none could be considered to bound all 96 Non-Concurrence, at Section B.

97 NRC, Additional Branch Chief Comments Related to NCP 2012-001 With Annotations, ADAMS Accession No. ML12284A066 (Feb. 8, 2012).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 39 of 131 circumstances, the staff position is that NRC approval is needed to decide how to evaluate the new ground motion information.98

16. Thus, prior to the filing of LAR 11-05, both PG&E and the Commission Staff agreed that Diablo Canyons licensing basis did not address how to evaluate new seismic data, and both parties acknowledged that a license amendment request was the necessary and proper procedure by which the parties could designate a method of evaluation for new seismic data.

Given that a nuclear power plant operating license is by its nature . . . presumptively an exclusivenot an inclusiveregulatory device,99 any attempt to fill that gap in the plants licensing basis must be accomplished through a license amendment.

17. The NRC Staff then inexplicably changed its mind, determining that any gap in its licensing basis could be filled through an informal process rather than through a Section 189a license amendment, thus shutting out the public. By attempting to amend the license through an extra-license method of evaluation, the Staff violated section 189a of the AEA.

B. A New Seismic Evaluation Method Requires Changes To Diablo Canyons FSARU, Which Under NRCs Regulations Requires A License Amendment

18. NRC regulations at 10 C.F.R. § 50.59 set forth a procedure for licensees to follow to determine whether a license amendment is necessary.100 If any of the factors are present, the proposed change must be submitted in a license amendment request. These factors may also be used to establish whether there has been a de facto license amendment. The standards in 98 Citizens Awareness Network, 59 F.3d at 294.

99 Id.

100 Friends of the Earth has not had access to PG&Es analyses of these issues, if any have been performed, under § 50.59, and therefore is not currently challenging in this petition the adequacy of any such analyses.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 40 of 131 section 50.59 . . . have the imprimatur of the Commission and therefore, a fortiori, are appropriate guides for determining whether [a licensees action] requires a license amendment, thereby converting [the action] into a de facto license amendment proceeding.101

19. PG&E cannot implement the proposed change to the facility without a license amendment because the proposed change to Diablo Canyons operating licenseto incorporate a new method of seismic evaluationwould clearly [r]esult in a departure from a method of evaluation described in the [FSARU] used in establishing the design bases or in the safety analyses. Section 50.59 provides further guidance as to this factor:

Departure from a method of evaluation described in the [FSARU] used in establishing the design bases or in the safety analyses means:

(i) Changing any of the elements of the method described in the

[FSARU] unless the results of the analysis are conservative or essentially the same; or (ii) Changing from a method described in the FSAR to another method unless that method has been approved by NRC for the intended application.102

20. Setting forth an entirely new evaluation method or altering an existing evaluation method for new seismic information satisfies subparagraph (i) above. Designating a new method for evaluating new seismic data represents a clear departure from the standard method of evaluation described in the FSARU used in establishing the plants seismic safety analysis.

101 Southern California Edison, LBP-13-07, at 23.

102 10 C.F.R. § 50.59(a)(2) (emphasis added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 41 of 131 Indeed, the change would amount to the addition of an entirely new method for evaluating new seismic data.

21. The exception to subparagraph (i) of section 50.59(a)(2), which provides that a licensee need not seek a license amendment if the proposed change to the method of analysis would lead to results [that] are conservative or essentially the same, does not apply. It cannot be said that the results of the new evaluation method would be conservative or essentially the same because there exists no previous evaluation method in the existing license for comparison; the new evaluation method is the first such evaluation program incorporated in Diablo Canyons license. To the extent that the new evaluation method incorporates the Hosgri methodologies, assumptions, and acceptance criteria,103 it will produce results that are less protective, not conservative or essentially the same as the standard method of analysis.

C. A New Seismic Evaluation Method Requires Changes To Diablo Canyons Technical Specifications, Which Under Commission Regulations Requires An Amendment To Diablo Canyons Licensing Basis

22. If the Staff were to designate a new seismic evaluation method, Commission regulations require that Diablo Canyons technical specifications be changed accordingly. The regulations further require that any change to a plants technical specifications be made through a license amendment.104 103 DPO, at 20.

104 10 C.F.R. §§ 50.36(b), 50.36(c)(5), 50.59(c)(1).

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i. Commission Regulations Provide That Any Change To Diablo Canyons Technical Specifications Must Be Achieved Through A License Amendment

23. Each operating license is required to include plant-specific technical specifications.105 As the Commission has noted, [b]ecause technical specifications are an integral part of an operating license, changes to technical specifications require a license amendment.106

24. Specifically, 10 C.F.R. § 50.59 provides that a licensee may change its FSARU without a formal license amendment only if . . . [1] a change to the plants technical specifications incorporated in the license107 is not required, and [2] the change . . . does not meet any of the criteria in paragraph (c)(2) of this section.108 In other words, PG&E must seek a license amendment if any change to the technical specifications is necessary. Even if a proposed change to a plants FSARU does not require a change to the plants technical specifications, a license amendment is nonetheless required if one or more of the eight criteria of 50.59 (set forth above) is triggered.

ii. PG&E And NRC Staff Each Have Admitted That Determining A Method Of Evaluation For A Newly Discovered Seismic Fault Requires A Change To Diablo Canyons Technical Specifications

25. In LAR 11-05, PG&E specifically recognized that the changes it sought to make to Diablo Canyons license required changes to the plants technical specifications.109 In the cover 105 10 C.F.R. § 50.36(b).

106 Perry, 44 NRC at 319.

107 Diablo Canyons operating license, at Item 2(C)(2), explicitly incorporates the technical specifications into the operating license.

108 10 C.F.R. § 50.59(c)(1) (emphasis added).

109 LAR 11-05, at 1, encl., attachment 1, at 1-2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 43 of 131 letter accompanying LAR 11-05, PG&E described the request: The enclosed license amendment request proposes to revise the current licensing basis, as described in the

[FSARU] and Technical Specifications, to provide requirements for the actions, evaluations, and reports necessary when PG&E identifies new seismic information relevant to the design and operation of [Diablo Canyon].110 PG&E included in the license amendment request a list of proposed changes to Diablo Canyons technical specifications that would have to be made to effect the proposed license amendment.111

26. Despite its earlier position, the Staff now takes the position that no such changes to the technical specifications are necessary. Both NRC Staff and PG&E now contend that the seismic reevaluation ordered by the Fukushima Task Force may be designated as the new seismic evaluation method without altering the plants technical specifications.112 PG&Es change of position is pure opportunism; NRCs position on this point violates NRC regulations.113

27. NRC Staffs current endorsement of PG&Es regulatory commitments and use of the Hosgri earthquake as a basis for comparison in determining whether the plant is safe to withstand an earthquake caused by the Shoreline, San Luis Bay, or Los Osos faults amounts to a de facto license amendment. The Staffs attempt to escape the procedures mandated by the 110 LAR 11-05, at 1 (emphasis added).

111 LAR 11-05, encl. attachment 1.

112 See, e.g., NRC Letter, Diablo Canyon Power Plant, Units Nos. 1 and 2 - NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML120730106.

113 See 10 C.F.R. §§ 50.36(b), 50.36(c)(5), 50.59(c)(1).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 44 of 131 AEA is particularly dubious, in light of the fact that both PG&E and NRC recognized earlier that a change to the plants technical specifications was required to effect LAR 11-05.

iii. PG&E Cannot Determine A Method Of Evaluation For New Seismic Data Without Amending Diablo Canyons Technical Specifications

28. Leaving Diablo Canyons technical specifications unaltered in this case violates regulations requiring certain information, including an evaluation method for new seismic data, to be incorporated into the plants technical specifications. 10 C.F.R. § 50.36(c) provides that the technical specifications document will include items in [certain] categories listed in the regulation.114 The Commission has noted that [i]f a procedural or other requirement meets any one of the criteria [in 10 C.F.R. § 50.36], it must be retained in the technical specifications.115

29. One of those categories is administrative controls, which are defined as the provisions relating to organization and management, procedures, recordkeeping, review and audit, and reporting necessary to assure operation of the facility in a safe manner.116

30. A program setting forth a method of evaluation for new seismic data satisfies this definition.

The evaluation of newly discovered seismic datawhich methodologies and assumptions to employ in analyzing a faultis clearly necessary to assuring the safe operation of Diablo Canyon.

114 See 10 C.F.R. § 50.36(c) (emphasis added);

115 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Stations, Units 2 and 3), CLI-01-24, 54 NRC 349, 352 (2001) (emphasis added).

116 10 C.F.R. § 50.36(c)(5).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 45 of 131 iv. In License Amendment Request 11-05, PG&E Proposed Adding Two New Sections To Diablo Canyons Technical Specifications

31. Recognizing that determining how it would evaluate newly discovered seismic faults required a change to the plants technical specifications, PG&E in LAR 11-05 proposed to add two new sections to Chapter 5 of the technical specifications, titled Administrative Controls. These two proposed sections were the only modifications to the plants technical specifications proposed by LAR 11-05.

32. The first proposed section, titled Long Term Seismic Program, is reproduced below.

Confirming beyond dispute that the proposed change fits the definition of administrative controls in § 50.36(c)(5), PG&E requested that this section be added to the technical specifications, Chapter 5, titled Administrative Controls.117 Insert 5.5.20 5.5.20 Long Term Seismic Program This program provides ongoing review and evaluation of new seismic information and associated methodologies.

The program shall include the following:

a. A staff to keep abreast of new geological, seismic, and seismic engineering information and evaluate it with respect to its significance to DCPP;

b. Operation of a strong-motion accelerometer array and the coastal seismic network;

c. Verification that plant seismic margins remain acceptable for plant additions and modifications when checked against insights and knowledge gained from the Long Term Seismic Program, as identified in FSARU Section 3.7.6; 117 See Technical Specifications for Diablo Canyon Power Plant, Units 1 and 2, ADAMS Accession No. ML053140349 (Rev. Feb. 27, 2014).

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d. Deterministic seismic margin acceptance criteria for operability determinations;

e. Peer review process requirements for seismic probabilistic risk assessment revisions;

f. Peer review processes requirements for seismic model or methodology revisions; and

g. Minimum requirements for the Seismic Advisory Board.118

33. The second proposed section, titled Long Term Seismic Program Report, was to be added to the technical specifications, Chapter 5, Administrative Controls, Section 5.6, Reporting Requirements. This proposed section is reproduced below:

Insert 5.6.11 5.6.11 Long Term Seismic Program Report A report shall be submitted once every 10 years, based on the submittal date of the previous update. An updated report will be submitted in less than 10 years if new peer reviewed seismic information becomes available that would significantly increase the risk to DCPP. The report shall include the following information:

a. Geology/seismology/geophysics/tectonics investigations,

b. Seismic source characterization,

c. Characterization of ground motions,

d. Soil/structure interaction analysis,

e. Probabilistic risk analysis,

f. Deterministic evaluations, 118 LAR 11-05, encl., attachment 1, at 1.

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g. Assessment of the adequacy of seismic margins,

h. Documentation of the review performed by the Seismic Advisory Board (SAB) and resolution of the SAB's comments if performed in less than 10 years, and

i. Documentation of the review performed by the Senior Seismix [sic] Hazards Analysis Committee for 10 year updates.119

34. PG&Es requested addition of two separate sections within the Administrative Controls section of the plants technical specifications demonstrates unequivocally that, if a method of evaluation of new seismic data is to be designated, it must be added to the plants Administrative Controls section of the technical specifications. NRC regulations provide that such an addition must be accomplished through a license amendment.120

35. Moreover, in the section of LAR 11-05s supporting documentation titled Applicable Regulatory Requirements/Criteria, which includes the regulatory bases for the proposed license amendment, PG&E explicitly cites 10 C.F.R. § 50.36(c)(5). That subsection requires that administrative controls be included in a plants technical specifications.121 This admission further evidences that the Commissions attempt to designate a method of evaluation of the Shoreline Fault without modifying the technical specifications accordingly is an unlawful de facto license amendment.

36. The Staff and PG&E will no doubt point to PG&Es regulatory commitments to update Diablo Canyons FSARU to include the Shoreline scenario in accordance with the 119 LAR 11-05, encl., attachment 1, at 1-2.

120 See 10 C.F.R. §§ 50.36(b), 50.36(c)(5), 50.59(c)(1).

121 See LAR 11-05, encl., at 37.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 48 of 131 requirements of 10 C.F.R. § 50.71(e). But the company has declined to change the plants technical specifications to incorporate those commitments. NRC regulations do not allow for amendment of technical specifications through a regulatory commitment.

37. For the reasons recited above, designating a new seismic evaluation method without including that method in the plants technical specifications, violates 10 C.F.R. §§ 50.36(c)(5) and 50.59(c)(1), and section 189a(a)(1)(A) of the Atomic Energy Act, 42 U.S.C.

§ 2239(a)(1)(A). Such a change must be made through the license amendment proceeding, with attendant rights to an adjudicatory hearing, which would consider the additional risks posed by the Shoreline Fault and the necessary revisions to Diablo Canyons technical specifications.

CONTENTION 2 NRC STAFFS DETERMINATION THAT THE NEW SEISMIC INFORMATION, INCLUDING THE SHORELINE EARTHQUAKE AND ITS EFFECT ON THE SAN LUIS BAY AND LOS OSOS FAULTS, IS A LESSER-INCLUDED CASE WITHIN THE HOSGRI EARTHQUAKE IS INSUFFICENT TO INSURE THAT DIABLO CANYON IS OPERATING SAFELY WITH AN ADEQUATE MARGIN OF SAFETY.

Bases for Contention

1. To prevent a catastrophic loss of coolant accident, potentially leading to a radiation leak into the environment, Appendix A to 10 C.F.R. pt. 50 requires that each plant be qualified to withstand earthquakes while maintaining the ability to be safely shut down. To implement this requirement, Commission regulations require plants to develop a Safe Shutdown Earthquake (SSE) and to insure that the plant can remain safely shut down following the occurrence of the postulated SSE.

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2. The SSE is defined by regulations as the maximum earthquake potential considering the regional and local geology and seismology and specific characteristics of local subsurface material.122 Commission regulations and guidance documents provide evaluative methodologies and assumptions that should be used in determining the SSE. To insure that a plant can safely withstand the SSE, all safety-related structures, systems, and components must be qualified to remain functional following ground vibratory motion up to the SSE.123

3. Following an initial seismic evaluation at the time of Diablo Canyons licensing, the Double Design Earthquake (0.4 g peak ground acceleration) was designated as Diablo Canyons SSE.124 After discovery of the Hosgri Fault, which has a much higher peak ground acceleration potential of 0.75 g, nearly double that of the DDE, the Commission and PG&E negotiated an exception to SSE analysis, designated the Long Term Seismic Plan, and agreed that the Hosgri Fault would be analyzed under that method.125 NRC did not designate the Hosgri Earthquake as Diablo Canyons SSE, nor did PG&E propose it.126

4. NRC permitted PG&E to devise its own set of methodologies and assumptions to use in evaluating the risk posed by the Hosgri Fault. The methodologies and assumptions that PG&E employed in the LTSP and the associated Hosgri Evaluation were not as conservative as those required by the SSE. Thus, an evaluation of new seismic information against the 122 10 C.F.R. pt. 100, App. A, § III(c) (emphasis added).

123 10 C.F.R. pt. 100, App. A, § VI(a)(1).

124 FSARU, at 2.5-59.

125 See FSARU, at 2.5-1. See also generally NRC, NUREG-0675, Supplement No. 34, Safety Evaluation Report Related to the Operation of Diablo Canyon Nuclear Power Plant, Units 1 and 2, (June 1991).

126 See FSARU, at 2.5-59.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 50 of 131 Hosgri Event captures only some of the safety risks to Diablo Canyons structures, systems, and components and leaves others unanalyzed.

5. In September 2012, NRC issued a report analyzing the safety risk posed to the plant by the Shoreline Fault.127 In the report, NRC argued that the potential seismic power of the newly discovered Shoreline Fault, and that faults potential relationship to the San Luis Bay and Los Osos faults, was less than the larger (but more distant) Hosgri Fault and that, therefore, the plant was safe to continue operating.

6. But comparing the updated ground motion levels from the three faults to the ground motion levels of the Hosgri Earthquake is not a sufficient basis for concluding that the plant may continue to operate with an adequate margin of safety.

7. When the NRC approved the use of the Hosgri Evaluation, the Commission recognized that it was not equivalent to the SSE evaluation in terms of stringency or thoroughness. The NRC indicated that the HE was approved as a deviation from the accepted SSE evaluative process as a one-time exception, and the Commission would not allow its use in subsequent seismic 127 NRC, Research Information Letter 12-01, Confirmatory Analysis of Seismic Hazard at the Diablo Canyon Power Plant from the Shoreline Fault Zone, ADAMS Accession No. ML121230035 (Sep.

2012), at xii.

The results indicate that deterministic seismic-loading levels predicted for all the Shoreline fault earthquake scenarios developed and analyzed by the NRC are at, or below, those levels for the HE ground motion and the LTSP ground motion. The HE ground motion and the LTSP ground motion are those for which the plant was evaluated previously and demonstrated to have reasonable assurance of safety.

Id.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 51 of 131 analyses.128 Accordingly, the Commission directed that the LTSP was not to be a part of Diablo Canyons design basis or current licensing basis.129

8. Moreover, although the postulated Safe Shutdown Earthquake has much lower ground acceleration than the postulated Hosgri Earthquake 0.4 g compared to 0.75 g respectivelyfor many SSCs the original seismic qualification was more limiting under the SSE analysis than under the Hosgri Earthquake analysis because the former uses more conservative assumptions. For example, as Dr. Peck points out in his Differing Professional Opinion, the SSE/DDE is projected to cause more stress at the plants steam generator than the postulated Hosgri Earthquake, even though the SSE/DDE has just over half the peak ground acceleration of the Hosgri Earthquake.130 For this reason, the Hosgri Evaluation is not the bounding seismic analysis for Diablo Canyon seismic qualification.

