ML15068A357

Friends of the Earth'S Notice of Appeal of LBP-15-6

ML15068A357
Person / Time
Site:	Diablo Canyon
Issue date:	03/09/2015
From:	Ayres R, Bernetich J, Olson J Ayres Law Group, Friends of the Earth
To:	NRC/OCM
SECY RAS
References
50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01, LBP-15-6, RAS 27343
Download: ML15068A357 (27)

Text

March 9, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-275-LR

) 50-323-LR PACIFIC GAS & ELECTRIC COMPANY )

) ASLBP No. 10-900-01-LR-BD01 (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

FRIENDS OF THE EARTHS NOTICE OF APPEAL OF LBP-15-6 Pursuant to 10 C.F.R. § 2.311(c), Friends of the Earth (Friends) hereby submits, together with the attached Brief, this Notice of Appeal of the Atomic Safety and Licensing Boards February 11, 2015 Memorandum and Order (Denying Petition to Intervene and Petition for Waiver), LBP-15-6. Friends respectfully submits that the Atomic Safety and Licensing Board erred in determining that Friends had failed to meet the requirements for a waiver of certain Commission regulations, and therefore should have granted both the petition to intervene and the petition for waiver, and admitted Contentions 1 and 3.

Respectfully Submitted,

/s/ Richard E. Ayres Richard E. Ayres Jessica L. Olson John H. Bernetich AYRES LAW GROUP LLP 1707 L Street, NW, Suite 850 Washington, DC 20036 Tel: (202) 452-9200 Counsel for Friends of the Earth

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-275-LR

) 50-323-LR PACIFIC GAS & ELECTRIC COMPANY )

) ASLBP No. 10-900-01-LR-BD01 (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

BRIEF OF FRIENDS OF THE EARTH IN SUPPORT OF APPEAL OF LBP-15-6 Richard E. Ayres Jessica L. Olson John H. Bernetich AYRES LAW GROUP LLP 1707 L Street, NW, Suite 850 Washington, DC 20036 Tel: (202) 452-9200 ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com bernetichj@ayreslawgroup.com Counsel for Friends of the Earth March 9, 2015

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................................. 1 II. STATEMENT OF THE CASE ............................................................................................ 2 A. Proceedings Below ............................................................................................................. 2 B. Scope Of A Licensing Renewal Proceeding ..................................................................... 5 III. STANDARD OF REVIEW ................................................................................................. 6 IV. ARGUMENT ........................................................................................................................ 7 A. The Board Erred As A Matter Of Law In Denying Friends Petition For Waiver ..... 7

1. The Rules Strict Application Would Not Serve The Safety-Related Purposes For Which They Were Adopted. ................................................................................................... 8

2. Special Circumstances Exist That Were Not Considered In The Rulemaking Proceeding Leading To The Rules Sought To Be Waived. ..................................................................... 10

a. The Seismic History Of Diablo Canyon ..................................................................... 11

b. The September 2014 Central Coastal California Seismic Imaging Project Report ... 13

c. These Circumstances Were Not Considered During The License Renewal Rulemaking ....................................................................................................................... 14

3. Diablo Canyons Unique Seismic Circumstances Are Not Common To A Large Class Of Facilities........................................................................................................................... 15

4. No Other Avenues Exist For Friends To Raise Its Claims Regarding This Significant Safety Problem. ..................................................................................................................... 16

a. A Petition For Rulemaking Would Not Address Friends Claims ............................. 17

b. A Petition To Modify Diablo Canyons Licenses Pursuant To 10 C.F.R. § 2.206 Would Not Address Friends Claims ................................................................................ 17

c. Friends Petition Pending Before The Commission Seeking To Intervene In The De Facto License Amendment Proceeding Does Not Address The Contentions Advanced Here ................................................................................................................................... 19 B. The Commission Should Reverse The Boards Decision And Grant The Petition To Intervene .................................................................................................................................. 20 V. CONCLUSION .................................................................................................................... 21 ii

TABLE OF AUTHORITIES Administrative Decisions Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 62 NRC 551 (2005)....................................................................................................1, 8, 10, 16 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-6, 75 NRC 352 (2012) ...............................................................................................................................................8 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377 (2012) ...............................................................................................................................................7 Exelon Generating Co. (Limerick Generating Station, Units 1 and 2), CLI-13-07, 2013 WL 5872241 (Oct. 31, 2013) ................................................................................................................15 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427 (2011)...............................................................................................................................3 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257 (2010)...............................................................................................................................3 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-15-6 (Feb.

