ML23283A287
| ML23283A287 | |
| Person / Time | |
|---|---|
| Issue date: | 08/29/2023 |
| From: | Andrew Averbach, Eric Michel NRC/OGC |
| To: | |
| References | |
| Case: 23-852 DktEntry: 25.1 | |
| Download: ML23283A287 (1) | |
Text
No.23-852 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP, Petitioners,
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION, AND THE UNITED STATES OF AMERICA, Respondents,
and
PACIFIC GAS & ELECTRIC COMPANY, Intervenor.
On Petition for Review of an Order of the U.S. Nuclear Regulatory Commission SUPPLEMENTAL EXCERPTS OF RECORD
TODD KIM MARIAN L. ZOBLER Assistant Attorney General General Counsel JUSTIN D. HEMINGER ANDREW P. AVERBACH Senior Litigation Counsel Solicitor Environmental and Natural ERIC V. MICHEL Resources Division Senior Attorney U.S. Department of Justice Office of the General Counsel Justin.Heminger@usdoj.gov U.S. Nuclear Regulatory Commission (202) 514-5442 Eric.Michel2@nrc.gov (301) 415-0932
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INDEX Date Document Page
1/20/23 PG&E Response to 1/10/23 Submission to the NRC SER-4 2/1/23 Comment received from Third Way Supporting PG&Es SER-3 8 Timely Renewal Exemption Request 2/13/23 Letter from Nuclear Energy Institute Supporting PG&Es SER-4 0 Timely Renewal Exemption Request Comment received from Clean Air Task Force and 2/23/23 Carbon Free California Supporting PG&Es Timely SER-49 Renewal Exemption Request 2/28/23 PG&E Response to 2/13/23 Letter to NRC SER-54 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the matter of:
Docket Nos. 50-275 and 50-373 PACIFIC GAS AND ELECTRIC COMPANY January 20, 2023 (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
PACIFIC GAS AND ELECTRIC COMPANY RESPONSE TO THE JANUARY 10, 2023 EXTRAPROCEDURAL FILING BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP
Timothy P. Matthews, Esq.
Paul M. Bessette, Esq.
Ryan K. Lighty, Esq.
Counsel for Pacific Gas and Electric Company TABLE OF CONTENTS
I. INTRODUCTION............................................................................................................. 1 II. BACKGROUND............................................................................................................... 2 A. The Original LRA.................................................................................................. 2 B. Post-Withdrawal Developments............................................................................ 4 III. THE FILING IS PROCEDURALLY IMPROPER AND IDENTIFIES NO COMPELLING REASON TO DEVIATE FROM THE NRCS ESTABLISHED PROCESSES...................................................................................................................... 7 IV. THE FILING IDENTIFIES NO BASIS TO DENY THE RESUMPTION REQUEST.......................................................................................................................... 9 A. Resuming Review of a Previously Docketed Application Is Lawful and Consistent with Longstanding NRC Policy and Precedent.................................... 9 B. Supplementation of a Previously Docketed Application Does Not Invalidate the Original Docketing Decision Post Hoc......................................... 12 C. Resumption Would Not Prejudice Filers Ability to Participate in the NRC Review Process Because It Would Return Them to the Status Quo Ante........... 14 V. THE FILING IDENTIFIES NO BASIS TO DENY THE EXEMPTION REQUEST........................................................................................................................ 17 A. The NRC Has Discretion to Adopt the Timeliness Threshold Proposed in the Exemption Request.................................................................................... 18 B. The Exemption Is Justified Under the Instant Circumstances............................. 21 C. Filers Assertion that the AEA Nullifies the Timely Renewal Doctrine Is Extreme and Unsupported.................................................................................... 23 D. The Exemption Request Fully Complies with Part 51 and NEPA...................... 25 VI. CONCLUSI ON................................................................................................................ 27
ii TABLE OF AUTHORITIES NRC Cases Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3),
CLI-22-03, 95 NRC __ (Feb. 24, 2022) (slip op.).................................................................. 16 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),
CLI-15-6, 81 NRC 340 (2015)................................................................................................ 23 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),
CLI-11-14, 74 NRC 801 (2011)................................................................................................ 7 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),
CLI-16-17, 84 NRC 99 (2016)................................................................................................ 24 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),
CLI-19-7, 90 NRC 1 (2019).................................................................................................. 1, 7 Oklo Power, LLC (Aurora Reactor),
CLI-20-17, 92 NRC 521 (2020).............................................................................................. 12 Pac. Gas & Elec. Co (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-16-11, 83 NRC 524 (2016)................................................................................................ 3 Pac. Gas & Elec. Co (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
LBP-15-29, 82 NRC 246 (2015)......................................................................................... 3, 15 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),
LBP-05-29, 62 NRC 635 (2005)............................................................................................. 14 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2),
CLI-89-3, 29 NRC 234 (1989).................................................................................................. 6 Puerto Rico Elec. Power Auth. (North Coast Nuclear Plant, Unit 1),
ALAB-662, 14 NRC 1125 (1981)............................................................................................ 9 Union Elec. Co. (Callaway Plant, Unit 2),
CLI-11-5, 74 NRC 141 (2011).................................................................................................. 8 Yankee Atomic Elec. Co. (Yankee Rowe Nuclear Power Station),
CLI-91-11, 34 NRC 3 (1991)................................................................................................ 7, 8 Federal Court Cases Clinton v. City of New York, 524 U.S. 417 (1998)........................................................................ 24 Comm. for Open Media v. FCC, 543 F.2d 861 (D.C. Cir. 1976)................................................. 22 Friends of the Earth v. U.S. Nuclear Regulatory Commission and United States of America, No. 16-1004, slip op. (D.C. Cir. Sept. 25, 2018)...................................................... 4 Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982).......................................................... 24 King v. Burwell, 135 S. Ct. 2480 (2015)....................................................................................... 24 Mass. v. NRC, 878 F.2d 1516 (1st Cir. 1989)............................................................................... 24 Pan-Atl. Steamship Corp. v. Atl. Coast Line R.R. Co., 353 U.S. 436 (1958)............................... 22
iii Statutes 5 U.S.C. § 558............................................................................................................................... 18
Regulations 10 C.F.R. § 2.101.......................................................................................................................... 12 10 C.F.R. § 2.109................................................................................................................... passim 10 C.F.R. § 2.202.......................................................................................................................... 21 10 C.F.R. § 2.309.......................................................................................................... 1, 15, 16, 20 10 C.F.R. § 2.323............................................................................................................................ 7 10 C.F.R. § 2.345............................................................................................................................ 1 10 C.F.R. § 2.802............................................................................................................................ 1 10 C.F.R. § 51.21.......................................................................................................................... 27 10 C.F.R. § 51.22.............................................................................................................. 25, 26, 27
Federal Register Notices Advance Notice of Proposed Rulemaking; Notice of Workshop: Nuclear Power Plant License Renewal; Public Workshop on Technical and Policy Consideration, 54 Fed. Reg. 41,980 (Oct. 13, 1989)....................................................................................... 18 Atomic Energy Commission; Rules of Practice; Revision of Rules, 27 Fed. Reg. 377 (Jan. 13, 1962)............................................................................................ 19 Categorical Exclusions from Environmental Review; Final Rule, 75 Fed. Reg. 20,248 (Apr. 19, 2010)...................................................................................... 26 Commission Policy Statement on Deferred Plants; Final Policy Statement, 52 Fed. Reg. 38,077 (Oct. 14, 1987)....................................................................................... 11 Notice of Acceptance for Docketing of th e Application, Notice of Opportunity for Hearing for Facility Operating License Nos. DPR-80 and DPR-82 for an Additional 20-Year Period; Pacific Gas & Electric Company, Diablo Canyon Nuclear Power Plant, Units 1 and 2; and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information (SUNSI) for Contention Preparation, 75 Fed. Reg. 3,493 (Jan. 21, 2010)..................................................................................... 2, 12 Nuclear Power Plant License Renewal; Final Rule, 56 Fed. Reg. 64,943 (Dec. 13, 1991)...................................................................................... 19 Nuclear Power Plant License Renewal; Proposed Rule, 55 Fed. Reg. 29,043 (July 17, 1990)....................................................................................... 19 Pacific Gas & Electric Company; Diablo Canyon Power Plant, Unit Nos. 1 and 2; Withdrawal of License Renewal Application, 83 Fed. Reg. 17,688 (Apr. 23, 2018)........................................................................................ 4
iv Tennessee Valley Authority; Notice of Receipt of Update to Application for Facility Operating License and Notice of Opportunity for Hearing for the Watts Bar Nuclear Plant, Unit 2 and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information fo r Contention Preparation, 74 Fed. Reg. 24,044 (May 22, 2009)...................................................................................... 16
Acts of Congress Atomic Energy Act of 1954, Pub. L. No.83-703, 68 Stat. 919 (1954)...................... 12, 18, 22, 23 National Environmental Policy Act of 1969, Pub. L. No.91-190, 83 Stat. 852 (1970)......... 18, 25
Other Authorities California Energy Commission, Docket No. 21-ESR-01, Notice of Joint-Agency Remote-Access Workshop, RE: Diablo Canyon Power Plant, (Aug. 5, 2022, Revised Aug. 11, 2022).......................................................................................................................... 5 California Senate Bill No. 846, Diablo Canyon powerplant: extension of operations, (approved by Governor Sept. 2, 2022)................................................................................ 5, 22 Management Directive 9.17, Organization and Functions, Office of the Executive Director for Operations (May 26, 2015) (ML18073A263)..................................................... 8 Motion, BLACKS LAW DICTIONARY (11th ed. 2019)..................................................................... 7 Public Utilities Commission of the State of California, Decision Approving Retirement of Diablo Canyon Nuclear Power Plant, Decision 18-01-022 (Jan. 11, 2018)............................. 4 SECY-21-0001, Rulemaking Plan - Transforming the NRCs Environmental Review Process (Dec. 31, 2020) (ML20212L393)............................................................................ 26
v I. INTRODUCTION
Pacific Gas and Electric Company (PG&E) hereby submits this response to the
document styled as a Petition (referred to herein as the Filing1) and emailed to the Secretary
of the U.S. Nuclear Regulatory Commission (NRC) on January 10, 2023, by San Luis Obispo
Mothers for Peace (SLOMFP), Friends of the Earth (FOE), and Environmental Working
Group (EWG) (collectively, the Filers).2 The Filing asks the Commission to exercise its
supervisory authority to deny PG&Es October 31, 2022, requests to resume review of the
Diablo Canyon Power Plant (DCPP) license renewal application (LRA) (the Resumption
Request) or, alternatively, for a regulatory exemption (the Exemption Request).3
As a general matter, the Resumption Request and Exemption Request are currently under
consideration by the NRC Staff pursuant to th e NRCs established and longstanding regulatory
process. The Filing requests that the Commissi oners exercise their supervisory authority to
intercede in the Staffs review and summarily deny both requests. However, there is no
procedural basis in the NRCs Rules of Practice and Procedure that authorizes a request of this
typeand the Filing itself does not claim otherwise. In fact, the Commission has long held that
such requests are procedurally improper.4 In essence, the Filing is simply an unsolicited
1 Petition is an established and defined term in the NRCs Rules of Practice and Procedure. See, e.g.,
10 C.F.R. §§ 2.309 (petitions to intervene), 2.345 (petitions for reconsideration), 2.802 (petitions for rulemaking). Filers are represented by experienced NRC counsel. Because the Filers use the term in a manner that may lead to confusion, PG&E uses these neutral terms.
2 Petition by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group to Deny Pacific Gas & Electric Companys Request to Review Undocketed license Renewal Application for the Diablo Canyon Unit 1 and Unit 2 Reactors and Petition to Deny Pacific Gas & Electric Companys Request to Extend the Diablo Canyon Reactors License Terms Without Renewing the Licenses (Jan. 10, 2023).
3 Letter from P. Gerfen, PG&E, to NRC Document Control Desk, 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 (Oct. 31, 2022) (ML22304A691) (Gerfen Letter) (Enclosure 1 is the Resumption Request and Enclosure 2 is the Exemption Request).
4 See, e.g., NextEra Ener gy Seabrook, LLC (Seabrook Station, Unit 1), CLI-19-7, 90 NRC 1, 10 (2019).
comment letter and should be regarded as such by the agency. 5 Regardless, as explained below,
Filers fail to identify any compelling reason for the Commission to jettison its longstanding
established regulatory process. The Filing should be rejected or disregarded for that reason
alone.
Furthermore, even if the Commission considers the Filing in an extraordinary exercise of
its discretion (a result that is not warranted here), it should concl ude that Filers fail to identify
any legitimate basis to deny either the Resumption Request or the Exemption Request. The
Filing contains a number of complaints and assertions that are individually and collectively
baseless, legally erroneous, and factually inaccura te. Ultimately, the Filing identifies no reason
that either request should not be granted, and the Commission should allow the NRC Staff to
continue its process in the normal course.
II. BACKGROUND
A. The Original LRA
On November 23, 2009, PG&E submitted the LRA seeking the renewal of Facility
Operating Licenses DPR-80 and DPR-82 for DCPP Units 1 and 2, respectively. The NRC Staff
determined that the LRA was complete and acceptable for docketing and published a notice of
hearing opportunity in the Federal Register.6 At various points thereafter, SLOMFP and FOE
5 Filers were parties to two prior unsolicited comment letters submitted to the NRC discussing topics similar to those raised in the Filing. See Letter from J. Swanson, et al. to NRC Commissioners, Objection to PG&Es Requests Related to Withdrawn License Renewal Application for Diablo Canyon Nuclear Power Plant (Nov.
