ML15177A114
| ML15177A114 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/26/2015 |
| From: | Catherine Kanatas NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-275, 50-323, ASLBP 15-941-05-LA-BD01, RAS 27979 | |
| Download: ML15177A114 (13) | |
Text
June 26, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275 and 50-323
)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
NRC STAFF RESPONSE TO THE FRIENDS OF THE EARTHS SUPPLEMENTAL BRIEF INTRODUCTION Pursuant to the Atomic Safety and Licensing Boards (Boards) June 12, 2015 order,1 the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) files this response to the Friends of the Earths (FOE) Supplemental Brief in this proceeding.2 The Board directed the Staff and Pacific Gas & Electric Company (PG&E) to address whether any of the intervening events3 in FOEs Supplemental Brief are relevant to the question referred to the Board in CLI-15-14.4 For the reasons outlined below, the Staff respectfully submits that none of the intervening events in FOEs Supplemental Brief are within the scope of this proceeding or 1
See Order (Allowing Supplemental Briefing) (June 12, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15163A075) (June 12, 2015 Order). The Staff opposed FOEs Motion to Allow Supplemental Briefing. See NRC Staff Answer Opposing the Friends of the Earth Motion to Allow Supplemental Briefing (June 11, 2015) (ADAMS Accession No. ML15162A977).
2 See Petitioner Friends of the Earths Supplemental Brief (June 19, 2015) (ADAMS Accession No. ML15170A451) (FOEs Supplemental Brief).
3 These intervening events are (1) claims made before the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), (2) an NRC inspection report, (3) an NRC letter, and (4) testimony at a Congressional hearing. Petitioner [FOEs] Motion to Allow Supplemental Briefing at 4-5 (June 5, 2015)
(ADAMS Accession No. ML15156B521) (FOEs Motion to Allow Supplemental Briefing).
4 June 12, 2015 Order at 1. Id. at 2 (stating that supplemental briefs shall address only events after August 26, 2014 that allegedly pertain to the issues referred by the Commission in CLI-15-14).
pertain to the issues referred by the Commission in CLI-15-14.5 Therefore, the Board should not consider these actions in analyzing the question before it. In any event, none of the subsequent Staff actions discussed in FOEs Supplemental Brief constitute or confirm a de facto license amendment. Thus, the Board should deny FOE's Petition.
DISCUSSION I. The Scope of the Referral in CLI-15-14 Was Limited to Particular Arguments and Filings The Commission established the scope of this proceeding in CLI-15-14.6 In that order, the Commission directed the Board to determine whether FOEs August 2014 Petition to Intervene (Petition)7 and October 2014 Reply (Reply)8 identified an NRC activity that constituted a de facto license amendment9 of PG&Es existing licenses to operate Diablo Canyon Nuclear Power Plant (Diablo Canyon) such that FOE should have an opportunity to request a hearing pursuant to section 189a. of the Atomic Energy Act of 1954, as amended (AEA).10 The NRC activities identified in FOEs Petition and Reply that allegedly constituted de facto license amendments were:
5 Pacific Gas & Elec. Co. (Diablo Canyon Power Plant, Units 1 and 2), CLI-15-14, 81 NRC __, __
(May 21, 2015) (slip op. at 7) (ADAMS Accession No. ML15141A084).
6 In license amendment proceedings, the scope of the proceeding is established in the Federal Register Notice associated with the license amendment request. See Wisconsin Elec. Power Co. (Point Beach Nuclear Plat, Units 1 & 2), ALAB-739, 18 NRC 335, 339 (1983) (stating that a Board has only limited jurisdiction and may admit a partys issues for hearing only insofar as those issues are within the scope of matters outlined in the notice of hearing on the licensing action).
7 FOEs Petition is available at ADAMS Package Accession No. ML14254A223.
8 See 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 (Oct. 14, 2014) (Reply) (ADAMS Accession No. ML14287A788).
9 A de facto license amendment occurs when a completed agency action grants a licensee greater authority than that provided by its existing licenses or otherwise alters the terms of an existing license. Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 326-28 (1996) (Perry).
