ML15177A385

Pacific Gas and Electric Response to Foe Supplemental Brief

ML15177A385
Person / Time
Site:	Diablo Canyon
Issue date:	06/26/2015
From:	Post J, Repka D Pacific Gas & Electric Co, Winston & Strawn, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-275, 50-323, ASLBP 15-941-05-LA-BD01, RAS 27988
Download: ML15177A385 (20)

Text

June 26, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

) Docket No. 50-275 PACIFIC GAS AND ELECTRIC ) Docket No. 50-323 COMPANY )

)

(Diablo Canyon Power Plant, Units 1 and 2) )

PACIFIC GAS AND ELECTRIC COMPANYS RESPONSE TO FOES SUPPLEMENTAL BRIEF INTRODUCTION In accordance with the Licensing Board Order of June 12, 2015, Pacific Gas and Electric Company (PG&E) herein responds to the Friends of the Earth (FOE) supplemental brief.1 FOE broadly asserts that allowing continued operation in light of new seismic information whether the Shoreline Fault Report, the Seismic Imaging Project Report, or the most recent seismic hazards re-evaluations expands the operating authority granted in the licenses by augmenting or altering the plants licensing basis. FOE is wrong. There is no de facto amendment on seismic issues at Diablo Canyon. None of the assessments relied upon by FOE has amended the operating licenses or expanded operating authority. The licenses and licensing basis have not changed. FOE is challenging compliance with the plants current licensing basis, compliance with the procedures for controlling the licensing basis, and the adequacy of the current licensing basis for safe operation. These matters implicate NRC oversight functions and do not involve hearing rights a critical distinction that FOE ignores. Accordingly, FOEs hearing request should be denied.

1 Petitioner Friends of the Earths Supplemental Brief, dated June 19, 2015 (FOE Brief).

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BACKGROUND On August 26, 2014, FOE filed a petition seeking a hearing on seismic issues related to Diablo Canyon.2 The hearing request was based on information developed by PG&E beginning in 2008 related to the so-called Shoreline Fault and from subsequent PG&E reports on, and NRC Staff reviews of, that information. FOE argued that the NRC is conducting a de facto license amendment proceeding without offering a hearing. In CLI-15-14, the Commission referred to the Licensing Board the limited issue of whether the NRC granted PG&E greater authority than that provided by its existing licenses or otherwise altered the terms of PG&Es existing licenses, thereby entitling FOE to an opportunity to request a hearing pursuant to AEA section 189a.3 PG&E filed an answer opposing FOEs hearing request.4 In addition, PG&E filed a supplemental brief addressing the question of whether the NRC Staff approved Diablo Canyon Updated Final Safety Analysis Report (UFSAR) Revision 21 and whether it thereby granted PG&E greater operating authority or altered the terms of the operating licenses.5 As discussed there, the Staff did neither. This brief addresses only new matters raised in the FOE Brief.

DISCUSSION A. FOE Misrepresents the Seismic Safety Evaluations for Diablo Canyon PG&E has verified the seismic safety of Diablo Canyon through comprehensive seismic imaging studies that are unprecedented in the industry and using analytical methodologies that are state-of-the art. PG&Es January 2011 Shoreline Fault Report and September 2014 2

Petition to Intervene and Request for Hearing by Friends of the Earth, dated August 26, 2014.

3 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-14, 81 NRC __, slip op. at 7 (May 21, 2015).

4 Pacific Gas and Electric Companys Answer to Friends of the Earth Hearing Request, dated October 6, 2014 (PG&E Answer).

5 Pacific Gas and Electric Companys Supplemental Brief Regarding UFSAR Revision 21, dated June 15, 2015 (PG&E UFSAR Brief).

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Seismic Imaging Project Report show that deterministic response spectra (ground motions) for the Shoreline Fault and other regional faults remain bounded by the limiting licensing basis (1977)

Hosgri earthquake spectra. Safety related equipment qualified to the Hosgri ground motions therefore remains qualified. The NRC Staff exercised its oversight responsibilities and independently confirmed the conclusions in the Shoreline Fault Report. The Staffs evaluation was summarized in the letter to PG&E dated October 12, 2012.6 FOE claims (at 2) that the Seismic Imaging Project Report indicates that reevaluated seismic hazards exceed the Hosgri evaluation. This assertion is contrary to the actual conclusions of the report.

