ML23130A005

Report to Congress Regarding Diablo Canyon

ML23130A005
Person / Time
Site:	Diablo Canyon
Issue date:	06/27/2023
From:	Christopher Hanson NRC/Chairman
To:	Granger K, Murray P US HR, Comm on Appropriations, US SEN, Comm on Appropriations
References
CORR-23-0051
Download: ML23130A005 (1)

Text

CONTINUED OPERATION AND LICENSE RENEWAL PROCESS FOR DIABLO CANYON POWER PLANT, UNITS 1 AND 2 A Report for the Senate Committee on Appropriations and the House Committee on Appropriations By the U.S. Nuclear Regulatory Commission

Introduction This report for the Senate Committee on Appropriations and the House Committee on Appropriations by the U.S. Nuclear Regulatory Commission (NRC, the Commission) is in response to the 2023 Consolidated Appropriations Act explanatory statement. House Report 117-394, which states in pertinent part, the following:

The Nuclear Regulatory Commission is directed to provide to the Committee not later than 180 days after enactment of this Act a plan for the continued operation of the Diablo Canyon Power Plant. The plan shall include the steps necessary for the license process including extensions, timeframes necessary to ensure continued operation, and explanation of any certification that the plant can operate safely. Further, the Commission shall provide to the Committee not later than 180 days after enactment of this Act a report regarding its authority, and any changes to authority that would be required, to ensure the continued operation of a nuclear power plant in the absence of a license application extension request.

Consistent with this direction, part A of this report describes the steps necessary and timeframes for the continued operation of the Diablo Canyon Power Plant (Diablo Canyon) under the NRC's license renewal process; part B of this report describes the NRC's authority, and whether any changes to this authority would be required, to ensure the continued operation of a nuclear power plant in the absence of a license application extension request.

PART A: CONTINUED OPERATION UNDER THE NRC'S LICENSE RENEWAL PROCESS House Report 117-394 states that the NRC shall provide a report regarding a plan for the continued operation of Diablo Canyon, including the steps necessary for the license process, such as extensions; the timeframes necessary to ensure continued operation; and an explanation of any certification that the plant can operate safely. In response, the NRC discusses below its license renewal process, which governs the continued operation of nuclear power plants and how that process would apply to Diablo Canyon.

Background

Under the Atomic Energy Act of 1954, as amended (AEA), and the NRC's regulations, the NRC issues initial licenses for the operation of nuclear power plants for fixed periods of time not to exceed 40 years. The NRC may renew these operating licenses upon application by the licensee; the renewal will be for a fixed period of time not to exceed an additional 20 years (referred to as the period of extended operation). Generally, if the licensee files a sufficient license renewal application (LRA) at least 5 years before the expiration of the existing license, then the existing license will not be deemed to have expired until the NRC has made a final determination on the LRA; this is referred to as the "timely renewal requirement" and is codified in the NRC's regulations at Title 10 of the Code of Federal Regulations ( 1 O CFR) 2.109(b ). The NRC staff's review of an LRA consists of a review of specific safety issues under 1 O CFR Part 54, "Requirements for Renewal of Operating Licenses for Nuclear Power Plants,"

and an environmental review under 10 CFR Part 51, "Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions," which includes the NRC's regulations implementing section 102(2) of the National Environmental Policy Act.

With respect to Diablo Canyon, the operating licenses for Units 1 and 2 expire on November 2, 2024, and August 26, 2025, respectively. By letter dated November 23, 2009 (Ref. 1 ), the licensee, Pacific Gas and Electric Company (PG&E, the licensee), submitted an LRA for these operating licenses. In June 2011 (Ref. 2), the NRC staff issued a safety evaluation report documenting its safety review of the LRA.