10 See Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 2, 7) (citing Perry and directing the Board to consider whether an NRC action identified in FOEs Petition or Reply constituted a de facto amendment of PG&Es existing licenses to operate Diablo Canyon). If so, the Board was directed to consider the threshold issue of whether FOE met the 10 C.F.R. § 2.309 requirements. Id. at 8.
(1) the NRC Staffs March 2012 request for information to all power plant licensees pursuant to 10 C.F.R. § 50.54(f) (March 2012 § 50.54(f) Letter);
(2) the NRC Staffs September 2012 Research Information Letter 12-01 (2012 RIL),
which documented the Staffs assessment of the new Shoreline Fault information; (3) the NRC Staffs October 2012 letter to PG&E that summarized the results of the 2012 assessment and placed the Staffs further review of new information in the context of the NRCs section 50.54(f) letter requesting seismic reevaluations by all power reactor licensees; (October 2012 Letter)11 and (4) the NRC Staffs supposed approval of PG&Es Updated Final Safety Analysis Report, Rev. 21 (UFSAR Rev. 21).12 Importantly, the Commission was aware when it made its referral that almost nine months had passed since FOE submitted its Petition. Likewise, the Commission was aware that Staff oversight activities had occurred between August 2014 and May 2015 and that further oversight activities were ongoing or planned for the future.13 Moreover, the Commission was aware that FOE filed a petition in the D.C. Circuit based on its UFSAR Rev. 21 de facto claims and that the D.C. Circuit ordered that proceeding held in abeyance on procedural grounds.14 With this knowledge, the Commission directed the Board to consider only the de facto claims in the pleadings already submitted,15 consider briefs from the Staff and PG&E 11 Id. at 6-7 (citing FOEs Petition at 14-18, 21-22, 32-33, 42). These documents are available at ADAMS Accession Nos. ML12053A340, ML121230035, and ML120730106, respectively.
12 Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 8) (summarizing FOEs claims that the Staff approved UFSAR Rev. 21 and that this constituted a de facto license amendment and was a confirmation of a de facto license amendment proceeding). UFSAR Rev. 21 is available at ADAMS Accession No. ML15098A461.
13 For example, the Commission was aware that the Staffs oversight related to the March 2012
§ 50.54(f) letters continued and that licensee submittals in response to the letter were being reviewed by Staff. See, e.g., SECY-15-0059, Seventh 6-Month Status Update on Response to Lessons Learned from Japans March 11, 2011, Great Tohoku Earthquake and Subsequent Tsunami (Apr. 9, 2015) (ADAMS Accession No. ML15069A540).
14 In fact, the NRC filed the motion seeking deferral. Respondents Motion to Defer Briefing Schedule, No. 14-12-13 (Feb. 26, 2015). See In the Matter of Pacific Gas & Electric Co., Docket Nos.
50-275, 50-323, Order No. 14-1213 (Apr. 13, 2015) (deferring consideration of the merits of FOEs UFSAR Rev. 21 claims pending the outcome of the administrative process at the NRC on FOEs Petition).
15 These pleadings included FOEs Petition, the Staffs and PG&Es answers to the Petition, the Nuclear Energy Institutes (NEI) amicus brief, and FOEs Reply. Diablo Canyon, CLI-15-14, 81 NRC at __
(slip op. at 7-8). Notably, the Commission did not refer any of the arguments or issues raised in the filings in the D.C. Circuit to the Board.
