Text

NRC Staff Answer to Slomfp Petition for Review of August 6, 2015 Board Order
	ML15282A049
Person / Time
Site:	Diablo Canyon
Issue date:	10/09/2015
From:	Catherine Kanatas, Lindell J; NRC/OGC
To:	; NRC/OCM
	SECY RAS
References
	50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01, RAS 28366
	Download: ML15282A049 (23)
	v • d • e

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

) 50-323-LR (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFFS ANSWER OPPOSING COMMISSION REVIEW OF ATOMIC SAFETY AND LICENSING BOARD MEMORANDUM AND ORDER DENYING MOTION TO FILE NEW CONTENTIONS A AND C Catherine E. Kanatas Joseph A. Lindell Counsel for NRC Staff October 9, 2015

-i-TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ........................................................................................................................1 BACKGROUND ..........................................................................................................................2 I. Procedural History ...........................................................................................................2 DISCUSSION..............................................................................................................................6 I. Legal Standard for Interlocutory Review ..........................................................................6 II. ARGUMENT ....................................................................................................................8 A. The Commission Should Deny SLOMFPs Petition for Review Because It Does Not Address or Meet the 10 C.F.R. § 2.341(f)(2) Criteria ......................................... 8 B. SLOMFPs Petition for Review Does Not Show that Review is Warranted Under 10 C.F.R. § 2.341(b) .................................................................................................9

1. Review of the Boards Order With Respect to Contention A Is Not Warranted...............................................................................................10

2. Review of the Boards Order With Respect to Contention C Is Not Warranted...............................................................................................13 CONCLUSION ..........................................................................................................................18

- ii -

TABLE OF AUTHORITIES Page ADMINISTRATIVE DECISIONS Commission DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2),

CLI-15-18, 82 NRC _ , _ (Sep. 8, 2015) (slip op.) ....................................................................14 Dr. James E. Bauer (Order Prohibiting Involvement in NRC Licensed Activities),

CLI-95-3, 41 NRC 245 (1995) ...................................................................................................8 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

CLI-08-2, 67 NRC 31 (2008) .................................................................................................7, 9 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

CLI-12-1, 75 NRC 39 (2012) ....................................................................................... 14, 15, 16 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),

CLI-09-6, 69 NRC 128 (2009) ...............................................................................................7, 9 Exelon Generating Co., LLC (Early Site Permit for the Clinton ESP Site),

CLI-04-31, 60 NRC 461 (2004) .............................................................................................7, 9 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),

CLI-12-08, 75 NRC 393 (2012) ...............................................................................................10 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301 (2012) ..................................................................................... 10, 13, 15 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-13-3, 77 NRC 51 (2013) .................................................................................................6, 8 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-11-11, 74 NRC 427 (2011) ........................................................................................... 2, 17 South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4),

CLI-10-16, 71 NRC 486 (2010) .............................................................................................6, 8 Atomic Safety and Licensing Appeal Board Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-734, 18 NRC 11 (1983) ...............................................................................................7, 9 S. Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1),

ALAB-710, 17 NRC 25 (1983) ........................................................................................... 10, 11

- iii -

Atomic Safety and Licensing Board NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

LBP-11-02, 72 NRC 28 (2011) ................................................................................................17 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

LBP-10-15, 72 NRC 257 (2010) ................................................................................................2 REGULATIONS 10 C.F.R. § 2.341(b)(1) ...............................................................................................................2 10 C.F.R. § 2.341(b)(3) ...............................................................................................................1 10 C.F.R. § 2.341(b)(4)(ii) ...........................................................................................................2 10 C.F.R. § 2.341(b)(4)(iii) ..........................................................................................................2 10 C.F.R. § 2.341(f)(2) ................................................................................................................1 MISCELLANEOUS NUREG-1437, Vol. 1, Rev. 1, Final Report, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 2-18 (Jun. 2013) (ADAMS Accession No. ML13106A241) .......................................................................................................................11 Memorandum and Order (Denying Motions to File New Contentions) (Aug. 6, 2015)

(unpublished) (ADAMS Accession No. ML15218A517) ................................................... passim

October 9, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

) 50-323-LR (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFFS ANSWER OPPOSING COMMISSION REVIEW OF ATOMIC SAFETY AND LICENSING BOARD MEMORANDUM AND ORDER DENYING MOTION TO FILE NEW CONTENTIONS A AND C INTRODUCTION Pursuant to 10 C.F.R. §§ 2.341(f)(2) and 2.341(b)(3), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer in opposition to the San Luis Obispo Mothers for Peaces (SLOMFP) petition for review of the portion of the Atomic Safety and Licensing Boards (Board) August 6, 2015, Memorandum and Order1 (Boards Order) denying admission of SLOMFPs new Contentions A and C.2 In its Petition for Review, SLOMFP asserts that the Commission should take review of a portion of the Boards Order because it is inconsistent with and contrary to established law and raises important questions of law and policy.3 1 Memorandum and Order (Denying Motions to File New Contentions) (Aug. 6, 2015)

(unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15218A517) (Boards Order).