FOE focuses on PG&Es March 2015 Seismic Hazard Report7 submitted in response to the NRCs post-Fukushima request under 10 C.F.R. § 50.54(f) for a probabilistic hazards screening evaluation. The evaluation was, by definition, a non-licensing basis evaluation of new seismic information. As requested, PG&E developed a new probabilistic Ground Motion Response Spectrum (GMRS) for Diablo Canyon based on new information and using new methodologies (the very point of the evaluation). As also requested, PG&E compared the newly-developed GMRS to the original deterministic licensing basis Double Design Earthquake (DDE) ground motions for the purposes of Screening and Risk Evaluation Prioritization. Because the GMRS exceeds the DDE response spectrum, Diablo Canyon (like other plants) screens in for further risk evaluation.8 Contrary to FOEs characterizations (at 3-4), the reevaluation is not an 6

NRC Letter to E.D. Halpin, Diablo Canyon Power Plant, Unit Nos. 1 and 2 - NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307) (October 12, 2012). The NRC Staff concluded that the existing design basis for the plant already is sufficient to withstand those ground motions.

7 PG&E Letter DCL-15-035, Response to NRC Request for Information Pursuant to 10 CFR 50.54(f)

Regarding the Seismic Aspects of Recommendation 2.1 of the Near-Term Task Force Review of Insights From the Fukushima Dai-Ichi Accident: Seismic Hazard and Screening Report, dated March 11, 2015 (ADAMS Accession No. ML15071A046).

8 The new GMRS is probabilistic while the licensing basis response spectra are deterministic. So, direct comparisons are not technically appropriate. But the comparison is being used for screening purposes only.

As also previously addressed, the DDE is not the limiting licensing basis response spectra for Diablo Canyon.

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admission, retreat, or an about-face, nor has it been folded into the licensing basis. The Seismic Hazards Report does not establish, as FOE suggests (at 5), that Diablo Canyon structures, systems, and components (SSCs) are in non-compliance with the licensing basis or the licenses.

It is an evaluation of new information using a new, non-licensing basis method. Further evaluations will be completed under the 10 C.F.R. § 50.54(f) process to determine whether changes (i.e., backfits) to the plant or the licensing basis will be required. Diablo Canyon SSCs remain qualified for the current licensing basis seismic events.9 FOE argues (at 3-4) that PG&Es March 2015 Seismic Hazards Report adopts a new GMRS that the NRC Staff endorsed and that the NRC Staff thereby expanded the outer bounds of Diablo Canyons seismic design basis effectively altering the terms of the plants licenses. But this is false. The Staff has not altered the current licenses. There have been no license amendments or approvals that expand PG&Es operating authority. As with other plants that have screened in for further evaluation under Section 50.54(f), the NRC oversight process is continuing. A decision not to impose changes to the Diablo Canyon license at this time is not itself a change to the license, either affirmatively or by default. Allowing continued operation under the current license also is not a licensing decision that confers new authority. The need for changes to the license and licensing bases will be determined in the future when the evaluations are completed. Any assertion by FOE that there will be a license change is pure speculation. If FOE seeks additional actions in the interim, the matter must be pursued under 10 C.F.R. § 2.206.

The March 2015 report includes an assessment of the safety of plant operations, based on the functionality of safety related equipment given the current seismic design. PG&E 9

NRC regulations do not require routine updates of the seismic design, although PG&E has continuously evaluated new geosciences information and methodologies under its Long Term Seismic Program. The seismic design and licensing bases are fixed at initial licensing.