17, 2022); Letter from J. Swanson, et al. to NRC Commissioners, PG&E Must be Required to Submit a New License Renewal Application for Diablo Canyon Units 1 and 2 and NRC Must Comply With All Safety and Environmental Requirements in Conducting its Review (Dec. 6, 2022) (ML22342B239) (collectively Comment Letters).
6 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License Nos. DPR-80 and DPR-82 for an Additional 20-Year Period; Pacific Gas & Electric Company, Diablo Canyon Nuclear Power Plant, Units 1 and 2; and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information (SUNSI) for Contention Preparation, 75 Fed. Reg. 3,493 (Jan. 21, 2010) (Docketing Notice).
2 (but not EWG) petitioned to intervene in the proceeding and proposed various contentions. The
contested adjudicatory proceeding continued for several years and was fi nally terminated by the
Atomic Safety and Licensing Board (ASLB) in October 2015. 7 The Commissions final
adjudicatory order in the proceeding, denying peti tions for review of certain ASLB orders, was
issued in June 2016.8 FOE petitioned the U.S. Court of Appeals for the District of Columbia
Circuit to review the Commissions adjudicatory order denying its hearing request and petition to
intervene.9 SLOMFP did not seek judicial review of any NRC adjudicatory decisions.
The NRC Staff conducted its safety and environmental reviews in parallel with the
adjudicatory proceeding. This included reviews of various supplements and revisions to the
LRA, multiple public meetings on licensing and environmental matters, and multiple audits on
safety and environmental issues.10 The Staff ultimately issued a safety evaluation report on
June 2, 2011, documenting its safety review, but did not issue a draft or final supplemental
environmental impact statement (EIS). 11
On June 21, 2016, PG&E requested that the NRC suspend activity on the LRA.12 On
March 7, 2018, PG&E requested to withdraw the LRA and all associated correspondence and
commitments.13 The decision to withdraw the LRA was based on the determination that
7 Pac. Gas & Elec. Co (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-15-29, 82 NRC 246 (2015).
8 Pac. Gas & Elec. Co (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-16-11, 83 NRC 524 (2016).
9 Petition for Review, Friends of the Earth v. U.S. Nuclear Regulatory Commission and United States of America, No. 16-1004 (D.C. Cir. Jan. 8, 2016), Document No. 1593061.
10 See generally Diablo Canyon - License Renewal Application, NRC.GOV, https://www.nrc.gov/reactors/operating/licensing/renewal/applications/diablo-canyon.html.
11 See generally id.
12 Letter from E. Halpin, PG&E, to NRC Document Control Desk, Request to Suspend NRC Review of Diablo Canyon Power Plant License Renewal Application (June 21, 2016) (ML16173A454).
13 Letter from J. Welsch, PG&E, to NRC Document Control Desk, Request to Withdraw the Diablo Canyon Power Plant License Renewal Application (Mar. 7, 2018) (ML18066A937).
3 continued baseload operation of the two DCPP units beyond their licensed operating periods was
not necessary to meet Californias projected energy demand requirements in light of changes in
electricity supply in the state. This resource planning decision was approved by the California
Public Utilities Commission (CPUC) on January 11, 2018.14 On April 16, 2018, the NRC
granted PG&Es request to withdraw the LRA. 15 On September 25, 2018, the U.S. Court of
Appeals for the District of Columbia Circuit granted a motion by PG&E and the NRC to dismiss
FOEs petition for review in absentia.16
B. Post-Withdrawal Developments
After withdrawal of the LRA, PG&E began working on decommissioning planning
efforts to support the transition to active de commissioning upon shutdown of DCPP Units 1
and 2 at the expiration of the operating licenses in 2024 and 2025, respectively. Recently, the
Office of the Governor of California raised c oncerns regarding the current and future energy
needs of California given the planned retire ment of DCPP. The California Energy Commission
issued a Notice of Joint-Agency Remote-Access Workshop which included the following
summary of the current energy situation in California:
California risks greater supply shortfalls in the comi ng years and beyond due to delays in online dates for procurement that has been authorized to backfill significant planned retirements in 2024 and 2025, including the Diablo Canyon Power Plant. California is seeing greater than anticipated
14 Public Utilities Commission of the State of California, Decision Approving Retirement of Diablo Canyon Nuclear Power Plant, Decision 18-01-022 (Jan. 11, 2018), available at https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M205/K423/205423920.PDF. That order approved a settlement authorizing PG&E to recover certain NRC license renewal costs, but did not otherwise address the withdrawal of the LRA.
15 Pacific Gas & Electric Company; Diablo Canyon Power Plant, Unit Nos. 1 and 2; Withdrawal of License Renewal Application, 83 Fed. Reg. 17,688 (Apr. 23, 2018).
16 Friends of the Earth v. U.S. Nuclear Regulatory Commission and United States of America, No. 16-1004, slip op. (D.C. Cir. Sept. 25, 2018), Document No. 1752493 (Upon consideration of the joint motion to dismiss filed by the respondents and intervenor, and the lack of any response by the petitioner, it is ORDERED that the motion be granted and this case be dismissed.).
4 load growth and will need to plan for a continued load growth as a result of increasing electrification of transportation and other sectors.
To ensure that all Californians have access to a supply of reliable and resilient energy resources during extreme weather events, Governor Newsom has expressed that all options need to be considered, including the option of extending the operating license of the Diablo Canyon Power Plant beyond its current planned closure date of 2024 (Unit 1) and 2025 (Unit 2).
Preserving this option would require legi slative action as well as subsequent legislation and substantive review and approval by multiple state, local, and federal regulatory entities that have jurisdiction over safety, operations, environmental impact, and funding for the facility.17
On September 2, 2022, the Governor of California signed Senate Bill No. 846, which
invalidated the prior CPUC decision approving the retirement of DCPP Units 1 and 2 by the
expiration of the operating licenses, directed PG&E to seek renewal of those licenses, and
authorized a loan in the amount of up to $1.4B for that purpose.18 Shortly thereafter, the U.S.
Department of Energy certified both units to participate in the Civil Nuclear Credit program and
conditionally awarded funding to support the continued operation of DCPP.19
Consistent with the direction of the Gover nor of California to preserve the option of
continuing operation of DCPP beyond the expiration of the current operating licenses, PG&E
submitted the Resumption Request to the NRC on October 31, 2022, requesting the NRC Staff to
resume its review of the LRA and confirm that, under 10 C.F.R. § 2.109, Effect of timely
renewal, application, the NRC will not deem the existing licenses to have expired until the NRC
has made a final determination on the LRA. Alternatively, in the event that the NRC decides not
17 California Energy Commission, Docket No. 21-ESR-01, Notice of Joint-Agency Remote-Access Workshop, RE: Diablo Canyon Power Plant, (Aug. 5, 2022, Revised Aug. 11, 2022), available at https://efiling.energy.ca.gov/GetDocument.aspx?tn=244536.
18 California Senate Bill No. 846, Diablo Canyon powerplant: extension of operations, (approved by Governor Sept. 2, 2022) (SB 846), text available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB846.
19 Biden-Harris Administration Announces Major Investment to Preserve Americas Clean Nuclear Energy Infrastructure, ENERGY.GOV (Nov. 21, 2022), https://www.energy.gov/articles/biden-harris-administration-announces-major-investment-preserve-americas-clean-nuclear.
5 to resume its review of the LRA and instead requires PG&E to submit a new LRA (which PG&E
would aim to do by December 31, 2023), PG&E also submitted the Exemption Request, seeking
an exemption from the five-year time limit specified in the NRC timely renewal regulation in 10
C.F.R. § 2.109(b). The NRC Staff held a public meeting on December 8, 2022, to discuss the
Resumption Request and the Exemption Request.20 During that meeting, th e NRC confirmed (in
response to a question from counsel for SLOMFP) that the NRC Staff has the requisite delegated
authority to act on those requests, but had not yet decided whether the matter involved a
significant policy issue that must be presented to the Commission. 21
Meanwhile, on November 17, 2022, and December 6, 2022, Filers (along with a fourth
entity that did not join the Filing) submitted two unsolicited comment letters with the NRC
asserting that the Resumption Request and Exemption Request were unlawful and
demanding, among other things, that the Commission deny both.22 On January 10, 2023,
apparently frustrated23 by the Commissions failure to promptly respond to their demands,
Filers submitted the instant Filing to the Secretar y of the NRC via email. Essentially, the Filing
repeats certain arguments from the Comment Letter s and repackages them with an adjudicatory
caption.24 Tellingly, the Filing identified no procedural basis.
20 Letter from B. Harris, NRC to P. Gerfen, PG&E, Diablo Canyon Power Plant, Units 1 and 2 - Public Meeting Summary of Pre-Submittal Meeting (Jan. 6, 2023) (ML23004A149).
21 See Filing, Attach. 1.
22 Letter from J. Swanson, et al. to NRC Commissioners, Objection to PG&Es Requests Related to Withdrawn License Renewal Application for Diablo Canyon Nuclear Power Plant (Nov. 17, 2022); Letter from J.
Swanson, et al. to NRC Commissioners, PG&E Must be Required to Submit a New License Renewal Application for Diablo Canyon Units 1 and 2 and NRC Must Comply With All Safety and Environmental Requirements in Conducting its Review (Dec. 6, 2022) (ML22342B239).
23 See Filing at 1 n.2 (Petitioners have received no response to their letters from the NRC.).
24 Filers also purport to adopt and incorporate by reference those comment letters into the Filing. Filing at 1 n.2. But that is not permissible in a pleading. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2),
CLI-89-3, 29 NRC 234, 240-41 (1989) ([W]holesale incorporation by reference does not serve the purposes of a pleading.... The Commission expects parties to bear their burden and to clearly identify the matters on which they intended to rely with reference to a specific point.)
6 In the absence of any direction to date from the NRC Secretary as to how the Filing
should be treated, and in an abundance of caution, PG&E hereby submits this response within
the 10-day period specified in 10 C.F.R. § 2.323 for answers to general motions.
III. THE FILING IS PROCEDURALLY IMPROPER AND IDENTIFIES NO COMPELLING REASON TO DEVIATE FROM THE NRCS ESTABLISHED PROCESSES
As an initial matter, the Filing is remarkable for its lack of any supporting legal or
procedural basis. It is generically mis-styled as a Petition.25 However, there is no reference,
anywhere in the document, to any regulation that purportedly authorizes the submission of the
Filing. Nor does any such regulation exist.
Moreover, affirmative requests for exercise of supervisory authority (such as the instant
Filing) are disfavored and improper. Alt hough the Commission has occasionally exercised its
discretionary authority to consider such filings, the Commission has squarely heldincluding in
a recent unanimous decisionthat such filings are procedurally improper.26 Indeed, the
Commission has admonished that interested parties should limit their reques ts for our review to
those set forth in our rules.27 Filers identify no such rule here, perhaps in an attempt to avoid
the timeliness and consultation requirements governing motions.28
Additionally, the Commission exercises its supervisory authority sparingly.29 Indeed,
most of the cases cited by File rs are plainly distinguishable from the instant scenario because
25 See supra note 1.
26 Seabrook, CLI-19-7, 90 NRC at 10.
27 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-11-14, 74 NRC 801, 813 n.67 (2011).
28 The most proximate procedural analog to the Filing is a Motion. See Motion, BLACKS LAW DICTIONARY (11th ed. 2019) (A written [] application requesting [] a specified ruling or order.). Here, the NRCs rule governing general motions, 10 C.F.R. § 2.323, would compel rejection of the Filing because it fails to satisfy the timeliness requirement in § 2.323(a)(2) and because File rs failed to consult prior to filing, as required by
§ 2.323(b), among other procedural defects related to filing and service.
29 Yankee Atomic Elec. Co. (Yankee Rowe Nuclear Power Station), CLI-91-11, 34 NRC 3, 6 (1991).
7 those cases involved allegations of an imminent safety or security concern.30 That is not, at all,
the case here. The Filing asks the Commission to intervene in decisions regarding (i) which
regulatory process (i.e., resumption vs. new application) will be used to review a licensing
application, and (ii) the chronological threshold for when a renewal application is considered
timely. These process and schedule issues do not ra ise imminent safety or security concerns.
The Commission, of course, may exercise its discretion over any matter if it finds a
compelling reason to address a novel or important issue. 31 However, the Staff is already
obligated to [p]resent all significant questi ons of policy to the Commission for resolution.32
Thus, if the Staff identifies a significant policy question related to the Resumption Request or the
Exemption Request, there is an existing process for obtaining Commission input. Furthermore,
and contrary to numerous assertions in the Filing, Filers and other members of the public will
have a full and fair opportunity to participate in subsequent licensing activitiesat the
appropriate time, and regardless of whether Staff resumes review of the original application or
begins review of a new applicationto the full extent required by law. PG&E has never
indicated or implied otherwise.33 Ultimately, Filers identify no compelling reason to
circumvent the agencys established process.
30 See Seabrook, 90 NRC at 8 (allegation regarding significant hazards); Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 146 (2011) (pertaining to the Fukushima accident); Yankee Rowe, CLI-91-11, 34 NRC at 6 (alleging an imminent problem with pressure vessel integrity).
31 Seabrook, 90 NRC at 10.
32 Management Directive 9.17, Organization and Functio ns, Office of the Executive Director for Operations at 4 (May 26, 2015) (ML18073A263).