2 [SLOMFPs] Petition for Review of Memorandum and Order (Denying Motions to File New Contentions) (Sept. 14, 2015) (ADAMS Accession No. ML15257A570) (Petition for Review).

3 Petition for Review at 1 (citing 10 C.F.R. §§ 2.341(b)(4)(ii) and 2.341(b)(4)(iii)). While the Petition for Review references seeking review of Contention B, see Petition for Review at 1, it is clear from the remainder of the Petition for Review that SLOMFP is only seeking review of the Boards decision with respect to Contentions A and C. See generally id. (making arguments concerning Contentions A and C only); id. at 1 n.1 (stating, SLOMFP does not seek review of the ASLBs decision with respect to Contentions B and D.).

As set forth below, the Staff opposes Commission review because SLOMFPs Petition for Review does not show that Commission review of the Boards Order is warranted. First, SLOMFP has neither pled nor met the appropriate criteria for interlocutory review of the Boards Order.4 Second, SLOMFPs Petition for Review does not show that the Boards Order is a departure from and contrary to established law, or that the Boards Order raises a substantial and important question of law and policy with respect to Contentions A and C.5 The Boards ruling on both Contentions A and C was based on controlling NRC precedent and guidance.

For these reasons, SLOMFPs Petition for Review should be denied.

BACKGROUND I. Procedural History This proceeding concerns Pacific Gas & Electric Companys (PG&E) application to renew the operating licenses for the Diablo Canyon Nuclear Power Plant Units 1 and 2 (Diablo Canyon).6 On August 4, 2010, the Board found that SLOMFP raised an admissible contention (EC-1) and admitted SLOMFP to this proceeding.7 EC-1 is still an admitted contention in this proceeding, and a hearing has not yet been held.8 4 These criteria are found in 10 C.F.R. § 2.341(f)(2).

5 See 10 C.F.R. §§ 2.341(b)(4)(ii) and (iii). Petition for Review at 1 (arguing the Boards Order is inconsistent with and contrary to established law and raises important questions of law and policy). This standard applies to full or partial initial decisions by a presiding officer. See 10 C.F.R. § 2.341(b)(1). The Boards Order is not a full or partial initial decision, as SLOMFP has an admitted contention in this proceeding on which there has not yet been a hearing.

6 PG&E Letter DCL-09-080, from James R. Becker, Site Vice President, to NRC, Information to Support NRC Review of DCPP License Renewal Application (LRA) (Nov. 23, 2009) (ADAMS Accession No. ML093350335) (transmitting application for license renewal for Diablo Canyon Nuclear Power Plant, Units 1 and 2). The Diablo Canyon LRA (2009) is available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/diablo-canyon.html.

7 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257, 345-46 (2010). On appeal, the Commission affirmed the Boards ruling on admissibility but restated the contention. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427,429, 438 (2011).

8 On July 31, 2015, PG&E filed a motion for summary disposition with respect to Contention EC-1, which the Staff supported and SLOMFP opposed. See [PG&Es] Motion for Summary Disposition on Contention EC-1 (July 31, 2015) (ADAMS Accession No. ML15212A732); NRC Staff Answer to [PG&Es]

On February 25, 2015, PG&E submitted an update to its Environmental Report (ER) supporting license renewal (ER update).9 PG&E stated that it revised the Severe Accident Mitigation Alternatives (SAMA) analysis using an updated Probabilistic Risk Assessment (PRA) model, more recent population, economic, and evacuation information, and updated seismic hazard curves.10 PG&E stated that it also updated its analysis of alternatives to license renewal to address more recent data on energy alternatives in California and a combination alternative.11 On March 11, 2015, PG&E submitted a Seismic Hazard Screening Report for Diablo Canyon.12 This report responded to the Staffs March 12, 2012 10 C.F.R. §50.54(f) letter, which requested that PG&E reevaluate the seismic hazard at the Diablo Canyon site using updated seismic information and present-day regulatory guidance and methodologies.13 PG&Es March 11, 2015 Report performed a seismic hazard reevaluation for Diablo Canyon and Motion for Summary Disposition of Contention EC-1 (Aug. 13, 2015) (ADAMS Accession No. ML15225A531); [SLOMFPs] Response to PG&Es] Motion for Summary Disposition of Contention EC-1 (Sept. 14, 2015) (ADAMS Accession No. ML15257A572).