responding to the UFSAR Rev. 21 de facto claims raised in FOEs Reply, and rule on FOEs Petition within 140 days of May 21, 2015.16 The Boards June 2, 2015 Order scheduling oral argument repeated the limited scope of the matter referred and likewise noted that no additional briefing was contemplated.17 Importantly, the Commission did not refer to the Board any Staff actions taken after FOEs Petition and Reply were submitted or provide an opportunity for FOE to submit an additional brief on its UFSAR Rev. 21 claims. Such a limited referral is in line with past precedent18 and 10 C.F.R. § 2.309.19 II. FOEs Supplemental Brief Makes Arguments Beyond the Scope of This Proceeding Given the limited scope of the Commissions referral, FOEs Supplemental Brief effectively asks the Board to contravene the directive in CLI-15-14. Specifically, FOEs Supplemental Brief requests that the Board consider whether subsequent NRC actions that have occurred since its Petition was submitted are de facto license amendments.20 These subsequent actions are: (1) a May 13, 2015 NRC Letter to PG&E; (2) a December 2014 NRC Inspection Report; and (3) December 2014 testimony from Dr. Sam Blakeslee describing Staff oversight actions at Diablo Canyon.21 But the Commission did not refer these subsequent 16 See id.at 8-9.
17 See June 2, 2015 Order at 2-3. See also id. at 2 (providing Staff and PG&E an opportunity to submit a response to FOEs UFSAR Rev. 21 claims by June 15, 2015). The Staff and PG&E timely submitted these responses. See NRC Staff Answer to [FOE]s De Facto License Amendment Claims Related to PG&Es [UFSAR Rev. 21] (June 15, 2015) (ADAMS Accession No. ML15166A504) (Staffs June 15, 2015 Brief); Pacific Gas and Electric Companys Supplemental Brief Regarding UFSAR Revision 21 (June 15, 2015) (ADAMS Accession No. ML15166A463).
18 See, e.g., Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-28, 30 NRC 271, 276-77 (1989). In Seabrook, petitioners claimed that a Staff Confirmatory Action Letter (CAL) constituted a de facto suspension triggering a sec. 189a hearing opportunity. Id. at 275-6. In considering this claim, the Board only considered whether the CAL itself constituted a de facto suspension and not licensee submittals in response to a CAL or Staff inspection activities, or future hypothetical Staff approval). Id. at 276. See Seabrook, ALAB-940, 32 NRC 225 (1990) (affirming LBP-89-28).
19 See 10 C.F.R. § 2.309 (providing for a petition to intervene, answers to the petitions, and an opportunity to reply but no additional filings).
20 See FOEs Supplemental Brief at 1 (arguing that these events bear on the question before the Board and demonstrate that the Staff has taken action that grants greater operating authority). See also id. at 6 (claiming that the NRCs May 13, 2015 Letter enlarged the terms of Diablo Canyons licenses).
21 See FOEs Supplemental Brief at 5-6. 16-17, 18-20.
actions to the Board for its consideration or direct briefing on any of these subsequent Staff activities. Thus, if the Board were to consider whether these actions constituted de facto license amendments, the Board would impermissibly expand the scope of this proceeding.
Notably, FOE does not dispute this point.22 Instead, FOE argues that given the passage of time between the submission of its Petition and the Commissions referral, the Board must consider these actions to answer the question before it.23 But FOE is mistaken on both points.
The passage of time does not permit the Board to expand the scope of the Commissions referral.24 Moreover, the Board does not need to consider the subsequent actions or additional arguments about an alleged Staff approval of UFSAR Rev. 2125 to answer the question referred by the Commission.26 In fact, the Board should not consider these subsequent actions or additional UFSAR Rev. 21 arguments in ruling on FOEs Petition. Instead, the Board should consider the filings specified in CLI-15-1427 to determine whether the NRCs March 2012 § 50.54(f) Letter, the 2012 RIL, the October 2012 Letter, or the alleged Staff approval of UFSAR Rev. 21 constituted a de 22 In fact, FOE emphasizes that these subsequent actions have occurred in the time since it filed its Petition. See, e.g., FOEs Supplemental Brief at 1.
23 See FOEs Motion to Allow Supplemental Briefing at 4-5.
24 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 171 (1976) (stating that a Board cannot enlarge the jurisdiction conferred by the Commission).
25 Much of FOEs Supplemental Brief focuses on claims that the Staff allegedly approved UFSAR Rev. 21 and that this constitutes a de facto license amendment. These are claims that FOE has also raised in a Petition for Review before the D.C. Circuit. However, such supplemental briefing on this point is contrary to both the Commissions directive in CLI-15-14 and the Boards June 2, 2015 Order which only allowed PG&E and the Staff to submit a single brief responding to the UFSAR Rev. 21 claims raised in FOEs Reply. See supra at n. 15, 17.