9. Indeed, in his comments on Dr. Pecks Non-Concurrence, NRC Region IV Branch Chief Neil OKeefe recognized that the HE/LTSP cannot be the bounding seismic analysis for Diablo Canyon for the simple reason that there is no bounding seismic analysis:

There is no real bounding seismic case in the DCPP seismic design and licensing basis because the larger HE ground motion was allowed to use less conservative acceptance criteria, while the smaller DDE ground motion was required to use more 128 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant Units 1 and 2), LBP-79-26, 10 NRC 453 (1979).

129 Diablo Canyons Updated Final Safety Analysis Report states that the LTSP does not alter the design bases for DCPP. FSARU, Section 2.5.

130 DPO, at 15 (citing FSARU, section 5.2.1.15.2).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 52 of 131 conservative acceptance criteria. Therefore, there is no one case that bounds the design.131 The Hosgri Evaluation cannot serve as the seismic event with which new seismic data is compared. Accordingly, NRC cannot determine that Diablo Canyon is safe to operate based on a mere comparison of the seismic data for the Shoreline, Los Osos, and San Luis Bay faults with the Hosgri Evaluation.

10. As a condition of its operating license, PG&E is required to investigate local seismic features, determine the maximum vibratory ground motion that can occur at the plant, designate that ground motion as the SSE, and certify all safety-related structures, systems, and components to withstand the SSE.132 Merely comparing the new seismic data from the Shoreline, San Luis Bay, and Los Osos Faults to the postulated Hosgri Earthquake, which was analyzed using the less rigorous Hosgri Evaluation methodologies and calculations, does not discharge this duty.

11. Without a license amendment, a comparison of the new seismic data to the Hosgri Fault cannot be used to comply with the regulatory duty to insure that all safety-related SSCs can withstand the maximum vibratory ground motion that can occur at the plant. Due to the LTSPs and Hosgri Evaluations relaxed assumptions and acceptance criteria, which are detailed below, use of the LTSP and HE cannot assure that all safety-related SSCs can withstand ground shaking caused by the maximum vibratory ground motion that can occur at the plant site.

131 NRC, Additional Branch Chief Comments Related to NCP 2012-001 With Annotations, ADAMS Accession No. ML12284A066, at 2.

132 10 C.F.R. pt. 100, App. A, § VI(a)(1).

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12. For these reasons, operation of the Diablo Canyon plant based on the claim that the Hosgri Evaluation is bounding with regard to the seismic loading levels from the Shoreline, San Luis Bay, and Los Osos faults exceeds the limits of Diablo Canyons current licensing basis.

PG&Es reliance on the LTSP/Hosgri Evaluation does not provide the required demonstration that PG&E is able to safely shut down in the event of an earthquake caused by the Shoreline, Los Osos, and San Luis Bay Faults.

Supporting Evidence

13. Under 10 C.F.R. § 2.309(f), Petitioner is not required to prove the merits of its contention in order to raise an admissible contention. Indeed [a] contention may be plausible enough to meet the admission standards even if it is ultimately denied on the merits.133 A. PG&E Has Failed To Establish That Diablo Canyon Can Safely Shut Down Following An Earthquake Caused By The Shoreline, San Luis Bay, or Los Osos Faults

14. Commission regulations require PG&E to investigate the surrounding seismic features, use specified conservative methods to determine the maximum vibratory ground motion which could occur at the plant (the SSE), and insure that safety-related structures, systems and components will withstand that ground motion.134 Despite NRC studies clearly showing that the Shoreline, San Luis Bay, and Los Osos faults have the potential to cause much higher ground acceleration at Diablo Canyon than the currently designated SSE, PG&E has not certified that safety-related SSCs are able to withstand ground shaking caused by the these faults.

133 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee), LBP-06-20, 64 NRC 131, 160 (2006).

134 10 C.F.R. pt. 100, App. A.

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15. By asserting that the Hosgri Earthquake is the bounding seismic event for Diablo Canyon and that the Shoreline scenario is a lesser included event within the Hosgri Earthquake,135 the Staff seeks to substitute a less protective method for the requirement to demonstrate the safety of the plant, and to exclude the public from the process, in violation of Commission regulations and the AEA. As Dr. Peck notes in his DPO, [n]either the HE nor the LTSP methods are approved for use in the Diablo Canyon SSE design basis or safety analysis.136 In PG&Es own words, approved by the NRC, the LTSP was not intended to, and is not adequate to, discharge PG&Es duty in its license to insure the plants seismic safety:

The LTSP contains extensive databases and analyses that update the basic geologic and seismic information in this section of the FSAR Update. However, the LTSP material does not address or alter the current design licensing basis for the plant, and thus is not included in the FSAR Update.137 NRCs Region IV Branch Chief confirmed this:

The LTSP neither changed the CLB nor became a new part of the CLB. This is important to the operability question because the LTSP cannot be used as the basis of comparison. . . . [S]ince [the LTSP] was not used to design or license the plant, it is not a legal part of the CLB.138 135 See NRC, Research Information Letter 12-01, Confirmatory Analysis of Seismic Hazard at the Diablo Canyon Power Plant from the Shoreline Fault Zone, ADAMS Accession No. ML121230035, at xii.

136 DPO, at 3.

137 See FSARU, section 2.5 (emphasis added).

138 NRC, Additional Branch Chief Comments Related to NCP 2012-001 With Annotations, ADAMS Accession No. ML12284A066, at 3.

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i. The Hosgri Evaluation And The Associated Long Term Seismic Plan Is A Weaker Seismic Evaluation Method Than The NRCs Recommended Method And Is Inadequate To Demonstrate That Diablo Canyon Can Safely Shut Down Following An Earthquake Caused By The Shoreline, San Luis Bay, or Los Osos Faults

16. The inadequacy of the LTSP/Hosgri Evaluation as a method to determine whether Diablo Canyon can continue to operate safely is demonstrated by the drastic deviations of the LTSP method from NRC-accepted standard methodologies and assumptions. The extent of these deviations is evident from PG&Es own description of how the LTSP methods differ from the NRCs list of generally accepted methods to analyze seismic risk to nuclear power plants.

17. Before PG&E filed LAR 11-05 seeking to designate the Hosgri Event as the plants Safe Shutdown Earthquake, the Staff, in the course of gathering information about the proposed LAR, questioned exactly how the LTSP and its associated Hosgri Evaluation differed from the Standard Review Plan methodologies, assumptions and acceptance criteria. Accordingly, at a meeting before PG&E filed the LAR, the Staff directed PG&E to submit an accounting of how the LTSP deviated from the Standard Review Plan acceptance criteria. In a striking response, PG&E submitted a 331-page document outlining the differences between the standard, accepted approach and the weaker approach that PG&E had developed.139 This document is a damning exposition of the LTSPs and Hosgri Evaluations staggering shortfalls as a method of seismic analysis.

139 See PG&E Letter, Standard Review Plan Comparison Tables for License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11342A238 (Dec. 6, 2011) (hereinafter Standard Review Plan Comparison Tables).

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18. The list of deviations in the document shows how PG&E sought to minimize the differences through technical language. A few examples are reproduced below, with the Standard Review Plan criteria on the left and the proposed Hosgri Evaluation/LTSP criteria on the right:140 SRP Acceptance Criteria DCPP Design/Licensing Basis Standard Review Plan 2.5.3: Surface Faulting The FSAR is generally consistent with the requirements of this RG [Regulatory Guide],

10 CFR 100, Appendix A, Seismic and but the recently-discovered Shoreline Fault is Geologic Siting Criteria for Nuclear Power not included.141 Plants This appendix provides general requirements for the development of the deterministic earthquakes for a nuclear power plant and requires the identification of surface faulting.

This comparison table references the NRCs requirements, contained in Appendix A to 10 C.F.R. Part 100, regarding how a licensee must evaluate a plants seismic risk to insure that the plant can operate safely. Notably, the right-hand column of this table indicates that the Shoreline Fault has not been evaluated under these procedures. (Perhaps tellingly, PG&E 140 Although the charts reproduced in this Petition appear to compare SRP Acceptance Criteria in the left column with the DCPP Design/Licensing Basis [Criteria] in the right column, it is clear that in fact the charts compare the SRP acceptance criteria with the HE acceptance criteria. Thus, although the right-hand column in these charts is labeled DCPP Design/Licensing Basis, it is apparent that these criteria are in fact the Hosgri Evaluation criteria. Because LAR 11-05 sought to clarify that the Hosgri Earthquake was Diablo Canyons SSE, at the time PG&E released these comparison charts the company apparently took the view that the Hosgri Earthquake was already a part of the plants licensing basis. See Standard Review Plan Comparison Tables, encl., at 1 (The information provided in the attachments identifies key areas where the Diablo Canyon Power Plant [] Hosgri design and licensing information appears to differ from the current SRP criteria applicable to a safe shutdown earthquake based on comparisons made by knowledgeable PG&E personnel and contractors.).

141 Standard Review Plan Comparison Tables, encl. attachment 3, at 2 (emphasis added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 57 of 131 mistakenly refers to 10 C.F.R. pt. 100, Appendix A as a non-binding Regulatory Guide, when in fact it is a duly adopted regulation, which is deemed to be part of Diablo Canyons Licensing Basis.142)

19. The following table shows that the LTSP method permits the use of higher damping values than previously found acceptable by the Commission, thus resulting in a less conservative analysis of the risk posed by an earthquake.143 The left-hand column references the damping values prescribed by the Standard Review Plan, and the right-hand column indicates that the LTSP method employs looser (less conservative) damping values, thus artificially inflating the amount of energy that is assumed to be absorbed as energy travels through the ground from the epicenter to the plant, and artificially diminishing the seismic risk posed to the plant.

142 NRC, Inspection Manual, Part 9900: Technical Guidance, section 3.1 ADAMS Accession No. ML081360529 (Apr. 16, 2008) (setting forth the set of NRC requirements which collectively make up a plants licensing basis).

143 Damping is a measure of the energy dissipation of a material or structural system as it responds to dynamic excitation. It is a term used to assist in mathematically modeling and solving dynamic equations of motion for a vibratory system in which energy is dissipated. When performing an elastic dynamic seismic analysis, one can account for the energy dissipated by specifying the amount of viscous damping (i.e., damping force proportional to the velocity) in the analytical model. NRC Regulatory Guide 1.61, Damping Values for Seismic Design of Nuclear Power Plants, (Mar. 2007), available at http://www.nrc.gov/reading-rm/doc-collections/reg-guides/power-reactors/rg/01-061/01-061.pdf, at 2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 58 of 131 SRP Acceptance Criteria DCPP Design/Licensing Basis Standard Review Plan 3.7.1: Seismic Design The damping for applicable to the [Hosgri Parameters Evaluation] evaluation of Design Class I SSCs (and the Design Class II turbine building and Damping values used for the analysis of intake structure) are defined in FSARU Section Seismic Category I SSCs are considered 3.7.1.3. All values are in accordance with RG acceptable if they are in accordance with Reg. 1.61, Revision 0 (October 1973) except as Guide 1.61 follows:

• Mechanical Components (PG&E Purchased): 4% instead of 3%

• Vital Piping (except RCL): ASME Code Case N-411 instead of 2% for small bore - 3% for large bore

• Reactor Coolant Loop: 4% instead of 3% (higher value based on WCAP-7921- AR, Westinghouse Electric Corporation, "Damping Values for Nuclear Power Plant Components,"

May 1974)

• Replacement Steam Generators: 4%

instead of 3% (higher value based on WCAP-7921-AR, Westinghouse Electric Corporation, "Damping Values for Nuclear Power Plant Components,"

May 1974)

• Integrated Head Assembly: 6.85%

instead of 4% (per DCPP License Amendments 208/210)

• Control Rod Drive Mechanisms: 5%

instead of 3% (per DCPP License Amendments 207/209)144 By way of example, the final bullet in the tables right-hand column demonstrates that the LTSP method permits PG&E to assume that seismic energy will be reduced by 5% as it travels from the earthquake epicenter to the control rod drive mechanisms, rather than the 3%

144 Standard Review Plan Comparison Tables, encl. attachment 5, at 3 (emphasis added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 59 of 131 which NRC found to be the more accurate and realistic figure. Thus, compared to the NRCs Standard Review Plan damping values, the LTSP and Hosgri Evaluation under-predict how much seismic stress will be placed on integral plant components such as the control rod drive mechanisms.

20. Paragraphs 18-19 are but a few of the comparison tables included in PG&Es 331-page list.

Viewed individually, these examples might appear as minor deviations from the accepted practices. But over 300 pages worth of such deviations lead to the inescapable conclusion that the LTSP/Hosgri Evaluation is a drastically less comprehensive and less conservative analytical method than the Standard Method approved by the Commission as sufficient under the regulations, and therefore cannot serve as a basis of comparison for the Shoreline Fault or other seismic information in determining whether the plant may safely withstand a potential earthquake.

ii. The NRCs Own Policy Does Not Permit PG&E To Determine That The Plant Is Safe To Continue Operating Based On The Probabilistic Risk Assessment Ordered By The NRC

21. According to the NRCs own policy, the review ordered by the Fukushima Task Force cannot substitute for other, required analysis to ensure that the plant is safe to continue operating. In response to the Task Forces recommendations, the NRC Staff requested that PG&E develop new probabilistic ground motion models. The results of these models were then to be compared to the plants existing SSE/DDE, which is deterministic in nature. But given that Diablo Canyons design bases are deterministic in nature, a probabilistic risk assessment cannot be used to determine compliance with the plants design bases.

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22. Recognizing this fact, the NRC Staffs own policy prohibits the use of a probabilistic risk assessment to determine whether a plant is safely operable:

Probabilistic risk assessment [PRA] is a valuable tool for evaluating accident scenarios because it can consider the probabilities of occurrence of accidents or external events.

Nevertheless, the definition of operability is that the SSC must be capable of performing its specified safety function or functions, which inherently assumes that the event occurs and that the safety function or functions can be performed. Therefore, the use of PRA or probabilities of occurrence of accidents or external events is not consistent with the assumption that the event occurs, and is not acceptable for making operability decisions.145 Despite this policy, the NRC Staff is attempting to rest its determination that the plant is safe to continue operation on the back of a probabilistic risk assessment. This effort is in direct conflict with NRC policy and must fail.146 iii. The U.S. Geological Survey Geophysicist Who Discovered The Shoreline Fault Has Published Research Concluding That The NRC Staff Underestimated The Capability Of The Shoreline Fault And The Risk It Poses To Diablo Canyon

23. In support of the views presented in this Petition, Dr. Jeanne Hardebeck, the U.S. Geological Survey geophysicist who discovered the Shoreline Fault, published research concluding that, contrary to PG&Es and NRCs conclusions, the Shoreline and Hosgri faults are connected, 145 NRC, Inspection Manual, Part 9900: Technical Guidance, Appendix C, at C-5, ADAMS Accession No. ML081360529 (emphasis added).

146 See also DPO, at 29-31, 36-37.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 61 of 131 and that a rupture on one fault could travel to the other, leading to a much larger earthquake than would be possible on a single, independent fault.147

24. Dr. Hardebeck concluded: [T]he Shoreline fault is a single continuous structure that connects to the Hosgri fault. Discontinuities smaller than about 1 km may be undetected, but would be too small to be barriers to earthquake rupture. Dr. Hardebeck therefore concluded that PG&E and NRC would be wrong to rule out the possibility of a joint rupture:

Given the connection between the Shoreline and Hosgri faults at seismogenic depths, it should be possible for a hypothetical earthquake nucleating on the Shoreline fault to continue rupturing to the north onto the Hosgri fault. . . . This scenario could extend the rupture length an additional 100 km to the northern termination of the Hosgri fault near Big Sur. This hypothetical earthquake would have a moment magnitude of 7.2-7.5 . . . .148

25. Perhaps just as importantly, Dr. Hardebecks work highlights the gaps in what experts know about the Shoreline Fault, further indicating that NRC has failed to insure that the plant could withstand earthquakes that might occur at the site. Dr. Hardebeck notes that existing study of the Shoreline Fault is not sufficient to estimate the probability of a Shoreline earthquake occurring. Her research indicates that [t]he geometry of the Shoreline fault can be used to estimate its earthquake potential, although the probability of a large earthquake cannot be reliably estimated because the slip rate is unknown.149 147 Hardebeck, J, Geometry and Earthquake Potential of the Shoreline Fault, Central California, Bulletin of the Seismological Society of America, Vol. 103, No. 1, pp. 447-462, February 2013, doi:

10.1785/0120120175.

148 Id. at 458.

149 Id. at 460-61.

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26. Given that the Shoreline Fault is clearly seismically active, as it has produced approximately 50 recorded M 3.5 earthquakes since 1987,150 an evaluation of the probability of a large earthquake occurring at the fault is paramount to ensuring the plants safety. Yet Dr. Hardebeck, the geophysicist who discovered the fault itself, has concluded that studies of the fault are insufficient to permit scientists to estimate the probability of a large earthquake occurring on the fault.

27. The standard for admissibility of this contention does not require the Commission to credit Dr. Hardebecks research over that of NRC or PG&E in order to admit this contention. Nor does it require Petitioner to make such a showing. 10 C.F.R. § 2.309(f), which provides the admissibility standard, does not call upon the intervenor to make its case at [the contention]

stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.151 Petitioner has made that showing here.

iv. Former NRC Senior Resident Inspector Dr. Michael Pecks Differing Professional Opinion Demonstrates How Use Of The Hosgri Earthquake As A Safety Metric To Analyze The Shoreline Fault Is Not Sufficient To Insure Diablo Canyons Seismic Safety

28. Other examples of how NRCs proposed method of evaluating the Shoreline Fault and other new seismic information is insufficient to insure plant safety are found in Dr. Pecks Differing Professional Opinion. The DPO exhaustively sets forth the case that the Staff has 150 Id. at 447.

151 Pilgrim Nuclear, 64 NRC at 356 (internal quotation marks and footnotes omitted).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 63 of 131 proposed, through an unlawful de facto license amendment, to permit Diablo Canyon to continue operating without having conducted an adequate safety analysis.