11, 2015) ................................................................................................................................ passim Statutes 42 U.S.C. § 2239(a)(1)(A) .........................................................................................................2, 21 Code of Federal Regulations 10 C.F.R. § 2.206 ...........................................................................................................................17 10 C.F.R. § 2.311 .............................................................................................................................7 10 C.F.R. § 2.335 .............................................................................................................................7 10 C.F.R. § 2.802 ...........................................................................................................................17 10 C.F.R. § 54.4 ...............................................................................................................................5 10 C.F.R. § 54.21 .............................................................................................................................6 10 C.F.R. § 54.29 .............................................................................................................................6 iii

Administrative Materials Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License Nos. DPR-80 and DPR-82 for an Additional 20-Year Period, 75 Fed.

Reg. 3,493 (Jan. 21, 2010) ...........................................................................................................2, 3 Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) ..8, 9, 10 Other Materials 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 ................................................................................................................................12 Diablo Canyon Nuclear Power Plant, Unit 1, Operating License, Condition 2(C)(7), ADAMS Accession No. ML053140349 .......................................................................................................11 NRC home page, http://www.nrc.gov..............................................................................................8 NRC, Additional Branch Chief Comments Related to NCP 2012-001 With Annotations, ADAMS Accession No. ML12284A066 .......................................................................................12 NRC Directive 8.11, Review Process for 10 CFR 2.206 Petitions, at 1, ADAMS Accession No. ML041770328 (Oct. 25, 2000) ......................................................................................................18 Official Transcript of Proceedings, Docket No. 50-275-LR and 50-323-LR, ASLBP No. 10-900-01-LR-BD01 (Jan. 21, 2015) .....................................................................................................1, 14 PG&E, Central Coastal California Seismic Imaging Project, http://www.pge.com/en/safety/

systemworks/dcpp/seismicsafety/report.page (last accessed March 9, 2015) ...............2, 12, 13, 14 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) ..........................................12 iv

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-275-LR

) 50-323-LR PACIFIC GAS & ELECTRIC COMPANY )

) ASLBP No. 10-900-01-LR-BD01 (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

FRIENDS OF THE EARTHS BRIEF IN SUPPORT OF APPEAL OF LBP-15-6 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.311(c), Friends of the Earth (Friends) hereby appeals the Memorandum and Order issued by the Atomic Safety and Licensing Board (Board) on February 11, 2015, denying Friends of the Earths Petition to Intervene and Petition for Waiver.1 Friends respectfully contends that the Board (1) misapplied the factors described by the Nuclear Regulatory Commission (Commission) in Millstone determining when a waiver is appropriate,2 (2) misconstrued the purpose for which the regulations sought to be waived were adopted, and (3) erroneously determined that other procedures existed through which Friends could raise its claims.

Contrary to the Boards decision, Friends has met the standard necessary to be entitled to waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a).3 Waiver is appropriate here because the 1

Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-15-6 (Feb. 11, 2015) 2 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551 (2005).

3 During oral argument before the Board on January 21, 2015, counsel for Friends formally requested waiver of 10 C.F.R. § 54.30 in addition to the regulations referenced in the waiver petition. Official 1

Commission has never considered in the context of license renewal the effect of the new seismic data revealed in a recent report by the licensee that throw considerable doubt on the safety of the plant.4 Denial of a public hearing under these unique circumstances would thwart the Atomic Energy Acts objective of providing the right to a public hearing before renewing an operator license.5 Because the Board erred in denying Friends waiver petition, the Commission should reverse the Boards order and grant Friends waiver petition and petition to intervene. In the alternative, the Commission should grant Friends waiver petition and direct the Board to consider anew the admissibility of Contentions 1 and 3 asserted in the petition to intervene.6 II. STATEMENT OF THE CASE A. Proceedings Below This proceeding involves Pacific Gas & Electric Companys (PG&E) application for renewal of operating licenses for Unit 1 and Unit 2 at Diablo Canyon (LRA). PG&Es licenses expire on November 2, 2024 and August 26, 2025, respectively.7 On January 21, 2010, the Commission published a notice accepting the LRA for docketing and providing an opportunity Transcript of Proceedings, Docket No. 50-275-LR and 50-323-LR, ASLBP No. 10-900-01-LR-BD01 (Jan. 21, 2015), at 740-41.

4 See PG&E, Central Coastal California Seismic Imaging Project, http://www.pge.com/en/safety/systemworks/dcpp/seismicsafety/report.page (last accessed Mar. 9, 2015)

(PG&E Seismic Report).

5 Section 189(a)(1)(A) of the Atomic Energy Act, 42 U.S.C. § 2239(a)(1)(A) provides that [i]n any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding. (Emphasis added).

6 Friends appeals the Boards ruling that Contentions 1 and 3 inadmissible but does not challenge the Boards ruling as to Contention 2.

7 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License Nos. DPR-80 and DPR-82 for an Additional 20-Year Period, 75 Fed. Reg. 3,493, 3,493 (Jan. 21, 2010).