26 See FOEs Motion to Allow Supplemental Briefing at 5 (arguing that such briefing is necessary).
27 These filings are: FOEs Petition, the Staff and PG&Es Answer to the Petition, NEIs amicus brief, FOEs Reply, and the Staff and PG&Es June 15, 2015 briefs responding to FOEs UFSAR Rev. 21 de facto claims. See Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 7-8).
facto license amendment under Perry.28 As indicated in CLI-15-14, the specified pleadings fully brief the issues raised in FOEs Petition and Reply and referred to the Board.29 III. FOEs De Facto Arguments Are Also Contrary to Perry and 10 C.F.R. § 2.309 At bottom, FOE argues that the Board must consider the subsequent actions newly identified in its Supplemental Brief and its additional arguments related to UFSAR Rev. 21 because they provide updated information that the Staff is conducting an ongoing de facto license amendment proceeding.30 However, this line of argument is contrary to both Perry and 10 C.F.R. § 2.309.
As the Staff has explained, the Perry de facto license amendment framework does not recognize ongoing de facto license amendment proceedings.31 Instead, Perry directs the presiding officer to analyze a completed Staff action and determine whether that completed action augmented the licensees operating authority or otherwise altered the terms of its license.32 Thus, the Perry analysis looks back at a finite and completed agency action; it does not involve looking forward or looking at a continuing series of interactions between the Staff and the licensee as the Staff conducts its oversight to confirm some ongoing license amendment process. For this reason, none of the subsequent Staff actions discussed in FOEs Supplemental Brief pertain to the issue before the Board (i.e., whether the already completed Staff actions raised in FOEs Petition and Reply constituted de facto license amendments).
28 If the Board questions the scope of the Commissions referral, it could certify the question to the Commission. 10 C.F.R. §§ 2.319(l), 2.323(f); Consumers Power Co. (Midland Plant, Units 1 and 2),
LBP-83-28, 17 NRC 987, 989 (1983).
29 Contrary to FOEs claim, the D.C. Circuits order did not effectively refer the issues and arguments raised in FOEs Petition for Review before the D. C. Circuit to the Board. See FOEs Motion to Allow Supplemental Briefing at 5-6. As noted, the Commission was aware of the D.C. Circuit litigation when it made its referral but did not refer those pleadings or arguments to this Board. Instead, the Commission directed the Board to rule on FOEs Petition based only on the briefs discussed in CLI-15-14.
30 See FOEs Motion to Allow Supplemental Briefing at 1 (arguing that additional briefing would aid the Board by including updated information necessary to determine whether the NRC Staff has de facto amended and continues to de facto amend the operating licenses for Diablo Canyon.).
31 See Staffs June 15, 2015 Brief at 6-8, 13. See Staff Answer to FOEs Petition at 25, 46.
32 Perry, CLI-93-13, 44 NRC at 327.
The only support FOE has offered for its assertion of an ongoing de facto license amendment proceeding is a citation to a vacated Board decision in a San Onofre Nuclear Generating Station (SONGS) proceeding.33 But as discussed in the Staffs June 15, 2015 Brief, the Commission explicitly held in CLI-15-14 that Perry provides the applicable de facto analysis and declined to adopt the reasoning in the Boards SONGS decision. Thus, the Board should not consider FOEs de facto claims under the SONGS ongoing de facto license amendment framework as doing so would be contrary to CLI-15-14 and Perry.
Further, the arguments contained in FOEs Supplemental Brief are contrary to 10 C.F.R.
§ 2.309. Section 2.309 provides strict by design contention admissibility requirements that apply to every AEA section 189a hearing request, including hearing requests based on de facto claims.34 Section 2.309 provides that a petitioner cannot amend its contentions at will. Instead, a petitioner must file a new or amended contention or a separate petition to allow for the consideration of additional claims.35 As discussed above, FOEs Petition requested a hearing based on claims that certain completed Staff actions constituted de facto license amendments; the Staff and PG&E answered these claims and FOE replied. The Commission then specified that the Board rule on FOEs Petition based on a limited set of filings that did not include FOEs Supplemental Brief.