9 PG&E Letter DCL-15-027, from Barry S. Allen, PG&E, to NRC, Update to the Diablo Canyon Power Plant License Renewal Application (LRA) Amendment 49 and LRA Appendix E, Applicants Environmental Report - Operating License Renewal Stage, Amendment 2 (Feb. 25, 2015) (ADAMS Package Accession No. ML15057A102) (ER update). The revised SAMA analysis is in Enclosure 2, - Environmental Report, Amendment 2, Section 4.20 Appendix E and Attachment F (ADAMS Accession Nos. ML15056A755, ML15056A756, ML15056A758, ML15056A759, ML15056A763, ML15056A765, ML15056A769) (SAMA analysis).

10 ER Update, Enclosure 2, at cover page.

11 Id.

12 PG&E Letter DCL-15-035, from Barry S. Allen, PG&E, to NRC, 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, at 1 (Mar. 11, 2015) (ADAMS Accession No. ML15070A607) (2015 seismic hazards analysis).

13 Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f)

Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident at Enclosure 2 at (Mar. 12, 2012) (ADAMS Accession No. ML12053A340)

(March 2012 letter).

developed a plant specific ground motion response spectrum for screening purposes.14 As discussed in the Staffs March 2012 letter, the screening reports are one stage in the process that would be used to determine whether any additional regulatory actions, such as updating a plants design basis, would be necessary.15 In April 2015, SLOMPF filed Contentions A and C, which challenged PG&Es February 25, 2015 ER update.16 Contention A asserted that the ER update failed to evaluate a reasonable array of energy alternatives.17 The Staff opposed this contention on the grounds that it was contrary to Commission precedent concerning the need to replace baseload generation, it did not provide sufficient support for the near-term viability of its suggested alternatives, and that arguments concerning the costs of nuclear power versus renewables were outside the scope of the proceeding.18 14 The ground motion response spectrum was developed based on the results of PG&Es Probabilistic Seismic Hazard Analysis, the details of which are provided in two additional reports (i) the Seismic Source Characterization for the Diablo Canyon Power Plant, San Luis Obispo County, California and the (ii) Southwestern United States Ground Motion Characterization SSHAC Level 3 Technical Report. See Senior Seismic Hazard Analysis Committee Studies for Diablo Canyon Power Plant Seismic Hazard Update (Mar. 2015), available at http://www.pge.com/en/safety/systemworks/dcpp/sshac/index.page.

15 March 2012 letter at 5.

16 See [SLOMFPs] Motion to File New Contentions Regarding Adequacy of Environmental Report for Diablo Canyon License Renewal Application (Apr. 6, 2015) (ADAMS Accession No. ML15096A613) (Motion to Admit Contentions A & B); [SLOMFPs] Motion to File New Contentions Regarding Adequacy of Severe Accident Mitigation Alternatives Analysis for Diablo Canyon License Renewal Application (Apr. 15, 2015) (ADAMS Accession No. ML15105A633) (Motion to Admit Contentions C & D). In these filings, SLOMFP also proffered two other proposed new contentions (B and D). However, SLOMFPs Petition for Review specifies that it is only seeking review of the Boards ruling on Contentions A and C. Petition for Review at 1 n.1 (SLOMFP does not seek review of the ASLBs decision with respect to Contentions B and D.).

17 Motion to Admit Contentions A & B at 2-7.

18 NRC Staff Answer to [SLOMFPs] Motion to File New Contentions Regarding the Adequacy of the Updated Environmental Report for Diablo Canyon (May 1, 2015) (ADAMS Accession No. ML15121A804) (NRC Staffs Answer to Contentions A & B). PG&E also opposed the contentions.

[PG&Es] Answer Opposing Proposed Energy Alternatives Contentions (May 1, 2015) (ADAMS Accession No. ML15121A805).

Contention C challenged the revised SAMA analysis in PG&Es February 25, 2015 ER update. In particular, SLOMFP asserted that PG&Es revised SAMA analysis did not satisfy the National Environmental Policy Act (NEPA) or NRC regulations because the seismic PRA used in the SAMA analysis19 did not include the data from PG&Es March 2015 seismic hazards analysis.20 SLOMFP also argued that even if the results of PG&Es March 2015 seismic hazards analysis were incorporated into PG&Es revised SAMA analysis, the SAMA analysis would be deficient because the 2015 seismic hazards analysis failed to adequately characterize the seismic risk to Diablo Canyon.21 The Staff opposed Contention C on the grounds that SLOMFP failed to demonstrate how the use of its preferred seismic models would materially affect the SAMA analysis or make its conclusions unreasonable.22 The Staff argued that SLOMFP disputed PG&Es 2015 seismic hazards analysis without sufficiently linking its assertions to material deficiencies in the revised SAMA analysis.23 On August 6, 2015, the Board issued an order denying admission of proposed Contentions A and C.24 The Boards Order was not a full or partial initial decision; instead, it 19 The seismic PRA serves as an input to the SAMA analysis evaluation of the comparative costs and benefits of mitigation measures.