2

for hearing.8 The San Luis Obispo Mothers for Peace (SLOMFP) filed a timely petition to intervene,9 which the Board granted.10 On October 10, 2014, Friends filed the petition to intervene and waiver petition in this proceeding.11 In the petition to intervene, Friends asserted three Contentions based on conclusions in the September 2014 Central Coastal California Seismic Imaging Project (PG&E Seismic Report), which demonstrated that faults surrounding Diablo Canyon were much larger and more capable than previously thought. First, Friends contended that, in light of the new and significant conclusions regarding the seismic landscape surrounding Diablo Canyon, PG&E had failed to establish that the plant can withstand and be safely shut down following an earthquake known to be possible.12 Second, Friends contended that PG&E has failed to establish that the effects of aging on the plants relay switches and snubbers will be adequately managed during the period of extended operation, in violation of 10 C.F.R. § 54.21(c).13 Third, Friends contended that PG&Es aging management plan was inadequate in light of significant and new changed seismic data in the PG&E Seismic Report.14 Friends asserted that each of these contentions was within the scope of a license renewal proceeding.

8 Id.

9 Request for Hearing and Petition to Intervene by SLOMFP (Mar. 22, 2010).

10 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257, 345 (2010). The Commission subsequently limited the admissible contentions. Pacific Gas & Elec.

Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 437, 452, 458 (2011).

11 Friends of the Earths Request for a Hearing and Petition to Intervene (Oct. 10, 2014) (Petition to Intervene); Friends of the Earths Petition for Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) As Applied to the Diablo Canyon License Renewal Proceeding (Oct. 10, 2014) (Petition for Waiver).

12 Petition to Intervene at 8.

13 Petition to Intervene at 21.

14 Petition to Intervene at 30.

3

Friends also filed a petition seeking waiver of certain regulations, assuming arguendo that the Board found its contentions outside the scope of the proceeding. In its waiver petition, Friends sought waiver of 10 C.F.R. § 54.4, 54.21, and 54.29(a), to the extent those regulations excluded the Contentions from the scope of a license renewal proceeding.15 The Nuclear Regulatory Commission (NRC) Staff and PG&E each filed an answer opposing both petitions.16 Each party asserted that the petition to intervene had not been timely submitted,17 that the Contentions were not admissible pursuant to 10 C.F.R. § 2.309(f)(1),18 and that Friends had not met the standard for a waiver of NRC regulations.19 The Board denied the petition to intervene and the petition for waiver. The Board found that Friends had standing to intervene and that the petitions were timely, but found that Friends Contentions were outside the scope of a license renewal proceeding and therefore inadmissible.20 As to the waiver petition, the Board determined that Friends had not satisfied two of the factors in the relevant four-factor test for determining whether a waiver is proper, and declined to address the remaining two factors.21 The Board first determined that Friends had failed to show that application of the regulations sought to be waived would not serve the purposes for which they were adopted.22 The Board found that the purpose of the regulations was efficiency-related, 15 Petition for Waiver at 1.

16 NRC Staffs Answer to Friends of the Earths Request for a Hearing and Petition to Intervene and Waiver Petition (Nov. 4, 2014) (NRC Staff Answer); Pacific Gas & Electric Companys Answer Opposing the Friends of the Earth Hearing Request and Petition for Waiver (Nov. 4, 2014) (PG&E Answer).

17 NRC Staff Answer at 13-22; PG&E Answer at 23-25.

18 NRC Staff Answer at 22-38; PG&E Answer at 10-23.

19 NRC Staff Answer at 38-50; PG&E Answer at 25-28.

20 LBP-15-6 at 4 (standing); id. at 7 (timeliness); id. at 1-2 (scope of Contentions).

21 LBP-15-6 at 14-16.

22 LBP-15-6 at 15.

4

and that waiver of the regulations would not further efficiency in agency decision making.

Second, the Board found that waiver was not necessary to reach a significant safety issue, as a petition for rulemaking pursuant to 10 C.F.R. § 2.802 and a petition to modify the plants license pursuant to 10 C.F.R. § 2.206 were other avenues in which Friends could assert its claims.23 B. Scope Of A Licensing Renewal Proceeding Section 54.4 sets forth the structures, systems, and components (SSCs) that are within the scope of a license renewal proceeding:

(a) Plant systems, structures, and components within the scope of this part are--

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

(2) All nonsafety-related systems, structures, and components whose failure could prevent satisfactory accomplishment of any of the [safety-related functions performed by SSCs identified in paragraph (a)(1)].