In 2011 PG&E requested that the NRC delay its decision on the Diablo Canyon license renewal application (Ref. 3), and in 2016, PG&E requested that the NRC suspend its review of the Diablo Canyon license renewal application (Ref. 4). By letter dated March 7, 2018 (Ref. 5), the licensee withdrew its LRA based on the State of California's determination that continued baseload operation of the two units at the plant beyond their currently approved operating periods was not necessary to meet the State's projected energy demand requirements. This resource planning decision was approved by the California Public Utilities Commission (CPUC) in Decision 18-01-022, dated January 11, 2018.

However, on September 2, 2022, the State of California enacted Senate Bill 846, reversing this CPUC decision. Thereafter, by letter dated October 31, 2022 (Ref. 6), the licensee requested that the NRC resume its review of the withdrawn LRA or, in the alternative, issue to the licensee an exemption, as is permitted by the NRC's regulations at 1 O CFR 50.12, "Specific exemptions,"

and 10 CFR 54.15, "Specific exemptions," from the timely renewal requirement of 10 CFR 2.109(b). Specifically, the licensee requested this exemption such that if the licensee were to submit a new LRA by December 31, 2023, then the licensee would still receive timely renewal protection under 10 CFR 2.109(b) (i.e., the Diablo Canyon licenses would not be deemed to have expired if their expiration dates are reached before the NRC has made a final determination on the LRA.

The NRC responded to the licensee's October 31, 2022, letter on January 24, 2023 (Ref. 7),

and on March 2, 2023 (Ref. 8). In the letter dated January 24, 2023, the NRC staff informed the licensee that it would not resume the review of the withdrawn LRA. In the letter dated March 2, 2023, the NRC staff stated that it had determined that, pursuant to 10 CFR 50.12 and 10 CFR 54.15, the requested exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security and that special circumstances, as defined under the NRC's regulations, are present. Therefore, the NRC staff granted the licensee a one-time exemption from 10 CFR 2.109(b) to allow the licensee to submit an LRA for Diablo Canyon, Units 1 and 2 less than 5 years prior to the expiration of the licenses, but no later than December 31, 2023, and still receive the protection of the 10 CFR 2.109(b) timely renewal requirement while the NRC evaluates that LRA.

Based on the above, although the Diablo Canyon, Unit 1 and Unit 2 licenses state that they expire on November 2, 2024, and August 26, 2025, respectively, if the licensee files an acceptable LRA by December 31, 2023, then these licenses will not be deemed to have expired until the NRC makes a final determination on the LRA. Upon the submission of an LRA, the NRC would follow the license renewal process established in its regulations, including the steps and timeframes discussed below.

Standards for Issuance of a Renewed License As described in 1 O CFR 54.29, "Standards for issuance of a renewed license," the NRC may issue a renewed license for up to the sum of the additional amount of time requested (not to exceed 20 years) plus the remaining number of years on the operating license currently in effect (but not to exceed 40 years). First, though, the NRC must find that the licensee's LRA shows that certain safety standards have been or will be met. The NRC must also satisfy the environmental review requirements set forth in Subpart A, "National Environmental Policy Act-Regulations Implementing Section 102(2)," of 10 CFR Part 51 and other procedural requirements.

Steps Necessary for the NRC's License Renewal Process: Safety Review Under the AEA and 10 CFR Part 54, upon the submission to the NRC of an LRA for Diablo Canyon, the NRC staff would first conduct an acceptance review to determine whether the LRA is acceptable for docketing (i.e., is complete enough for the staff to begin its detailed reviews). If the LRA is determined to be acceptable for docketing, then the NRC staff would publish in the Federal Register a notice of opportunity to request a hearing on the LRA and would begin its technical review of the LRA, which consists of parallel safety and environmental reviews. The environmental review portion of the NRC staff's technical review is discussed in the next section of this report.