33 See Resumption Request at 4-5 (PG&E noting its expectation that, if the NRC staff resumes its review of the LRA, the public will again have the opportunity to participate in the regulatory process to the extent required by law. These participatory opportunities may include attendance at anticipated public meetings, submission of comments on a future draft supplemental environmen tal impact statement, and the ability to challenge materially new information in an adjudicatory forum).
8 As explained below, even if Filers had articulated some compelling need for Commission
intervention in the Staffs ordinary process (they have not), the Filing certainly does not provide
a colorable basis for the Commission to deny either the Resumption Request or the Exemption
Request.
IV. THE FILING IDENTIFIES NO BASIS TO DENY THE RESUMPTION REQUEST
The Filing purports to identify various alleged legal and policy grounds to deny the
Resumption Request. More specifically, Filers argue that the previous withdrawal of the LRA
permanently forecloses the possibility of resumption, that the LRA is incomplete, and that
resumption would prejudice Filers. As explained below, none of these claims have merit.
A. Resuming Review of a Previously Docketed Application Is Lawful and Consistent with Longstanding NRC Policy and Precedent
First, Filers assert that, as a matter of law, the previous withdrawal of the LRA
eliminates the possibility of a resumed review.34 Noticeably, Filers fail to cite any law to
support this conclusory assertion. Nor do they identify any other basis for the NRC to depart
from decades of precedent by declaring PG&Es withdrawal of the LRA to be permanent and
irreversiblea result that has been described as a severe sanction that is particularly harsh
and punitive.35 Filers sole basis for claiming that l aw somehow prohibits resumption of the
review is their complaint that the Resumption Request cites only one precedential example in
which the NRC resumed review of a suspended, withdrawn, voided, or denied licensing
application.36 However, that observation provides no basis to deny the Resumption Request.
34 Filing at 22.
35 Puerto Rico Elec. Power Auth. (North Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125, 1132-33 (1981).
36 Filing at 22.
9 As explained in the Resumption Request, there is precedent for the NRC ceasing and
subsequently resuming review of previously docketed applications.37 The Resumption Request
did not purport to provide an exhaustive list of such precedent, but instead cited one particularly
relevant example, in which the NRC resumed re view of a reactor license renewal application
even after the application had been denied four years earlier. Filers argue that this precedent (the
Aerotest case) is inapt because it involved no de viation from standard agency licensing
reviews and claim that the Staff characterized this proceeding as entirely normal.38 That is
inaccurate. The Staff did not characterize its wi thdrawal of the denial as standard agency
practice. What the Staff, in fact, said was that, following resumption of its review of the
previously docketed application as it existed on the date of denial, the Staff would then
continue forward with the normal process of requesting additional information, as necessary,
and making a final determination on the application. That is the same result PG&E seeks in the
Resumption Request.
Furthermore, the NRC has resumed review of previously docketed applications in many
different contexts across many decades. For example, in 1995, an applicant withdrew a license
amendment request, but later rescinded that withdrawal (which is also what PG&E has requested
in the Resumption Request).39 In that matter, the NRC permitted the rescission of the
withdrawal, resumed its review, and ultimately granted the amendment.40 In another case, the
37 Resumption Request at 3.
38 Filing at 23 (citing Letter from B. Holian, NRC, to D. Slaughter, Aerotest, Aerotest Radiography and Research Reactor - Withdrawal of Denial of License Renewal Application (CAC No. MF7221) at 2-4 (Aug. 8, 2017) (ML17138A309)).
39 See Letter from A. Johnson, NRC, to R. Mecredy, Rochester Gas & Elec. Co., Issuance of Amendment no. 61 to Facility Operating License No. DPR-18, R. E. Ginna Nuclear Power Plant at 2 (Feb. 13, 1996)
(ML010640012).
40 Id.
10 NRC voided a license amendment request, but noted that it would reinstate that request upon
submission of additional information.41
Notably, in the new plant licensing context, the Commission has adopted a formal policy
that expressly permits resumption of licensing reviews after an applicant defers or withdraws a
construction permit and its associated operating license (OL) application. More specifically, in
1987, the agency published a Commission Policy Statement on Deferred Plants.42 This policy
permits holders of construction permits to defer or terminate construction of the facility and
the NRCs review of the associated OL application, with an option to later reactivate those
activities. Even though construction and licensing of a terminated plant is considered to be
permanently stopped, it may be reactivated under the same provisions as a deferred plant.43
If the OL application was under review at the time of deferral or termination, the policy does not
require submission of an entirely new OL application in order to resume the licensing review; the
policy permits, [a]s necessary, an amendment to the OL application.44 Moreover, the NRC and
applicants have put this policy into practice in actual licensing proceedings. 45
Ultimately, nothing in the Filing identifies any reason that either the Commissions
published policy, past precedent regarding resumption of licensing reviews, or Resumption
Request here are, in any way, prohibited as a matter of law.
41 See Letter from R. Torres, NRC, to M. Kohn, Paina Hawaii, LLC, Void Letter Concerning Application for a License Amendment, Control Number 577283 (June 25, 2012) (ML12177A408).
42 Commission Policy Statement on Deferred Plants; Final Policy Statement, 52 Fed. Reg. 38,077 (Oct. 14, 1987).
43 Id. at 38,078, 38,080.
44 Id. at 38,079.
45 See, e.g., History of Watts Bar Unit 2 Reactivation, NRC.GOV, https://www.nrc.gov/info-finder/reactors/wb/watts-bar/history html (noting that the agency resumed review of the June 30, 1976 application in conjunction with an update submitted on March 4, 2009).
11 B. Supplementation of a Previously Docketed Application Does Not Invalidate the Original Docketing Decision Post Hoc
Second, Filers argue that the NRC cannot resume review of the LRA because, absent
further supplementation, it is not complete and acceptable, and therefore PG&E would be
required to file it again.46 Filers also purport to identify various ways in which the LRA
purportedly is insufficient or must be supplemented. However, these claims fail to identify any
reason the NRC must deny the Resumption Request.
As a general matter, the NRC previously determined that the LRA was complete and
acceptable for docketing.47 The Atomic Energy Act of 1954, as amended (AEA)48 leaves this
decision to the discretion of the NRC and does not authorize challenges to such decisions.49
Thus, to the extent Filers are attempting to challenge the Staffs previous docketing
determination, that challenge is impermissible here.
Additionally, Filers advocate that the withdrawal of the LRA effectively be treated as an
expungement of the entire administrative record and that PG&E be required to submit a new
application altogether. Filers argue that th is result is required by the agencys docketing
regulation at 10 C.F.R. § 2.101.50 However, Filers cite no support for their reading of the
regulation. On its face, that regulation identifies general requirements regarding application
filing and notes that, if the NRC finds an application complete and acceptable for docketing, it
will notify the applicant. It says nothing about the effect of withdrawing an application or any
46 Filing at 23.
47 Docketing Notice, 75 Fed. Reg. 3,493.
48 Atomic Energy Act of 1954, Pub. L. No.83-703, 68 Stat. 919 (codified as amended at 42 U.S.C. §§ 2011 et seq.).
49 See, e.g., Oklo Power, LLC (Aurora Reactor), CLI-20-17, 92 NRC 521, 524 (2020) (unanimous decision discussing this well settled principle).
50 Filing at 23-24.
12 requirement to re-file an application in its entirety if that withdrawal is subsequently rescinded.
More importantly, Filers interpretation of that regulation as imposing such a requirement would
conflict with, and render unlawful, the Commissi ons Policy Statement on Deferred Plants. As
noted above, that policy explicitly allows Staff to resume review of a previously withdrawn
application without resubmission of the application in its entirety. Indeed, the NRC did not
require submission of a new application in any of the examples discussed in Section IV.A,
above. Simply put, Filers flawed reading of NRC docketing regulations is not supported, not
persuasive, and identifies no reason to deny the Resumption Request.
Likewise, Filers substantive challenges to the LRA identify no reason the NRC must
deny the Resumption Request. For example, Filers assert that the LRA must account for
exemptions granted by the NRC over the past six years, failed to provide any information on
maintenance activities that it may have stopped, must report on operating experience over the
past years, and must also evaluate renewable energy alternatives.51 If review of the LRA
resumes, Filers will have a full and fair opportunity to raise these challenges at an appropriate
timebut they are clearly premature now, before the NRC has even decided whether it will
resume its review and before PG&E has even had an opportunity to supplement its LRA.
Moreover, there is no dispute that certain portions of the LRA, including the environmental
report, will need to be updated or supplemented. Indeed, in the Resumption Request, PG&E
explicitly contemplates that, upon resumption, it will:
develop and submit an amendment to the LRA that identifies changes to the units CLB that materially affect the contents of the LRA, including the Final Safety Analysis Report supplement, consistent with 10 CFR 54.21(b).
PG&E also plans to submit supplemental information relevant to both the
51 Id. at 24-26. As to Filers vague references to purported deferred maintenance or exemptions, they provide no support other than a reference to a decommissioning funding exemption, which is irrelevant here. As noted above, PG&E will continue to fully comply with the terms and conditions of its operating licenses for DCPP.
PG&E has not deferred or exempted itself from anything that would interfere with continued safe operation.
13 safety and environmental reviews to account for any material new information and guidance updates since the cessation of the LRA review.
These updates will also include updating the licensing commitments associated with the LRA.52
Since the inception of the agency, significant NRC licensing actions have involved an
iterative process in which applicants supplement applications or respond to NRC requests for
additional information to account for evolving circumstances or to supply information not
included in an application that is nevertheless needed to complete the licensing review.53 Filers
identify no precedent or authority for the notion that supplementation of the LRA here would
somehow require, as a matter of law, the entire LRA to be resubmitted. As a practical matter,
resumption would be consistent with the NRCs Principles of Good Regulation54 because, as
noted above, the NRC has already conducted substantial safety and environmental reviews.55
Although some of the previously reviewed information would be updated through supplemental
filings that require additional review, this would not summarily invalidate the entirety of the
Staffs prior review across several years.
C. Resumption Would Not Prejudice Filers Ability to Participate in the NRC Review Process Because It Would Return Them to the Status Quo Ante
Filers note that they have a strong interest in participating in the NRCs decision-making
process.56 PG&E does not dispute that members of the public may have a strong interest in the
52 Resumption Request at 6. Filers claim, on the basis of this statement, that PG&E admitted that the LRA is incomplete. Filing at 24. That is not accurate. The LRA was complete and acceptable for docketing when it was submitted; the subsequent need to update, supplement, or amend portions of the LRA does not retroactively make it incomplete.
53 See, e.g., Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP-05-29, 62 NRC 635, 709 (2005) (Attachment).
54 Values, NRC.GOV, https://www nrc.gov/about-nrc/values html ([w]here several effective alternatives are available, the option which minimizes the use of resources should be adopted.).
55 See supra Section II.A.
56 Filing at 27.
14 renewal of the DCPP operating licenses. Filers also observe that the NRC has recognized the
value of public participation in licensing proceedings.57 PG&E likewise values, and fully
supports, public participation and transparent regulatory reviews. Indeed, in its Resumption
Request, PG&E squarely called-out the importance of the NRCs principle of Openness as this
process moves forward and agreed that it must be conducted publicly and candidly.58 PG&E
also explicitly contemplates that, if and when the NRCs review of the LRA resumes, the public
will have a full and fair opportunity to participate in the regulatory process to the extent
required by law, including through participation in public meetings, reviews of environmental
documents, and adjudicatory challenges to the LRA.59 These are the same opportunitiesno
more and no lessthat Filers w ould have had if the LRA had never been withdrawn at all. In
other words, Filers would be returned, in all material respects, to the same position they were in
before the withdrawalalso known as the status quo ante.
Filers claim that resumption w ould hamstring their ability to meaningfully participate
in the adjudicatory process because filing new contentions may require them to meet the good
cause standard in 10 C.F.R. § 2.309(c).60 However, they fail to explain why that would
constitute prejudice. After the NRC provided a full and fair opportunity for members of the
public to challenge the LRA, and various parties submitted petitions and contentions that were
fully considered and dispositioned, the contested adjudicatory proceeding was terminated in
October 2015.61 At that pointand for th e subsequent two-and-a-half years before the LRA was
57 Id.
58 Resumption Request at 4.
59 Id. at 4-5.
60 Filing at 27-28.
61 Diablo Canyon, LBP-15-29, 82 NRC at 255.
15 withdrawnnew filings were subject to the good cause standard in 10 C.F.R. § 2.309(c).
Thus, returning Filers to that exact same posi tion would not place them in any better or worse
position than they were before the LRA was withdrawn.
Contrary to Filers claim, PG&E does not assert that any concerns arising after 2010
are not subject to any statutory hearing right.62 As noted in the Resumption Request, PG&E
explicitly contemplates that members of the public will have the ability to challenge materially
new information in an adjudicatory forum. 63 Moreover, the good cause standard for such
challenges does not impose an insurmountable or unreasonable hurdle. It merely requires that
any new filing be (1) timely, and (2) based on new information that could not have been
challenged in the original adjudicatory proceeding.64 Filers identify no reason that meeting these
entirely reasonable and long-standing standards (e.g., as to the updated application information
that PG&E contemplates submitting) would be difficult, much less impose some prejudice on
Filers.