20 Motion to Admit Contentions C & D at 2. On July 1, 2015, PG&E submitted another update to its license renewal application, evaluating the impacts of the 2015 seismic hazards analysis on its February 2015 SAMA analysis. PG&E Letter DCL-15-080, from Barry S. Allen, Vice President, Nuclear Services, PG&E, to NRC, Diablo Canyon Power Plant License Renewal [SAMA] Analysis Evaluation of the 2015 Seismic Hazard Results (July 1, 2015) (ADAMS Accession No. ML15182A452). SLOMFP subsequently filed an amended Contention C, which the Staff and PG&E opposed, and is pending before the Board. See [SLOMFPs] Motion to File Amended Contention C (Inadequate Consideration of Seismic Risk in SAMA Analysis as Supplemented by SHU-SAMA Evaluation) (July 31, 2015) (ADAMS Accession No. ML15212A959), NRC Staff Answer to [SLOMFPs] Motion to File Amended Contention C (Aug. 25, 2015) (ADAMS Accession No. ML15237A049); [PG&Es] Answer Opposing Proposed Amended Contention C (Aug. 25, 2015) (ADAMS Accession No. ML15237A092).

21 Motion to Admit Contentions C & D at 2-3.

22 See NRC Staff Answer to [SLOMFPs] Motion to File New Contentions Regarding the Adequacy of the [SAMA] for Diablo Canyon, at 13-16 (May 11, 2015) (ADAMS Accession No. ML15131A536) (NRC Staffs Answer to Contentions C & D).

23 See id.

24 Boards Order at 8-12 and 16-17. The Boards Order also denied Contentions B and D. Id. at

ruled on the admissibility of SLOMFPs new contentions without dispositioning SLOMFPs admitted contention, EC-1. The Board held that Contention A was inadmissible because it was inconsistent with binding Commission precedent and its arguments did not raise a genuine dispute with the ER update.25 The Board held that Contention C was inadmissible because SLOMFP did not make a plausible demonstration of why a different methodology would materially affect the conclusions of the SAMA analysis, and make it unreasonable[.]26 On September 14, 2015, SLOMFP filed the instant Petition for Review before the Commission. As described in detail below, SLOMFPs Petition for Review should be denied because it does not address or meet the correct standard for interlocutory review. Further, SLOMFPs Petition for Review should be denied because it has not shown that the Boards decision was contrary to law or raises policy issues warranting review.

DISCUSSION I. Legal Standard for Interlocutory Review As the Commission explained in Seabrook, when a Board rules on new contentions where there is an admitted contention pending, an appeal of the Boards ruling on the new contentions lies under 10 C.F.R. § 2.341(f)(2).27 Under these criteria, review is only granted upon a showing that the issue for which review is sought:

(i) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officers final decision; or (ii) Affects the basic structure of the proceeding in a pervasive or unusual manner.

12-14 and 17-19, respectively.

25 Boards Order at 8-12.

26 Boards Order at 16-17.

27 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-13-3, 77 NRC 51, 54 (2013).

See also South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-10-16, 71 NRC 486, 490 (2010) (Under longstanding Commission precedent, once a petition to intervene and request for hearing has been granted and contentions are admitted for hearing, appeals of Board rulings on new or amended contentions are treated under section 2.341(f)(2), regardless of the subject matter of those contentions.) (internal citations omitted).

As a general matter, interlocutory appellate review of licensing board orders is disfavored and will be undertaken as a discretionary matter only in the most extraordinary circumstances.28 Further, disputes over board rulings on contention admissibility are generally not the types of errors that affect the basic structure of a proceeding in a pervasive or unusual manner.29 Rather, interlocutory rulings on contentions must abide by the end of the case before undergoing appellate review.30 As the Commission has noted, if parties could successfully invoke interlocutory review based merely on an assertion that the licensing board erred in admitting (or excluding) a contention, [the Commission would open] the floodgates to a potential deluge of interlocutory appeals from any number of participants who lose admissibility rulings.31 Thus, the Commission has clarified that the basic structure standard [is meant to address] disputes over the very nature of the hearing in a particular proceeding - for example, whether a licensing hearing should proceed in one step or in two - not to routine arguments over admitting particular contentions.32 Furthermore, absent a demonstration of irreparable harm or other compelling circumstances, the fact that legal error may have occurred does not of itself justify interlocutory appellate review in light of the longstanding Commission policy generally disfavoring such review.33 As a general matter, a legal error, standing alone, does not alter the 28 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-09-6, 69 NRC 128, 132-37 (2009).