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compared the new probabilistic (and non-licensing basis) GMRS to the design and licensing basis 1977 Hosgri earthquake spectrum and to the results of the Long Term Seismic Program (LTSP) seismic margins assessment. These comparisons demonstrate that, based on conservatism in the deterministic licensing basis seismic design and qualification, there is reasonable assurance that the SSCs required for safe shutdown will continue to perform their intended safety function if subjected to the ground motions at the newly-developed probabilistic GMRS levels.10 As discussed below, continued operation under the current seismic licensing basis does not involve a de facto license amendment.

B. FOE Seriously Misconstrues the Regulatory Processes and De Facto Amendments Section 189.a of the Atomic Energy Act (AEA) requires a hearing opportunity only for certain actions specifically, the granting, suspending, revoking or amending of any license. The Commission has recognized that some agency actions not formally labeled as license amendments can constitute de facto license amendments and accordingly trigger hearing rights.11 However, for there to be a de facto amendment, there must be an agency licensing approval. And the approval must grant greater authority or modify the terms of the license. None of that has happened with respect to Diablo Canyon seismic issues.

Throughout its brief, FOE ignores the fact that Diablo Canyon SSCs comply with the current licensing basis. Even more glaringly, FOE misleadingly equates the licensing basis to the Diablo Canyon license. By conflating the two, FOE suggests that any perceived change to or non-compliance with the licensing basis becomes a change to the license that triggers 10 PG&E does not claim, nor need it claim, that the LTSP margins analysis is, as FOE suggests (at 4), a GMRS or a deterministic licensing basis evaluation. PG&E shows that because of margin in the original licensing basis, safety equipment will perform its safety function for new earthquake scenarios. FOEs arguments (at

4) about reduction in margins are irrelevant to a functionality assessment.

11 See, e.g., Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 326 (1996).

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hearing rights. However, the licensing basis is not the license. The license is a specific set of authorities and conditions, including Technical Specifications, controlled by the license amendment process and subject to hearing rights. As the Commission has emphasized, [a]

licensee cannot amend the terms of its license unilaterally; it must request and obtain agency approval.12 The licensing basis is a broader, less rigid set that includes the UFSAR, regulatory acceptance criteria, and regulatory correspondence.13 The licensing basis is subject to regulatory control and reporting processes such as 10 C.F.R. § 50.59, 10 C.F.R. § 50.71(e), and 10 C.F.R. §§ 50.72 and 50.73. Some licensing basis changes require amendments under the regulations; others do not.

Throughout its brief, FOE also misleadingly suggests (indeed, simply presumes) that any alleged non-compliance (whether with the licensing basis or the license itself), any alleged failure to follow a regulatory control process such as 10 C.F.R. § 50.59, or any alleged inadequacy in the licensing basis would be an expansion of operating authority. Even if these circumstances were present (they are not), the FOE premise is simply wrong. The license authority is as specified in the license. The regulatory functions of assuring compliance, assuring corrective actions in cases of degraded or non-conforming conditions to restore compliance, or assessing the adequacy of the licensing basis itself (and safety in the interim) are all oversight functions and not licensing actions. The Commission has recently emphasized the distinction between [the] agencys hearing and its oversight processes.14 The latter does not involve hearing rights even if the Staff 12 Omaha Public Power Dist. (Fort Calhoun Station, Unit 1), CLI-15-5, 81 NRC __, slip op. at 7 (Mar. 9, 2015),

citing Fla. Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-11, 80 NRC __, slip op. at 8 (Dec. 19, 2014).

13 See, e.g., 10 C.F.R. § 54.3(a).

14 Fort Calhoun, CLI-15-5, 81 NRC at __, slip op. at 7-9. The hearing process relates to agency licensing actions that confer hearing rights under Section 189.a. Oversight activities relate to compliance with the existing license and regulations, and do not involve hearing rights (at least absent an enforcement order).

