ML15105A614
| ML15105A614 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/09/2015 |
| From: | Post J, Reddick D, Repka D Pacific Gas & Electric Co, Winston & Strawn, LLP |
| To: | Office of Nuclear Material Safety and Safeguards, US Federal Judiciary, District Court for the District of Columbia |
| Creedon, Meghan | |
| References | |
| Download: ML15105A614 (18) | |
Text
USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 1 of 18 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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)
Petitioner, )
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- v. )
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION )
and the UNITED STATES OF AMERICA, ) No. 14-1213
)
Respondents, )
)
)
)
PACIFIC GAS AND ELECTRIC COMPANY, )
)
Intervenor )
________________________________________ )
INTERVENORS RESPONSE TO PETITIONERS MOTION TO SUPPLEMENT THE CERTIFIED INDEX OF THE RECORD Pursuant to Rule 27 of the Federal Rules of Appellate Procedure, Intervenor Pacific Gas and Electric Company (PG&E) hereby responds to the Petitioners Motion to Supplement the Certified Index of the Record, dated March 25, 2015 (Motion). PG&E opposes the Motion.
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 2 of 18 Petitioners central complaint in this matter is that the Nuclear Regulatory Commission (NRC) has approved Revision 21 to PG&Es Updated Final Safety Analysis Report (UFSAR) for the Diablo Canyon Power Plant (Diablo Canyon), and in doing so improperly granted a license amendment without offering a hearing opportunity. In the current Motion, Petitioner seeks to supplement the administrative record related to this approval with a document prepared by PG&E and recently released to the Petitioner by the NRC under the Freedom of Information Act. In fact, the document at issue was an internal PG&E document that was not part of the record of any NRC administrative proceeding.
There was no NRC approval and none was required. The Motion to add the document to the agencys certified index of the record should be denied.
BACKGROUND PG&E provided a concise summary of the seismic design and NRC licensing requirements for Diablo Canyon in its December 29, 2014, Response to Respondents Motion to Dismiss in this matter.1 PG&E also discussed the NRCs requirements for licensees to report to the NRC revisions to the UFSAR. These regulations are codified in 10 C.F.R. § 50.71(e).2 Under the regulations, UFSAR revisions must be submitted every two years, to include changes to the report to 1
Intervenors Response to Respondents Motion to Dismiss (Dec. 29, 2014) at 3-7.
2 Id. at 3-4.
2
USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 3 of 18 address new information and analyses developed during the reporting period, license amendments approved by the NRC during the reporting period, and plant or procedure changes made without NRC approval in accordance with the regulations during the period. The NRC does not approve UFSAR revisions; the requirement to update the licensee-controlled document is a licensees reporting obligation, not a license amendment.3 As described in the Declaration of Thomas R. Baldwin, Exhibit 1 to this response (Declaration), PG&E notified the NRC of Revision 21 by correspondence on the NRC licensing docket for Diablo Canyon on September 16, 2013. In accordance with prior correspondence from the NRC, PG&E incorporated new information into Revision 21 related to potential earthquakes in the region of Diablo Canyon, including the so-called Shoreline Fault earthquake scenario.4 While there was no administrative proceeding on Revision 21, the NRC has included the docketed correspondence (including Revision 21) in its index of the record in this matter.
In its Motion, Petitioner seeks to add to the index of the record a PG&E Change Request document associated with Revision 21 (Exhibit 1 to Petitioners Motion). As also described in the Declaration, the internal Change Request was 3
Id. at 4, 13-14.
4 Declaration at ¶ 10.
3
USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 4 of 18 prepared by PG&E prior to submitting Revision 21 to the NRC.5 PG&E reviews proposed changes to the UFSAR internally to, among other things, determine whether NRC approval is required (by applying NRC regulations in 10 C.F.R.
§ 50.59). In this case, the PG&E reviewers concluded that NRC approval was not required for the changes related to the Shoreline Fault evaluation.6 Accordingly, only a notification to the NRC and a copy of the revised report (with vertical change indications in the margins) were submitted to the NRC. PG&E did not submit the Change Request with the redline revision on the licensing docket.7 PG&E maintained the internal documentation related to the revision, including the Change Request, as a plant record.8 PG&Es records, and the conclusions therein, are subject to ongoing NRC inspection and enforcement.
An NRC reviewer documented his review of PG&Es Revision 21 on June 23, 2014.9 As discussed in PG&Es December 29, 2014, Response to Respondents Motion to Dismiss, this so-called Bamford memo was 5
Declaration at ¶¶ 7, 9.