29. Dr. Peck explains that the LTSP is inadequate as an evaluation method to insure that Diablo Canyon can safely shut down. As Dr. Peck points out, the SSE is projected to cause more vibration at the plants containment fan coolers than the HEs projected vibrations, despite that the SSEs ground motion is much less than the HEs.152 This is due to the HEs weak assumptions.

30. This point highlights the significant effect of the LTSPs relaxed assumptions discussed above, and illustrates how the LTSP is inadequate to insure the plants seismic safety. Note that Diablo Canyons containment fan coolers are qualified to withstand the postulated SSE, which carries 0.4 g ground acceleration. Despite the fact that the postulated Hosgri Earthquake analyzed in the LTSP has a ground acceleration value of nearly double that of the postulated SSE earthquake, the LTSP analysis predicts a lower amount of seismic stress on the plants containment fan coolers. Thus, the LTSPs many deviations in acceptance criteria from the NRCs standard approved list negate the comparatively much greater strength of the postulated LTSP earthquake.

31. Neither the Staff nor PG&E can dispute the accuracy of Dr. Pecks assessments on this point.

On August 1, 2011, the Staff noted that:

While the FSARU stated that the postulated 7.5 M earthquake on the Hosgri fault would produce the maximum vibratory ground motion at the site, the plant safety analyses concluded that seismic 152 Non-Concurrence, at 5-6.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 64 of 131 qualification for certain structures, systems and components was more limiting for the Design and Double Design earthquakes than for the Hosgri Event, based on the different assumptions used in the seismic qualification for these earthquakes, including damping values, methods of analysis, required load combinations, and the allowable stresses or other acceptance criteria. As a result, seismic qualification for some plant structures, systems and components may not be bound [by] the Hosgri Event.153

32. Dr. Peck points out three other examplesthe steam generator nozzles, reactor coolant pump, and reactor vessel evaluationwhere results from the Hosgri Evaluation are so skewed due to the LTSPs relaxed assumptions that it predicts less seismic stress on certain SSCs than under the Double Design Earthquake/SSE.154 Other examples almost certainly exist, but Petitioner is unable to view Diablo Canyons FSARU due to its designation as a non-public document, despite its role as an assessment of the risk to the public health posed by operation of the plant.155

33. These facts, combined with the above data on the LTSPs and Hosgri Evaluations deviations from the Standard Review Plan, are sufficient to satisfy the Commissions standard for 153 Memo from Kriss M. Kennedy, Director, Division of Reactor Projects, Region IV to Robert Nelson, Deputy Director, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, Task Interface Agreement (TIA) - Concurrence on Diablo Canyon Seismic Qualification Current Licensing and Design Basis, (TIA 2011-010), ADAMS Accession No. ML112130665 (Aug. 1, 2011), at 3.

154 DPO, at 15 (quoting FSARU, sections 5.2.1.15.2 to 5.2.1.15.4).

155 Given the documents focus on the public health and continued safe operation of nuclear power plants, NRCs refusal to permit public access to this document is a further example of the Commissions unconscionable efforts to preclude public participation in plant safety issues. 10 C.F.R. § 50.34(a)(4) provides that each licensee must develop a FSARU, the objective of which is to assess[] the risk to public health and safety resulting from operation of the facility and includ[e] determination of the margins of safety during normal operations and transient conditions anticipated during the life of the facility, and the adequacy of structures, systems, and components provided for the prevention of accidents and the mitigation of the consequences of accidents.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 65 of 131 admissibility. NRC regulations do not require Petitioner to make its substantive case at the contention stage.156 Petitioner has alleged information sufficient to show that a genuine dispute exists with regard to a material issue of law and has referenced specific documents supporting that argument.157

v. The Hosgri Evaluation And The Associated Long Term Seismic Plan Are Not Part Of Diablo Canyons Licensing Basis And Were Intended To Be A One-Time Exception To The Current Licensing Basis

a. Current Licensing Basis And Regulatory Background

34. Each nuclear power plant, including Diablo Canyon, is required to comply with its current licensing basis during operation.158 Commission regulations set forth the requirements and obligations which together form a plants current licensing basis:

The set of NRC requirements applicable to a specific plant CLB include:

a. NRC regulations in 10 CFR Parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 54, 55, 70, 72, 73, and 100 and appendices thereto;

b. Commission orders;

c. license conditions;

d. exemptions;

e. technical specifications;

f. plant-specific design basis information defined in 10 CFR 50.2 and documented in the most recent UFSAR (as required by 10 CFR 50.71);

g. licensee commitments remaining in effect that were made in docketed licensing correspondence (such as licensee 156 Pilgrim Nuclear, 64 NRC at 356.

157 See 10 C.F.R. § 2.309(f).

158 42 U.S.C. § 2131.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 66 of 131 responses to NRC bulletins, Licensee Event Reports, generic letters, and enforcement actions); and

h. licensee commitments documented in NRC safety evaluations.159 Together, this information constitutes the requirements and obligations with which PG&E must comply in order to continue to operate within the bounds of the Atomic Energy Act.

35. In addition to documents that constitute the current licensing basis, a bundle of regulations and other obligations set forth the requirements imposed on licensees to insure seismic safety. Appendix A to 10 C.F.R. pt. 50 requires that a nuclear power plants structures, systems, and components important to safety shall be designed to withstand the effects of natural phenomena such as earthquakes [and other phenomena] without loss of capability to perform their safety functions.160 This provision, called General Design Criterion 2, is a regulatory requirement and, as such, is part of Diablo Canyons current licensing basis.

36. To implement General Design Criterion 2, the Commission developed the Safe Shutdown Earthquake concept. The Safe Shutdown Earthquake is defined as:

that earthquake which is based upon an evaluation of the maximum earthquake potential considering the regional and local geology and seismology and specific characteristics of local subsurface material. It is that earthquake which produces the maximum vibratory ground motion for which certain structures, systems, and components are designed to remain functional. These structures, systems, and components are those necessary to assure:

(1) The integrity of the reactor coolant pressure boundary, 159 NRC, Inspection Manual, Part 9900: Technical Guidance, section 3.1, ADAMS Accession No. ML081360529.

160 10 C.F.R. pt. 50, App. A; 10 C.F.R. pt. 100, App. A.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 67 of 131 (2) The capability to shut down the reactor and maintain it in a safe shutdown condition, or (3) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to the guideline exposures of this part.161 The Double Design Earthquake was designated as Diablo Canyons Safe Shutdown Earthquake.162

37. Commission regulations set forth specific requirements as to how to investigate local seismic features and designate a Safe Shutdown Earthquake. Licensees are required to investigate the tectonic, lithologic, stratigraphic, hydrologic, and structural geologic conditions of the site and the region surrounding the site, including its geologic history, among other investigations. The regulations provide that, using data gleaned from these investigations, licensees are to develop seismic design bases that take into account the maximum vibratory ground motion at the plant.163

38. As part of the current licensing basis, 10 C.F.R. pt. 100, Appendix A requires each plant to develop design bases for the plants SSCs and operate those SSCs within the applicable design basis. Design bases are defined as that information which identifies the specific functions to be performed by a structure, system, or component of a facility, and the specific 161 10 C.F.R. pt. 100, App. A, § III(c) (emphases added).

162 See, e.g., Memo from Kriss M. Kennedy, Director, Division of Reactor Projects, Region IV to Robert Nelson, Deputy Director, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, Task Interface Agreement (TIA) - Concurrence on Diablo Canyon Seismic Qualification Current Licensing and Design Basis, (TIA 2011-010), ADAMS Accession No. ML112130665 (Aug. 1, 2011), at 2 (stating that the Double Design Earthquake implements the NRC regulatory requirements for the safe shutdown earthquake as described in 10 CFR Part 100, Appendix A.).

163 10 C.F.R. pt. 100, App. A, § V(a).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 68 of 131 values or ranges of values chosen for controlling parameters as reference bounds for design.

The applicable regulation provides that [t]hese values may be (1) restraints derived from generally accepted state of the art practices for achieving functional goals, or (2) requirements derived from analysis (based on calculation and/or experiments) of the effects of a postulated accident for which a structure, system, or component must meet its functional goals.164 Design bases are part of a plants current licensing basis.165

39. Each plant has its own Seismic and Geologic Design Bases, which require licensees to comply with certain procedures in determining a vibratory ground motion value to designate as the plants Safe Shutdown Earthquake. The Commission requires that [t]he most severe earthquakes associated with tectonic structures or tectonic provinces in the region surrounding the site should be identified, considering those historically reported earthquakes that can be associated with these structures or provinces and other relevant factors.166 The Commission then requires that licensees assess local faults using a number of conservative assumptions:

The vibratory ground motion at the site should be then determined by assuming that the epicenters or locations of highest intensity of the earthquakes are situated at the point on the tectonic structures or tectonic provinces nearest to the site. The earthquake which could cause the maximum vibratory ground motion at the site should be designated the Safe Shutdown Earthquake. . . . . The determinations carried out . . . shall assure 164 10 C.F.R. § 50.2.

165 NRC Regulatory Guide 1.186, Guidance and Examples for Identifying 10 CFR 50.2 Design Bases Nuclear Energy Institute, available at http://www.nrc.gov/reading-rm/doc-collections/reg-guides/power-reactors/rg/01-186/ (citing NEI Guide 97-04, Guidance and Examples for Identifying 10 CFR 50.2 Design Bases, App. B. (Nov. 2000)).

166 10 C.F.R. pt. 100, App. A, § V(A) (emphasis added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 69 of 131 that the safe shutdown earthquake intensity is, as a minimum, equal to the maximum historic earthquake intensity experienced within the tectonic province in which the site is located.167 The resulting value is then designated as the plants Safe Shutdown Earthquake.

40. Although Part 100 and Appendix A do not apply to Diablo Canyon as siting requirements because the plant was sited before the regulations were adopted, Part 100 and Appendix A do apply as part of Diablo Canyons current licensing basis. These regulations have been incorporated into Diablo Canyons CLB.168 The General Design Criteria themselves provide that they are intended to provide reasonable assurance that a nuclear power plant can be constructed and operated at a proposed site without undue risk to the health and safety of the public.169

41. The Commissions Regulatory Guide 1.29, Seismic Design Classification, addresses which SSCs must be certified to withstand a plants Safe Shutdown Earthquake. The Commission approved a list of 17 groups of plant SSCs that are required to be qualified to withstand the SSE, thus ensuring that the plant will operate with an adequate margin of safety and can be 167 10 C.F.R. pt. 100, App. A, § V(A) (emphasis added).

168 NRC, Inspection Manual, Part 9900: Technical Guidance, section 3.1, ADAMS Accession No. ML081360529 (defining CLB). See also Diablo Canyon, Operating License, Condition 2(C): This License shall be deemed to contain and is subject to the conditions specified in the Commission's regulations set forth in 10 CFR Chapter I and is subject to applicable provisions of the Act and to the rules, regulations, and orders of the Commission now or hereafter in effect . . . .). Part 100 appears in Chapter I of Title 10 of the C.F.R.

169 10 C.F.R. pt. 100, App. A (emphasis added). See also 10 C.F.R. pt. 50, Appendix S ([F]or either an operating license applicant or holder whose construction permit was issued before January 10, 1997, the earthquake engineering criteria in Section VI of appendix A to 10 CFR part 100 continue to apply.).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 70 of 131 safely shut down in the event the SSE occurs.170 In accordance with Commission regulations, a licensees failure to certify that all safety-related SSCs can withstand the Safe Shutdown Earthquake will result in a finding that the plant cannot operate with an adequate margin of safety and, therefore, cannot operate within the terms of its current licensing basis.

42. Taken together, these regulations10 C.F.R. pt. 50, General Design Criterion 2, and 10 C.F.R. pt. 100set forth the design basis functional requirements for qualification of a plants seismic safety. These requirements are each included within the plants current licensing basis.171

b. The Hosgri Evaluation And The Long Term Seismic Plan Are Not Part Of Diablo Canyons Licensing Basis

43. In approving the LTSP and its Hosgri Evaluation in the 1990s as a method to evaluate the Hosgri Fault, the NRC declined to make the LTSP part of Diablo Canyons licensing basis, or to designate the Hosgri Evaluation as Diablo Canyons bounding seismic analysis.172 This determination was based on sound reasons, as, for the reasons explained above, the Hosgri Evaluation analysis is not sufficient to insure that Diablo Canyon can continue to operate with an adequate margin of seismic safety, as required by Commission regulations. The SSE, which is intended to implement the regulatory requirement that plants be designed to withstand ground shaking without loss of the ability to shut down safely, requires analysis of 170 NRC Regulatory Guide 1.29, Seismic Design Classification, (Mar. 2007), available at http://www.nrc.gov/reading-rm/doc-collections/reg-guides/power-reactors/rg/01-029/01-029.pdf.

171 NEI Guide 97-04, Guidance and Examples for Identifying 10 CFR 50.2 Design Bases, App. B. (Nov.

2000), available at http://www.nrc.gov/reading-rm/doc-collections/reg-guides/power-reactors/rg/01-186/RG97-04appb.pdf; DPO, at 6.

172 Diablo Canyons Final Safety Analysis Report states that the LTSP does not alter the design bases for DCPP. FSARU, Section 2.5.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 71 of 131 specified structures, systems, and components which are integral to ensuring a plants ability to shut down in the event of an earthquake.

44. Despite this clear intent of the Commission to keep the Hosgri Evaluation separate and apart from the plants current licensing basis, the Staff is attempting to amend de facto Diablo Canyons license to make the Hosgri Evaluation the metric by which Diablo Canyon is determined to be safe.

V. ADDITIONAL COMMISSION AUTHORITY Even if the Commission determines that it is not required to convene a license amendment proceeding under 10 C.F.R. § 2.309, the Commission has inherent supervisory authority to convene such a proceeding, and should do so in the interests of assuring the public of the safety of Diablo Canyon. In accord with the Commissions policy of transparency, it should provide for an adjudicatory public hearing with opportunity for participation by interested parties.173 The Commissions formal statement of its policy on the issue is that it intends to exercise its inherent supervisory authority, including its power to assume part or all of the functions of the presiding officer in a given adjudication, as appropriate in the context of a particular proceeding.174 In this case, exercise of the Commissions inherent supervisory authority to convene a public hearing with an opportunity for participation by interested parties is appropriate and necessary in order to insure that the seismic analysis of the Shoreline Fault complies with the Atomic Energy Act and to assure the public that the plant is safe to operate.

173 See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC 219, 229 (1990).

174 Statement of Policy on Conduct of Adjudicatory Proceedings, 48 NRC 18, 20, 1998 WL 518232 (1998).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 72 of 131 VI. STANDING FoE is a national non-profit environmental organization headquartered and incorporated in the District of Columbia with an office in Berkeley, California.175 FoE has a nationwide membership of over 33,000 (including over 6,000 members in California) and over 440,000 activists.176 Among its missions, FoE seeks to insure that the public has an opportunity to influence the outcome of government and corporate decisions that affect the lives of many people.177 Since its inception in 1969, FoE has sought to improve the environmental, health, and safety conditions at civil nuclear facilities licensed by the NRC and its predecessor agencies.178 To that end, FoE utilizes its institutional resources, including legislative advocacy, litigation, and public outreach and education, to minimize the risks that nuclear facilities pose to its members and to the general public.179

1. Legal Standards Under section 189a of the Atomic Energy Act, the Commission must grant a hearing on a license amendment application upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.180 To support the request, a petitioner must state (1) the nature of the petitioners right under the governing statutes to be made a party; (2) the nature of the petitioners property, financial, or other interest 175 Declaration of Erich Pica, at ¶¶ 2, 4.

176 Id. at ¶ 4.

177 Id. at ¶ 7.

178 Id. at ¶¶ 2-3.

179 Id. at ¶ 3.

180 42 U.S.C. § 2239(a)(1)(A).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 73 of 131 in the proceeding; and (3) the possible effect of any decision or order on the petitioners interest.181 The NRC generally uses judicial concepts of standing in interpreting [section 2.309(d)(1)].182 Thus, a petitioner may intervene if it can specify facts showing that (1) it has suffered or will suffer a distinct and palpable harm constituting injury-in-fact within the zone of interests arguably protected by the governing statutes, (2) the injury is fairly traceable to the action being challenged, and (3) the injury will likely be redressed by a favorable determination.183 In determining whether a petitioner has met the requirements for establishing standing, the Commission construe[s] the petition in favor of the petitioner.184

2. Friends Of The Earth Has Standing For Admission Of Its Contentions Member organizations such as FoE may intervene on behalf of their members if they can demonstrate that the licensing action will affect at least one of [their] members, . . . identify that member by name and address, and . . . show that [they are] authorized by that member to request a hearing on his or her behalf.185 FoE has attached Declarations from five of its members (the Declarants), each of which resides between approximately seven and 27 miles from Diablo Canyon.186 The Declarants describe their personal health, safety, economic, aesthetic, and 181 Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 552 (2004) (citing 10 C.F.R. § 2.309(d)(1)).

182 Id.

183 Id. at 552-53.

184 Id. at 553.

185 Id.

186 Declaration of Jeffrey Pienack (Pienack Decl.), at ¶ 5 (eight miles); Declaration of Gail Jacobson (Jacobson Decl.), at ¶ 4 (seven miles); Declaration of Jill Denton (Denton Decl.), at ¶ 5 (eight miles);

72 (Page 96 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 74 of 131 environmental interests in the proper operation of Diablo Canyon and the risk of harms that the plants operation, without proper seismic analysis, poses to those interests. Each of these interests is an independently sufficient injury-in-fact for standing purposes. Each of these members supports this Petition, and has authorized FoE to intervene in this proceeding and request relief on his or her behalf.187 Jeffrey Pienack Jeffrey Pienack lives with his wife and two-year-old daughter in Oceano, California, approximately eight miles downwind from Diablo Canyon.188 Mr. Pienack is a homeowner and owns a sales and marketing business, the value of each of which would be adversely affected in the event of a large earthquake at Diablo Canyon.189 Mr. Pienacks business depends at least in part on the marketing of food products.190 An accident at Diablo Canyon would adversely affect the agriculture of San Luis County, which is downwind from Diablo Canyon.191 Mr. Pienacks wife farms land downwind from Diablo Canyon. A radiation leak from Diablo Canyon would contaminate the resources in this area and would prevent Mrs. Pienack from farming on her land.192 Declaration of Thomas Danfield (Danfield Decl.), at ¶ 5 (eight miles); Declaration of Elizabeth Brousse (Brousse Decl.), at ¶ 5 (27 miles).