(3) All systems, structures, and components relied on in safety analyses or plant evaluations to perform a function that demonstrates compliance with the Commission's regulations for fire protection (10 CFR 50.48), environmental qualification (10 CFR 50.49), pressurized thermal shock (10 CFR 50.61),

anticipated transients without scram (10 CFR 50.62), and station blackout (10 CFR 50.63)

(b) The intended functions that these systems, structures, and components must be shown to fulfill in § 54.21 are those functions that are the bases for including them within the scope of license renewal as specified in paragraphs (a)(1)-(3) of this section.24 The required contents of a license renewal application are set by 10 C.F.R. § 54.21. Each application must contain an integrated plant assessment, which must identify a list of SSCs 23 LBP-15-6 at 16.

24 10 C.F.R. § 54.4.

5

that are subject to an aging management review.25 Generally, SSCs that are subject to an aging management review are passive SSCs that are not subject to replacement on a specified time schedule.26 For each SSC subject to aging management review, the applicant is required to demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation.27 The standards for issuance of a renewed license are contained in 10 C.F.R. § 54.29, which provides in relevant part:

A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:

(a) Actions have been identified and have been or will be taken with respect to the matters identified in paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plants CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:

(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1);

and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).28 III. STANDARD OF REVIEW An order by a presiding officer denying a petition to intervene is appealable as to whether the petition should have been granted.29 The Commission generally defer[s] to board contention 25 10 C.F.R. § 54.21(a)(1).

26 10 C.F.R. § 54.21(a)(1)(i)-(iii).

27 10 C.F.R. § 54.21(a)(3).

28 10 C.F.R. § 54.29.

6

admissibility rulings but will not defer if the Commission finds an error of law or abuse of discretion.30 IV. ARGUMENT A. The Board Erred As A Matter Of Law In Denying Friends Petition For Waiver Contrary to the Boards decision, Friends has met the standard necessary to be entitled to waiver of sections 54.4, 54.21, and 54.29(a) such that Contentions 1 and 3 are admissible.

Friends respectfully contends that, in ruling that Friends had not met the standard for a waiver, the Board misapplied the Millstone factors, misconstrued the purpose for which these regulations were adopted, and erroneously determined that other procedures existed through which Friends could raise its claims.

NRC regulations generally do not permit challenges to its regulations in adjudicatory proceedings.31 Section 2.335(b), however, permits a party to an adjudication to petition for a waiver of a rule or regulation upon a showing that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which [it] was adopted.32 To meet this standard, the applicant must attach an affidavit that, among other things, state[s] with particularity the special circumstances [claimed] to justify the waiver or exception requested.33 29 10 C.F.R. § 2.311(c).

30 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 379-80 (2012).

31 10 C.F.R. § 2.335(a).

32 10 C.F.R. § 2.335(b).

33 10 C.F.R. § 2.335(b); see also Declaration of Richard Ayres, Counsel for Friends of the Earth, Regarding Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding, Docket Nos. 50-275-LR, 50-323-LR (Oct. 10, 2014).

7

The Commission has established a four-factor test interpreting § 2.335(b).34 The waiver petitioner must demonstrate that (i) the rules strict application would not serve the purpose for which it was adopted; (ii) there are special circumstances that were not considered, either explicitly, or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility, rather than common to a large class of facilities; and (iv) a waiver of the rule is necessary to reach a significant safety problem.35 As demonstrated below, Friends has satisfied each factor.

1. The Rules Strict Application Would Not Serve The Safety-Related Purposes For Which They Were Adopted.

The purposes of the rules sought to be waived are safety-related, and waiver of the rules would further this objective. PG&E and NRC Staff would have the Commission believe that the reason for the rules is to promote efficiency. But this argument minimizes the objective of a license renewal proceeding, which is to ensure continued plant safety during the extended term of the license.36 Although these regulations undeniably take into account efficiency as one among many factors, the paramount goal of the rule is to promote safety. Any other finding would prioritize administrative efficiency over safety and contradict the Commissions commitment to protecting people and the environment.37 In 1995, the Commissions regulations regarding license renewals were substantially revised.38 The stated purpose of the revision was to identify and eliminate from license renewal proceedings certain analysis that would be duplicative of the licensees ongoing obligations to 34 Millstone, CLI-05-24, 62 NRC at 559-60.

35 Id. at 559-60; see also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-6, 75 NRC 352, 364-65 (2012).

36 Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,463 (May 8, 1995).

37 NRC home page, http://www.nrc.gov.

38 60 Fed. Reg. 22,461.

8

comply with Commission regulations and the plants current licensing basis.39 The rules paramount objective, however, remained unchanged: The final rule is intended to ensure that important systems, structures, and components will continue to perform their intended function in the period of extended operation.40 Accordingly, the Commission noted that the scope of a licensing renewal review must be broad enough to ensure continued plant safety throughout the extended term of the license, but narrow enough to ensure that the applicant was not required to conduct unnecessary and duplicative analysis to ensure continued safety.