Filers appear to suggest that only a de novo hearing opportunity would avoid this
unspecified prejudice. But that assertion is baseless. Doing so would afford Filers special
62 Filing at 29.
63 Resumption Request at 5. To address Filers concern that they may have no idea when or whether to submit new challenges, Filing at 28, PG&E is amenable to a resumption process that includes defined dates or triggers for new contentions under 10 C.F.R. § 2.309(c).
64 10 C.F.R. § 2.309(c)(1). New information means that which was not previously available and is materially different from previously available information. Id. PG&E recognizes that the NRC has the authority, and in the past has exercised that authority, to provide a fresh hearing opportunity based on new information upon resumption of a licensing action, and may do so in this case. See, e.g., Tennessee Valley Authority; Notice of Receipt of Update to Application for Facility Operating License and Notice of Opportunity for Hearing for the Watts Bar Nuclear Plant, Unit 2 and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation, 74 Fed. Reg. 24,044 (May 22, 2009) (providing a second hearing opportunity upon resumption of the Watts Bar, Unit 2 OL proceeding);
Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3), CLI-22-03, 95 NRC __, __ (Feb. 24, 2022) (slip op. at 4) (ordering issuance of a new notice of opportunity for hearing following resumption and completion of supplemental environmental reviews in certain subsequent license renewal proceedings). Either way, Filers are not without access to NRCs adjudicatory process.
16 treatmentnamely a second bite at the apple to relitigate the LRA in its entirety, including as
to challenges that were previously litigated and rejected before the LRA was withdrawn. That is
plainly unnecessary to avoid prejudice to Filers. It would amount to a wholesale discarding
without any corresponding safety or environmental benefitof the tremendous effort and
resources that were expended by PG&E, the NRC Staff, the ASLB, and the Commission to
disposition multiple previous challenges (all of which were found meritless) across seven years
of adjudicatory proceedings at significant taxpayer and ratepayer expense. That outcome is not
required as a matter of law.
Finally, Filers assert that the Resumption Reque st must be denied because Filers relied
on the withdrawal of the LRA to relax their vigilance over license-renewal-related issues65
and because FOE dropped a federal court lawsuit challenging the Commissions denial of its
hearing request.66 But Filers identify no reason that an NRC decision to resume review of the
LRA would prevent resumption of these activities or otherwise cau se some material prejudice.67
Although Filers may prefer to not resume these activities, resumption would return them to the
status quo ante.
Ultimately, Filers identify no legitimate basis to deny the Resumption Request.
V. THE FILING IDENTIFIES NO BASIS TO DENY THE EXEMPTION REQUEST
The Filing also purports to identify various alleged legal and policy grounds to deny
the Exemption Request. But, as explained below, the relief PG&E has requested in the
65 Filing at 28. It is unclear what this vigilance activity entails, but it does not appear to pertain to any established NRC regulatory process. But, as a general matter, PG&E continues to fully comply with its operating licenses and CLB, and the NRC continues to fully oversee and enforce those requirements.
66 Id.
67 The dismissal of FOEs petition before the D.C. Circuit was without prejudice to re-file. See supra note 16.
17 Exemption Request is firmly within the NRCs discretion and justified in the instant
circumstances. Filers primary argument is that the AEA, on its face, nullifies the long-standing
federal timely renewal doctrine. That is an extreme position not supported by any fact or law.
Filers also claim that denial is required b ecause granting the Exemption Request would violate
The National Environmental Policy Act of 1969, as amended (NEPA).68 But the discussion
below details why that argument is entirely meritless.
A. The NRC Has Discretion to Adopt the Timeliness Threshold Proposed in the Exemption Request
The NRCs timely renewal regulation at 10 C.F.R. § 2.109 derives from Section 9(b) of
the Administrative Procedure Act (APA) (5 U.S.C. § 558(c)), which states that [w]hen the
licensee has made timely and sufficient application for a renewal or a new license in accordance
with agency rules, a license with reference to an activity of a continuing nature does not expire
until the application has been fi nally determined by the agency. However, Congress did not
specify any particular timeliness parameters. Nor did it require nor prohibit the establishment
and codification of default timeliness thresholds. Rather, Congress left those dete rminations to
the discretion of the respective agencies.
The Commission has long recognized that establishing any particular timeliness
threshold is bound to be somewhat subjective because there is not a strong basis for selecting a
particular cutoff time.69 Nevertheless, the NRC elected to codify certain default timeliness
thresholds in its regulations. For power reactor licensees, the NRCs predecessor, the Atomic
68 National Environmental Policy Act of 1969, Pub. L. No.91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. § 4321 et seq.).
69 Advance Notice of Proposed Rulemaking; Notice of Workshop: Nuclear Power Plant License Renewal; Public Workshop on Technical and Policy Consideration, 54 Fed. Reg. 41,980, 41,984 (Oct. 13, 1989).
18 Energy Commission, initially selected and codified a 30-day default timeliness threshold.70
The NRC later exercised its discretion to am end that default threshold to be 5 years.71
During the process of changing the default timeliness threshold, the Commission opted
to examine various practical considerations, from consistency with the timing of other regulatory
submissions, to average application review durations.72 The current default 5-year threshold is
based on the former. And the NRC has approved case-specific departures from that default
threshold in certain proceedings, pursuant to regulatory exemptions, based on the latter.73
However, no law compels the NRC to consider (much less, mandate the satisfaction of) these
or any otherspecific criteria in determining whether an application is timely. Simply put,
Congress placed no numerical or performance-based limits on an agencys determination of
timeliness.
Here, the Exemption Request asks the NRC to conclude, through issuance of a regulatory
exemption from the default timeliness threshold in 10 C.F.R. § 2.109, that a new LRA for
DCPP (if one is required) would be timely if submitted by December 31, 2023, approximately
10 months before the expiration of the DCPP Unit 1 license and 20 months before the expiration
of the Unit 2 license. This case-specific departure from the default timeliness threshold is
plainly within the NRCs discretion, given the broad latitude granted by Congress on this subject,
and warranted here given important energy supply, reliability, and state policy matters. The
NRCs original 30-day threshold, its current 5-year threshold, and the 10-month threshold
70 Atomic Energy Commission; Rules of Practice; Revision of Rules, 27 Fed. Reg. 377, 379 (Jan. 13, 1962).
71 Nuclear Power Plant License Renewal; Proposed Rule, 55 Fed. Reg. 29,043, 29,051 (July 17, 1990); Nuclear Power Plant License Renewal; Final Rule, 56 Fed. Reg. 64,943, 64,962 (Dec. 13, 1991).
72 Id.
73 See Clinton (ML19193A015); Perry (ML20171A292); Ginna (ML21063A015); Nine Mile Point (ML21061A068); Dresden (ML21305A018).
19 proposed in the Exemption Request (which falls between the two) all are within the broad grant
of discretion that Congress gave to agencies to determine what constitutes a timely renewal
application.
Finally, Filers claim that, to their knowledge, the Commission has never before issued
an exemption to the timely renewal rule wher e it was so clear that the NRCs safety and
environmental review could not possibly be completed before the expiration dates of the
operating licenses.74 As a general matter, the default timeliness threshold in 10 C.F.R. §
2.309 for non-power reactors is still 30 daysa duration that is plainly insufficient for the NRC
to complete a reactor license renewal revi ew. And Filers need only look to PG&Es
Exemption Request to find an example of the NRC granting a timely renewal exemption
permitting submission of a non-power reactor license renewal application less than 30 days
prior to the expiration of the license, where the re view was expected to take 36 months (twice as
long as the review for a power reactor),75 and where the actual review was not complete for
more than six years after the orig inal license would have expired.76 Again, the ability of the
NRC Staff to complete its review of a license renewal application is notand has never
beena statutory constraint on the timely renewal doctrine or the issuance of exemptions
therefrom. To conclude otherwise would defeat the entire purpose of the APAs timely renewal
provision, which is to permit ongoing activities until the agency completes its review.
74 Filing at 6.
75 Compare Generic Milestone Schedules of Requested Activities of the Commission, NRC.gov, https://www.nrc.gov/about-nrc/generic-schedules.html (License Renewals, Operating (LWR) and Combined (LWR) - Parts 50, 52, and 54, 18 months) with id. (License Renewals, Operating (NPUF and non-LWR) - Part 50 36 months).
76 Exemption Request at 7 (citing NRC Letter, University of Utah Research Reactor - Exemption from the Requirements of Section 109(A) of 10 CFR Part 2, Regarding the Effect of Timely License Renewal Application (TAC No. MC6715), dated April 15, 2005 (ML051040323); NRC Letter, University of Utah -
Issuance of Renewed Facility Operating License No. R-126 for the University of Utah Nuclear Research Reactor (TAC No. ME1599), dated October 31, 2011 (ML112500321).
20 Moreover, there is no compelling safety reason to impose such a constraint. A licensee
remains obligated to comply with all regulato ry and safety requirements during the timely
renewal period, and the agency retains oversight and enforcement authority to take any action, at
any time, if necessary to protect public health and safety.77 Simply put, Filers identify no reason
that granting the timeliness threshold proposed by PG&E for this proceeding would exceed or
abuse the Commissions discretion.
B. The Exemption Is Justified Under the Instant Circumstances
The Exemption Request is reasonable and justified under the unusual circumstances at
hand. Those circumstances and justifications are detailed more fully in the Exemption
Request.78 However, it is worth highlighting a few of them here. Ultimately, the Filing offers no
information that undercuts these bases for granting the Exemption Request.
First, PG&E did not intentionally postpone the decision to seek license renewal for
DCPP. Indeed, PG&E originally filed the LRA in 2009, many years in advance of the DCPP
license expiration dates. However, after that LRA was withdrawn in 2018, consistent with the
CPUCs order approving the retirement of DCPP, significant evolving factors related to the
energy needs in California drove the State to enact a statute revoking that CPUC order and
directing PG&E to resume its efforts to renew the DCPP licenses.
Second, the NRCs review of a new DCPP LRA would be exceptionally unique. That is
because a sizeable portion of a new DCPP LRA would, in fact, not be new; and a substantial
portion of the NRC staff review would presumably not need to be repeated. For example, as
noted above,79 the NRC staff issued a safety evaluation report documenting the safety review
77 See generally 10 C.F.R. § 2.202(a).
78 See, e.g., Exemption Request at 5-7 (explaining the special circumstances).
79 See supra Section II.A.
21 associated with the original LRA, and completed multiple rounds of environmental reviews,
audits, and public meetings. The NRC would not need to reinvent the wheel for certain
portions of the new application that are not materially different. Accordingly, it is expected that
the NRCs review of a new DCPP LRA would be substantially more streamlined, and shorter in
duration, than a typical proceeding with no prior review, which the NRC aims to complete within
18 months.80
Third, while the substance of the Exemption Request is not subject to public challenge
before the NRC,81 granting that request is nevertheless in the public interest. Indeed, the
Governor and Legislature of the State of California have concluded that the continued and
uninterrupted operation of DCPP is crucial to statewide energy system reliability and, more
broadly, in the best interests of all California electricity customers.82
Without timely renewal protection, PG&E may be required to shut down the plant,
thereby jeopardizing system reliability. That result may in the interest of the three Filers, but is
decidedly not in the public interest. In fact, it is precisely the type of unreasonable and
unnecessary outcome that the APAs timely renewal provision is intended to prevent. The
Supreme Court has explained that the purpose of timely renewal is to protect a person with a
license from the damage he would suffer by being compelled to discontinue a business of a
continuing nature, only to start it anew after the administrative hearing is concluded. 83 Nothing
80 See Generic Milestone Schedules of Requested Activities of the Commission, NRC.gov, https://www.nrc.gov/about-nrc/generic-schedules.html (License Renewals, Operating (LWR) and Combined (LWR) - Parts 50, 52, and 54, 18 months).
81 See AEA § 189 (a) (allowing such opportunity only for proceedings involving the granting, suspending, revoking, or amending of any license, but not for other proceedings such as exemption requests).
82 SB 846 § 5 (to be codified at Div. 15, ch. 6.3 § 25548(b) of the California Public Resources Code).
83 Pan-Atl. Steamship Corp. v. Atl. Coast Line R.R. Co., 353 U.S. 436, 439 (1958). See also Comm. for Open Media v. FCC, 543 F.2d 861, 867 (D.C. Cir. 1976) (observing that timely renewal is intended to protect licensees from harm) (citations omitted).
22 in the Filing provides a basis to conclude that PG&Eor California electricity customersmust
be deprived of this important protection as a matter of law, particularly as PG&E must continue
to comply fully with its original operati ng licenses during any timely renewal period.
C. Filers Assertion that the AEA Nullifies the Timely Renewal Doctrine Is Extreme and Unsupported
As Filers observe, the AEA authorizes the NRC to issue renewable commercial licenses
with specified terms not to exceed forty years, and the APAs timely renewal provision
provides that, upon filing a timely and sufficient renewal application, a license does not expire
until the application has been finally determined. According to Filers, these two statutes stand in
irreconcilable conflict. More specifically, Filers claim that allowing an NRC license to not
expire is legally impossible because it effectively would amend that license in violation of
the AEA. However, Filers identify no support for this radical theory nor any basis for the
Commission to adopt it here.
First, this theory directly contradicts Commission pronouncements stating the opposite.