In accordance with 10 CFR 54.29, the NRC may issue a renewed license on the basis of its safety review if it finds that actions have been identified and have been or will be taken with respect to (1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified as requiring aging management review and (2) time-limited aging analyses that have been identified as requiring review, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis and that any changes made to the plant's current licensing basis will comply with the AEA and the NRC's regulations. Therefore, in general, the purpose of the NRC staff's license renewal safety review is to identify aging effects that could impair the ability of structures and components within the scope of license renewal to perform their intended functions and to demonstrate that these aging effects will be adequately managed during the period of extended operation, and to ensure that any in-scope time-limited aging analyses remain valid for the period of extended operation. The NRC staff's license renewal safety review also includes an aging management audit that involves both in-office and onsite technical audits. During all phases of the aging management audit, the NRC staff reviews the LRA and its related documents and references in greater detail. The NRC staff also reviews the licensee's operating experience for information applicable to aging management. Following the audit, the NRC staff issues an audit report. At the completion of its safety review, the NRC staff issues a safety evaluation report that summarizes the results of the safety review of the LRA for compliance with 10 CFR Part 54.

Additionally, the NRC staff performs license renewal safety inspections with respect to LRAs.

NRC Inspection Procedure 71002, "License Renewal Inspection," dated September 25, 2013 (Ref. 7), is implemented before any approval of an LRA to verify, in part, that the applicant's license renewal program, including supporting activities, is planned or implemented consistent with the requirements of 10 CFR Part 54 and the LRA. For Diablo Canyon, upon the submission by December 31, 2023, of an LRA that is acceptable for docketing, the NRC would schedule such an inspection to be performed at the plant during summer 2024. For plants with pending LRAs, the NRC also performs Inspection Procedure 71013, "Site Inspection for Plants with a Timely Renewal Application," dated September 25, 2013 (Ref. 10). This procedure was developed for the inspection of license renewal programs for licensees with timely renewal applications to allow NRC inspectors to timely verify, in part, that the licensee has implemented its commitments to aging management programs and time-limited aging analyses while the LRA is being determined and before entering the period of extended operation. It focuses on structures and components that are only accessible at reduced power levels and, therefore, the inspection is typically conducted during an outage. Because of this timing limitation, the NRC staff plans to perform this inspection at Diablo Canyon, Units 1 and 2 during fall 2023 and spring 2024, respectively.

In conclusion, the NRC's license renewal process generally starts with an acceptance review and a notice of opportunity to request a hearing and then involves a technical review, the safety portion of which includes audits, issuance of a safety evaluation report, and inspections. The NRC staff has determined that these steps would apply to an acceptable LRA for Diablo Canyon submitted by December 31, 2023, and has determined the potential timeframes associated with these steps, as discussed later in this report.

Steps Necessary for the NRC's License Renewal Process: Environmental Review Under the National Environmental Policy Act and 10 CFR Part 51, upon receipt of an acceptable LRA (which is required by the NRC's regulations to include an environmental report) for Diablo Canyon, the NRC staff would prepare an environmental impact statement supplement to the NRC's NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," Revision 1, issued June 2013 (the GEIS) (Ref. 11 ). The GEIS discusses (1) generic issues (referred to as Category 1 issues) for which no additional site-specific analysis is required unless new and significant information is identified and (2) site-specific issues (referred to as Category 2 issues) for which additional site-specific analysis is required in a supplement to the GEIS. Accordingly, through the combination of the GEIS and a supplement to the GEIS specific to the LRA, the NRC staff would satisfy its obligation to consider the environmental impacts of the continued operation of the plant for the requested period of extended operation and any proposed mitigation of those impacts, as warranted. The NRC staff would also consider the environmental impacts associated with reasonable alternatives to the proposed action of license renewal, including the impacts of not issuing renewed licenses. The NRC refers to this supplement to the GEIS as a supplemental environmental impact statement (SEIS). The SEIS would contain the NRC staff's recommendation, consistent with 10 CFR 51.103(a)(5), regarding whether the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy-planning decision-makers would be unreasonable. The NRC staff bases this recommendation on the analyses and findings in the GEIS; the environmental report submitted with the LRA; the NRC staff's consultation with Federal, State, Tribal, and local agencies; and the NRC staff's independent environmental review in the SEIS.