The objective of a license renewal review is to determine whether the detrimental effects of aging, which could adversely affect the functionality of systems, structures, and components that the Commission determines require review for the period of extended operation, are adequately managed. The license renewal review is intended to identify any additional actions that will be needed to maintain the functionality of the systems, structures, and components in the period of extended operation.41 Accordingly, the Commissions new regulations took a broad view with regard to the SSCs that are within the scope of a license renewal proceeding.

The Board fundamentally misconstrued the rules objective when it determined that they were adopted to limit the scope of license renewal proceedings entirely to avoid consideration of issues related to seismic risk. Thus the Board prioritized ensuring maximum efficiency during the license renewal review. But this reading ignores absolutely the primary objective of license renewal review, which is and has been to ensure continued plant safety during the extended term of the license.42 39 Id. at 22,462-63.

40 Id. at 22,463.

41 Id. at 22,464.

42 Id. at 22,462-64.

9

In rejecting Friends argument on this point, the Board strayed beyond the Millstone test and considered factors outside of whether the rules strict application would not serve the purposes for which it was adopted.43 Specifically, the Board found that Friends claims are not limited to the proposed period of extended operation.44 The Boards reasoning on this point is entirely circular: because their contentions are not within the scope of a license renewal review, Friends is not entitled to waiver of regulations determining the scope of a license renewal review.

This is not the test laid out by the Commission and this reasoning bears no relation to this factor of the Millstone analysiswhether strict application of the regulations would not further the rules purpose. Because strict application of the regulations to exclude Friends Contentions would not serve the regulations safety-related purposes, Friends has satisfied this factor of the Millstone test.

2. Special Circumstances Exist That Were Not Considered In The Rulemaking Proceeding Leading To The Rules Sought To Be Waived.

Friends Petition plainly meets the special circumstances test here with respect to Contentions 1 and 3. The unprecedented circumstances surrounding the seismic history of Diablo Canyon were not considered in the Commissions license renewal rulemaking proceeding.45 The license renewal rule was based on the implicit assumption that a plants seismic design basis would be static, so that there was no need to revisit the seismic assumptions to determine whether alterations to the plants current licensing basis were necessary when considering a license renewal. But Diablo Canyons unique seismic history constitutes special circumstances that warrant an analysis at the license renewal stage of whether the plants SSCs, in their aged 43 Millstone, CLI-05-24, 62 NRC at 559-60 (internal quotation marks and alteration omitted)..

44 LBP 15-6 at 15.

45 The Board did not address this factor. See LBP-15-6 at 13-16.

10

condition, can continue to function properly under the potential seismic circumstances during the extended period of operation.46

a. The Seismic History Of Diablo Canyon The history of Diablo Canyon is unlike that of any other nuclear power plant in the United States. Again and again, what was thought to be a thorough understanding of the seismic landscape around Diablo Canyon was shown to be thoroughly incomplete and inaccurate, causing PG&E and NRC seismologists to repeatedly revise upward their estimations of seismic risk to the plant.

In 1971, during the plants construction, a previously unknown fault was discovered. This fault, later named the Hosgri fault, was capable of producing far greater ground motion than the plants 0.4 g Double Design Earthquake/Safe Shutdown Earthquake. As a result of that discovery, 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].47 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).

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 less conservative assumptions than in 46 PG&E concedes this point below. PG&E Answer at 27 (noting that of course Diablo Canyons seismic history and the possibility of discovery of new seismic information were not considered in th[e]

rulemaking).

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

11

the NRC standard method.48 The Commission also confirmed that the LTSP would not alter the current licensing basis or seismic qualification basis for Diablo Canyon.49 The Commission permitted PG&E to conduct its seismic analysis of the Hosgri fault using the limited, less conservative Hosgri Evaluation, rather than the comprehensive methodology used in the DDE and DE analyses.

Then in November 2008, the U.S. Geological Survey discovered a previously unknown fault 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 is capable of producing greater ground motion 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.50 The 2011 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.51 Scientists agreed that 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.

48 The Hosgri Evaluation is a seismic analysis within the LTSP.

49 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.

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

51 See PG&E Seismic Report, Ch. 13, at 19.

12

b. The September 2014 Central Coastal California Seismic Imaging Project Report In September 2014, PG&E issued another seismic report concluding that previous estimates of seismicity around Diablo Canyon vastly underrepresented the capability of faults near the plant, illustrating that the seismic risk to the plant was far greater than previously thought.52 PG&E scientists concluded that:

• The Hosgri and Shoreline faults are now assumed to intersect such that a linked rupture involving the full Hosgri fault and the full Shoreline fault is possible, making possible a magnitude 7.3 earthquake occurring within 600 meters of the plant.53 This conclusion abrogates PG&Es previous assessment that such a linked rupture was not possible.