The Commission has long accepted that the timely renewal doctrine applies to NRC licenses. It
has promulgated regulations implementing the timely renewal provisions of the APA.84 It has
issued case-specific regulatory exemptions related to timely renewal.85 In fact, the Commission
has expressly acknowledged that timely renewal protections have attached in past proceedings in
which license renewal applicati ons were not finally determined as of the expiration dates
specified in the subject licenses.86 The Commissions position is imminently clear that the AEA
84 See 10 C.F.R. § 2.109.
85 See Clinton (ML19193A015); Perry (ML20171A292); Ginna (ML21063A015); Nine Mile Point (ML21061A068); Dresden (ML21305A018).
86 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-15-6, 81 NRC 340, 343 n.2 (2015) (Unit 2 is in timely renewal; the existing license will not be deemed to have expired until the license renewal application has been finally determined.).
23 does not preclude applicability of timely renewal protections to NRC licenses, yet Filers simply
dismiss or ignore this directly applicable and abundantly clear regulatory history.
Second, Filers theory does not offer a valid reading of the statutes. If Filers were
correct, no federal license with an expiration date (which likely encompasses nearly all federal
licenses)whether issued by the NRC, the Environmental Protection Agency, the Food and
Drug Administration, or any other federal agencywould ever be eligible for timely renewal
protection. But that would swallow-whole the APAs timely renewal provision. In contrast,
statutes enacted by Congress are entitled to a presumption of validity.87
Third, Filers assertion that granting the Exemption Request would somehow effectively
amend the DCPP licenses is illogical and unsupported. This argument may be an attempt to
recycle baseless claims of de facto license amendments that have been raised and rejected in
numerous other proceedings not involving license amendments. As relevant here, the
Commission has squarely held that issuance of an exemption from our regulations does not
mean, as Petitioners suggest, that the Staff has approved an amendment to the license. 88
Practically speaking, granting the Exemption Request would not modify any term specified in
the original licenses themselves. Upon submission of a timely application for renewal, the
original license issued by any agency does not expire until the application is dispositionednot
because of some amendment of the license approved by such agencyrather, it is deemed
by operation of statute to not expire.
8787 See also, e.g., King v. Burwell, 135 S. Ct. 2480, 2490 (2015); Clinton v. City of New York, 524 U.S. 417, 429 (1998) (Acceptance of the Governments new-found reading of [the disputed statute] would produce an absurd and unjust result which Congress could not have intended.) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982)).
88 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-16-17, 84 NRC 99, 111 (2016)
(emphasis in original) (citing Mass. v. NRC, 878 F.2d 1516, 1521 (1st Cir. 1989)).
24 D. The Exemption Request Fully Complies with Part 51 and NEPA
Finally, Filers claim that the Exemption Re quest asks the NRC to issue an exemption
that would extend the Diablo Canyon reactors license terms without completing an
environmental review.89 However, as explained below, the Exemption Request complies with
all requirements of Part 51 and NEPA, and Filers unsupported arguments provide no grounds to
deny it.
As detailed in Sections V.A and V.B above, the Exemption Request asks the NRC to
conclude that a new LRA for DCPP would be timely if submitted by December 31, 2023; it
does not and cannot seek to avoid any environmental review. Rather, a new LRA would entail a
full environmental review, including preparation of an EIS, in compliance with 10 C.F.R. Part 51
and NEPA.
Moreover, the Exemption Request itself does not disregard NEPA, as Filers imply.
Multiple pages of the Exemption Request address e nvironmental considerations to the full extent
required by Part 51 and NEPA.90 PG&E concluded that the requested action satisfies all of the
criteria for a categorical exclusion pursuant to the NRCs NEPA regulations at 10 C.F.R. §
51.22(c)(25). More specifically, PG&E demonstrated that:
(1) the exemption would involve no significant hazards consideration;
(2) the exemption would involve no significant change in the types or significant increase in the amounts of any effluents that may be released offsite;
(3) the exemption would involve no significant increase in individual or cumulative public or occupational radiation exposure;
(4) the exemption would involve no significant construction impact;
89 Filing at 33 (emphasis in original).
90 Exemption Request at 7-9.
25 (5) the exemption would involve no significant increase in the potential for or consequences from radiological accidents; and
(6) the LRA timeliness threshold from which the exemption is sought involves scheduling requirements which are administrative.91
Because the requested action satisfies all of the criteria for a categorical exclusion, no
formal environmental impact statement or environmental assessment needs to be prepared in
connection with the proposed exemption. As the Commission has explained, a categorical
exclusion does not indicate the absence of an environmental review, but rather, that the agency
has established a sufficient administrative record to show that the subject actions do not, either
individually or cumulatively, have a significant effect on the human environment.92
In a footnote, Filers suggest that exemptions from the timeliness threshold in the
NRCs timely renewal regulation can never qualify for a categorical exclusion because, under
the timely renewal doctrine, plants might operate for a brief period beyond the expiration dates
specified in their licenses.93 Filers reason that a categorical exclusion is prohibited because this
brief period of operation somehow involves significant environmental impacts.94 Filers
identify no support for this assertion. But that is not surprising because the substantial and multi-
decadal history of the operating fleet supports the opposite conclusionthat a brief period of
operation beyond the original license term (but fully in accordance with the substantive terms of
the original license) is not likely to involve any significant environmental impacts.95
91 Id. (addressing the criteria in 10 C.F.R. § 51.22(c)(25)).
92 Categorical Exclusions from Environmental Review; Final Rule, 75 Fed. Reg. 20,248, 20,251 (Apr. 19, 2010)
(emphasis added).
93 Filing at 34-35 n.114.
94 Id. (emphasis added).
95 See, e.g., SECY-21-0001, Rulemaking Plan - Transforming the NRCs Environmental Review Process at 4 (Dec. 31, 2020) (ML20212L393) (noting that over 40 years of NRC regulatory experience generically suggests that license renewals for the current fleet of nuclear power plants involve no significant impact even for an additional 20 years of operation).
26 Lastly, Filers rely on a strained reading of the Statement of Considerations for the
NRCs categorical exclusion rule to claim that the Commission intended to preclude the use of
categorical exclusions to satisfy environmen tal review requirements for timely renewal
exemptions. But Filers provide no authority or basis to support that claim. And, more
importantly, it flies in the face of substantial precedent. The NRC has granted timely renewal
exemptions to power reactor license renewal ap plicants on several prior occasionsand, in each
and every case, has concluded that issuance of the exemption is categorically excluded from the
need to prepare an EIS or EA pursuant to 10 C.F.R. § 51.22(c)(25).96 Filers identify no legal
basis requiring a departure from that precedent. Moreover, even if the NRC decides to depart
from this precedent, the appropriate path forward is to prepare an EAnot to deny the
Exemption Request, as Filers demand.97
In sum, Filers identify no legitimate basis to deny the Exemption Request.
VI. CONCLUSION
The Commission should summarily reject the Filing because it is procedurally
improper. If the Commission nevertheless considers the Filing, it should conclude that Filers
identify no basis requiring preemptive denial or other deviation from the NRCs normal process
for reviewing the Resumption Request or the Exemption Request.
96 See Clinton (ML19193A015); Perry (ML20171A292); Ginna (ML21063A015); Nine Mile Point (ML21061A068); Dresden (ML21305A018).
97 See 10 C.F.R. § 51.21 (noting that an EA is required for all actions that do not require an EIS and do not qualify for a categorical exclusion).
27 Respectfully submitted,
s/ Ryan K. Lighty+ s/ Timothy P. Matthews+
RYAN K. LIGHTY, Esq. s/ Paul M. Bessette+
MORGAN, LEWIS & BOCKIUS LLP TIMOTHY P. MATTHEWS, Esq.
1111 Pennsylvania Avenue, N.W. PAUL M. BESSETTE, Esq.
Washington, D.C. 20004 MORGAN, LEWIS & BOCKIUS LLP (202) 739-5274 1111 Pennsylvania Avenue, N.W.
Ryan.Lighty@morganlewis.com Washington, D.C. 20004 (202) 739-5527 (202) 739-5796 Timothy.Matthews@morganlewis.com Paul.Bessette@morganlewis.com
Counsel for Pacific Gas and Electric Company
Dated in Washington, D.C.
This 20th day of January 2023
+ Signers represent that this document has been subscribed in the capacity specified with full authority, that signers have read it and know the contents, that to the best of signers knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay.
28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the matter of:
Docket Nos. 50-275 and 50-373 PACIFIC GAS AND ELECTRIC COMPANY January 20, 2023 (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
CERTIFICATE OF SERVICE
I certify that, on this date, a copy of the foregoing PACIFIC GAS AND ELECTRIC COMPANY RESPONSE TO THE JANUARY 10, 2023 EXTRAPROCEDURAL FILING BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP was served upon the following via electronic mail, consistent with the original ma nner of service of the Filing:
U.S. Nuclear Regulatory Commission (NRCExecSec@nrc.gov; Hearing.Docket@nrc.gov)
Diane Curran, Counsel for San Luis Obispo Mothers for Peace (dcurran@harmoncurran.com)
Caroline Leary, Counsel for Environmental Working Group (cleary@ewg.org)
Hallie Templeton, Counsel for Friends of the Earth (htempleton@foe.org)
cc: U.S. Nuclear Regulatory Commission Staff (RidsOgcMailCenter.Resource@nrc.gov)
s/ Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com
Counsel for Pacific Gas and Electric Company
DB1/ 135410524 February 1, 2023
Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Subject:
Third Way Comment on Pacific Gas and ElectricsOctober 31, 2022 Letter Requesting an Exemption from 10 CFR 2.109(b).
Dear Ms. Andrea Veil:
Third Way is pleased to recognize that the Nuclear Regulatory Commission (NRC) has begun consideration of the requests made by Pacific Gas and Electric (PG&E) regarding the license renewal application for the Diablo Canyon Power Plant (DCPP) in a letter dated October 31, 2022. We write this comment letter to directly express our support for PG&E's request for an exemption from 10 CFR 2.109(b) regarding eligibility for timely renewal status in the event that the NRCs licensing review extends beyond the current expiration dates of the two licenses being considered for renewal. We recognize that circumstances predominantly beyond PG&E's control resulted in a late-stage, yet well-reasoned policy shift toward keeping DCPP open and thus placed DCPPs license status in its current position.
As you know, we've emphasized the NRC's growing role in the fight to stem climate change with innovation and healthy ambition. As key stakeholders, local, and national policymakers recognize the need to bring every tool available towards meeting state and federal climate goals, there will be more support for cases like DCPP'sand the NRC will have a critical role to play in promoting the health of the public and the environment. We appreciate that NRC leadership recognizes the climate imperative in the Agencys work and even further, the staff's commitment to supporting clean energy through good regulation of the country's existing nuclear reactors.
The DCPP license renewal is both essential to the energy future of California and a major opportunity for the NRC to show commitment to the health of the surrounding communities and local environment. An interruption in the operation of DCPP, solely to allow for completion of the NRCs review of the license renewal applications, would require the state to take steps to supplement DCPPs output through other generation sources which are overwhelmingly likely to be fossil fuel based. As such, a rejection of PG&Es exemption request and a subsequent delay of DCPPs license restoration would pose a negative impact to local health outcomes and to the environment for largely procedural reasons without any apparent safety benefit.
Recognizing the NRC's Principles of Good Regulation and a respect for the effective management of staff capacity, we also appreciate that there are unprecedented and novel characteristics to DCPP's circumstances that the staff are currently navigating. Nonetheless, we believe there is sufficient basis for the staff to grant PG&Es exemption request in a manner consistent with previous decisions regarding applications of similar conditions. We note that the NRC has granted exemptions in a number of instances (the Ginna, Clinton and Oyster Creek plants) in which the licensee requested an exemption to allow submission of the renewal application less than five years before license expiration. As in these earlier cases, DCPP has been affected by ongoing activities beyond the purview of the NRC, which obscured clarity around proper timing for such an application and affected the LRA for the plant. As such, it would be consistent and proper regulatory practice to consider PG&Es request with the same disposition and deference toward a reasonable accommodation.
1025 Connecticut Ave NW, Suite 400*Washington, D.C.20036*202.384.1700*202.775.0430 fax Moreover, we see no legal compulsion to reject the exemption. The NRC originally proposed a three year period prior to license expiration for submission of renewal applications, but changed the term to five years in the final rule on license renewal. See 56 Fed. Reg. 64962 (Dec. 13, 1991).
The timely renewal doctrine itself stems from the Administrative Procedure Act of 1946, sec.
9(b), 5 USC 558(c)(2), which established a 30 day period prior to license expiration for the submission of an application for renewal, an approach applied by the NRC to many other license renewal applications. The timely renewal doctrine is intended essentially to protect the rights of existing licensees that seek extensions of their licenses. The NRCs use of the longer period for prior application in license renewal was intended to allow a sufficient period to conclude its review prior to the original expiration date, a reasonable approach though one not compelled by law. In this context, we note that the timely renewal period has only been entered while the final resolution was pending for the renewal of the Indian Point Units 2 and 3 licenses.
The NRCs responsibility to the public in this matter is clearPG&E must submit an LRA and any materials necessary to update the licensing basis for the plant that are complete and deemed sufficient to conduct a reasonable review. Provided that PG&E is able to meet this burden and, given the practicality of PG&Es request and the importance of DCPP to California, a refusal to grant the exemption would be a significant misstep without any benefit to public safety or needed assurance of compliance with the law.