The first step in the NRC staff's preparation of a SEIS, after the acceptance of an LRA, is for the staff to conduct its scoping process, which is an opportunity for public engagement. The purpose of the scoping process is to identify, through solicitation and information gathering (which usually includes a public meeting), significant issues that the NRC staff should consider in the environmental portion of its technical review. As part of preparing a SEIS, the NRC staff considers a wide range of environmental impacts of the continued operation of a plant during the period of extended operation, including impacts to fish and wildlife; water, air, and terrestrial resources; historical and cultural resources; socioeconomics; environmental justice; human health; and land use. The NRC staff also performs an environmental audit and site visit to obtain first-hand knowledge of the plant site. Audit team members for the NRC staff focus on reviewing documents and information requests in the environmental audit plan to gain an understanding of the facility, to verify information, and to develop any necessary requests for additional information.

Once the NRC staff completes the environmental portion of its technical review, it publishes a draft of the SEIS. Public comments are solicited through a notice in the Federal Register, which allows for an additional opportunity for public engagement and usually includes a public meeting. The NRC staff reviews comments received on the draft SEIS. In response to comments, appropriate changes to the SEIS are made, and a final SEIS is published.

In conclusion, the environmental review portion of the NRC's license renewal process includes steps such as scoping, audits, issuance of a draft SEIS for public comment, and issuance of a final SEIS after the consideration of public comments on the draft. The NRC staff has determined that these steps would apply to an acceptable LRA for Diablo Canyon submitted by December 31, 2023, and has determined the potential timeframes associated with these steps, as discussed further below.

Steps Necessary for the NRC's License Renewal Process: Additional Requirements and Decision In addition to the NRC staff's acceptance review and noticing of an LRA and its technical review of safety and environmental issues, under 10 CFR 54.25, "Report of the Advisory Committee on Reactor Safeguards," each LRA is referred to the NRC's Advisory Committee on Reactor Safeguards (ACRS) for an independent review and report. Any report is made part of the record of the LRA and is available to the public. Additionally, the NRC staff's technical review is subject to the outcome of any adjudicatory proceeding on the LRA that may occur in response to the NRC's noticing of the LRA in the Federal Register.

If, based on the NRC staff's safety review, the NRC staff's environmental review, the ACRS's recommendation, and the outcome of any adjudicatory proceeding, the relevant safety and environmental standards in the NRC's regulations are determined to be satisfied, then the NRC may issue a renewed license.

Steps Necessary for the NRC's License Renewal Process: Potential Timeframes The above-described license renewal process has well-defined steps established in the NRC's regulations that the NRC staff has followed in support of its previous issuance of over 90 renewed licenses. Based on this experience, the NRC staff understands a typical license renewal review to take approximately 20 to 24 months. In the table below, the NRC staff lists these steps and applies this typical schedule to the potential for a PG&E submittal of an LRA for Diablo Canyon by December 31, 2023. The NRC staff will not develop a final schedule for the review of such a submittal, however, until it has actually received an LRA and determined it to be acceptable for docketing. Additionally, any final schedule could vary from the below example schedule depending on a number of factors, such as the quality of the LRA, the complexity of the review, the timeliness of the licensee's responses to NRC staff requests for additional information, and the coordination of the timing for onsite audits and inspections. Available NRC staff resources could also impact the final schedule.