187 Pienack Decl., at ¶¶14-15; Jacobson Decl., at ¶¶ 13-14; Denton Decl., at ¶¶ 14-15; Danfield Decl., at

¶¶ 14-15; Brousse Decl., at ¶¶ 13-14.

188 Pienack Decl. at ¶¶ 1, 5, 10.

189 Id. at ¶¶ 1, 8.

190 Id. at ¶ 8.

191 Id. at ¶¶ 8, 10.

192 Id. at ¶ 6.

73 (Page 97 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 75 of 131 Mr. Pienack has been an avid surfer since 1964 and has regularly surfed the waters near Diablo Canyon for over 20 years.193 As Chair of the San Luis Obispo Chapter of the Surfrider Foundation from 2008-2012, Mr. Pienack has worked to protect and restore the coastal environment around Diablo Canyon.194 An earthquake at Diablo Canyon would adversely affect these recreation and conservation interests.195 Gail Jacobson Gail Jacobson owns a home in San Luis Obispo, California, approximately seven miles from Diablo Canyon, where she raised three children and has lived with her husband since 1975.196 Ms. Jacobson, a retired biochemist and professor at California Polytechnic State University at San Luis Obispo, also owns a studio apartment on her property, which she rents to a lessee. This rental income, which is important to support the Jacobsons retirement, would be threatened by a radiation leak at Diablo Canyon.197 Ms. Jacobson is particularly concerned about whether she, her husband, and their son, who is disabled, would be able to safely navigate the crowded roads leading away from Diablo Canyon in order to evacuate the area in the event of a nuclear accident at the plant.198 A radiation leak at Diablo Canyon caused by an earthquake 193 Id. at ¶ 9.

194 Id. at ¶ 11.

195 Id. at ¶¶ 12-13.

196 Jacobson Decl., at ¶¶ 1, 7.

197 Id. at ¶ 7.

198 Id. at ¶ 5.

74 (Page 98 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 76 of 131 would adversely affect the value of Ms. Jacobsons home and her ability to rent the studio apartment.199 Ms. Jacobson and her husband have used the natural environment around Diablo Canyon many times for hiking and camping.200 As members of several environmental organizations in addition to FoE, including Greenpeace and a local land conservancy, Ms. Jacobson and her husband have devoted their time and resources to local environmental causes.201 Ms. Jacobson is a member of Mothers for Peace, a San Luis Obispo-based organization that since 1969 has protested safety- and environmental-related issues at Diablo Canyon.202 Ms. Jacobson founded the organization Concerned Cal Poly Faculty and Staff to protest the construction of Diablo Canyon in the 1970s.203 Ms. Jacobson has demonstrated an interest in recreating in and conserving the natural environment around Diablo Canyon. These interests are harmed by continued operation of the plant without adequate assurance of seismic safety.204 Jill Denton Jill Denton owns a home in Los Osos, California, approximately eight miles from Diablo Canyon, with her spouse and their several pets.205 Ms. Denton, who is a licensed marriage and family therapist, has lived in her current home with her spouse since 1994 and in Los Osos since 199 Id. at ¶ 9.

200 Id. at ¶ 8.

201 Id. at ¶ 10.

202 Id. at ¶ 10; see also Mothers for Peace, About Us, http://mothersforpeace.org/data/AboutUs.

203 Id. at ¶ 10.

204 Id. at ¶¶ 8, 10, 11, 12.

205 Denton Decl., at ¶¶ 1, 5.

75 (Page 99 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 77 of 131 1992.206 Ms. Dentons spouse is rector of Saint Benedicts Episcopal Church in Los Osos.207 As a result of her spouses leadership role at Saint Benedicts, both Ms. Denton and her spouse regularly care for parishioners who require extra assistance, particularly elderly and home-bound citizens.208 The health, safety, and well being of Ms. Denton, her spouse, and the Saint Benedicts flock will be adversely affected by a radiation leak at Diablo Canyon.209 Only two roads lead out of Los Osos, which would likely make timely evacuation in the event of an accident difficult.210 Ms. Denton owns numerous properties in Los Osos, the value of which would be adversely affected by an accident at Diablo Canyon. These properties include her home on 13th Street, a lot on 8th Street, and a multi-unit building on 9th Street.211 The 9th Street property houses Ms. Dentons counseling practice and several other units that she rents to other tenants.212 The value of each of these properties, the ability to rent her units in the 9th Street property, and the assets of her counseling practice will be adversely affected by a radiation leak at Diablo Canyon.213 An accident would also profoundly affect tourism in and around Los Osos, resulting 206 Id. at ¶¶ 1, 5.

207 Id. at ¶ 6.

208 Id. at ¶ 6.

209 Id. at ¶¶ 6-7.

210 Id. at ¶ 7.

211 Id. at ¶ 8.

212 Id. at ¶ 8.

213 Id. at ¶ 8.

76 (Page 100 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 78 of 131 in negative impacts on the local economy.214 The value of Ms. Dentons counseling practice would diminish as a result of clients moving away.215 Ms. Denton moved to Los Osos because of its unique natural environment, and she and her spouse recreate in the natural environment around Diablo Canyon almost every day, including walking in the Irish Hills and near Montana De Oro and kayaking in waters nearby Diablo Canyon.216 Ms. Denton and her spouse have devoted extensive time and resources to advocating for protecting the environment around Diablo Canyon.217 Ms. Denton has supported other environmental organizations besides FoE, including Mothers for Peace, the Land Conservancy of San Luis Obispo, the Sierra Club, and the Morro Bay National Estuary Program.218 In addition to supporting conservation organizations, Ms. Denton and her spouse have maintained local trails and studied water quality in the nearby Morro Bay watershed.219 Ms. Denton has also protested Diablo Canyons operation since the 1980s.220 Through these activities, Ms. Denton has demonstrated an interest in recreating in and conserving the natural environment around Diablo Canyon. These interests are harmed by continued operation of the plant without adequate assurance of seismic safety.221 214 Id. at ¶ 10.

215 Id. at ¶ 10.

216 Id. at ¶ 9.

217 Id. at ¶¶ 10-11.

218 Id. at ¶ 11.

219 Id. at ¶ 11.

220 Id. at ¶ 11.

221 Id. at ¶¶ 12-13.

77 (Page 101 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 79 of 131 Thomas Danfield Thomas Danfield and his wife have lived in Los Osos, California, since 1990 and currently own a home approximately eight miles north of Diablo Canyon.222 Mr. Danfield and his wife also own approximately 32 acres of land in the nearby Huasna Valley, about 16 miles from Diablo Canyon, where they intend to build a home.223 Prevailing winds would blow leaked radiation from Diablo Canyon toward Mr. Danfields Huasna Valley property.224 Beyond posing a risk to Mr. Danfields health and welfare, a radiation release from Diablo Canyon would adversely affect the market value of both properties.225 Mr. Danfield, who moved to Los Osos because of its beautiful natural environment, frequently enjoys hiking in the area around Diablo Canyon and kayaking in the nearby Morro Bay.226 Mr. Danfield also enjoys other activities that depend on the well being of the natural environment around Diablo Canyon, including the annual Zongo Yachting Cup.227 The area also hosts a number of other outdoor activities, including concerts, art shows, street fairs, and sport fishing.228 As members of FoE and the Sierra Club, both Mr. Danfield and his wife have worked to conserve the natural environment around Diablo Canyon and have regularly participated in the Surfrider Foundations annual Morro Bay beach cleanup.229 Each has also attended and 222 Danfield Decl., at ¶¶ 1, 5.

223 Id. at ¶ 8.

224 Id. at ¶ 8.

225 Id. at ¶¶ 8, 12, 13.

226 Id. at ¶ 9.

227 Id. at ¶ 9.

228 Id. at ¶ 10.

229 Id. at ¶ 11.

78 (Page 102 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 80 of 131 participated in public meetings to protect nearby Montana de Oro and Pismo Dunes from environmental threats.230 Mr. Danfield and his wife have demonstrated robust interests in recreating in and conserving the natural environment around Diablo Canyon. Continued operation of the plant without adequate assurance that it is able to shut down following an earthquake on the Shoreline Fault poses a substantial risk of injury to these interests.231 A release of radiation from the plant would adversely affect these interests.

Elizabeth Brousse Elizabeth Brousse lives in Templeton, California, approximately 27 miles from Diablo Canyon.232 Ms. Brousse is a retired educator and has taught at the kindergarten, high school, and community college levels, and at the San Francisco County Jail.233 As a member of the Board of Mothers for Peace, Ms. Brousse has worked to expand the evacuation zone around Diablo Canyon and to improve fire protection safety mechanisms.234 Ms. Brousse has also regularly attended NRC public meetings and local board of supervisors meetings regarding Diablo Canyon safety- and environment-related issues.235 As a member of other environmental advocacy groups in addition to FoE, including the Sierra Club, Union of Concerned Scientists, Physicians for 230 Id. at ¶ 11.

231 Id. at ¶ 12.

232 Brousse Decl., at ¶¶ 1, 5.

233 Id. at ¶ 5.

234 Id. at ¶ 10.

235 Id. at ¶ 10.

79 (Page 103 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 81 of 131 Social Responsibility, and the League of Conservation Voters, Ms. Brousse has demonstrated her interest in conserving the environment around the plant.236 By regularly hiking in the hills above Diablo Canyon and along the coast near the plant, Ms. Brousse has a demonstrated interest in recreating in the natural environment around the plant.237 Since 1995, Ms. Brousse has volunteered as a docent at both the Morro Bay Natural History Museum and the Pismo Beach Monarch Butterfly Grove.238 A radiation leak at Diablo Canyon would substantially imperil these institutions and would prevent Ms. Brousse from further volunteer work.239 Diablo Canyons continued operation without adequate assurance of seismic safety would adversely affect Ms. Brousses recreation and conservation interests in the natural environment around Diablo Canyon.240

i. Injury Each of the Declarants has established that he or she is at risk of serious health effects caused by exposure to radioactivity if a seismic event damages the reactor and causes radiation to leak into the environment.241 The continued operation of Diablo Canyon without the seismic analysis or public adjudicatory hearing required by the AEA presents a serious risk of harm to the Declarants, each of whom lives close to Diablo Canyon.

236 Id. at ¶ 10.

237 Id. at ¶ 8.

238 Id. at ¶ 8.

239 Id. at ¶¶ 9, 11, 12.

240 Id. at ¶¶ 8, 9, 11, 12.

241 Pienack Decl., at ¶ 7; Jacobson Decl., at ¶ 6; Denton Decl., at ¶ 7; Danfield Decl., at ¶ 7; Brousse Decl., at ¶ 7.

80 (Page 104 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 82 of 131 In addition to risking the health effects of radiation exposure, the Declarants would suffer substantial devaluation of their properties in the event of a radiation leak.242 Many of the Declarants would suffer losses to the value of their businesses or lose rental income.243 Each Declarant has a demonstrated interest in protecting and recreating in the natural environment around Diablo Canyon, and has established that a radiation leak at Diablo Canyon caused by an earthquake would adversely affect these interests.244 The Declarants have further established that these interests are harmed and will continue to be harmed by Diablo Canyons continued operation without adequate assurance of seismic safety, and by the NRCs failure to provide a public hearing with regard to analysis of the risk to the plant posed by the Shoreline Fault.245 Each Declarant also describes his or her interest in open government and corporate decision making, which stands to be adversely affected by this proceeding.246 Each of the above-described interests is independently sufficient to satisfy the injury element of the standing analysis.247 242 Each of the Declarants except Ms. Brousse has alleged that he or she owns one or more properties that would suffer a substantial decline in value caused by a radiation leak at Diablo Canyon. See Pienack Decl., at ¶¶ 1, 8, 12, 13 ; Jacobson Decl., at ¶¶ 1, 7, 9, 11, 12; Denton Decl., at ¶¶ 1, 8, 12, 13; Danfield Decl., at ¶¶ 1, 8, 12, 13.

243 Pienack Decl., at ¶¶ 8, 12, 13; Jacobson Decl., at ¶¶ 7, 9, 11, 12; Denton Decl, at ¶¶ 8, 12, 13.

244 Pienack Decl., at ¶ 12; Jacobson Decl., at ¶ 11; Denton Decl., at ¶ 12; Danfield Decl., at ¶ 12; Brousse Decl., at ¶ 11.

245 Pienack Decl., at ¶ 13; Jacobson Decl., at ¶ 12; Denton Decl., at ¶ 13; Danfield Decl., at ¶ 13; Brousse Decl., at ¶ 12.

246 Pienack Decl., at ¶ 13; Jacobson Decl., at ¶ 12; Denton Decl., at ¶ 13; Danfield Decl., at ¶ 13; Brousse Decl., at ¶ 12.

247 See, e.g., Fla. Power & Light Co. (Turkey Point, Units 3 and 4), 53 NRC 138, 150 (2001) (finding petitioners past efforts to protect the land surrounding nuclear power plant, use of that land for recreation, and assertion that extending license of units could increase the probability and consequences 81 (Page 105 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 83 of 131 Additionally, the Declarants have suffered the loss of their procedural rights to a hearing, as provided by the section 189a of the AEA, 42 U.S.C. § 2239(a). By proceeding through a de facto rather than a de jure license amendment proceeding, the NRC has denied Declarants their rights to an adjudicatory hearing. As the Commission has recognized, [t]he loss of the rights to notice, opportunity for a hearing, and opportunity for judicial review, constitutes a discrete and palpablenot hypotheticalinjury.248 Indeed, procedural rights are special, and the person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.249 For this reason, the Commission has found that the loss of a procedural right, by itself, is sufficient to satisfy the injury-in-fact element of the standing inquiry, so long as the procedures in question are designed to protect some threatened concrete interest.250 Here, the Declarants procedural right is linked directly to a threatened release of radiation, adversely affecting Declarants health and safety, the value of their properties, and their recreation, aesthetic, and conservation interests in the natural environment around Diablo Canyon.251 Thus, the of a nuclear accident at the facility, thereby increasing the threat of injury to her, her family, and property, to be sufficient to establish standing to intervene).

248 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 93 (1993).

249 Id. at 94 n.9 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)).

250 Id. at 94.

251 See Perry, 38 NRC at 94 (finding petitioners fear that the denial of a hearing would lead to relaxed safety standards at the plant, potentially leading to a release of radioactive material into the environment, to be sufficient for standing purposes).

82 (Page 106 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 84 of 131 Declarants, and therefore Petitioner, have suffered a concrete and particularized injury by the agencys proceeding through a de facto license amendment proceeding.252 ii. Traceability The de facto license amendment proceeding characterized above has deprived Declarants, and thus FoE, of an opportunity for notice and a public hearing, as provided in the AEA. As described above, Petitioner will suffer a concrete and particularized risk of injuries from PG&Es continued operation of Diablo Canyon without conducting the required seismic analysis.253 The harm caused to Declarants recreation and aesthetic injuries was caused by the Staffs permitting PG&E to avoid the license amendment process and a public adjudicatory hearing, as required by the Commissions own regulations.

iii. Redressability The Commission is capable of granting Petitioner redress by convening a public adjudicatory hearing in which Petitioner has the opportunity to participate as a party. The Commission also has the ability and authority to suspend operations at Diablo Canyon, as requested by this Petition, pending such a hearing and a finding, after an adequate assessment of the plants seismic safety, that the plant can safely withstand all postulated earthquakes which could occur at the plant. A public hearing will assure that the Commission obtains the benefit of 252 See Cleveland, 38 NRC at 94 (finding that petitioners alleged loss of the ability under [Atomic Energy Act] section 189a to meaningfully participate in a proceeding was sufficient for standing purposes).

253 So long as a petitioner falls within the zone of interests protected by the statute, and alleges harm that is concrete and particularized, rather than conjectural or hypothetical, the requisite injury may either be actual or threatened. Crow Butte Res., Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241, 271 (2008) (emphasis added).

83 (Page 107 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 85 of 131 the testimony of Petitioners witnesses and will provide interested parties with an opportunity to participate in the license amendment proceeding, as required by the AEA.

iv. Zone Of Interests The Declarants interests plainly fall within the zone of interests protected by the AEA and its implementing regulations.254

3. Friends Of The Earth Presumptively Has Standing To Intervene Based On The Members Geographical Proximity To Diablo Canyon In addition to the traditional elements of standing, Petitioner has standing to intervene based on the proximity presumption, as set forth in Commission decisions. Under longstanding Commission precedent, if a petitioner resides within 50 miles of a nuclear plant, he or she, and his or her representing organization, presumptively has standing to intervene in certain proceedings, even if petitioner has failed to allege some specific injury-in-fact.255 In considering a petition to intervene in a reactor construction permit proceeding or an operating license proceeding, the Commission generally applies the proximity presumption without requiring any further showing by a petitioner. In license amendment proceedings, for a 254 See Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), 39 NRC 54, 75 (1994)

(determining that the health and safety interests of its members are within the AEA-protected zone of interests); Babcock and Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), 37 NRC 72, 80 (1993)

(holding that specified health, safety, and environmental concerns . . . clearly come within the zone of interests safeguarded by the AEA).

255 Fla. Power & Light Co. (Turkey Point, Units 3 and 4), LBP-01-6, 53 NRC 138, 147 (2001), affd, 54 NRC 3; see also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-107, 6 AEC 188, 190 (1973); Cleveland, 38 NRC at 95.