Thus, FOE cannot use its Supplemental Brief to add new contentions or amend its existing 33 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-13-7, 77 NRC 307 (2013). In SONGS, the Board applied a different de facto analysis than the one applied in Perry because, among other things, instead of looking backward at a past completed agency action, it looked forward to possible future agency action. See id. at 333. While FOEs Supplemental Brief does not cite to the SONGS decision, FOEs Petition and Reply cited to this decision as support for its ongoing de facto claims. See Petition at 32; Reply at 25. These ongoing de facto claims are likewise made in FOEs Supplemental Brief. See FOEs Supplemental Brief at 1-2 (arguing that the subsequent events show that the Staff is continuing to de facto amend PG&Es licenses).
34 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsid. denied, CLI-02-01, 55 NRC 1 (2002) (Our contention rule is strict by design.). See Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 8) (providing that the threshold issues of meeting 10 C.F.R. § 2.309 apply).
35 10 C.F.R. § 2.309.
contentions unless it meets the late-filed criteria in 10 C.F.R. § 2.309(c). FOEs Supplemental Brief does not address much less meet these requirements.36 Therefore, FOEs Supplemental Brief is contrary to 10 C.F.R. § 2.309(c) to the extent that it identifies new Staff actions it claims are de facto license amendments and augments arguments made in its Petition or Reply.37 As noted in the Staffs Answer Opposing FOEs Motion to Allow Supplemental Briefing, if FOE wants to submit a new contention or amend its existing contentions, it can do so.38 However, FOE cannot modify its contentions in this or any other proceeding without meeting the 10 C.F.R. § 2.309 requirements.39 IV. FOEs Supplemental Brief Does Not Identify a De Facto License Amendment Even if the Board determines that the subsequent actions and additional UFSAR Rev.
21 arguments in FOEs Supplemental Brief are part of the CLI-15-14 referral, the Board should still deny FOE's Petition. As discussed briefly below,40 FOEs Supplemental Brief does not identify a de facto license amendment based on any subsequent Staff action. Instead, FOEs claims relate to FOEs concern that Diablo Canyon is not safe to operate given new seismic information.41 But these concerns do not pertain to the relevant question of whether there is a de facto license amendment. Further, these safety concerns are not properly before this Board.
36 See Florida Power & Light Co.(Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-06-21, 64 NRC 30, 33-34 (2006) (noting that a petitioners failure to address the late filed factors in 10 C.F.R.
§ 2.309 is reason enough to reject the contention).
37 In particular, FOE uses its Supplemental Brief to augment its UFSAR Rev. 21 arguments. See, e.g., FOEs Supplemental Brief at 10-18 and Exhibit 2 (Letter from Dr. Michael Peck to Sen. Barbara Boxer (Jan. 22, 2015) (ADAMS Accession No. ML15170A453)) (making UFSAR Rev. 21 de facto claims).
38 See Staff Answer Opposing [FOEs] Motion to Allow Supplemental Briefing. FOE could also submit a new petition to intervene based on the separate Staff actions discussed in its Supplemental Brief.
39 See Calvert Cliffs, CLI-06-21, 64 NRC at 33-34.
40 The Staffs position is that briefing on these subsequent Staff actions is not relevant to the issue before the Board and therefore the Staff is not submitting extensive briefing on these matters.