29 See, e.g., id. at 136-37; Exelon Generating Co., LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 467 (2004).

30 Clinton, CLI-04-31, 60 NRC at 467 (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-2, 51 NRC 77, 80 (2000) (None of our prior decisions has found the admission or denial of a contention, where the intervenor has other contentions pending in the proceeding, to be anything more than a routine interlocutory ruling not subject to immediate appellate review; such rulings must abide the end of the case.)).

31 Indian Point, CLI-09-06, 69 NRC at 137 (internal citations omitted).

32 Clinton, CLI-04-31, 60 NRC at 467 (internal citations omitted).

33 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-734, 18 NRC 11, 15 (1983); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-08-2, 67 NRC 31, 35

basic structure of an ongoing proceeding; such errors can be raised on appeal after the final licensing board decision.34 II. ARGUMENT SLOMFPs Petition for Review should be denied because it does not address or meet the applicable review criteria in 10 C.F.R. § 2.341(f)(2) or otherwise demonstrate that review of the Boards Order is warranted.

A. The Commission Should Deny SLOMFPs Petition for Review Because It Does Not Address or Meet the 10 C.F.R. § 2.341(f)(2) Criteria As discussed above, SLOMFP submitted its initial intervention petition in March 2010, and the Board ruled on the initial petition and admitted Contention EC-1 in August 2010, more than four years prior to SLOMFPs filing of new contentions A and C in April 2015. Given that the Boards Order is not a full or partial initial decision resolving Contention EC-1, the appropriate appellate review provision governing SLOMFPs appeal of its new contentions is 10 C.F.R. § 2.341(f)(2).35 As explained above, the Commission has made clear that there is a high bar for an interlocutory appeal under 10 C.F.R. § 2.341(f)(2) and that the burden is on the movant to demonstrate the criteria are met.36 SLOMFPs Petition for Review should not be granted because SLOMFP has not addressed or met these criteria for interlocutory review. Specifically, SLOMFP has not shown how denial of Contentions A or C threatens it with immediate and serious irreparable impact, which could not be alleviated through a petition for review of the (2008).

34 Dr. James E. Bauer (Order Prohibiting Involvement in NRC Licensed Activities), CLI-95-3, 41 NRC 245, 246-47 (1995).

35 Seabrook, CLI-13-3, 77 NRC at 54-55 (clarifying that section 2.341(f)(2) governs petitions for interlocutory review, including board rulings on new contentions). See also South Texas Project, CLI 16, 71 NRC at 490.

36 Seabrook, CLI-13-3, 77 NRC at 54-55.

Boards final decision. Further, SLOMFP has not demonstrated that denial of admission of Contention A or C affects the basic structure of the proceeding in a pervasive or unusual manner as required by 10 C.F.R. § 2.341(f)(2).

Instead, SLOMFP raises disputes over rulings on contention admissibility that do not justify interlocutory review under 10 C.F.R. § 2.341(f)(2).37 The errors alleged by SLOMFP,38 absent a demonstration of irreparable harm or other compelling circumstances, constitute the types of errors that must await the end of the proceeding for appellate review.39 Thus, SLOMFP must wait until the end of the case, after the Board has made a final decision on all pending admitted contentions, before seeking appellate review of Contentions A and C.

B. SLOMFPs Petition for Review Does Not Show that Review is Warranted Under 10 C.F.R. § 2.341(b)

SLOMFPs Petition for Review should also be denied because SLOMFP has not shown that Commission review is warranted under 10 C.F.R § 2.341(b). SLOMFP asserts that the Boards decision is contrary to law and that it raises policy issues warranting review.40 However, the Boards Order is consistent with Commission precedent and should be upheld.

The Board applied binding precedent in finding that Contention A was inadmissible because it did not raise a genuine dispute with PG&Es amended ER. Likewise, the Board applied binding precedent in holding that Contention C was inadmissible because SLOMFP did not point to any material deficiency in the SAMA analysis. Therefore, the Petition for Review should be denied.

37 See, e.g., Indian Point, CLI-09-6, 69 NRC at 136-37; Clinton, CLI-04-31, 60 NRC at 467.

38 Petition for Review at 2-11 (consistently referring to the grounds for appeal as the Boards legal and factual errors).