• The Shoreline fault is nearly double the previously assumed length. It is now found to be 45 km long rather than the previously presumed 23 km.54 This revised estimation increases the potential magnitude of the earthquake from 6.5 to 6.7, resulting in a doubling of the energy output of the earthquake.55

• The step-over between the Hosgri fault and the San Simeon fault is small enough that the two faults are assumed to rupture together rather than separately.

Under previous PG&E analysis, a rupture on one fault was assumed not to be able to cause a rupture on another fault. This new finding revised the potential magnitude of a Hosgri earthquake from 7.1 to 7.3.56 52 See generally PG&E Seismic Report.

53 PG&E Seismic Report, Ch. 13, at 17-18.

54 PG&E Seismic Report, Technical Summary, at 6-7.

55 PG&E Seismic Report, Technical Summary, at 10.

56 PG&E Seismic Report, Technical Summary, at 10.

13

Despite these startling findings showing that PG&Es previous estimates of the power of the Hosgri fault were inaccurate and under-predicted the faults capability, PG&E concluded that the plant remained safe on the basis that the ground motions based on the new information remain bounded by its previous evaluation of ground motion that can be caused by the Hosgri fault.57 PG&E did explain how a previous evaluation of ground motion that had been shown to be inaccuratethe 1977 Hosgri Evaluationcould serve as a bounding evaluation for another evaluation that concluded the faults around Diablo Canyon are capable of greater earthquakes.

When PG&E asserted this position before the Board in this matter, Judge Trikouros questioned counsel sharply about how PG&E concluded that ground motion from the Hosgri fault would be greater than ground motion from the more seismically capable and closer Shoreline and other faults, asserting that it could be accounted for only if PG&E had applied different ground motion equations on Hosgri than on the others.58

c. These Circumstances Were Not Considered During The License Renewal Rulemaking Excluding from evaluation SSCs that are monitored on an ongoing basis could be defended as reasonable, if one assumes that no circumstances arise that could place additional stress on these SSCs, placing into doubt their ability to withstand an earthquake during the extended term of the license. Indeed, the rule assumes not only that the plants current licensing basis will be maintained in compliance with Commission regulations, but also that no other exceptions for outside-design-basis events will be added to the plants current licensing basis.

The case of Diablo Canyon demonstrates that these assumptions do not hold true in all instances. Where, as here, there exists an exception to the plants safe shutdown earthquake, the 57 PG&E Seismic Report, Executive Summary, at 1.

58 Official Transcript of Proceedings, Docket No. 50-275-LR and 50-323-LR, ASLBP No. 10-900-01-LR-BD01 (Jan. 21, 2015), at 771-72.

14

rules purpose of continued safety is not furthered by excluding from license renewal review certain SSCs that play an important part in ensuring that the plant is able to safely shut down following an earthquake. This is even more so where, as here, the exception to the plants licensing basisthe 1977 Hosgri evaluationhas been shown to rest on incomplete and inaccurate data regarding the seismic faults near Diablo Canyon. As evidenced by PG&Es own scientists in its recent Seismic Report, the seismic data forming the basis of the 1977 Hosgri evaluation is now known to have greatly underestimated the capability of faults around the plant.

3. Diablo Canyons Unique Seismic Circumstances Are Not Common To A Large Class Of Facilities.

Friends has established that the unique circumstances surrounding Diablo Canyons seismic history and seismic design basis satisfies the Millstone tests third factor.59 This factor, a showing of unique circumstances, reflects [the Commissions] view that, in general, challenges to regulations are best evaluated through generic means.60 Only where a particular challenge to a regulation rests on issues that are legitimately unique to the proceeding and do not imply broader concerns about the rules general viability or appropriateness would it make sense to resolve the matter through site-specific adjudication.61 The byzantine seismic and regulatory history surrounding Diablo Canyons design basis plainly satisfies the uniqueness factor. Unlike other cases where the Commission has found that the uniqueness factor has not been satisfied, Friends has offered substantial information that sets [Diablo Canyon] apart from other plants undergoing license renewal.62 Friends 59 The Board did not address this factor. See LBP-15-6 at 16 n. 69.

60 Exelon Generating Co. (Limerick Generating Station, Units 1 and 2), CLI-13-07, 2013 WL 5872241, at

• 4 (Oct. 31, 2013).