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agrees or accepts a licensees compliance or safety position. It is the type of agency decision that matters, not the mere act of agreement. Where a stakeholder disagrees and seeks enforcement whether in the form of sanctions, an order compelling actions, or actions to apply Section 50.59 to a change the exclusive remedy is through 10 C.F.R. § 2.206.15 FOEs overly-expansive concept of de facto license amendments would drastically change the NRCs processes. Under FOEs approach, any NRC Staff oversight decision (whether by action or by inaction) would become subject to a hearing opportunity as a putative expansion of operating authority. Similarly, by FOEs lights any licensing basis change implemented by a licensee under Section 50.59 would be subject to a hearing opportunity on whether an amendment was necessary. Enforcement functions clearly delegated to the Staff would become subject to the hearing process and licensing board review. The intent of Section 50.59 to allow certain changes without license amendments would be negated, and Section 2.206 would be unnecessary. But, this is not the NRC regulatory framework. FOEs reading is neither consistent with nor compelled by the AEA, the Commissions decision in Perry, or any other Commission or judicial decision.

C. The NRC Staff May 13, 2015 Letter Did Not Modify the License FOE argues (at 6) that the NRC Staffs letter of May 13, 2015,16 enlarged the terms of Diablo Canyons license by augmenting the design basis to include new seismic data a ground motion response spectra that otherwise exceeded the design basis. This is a mischaracterization of the NRC Staff letter. The letter does not enlarge or otherwise change the 15 Id. at 11. This specifically includes a challenge to a Section 50.59 evaluation. See also First Energy Nuclear Operating Co.(Davis-Besse Nuclear Power Station, Unit 1), LBP-13-11, 78 NRC __ (Aug. 12, 2013).

16 Screening and Prioritization Results for the Western United States Sites Regarding Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Seismic Hazards Re-Evaluations for Recommendation 2.1 of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident, dated May 13, 2015 (ADAMS Accession No. ML15113B344) (May 13 NRC Letter). The letter concludes that, based on interim evaluations and actions, Diablo Canyon is safe for continued operations.

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licenses. The letter is an assessment made as part of the ongoing Section 50.54(f) oversight process to determine whether additional regulatory action should be required. The letter certainly does not, as FOE contends (at 7), augment the plain terms of the licenses seismic design basis to include the extra design basis response spectrum. The Staff letter does not approve any licensing or design basis changes. The Diablo Canyon operating licenses, and the licensing basis seismic evaluations, remain unchanged. And even if the licensing basis did change, that is not a license amendment.17 FOEs attempts (at 6) to distinguish Fort Calhoun and St. Lucie are unavailing.

FOE claims that the present case, unlike those cases, involves a present Staff action that grants new authority. But in pointing to the Staffs May 13, 2015 letter, FOE misses the key distinction made by the Commission in those cases the distinction between NRC licensing actions (with hearings) and oversight activities (no hearings).

FOE contends that the distinction between oversight and licensing has been rejected in Citizens Awareness Network.18 In that case, the Commission issued specific decisions responding to the licensees request for permission to proceed with an early component removal project. The Court found that, by explicit policy change (not inaction), the Commission affirmatively approved the licensees request to conduct major decommissioning activities ahead of approval of a decommissioning plan required by regulation at the time. The Court remanded the matter for NRC to complete the required approval process. This decision does not mean that the NRC must provide a hearing opportunity every time a party alleges that there has been, or should be, an NRC approval in the form of a license amendment. Nor does the case stand for the proposition that petitioners who believe a license amendment is necessary can sidestep the 17 For example, licensees are permitted to make certain licensing basis changes through the Section 50.59 process without prior NRC approval. But if, as FOE appears to be suggesting, all licensing basis changes require NRC approval (and a hearing opportunity), the Section 50.59 process would have no purpose.

18 FOE Brief at 8, citing Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 288 (1st Cir. 1995).

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appropriate process (10 C.F.R. §2.206) for asserting that position at the agency level.19 Unlike Citizens Awareness Network, there has been no request by PG&E to conduct an activity not previously authorized; nor has there been an NRC approval for a new activity for which approval is required. FOEs unhappiness with the oversight process does not create a hearing right.