39 Seabrook, ALAB-734, 18 NRC at 15; Pilgrim, CLI-08-2, 67 NRC at 35.

40 Petition for Review at 1.

1. Review of the Boards Order With Respect to Contention A Is Not Warranted In Contention A, SLOMFP argued that the ER update was deficient because it only considered alternatives to license renewal that would provide baseload power and because it did not consider combinations of alternative energy sources that did not include natural gas.41 The Board rejected SLOMFPs arguments because 2012 Commission decisions in Seabrook and Davis-Besse concluded that an admissible contention on energy alternatives must set forth alleged facts or expert opinion sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternative technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power.42 The Board found that SLOMFP failed to meet this standard.43 In its Petition for Review, SLOMFP argues the Board erred in denying the admission of Contention A because the Board relied on Commission precedents that referenced the 1996 Generic Environmental Impact Statement (GEIS) for License Renewal that were superseded by the 2013 license renewal GEIS (2013 GEIS).44 In particular, SLOMFP contends that the 2013 GEIS effectively abandoned the NRCs previous determination that alternative energy sources must provide baseload power.45 But SLOMFP is incorrect. First, the 2013 GEIS cannot overrule Commission precedent, which is binding on the Board.46 Second, the 2013 GEIS follows the Commissions holdings in Seabrook and Davis-Besse and states that a reasonable 41 Motion to Admit Contentions A & B at 3-5; see also Petition for Review at 3.

42 Boards Order at 9, quoting NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI 5, 75 NRC 301, 342 (2012) (emphasis omitted). See also FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC 393, 397 (2012).

43 Boards Order at 9-12.

44 Petition for Review at 3.

45 Id.

46 See S. Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 NRC 25, 28 (1983) (Boards are bound by Commission decisions).

alternative must be commercially viable . . . prior to the expiration of the reactors operating license or expected to become so, and that [t]he amount of replacement power generated must equal the baseload capacity previously supplied by the nuclear plant and reliably operate at or near the nuclear plants demonstrated capacity factor.47 Thus, the 2013 GEIS maintains the NRCs position that alternative energy sources must provide baseload generation.

SLOMFP also argues that the Board should have made a site specific determination instead of relying on Commission precedent.48 In support of this argument, SLOMFP quotes a portion of the 2013 GEIS which states that because of the rapid advance of alternative energy technologies, information on new technologies should be incorporated in plant-specific reviews.49 But licensing boards are bound by Commission decisions.50 Moreover, this passage from the 2013 GEIS does not support SLOMFPs position. In fact, the 2013 GEIS states that because of rapid changes in energy technologies, the NRC cannot make decisions based on anticipated or speculative changes.51 This is exactly what the Board heldthat SLOMFP did not present anything other than speculative assertions regarding the availability of alternatives before the end of the current license to supply baseload power.52 SLOMFP also argues that the Board erred by rejecting out of hand its statements that demand side management and energy efficiency could reduce the demand for baseload 47 NUREG-1437, Vol. 1, Rev. 1, Final Report, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 2-18 (June 2013) (ADAMS Accession No. ML13106A241) (2013 GEIS). See also id. at 1-3 (noting that the purpose and need for the proposed action (issuance of a renewed license) is to provide an option that allows for baseload power generation capability beyond the term of the current nuclear power plant operating license to meet future system generating needs.).

48 Petition for Review at 4.

49 Id. at 3-4, quoting 2013 GEIS at 1 1-31.

50 Summer, ALAB-710, 17 NRC at 28.

51 2013 GEIS at 1-31.

52 See Boards Order at 8-9 & n.37.

power.53 However, the Board did not reject these statements. Instead, the Board correctly noted that SLOMFP did not raise a genuine dispute with the ER update, which already considered demand side management and energy efficiency gains to be a reasonable alternative to license renewal.54 Finally, SLOMFP argues that Contention A presented evidence of the viability and rapid growth of alternative technologies supported by Mr. Mark Coopers expert opinion, and that the Board effectively reached the merits by failing to credit Mr. Coopers expert opinion.55 However, the Board did not err when it held that SLOMFP did not present sufficient evidence to meet the contention admissibility threshold. Although SLOMFP presented evidence of the growth and development of renewable technologies, it did not demonstrate the viability of such technologies in the near termeither as standalone alternatives or in combination. For example, the Board applied Commission precedent to find that SLOMFP only provided evidence of potential geothermal energy development, not baseload replacement power.56 Likewise, the Board followed Commission precedent in ruling that because of concerns regarding intermittency, SLOMFP did not show that distributed generation57 could supply baseload needs.58 Contrary to SLOMFPs assertions, the Board did not weigh the evidence, but applied the admissibility criteria for contentions challenging the licensees evaluation of alternatives laid out in Seabrook and Davis-Besse.

53 Petition for Review at 4.

54 Boards Order at 9-10.

55 Petition for Review at 5.

56 Boards Order at 10 (ruling that mere potential for future development is quite different from commercial viability as a source of baseload power.).