Sincerely,
Ryan Norman Stephen G. Burns Senior Policy Advisor Senior Visiting Fellow Climate and Energy Program Climate and Energy Program
Josh Freed Alan Ahn Senior Vice President Senior Resident Fellow Climate and Energy Program Climate and Energy Program
Copy: L. Gibson, License Renewal Projects Branch Chief B. Smith, Director of Division of New and Renewed Licenses D. Dorman, EDO M. Marsh, Chief of Staff to Chair Hanson Chairman Hanson Commissioner Baran Commissioner Wright Commissioner Caputo Commissioner Crowell
Third Way
- 2
I. The Commission Has Broad Legal Authority to Grant the Exemption Request
As detailed in its request, PG&E seeks an exemption from the Commissions timely renewal regulation in 10 C.F.R. § 2.109(b), which provides that an existing power reactor license will not be deemed to have expired until the [license renewal]
application has been finally determined if the applicant submits the license renewal application at least five years before the expiration of the existing license. 3 Longstanding and well -settled judicial precedent establishes that the Commission possesses the legal authority to grant the exemption request.
For decades, since the days when the first nuclear power plants were being licensed, the U.S. Supreme Court and other courts have recognized the Commissions broad legal authority to implement the AEA. 4 As succinctly described by the U.S. Court of Appeals for the D.C. Circuit in 1969, Congress enacted in the AEA a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives. 5 I n 1978, the U.S. Court of Appeals for the First Circuit further summarized the Commissions broad authority and discretion:
Both the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 confer broad regulatory functions on the Commission and specifically authorize it to promulgate rules and regulations it deems necessary to fulfill its responsibilities under the Acts, 42 U.S.C. § 2201(p).
In a regulatory scheme where substantial discretion is lodged with the administrative agency charged with its effectuation, it is to be expected that the agency will fill in the interstices left vacant by Congress. The Atomic Energy Act of 1954 is hallmarked by the amount of discretion granted the Commission in working to achieve the statutes ends. 6
3 10 C.F.R. § 2.109(b).
4 See, e.g., Vt. Yankee Power Corp. v. NRDC, 435 U.S. 519, 525-26 (1978) (observing the Commission was given broad regulatory authority under the AEA); Power Reactor Dev. Co. v. Intl Union of Elec.,
Radio & Mach. Workers, AFL-CIO, 367 U.S. 396, 408 (1961) (We see no reason why we should not accord to the Commissions interpretation of its own regulation and governing statute that respect which is customarily given to a practical administrative construction of a disputed provision.).
5 Siegel v. Atomic Energy Commn ( AEC), 400 F.2d 778, 783 (D.C. Cir. 1968). See alsoOhio ex rel.
Celebrezze v. NRC, 868 F.2d 810, 813 (6th Cir. 1989) (reiterating the courts statements in Siegel regarding the Commissions uniquely broad statutory authority). The Commission, too, has appropriately recognized its own broad legal authority under the AEA. See Exelon Generation Co.,
LLC (Early Site Permit Proceeding for the Clinton ESP Site), CLI-07-12, 65 NRC 203, 208 (2007)
([T]he NRC has broad legal authority under the Atomic Energy Act. ).
6 Pub. Serv. Co. of N.H. v. NRC, 582 F.2d 77, 82 (1st Cir. 1978) (emphasis added) (citing Siegel, 400 F.2d at 783).
This broad legal authority applies to all agency regulations that the Commission has deemed necessary to fulfill its responsibilities. The Commission acts within its broad legal authority not only when it promulgates substantive regulations prescribing protections for the public health and safety and for the common defense and security, but also when it promulgates a regulation that allow s for specific exemptions from those requirements when specified conditions are met.
Relevant here, 10 C.F.R. § 54.15 allows for exemptions from the Commissions requirements for the renewal of nuclear power plant operating licenses contained in 10 C.F.R. Part 54, so long as such exemption is in accordance with the provisions 10 C.F.R. § 50.12. 7 Section 50.12, in turn, provides that the Commission may grant exemptions from its requirements when such 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 where special circumstances are present. 8 Section 50.12 then spells out when such special circumstances are present. 9
Suffice it to say that the Commission would not have promulgated a rule permitting exemptions from its own requirements if it lacked such authority. NEI is aware of no statutory command, or judicial precedent, that would remove from the Commissions broad legal authority the ability to exercise its ample discretion and permit exemptions from its regulatory requirements. In other words, Congress deliberately chose to confer broad regulatory responsibility on the Commission without express or implied qualification or limitation on the Com missions ability to allow for exemptions from its requirements where the Commission found such exemption appropriate.
II. The Same Discretion the Commission Exercised When Establishing the Five-Year Timely Renewal Period May Be Exercised to Grant an Exemption from that Period
The Administrative Procedure Act of 1946 (APA) establishes the statutory authority for the Commissions timely renewal regulation in 10 C.F.R. § 2.109(b). But the APA does not specify or direct that a license renewal application must be submitted five year s prior to the expiration of an existing license. The Commission established that five-year period, acting within its broad discretion. Because that determination was confined to the Commissions broad discretion, it is free to grant an exemption for a shorter period, consistent with the judicial precedent summarized above.
APA Section 9(b) states in relevant part that [w]hen the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a
7 10 C.F.R. § 54.15 (Exemptions from the requirements of this part may be granted by the Commission in accordance with 10 CFR 50.12).
8 10 C.F.R. § 50.12(a)(1) and (2).
9 10 C.F.R. § 50.12(a)(2)(i) -(vi).
license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency. 10
APA Section 9(b) did not define what it meant by timely. Such definition was left to the Commissions broad discretion. Indeed, nothing in APA Section 9(b) suggests or requires that the Commission prescribe a definition of timely at all. Notwithstanding the absence of such a statutory command, in 1962, the AEC exercised its discretion and established 30 days as the timely renewal period in 10 C.F.R. § 2.109. 11
Over two decades later, when it became clear that numerous nuclear power reactor licensees would seek to operate their reactors beyond their initi al operating license period, the Commission opted to revise the Section 2.109 timely renewal period for power reactors. The NRC staff initially proposed that a license renewal application be received no later than three years prior to the expiration of the operating license. 12 The advanced notice of proposed rulemaking explaining this initial determination explicitly
[r]ecogniz[ed] that there is not a strong basis for selecting a particular cutoff time. 13 Nonetheless, the Commission exercised its discretion to propose three years as the new cut off time for timely renewal. 14 In 1991, when promulgating the final rule, the Commission ultimately settled on five years as the timely renewal period and this timeframe remains in effect. 15
This three-decade history behind the establishment of the present day, five-year timely renewal period shows the Commissions broad legal authority and discretion to establish what timely means under Section 2.109(b). This history shows that the Commission could have established a shorter ( or longer) timely renewal period than the one it ultimately adopted.
Because the Commission has broad legal authority to grant exemptions from its requirements, and because the definition of timely under Section 2.109(b) is within the Commissions discretion, the Commission thus possesses the authority to grant an
10 5 U.S.C. § 558(c). Congress explicitly made the APA including Section 9(b) applicable to NRC licensing actions. 42 U.S.C. § 2231. In other words, timely renewal was an applicable legal background rule since the AEA was first enacted.
11 AEC, Rules of Practice, Revision of Rules, 27 Fed. Reg. 377, 379 (Jan. 13, 1962).
12 Advance Notice of Proposed Rulemaking; Notice of Workshop: Nuclear Power Plant License Renewal; Public Workshop on Technical and Policy Consideration, 54 Fed. Reg. 41,980, 41,984-85 (Oct. 13, 1989) (Licens e Renewal ANPR); Nuclear Power Plant License Renewal; Proposed Rule, 55 Fed.
Reg. 29,043, 29,051, 29,058 (July 17, 1990).
13 License Renewal ANPR, 54 Fed. Reg. at 41,984.
14 Nuclear Power Plant License Renewal; Proposed Rule, 55 Fed. Reg. 29,043, 29,051, 29,058 (July 17, 1990) (Proposed License Renewal Rule).
15 Nuclear Power Plant License Renewal; Final Rule, 56 Fed. Reg. 64,943, 64,962 (Dec. 13, 1991).
exemptio n from the five -year timely renewal period, particularly given that it has recognized that there is not a strong basis for selecting a particular cutoff time. 16
Despite suggestions to the contrary, 17 neither the AEA nor the National Environmental Policy Act (NEPA) limited or proscribed application of the APAs timely renewal provision to NRC licenses. Had Congress wanted to limit or proscribe application of the APAs timely renewal provision to NRC licenses, Congress could have done so in either statute. It did not. Indeed, the AEA explicitly makes the APA applicable to NRC licensing actions. 18 And n othing else in the AEA (or NEPA) prohibits the NRC from implementing the APAs statutory command to provide for the continuation of existing, unexpired licenses while the agency reviews a request to extend that license. Thus, the NRC is well within its authority to protect a person with a license from the damage he would suffer by being compelled to discontinue a business of a continuing nature, only to start it anew after the administrative hearing is concluded. 19
III. The Exemption Request Will Not Present an Undue Risk to the Public Health and Safety or Common Defense and Security
PG&Es exemption request succinctly and more than adequately explains why the exemption request will not present an undue risk to the public health and safety or the common defense and security, in accordance with 10 C.F.R. § 50.12(a)(1). 20 NEI writes to emphasize three points.
First, the NRC may take action, at any time, within its broad legal authority, to protect public health and safety, and ensure the common defense and security. If the NRC grants an exemption from its requirements, it does not abandon these other authorities it possesses under the AEA. Should circumstances warrant, the NRC retains the broad
16 License Renewal ANPR, 54 Fed. Reg. at 41,984. Since the Commission first established a default regulatory definition of a timely application, it has also maintained the broad discretion to deviate from that definition by exemption when necessary. See AEC, Rules and Regulations, Licensing of Production and Utilization Facilities, 21 Fed. Reg. 355, 356 (Jan. 19, 1956) (promulgating 10 C.F.R.
§ 50.12 to prescribe the process for specific exemptions from agency regulations). Just as timely renewal operated as background legal rule when the AEA was enacted, the agencys exemption provisions operated as a background legal rule when the timely renewal requirements were adopted.
In other words, the agency rules for determining whether an application is timely under Section 9(b) are the NRCs timely renewal rules read in conjunction with its exemption rules.
17 See Petition by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group to Deny Pacific Gas & Electric Companys Request to Review Undocketed license Renewal Application for the Diablo Canyon Unit 1 and Unit 2 Reactors and Petition to Deny Pacific Gas &
Electric Companys Request to Extend the Diablo Canyon Reactors License Terms Without Renewing the Licenses (Jan. 10, 2023).
18 42 U.S.C. §2231.
19 Pan-Atl. Steamship Corp. v. Atl. Coast Line R.R. Co., 353 U.S. 436, 439 (1958).
20 PG&E Request, Enclosure 2 at pp. 4-5 of 11.
legal authority to take action notwithstanding that it previously granted a scheduling-related exemption.
Second, the NRC also possesses regulatory tools to further ensure public health and safety and the common defense and security. For example, the NRC maintains the abilityand indeed the obligationto inspect and assess plant performance by applying its well-established, risk-informed Reactor Oversight Process. Notably, the Commission has made clear that general operational issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. 21 T he NRC also has ability to craft temporary inspections procedures to assess a licensees progress in implementing its key or risk-significant aging management programs and commitments during the pendency of the license renewal approval process. 22 Adopting such inspection procedures to fit the specific circumstances at hand, and coordinating with the affected licensee to achieve common understanding of the goals of such inspections, will provide additional assurance that there are no undue risks to the public health and safety or the common defense and security from continued operation.
Third, the existence of robust NRC legal authority and regulatory tools to ensure continued safe operation should not imply that the review of PG&Es license renewal application must be protracted. In accordance with Section 102(c) of the Nuclear Energy Innovation and Modernization Act, the NRC milestone for completing its review of a power reactor license renewal application is 18 months. 23 As it acknowledges,
[t]he NRC staff will work with each licensee or applicant to establish a specific schedule for each request, which may be shorter or longer than the generic milestone schedule based on the specific needs of the licensee or applicant and the staff s resources. 24 PG&Es application screams out as one for which the NRC staff should establish a streamlined review schedule. The NRC staff already issued a safety evaluation report and completed multiple rounds of environmental reviews, audits, and public meetings on the original application. Properly leveraging these previous reviews not only gives the NRC staff a tremendous head start on its review of PG&Es application, but also should allow it to efficiently develop inspection procedures to verify the safety of continued operation.
21 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI 36, 60 NRC 631, 638 (2004) (citation omitted).
22 See, e.g., NRC Inspection Manual, Temporary Instruction 2516/001, Review of License Renewal Activities (Mar. 30, 2011; expired Dec. 13, 2013) ( ML110620255) (applicable only to Indian Point Nuclear Generating Unit 2 and Pilgrim Nuclear Power Station).
23 NRC, Generic Milestone Schedules of Requested Activities of the Commission (last updated Sept. 10, 2021), available at https://www.nrc.gov/about-nrc/generic-schedules.html (citing 42 U.S.C. § 2215(c)).
24 Id. (emphasis added).
IV. Significant Policy Considerations Support PG&Es Exemption Request
As explained above, granting PG&Es exemption request is well within the Commissions broad legal authority and discretion, is consistent with Section 2.109(b),
and would not present any u ndue risk to the public health and safety and common defense and security. Granting the exemption request is also supported by significant policy considerations.