41 See, e.g., FOEs Supplemental Brief at 8.
Instead, the Commission separately referred these concerns to the Executive Director for Operations (EDO) to be considered under 10 C.F.R. § 2.206.42 First, FOE has not shown that the Staffs May 13, 2015 letter constitutes a de facto license amendment. FOE claims that the Staffs May 13, 2015 letter had the effect of augmenting the plain terms of the licenses seismic design basis to include an extra-design basis [ground motion] response spectrum.43 In support of this argument, FOE claims that PG&Es March 2015 report shows that PG&E is unable to comply with important conditions in the plants operating licenses.44 FOE argues that the Staffs May 13, 2015 letter endorses PG&Es plan to address this supposed non-compliance and that this granted PG&E additional operating authority.45 Contrary to FOEs claim, the Staffs May 13, 2015 letter is not a de facto license amendment.46 Instead, the Staffs May 13, 2015 letter simply confirms that PG&E is following the established 10 C.F.R. § 50.54(f) process that was outlined in the Staffs March 2012
§ 50.54(f) Letter.47 In response to the Staffs March 2012 § 50.54(f) Letter, PG&E submitted its March 2015 report. That report indicated that PG&E screened in to Category 1.48 The Staffs 42 See Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 12) (referring FOEs claims to EDO).
43 FOEs Supplemental Brief at 2, 6-7. Id. at 4 (claiming the ground motion response spectrum adds a 35% design margin onto the Hosgri evaluation). FOE also repeats claims already made in its Petition. See, e.g., id. at 8 (arguing that the post-Fukushima process under 10 C.F.R. § 50.54(f) is not a substitute for the statutory requirement to comply with license terms and follow statutorily mandated procedures in order to amend a license.). The Staff already responded to these claims in its answer to FOEs Petition. See Staffs Answer to FOEs Petition at 24-26 (ADAMS Accession No. ML14279A573).
44 FOEs Supplemental Brief at 2.
45 Id.
46 The May 13, 2015 letter is also not a retreat from a previous Staff position that a license amendment was required. See FOEs Supplemental Brief at 3. Further, the Staff did not direct[] [PG&E]
to request a de facto amendment. Id. at 7.
47 As the Staff explained in its Answer to FOEs Petition, the section 50.54(f) process is an ongoing oversight matter for all operating plants. The process began with the issuance of the Staffs March 2012 § 50.54 Letter. See Staffs Answer to FOEs Petition at 24-26 (discussing why the March 2012 § 50.54(f) Letter does not constitute a de facto license amendment).
48 Diablo Canyon was not unique in this regard. Other plants screened in to this same category.
See NRC letter regarding Seismic Screening and Prioritization Results for WUS Licensees (May 13, 2015) (ADAMS Accession No. ML15113B344).
May 13, 2015 letter confirmed next steps (i.e., PG&E will submit further analysis to the NRC in 2017). Nothing in the Staffs May 13, 2015 letter amends PG&Es license or grants PG&E greater authority. While future license amendments are always possible as part of the § 50.54(f) process,49 the possibility of a future license amendment does not trigger a hearing right now.50 Second, FOE has not shown that the Staffs December 2014 Inspection Report is a de facto license amendment. FOE claims that this inspection report approved PG&Es determination of operability and accepted PG&Es assumptions, methodologies, and conclusions used in PG&Es California Seismic Imaging Project Report.51 Given this, FOE argues that the Staffs December 2014 Inspection Report granted PG&E additional authority than is authorized by the plants licenses.52 But as the Commission has explained, the NRCs inspection process is separate from its licensing process.53 Staff oversight activities that ensure compliance with existing requirements do not constitute de facto license amendments. Thus, NRC inspection reports, even inspection reports documenting violations, are not de facto license amendments.54 Third, FOE has not shown that Dr. Blakeslees testimony from the December 2014 Senate Committee hearing constitutes a de facto license amendment. FOE claims that Dr.
Blakeslees testimony describes the significance of the Staffs willingness to allow PG&E free 49 The Staff will review the 2017 analysis and determine if any licensing basis changes are needed.
50 Omaha Pub. Power Dist. (Fort Calhoun Station, Unit 1), CLI-15-5, 81 NRC at __ (slip op. at 10)
(ADMAS Accession No. ML15068A396) (the prospect of a possible future license amendment does not trigger hearing rights now).
51 FOEs Supplemental Brief at 19. See id. at 20.
52 Id.
53 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), CLI-14-11, 80 NRC 167, 174 (2014).