84 (Page 108 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 86 of 131 petitioner to gain the benefit of the presumption, he or she additionally must show that the proposed action involves an obvious potential for offsite consequences.256 This additional requirement is satisfied by a petitioners allegation that the proposed action at issue was safety-related.257 In Perry, petitioners sought to intervene in a license amendment proceeding in which the licensee sought to delete the reactors material specimen withdrawal schedule from the plants technical specifications and transfer the schedule to the facilitys FSARU. Even though the parties and the Commission agreed that the proposed license amendment presented no significant hazard, the Commission agreed with petitioners that it was entitled to the benefit of the geographical proximity presumption because the proposed amendment was safety-related.258 The Commission reasoned that the withdrawal schedule, which exists to insure that the structural integrity of the reactor vessel is monitored, related directly to the material condition of the plants reactor vessel. The Commission therefore found that the proposed amendment bears on the health and safety of those members of the public who reside in the plants vicinity and, thus, involved an obvious potential for offsite consequences.259 The Commission therefore concluded that petitioners had established standing based on the geographical proximity presumption.260 In the present matter, four of the five Declarants live within eight miles from Diablo Canyon, and the fifth lives 27 miles from the plantall well within the 50-mile radius required 256 Perry, 38 NRC at 95 (internal quotation marks omitted).

257 Id. at 95-96.

258 Id.

259 Id. at 95.

260 Id. at 96.

85 (Page 109 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 87 of 131 by the proximity presumption.261 Petitioner has alleged that the de facto license amendment proceeding in this case concerns how Diablo Canyon is required to evaluate new seismic information and whether the plants SSCs can withstand ground shaking caused by the Shoreline Fault. It is beyond dispute that these seismic concerns are related to the health and safety of those members of the public who reside in the plants vicinity.262 The license amendment clearly involves an obvious potential for offsite consequences.263 Petitioner has thus established that, in addition to the traditional elements of standing, it has standing based on the geographical proximity presumption.

Construing this Petition in favor of FoE, as it must, the Commission must conclude that FoE properly has standing for admission of its contentions.264 Each of the Declarants, and thus FoE, has established that he or she has standing to intervene in his or her own right based on two independent grounds. First, each Declarant has established each of the traditional elements of standingnamely, that he or she has suffered an injury-in-fact, that the injury was caused by the de facto license amendment proceeding, that this injury would be redressed by a favorable decision by the Commission, and that his or her concerns fall within the zone of interests protected by the AEA and implementing regulations. Second, FoE is entitled to the benefit of the geographical proximity presumption. The Declarants have provided their names and 261 Pienack Decl., at ¶ 5 (eight miles); Jacobson Decl., at ¶ 4 (seven miles); Denton Decl., at ¶ 5 (eight miles); Danfield Decl., at ¶ 5 (eight miles); Brousse Decl., at ¶ 5 (27 miles).

262 Perry, 38 NRC at 95.

263 Id.

264 Vermont Yankee, 60 NRC at 553.

86 (Page 110 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 88 of 131 addresses and have authorized FoE, of which they are members, to intervene in this proceeding on their behalf.

VII. TIMELINESS Commission regulations require that a petition to intervene in a license amendment proceeding be timely filed.265 This requirement presumes that a proceeding, initiated by a Federal Register notice or other posting on the Commissions website, has been formally noticed and commenced. Here no such formal proceeding has been commenced; indeed, the Staff appears to be pursuing a de facto license amendment precisely to avoid the notice and opportunity for hearing that are required to amend a license. Thus, § 2.309(b) does not apply.

Even if the requirements of § 2.309(b) do apply, however, and if the Commission were to determine that this Petition has failed to meet the applicable deadline, FoE has demonstrated good cause necessary for the Commission to entertain an untimely petition.266 Imposing a strict timeliness requirement in such circumstances would produce an absurd result.267 Where there has been no notice of a formal license amendment request, requiring a party to timely petition for intervenor status following the de facto amendment proceeding would create a regulatory catch-22. A licensee or the Commission could easily avoid the AEAs public hearing requirement by merely amending an operating license through a de facto license 265 10 C.F.R. § 2.309(b).

266 See 10 C.F.R. § 2.309(c).

267 Such a result would also be contrary to the Commissions policy of transparency as articulated by Chair Macfarlane. See, e.g., Alison Macfarlane, Chairman, NRC, Speech, Life after Fukushima: The New Normal, Nuclear Energy Institute, Washington, DC, May 14, 2013, available at http://pbadupws.nrc.gov/docs/ML1313/ML13134A327.pdf (Transparency and openness are essential to show both the industrys and the agencys processes can be trusted to be protective of public health and safety.)

87 (Page 111 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 89 of 131 amendment; any party seeking to intervene in such a de facto license amendment proceeding would not be aware that a proceeding was underway, would miss the regulatory timeliness deadlines, and therefore would never be able to intervene. If the public hearing provision of section 189a is to serve its intended purpose, interested parties must be afforded an opportunity to request a hearing before the Staff takes action that would alter the terms of the operating license.268

1. Because The Commission Staff Are Pursuing A De Facto Licensing Proceeding Without Notice, 10 C.F.R. § 2.309(b) Does Not Apply 10 C.F.R § 2.309(b)(3) provides, with certain exceptions, that where notice of the agency action is published in the Federal Register, a petition to intervene must be filed within the time period specified in the notice or, if none is specified, within 60 days.269 No Federal Register notice of the commencement of a license amendment proceeding for Diablo Canyon has been published. Subsection (b)(3) therefore does not apply.

Where no Federal Register notice is published, a petition must be filed within 60 days after publication of notice on the NRC Web site 270 or within 60 days after the requestor receives actual notice of a pending application, but no more than [60] days after agency action on 268 C.f. Citizens Awareness Network, 59 F.3d at 294-95 ([I]f section 189(a) is to serve its intended purpose, surely it contemplates that parties in interest be afforded a meaningful opportunity to request a hearing before the Commission retroactively reinvents the terms of an extant license by voiding its implicit limitations on the licensee's conduct.).

269 10 C.F.R. § 2.309(b)(3).

270 When accessed, the URL indicated in § 2.309(b)(4), http://www.nrc.gov/public-involve/major-actions.html, indicates that the page has been moved to another URL, http://www.nrc.gov/about-nrc/regulatory/adjudicatory/hearing-license-applications.html.

88 (Page 112 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 90 of 131 the application.271 There has been no publication of notice on the Commissions website of a license amendment request or of commencement of a proceeding. Review of the website indicated in subsection (b)(4) indicates no posting regarding a hearing opportunity or pending license application with regard to Diablo Canyon. 272 The second clause of subsection (b)(4) sets a deadline of 60 days after petitioner receives actual notice of, or after agency action on, a pending application. PG&E has withdrawn its application, and therefore this subsection does not apply.273 The very purpose of pursuing a de facto license amendment rather than a proper license amendment proceeding appears to be to avoid giving the kind of notice presumed in the Commissions regulations. Where the event triggering the 60-day clock has not and presumably will not occur, this provision cannot provide a deadline for filing. FoE has received no actual notice of a pending application because, of course, no application has been filed.

For these reasons, the regulatory filing deadlines in § 2.309(b) do not apply to this action.

2. The Good Cause Provisions Of 10 C.F.R. § 2.309(c) Do Not Apply If a party seeking to intervene has missed the applicable deadline established in

§ 2.309(b), the Commission may entertain the petition upon a determination by the presiding officer that a participant has demonstrated good cause. Section 2.309(c)(1) provides:

271 10 C.F.R. § 2.309(b)(4).

272 As of July 25, 2014.

273 License Amendment Request 11-05 has been withdrawn pursuant to 10 C.F.R. § 2.107. This application has been terminated and therefore cannot serve as the basis for intervention.

89 (Page 113 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 91 of 131 (1) Determination by presiding officer. Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.274 Section 2.309(c) and its good cause standard are clearly premised upon a party having missed the deadlines set forth in subsection (b). This provision does not require FoE to establish good cause in order for this Petition to be entertained. By its very terms, subsection (c) provides that intervention petitions . . . filed after the deadline in paragraph (b) . . . will not be entertained

[unless] a participant has demonstrated good cause. In order for this provision to apply, a petitioner must have missed the applicable deadline in paragraph (b). For the reasons stated above, by its very terms paragraph (b) and the deadlines it provides do not apply. There is therefore no deadline in paragraph (b) for Petitioner to miss. Since no deadline has been missed, paragraph (c) does not apply. Petitioner is therefore not required to show good cause under paragraph (c).

3. Even If The Good Cause Provisions Of 10 C.F.R. § 2.309(c) Did Apply, This Petition Meets That Standard Even if the Commission determines that this Petition has failed to meet the applicable deadline under § 2.309(b), FoE has satisfied each of the three elements necessary to show good 274 10 C.F.R. § 2.309(c) (emphasis added).

90 (Page 114 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 92 of 131 cause based on the recent AP story on August 25, 2014 disclosing Dr. Pecks Differing Professional Opinion. 275 FoE filed this Petition promptly thereafterwithout a doubt in a timely fashion after the story.276 FoE has established that the information upon which this Petition is based was not previously available and that this Petition was filed soon after the information was made available, thus satisfying the first and third elements of the good cause test.

The second element requires that the subsequent information be materially different from information previously available.277 Dr. Pecks DPO, which sets forth 42 pages of previously unavailable information, arguments, and sources, satisfies this element. The document exhaustively compiles the applicable regulatory framework, chronology of events, and summary of NRCs and PG&Es relevant actions, and, based on that information, sets forth arguments that reflect the unique position of Dr. Peck as Diablo Canyons Senior Resident Inspector during the relevant time period. Together, the assertions and supporting sources made in the DPO provide a substantial basis for this Petition.

In January 2012, approximately a year and a half before the DPO was filed, Dr. Peck filed with the NRC a Non-Concurrence, in which he also expressed concern about the NRCs actions with regard to seismic issues at Diablo Canyon.278 Despite the similar subject matter, the DPO is more comprehensive and based on such different events that the DPO is materially 275 See 10 C.F.R. § 2.309(c)(1)(i).

276 See 10 C.F.R. § 2.309(c)(1)(iii).

277 See 10 C.F.R. § 2.309(c)(1)(ii).

278 NRC, Dr. Michael Peck, Non-Concurrence NCP-2012-001, ADAMS Accession No. ML120450843 (Jan. 26, 2012).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 93 of 131 different from the Non-Concurrence and other previously available information. The Non-Concurrence, which is six pages in length compared to the DPOs 42 pages, was filed before key events in these proceedings, including before the NRC implemented the Fukushima Task Forces recommendations for reevaluating seismic hazards;279 before the NRC concluded that Diablo Canyons existing design basis was sufficient to withstand an earthquake caused by the Shoreline Fault;280 and before PG&E withdrew License Amendment Request 11-05.281 The Non-Concurrence addressed none of these three actions, which (particularly the NRCs conclusion that the plants existing design basis is sufficient) constitute the heart of Dr. Pecks DPO.

Thus, even if the applicable deadline in § 2.309(b) did apply, Petitioner has established good cause for submitting this Petition past that deadline in accordance with § 2.309(c).

Accordingly, Petitioner has satisfied the timeliness requirements of § 2.309.

VIII. CONCLUSION The Atomic Energy Act requires a public adjudicatory hearing to consider the risks posed by the changes to Diablo Canyons licensing basis, which the Commission proposes to make and implement. For the foregoing reasons, Petitioner has shown that it has satisfied the requirements of 10 C.F.R. § 2.309 and that it should be granted a hearing on the contentions it raises. PG&E has failed to discharge its duty under Commission regulations and Diablo Canyons current 279 NRC Letter, 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, ADAMS Accession No. ML12053A340 (Mar. 12, 2012).

280 NRC Letter, Diablo Canyon Power Plant, Units Nos. 1 and 2 - NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML120730106 (Oct. 12, 2012).

281 PG&E Letter, Withdrawal of License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML12300A105 (Oct. 25, 2012).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 94 of 131 licensing basis to insure that the plant is operating with an adequate margin of seismic safety.

PG&E should be ordered to suspend operations at Diablo Canyon pending (1) conclusion of the process to amend Diablo Canyons operating license to provide a method to evaluate new seismic data, including the Shoreline Fault, and (2) a demonstration that Diablo Canyon is able to be safely shut down following the occurrence of potential earthquakes that could affect the plant, including an earthquake occurring on the Shoreline Fault.

Respectfully submitted,

/s/ Richard Ayres

/s/ Jessica Olson

/s/ John Bernetich Richard Ayres, Principal Jessica Olson, Senior Associate John Bernetich, Associate Attorney Ayres Law Group 1707 L St, NW, Suite 850 Washington, DC 20036 Tel: (202) 452-9200/Fax: (202) 872-7739 Email: ayresr@ayreslawgroup.com, olsonj@ayreslawgroup.com, bernetichj@ayreslawgroup.com Counsel for Friends of the Earth Date: August 26, 2014 93 (Page 117 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 95 of 131 CERTIFICATE OF SERVICE I, Jessica Olson, certify that a copy of the enclosed Petition to Intervene and Request for a Hearing and Notice of Appearance were served on each of the following by electronic mail on August 26, 2014:

U.S. Nuclear Regulatory Commission Chairman Allison M. Macfarlane Mail Stop O-16G4 Washington, DC 20555-0001 CHAIRMAN@nrc.gov U.S. Nuclear Regulatory Commission Commissioner Kristine Svinicki Mail Stop O-16G4 Washington, DC 20555-0001 CMRSVINICKI@nrc.gov U.S. Nuclear Regulatory Commission Commissioner William D. Magwood Mail Stop O-16G4 Washington, DC 20555-0001 CMRMAGWOOD@nrc.gov U.S. Nuclear Regulatory Commission Commissioner William C. Ostendorff Mail Stop O-16G4 Washington, DC 20555-0001 CMROSTENDORFF@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16C1 Washington, DC 20555-0001 OCAAMail.Resource@nrc.gov U.S. Nuclear Regulatory Commission Office of Secretary of the Commission Sixteenth Floor One White Flint North 11555 Rockville Pike Rockville, MD 20852 Attn: Rulemakings and Adjudications Staff 94 (Page 118 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 96 of 131 Washington, DC 20555-0001 hearingdocket@nrc.gov NRCExecSec@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O-15 D21 Washington, DC 20555-0001 mdoane@nrc.gov U.S. Nuclear Regulatory Commission Associate General Counsel for Hearings, Enforcement & Administration Washington, DC 20555-0001 OgcMailCenter.Resource@nrc.gov Pacific Gas & Electric Company Diablo Canyon Power Plant Edward D. Halpin Senior Vice President and Chief Nuclear Officer Mail Code 104/6 P.O. Box 56 Avila Beach, CA 93424 E1H8@pge.com

/s/ Jessica Olson Jessica Olson Date: August 26, 2014 95 (Page 119 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 97 of 131 EXHIBIT 2 Respondents Motion to Dismiss No. 14-1213 (D.C. Cir.)

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 98 of 131 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of )

) Docket Nos. 50-275 PACIFIC GAS & ELECTRIC COMPANY ) 50-323

)

(Diablo Canyon Power Plant) ) October 14, 2014 FRIENDS OF THE EARTHS REPLY TO NRC STAFFS AND PACIFIC GAS & ELECTRIC COMPANYS ANSWERS AND PROPOSED AMICUS CURIAE NUCLEAR ENERGY INSTITUTES BRIEF IN RESPONSE TO PETITION TO INTERVENE AND REQUEST FOR HEARING Richard E. Ayres Jessica L. Olson John H. Bernetich Ayres Law Group 1707 L. Street, NW, Suite 850 Washington, DC 20036 Counsel for Friends of the Earth (Page 121 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 99 of 131 I. INTRODUCTION Following the 2008 discovery of the Shoreline fault just hundreds of meters offshore from Diablo Canyon, PG&E had to choose one of two ways to deal with this new finding: either seek to amend the plants licensing basis to incorporate the Shoreline fault into the its seismic design basis, or retrofit the plant to withstand a postulated Shoreline earthquake, which was projected to cause greater ground motion and occur closer to the plant than any fault known to exist up to that point. Unsurprisingly, PG&E chose the former, and in October 2011, filed License Amendment Request 11-05 (LAR 11-05).

When PG&E became aware, however, that NRC intended to deny LAR 11-05on grounds that the amendment would be unacceptable from technical and regulatory perspectives1PG&E must have realized that the consequences of such a denial would be catastrophic. Were NRC to deny LAR 11-05, PG&E would have painted itself into a corner; having been denied its formal request to incorporate the Shoreline fault into its seismic design basis, the only option that would remain to PG&E would be an expensive retrofit. The company accordingly withdrew LAR 11-05 before the NRC Staff could grant or deny the license amendment request.

PG&E must have also known that were it to withdraw its license amendment request, it would have the option of seeking to accomplish, through informal channels and negotiations with the NRC Staff, precisely that which it had sought to accomplish through LAR 11-05and that is what PG&E did. A comparison of the relief sought in LAR 11-05 with the results achieved since that request was withdrawn demonstrates this point.

1 NRC draft document, Basis for DE Denial of Diablo Canyon 1&2 LAR 11-05, at 3, ADAMS Accession No. ML13354B992.

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• In LAR 11-05, PG&E had sought to make the Hosgri Evaluation the plants Safe Shutdown Earthquake; at NRCs invitation, PG&E accomplished precisely that.2

• In LAR 11-05, PG&E had sought to make the Hosgri Evaluation the bounding evaluation and the yardstick by which the predicted ground motion from the Shoreline fault would be measured; later actions accomplished precisely that.3

• In LAR 11-05, PG&E had sought to analyze the recently discovered Shoreline fault according to the methodologies and assumptions of the Long Term Seismic Plan (LTSP); now PG&E has accomplished precisely that by simply inserting new language into its FSARU.4 NRC Staff have negotiated these results without requiring PG&E to meet the regulatory requirements applicable to establishing and amending a plants seismic design basis.