As an initial matter, the continued need for reliable electric power in California support s granting the extension request. As detailed in PG&Es exemption request, the California state legislature passed, and Governor signed into law, a statute expressing Californias strong interest in keeping Diablo Canyon operating beyond its existing licenses. 25 As explained in the statute, continued operation of the Diablo Canyon plant may be necessary for state-wide energy reliability and to reduce greenhouse gas emissions, all while renewable and other zero-carbon resources are developed. 26
Federal and state officials have expressed support for extending the Diablo Canyon operating licenses for these reasons. In November 2022, the U.S. Department of Energy (DOE) conditionally awarded $1.1 billion from the Civil Nuclear Credit Program to support extension of the Diablo Canyon operating licenses itself an expression of the widespread public support for extending the operating licenses. At that time, California Governor Newsom (who represents Californias over 39 million people) reiterated his support for license extension, stat ing that the DOE investment creates a path forward for a limited-term extension of the Diablo Canyon Power Plant to support reliability statewide and provide an onramp for more clean energy projects to come online. 27 Senator Feinstein similarly stated that Diablo Canyon license extension is necessary if California is going to meet its ambitious clean-energy goals while continuing to deliver reliable power. This is especially critical as Californias electric grid has faced increasing challenges from climate -fueled extreme weather events. 28 These clear expressions of support by Californias elected representatives weigh strongly in favor of granting the exemption request. They demonstrate compliance with the default five-year deadline would result in undue hardship and other costs far in excess of those contemplated when Section 2.109(b) was adopted, and also constitute material circumstances not considered when the regulation was adopted and for which it would be in the public interest to grant the exemption.
25 PG&E Request, Enclosure 2 at pp. 5-6 of 11.
26 Id.
27 Governor Newsom Statement on Federal Funding of Diablo Canyon Extension (Nov. 21, 2022),
available at https://www.gov.ca.gov/2022/11/21/governor-newsom-statement-on-federal-funding-for-diablo-canyon-extension.
28 Feinstein Applauds Energy Department Investment in Diablo Canyon (Nov. 21, 2022), available at https://www.feinstein.senate.gov/public/index.cfm/press -releases?ID=E3F8B369-86DD-4599-A990-05546C311A2A.
Second, and relatedly, granting the exemption request is also consistent with the Commissions determination that the purpose and need for license renewal is to provide an option to continue plant operations beyond the current licensing term to meet future system generating needs, as such needs may be determined by State, utility, system, and, where authorized, Federal (other than NRC) decision-makers. 29 The Commission has recognized that utility planners need adequate time to develop alternative sources of power if the license is not renewed. 30 Here, if the exemption request is not granted and the Diablo Canyon operating licenses are allowed to expire, there likely will not be adequate to time develop alternative sources of clean, carbon-free power of the scale needed to replace the clean, carbon-free power generated by Diablo Canyon. In other words, the denial of the exemption w ould essentially abandonrather than preservethe option of license renewal for state, utility, and other federal decisionmakers, undermining the central purpose behind the NRCs license renewal framework.
Third, and finally, PG&E could not have reasonably anticipated that it would need to refile a license renewal application for Diablo Canyon. On Sept. 2, 2022, the State of California enacted a law reversing an earlier California Public Utilities Commission decision to retire the Diablo Canyon Units at the end of their existing operating licenses. 31 As PG&E explained in its exemption request, it did not intentionally postpone the decision to seek license renewal. 32 Indeed, in good faith, and well in advance of the five -year timely renewal period, PG&E previously submitted a license renewal application, which was subsequently withdrawn. 33 Since the withdrawal, significant factors related to the energy needs in California have driven the State to direct PG&E to keep the option of continuing DCPP operations beyond the current license expirations, and such evolution in state policy was unanticipated. 34 That new direction is what necessitates the exemption request so the units can continue operating while the renewal application is under review.
Federal agencies and the licensees subject to federal regulations are not clairvoyant.
Sometimes circumstances do not fit what is contemplated in a regulation. As a matter of law and policy, the existence of such unanticipated circumstances not contemplated by a regulation should weigh in favor of granting an exemption from that regulation.
That is clearly the case here.
29 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear PlantsFinal Report at S-3 (June 2013).
30 Proposed License Renewal Rule, 55 Fed. Reg. at 29, 051.
31 PG&E Request, Enclosure 2 at p. 2 of 11.
32 Id., Enclosure 2 at p. 5 of 11.
33 Id.
34 Id.
For all the foregoing reasons, NEI strongly supports granting PG&Es exemption request.
Sincerely,
Ellen C. Ginsberg
cc: Chair Christopher T. Hanson Commissioner Jeff Baran Commissioner David A. Wright Commissioner Annie Caputo Commissioner Bradley R. Crowell Marian Zobler, NRC General Counsel Andrea Veil, NRC Director NRR Lauren Gibson, License Renewal Projects Branch Chief February 23, 2023
Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Andrea Veil
Subject:
Clean Air Task Force and Carbon Free California Comment on Pacific Gas and Electrics October 31, 2022, Letter Requesting an Exemption from 10 CFR § 2.109(b).
Dear Ms. Veil:
Clean Air Task Force (CATF) and Carbon Free California (CFC) are writing to you to express their support for Pacific Gas and Electrics (PG&Es) request for an exemption from 10 CFR
§2.109(b), prescribing a period of eligibility for application of the timely renewal standard in license renewal.1 The timely-renewal standard allows a nuclear power plant to continue operations past its operating license expiration date, provided that a license renewal application is submitted five years prior to expiration of the license. PG&Es exemption request was submitted for good cause in order to allow PG&E to obtain timely renewal regardless of the five-year requirement as the requested exemption is authorized by law, does not present an undue risk to the public health and safety, is consistent with the common defense and security, is in the public interest, and the absence of an exemption will result in undue hardship. It is imperative that Diablo Canyon Power Plant (DCPP) be granted this exemption in order to allow California to reduce carbon emissions in the state while meeting consumer electricity needs, and guard against serious grid reliability challenges,.
CATF is a global environmental nonprofit organization working to safeguard against the worst impacts of climate change by catalyzing the rapid development and deployment of low-carbon energy and other climate-protecting technologies. Through research, analysis and public advocacy leadership, CATF pushes for the technology and policy changes needed to achieve a zero-carbon emissions, high-energy planet at an affordable cost. CATF believes that climate change is too
1 Pacific Gas & Electric (PG&E) Letter DCL-22-085, 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 dated October 31, 2022 (ADAMS Accession No. ML22304A691).
complex a challenge and the stakes are too high for us to limit the tools at our disposal, including the use of nuclear energy.
CFC is a 501(c)(3) nonprofit organization funded by California-based entrepreneurs that brings together leaders from business, labor, and the technology sector to focus on creating a pathway to a carbon-free future and securing the clean, reliable energy needed to power the worlds fifth-largest economy. Carbon Free California believes all forms of emission-free energy must be pursued in order to address the climate crisis and achieve Californias urgent emission reduction goals.
CATF and CFC believe that extending the operation of DCPP will bolster the grid in California with reliable carbon-free energy and enable the state to transition to increasing wind and solar power, while avoiding disruptive and costly rolling blackouts. In light of this, we write this comment letter to express our support for PG&Es request for an exemption from 10 CFR
§ 2.109(b) regarding its eligibility for timely renewal protection if the NRCs licensing review extends beyond the current expiration dates of the two licenses being considered for renewal.
An independently funded joint study by Stanford Universitys Precourt Institute for Energy and the Massachusetts Institute for Technology (MIT) Center for Advanced Nuclear Energy Systems previously assessed DCPPs potential in helping California meet the challenges of climate change, and found that a combination of energy generation from DCPP and other renewables like wind and solar is crucial to providing zero-carbon energy to California.2 The study found that even assuming a rapid buildout of other renewable energy sources, the continued operation of DCPP would significantly reduce Californias use of natural gas for electricity production from 2025 to 2035 by approximately 10.2 terrawatt-hours (TWh) per year. In doing so, DCPP would also reduce California carbon emissions by an average of 7 million metric tons (MMt) CO2 a year during the same time period, corresponding to an 11% reduction in CO2 from the electricity sector relative to 2017 levels. Overall, this would result in a cumulative total reduction of 35 MMt CO2 from 2025-2030 alone, while saving $2.6 billion in costs. During this period, DCPP would also provide firm electric capacity during increasingly frequent electric reliability events. Over the long term, keeping DCPP online would save the state $15-21 billion depending on land use constraints. Even if the emissions cap for the electricity system were to be replaced by a carbon tax, DCPP could save California as much as 50 Mt CO2 in cumulative emissions through 2045.
A subsequent study by the Brattle Group3 sponsored by Carbon Free California reached similar conclusions. The report found:
- 1. Even assuming an immediate doubling of the states recent buildout rate for solar energy and the widespread availability of natural gas combined cycle (NGCC) with carbon
2 An Assessment of the Diablo Canyon Nuclear Plant for Zero-Carbon Electricity, Desalination, and Hydrogen Production (Nov. 2021), https://energy.stanford.edu/news/extending-diablo-canyon-nuclear-plant-would-help-california-meet-its-climate-goals-new-study.
3 Newell, et al., Retaining Diablo Canyon: Economic, Carbon, and Reliability Implications (June 9, 2022),
2 capture and sequestration (CCS) after 2035, California will rely on substantial unabated gas-fired generation and imports. Retaining Diablo would displace gas-fired generation and emitting imports, especially during the first 10 years.
- 2. Retaining Diablo would massively reduce cumulative emissions by approximately 40 MMT CO2, more than an entire years worth of in-state electricity generation emissions, while also lowering other local air pollution from gas-fired plants.
- 3. Retaining Diablo would provide insurance for meeting both reliability standards and carbon goals in the event clean energy deployment rates do not double and future dispatchable clean technologies (e.g., NGCC with CCS or hydrogen (H2)) do not materialize at scale. Retaining Diablo would also continue to provide insurance against extreme events such as those that caused the August 2020 rolling blackouts.
- 4. Retaining Diablo would reduce system costs by more than $4 billion by avoiding burning natural gas in California and gas/coal for imported energy, and by reducing capital and fixed costs for other resources otherwise needed to meet clean energy and reliability goals. Savings are positive under all the scenarios analyzed, even accounting for a conservatively higher estimate than MITs cost of new intake structures, and even if upgrades cost twice as much as that, and assuming no federal assistance.
- 5. Retaining Diablo could greatly help enable California to achieve a potentially accelerated goal of a carbon free-grid years earlier, by 2035, by lowering the cost of accelerated compliance by $5 billion. Retaining Diablo would also make earlier compliance feasible by providing more time for the state to more than quadruple its current annual deployment rate of solar and wind, while delaying the need for CCS on NGCCs, or other novel technologies.
A further study by the Brattle Group on behalf of Carbon Free California4 found that Diablo Canyon would be especially valuable in the coming few years for reliability purposes, closing large capacity gaps in the likely case that renewable energy and storage does not come online as swiftly as assumed in California Public Utility Commission (CPUC) orders. The Brattle Group conclusions concerning the reliability value of D iablo Canyon were confirmed in a subsequent study by the California Energy Commissio n and the California Independent System Operator.5
It is important to note that PG&Es request for a waiver of the five-year notice provision is not the result of any lack of diligence on its part. Rather, circumstances have changed dramatically in California, leading the States Governor and Legislature to call for continued operation of the plant.
On September 1, 2022, the California Legislature passed Senate Bill 846 which, among other
4 Newell et al, Near-term reliability benefits of retaining Diablo Canyon (August 2, 2022),
https://carbonfreeca.org/wp-content/uploads/2022/08/2022-07-25_Diablo-Reliability-Study_Deck88.pdf.
5 California Energy Commission and the California Independent System Operator, Transitioning to a Clean Energy Future: Electric Reliability Outlook (August 12, 2022), https://www.energy.ca.gov/event/workshop/2022-08/joint-agency-workshop-diablo-canyon-power-plant.
3 things, statutorily reversed earlier findings by the CPUC that the Diablo Canyon Power Plant should be retired at its current license expiration dates, mandated that relevant state agencies should facilitate the continued operation of the plant while assessing future needs, and made available financial support that may be required for extended operation of the plant.6 Governor Newsom signed that legislation on September 2, 2022, and by the end of October, PG&E made the relevant applications to this Commission.
It is also noteworthy that pursuant to the state legislation cited above, the California Energy Commission staff more recently found that it is:
prudent for the state to pursue extension of the Diablo Canyon Power Plant through 2030 to mitigate the risks imposed by the dependence on an unprecedented speed and scale of development [of alternative energy sources] and of increased frequency and intensity of climate-driven extreme events. CEC staff has determined that this is consistent with the states emission reduction goals. 7
We believe that there is sufficient basis for the NRC Staff to grant PG&Es exemption request to allow submission of the renewal application less than five years before license expiration in a manner that is consistent with previous decisions regarding similar applications. Indeed, the NRC has previously approved several requests for exemptions from the timely renewal requirements for Oyster Creek, Clinton, Perry, Nine Mile, and Ginna. While there are some differences in the timing between those previous exemption requests and the relief requested by PG&E, as those licensees were granted exemptions at least three years prior to license expiration, there are also significant factors related to the energy needs in California necessitating the continued operation of DCPP.8
Granting this exemption to PG&E wil l not result in a violation of the Atomic Energy Act of 1954, as amended, the APA, or the NRCs own regulations, which allow for exemptions in cases such as this. Therefore, the exemption should be authorized by law. Notably, at least one other nuclear
6 In its findings, the Legislature noted, Preserving the option of continued operations of the Diablo Canyon powerplant for an additional five years beyond 2025 may be necessary to improve statewide energy system reliability and to reduce the emissions of greenhouse gases while additional renewable energy and zero-carbon resources come online, until those new renewable energy and zero-carbon resources are adequate to meet demand. Accordingly, it is the policy of the Legislature that seeking to extend the Diablo Canyon powerplants operations for a renewed license term is prudent, cost effective, and in the best interests of all California electricity customers. See SB 846, 25548(b).