57 Distributed generation is the widespread generation of electricity from facilities smaller than 50 MW in net generating capacity. Id.

58 Id.

Thus, SLOMFPs Petition for Review does not show that the Boards Order concerning Contention A is contrary to established law or that it raises substantial and important questions of law, policy, or discretion. Therefore, Commission review under 10 C.F.R. § 2.341(b) is not warranted.

2. Review of the Boards Order With Respect to Contention C is Not Warranted Likewise, SLOMFPs Petition for Review does not show that Commission review of the Boards ruling on Contention C is warranted under 10 C.F.R. § 2.341(b). In Contention C, SLOMFP argued that PG&Es revised SAMA analysis is inadequate to support license renewal because it seeks to rely on the results of PG&Es 2015 seismic hazards analysis, which according to SLOMFPs expert, Dr. David Jackson, inadequately characterizes the seismic risk to Diablo Canyon.59 In its Petition for Review, SLOMFP argues that the Board improperly dismissed Contention C because it mischaracterized the arguments in the contention, and applied erroneous legal standards by which it impermissibly judged the merits of the contention and shifted the burden of proof from PG&E to SLOMFP.60 However, the Boards decision dismissing Contention C was consistent with Commission precedent and does not warrant Commission review. The Commission has held that it is not enough for a challenge to a SAMA analysis to conceive of alternative and more conservative inputs, whose use in the analysis could result in greater estimated accident consequences.61 Rather, the contention must point to a deficiency in the application, as SAMA adjudications would prove endless if hearings were triggered merely by suggested alternative inputs and methodologies that conceivably could alter the cost-benefit conclusions.62 Without a showing 59 See, e.g., Petition for Review at 5.

60 Id. at 6.

61 Seabrook, CLI-12-5, 75 NRC at 323.

62 Id.

that the current inputs or methodologies are unreasonable for the purposes of the SAMA analysis, there is no genuine material dispute with the SAMA analysis that was done, only a proposal for an alternative NEPA analysis that may be no more accurate or meaningful.63 Furthermore, the Commission has recently stressed that a petitioner must provide a nexus between a potential accident scenario and a deficiency in the SAMA analysis,64 and that conclusory statements do not amount to a challenge to the SAMA analysis.65 The Boards Order dismissing Contention C was consistent with Commission precedent because the contention did not provide a sufficient link between its assertions and any deficiency in PG&Es SAMA analysis. For example, Contention C asserted that PGE&s 2015 seismic hazards analysis was deficient because it made non-conservative assumptions about the locations of earthquakes.66 SLOMFP then argued that for this reason, PG&Es hazard curves may significantly underestimate the shaking of nearby earthquakes and must be evaluated by further study before PG&E may reasonably rely on the [2015 seismic hazards analysis] results in its SAMA analysis.67 But this link to the SAMA analysis is conclusory.

Moreover, it is the only place where SLOMFP links its arguments to the SAMA analysis at all.

Thus, Contention C challenged the conclusions of the 2015 seismic hazards analysis without explaining how the issues it identified would materially affect the conclusions of the SAMA analysis. As the Commission has explained, it is not enough for a petitioner to propose alternative and more conservative inputs to the SAMA analysis without demonstrating a 63 Id. at 323-24. See also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39, 57-58 (2012).

64 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC _ , _ (Sept. 8, 2015)

(slip op. at 8) (citing Seabrook, CLI-12-5, 75 NRC at 323-24).

65 Fermi, CLI-15-18, 82 NRC __ (slip op. at 10).

66 Motion to Admit Contentions C & D at 7 (offering Dr. Jacksons views that fault locations are uncertain).

67 Id.

deficiency in the SAMA analysis that would render it unreasonable.68 The Board correctly applied this precedent when holding that [w]ithout some plausible demonstration of why a different methodology would materially affect the conclusions of the SAMA analysis, and make it unreasonable, SLOMFP does not raise an admissible issue.69 SLOMFP also contends that Commission review is warranted because the Board mischaracterized its arguments. In particular, SLOMFP asserts that Contention C pointed to specific deficiencies in the seismic hazards analysis, and explain[ed] in detail why these omissions could have a significant effect on the results of the analysis.70 Yet SLOMFPs argument on appeal highlights why Contention C was found inadmissible. Factual disputes with the seismic hazards analysis do not necessarily amount to material disputes with the SAMA analysis. As the Board properly recognized, SLOMFP challenged PG&Es 2015 seismic hazards analysis, but did not provide a sufficient nexus between that analysis and the SAMA analysis.71 SLOMFP also argues that the Board erroneously ruled that the information in the 2015 seismic hazards analysis is irrelevant to the SAMA analysis.72 But the Board did not make such a statement. Rather, the Board correctly noted that much of Contention C was concerned with deficiencies in PG&Es seismic hazards analysis, and [i]nsofar as Contention C alleges deficiencies in that seismic reevaluation per se, a license renewal proceeding is not the appropriate forum for SLOMFPs arguments.73 Thus, the Board did not dismiss SLOMFPs 68 Seabrook, CLI-12-15, 75 NRC at 323-24; Pilgrim, CLI-12-1, 75 NRC at 57-58.