Milestone Schedule Example Date Receive License Renewal Application (LRA)

T=0 December 2023 Publish Federal Register Notice (FRN)-LRA T+1 month January 2024 Availability Publish FRN-Docketing Acceptance/Rejection and Opportunity to Request a Hearing (Note: This is T+2 months February 2024 when the schedule would be set)

Publish FRN-Notice of Intent to Prepare a Supplemental Environmental Impact Statement T+2 months February 2024 (SEIS) and Conduct Scoping Public Meeting-Overview of License Renewal March 2024:

T+3 months Prior to end of scoping Process and Environmental Scoping period Environmental Scoping Period Ends March 2024:

T+3 months 30 days after the FRN to conduct scoping is published March 2024:

Deadline for Filing Hearing Requests T+3 months 60 days after the FRN for opportunity to request a hearing is published Issue Draft SEIS T+11 months November 2024 Public Meeting-Draft SEIS Meeting, if Needed T +12 months December 2024 January 2025:

End of Draft SEIS Comment Period T+13 months 60 days after issuance of draft SEIS Issue Safety Evaluation Report T +14 months February 2025 Advisory Committee on Reactor Safeguards T+16 months April 2025 (ACRS) Subcommittee Meeting Issue Final SEIS T +17 months May 2025 U.S. Environmental Protection Agency FRN T+18 months June 2025 Published-Availability of Final SEIS ACRS Full Committee Meeting T+18 months June 2025 Decision T+22 months October 2025 PART B: NRC'S AUTHORITY TO ENSURE THE CONTINUED OPERATION OF A NUCLEAR POWER PLANT IN THE ABSENCE OF A LICENSE APPLICATION EXTENSION REQUEST AND WHETHER ANY CHANGES TO THIS AUTHORITY WOULD BE REQUIRED House Report 117-394 states that the NRC shall provide a report regarding its authority, and any changes to authority that would be required, to ensure the continued operation of a nuclear power plant in the absence of a license application extension request.

Under Section 101, "License Required," of the AEA, it is unlawful, with certain inapplicable exceptions, for any person within the United States to operate a nuclear power plant except under and in accordance with a license issued by the NRC pursuant to Section 103, "Commercial Licenses," or Section 104, "Medical Therapy and Research and Development," of the AEA. The Diablo Canyon licenses were issued pursuant to section 104 of the AEA which does not discuss limits on the length of licenses or renewal since the issuance of those licenses, Congress has amended Section 102, "Utilization and Production Facilities for Industrial or Commercial Purposes," of the AEA to require that all initial licenses for facilities with characteristics similar to those of Diablo Canyon would be issued pursuant to section 103 of the AEA. Section 103 of the AEA limits the length of initial operating licenses to a period not exceeding 40 years and states that these licenses may be renewed upon the expiration of such period. Consistent with the NRC's regulations promulgated under the authority of the AEA, the Diablo Canyon, Units 1 and 2 licenses are limited to 40 years and would expire on November 2, 2024, and August 26, 2025, respectively. Upon these expiration dates and in the absence of an LRA that triggers the timely renewal requirement in the NRC's regulations, there is no authority for the continued operation of the plant by the licensee.

Under Section 188 of the AEA, "Continued Operation of Facilities," the NRC can require the continued operation of a nuclear power plant, but only in the situation where the plant's license had been first revoked by the NRC pursuant to Section 186 of the AEA, "Revocation". Section 186 of the AEA discusses the circumstances under which the NRC may revoke a license; none of these apply to Diablo Canyon and the expiration of its licenses in their normal course.

Additionally, under Section 108 of the AEA, "War or National Emergency," the NRC can order the operation of any nuclear power plant whenever Congress declares a state of war or national emergency and doing so is necessary to the common defense and security. These circumstances do not apply to this plant.

Section 187 of the AEA, "Modification of License," states that the terms and conditions of all licenses for nuclear power plants are subject to amendment, revision, or modification by reason of amendments to the AEA or by reason of rules and regulations issued in accordance with the terms of the AEA. Section 161 of the AEA, "General Provisions," generally gives the NRC the authority to issue rules, regulations, and orders; however, this authority is necessarily circumscribed by the terms of the AEA. As discussed in part A of this report, the NRC has promulgated rules that govern, upon application by the licensee, the renewal of the licenses of nuclear power plants, including the timely renewal requirement, that are consistent with the NRC's authority under the AEA (i.e., the statement in section 103 of the AEA that licenses may be renewed upon their expiration). The NRC does not have rules regarding any other method for extending the time period for licenses beyond the statutory maximum of 40 years, which is consistent with the fact that the AEA only discusses renewal as the option for extending this time period.