61 Id.

62 Id. at *8 (finding that uniqueness factor was not satisfied because petitioners argument that a new

[severe accident mitigation alternatives] analysis should be performed because a newer methodology is 15

asserts that the new seismic information casting doubt on Diablos safety during the licenses extended term could not be applied to any other plant. Neither PG&E nor NRC Staff contended below, nor could they, that the seismic design basis of any other U.S. plant has been so uncertain and complex as Diablo Canyons. Indeed, NRC Staff concedes that Diablo Canyons current licensing basis is unique and complex.63 Given that Diablo Canyon is the only currently operating plant on the West Coast, by far the most seismically active area of the U.S., such circumstances are unlikely to be repeated in the future. Friends has satisfied the uniqueness factor.

4. No Other Avenues Exist For Friends To Raise Its Claims Regarding This Significant Safety Problem.

Friends has no alterative avenues through which it can raise its claims relating to seismic safety at Diablo Canyon during the extended term of the license. The Board determined that there are other ways in which [Friends] might raise its concerns about the risk of earthquakes at Diablo Canyon, namely a petition for rulemaking pursuant to 10 C.F.R. § 2.802, a petition to modify Diablo Canyons licenses pursuant to 10 C.F.R. § 2.206, and a petition currently pending before the Commission to intervene in an ongoing de facto license amendment proceeding.64 But this conclusion rests on a misperception of Friends claims in this proceeding. Friends Contentions relate not merely to the risk of earthquakes at the plant broadly, but instead to the ability of Diablo Canyon to withstand earthquakes during the extended term of its licenses. This distinction matters because the two claims rest on different factual and legal bases. In none of the available could apply to two other plants now). Cf. Millstone, CLI-05-24, 62 NRC at 562 (finding that petitioners geographical proximity to a plant, changed demographics and roadway limitations did not satisfy uniqueness factor). Here, the asserted unique circumstanceschanged seismic information, complex seismic design basis, and Diablo Canyons geographical locationgo far beyond the circumstances offered in Limerick and Millstone.

63 NRC Staff Answer at 48.

64 LBP-15-6 at 16.

16

avenues described above may Friends advance its claims related to seismic safety during the plants extended term. Waiver is therefore necessary to reach this significant safety issue.65

a. A Petition For Rulemaking Would Not Address Friends Claims Friends seeks a waiver of NRC regulations to broaden the scope of this particular license renewal proceeding to permit consideration of seismic-related issues. A petition for rulemaking, to establish regulations of general applicability, is not an alternative to the limited waiver Friends seeks here.66 Friends does not seek to amend the Part 54 regulations describing the scope of a license renewal proceeding; rather, it seeks to preclude application of those regulations only in this instance, in light of the special circumstances described above. Indeed, Friends recognizes that the focus of the Part 54 regulations on ensuring safety while avoiding duplicative analysis is rational when applied to usual circumstances. Friends therefore does not challenge the Part 54 regulations as a general matter. Under these circumstances, however, strict application of the regulations to exclude Friends Contentions would elevate efficiency over safety.

b. A Petition To Modify Diablo Canyons Licenses Pursuant To 10 C.F.R.

§ 2.206 Would Not Address Friends Claims The Board found that Friends could assert its claims by submitting a petition under 10 C.F.R. § 2.206.67 Pursuant to § 2.206, any person may petition the Commission to institute a proceeding . . . to modify, suspend, or revoke a license.68 But under the NRCs policy, the process that § 2.206 purports to afford is not available to Petitioner under these circumstances.

65 The Board agreed with Friends that the issues raised in its Contentions were most certainly significant ones. LBP 15-6 at 16.

66 See 10 C.F.R. § 2.802(a) (Any interested person may petition the Commission to issue, amend or rescind any regulation. (emphasis added)). Any rule issued as a result of a petition for rulemaking pursuant to § 2.802, therefore, would be a regulation of general applicability.

67 LBP-15-6 at 16.

68 10 C.F.R. § 2.206(a).

17

According to the Commissions guidance on the § 2.206 process, requests that raise either licensing matters or health- and safety-related matters are excluded from the § 2.206 process, thereby precluding Friends from raising the safety-related licensing claims it advances here. The NRC guidance provides:

It is the policy of the U.S. Nuclear Regulatory Commission to provide members of the public with the means to request that the Commission take enforcement-related action (i.e., to modify, suspend, or revoke a license, or for other appropriate enforcement-related action, as distinguished from actions such as licensing or rulemaking). This policy is codified at [10 C.F.R. § 2.206]. The Commission may grant a request for action, in whole or in part, take other action that satisfies the concerns raised by the requester, or deny the request. Requests that raise health and safety and other concerns without requesting enforcement-related action will be reviewed by means other than the 10 CFR 2.206 process.69 The NRCs policy is clear that, for the agency to consider a request that raises health and safety concerns to be a petition under § 2.206, the request must meet each of three criteria, the first of which requires that [t]he petition contains a request for enforcement-related action such as issuing an order modifying, suspending, or revoking a license, issuing a notice of violation, with or without a proposed civil penalty, etc.70 Here, Friends does not request any of the relief enumerated in the criteria in the agencys § 2.206 Directive and Handbook, and the claims 69 NRC Directive 8.11, Review Process for 10 CFR 2.206 Petitions, at 1, ADAMS Accession No. ML041770328 (Oct. 25, 2000) (emphases added).