69 Boards Order at 17.

70 Petition for Review at 10 (emphasis added). See also id. at 8.

71 See Boards Order at 16-17.

72 Petition for Review at 8. See also id. at 6-7 (arguing that the Boards holding violates NEPA by excluding consideration of relevant information).

73 Boards Order at 16 (italicized emphasis added; underlined emphasis in original).

arguments as irrelevant, but reinforced the need for a concrete link to deficiencies in the SAMA analysis, which SLOMFP did not provide.

Further, SLOMFP argues that review is warranted because the Board improperly created a new admissibility standard for SAMA contentions (i.e., whether the SAMA analysis is plausibly reasonable).74 According to SLOMFP, instead of judging whether Contention C identified deficiencies that could plausibly alter the SAMA analysis in a material way, the ASLB effectively resolved the dispute on the merits by judging the plausibility of [the] SAMA Analysis against SLOMFPs criticisms.75 But the Board did not create a new standard or reach the merits. The Commission has explained that a SAMA contention will not present a material issue unless it is submitted with adequate factual, documentary, or expert support, and raises a potentially significant deficiency . . . that could credibly render the SAMA analysis altogether unreasonable under NEPA standards.76 In line with this precedent, the Board correctly ruled that SLOMFP had not shown how the use of Dr. Jacksons methods would materially affect the SAMA analysis and render it unreasonable.77 SLOMFP also argues that the Board made an inappropriate merits determination by stating that Dr. Jacksons views had already been considered in the development of the 2015 seismic hazards analysis.78 However, the Board simply noted that Dr. Jacksons approach was one among many, and that SLOMFPs preference for his views, without more, did not render the SAMA analysis unreasonable.79 This does not constitute a merits determination.

74 Petition for Review at 9.

75 Id.

76 Pilgrim, CLI-12-1, 75 NRC at 57-58 (emphasis omitted).

77 Boards Order at 17.

78 Petition for Review at 8-9.

79 Boards Order at 16-17.

Finally, SLOMFP maintains that the Board erred by holding that SLOMFP must show the effect of deficiencies in PG&Es underlying seismic risk analysis on the question of whether any particular safety enhancement would be cost-effective to implement.80 However, the Board did not hold that SLOMFP had to rerun the SAMA analysis and identify a particular SAMA that would be cost-beneficial to implement in order to raise an admissible contention.81 Rather, the Board focused on the fact that SLOMFP failed to address the potential impact of any particular seismic model change on the cost-benefit evaluation of the SAMAs that PG&E considered.82 In other words, the Board found that SLOMFP failed to link the alleged deficiencies in PG&Es seismic hazards analysis to the conclusions of the SAMA analysis, and thus did not raise a material issue for litigation.83 Thus, SLOMFPs Petition for Review does not show that the Boards Order concerning Contention C is contrary to established law or that it raises substantial and important questions of law, policy, or discretion. Therefore, Commission review under 10 C.F.R. § 2.341(b) is not warranted.

80 Petition for Review at 11 (internal quotation marks omitted).

81 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-02, 73 NRC 28, 62 (2011) (acknowledging that at the contention admissibility stage, a petitioner need not rerun the Applicants own cost-benefit calculations to provide an admissible SAMA contention); Diablo Canyon, CLI-11-11, 74 NRC at 441-43 (rejecting the argument that a petitioner must point to a specific additional SAMA that would become cost-beneficial to raise an admissible contention).

82 Boards Order at 17.

83 See id.

CONCLUSION For the reasons set forth above, the Staff respectfully requests that the Commission deny interlocutory review of the Boards Order.

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-2321 catherine.kanatas@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Joseph A. Lindell Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555-0001 (301) 415-1474 joseph.lindell@nrc.gov

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275-LR/ 50-323-LR

)

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the NRC STAFFS ANSWER OPPOSING COMMISSION REVIEW OF ATOMIC SAFETY AND LICENSING BOARD MEMORANDUM AND ORDER DENYING MOTION TO FILE NEW CONTENTIONS A AND C, dated October 9, 2015, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 9th day of October, 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 Email: Catherine.Kanatas@nrc.gov Date of Signature: October 9, 2015