Respondents raise a number of arguments to avoid the obviousthat under § 189(a)(1)(A) of the Atomic Energy Act and the regulations of the Nuclear Regulatory Commission, a change in the Seismic Design Basis of a nuclear power plant requires a license amendment, which requires an opportunity for a public hearing on the proposed change. The need for an amendment was recognized in 2009 by PG&E and the NRCs western office Staff, but the Commissions headquarters staff overruled them and gave PG&E permission to withdraw its proposed license amendment. Instead, the Staff commenced the de facto license amendment process of which FoE complained in its Petition, which has resulted so far in the Staffs surreptitiously slipping into the license changes that substituted the Hosgri Evaluation (HE) for the Double Design Earthquake in the original license as the seismic design basis and the Safe 2

See PG&E, Diablo Canyon Power Plant, Units 1 and 2, Final Safety Analysis Report Update, Rev. 21 (Sep. 2013), at 2.5-77 (hereinafter FSARU Rev. 21).

3 FSARU Rev. 21, at 2.5-66.

4 FSARU Rev. 21, at 2.5-80.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 101 of 131 Shutdown Earthquake. Revision 21 was subjected to no public review, and would not have come to public light but for offhand references in the case file for the internal review of and decision on Dr. Michael Pecks dissenting professional opinion (DPO) released on September 10, 2014.

This reference confirms the existence of the de facto licensing amendment process FoE has identified.

PG&E and the NRC Staff attempt to avoid the implications of these facts by claiming that PG&E withdrew its license amendment because it was overtaken by the Commissions post-Fukushima § 50.54(f) process. But the post-Fukushima process does not supplant the requirement that a license amendment is required to change the seismic design basis for the plant.

The Staff and PG&E also claim that the HE bounds the Shoreline and other newly understood faults near Diablo Canyon analyzed in the recently issued Central Coastal California Seismic Imaging Project Report5 (PG&E Seismic Report), even though the Shoreline fault is now shown to be closer to Diablo Canyon, stronger than previously known, and longer than the Hosgri fault had been assumed to be as recently as 2011. But they offer no straight-up comparison of the Hosgri fault with the other faults, using the same assumptions about ground motion; instead PG&E and the NRC Staff adjust the ground motion equations and other parameters on Shoreline to allow the bounding claim.

PG&E and the NRC Staff also urge FoE to avail itself of the § 2.206 process. But that process is designed for citizens who wish to initiate a proceeding to alter or amend an existing license, not for citizens to challenge a de facto license amendment proceeding initiated by the licensee and the Staff or ongoing license amendment proceedings.

5 See PG&E, Central Coastal California Seismic Imaging Project, http://www.pge.com/en/safety/systemworks/dcpp/seismicsafety/report.page (last accessed Oct. 1, 2014)

(hereinafter PG&E Seismic Report).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 102 of 131 For these reasons, the NRC has violated § 189a(a)(1)(A) of the Atomic Energy Act with respect to FSARU Revision 21. The Commission should convene an Atomic Safety and Licensing Board and direct it to grant FoEs Petition to Intervene and Request for a Hearing on licensing changes required as a result of discovery of the new seismic information described in PG&Es September 10, 2014 Seismic Report.

II. THE HOSGRI EVALUATION IS NOT PART OF DIABLO CANYONS SEISMIC DESIGN BASIS In maintaining that no de facto license amendment is occurring and that no license amendment is needed, both NRC Staff and PG&E rely heavily on the assertion that the Hosgri Evaluation (HE) is part of the current licensing basis.6 PG&E points to this assertion as proof that the plant is safe to continue operating and that no de facto license amendment has occurred.

But PG&Es statement that the HE is part of the current licensing basis has little consequence to this proceeding and is intended to distract the Commission from the central issuePG&Es failure to satisfy its regulatory obligations under General Design Criterion 2 in 10 C.F.R. Part 50, Appendix A and other applicable Commission regulations. Moreover, the document PG&E relies on to assert that the HE is the Safe Shutdown Earthquake (SSE) for Diablo Canyon Supplemental Safety Evaluation Report No. 7 (SSER 7)was issued in 1978, six years before the plant received its operating license.7 In any event, as a supplemental safety evaluation, SSER 7 is not part of the current licensing basis and was superseded by the original Final Safety Analysis Report, approved by the NRC in 1984, which states that the Double Design Earthquake (DDE) is the SSE for Diablo Canyon.

6 PG&E Answer, at 2-8; NRC Staff Answer, at 27.

7 NUREG-0675, Safety Evaluation Report Related to the Operation of Diablo Canyon Power Plant, Units 1 and 2, Supplement No. 7 (May 26, 1978) (hereinafter SSER 7).

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a. Regulatory Framework Since PG&E and NRC Staff make much of the fact that the Hosgri Evaluation is included in Diablo Canyons current licensing basis (CLB), a brief recitation of the regulatory framework applicable to seismic design is appropriate.

Diablo Canyons seismic design basis is set forth by three tiers of Commission regulations: the current licensing basis, the General Design Criteria, and the seismic design basis, each discussed in turn below.

i. Current Licensing Basis As defined by Commission regulations, the CLB is the set of NRC requirements applicable to a specific plant and a licensees written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis.8 The CLB consists of the following:

• NRC regulations contained in 10 CFR parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, 55, 70, 72, 73, 100 and appendices thereto;

• Commission orders;

• License conditions;

• Exemptions;

• Technical specifications;

• Plant-specific design basis information defined in 10 CFR 50.2 and documented in the most recent UFSAR (as required by 10 CFR 50.71);

8 10 C.F.R. § 54.3(a).

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• Licensee commitments remaining in effect that were made in docketed licensing correspondence (such as licensee responses to NRC bulletins, Licensee Event Reports, generic letters, and enforcement actions); and

• Licensee commitments documented in NRC safety evaluations.9 ii. General Design Criteria Each plant must meet each of 64 listed General Design Criteria. These General Design Criteria, which as part of 10 C.F.R. Part 50 are included in each plants CLB, establish minimum requirements for the principal design criteria for water-cooled nuclear power plants similar in design and location to plants for which construction permits have been issued by the Commission.10 General Design Criterion 2 sets forth [d]esign bases for protection against natural phenomena:

Structures, systems, and components important to safety shall be designed to withstand the effects of natural phenomena such as earthquakes, tornadoes, hurricanes, floods, tsunami, and seiches without loss of capability to perform their safety functions. The design bases for these structures, systems, and components shall reflect . . . [a]ppropriate consideration of the most severe of the natural phenomena that have been historically reported for the site and surrounding area, with sufficient margin for the limited accuracy, quantity, and period of time in which the historical data have been accumulated . . . .11 iii. Seismic Design Basis Design bases, which are a subset of a plants CLB, are used to demonstrate compliance with the General Design Criteria. Design bases are defined by regulation as:

that information which identifies the specific functions to be performed by a structure, system, or component of a facility, and the specific values or ranges of values chosen for controlling 9

10 C.F.R. § 54.3(a); NRC Inspection Manual, Ch. 0326, Operability Determinations & Functionality Assessments for Conditions Adverse to Quality or Safety, ADAMS Accession No. ML13274A578, at 2.

10 10 C.F.R. pt. 50, Appx A. The General Design Criteria are also considered to be generally applicable to other types of nuclear power units and are intended to provide guidance in establishing the principal design criteria for such other units. Id.

11 10 C.F.R. pt. 50, Appx A, at I.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 105 of 131 parameters as reference bounds for design. These values may be (1) restraints derived from generally accepted state of the art practices for achieving functional goals, or (2) requirements derived from analysis (based on calculation and/or experiments) of the effects of a postulated accident for which a structure, system, or component must meet its functional goals.12 Appendix A to 10 C.F.R. Part 100 sets forth the seismic design basis for nuclear power plants by requiring that each plant develop an operating basis earthquake (OBE) and safe shutdown earthquake.13

b. The Hosgri Evaluation Is Not Part Of The Plants Seismic Design Basis In their Answers, PG&E and the NRC Staff attempt to distract the Commission from the issues relevant to this de facto license amendment proceeding by focusing on the fact that the HE appears in some capacity in Diablo Canyons current licensing basis. These assertions have no bearing on whether a de facto license amendment has taken place and therefore should be disregarded. As made clear above, a nuclear power plants seismic design basis, which is part of the CLB, focuses on two postulated earthquakesthe operating basis earthquake and the safe shutdown earthquake.14 PG&E and the Staff point out that the HE has been part of Diablo 12 10 C.F.R. § 50.2.

13 See 10 C.F.R. pt. 100, Appx A, at III(c), (d).

14 PG&Es implicit argument that Diablo Canyon is not subject to the requirements of Appendix A to 10 C.F.R. Part 100 borders on the absurd and should be rejected wholesale. See PG&E Answer, at 24. The lengthy seismic and regulatory history of Diablo Canyon clearly indicates that for well over 30 years, both PG&E and the NRC Staff have conducted their regulatory dealings as if the safety requirements in Appendix A to Part 100 have applied to Diablo Canyon. See SSER 7, at 2-3 to 2-4 (The DDE was originally the equivalent of the event that was later formally defined as the safe shutdown earthquake in Appendix A to 10 CFR Part 100 . . . . The applicant still considers this to be the appropriate safe shutdown earthquake for this site as defined in Appendix A to 10 CFR Part 100.). PG&Es argument that Appendix A does not apply to Diablo Canyon is not only preposterous, given this long history, but would result in Diablo Canyons not being subject to any seismic design basis regulations at all, a result manifestly at odds with the Atomic Energy Acts safety-focused objective. See also PG&E, License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11312A166 (Oct. 20, 2011), at 1 (requesting NRC approval to designate the HE as Diablo Canyons SSE).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 106 of 131 Canyons CLB for some time.15 Indeed, in Revision 12 to the FSARU, issued in September 1998, PG&E noted that it had been requested by the NRC to evaluate the plants capability to withstand a postulated Richter Magnitude 7.5 earthquake centered along the Hosgri Fault, and presented results of this evaluation.16 But until Revision 21 to the FSARU, issued in September 2013, without notice to FoE or the public, the HE was not part of Diablo Canyons seismic design basis.17 This is evidenced by the narrowed scope of the HE analysis relative to the DDE/SSE analysis. Generally, as part of discharging its duties under General Design Criterion 2, a licensee is required to ensure that certain plant SSCs listed in Regulatory Guide 1.29, Seismic Design Classification, will remain functional following the SSE.18 In the case of the HE, however, the NRC Staff did not subject PG&E to this requirement. Instead, NRC allowed PG&E to analyze a more limited scope of SSCs, entirely divorced from the approved list in Regulatory Guide 1.29, to ensure they would remain functional following the HE. The reduced scope of the HE analysis is due to the fact that the HE was inserted into the CLB not as a change to the seismic design basis, but as a response to a request by NRC to conduct certain additional analysis. Neither the fact that NRC requested PG&E to perform additional analysis of the Hosgri fault, nor the fact that the results of this analysis appear in the FSARU, affect the plants seismic design basis.19 15 PG&E Answer, at 2-8; NRC Staff Answer, at 27.

16 PG&E, Diablo Canyon Power Plant, Units 1 and 2, Final Safety Analysis Report Update, Rev. 12 (Sep.

1998), at 2.5-58 (hereinafter FSARU Rev. 12).

17 A change to Diablo Canyons seismic design basis requires a license amendment. See infra Section III(b).

18 NRC, Regulatory Guide 1.29, Seismic Design Classification, Rev. 4 (March 2007), at 3 (implementing General Design Criterion 2 and providing a list of SSCs that must be designed to withstand the effects of the SSE and remain functional).

19 This point is further demonstrated by a guidance document issued by amicus curiae Nuclear Energy Institute (NEI) intended to assist licensees in determining compliance with the Commissions seismic design basis requirements. That guidance document provides that compliance with seismic design basis is determined in accordance with NRC Regulatory Guide 1.29the very guide that NRC declined to require 9

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 107 of 131 In any event, a statement by the NRC in SSER 7, which was issued before the plant received its operating license or submitted the plants original Final Safety Analysis Report, cannot serve as proof that the HE is part of the plants seismic design basis. Not every statement made in a safety evaluation is included within a plants CLBonly licensee commitments documented in NRC safety evaluations.20 The NRC Staffs statement that it considers the HE to be the SSE is not a licensee commitment and is therefore not part of Diablo Canyons CLB.21 The mere fact that a statement by the NRC appears in a SSER does not insert that statement into a plants CLB.

c. The Post-Fukushima Process Conducted Under 10 C.F.R. § 50.54(f) Does Not Supplant The Requirement That A Change To Diablo Canyons Seismic Design Basis Be Achieved Through A License Amendment PG&E, NRC Staff, and NEI attempt to sweep the de facto license amendment into the 10 C.F.R. § 50.54(f) regulatory process. But the post-Fukushima review is independent of PG&Es obligations under its license and cannot substitute for the licensing proceeding demanded by the Atomic Energy Act for the design basis changes effected by Revision 21 and any other changes to the license required as a result of the information in the PG&E Seismic Report. The § 50.54(f)

PG&E to follow in developing the HE. See NEI 97-04, Revised Appendix B, Guidance and Examples for Identifying 10 CFR 50.2 Design Bases, ADAMS Accession No. ML003771698.

20 10 C.F.R. § 54.3.

21 Moreover, this statement is in direct contradiction to PG&Es stated belief in SSER 7 that the DDE, not the HE, was the plants SSE:

[The DDE] was originally the equivalent of the event that was later formally defined as the safe shutdown earthquake in Appendix A to 10 CFR Part 100. The applicant calls it the safe shutdown earthquake following the original terminology. In previous supplements to the Safety Evaluation Report, we have called it the safe shutdown earthquake following the terminology of Appendix A to 10 CFR Part 100.

The applicant still considers this to be the appropriate safe shutdown earthquake for this site as defined in Appendix A to 10 CFR Part 100.

SSER 7, at 2-3 to 2-4 (emphasis added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 108 of 131 process is a generally applicable requirement for all U.S. nuclear power plants to review the seismic hazards present for each plant and determine whether licensing changes might be warranted based on that review.22 FoE does not assert that all plants engaged in § 50.54(f) process are undergoing de facto license amendments, as NEI suggests.23 Instead, FoE contends that NRC has de facto amended the license for Diablo Canyon through Revision 21 to the FSARU and continues to engage in a de facto license amendment proceeding based on the facts in this specific instance.

PG&E has a regulatory obligation to participate in the § 50.54(f) process and provide the NRC with the requested seismic hazard reevaluation, but this process cannot exempt PG&E from an obligation imposed by NRC regulations or its license. PG&E has been conducting, and continues to conduct, a seismic reevaluation since 2008, when the Shoreline fault was discovered. The fact that the NRC has asked all plants to reassess seismic hazards in light of the Fukushima Dai-Ichi Accident is no substitute for Diablo Canyons pre-existing licensing obligations. For the reasons described herein and in FoEs Petition to Intervene, incorporating the seismic risk presented by the Shoreline fault into the license requires a license amendment.

The Staff has improperly issued a de facto license amendment by approving FSARU Revision 21 and continues to conduct an ongoing de facto licensing proceeding with respect to any other license revisions, such as to the ground motion potential equations, required as a result of the additional information contained in the PG&E Seismic Report.

22 Letter from E. Leeds, 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, ADAMS Accession No. ML12053A340 (Mar. 12, 2012).

23 Nuclear Energy Institutes Motion for Leave to File Amicus Curiae Brief, at 2.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 109 of 131 III. ADDING THE HOSGRI EVALUATION TO DIABLO CANYONS SEISMIC DESIGN BASIS AS THE SAFE SHUTDOWN EARTHQUAKE WITHOUT A LICENSE AMENDMENT PROCEEDING VIOLATES § 189a OF THE ATOMIC ENERGY ACT In its Petition, FoE stated that the NRC was permitting PG&E to amend its license de facto through back channels and informal discussion, rather than through the license amendment process required by the Atomic Energy Act.24 On September 10, 2014, the Staff publicly disclosed for the first time the existence of a revision (Revision 21) to the Final Safety Analysis Report Update (FSARU) for Diablo Canyon that confirms the de facto license amendment process FoE has described.25 Staffs argument in its decision on Dr. Pecks DPO seems to have been that no license amendment was needed because the license has already been amended.26 But Revision 21 accomplishes what PG&E proposed to do in LAR 11-05to add the Hosgri Evaluation to the seismic design basis for the plant and to make the Hosgri Evaluation the SSE for Diablo Canyon.27 This kind of change cannot be made without a license amendment proceeding, including an opportunity for the public to participate as required by § 189a of the Atomic Energy Act.

a. FSARU Revision 21 Changes The Safe Shutdown Earthquake For Diablo Canyon From The DDE To The Hosgri Evaluation Without Demonstrating Compliance With 10 C.F.R. Part 50, Appendix A, General Design Criterion 2 or 10 C.F.R. Part 100, Appendix A The seismic design basis for Diablo Canyon is established in FSARU Sections 3.1, Conformance with General Design Criteria, and 3.2.1, Seismic Classification, in accordance with Regulatory Guide 1.70 Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants (LWR Edition). The Guide states:

24 Friends of the Earth, Petition to Intervene and Request for Hearing, at 6.

25 NRC, DPO Case File for DPO-2013-002, at 61, 62, 67, 68, and 72 (hereinafter DPO Case File).

26 DPO Case File at 66-68.

27 PG&E, License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11312A166 (Oct. 20, 2011).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 110 of 131 This section [of the FSAR] should identify those structures, systems, and components important to safety that are designed to withstand the effects of a Safe Shutdown Earthquake (see Section 2.5) and remain functional. These plant features are those necessary to ensure:

1. The integrity of the reactor coolant pressure boundary,

2. The capability to shut down the reactor and maintain it in a safe condition, or

3. The capability to prevent or mitigate the consequences of accidents that could result in potential offsite exposures comparable to the guideline exposures of 10 CFR Part 100.28 Revision 20 to the FSARU for Diablo Canyon describes the DDE and supporting safety analysis as satisfying the requirements of 10 C.F.R. Part 50, Appendix A, General Design Criterion 2 and thus is equivalent to the SSE described in 10 C.F.R. 100, Appendix A.29 To establish the DDE, PG&E committed to ensure that plant SSCs listed in Regulatory Guide 1.29 (Seismic Design Classification) would remain functional following a DDE/SSE event.30 As required by 10 C.F.R. § 50.55a, PG&E demonstrated that the combined accident and DDE/SSE loads did not exceed ASME Code acceptance limits for the reactor coolant pressure boundary.