D. The Staffs October 2012 Letter and Related UFSAR Revision Were Not NRC Approvals FOE next contends that the NRC Staffs letter of October 12, 2012, was a directive to modify the UFSAR to include the Shoreline Fault in the UFSAR as a lesser included case; that the letter enlarged PG&Es operating authority by directing the licensee to make the changes and then approving them; and that the subsequent UFSAR Revision 21 changes de facto amend the licenses.20 This argument clearly exceeds the Boards allowance of a supplemental brief to address only events after August 26, 2014. And PG&E has already demonstrated that UFSAR revisions, including Revision 21, are not approved by the NRC under the regulations.21 The NRC Staffs October 2012 letter and PG&Es UFSAR Revision 21 did not change the design basis of the plant, nor did they amend the licenses.22 As evidence of a purported approval, FOE points to an internal PG&E document prepared in connection with PG&E procedures controlling UFSAR revisions the UFSAR Change Request form for Revision 21.23 The PG&E procedure and the particular form for Revision 21 were addressed in a Declaration of Thomas R. Baldwin filed in the Court of Appeals for the D.C. Circuit (attached hereto as Exhibit 1) in connection with FOEs petition for review of 19 The petitioner in that case filed a petition under 10 C.F.R. § 2.206. Id. at 289.

20 FOE Brief at 9.

21 See PG&E UFSAR Brief at 5-10.

22 FOE contends (at 11) that UFSAR Revision 21 added the Hosgri earthquake evaluation and the LTSP evaluation. This is simply not true. Those evaluations were discussed in prior UFSAR revisions.

23 FOE Brief at 7, n.29, and 17-18.

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UFSAR 21. FOE chooses to ignore it. As explained to the Court by Mr. Baldwin, the Change Request form was not submitted to the NRC in connection with Revision 21; PG&E did not request NRC approval of Revision 21; and there was no change to the plant or procedures requiring a license amendment. Regardless of any characterization of the regulatory correspondence made on the form by a PG&E internal reviewer, there was no licensing process in connection with the UFSAR revision. If FOE disagrees with PG&Es conclusion regarding the need for a license amendment or other approval for the revision or with the Staffs acceptance of that conclusion its remedy is through 10 C.F.R. § 2.206.24 FOE next asserts (at 12) that the NRC Staff (presumably through the October 2012 letter, but this is not stated) has excused PG&E from meeting the terms of General Design Criterion 2. FOE asserts that the Shoreline evaluation must . . . be compared against the seismic qualification of critical SSCs calculated for the DDE scenario, not against the Hosgri. FOE invokes differences in the methods, assumptions, inputs, load combinations, and acceptance criteria between the DDE and Hosgri evaluations. PG&E has addressed this issue previously.25 FOE is reprising issues addressed by NRC Staff management in connection with a Differing Professional Opinion (DPO) lodged by Michael Peck. Without engaging the technical merits, this issue does not involve an expansion of operating authority or a change to the licenses. The October 2012 letter and the Staffs evaluation of the Shoreline Fault are oversight activities. They did not grant any approval to conduct any new activity and they did not amend the licenses.26 24 FOE also cites (at 7, n.30) the NRCs internal document, the Bamford Memo. This document is discussed in the PG&E UFSAR Brief (at 8-9).

25 PG&E Answer at 5-6.

26 Even assuming the NRC Staff excused PG&E from something, that would be an example of oversight or enforcement discretion rather than a licensing approval. And the NRCs process for resolving DPOs does not involve hearing rights (much less, third-party hearing rights).

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FOE asserts (at 14-15) that the NRC Staff has allowed (presumably in UFSAR Revision 21; the October 2012 letter again is not cited here) different methods for calculating ground motions and that this constitutes a license amendment. Relying on Dr. Blakeslees statements made in another forum (at 16-17), FOE complains that PG&E used new methodologies to show reduced ground motions. But the very point of PG&Es non-licensing basis evaluations was to use new methodologies. (There is no requirement to use old methods and data.) Because of advances in the data and models, these evaluations have confirmed the conservatism of the licensing basis.27 These methodologies are not being incorporated into the licensing basis or being used to change the licensing basis (e.g., to decrease the ground motions). FOEs arguments also presume that ground motion prediction equations (GMPEs) are part of the licensing basis. They are not. The seismic design and licensing bases are defined by a set of response spectra that are used to qualify safety related equipment. And, even if the GMPEs were part of the licensing basis, there is a difference between the licensing basis and the license. Licensing basis methodologies can be changed under 10 C.F.R. § 50.59, with or without NRC approval as appropriate. FOEs argument is with Section 50.59 compliance. That is a matter for 10 C.F.R. § 2.206.