54 Fort Calhoun, CLI-15-5 81 NRC at __ (slip op. at 10). See also Diablo Canyon, CLI-15-14, 81 NRC __ (slip op. at 12) (referring FOEs claims related to asserted violations of the plants licensing basis to the EDO for consideration under 10 C.F.R. § 2.206).
rein to substitute revised methods of analysis in the Diablo Canyon UFSAR.55 As an initial matter, this testimony is not a Staff action. Therefore, it cannot constitute a de facto license amendment.56 Moreover, the testimony does not identify a Staff action that constituted a de facto license amendment. Instead, it describes PG&Es changes to its [ground motion prediction methodologies. . ..57 But PG&Es unapproved changes to its UFSAR under 10 C.F.R. § 50.59 do not constitute de facto license amendments.58 While Dr. Blakeslees testimony reveals that he shares FOEs concern about the safe operation of Diablo Canyon, this concern is not before the Board.
Finally, FOE has not shown that an alleged NRC approval of UFSAR Rev. 21 constitutes a de facto license amendment. FOE claims that PG&E at the Staffs direction, has made changes to the seismic design basis through [UFSAR Rev. 21], which were then endorsed by the Staff.59 FOE claims that since its Petition was filed, this alleged change made by UFSAR Rev. 21 has been made public, and this public disclosure bears on the question of whether the Staff has de facto amended the Diablo Canyon licenses.60 But FOEs Supplemental Brief does not indicate how any NRC Staff approval or action related to UFSAR Rev. 21 constitutes a de facto license amendment. Instead, FOE repeats arguments made in its Reply.61 Thus, FOEs UFSAR Rev. 21 arguments are already before the Board and fully briefed as directed in CLI-15-14. While FOEs Supplemental Brief points to new 55 FOEs Supplemental Brief at 16. See id. at Exhibit 3 (Dec. 3, 2014) (ADAMS Accession No. ML15170A454) (providing Dr. Blakeslees testimony).
56 See St. Lucie, CLI-14-11, 80 NRC at 173-75 (agency action can constitute de facto license amendment not unilateral licensee activity).
57 FOEs Supplemental Brief at 16 (emphasis added).
58 See St. Lucie, CLI-14-11, 80 NRC at 175 (unapproved unilateral licensee actions are not de facto license amendments).
59 FOEs Supplemental Brief at 1. See id. at 2 (claiming Staff approved changes to the design basis made in UFSAR Rev. 21).
60 Id. at 1.
61 See, e.g., FOEs Reply at 17-19 (citing the Staffs October 2012 Letter). See FOEs Supplemental Brief at 9 (citing to the Staffs October 2012 Letter and claiming that the letter directed PG&E to update its UFSAR to incorporate new seismic data).
documents to support its claims,62 FOE does not indicate how those documents constitute or confirm a de facto license amendment. As the Staff explained in detail in its June 15, 2015 Brief, FOE has not shown how any NRC Staff action related to UFSAR Rev. 21 constitutes a de facto license amendment. 63 CONCLUSION For the reasons stated above, the subsequent Staff actions and additional UFSAR Rev.
21 arguments in FOEs Supplemental Brief are not issues referred to this Board. In any event, FOEs Supplemental Brief does not identify or confirm any de facto license amendment triggering sec. 189a. hearing rights. Therefore, the Board should deny FOEs Petition.
Respectfully submitted,
/Signed (electronically) by/
Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Dated: June 26, 2015 62 See, e.g., FOEs Supplemental Brief at 13 n. 52 and Exhibit 2 (Letter from Dr. Michael Peck to Sen. Barbara Boxer (Jan. 22, 2015)).
63 See Staffs June 15, 2015 Brief. Notably, the Staffs June 15, 2015 Brief explained why the NRCs June 23, 2014 Memorandum from Peter J. Bamford did not constitute an approval or a de facto license amendment. Id. at 9-12.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275 and 50-323
)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFF RESPONSE TO THE FRIENDS OF THE EARTHS SUPPLEMENTAL BRIEF, dated June 26, 2015, have been filed through the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, this 26th day of June, 2015.
/Signed (electronically) by/
Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Dated at Rockville, Maryland this 26th day of June, 2015