Revision 21 (1) adds the Hosgri Evaluation to the seismic design basis, (2) makes it a Safe Shutdown Earthquake, and (3) adds the Shoreline fault zone as a lesser included case under the Hosgri evaluation,31 without making any of these required demonstrations.32 A Hosgri earthquake does not meet the requirements of 10 C.F.R. Part 50, General Design Criterion 2.

Because the HE was not part of the seismic design basis, PG&E did not include a safety evaluation of a Hosgri earthquake scenario in the FSARU, as required by 10 C.F.R. § 50.34 for 28 Regulatory Guide 1.70 Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants (LWR Edition), ADAMS Accession No. ML011340122 (Nov. 30, 1978).

29 FSARU Rev. 20, Section 2.5.

30 See also NRC, Regulatory Guide 1.26, Quality Group Classifications and Standards for Water-,

Steam-, and Radioactive-Waste-Containing Components of Nuclear Power Plants, ADAMS Accession No. ML070290283 (March 2007).

31 FSARU (Rev. 21), Section 2.5.3.9.3.

32 FSARU (Rev. 21) Section 2.5.5.9.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 111 of 131 seismic design bases. The Hosgri Evaluation was instead included in FSARU Section 3.7.6 as an answer to an NRC question during the licensing process. Moreover, PG&E did not ensure that SSCs listed in Regulatory Guide 1.29 would remain functional following a Hosgri earthquake.

The Hosgri Evaluation qualified equipment necessary to shut the plant down but did not take into account any possible accident loads, such as from a fire during the shut down process, as does the DDE.33

b. FSARU Revision 21 Requires A License Amendment Changes made to the FSARU for Diablo Canyon in Revision 21, such as (1) adding the Hosgri Evaluation to the seismic design bases in the FSARU, (2) asserting that it now qualifies as a Safe Shutdown Earthquake for Diablo Canyon,34 and (3) including activity on the Shoreline fault as a lesser included case under the Hosgri evaluation,35 cannot be made except through a license amendment. PG&Es responsibility for its failure to conduct even a 10 C.F.R. § 50.59 screen to determine whether a license amendment might be necessary is a separate issue, not to be confused with the question before the Commission here. The point here is that 10 C.F.R. § 50.59 requires a license amendment in certain circumstances in order to ensure that the safety analyses for the plant, the basis on which the plant is licensed, remain valid and up to date.36 Section 50.59 states, in relevant part:

A licensee shall obtain a license amendment pursuant to § 50.90 prior to implementing a proposed change, test, or experiment if the change, test, or experiment would:

33 FSARU (Rev. 20) Section 3.7.6.

34 10 C.F.R. Part 100, Appendix A, (c) defines the Safe Shutdown Earthquakesingularas the earthquake which produces the maximum vibratory ground motion for which certain structures, systems, and components are designed to remain functional. The regulation does not permit a plant to have two SSEs in its seismic design basis. For Diablo Canyon, the only SSE that meets the requirements of Appendix A to Part 100 and General Design Criterion 2 is the DDE.

35 FSARU Rev. 21, Section 2.5.3.9.3.

36 10 C.F.R. § 50.71(e).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 112 of 131 (ii) Result in more than a minimal increase in the likelihood of occurrence of a malfunction of a structure, system, or component (SSC) important to safety previously evaluated in the final safety analysis report (as updated); [or]

(viii) Result in a departure from a method of evaluation described in the FSAR (as updated) used in establishing the design bases or in the safety analyses.

Revision 21 triggers at least these two criteria of § 50.59(c)(2).

Section 50.34(b) requires the original FSAR to include a safety analysis demonstrating that the General Design Criterion 2 design basis is satisfied.37 PG&E made such a demonstration for all earthquake faults within 75 miles of the site known at the time, with the exception of the Hosgri fault. The safety analysis included development of a ground motion value, which PG&E asserted to be the design basis controlling parameter (0.4 g) to ascertain the stress Diablo Canyon would have to withstand following a DDE/SSE event. PG&E included in the FSAR, as required by § 50.34(b), a demonstration that the SSCs listed in Regulatory Guide 1.29 would meet the design basis requirements of GDC 2 and Part 100, Appendix A.

By PG&Es own admission the new seismic information, described in more detail infra in Section IV, shows that ground motion from not just the Hosgri fault, but from what is now known to be the Hosgri-Simeon, the Shoreline, Los Osos, and San Luis Bay faults, at Diablo Canyon could exceed the design basis controlling parameter, the DDE/SSE (0.4 g). This information requires PG&E to either (1) demonstrate that possible ground motion from this newly discovered seismic landscape is bounded by the DDE/SSE or (2) update the FSAR to alter the design bases to include a new SSE.

Had PG&E chosen option (1) and attempted to update the FSARU with the higher ground motion using the DDE/SSE as a benchmark, as the license requires, the seismic stress would 37 10 C.F.R. § 50.34(b).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 113 of 131 have exceeded ASME Code acceptance limits for the reactor coolant pressure boundary, major structures (such as the reactor containment and auxiliary building), and the established qualification limits for SSCs listed as important to safety (under Regulatory Guide 1.29). NRC acknowledged as much by recognizing that predicted ground motion from the Hosgri and Shoreline faults were likely to exceed those from the DDE.38 A change to the facility as described in the FSARU that results in exceeding the limits for seismic qualification requires NRC approval because of the increased likelihood of malfunction of SSCs important to safety during an earthquake.39 PG&E chose option (2): to update the FSAR to alter the seismic design basis and method of evaluation for the SSE, at the Staffs direction and with their approval, by making Revision 21 to the FSARU. Such a change requires a license amendment under 10 C.F.R. § 50.59(c)(2)(viii) because using the Hosgri Evaluation yields non-conservative results when compared to the DDE (the existing FSARU method).40 PG&E similarly proposed to make the Hosgri Evaluation the Safe Shutdown Earthquake in LAR 11-05 and the NRC Staff indicated their intent to deny the proposal because it would decrease the margin of safety to an unacceptable level.41 Revision 21 also fails to comply with 10 C.F.R. Part 50, Appendix A, General Design Criterion 2 and 10 C.F.R. Part 100, Appendix A (c), which requires the licensee to demonstrate 38 NRC Letter, Diablo Canyon Power Plant, Units Nos. 1 and 2 - NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML120730106 (Oct. 12, 2012), at 4 (The NRC recognizes that using the DDE as the basis of comparison will most likely result in the Shoreline fault and the Hosgri earthquake being reported as having greater ground motion than the SSE.).

39 NRC, Regulatory Guide 1.187, Guidance for Implementation of 10 C.F.R. 50.59, Changes Tests, and Experiments, ADAMS Accession No. ML003759710 (Nov. 2000). Regulatory Guide 1.187 endorsed NEI 96-07, Guidelines for 10 C.F.R. 50.59 Evaluations, ADAMS Accession No. ML003636043, as an acceptable method for implementation of 10 C.F.R. § 50.59 (hereinafter NEI 96-07).

40 See also NEI 96-07. PG&E admits that less conservative damping values and other assumptions (such as material strengths) were used in connection with the 1977 HE structural evaluation and excess (and unnecessary) conservatism was eliminated. PG&Es Answer at 30. Whether or not they think the conservatism was excess, some of the margin of safety was eliminated.

41 NRC draft document, Basis for DE Denial of Diablo Canyon 1&2 LAR 11-05, at 3, ADAMS Accession No. ML13354B992.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 114 of 131 that certain SSCs will remain functional following the Safe Shutdown Earthquake. Such SSCs are those necessary to assure (1) the integrity of the reactor coolant pressure boundary, (2) the capability to shut down the reactor and maintain it in a safe condition, and (3) the SSCs needed to prevent or mitigate the consequences of accidents would remain functional given the maximum earthquake potential based on local geology.42 PG&E has not demonstrated the Hosgri Evaluation can meet each of these criteria.

c. The NRCs Approval Of Revision 21 Is A De Facto License Amendment Both the Staff and PG&E argue vigorously that the Staffs change to Diablos license is not a license amendment because no license amendment application was filed and no proceeding was initiated. But it is settled law that it is the substance of the NRC action that determines entitlement to a section 189(a) hearing, not the particular label the NRC chooses to assign.43 FSARU Revision 21 not only triggered at least two criteria of 10 C.F.R. § 50.59(c), but Revision 21 also granted PG&E additional operating authority, thus meeting the definition of a de facto license amendment set forth by the Commission. In Cleveland Electric Illuminating Co.,

the Commission stated that a de facto license amendment has occurred, and hearing rights are implicated, where the change granted the licensee greater operating authority or otherwise alter[ed] the original terms of the license.44 Revision 21 accomplishes both. It allows PG&E to operate Diablo Canyon with a reduced margin of safety by changing the seismic design basis for 42 See also NRC, Regulatory Guide 1.70 Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants (LWR Edition), ADAMS Accession No. ML011340122 (Nov. 30, 1978).

43 Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 295 (1st Cir. 1995) (emphasis added). Accord, Mass. v. NRC, 878 F.2d 1516, 1521 (1st Cir. 1989) (The fact that the NRC did not call its decision to restart a reinstatement of the license is not controlling); Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407, 416 (1942) ([T]he particular label placed upon [its action] by the Commission is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive.).

44 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant), CLI-96-13, 44 NRC 315, 326-27 (1996)

(footnotes omitted).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 115 of 131 the plant and effectively exempting the Shoreline fault, a fault located with 600 meters of the plant, from meeting General Design Criterion 2 and Part 100, Appendix A (Safe Shutdown) requirements to which the plant was licensed. Thus, by the standard set forth by the Commission in Perry, Revision 21 is a de facto license amendment.

In short, the Staff is in the midst of doing through a de facto license amendment proceeding what PG&E initially proposed: for example, to change the license so that, in dealing with new seismic data, the company may choose the less conservative of the Hosgri Evaluation analytical framework or the DDE analytical framework, rather than having to demonstrate the plants safety using both postulated earthquake evaluations. In the Staffs disposition of Dr.

Pecks DPO, which was released for the first time in September 2014,45 the Staff revealed that a part of the license had already been amended by Revision 21, which inserted the Hosgri Evaluation methodology into Diablo Canyons seismic design basis. Thus, Revision 21, a de facto license amendment standing on its own, clearly indicates that the larger de facto license amendment proceeding detailed in Petitioner initial filing is underway and continues. It began when PG&E and the NRC Staff in positions closest to the plant recognized that to apply the Hosgri Evaluation to the newly discovered Shoreline fault, it would be necessary to amend the existing license. PG&E, with the encouragement of the NRC Staff, decided to file a license amendment (LAR 11-05) with the Commission. But the Commission staff internally expressed doubts about designating the Hosgri Evaluation as a Safe Shutdown Earthquake and signaled to PG&E that the Staff planned to deny the amendment request.46 Relying on the Fukushima § 50.54(f) process as pretext, PG&E subsequently withdrew its license amendment proposal.

Instead, the Staff amended the license de facto through Revision 21 and other documents, 45 DPO Case File at 61.

46 NRC draft document, Basis for DE Denial of Diablo Canyon 1&2 LAR 11-05, at 3, ADAMS Accession No. ML13354B992.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 116 of 131 without the opportunity for public participation called for in AEA § 189a(a)(1)(A).47 This de facto proceeding continues today.48 IV. THE HOSGRI EVALUATION CANNOT BOUND THE SHORELINE AND OTHER FAULTS BECAUSE THAT EVALUATION IS SPECIFIC TO THE HOSGRI FAULT Revision 21 to the FSARU is evidence that the NRC has issued at least one de facto license amendment in the ongoing de facto amendment proceeding to address new seismic information about the area around Diablo Canyon. PG&Es justification for its claim that the Hosgri analysis bounds the Shoreline fault evidences another de facto amendment in the works. As noted in passing in PG&Es Answer, the company released a new analysis reporting on its seismic studies, the PG&E Seismic Report, on September 10, 2014.49 The PG&E Seismic Report describe significant new geophysical data gathered for faults near Diablo Canyon including the Hosgri, Shoreline, San Simeon, San Luis Bay, and Los Osos faults, and concludes that many of these faults are capable of producing much greater earthquakes than previously thought.

PG&E contends in its Seismic Report, as they do in their Answer, that even given this new information, the ground motions predicted for the plant are bounded by the 1977 Hosgri spectrum and 1991 LTSP response spectra,50,51 and therefore require no changes in the SSCs in 47 The critical difference between LAR 11-05 and Revision 21 is that the public was excluded from the process in the latter. Indeed, if it had not been for the release of Dr. Pecks DPO and the subsequent Staff disposition, the public would still be entirely unaware of changes made in the way the seismic safety of this nuclear power plant is being determined.

48 As part of the Fukushima § 50.54(f) process, PG&E is required to provide NRC with a seismic hazard evaluation no later than March 2015. See NRC Letter, Diablo Canyon Power Plant, Units Nos. 1 and 2

- NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML120730106 (Oct. 12, 2012), encl. 1, and 5-7. FoE expects that the conclusions in this evaluation will constitute further de facto amendments to Diablo Canyons license in addition to the de facto license amendment already effected by the issuance of Revision 21 to the plants FSARU.

49 PG&E Answer, at 11.

50 PG&E Seismic Report, Ch. 13 at 20.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 117 of 131 order to withstand the newly-discovered potential earthquakes. This claim is in error for two reasons: (1) the PG&E Seismic Report describes substantially more seismic capability than previously identified during the licensing of Diablo Canyon; and (2) PG&Es reassurances about the potential ground motion at Diablo associated with these findings are dependent upon the substitution of new, entirely different assumptions for those used in either the DDE or the Hosgri Evaluation.

First, as the PG&E Seismic Report shows, the company had an incomplete picture of the seismic potential in the area around Diablo Canyon in 1977. The Shoreline fault, which was then unknown, is now known to connect to the Hosgri fault in such a way that a rupture on one fault could trigger a rupture on the other. The two faults together are 145 km in length, far longer than the 110 km the Hosgri fault was previously thought to be. In 1977, the San Simeon fault was not known to connect to the Hosgri fault; PG&Es Seismic Report now describes the two faults as structurally connected. During the original DDE analysis, PG&E presumed there was no connection between the San Simeon and Hosgri faults and that joint rupture was not possible.52 PG&Es Seismic Report now says these faults are so interconnected that they are assumed to rupture together. We now know a great deal more about the potential for seismic activity in the area of Diablo Canyon, particularly that the known faults are longer than they first appeared to be and connected in ways that increase the greatest potential energy that could be released along the faults.

Second, in light of the different ground motion prediction equations used in the Hosgri analysis and in the PG&E Seismic Report, the conclusions of the two are incommensurable. To 51 To the extent PG&E might argue that FSARU Revision 21 now includes the Shoreline Fault Zone as a lesser included case under the Hosgri Evaluation, the PG&E Seismic Report shows this assertion to be baseless.

52 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant (Units 1 and 2)), LBP-79-26, 10 NRC 453, 472-73 (1979).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 118 of 131 determine the amount of ground motion caused by the energy released in the rupture of a particular fault that will reach Diablo, NRC uses certain assumptions called ground motion prediction equations to arrive at the ground motion response spectra.53 These spectra predict how much of the energy from an earthquake, and which frequencies of vibration, will be attenuated as they travel from the fault to Diablo, and therefore, how much of the seismic energy will reach the plant structure. The Double Design Earthquake applies one specification of ground motion spectra to arrive at the conclusion that such an earthquake at a specified distance could produce 0.4 g of ground motion at the plant.

To evaluate an earthquake on the Hosgri fault, however, NRC agreed to allow PG&E to apply a different set of ground motion potential equations, which are site-specific to Diablo Canyon (1977 HE spectrum).54 The analysis in chapter 13 of PG&Es Seismic Report applies yet another set of new and novel ground motion prediction equations from those used to evaluate either the DDE or the Hosgri earthquake. For this analysis, PG&E developed a new set of ground motion prediction equations that further differ from those used to arrive at the DDE, Hosgri, and LTSP ground motion prediction equations.

The new ground motion prediction equations used by PG&E to justify their conclusion that the Hosgri Evaluation is the bounding analysis for all the new seismic data will require a license amendment. The FSARU provides ground motion prediction equations used to bound DDE (0.4 g) and Hosgri (0.75 g) events.55 Section 2.5.3.10 (and References 12 and 24) of the 53 NRC Standard Review Plan 2.5.2.6 Ground Motion Response Spectra; Reg. Guide 1.60 Design Response Spectra for Seismic Design of Nuclear Power Plants.

54 See FSARU Section 2.5.3.10.4 (Rev. 21) ([T]he 1991 LTSP ground motion response spectra does not replace or modify the DE, DDE, or 1977 Hosgri response spectra described above.)

55 NRC Standard Review Plan 2.5.2.6 Ground Motion Response Spectra; Reg. Guide 1.60 Design Response Spectra for Seismic Design of Nuclear Power Plants incorporated into the Final Safety Analysis Report as Updated for Diablo Canyon, Rev. 21, section 2.5.3.10; Pacific Gas & Electric Co.

(Diablo Canyon Nuclear Power Plant, Unit 1 & 2); Atomic Safety and Licensing Appeal Board, 13 NRC 21 (Page 141 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 119 of 131 FSARU describes these ground motion response spectra. PG&E used neither the DDE nor the Hosgri ground motion prediction equations to calculate the ground motion potential of the new seismic data.

The ground motion prediction equations used to arrive at the DDE of 0.4 g are, and were at the time they were used, peer-reviewed, scientifically accepted, NRC-approved assumptions that were in the FSARU and part of the seismic design basis. In response to NRC questions about how Diablo Canyon would respond to ground motion produced during a Hosgri event, the NRC reviewed and approved a revised set of ground motion potential equations that produced the 0.75 g value for predicted ground motion at the plant. FSARU section 2.5.3.10.3 incorporates NRC Supplement No. 5 to the Safety Evaluation Report (Sept. 1976), which permitted PG&E to use a different set of ground motion potential equations for that fault.56 However, the ground motion prediction equations used in the 2014 PG&E Seismic Report are an entirely new set of assumptions, not found in either the seismic design basis or elsewhere in the FSARU.57 The predictions of the two different sets of equations are not comparable. Thus PG&E compares apples to oranges when it uses the PEER ground-motion prediction equations to argue that the 903, 936 (1981) (describing Staffs decision to apply different ground motion prediction equations to a Hosgri event than the equations required by Reg. Guide 1.60).