E. The NRC Inspection Report Did Not Amend the Diablo Canyon Licenses In its search for an NRC action granting expanded operating authority, FOE turns (at 18-20) to the NRC Staffs December 2014 inspection report assessing PG&Es seismic operability determination after the issuance of the September 2014 Seismic Imaging Project Report. On its face, the Staff document is a baseline inspection report. It is not a license amendment or a specific approval. The report addresses PG&Es basis for continued safe 27 FOE argues (at 17) that revised ground motion prediction equations produce a drastic revision of the projected risks and that this in effect grants PG&E greater authority. Neither increased nor decreased risk is the same as increased operating authority.

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operation given new seismic information.28 It summarizes the NRC Staffs evaluation of potential ground motions utilizing a more conservative ergodic approach. The Staff concludes that past evaluations of the Hosgri spectrum indicate considerable design margin for functionality of SSCs, and satisfies the provisions for operability as described in NRC Inspection Manual Chapter 0326.29 As recognized by FOE (at 19), the inspection report accepted PG&Es determination. An operability determination is neither a licensing basis change nor a license amendment. And, an inspection report does not excuse non-compliance with the license, endorse a change in licensing bases methodology, or grant greater operating authority.30 The inspection report in this case does not even identify any findings or violations. At bottom, an inspection report documents an oversight function.31 Inspection reports, whether finding violations or not, do not trigger hearing rights under the AEA. FOEs disagreements with inspection findings must be pursued through the 10 C.F.R. § 2.206 process.

CONCLUSION For the foregoing reasons, FOEs Hearing Request should be denied.

28 PG&E does not concede that evaluations of new seismic information need to be addressed in the operability process. They are being addressed in the Section 50.54(f) process. In any event, FOE (at 19) alleges problems with the spectrum utilized by PG&E. Suffice it to say, PG&E adopted its approach based on the technical merits. The selection was not arbitrary.

29 Inspection Report 050000275/2014008 and 05000323/2014008, December 15, 2014, Enclosure at 5 (ADAMS Accession No. ML14349A485).

30 See Inspection Manual Chapter 0326 at 0326-07 (Corrective Action). A change to the facility, procedures, or licensing basis may be necessary to restore compliance. Appropriate regulatory processes would apply.

31 See Fort Calhoun, CLI-15-5, 81 NRC at __, slip op. at 7-9 (recognizing the distinction between [the]

agencys hearing and oversight processes). Contrary to FOEs incantation of Citizens Awareness Network (FOE Brief at 20, n.85), it is precisely the effect of the inspection report, not its label, that is relevant.

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Respectfully submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Executed in accord with 10 C.F.R. 2.304(d)

Jennifer Post Pacific Gas and Electric Company 77 Beale St., B30A San Francisco, CA 94105 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY Dated at Washington, District of Columbia this 26th day of June 2015 13

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

) Docket No. 50-275 PACIFIC GAS AND ELECTRIC ) Docket No. 50-323 COMPANY )

)

(Diablo Canyon Power Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that PACIFIC GAS AND ELECTRIC COMPANYS RESPONSE TO FOEs SUPPLEMENTAL BRIEF in the captioned proceeding has been filed and served via the Electronic Information Exchange (EIE) this 26th day of June 2015.

Respectfully submitted,

/s/ signed electronically by Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY Dated at Washington, District of Columbia this 26th day of June 2015 1

EXHIBIT 1 DECLARATION OF THOMAS R. BALDWIN UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT No. 14-1213 2

DC:775417.4