70 NRC Handbook 8.11. The other two criteria are:

• The facts that constitute the bases for taking the particular action are specified. The petitioner must provide some element of support beyond the bare assertion. The supporting facts must be credible and sufficient to warrant further inquiry[; and]

• There is no NRC proceeding available in which the petitioner is or could be a part and through which the petitioners concerns could be addressed. If there is a proceeding available, for example, if a petitioner raises an issue that he or she has raised or could raise in an ongoing licensing proceeding, the staff will inform the petitioner of the ongoing proceeding and will not treat the request under 10 CFR 2.206.

Id.

18

asserted in Friends Contentions cannot be considered under § 2.206. Moreover, Friends contentions relate directly to plant safety during the extended term of operation and, therefore, may be brought only in the course of a license renewal proceeding. For these reasons, a petition under § 2.206 is not an alternative avenue by which Petitioner could request the relief it requests here.

c. Friends Petition Pending Before The Commission Seeking To Intervene In The De Facto License Amendment Proceeding Does Not Address The Contentions Advanced Here The Board erroneously concluded that Friends petition to intervene in an ongoing de facto license amendment proceeding, currently pending before the Commission, is perhaps a way in which Friends can raise its claims.71 That petition and the petition to intervene in the license renewal proceeding, however, assert different contentions and rest on different factual and legal bases. The de facto license amendment petition, for example, asserts a violation of the Atomic Energy Act based on the Commissions failure to comply with license amendment procedures laid out in the Part 50 regulations, concerning initial licensing and license amendments. That petition challenges the process undertaken unlawfully to amend de facto Diablo Canyons current licensing basis.

The license renewal petition, in contrast, relates to the adequacy of the showing by PG&E that Diablo Canyon can withstand potential earthquakes during the extended term of the license.

That petition seeks to intervene in the license renewal proceeding to permit Friends to contend that PG&E is not entitled to a license renewal because it has not established that the plant can withstand an earthquake during the extended term of the plants license. Beyond the fact that the 71 LBP-15-6 at 16.

19

two petitions each relate to seismic issues at Diablo Canyon generally, the Board did not cite any similarities between the two petitions.

B. The Commission Should Reverse The Boards Decision And Grant The Petition To Intervene Because Friends has prima facie satisfied the requirements for a waiver, see supra, the Commission should grant Friends petition to intervene and admit Contentions 1 and 3. The Board denied the petition to intervene on grounds that the Contentions were outside the scope of a license renewal proceeding.72 Granting waiver in accordance with Friends waiver petition would reverse the Boards sole basis for denying the petition to intervene. Thus, the Commission should grant the petition to intervene and order further appropriate proceedings.73 72 LBP-15-6 at 1-2.

73 In the alternative, the Commission should grant the waiver petition and direct the Board to consider anew the admissibility of Friends Contentions.

20

V. CONCLUSION Waiver under these circumstances would further the Atomic Energy Acts objective of permitting public participation in licensing decisions.74 The Commission has never considered the effect of significant new seismic data in the 2014 PG&E Seismic Report on the appropriateness of a granting or rejecting a license renewal in this proceeding. The Commission therefore should grant Friends waiver petition and petition to intervene to permit public participation in this licensing decision. In the alternative, the Commission should grant Friends waiver petition and direct the Board to consider anew the admissibility of the Contentions asserted in the petition to intervene.

Respectfully submitted,

/s/ Richard Ayres Richard Ayres Jessica Olson John Bernetich AYRES LAW GROUP LLP 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 Dated: March 9, 2015 Counsel for Friends of the Earth 74 42 U.S.C. § 2239(a)(1)(A).

21

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-275-LR

) 50-323-LR PACIFIC GAS & ELECTRIC COMPANY )

) ASLBP No. 10-900-01-LR-BD01 (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that the foregoing Friends of the Earths Notice of Appeal of LBP-15-6, and Brief of Friends of the Earth in Support of Appeal of LBP-15-6, have been served through the Electronic Information Exchange (EIE) on the participants in the above-captioned proceeding, this 9th day of March, 2015.

Signed (electronically) by Jessica L. Olson Jessica L. Olson Ayres Law Group LLP 1707 L Street, NW, Suite 850 Washington, DC 20036 Tel: (202) 452-9200 olsonj@ayreslawgroup.com Counsel for Friends of the Earth Executed in Accord with 10 C.F.R. § 2.304(d) 22