Modifying the AEA to create additional authority to allow a licensee to operate on an expired license, or to create authority for the NRC to perform a unilateral action of issuing a new, amended, or renewed license that goes beyond the 40 years prescribed in the existing statute without the submission of an LRA, would be complex. While sections 108, 186, and 188 of the AEA could be useful examples of how such authority might be structured, the development of this authority would have to address the numerous existing requirements, discussed above, that require the NRC to use its license renewal process, in response to an LRA, to extend nuclear power plant operation beyond 40 years.

Conclusion To support the continued operation of nuclear power plants, the NRC has established in its regulations, consistent with its statutory authority, a license renewal process with well-defined steps and timeframes, including a timely renewal requirement. Although the NRC has the authority to ensure the continued operation of nuclear power plants during war or national emergency or after the revocation of their licenses, these circumstances are not applicable to Diablo Canyon. With the NRC's March 2, 2023, issuance of an exemption to PG&E from the timely renewal requirement in 10 CFR 2.109(b ), as long as PG&E submits an acceptable LRA for Diablo Canyon by December 31, 2023, then the continued operation of the plant will be permitted under the NRC's license renewal process until the NRC has made a final determination on the LRA.

References

1. Letter from James R. Becker, Pacific Gas and Electric Company, to the NRC, "License Renewal Application," November 23, 2009 (Agencywide Documents Access and Management System Accession No. ML093340086).

2. NRC, "Safety Evaluation Report Related to the License Renewal of Diablo Canyon Nuclear Power Plant, Units 1 and 2," June 2011 (ML11153A103).

3. Letter from John T. Conway, Pacific Gas and Electric Company, to the NRC, "Request for Deferral of Issuance of Diablo Canyon Power Plant Renewed Operating Licenses," April 10, 2011 (ML111010592).

4. Letter from Edward D. Halpin, Pacific Gas and Electric Company, to the NRC, "Request to Suspend NRC Review of Diablo Canyon Power Plant License Renewal Application," June 21, 2016 (ML16173A454).

5. Letter from James M. Welsch, Pacific Gas and Electric Company, to the NRC, "Request to Withdraw the Diablo Canyon Power Plant License Renewal Application," March 7, 2018 (ML18066A937).

6. Letter from Paula Gerfen, Pacific Gas and Electric Company, to the NRC, "Request to Resume Review of the Diablo Canyon Power Plant License Renewal Application or, Alternatively, for an Exemption from 10 CFR 2.109(b ), Concerning a Timely Renewal Application," October 31, 2022 (ML22304A691 ).

7. Letter from Lauren K. Gibson, NRC, to Paula Gerfen, Pacific Gas and Electric Company, "Diablo Canyon Power Plant, Units 1 and 2-Staff Decision to Not Resume Review of Withdrawn License Renewal Application," January 24, 2023 (ML22343A179).

8. Letter from Brian K. Harris, NRC, to Paula Gerfen, Pacific Gas and Electric Company, "Diablo Canyon Power Plant, Units 1 and 2-Exemption from the Requirements Related to Submission of a License Renewal Application," March 2, 2023 (ML23026A102 (package)).

9.

NRC Inspection Manual, Inspection Procedure 71002, "License Renewal Inspection,"

August 23, 2011 (ML11236A114).

10. NRC Inspection Manual, Inspection Procedure 71013, "Site Inspection for Plants with a Timely Renewal Application," September 25, 2013 (ML13032A102).

11. NRC, NUREG-1437, Revision 1, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," June 2013 (ML13106A241, ML13106A242, and ML13106A244).