6 Id. at ¶ 10.
7 Id. at ¶ 8.
8 Id. at ¶¶ 7, 9.
9 Memorandum, P. Bamford to M. Markley, Diablo Canyon Power Plant, Units 1 and 2 -
Review of Final Safety Analysis Report Update, Revision 21 (TAC NOS. MF2945 and MF2946 (June 23, 2014) (Bamford Memo) The Bamford Memo is Exhibit 3 to Respondents Motion to Dismiss (Dec. 10, 2014).
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 5 of 18 documentation of an NRC oversight function and was not an approval of Revision 21 or a final determination that no license amendment was required.10 ARGUMENT Petitioner acknowledges that the record in connection with a petition for review of agency action consists of the order involved, any findings or report on which [the order], is based, and pleadings, evidence, and other parts of the proceedings before the agency.11 The premise for Petitioners Motion is that the NRC was asked to review Revision 21, that the document in question (PG&Es Change Request) provides the context or support for the changes in Revision 21, and that the document played an important role in the agencys decision making process.12 Similarly, Petitioner asserts that the Change Request is part of the record that was before the agency at the time it made its decision to approve Revision 2113 and that [t]he agency clearly had the Change Request, and any similar such document explaining the changes proposed for the [UFSAR], before it 10 Intervenors Response to Respondents Motion to Dismiss (Dec. 29, 2014) at 15.
11 Motion at 5-6, citing Fed. R. App. P. 16(a).
12 Id. at 7.
13 Id. at 5.
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 6 of 18 at the time of the agencys decision making process.14 Petitioner therefore claims that the Change Request should be part of the record.15 The Petitioners characterizations of the document at issue and the NRC process are inaccurate. The Petitioner is simply presuming a key element of its merits argument. The document at issue was not submitted to the NRC in connection with Revision 21; PG&E did not request NRC approval of Revision 21; there was no NRC approval of Revision 21; and there was no administrative proceeding on Revision 21. The Change Request document is not part of any administrative record on any final agency decision.
As discussed above and in the Declaration, the Change Request document is not a request to the NRC for approval of Revision 21. Rather, it is a document prepared by PG&E, in accordance with PG&Es procedures, documenting PG&Es internal review of proposed revisions. The Change Request was not submitted to the NRC in connection with Revision 21.16 14 Id. The Change Request at issue relates to Section 2.5 of the safety report (related to Geology and Seismology). Petitioner also claims that it requested from the NRC under the Freedom of Information Act a similar Change Request document for Section 3.7 of the UFSAR (related to Seismic Design), but received no such document from the agency.
The fact that the NRC did not produce any such document for Section 3.7 is not surprising, given that the document is not required to be submitted to the NRC.
15 Id. at 6, citing Maritel, Inc. v. Collins, 422 F. Supp. 28 188 (D.D.C. 2006).
16 Declaration at ¶¶ 8, 9.
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 7 of 18 Petitioner offers no support for its claim that the Change Request document was submitted in order to discharge PG&Es duties under § 50.71(e).17 In fact, 10 C.F.R. § 50.71(e) does not require licensees to submit a Change Request document with UFSAR revisions. In accordance with the regulation, PG&E submitted Revision 21 to the NRC on the Diablo Canyon license docket.
The submittal included the complete revision in electronic format (on a compact disc), with a list of changes and revision indications.18 The submittal on the docket did not include the Change Request document.
Submitting a safety report revision under 10 C.F.R. § 50.71(e) also does not initiate an NRC approval of the substance of the revision. As the NRC has explained in adopting the regulation, a revision under Section 50.71(e) does not constitute a licensing action but is only intended to provide information.19 Further, [t]he material submitted [under Section 50.71(e)] may be reviewed by the NRC staff but will not be formally approved.20 Petitioners assertion that the 17 Motion at 5.
18 See 10 C.F.R. § 50.71(e)(1) and (5). The docketed correspondence, dated September 16, 2013, without the attached Revision 21, is Exhibit 1 to Respondents Response to Petitioners Motion to Supplement the Record (Apr. 7, 2015).
19 See Intervenors Response to Respondents Motion to Dismiss (Dec. 29, 2014) at 14, citing Periodic Updating of Final Safety Analysis Reports, Final Rule, 45 Fed. Reg.
30.614, 30,615 (May 9, 1980).
20 Id.
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 8 of 18 agency made a decision to approve Revision 21 21 is contradicted by the NRCs explanation of its own regulation.
The Bamford memo is cited by Petitioner as documenting an agency determination on the acceptability of Revision 21 i.e., the decision that the Change Request supposedly supported. But, on its face, the Bamford memo is only documentation of a review of whether the revision was timely submitted and included the information required by the regulation. The Bamford memo did not cite the Change Request, did not approve Revision 21, and did not evaluate whether any of the changes in Revision 21 necessitated a license amendment.