56 It bears noting that the ground motion prediction equations approved for the Hosgri evaluation were found by former Commissioners Bradford and Gilinsky to significantly reduce the safety margin built in to the DDE. See Opinion of Gilinsky and Bradford, 1982 WL 31523, at 5-6 (Every advantage was taken of slack in safety margins left in the pre-Hosgri analysis, both in developing the response spectrum and in its application.).

57 Indeed, PG&E was required by the California legislation ordering the seismic review to submit its analysis to an Independent Peer Review Panel (IPRP) formed to review the ongoing seismic studies at Diablo Canyon. It appears that PG&E ignored this requirement and simply released the Seismic Report without submitting the report to the IPRP. See Critics allege the Diablo Canyon seismic studies lacked proper review, New Times SLO (Oct. 8, 2014), at http://www.newtimesslo.com/news/11514/critics-allege-the-diablo-canyon-seismic-studies-lacked-proper-review/

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 120 of 131 ground motions possible from ruptures on the studied faults are bounded by the 1977 Hosgri and 1991 LTSP ground motion response spectrum.58 PG&E is required to evaluate these data under the requirements of NRC regulations and the Diablo Canyon license, not their own invented, non-peer reviewed, non-NRC approved methods. PG&Es repeated substitution of revised ground motion equations, each of which seems to systematically counterbalance the increased potential for seismic energy being reported in the fault system around Diablo, does not inspire confidence in the utilitys conclusions that the plant remains safe.

Thus PG&Es claim that the 1977 Hosgri earthquake scenario and LTSP bound the potential seismic energy released from the Shoreline, San Simeon, Los Osos, and San Luis Bay faults is entirely illogical. The Hosgri analysis is specific to that fault and, even if it could be applied to other faults, the only meaningful way to determine whether one bounded the other would be to compare the results using the same ground motion prediction equations used to analyze the Hosgri earthquake. Instead, PG&E has applied an entirely new set of assumptions in its 2014 Seismic Report, as it did in its 2011 report to the NRC.59 PG&E states that the analysis of ground motion potentials in the PG&E Seismic Report are based on a constantly evolving, entirely new set of ground motion potential equations from those used in either the 1977 Hosgri Evaluation or the 1991 LTSP.60 Thus, the result of the first calculation, done with a particular set of assumptions and data, cannot rationally be compared, let alone be asserted to somehow bound, the result of a second calculation performed with an entirely different set of assumptions and augmented data.

58 PG&E Seismic Report, Ch. 13 at 12.

59 Pacific Gas and Electric Company (PG&E), 2011. 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; www.pge.com/myhome/edusafety/ systemworks/dcpp/shorelinereport/.

60 PG&E Answer, at 30-31.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 121 of 131 The illogic of PG&Es position in light of the newly published findings is obvious on its face. PG&E states that the Shoreline and Hosgri faults are capable of rupturing together along their entire 145-kilometer length, a part of which is located only 600 meters from the plant; it is therefore difficult indeed to understand how the company could conclude that the Hosgri fault alone, at 100 kilometers in length and located five kilometers from the plant, is capable of a more powerful impact on Diablo Canyon. The only possible explanation for such an otherwise irrational claim lies in the ground motion prediction equations and perhaps other assumptions used in the two calculations - in the case of Hosgri, approved by the Commission; in the case of the new PG&E report, equations that have not been subjected to peer or public review, let alone approved for incorporation into the FSARU as part of the seismic design basis.

V. THE DIABLO CANYON DE FACTO LICENSE AMENDMENT IS NOT APPROPRIATELY CONSIDERED UNDER 10 C.F.R. § 2.206

a. The Current Proceeding is a De Facto License Amendment.

Both the Staff and PG&E erroneously argue that Petitioners claim should be filed under 10 C.F.R. § 2.206. That section provides that [a]ny person may file a request to institute a proceeding to modify, amend, or revoke a provision of an existing license.61 The Commission often takes the position that citizens who seek to institute a proceeding to enforce the provisions of a license should submit their requests through the § 2.206 process. Thus, the § 2.206 process has two hallmarks: (1) it provides a place for a citizen to initiate an effort to change or enforce an existing license provision; and (2) it focuses on enforcing or changing settled license provisions.

By contrast, FoEs Petition is filed with respect to licensing changes in a de facto license amendment proceeding that has already been initiated by the NRC Staff and PG&E. Petitioner asks for the process due in such a license amendment process under § 189(a)(1)(A) of the 61 10 C.F.R. § 2.206(a) (emphasis added).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 122 of 131 Atomic Energy Act, the opportunity for a public review of changes in the license to consider whether Diablo Canyon can withstand the maximum potential earthquake from the Shoreline Fault.

The fact that Petitioner cites § 50.59 as a guide to NRC policy regarding when an action, such as a change in the FSAR, would require a license amendment, does not convert its Petition into a request under § 2.206. Section 50.59 does provide guidance to licensees with respect to when a license amendment is necessary; but the principles enunciated therein are also a means to determine whether the NRC Staff has initiated or should initiate a license amendment.62 See LBP-13-07, In the Matter of Southern California Edison Co. (San Onofre Generating Station, Units 2 and 3) where the ASLB was asked by the Commission to determine whether a confirmatory action letter issued to the company constituted a de facto license amendment.

There, the ASLB noted that § 50.59 establishes standards that may guide this Board in resolving that issue.

Whether or not PG&E did a § 50.59 analysis on the proposed change, however, is irrelevant as to the nature of the Diablo Canyon proceeding now before the NRC. As both the NRC Staff and PG&E point out, the decision whether to do a § 50.59 review is entirely up to the licensee. While the criteria of § 50.59 may be used as an indicator of when an action constitutes a license amendment,63 whether the licensee has discharged its duty to undertake such an analysis is an enforcement matter with which this Petition is not concerned.

62 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-13-07, ASLBP No. 13-924-01-CAL-BD01 (May 13, 2013), slip op. at *23, vacated on other grounds by 2013 WL 6384599 (Dec. 5, 2013).

63 Id.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 123 of 131

b. The § 2.206 Petition Process Does Not Provide An Opportunity For Meaningful Relief.

In its Answer, the Staff avers that FOE is no stranger to the § 2.206 process. That is true, but its experience suggests only the futility of seeking redress through that process. On June 18, 2012, FoE and named members initiated a claim seeking enforcement action against the licensee for its failure to comply with 10 C.F.R. § 50.59 when replacing steam generators. This petition was referred to Executive Director for Operations (EDO) for consideration as a § 2.206 petition. Nearly two years and four months later, and nearly a year and four months after the plants owner announced that the plant would be closed permanently, the EDO has not responded to FoEs petition, although FoEs counsel continues to receive phone calls at roughly quarterly intervals from EDO staff assuring him that the Staff is busily working on a Proposed Directors Decision.

VI. CONCLUSION At the close of its Answer, PG&E makes a remarkable statement: that the regulations and guidance do not require that the . . . assumptions from the 30-year old analysis be combined with new seismic hazards information to determine the operability of Diablo Canyon.64 The assumptions referred to are evidently the duly adopted provisions of the Diablo Canyon license regarding the transmission of seismic ground motion to the plant, for in the next sentence the licensee claims that the safety of current operation has been established by showing that revised ground motions are less than the licensing basis ground motions.65 These sentences encapsulate the arguments made by the licensee and supported by the Staff in this litigation. The licensee and the Commission Staff are prepared to play fast and loose 64 PG&E Answer, at 30-31.

65 PG&E Answer, at 31.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 124 of 131 with the license granted by the NRC, under which PG&E is permitted to operate Diablo Canyon, and with the Atomic Energy Act. Inconvenient provisions of the license, which might require actions to strengthen the plant be taken in light of the increased power of the potential seismic activity reported in the PG&E Seismic Report, are instead to be ignored by amending the license in closed door conversations between the licensee and the Staff, rather than through the open public process required by the Atomic Energy Act.

Thus the fundamental question before the Commission in this case is whether it will insist that its Staff and the licensees adhere to the terms of the Commissions regulations, or whether the Commission will endorse the Staffs end run around the Atomic Energy Act and Commission rules. We urge that the Commission correct the Staffs error, and require a public license amendment proceeding on the implications of the new seismic findings on the safety of continued operation of the Diablo Canyon plant.

In the past the Commission has taken the position that licenses authorize only what is explicitly allowed, and the courts agree.66 The Commission should affirm that position by convening an ASLB and directing it to grant FoEs Petition to Intervene and Request for a Hearing in the ongoing de facto license amendment proceeding.

66 Citizens Awareness Network, Inc., v. NRC, 59 F.3d 284, 294 (1st Cir. 1995) (Regulated conduct which is neither delineated, nor reasonably encompassed within the delineated categories of authorized conduct, presumptively remains unlicensed.).

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 125 of 131 Respectfully submitted,

/s/ Richard Ayres

/s/ Jessica Olson

/s/ John Bernetich Richard Ayres Jessica Olson John Bernetich Ayres Law Group 1707 L Street, NW, Suite 850 Washington, DC 20036 Tel: (202) 452-9200 / Fax: (202) 872-7739 ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com bernetichj@ayreslawgroup.com Counsel for Friends of the Earth Date: October 14, 2014 28 (Page 148 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 126 of 131 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of )

) Docket Nos. 50-275 PACIFIC GAS & ELECTRIC COMPANY ) 50-323

)

(Diablo Canyon Power Plant) ) October 14, 2014 CERTIFICATE OF SERVICE I hereby certify that, on this date, the Friends of the Earths Reply to NRC Staffs and Pacific Gas & Electric Companys Answers and Proposed Amicus Curiae Nuclear Energy Institutes Brief in Response to Petition to Intervene and Request for Hearing was served via the Electronic Information Exchange system.

Signed (electronically) by Jessica Olson Jessica L. Olson Ayres Law Group 1707 L St., N.W., Suite 850 Washington, D.C. 20036 Phone: 202-452-9200 E-mail: olsonj@ayreslawgroup.com Counsel for Friends of the Earth 29 (Page 149 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 127 of 131 EXHIBIT 3 Respondents Motion to Dismiss No. 14-1213 (D.C. Cir.)

(Page 150 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 128 of 131 June 23, 2014 MEMORANDUM TO: Michael T. Markley, Chief Plant Licensing IV-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation FROM: Peter J. Bamford, Project Manager /RA/

Plant Licensing IV-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation

SUBJECT:

DIABLO CANYON POWER PLANT, UNITS 1 AND 2 - REVIEW OF FINAL SAFETY ANALYSIS REPORT UPDATE, REVISION 21 (TAC NOS. MF2945 AND MF2946)

This memorandum documents the in-office review of Revision 21 to the Final Safety Analysis Report (FSAR) Update for Diablo Canyon Power Plant (DCPP), Units 1 and 2, dated September 16, 2013 (not publicly available). The FSAR Update was submitted by Pacific Gas and Electric Company (PG&E, the licensee), in accordance with Title 10 of the Code of Federal Regulations (10 CFR) 50.71(e). PG&E follows the guidance of Nuclear Energy Institute (NEI) 98-03, Revision 1, Guidelines for Updating Final Safety Analysis Reports, and NEI 99-04, Revision 0, Guidelines for Managing NRC Commitment Changes.

The time requirements for FSAR submittals are stated in 10 CFR 50.71(e)(4). Revisions must be filed annually or 6 months after each refueling outage provided the interval between successive updates does not exceed 24 months. In its letter dated December 8, 1997, the licensee requested an exemption from the time requirements stated in 10 CFR 50.71(e)(4) for DCPP, Units 1 and 2. As discussed in the licensees exemption request, DCPP, Units 1 and 2, have a common FSAR. The rule would require FSAR updates within 6 months of each refueling outage, resulting in required FSAR updates every 12 months. As such, the licensee requested an exemption to allow the updates of the FSAR to be submitted within 6 months after each DCPP, Unit 2, refueling outage, but not to exceed 24 months from the last update. The Nuclear Regulatory Commission (NRC) staff approved the exemption in a letter dated March 12, 1998 (ADAMS Accession No. ML022400141). DCPP, Unit 2, completed its last refueling outage on March 23, 2013. The previous update of the DCPP FSAR, Revision 20, was submitted on November 16, 2011 (ADAMS Accession No. ML11332A181). Therefore, the September 16, 2013, submittal date for Revision 21 of the DCPP FSAR meets the requirements approved in the exemption since the submittal was within 6 months of the last DCPP, Unit 2, refueling outage and does not exceed 24 months from the last FSAR update.

As stated in the licensees letter dated September 16, 2013, Revision 21 of the DCPP FSAR contains changes to reflect the plant configuration as of March 23, 2013. This meets the requirement in 10 CFR 50.71(e)(4) which states that the revisions must reflect all changes up to a maximum of 6 months prior to the date of filing.

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USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 129 of 131 M. Markley Amendments Revision 21 covered changes to the FSAR Update during the period June 6, 2011, through September 16, 2013. Each of the license amendments issued during the period were reviewed for impacts on the FSAR Update and included Amendment Nos. 211/213 through 216/218 (for Units 1 and 2, respectively). The following three amendments were identified which resulted in impacts on the FSAR Update:

• Amendment Nos. 211/213, dated March 29, 2012 (ADAMS Accession No. ML120790338), modified FSAR Update Sections 8.1.4.3, Regulatory Guides, and 8.3.1.1.13.1, Diesel Generator Unit Description, to identify an exception to Revision 0 of Regulatory Guide 1.9, Application and Testing of Safety-Related Diesel Generators in Nuclear Power Plants;

• Amendment Nos. 212/214, dated October 31, 2012 (ADAMS Accession No. ML120300114), modified FSAR Update Sections 15.2.7.3, Results, and 15.2.16, References, to adopt a new analysis methodology for establishing the reduced power range neutron flux high setpoint for one inoperable main steam safety valve; and

• Amendment Nos. 214/216, dated January 9, 2013 (ADAMS Accession No. ML12345A379), modified FSAR Update Section 4.3.2.2, Power Distribution, to allow the use of the Best Estimate Analyzer for the Core Operations-Nuclear (BEACON) Power Distribution Monitoring System methodology, as described in Westinghouse Electric Company LLC's WCAP-12472-P-A, Addendum 1-A, BEACON Core Monitoring and Operation Support System, January 2000.

The FSAR Update changes for Amendment Nos. 211/213 were not apparent in Revision 21. The licensee had reorganized the FSAR Update, removing the numbered Sections 8.1.4.3 and 8.3.1.1.13.1. However, the licensee included the amendments language in Section 8.3.1.1.6.3.13, Safety Guide 9, March 1971 - Selection of Diesel Generator Set Capacity for Standby Power Supplies, and Section 8.3.1.1.6.1.13, Safety Guide 9, March 1971 - Selection of Diesel Generator Set Capacity for Standby Power Supplies. With the inclusion of this exception in these two sections, the NRC staff concludes that the FSAR Update is consistent with the updates stated in Amendment Nos. 211/213.

Inspection Reports The inspection reports (IR) for the appropriate period were reviewed. The first, IR 2012004, involved a non-cited violation of Appendix B, Criteria V, Instructions, Procedures, and Drawings, after PG&E failed to promptly evaluate the operability of plant structures, systems, and components (SSCs) after a newly discovered local fault line. The IR, dated February 14, 2012 (ADAMS Accession No. ML120450843), indicated a need to update the FSAR Update with the new seismic information. The second, IR 2011005, dated November 13, 2012 (ADAMS Accession No. ML12318A385), involved a Severity Level IV violation where the licensee failed to update the FSAR Update with information describing how plant SSCs meet 10 CFR Part 50, (Page 152 of Total)

USCA Case #14-1213 Document #1526482 Filed: 12/10/2014 Page 130 of 131 M. Markley Appendix A. In both cases, the NRC staff confirmed that Revision 21 of the FSAR Update incorporated the corrective actions to address both these IRs.

Licensee Event Reports The licensee event reports (LERs) for the appropriate period were reviewed. One LER documented events that listed corrective actions including updating the FSAR Update. This LER, dated June 3, 2013 (ADAMS Accession No. ML13155A238), documented an event in which the licensee identified an unanalyzed condition due to a nonconservative change in the FSAR Update Chapter 15, Accident Analyses, which would have resulted in a higher received radiological dose received by control room operators during an accident, but would not exceed General Design Criteria 19. The LER described the corrective actions taken to address the event and NRC staff confirmed that Revision 21 of the FSAR Update incorporated the corrective actions described in the LER.

The NRC staffs sampling review of the FSAR Update, Revision 21 included the applicable amendments, IRs, and LERs. The staff did not find any commitments to modify the FSAR Update in its review. Based on the review, the staff concludes that the FSAR Update, Revision 21 was submitted consistent with the requirements in 10 CFR 50.71(e).

Docket Nos. 50-275 and 50-323 (Page 153 of Total)

ML13155A238), documented an event in which the licensee identified an unanalyzed condition due to a nonconservative change in the FSAR Update Chapter 15, Accident Analyses, which would have resulted in a higher received radiological dose received by control room operators during an accident, but would not exceed General Design Criteria 19. The LER described the corrective actions taken to address the event and NRC staff confirmed that Revision 21 of the FSAR Update incorporated the corrective actions described in the LER.

The NRC staffs sampling review of the FSAR Update, Revision 21 included the applicable amendments, IRs, and LERs. The staff did not find any commitments to modify the FSAR Update in its review. Based on the review, the staff concludes that the FSAR Update, Revision 21 was submitted consistent with the requirements in 10 CFR 50.71(e).

Docket Nos. 50-275 and 50-323 DISTRIBUTION:

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