If the NRC had approved Revision 21, the NRC would have considered and relied only on information submitted on the official operating licensing docket.22 Stated another way, if the NRC makes a licensing decision based on information from the licensee, it must assure that the information is submitted on the docket. Here, the Change Request document was not submitted in connection with Revision 21 on the licensing docket. And it was never required by 21 Motion at 5.
22 See, e.g., NRC Office Instruction LIC-101, Rev. 4, License Amendment Review Procedures (May 25, 2012); Office of the Inspector General Semiannual Report to Congress (NUREG-1415, Vol. 17, No. 2) (Apr. 2005) (It is the responsibility of the NRC staff to ensure that all information provided by a licensee that is relied upon in making a license decision (e.g., license amendment, safety evaluation) be docketed (recorded) in the official agency public records system).
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 9 of 18 NRC to be submitted on the docket. It therefore was not part of any record of any decision (approval or otherwise) in connection with Revision 21.
This Court has stated that judicial review of agency action is normally confined to the administrative record.23 Exceptions to this rule include situations where an agency considered evidence that it failed to include in the record.24 But as explained above, the NRC had no occasion to consider the Change Request because it did not make any determinations regarding the acceptability of Revision 21 changes (including whether they were appropriately made without NRC approval pursuant to 10 C.F.R. § 50.59). Thus, this is not a case where the agency should have considered the document, and failed to include it in the record.
An NRC inspector apparently obtained the Change Request document through NRCs inspection and oversight program and produced the document in response to a Freedom of Information Act request. Nonetheless, the facts belie Petitioners claims that the Change Request document played an important role in the agencys decision making process.25 Although PG&Es update of the UFSAR is subject to NRC oversight, the agencys exercise of oversight functions 23 Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). PG&E does not concede that there is any agency action to review.
24 Id.
25 Motion at 5, 7. The fact that the agency produced the document in response to a Freedom of Information Act request also in no way demonstrates that the document played any role in a decision.
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 10 of 18 does not constitute a proceeding or involve an approval reviewable under the Hobbs Act.26 The Change Request is therefore not a record in any proceeding.
CONCLUSION The Petitioners Motion should be denied.
Respectfully submitted,
/s/ signed electronically by David A. Repka*
Darani M. Reddick WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 202-282-5726 drepka@winston.com dreddick@winston.com Jennifer K. Post PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street, B30A San Francisco, CA 94105 415-973-9809 jlkm@pge.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY
- Counsel of Record Dated: April 9, 2015 26 Intervenors Response to Respondents Motion to Dismiss (Dec. 29, 2014) at 15-16.
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USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 11 of 18 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
)
Petitioner, )
)
- v. )
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION )
and the UNITED STATES OF AMERICA, ) No. 14-1213
)
Respondents, )
)
)
)
PACIFIC GAS AND ELECTRIC COMPANY, )
)
Intervenor )
________________________________________ )
CERTIFICATE OF SERVICE I hereby certify that on this 9th day of April, 2015, copies of Intervenors Response to Petitioners Motion to Supplement the Certified Index of the Record in the captioned proceeding have been served by Electronic Case Filing (ECF).
USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 12 of 18 RICHARD AYRES ANDREW P. AVERBACH JESSICA OLSON Solicitor JOHN BERNETICH CHARLES E. MULLINS Ayres Law Group LLP Senior Attorney 1707 L Street, NW Office of the General Counsel Suite 850 United States Nuclear Regulatory Washington, DC 20036 Commission 202-452-9200 Washington, DC 20555-0001 ayresr@ayreslawgroup.com 301-415-1956 olsonj@ayreslawgroup.com andrew.averbach@nrc.gov bernetichj@ayreslawgroup.com charles.mullins@nrc.gov THEKLA HANSEN-YOUNG Environment & Natural Resources Div.
United States Department of Justice P.O. Box 7415 (Ben Franklin Station)
Washington, DC 20044 (202) 307-2710 thekla.hansen-young@usdoj.gov Respectfully submitted,
/s/ signed electronically by Darani M. Reddick WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 202-282-5842 dreddick@winston.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY Dated: April 9, 2015 DC:771457.2
USCA Case #14-1213 Document #1546596 Filed: 04/09/2015 Page 13 of 18 EXHIBIT 1 Intervenor PG&Es Response to Petitioners Motion to Supplement the Certified Index of the Record No. 14-1213 (D.C. Cir.)
Declaration of Thomas R. Baldwin
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