7 California Energy Commission, Diablo Canyon Power Plant Extension-Draft CEC Analysis of Need to Support Reliability (February 14, 2023), https://efiling.energy.ca.gov/Lists/DocketLog.aspx?docketnumber=21-ESR-01.
8 Approval of a timely renewal period less than five years is also consistent with the broader statutory scheme in place here. The NRC has had varying timely-renewal standards in the past, and previously proposed a modification to Section 2.109 that required license renewal applications to be submitted only three years prior to license expiration to be eligible for timely renewal protection. The five-years prior deadline was instead chosen for consistency with other NRC submittal deadlines. Nuclear Power Plant License Renewal; Final Rule, 56 Fed. Reg. 64,943, 64,962 (Dec. 13, 1991). Moreover, there is no statutory requirement for the NRC to require that license renewal applications be submitted years in advance. Instead, the Commissions original embodiment of the Administrative Procedure Act at 10 CFR § 2.109 only provided for a 30-day timely renewal period. Nuclear Power Plant License Renewal; Proposed Rule, 55 Fed. Reg. 29,043, 29,051 (July 17, 1990).
4 power plant, Indian Point Nuclear Generating Units 2 and 3, has operated under timely renewal pending the NRCs final approval of a renewal application.
Californias need to keep DCPP open is based, in part, on serious climate change impacts and the urgent need for the state to reach net-zero carbon emissions. Therefore, the NRC should grant PG&Es requested exemption from 10 CFR § 2.109(b) as it is in the public interest to resume review of the license renewal application, confirm the applicability of the timely renewal standard, and enable DCPP to provide carbon-free energy for California to meet its net-zero carbon emissions goals.
Sincerely,
Armond Cohen, Executive Director, Clean Air Task Force
Dan Richard, President, Carbon Free California
5 February 28, 2023
VIA E-MAIL TO LAUREN.GIBSON@NRC.GOV
Lauren K. Gibson, Chief License Renewal Projects Branch Division of New and Renewed Licenses Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Re: Diablo Canyon Power Plant, Units 1 and 2 Docket No. 50-275, OL-DPR-80 Docket No. 50-323, OL-DPR-82
Response to Letter of Organizations Opposing PG&Es Request for an Exemption from 10 C.F.R. § 2.109(b), Concerning a Timely R enewal Application
References:
- 1. PG&E Letter DCL-22-085, 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, dat ed October 31, 2022 (ML22304A691)
- 2. Organizations Letter, Opposition to Pacific Gas & Electric Co.s Request for an Exemption from the NRCs Timely Renewal Regulation, 10 C.F.R. § 2.109(b), Docket Nos. 50-275, 50323, dated February 13, 2023
Dear Ms. Gibson:
As you know, Pacific Gas and Electric Company ( PG&E ) submitted a letter to the U.S. Nuclear Regulatory Commission ( NRC ) on October 31, 2022, requesting, among other things, an exemption from 10 C.F.R. § 2.109(b), Effect of timely renewal application, for Diablo Canyon Power Plant ( DCPP ), Units 1 and 2, pursuant to 10 C.F.R. §§ 54.15 and 50.12, Specific exemptions (Reference 1, Exemption Request ). Under current NRC regulations, a power reactor license renewal application ( LRA ) is considered timely if submitted at least 5 years prior to expiration of the license. PG&E requested an exemption from that regulation to permit a LRA for DCPP, Units 1 and 2, to be considered timely if submitted to the NRC no later than December 31, 2023 (the Exemption ). Simply put, the Exemption Request asks the NRC to approve a case-specific exception to the LRA timeliness threshold for the reasons outlined in Reference 1.
On February 13, 2023, San Luis Obispo Mothers for Peace, Friends of the Earth, and the Environmental Working Group ( Organizations ), submitted a letter to you purporting to express formal opposition to, and requesting that the NRC deny, that Exemption Request (Reference 2, Opposition Letter ). But, as you are aware, and as the Organizations acknowledge, NRC regulations provide no mechanism for such submissions. 1 Notwithstanding, PG&E is providing this response to address several misstatements of law and fact in the Opposition Letter. This response does not attempt to address each assertion made therein; rather, it focuses only on certain key issues and fundamental mistakes that undermine the Organizations claims.
The timeliness of an LRA is relevant to the applicability of Sect ion 9(b) of the Administrative Procedure Act ( APA ), referred to herein as the Timely Renewal Statute. 2 That statute provides that [w]hen the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency. 3 The purpose of this provision is to protect licensees against the disruptive consequences that otherwise might flow from the administrative expiration of a license during the pendency of a renewal proceeding. 4 However, it is important to note that non-expiration of an existing license under the timely renewal doctrine is not an extension or amendmentof the original license ( i.e., akin to license renewal) and is not synonymous with unconditional authorization to continue the licensed activity during the period of timely renewal ( PTR ). 5
Here, the Organizations suggest that granting the Exemption Request would automatically authorize continued operation during the PTR without regard to public health and safety. As explained below, that is factually and legally false. The Organizations then demand that the NRC deny the Exemption Request because it does not satisfy the NRCs safety and environmental requirements for issuance of the renewed licenses. However, that demand is fundamentally flawed because it conflates and misconstrues three distinct regulatory concepts: (1) regulatory exemptions, (2) continued operation, and (3) license renewal. Thus, the claims presented in the Opposition Letter are meritless for the many reasons explained below.
The Exemption Is Authorized by Law
An exemption from NRC regulations may be granted only if it is authorized by law. 6 In its Exemption Request, PG&E demonstrated satisfaction of that requirement based on Congress extraordinarily broad grant of discretion to the NRC and other agencies to establish their own
1 Opposition Letter at 1 n.1. See also, e.g., Letter from A. Vietti-Cook to S. Shapiro, Objection to NRCs Grant of an Exemption to Indian Point Unit 3 (Jan. 30, 2008) (ML080300243)
(declining to take action on an objection to an exemption request and confirming that exemptions are not subject to AEA hearings).
2 5 U.S.C. § 558(c).
3 Id.
4 Pan-Atl. Steamship Corp. v. Atl. Coast Line R.R. Co., 353 U.S. 436, 439 (1958).
5 PTR describes the period after the expiration date stated in the license and prior to issuance of a final agency determination on the renewal application.
6 10 C.F.R. §§ 54.15, 50.12(a)(1).
timeliness thresholds for LRAs. 7 In contrast, the Organizations claim the Exemption is unlawful because the Timely Renewal Statute does not apply to NRC licenses for commercial reactors, or cannot apply to such licenses unless and until a license renewal proceeding has been (or could be) completed prior to the original expiration date, when Timely Renewal protections would be meaningless. As explained below, those assertions are legally misguided.
First, the Timely Renewal Statute applies to commercial reactor licenses pursuant to the plain text of the Atomic Energy Act ( AEA ), which does not include an exception for commercial reactors, as the Organizations suggest. Specifically, Section 181 of the AEA makes clear that the provisions of the APA including the Timely Renewal Statuteshall apply to all agency action taken under
[the AEA]. 8 In other words, the AEA does not exclude the applicability of any APA provisions (e.g., the Timely Renewal Statute) to any actions or types of licenses (e.g., commercial reactor licenses). Thus, the Organizations contrary claim finds no support in statutory text.
Furthermore, the NRC has incorporated the Timely Renewal Statute into its regulations at 10 C.F.R.
§ 2.109. That regulation plainly and unequivocally applies the Timely Renewal Statute to commercial nuclear power plants. Specifically, it provides that Timely Renewal protections apply to any licensee of a nuclear power plant licensed under 10 CFR 50.21(b) or 50.22, the latter of which pertains to Class 103 licenses; for commercial and industrial facilities (Emphasis added).
Thus, the Organizations claim that the Timely Renewal Statute does not apply to commercial reactor licenses contradicts the plain text of the regulations duly promulgated by the NRC pursuant to notice and comment rulemaking.
The Organizations claim that the Timely Renewal Statute does not apply to commercial reactor licenses (or requires prior completion of the license renewal proceeding) relies on a separate provision in the AEA, section 103c., which provides that commercial licenses shall be issued for a specified period... not exceeding forty years. 9 According to the Organizations, that provision creates an irreconcilable conflict with the Timely Renewal Statute such that timely renewal protections can only apply after completion of a full license renewal proceeding (including all safety and environmental reviews and a hearing). As explained below, that reading of the statutes is unsupported and meritless.
The Organizations appear to rely on a mistaken assumption that the Timely Renewal Statute somehow amends the specified period in a previously issued license. However, they cite no support for that strained interpretation. The plain text of the Timely Renewal Statute says nothing about amending licenses or otherwise altering the specified period stated in a license; rather, it says that, upon submission of a timely application for renewal, the original license issued by any agency does not expire. Thus, the non -expiration occurs by operation of statute, not via license amendment. Moreover, if the Organizations reading were correct (it is not), it would invalidate the applicability of the Timely Renewal Statute to every time-limited federal license ever issued by any federal agency. The far-reaching effects of that extreme position would nullify and render meaningless the Timely Renewal Statute. Specifically, under the Organizations theory, an applicant for a renewed license could not operate in timely renewal under its existing license unless
7 Exemption Request at 3-4.
8 42 U.S.C. § 2231 (emphasis added).
9 42 U.S.C. § 2133(c).
the renewed license is issued before expiration of the existing license. That is a classic oxymoron.
The Supreme Court has long held that statutory interpretations that would produce an absurd and unjust result which Congress could not have intended are unpersuasive. 10
Lastly, this theory conflicts with the Organizations separate assertions that 5-year and 3-year thresholds for a timely LRA are legally acceptable merely because they are within the estimated duration of a typical license renewal proceeding. Advance filing thresholds provide no guarantee as to when a proceeding will be completed. An applicant that files an LRA well in advance of such thresholds still may enter the PTR (for example, Indian Point Unit 2 in 2013 and Unit 3 in 2015).
To the extent the Organizations suggest continued operation in the PTR would violate the AEAs 40- year limit in some cases, but not others, based solely on a rough estimate of review duration or adjudicatory proceedings, that argument has no statutory basis and is irrationalon its face.
To be clear, the operative question presented by the Exemption Request is whether the NRC may lawfully conclude that an LRA submitted approximately 10 months prior to expiration is timely.
As explained in the Exemption Request, and PG&Es response to the Organizations extraprocedural adjudicatory filing, 11 the answer to that question under the set of circumstances and conditions presented is a categorical yes. No statute prohibits that conclusion. No statute specifies or limits the definition of timeliness. No statute requires a license renewal proceeding to be completed prior to license expiration. And no statute requires that an application be filed within an estimated completion window. Congress gave agencies broad authority to determine timeliness.
And the NRC, itself, previously utilized a 30-day timeliness threshold (which also was a lawful exercise of discretion). Accordingly, the requested Exemption is authorized by law, and the Organizations unsupported statutory interpretations do not undermine that conclusion.
The Exemption Will Not Present an Undue Risk to the Public Health and Safety
To grant a regulatory exemption, the NRC also must find that it will not present an undue risk to the public health and safety. 12 In its Exemption Request, PG&E explained how that requirement is satisfied here namely, because a change to the LRA timeliness threshold has no impact on PG&Es obligation to submit a sufficient LRA and operate the plant safely during NRCs review of the LRA, or on the NRCs ability to prevent continued operation of the plant during the PTR based on its assessment of adequate protection of public health and safety. 13 The Organizations argue that such a finding is not possible unless and until the NRC completes its safety and environmental reviews of the LRA. However, this argument fundamentally conflates license renewal, regulatory exemptions, and continued operation, each of which are subject to separate regulatory requirements. The only requirements applicable to the Exemption Request are those associated with regulatory exemptions. To the extent the Organizations demand something beyond those
10 Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982).
11 [PG&E] Response to the January 10, 2023 Extraprocedural Filing by [Organizations] § V.A (Jan. 20, 2023).
12 10 C.F.R. §§ 54.15, 50.12(a)(1).
13 Exemption Request at 4.
requirements, they are presenting a challenge to NRC regulations, and are doing so in the wrong forum. 14
As an overarching matter, the Organizations misconstrue the legal effect of the requested Exemption. Their arguments reflect a mistaken belief that granting the Exemption would convey an unconditional right to PG&E to operate the plant beyond the current expiration dates in the licenses regardless of safety or compliance with the technical specifications and other requirements. That is incorrect as a matter of law.
The plain text of 10 C.F.R. § 2.109(b) explains the legal effect of an NRC decision to consider a sufficient LRA timely the existing license will not be deemed to have expired until the application has been finally determined. But, continued operation of the plant requires more than mere possession of an unexpired license. It requires the licensee to comply with applicable legal and regulatory requirements, license conditions, technical specifications, written commitments, and plant-specific design basis information which is subject to robust NRC oversight, inspection, and possible regulatory action to ensure that continued operation does not present an undue risk to public health and safety. 15 Here, the NRC is actively evaluating (separate from the Exemption Request) safety matters, including aging management program implementation and commitments during upcoming DCPP refueling outages, related to possible continued operation of DCPP, Units 1 and 2, into the PTR. 16 That evaluation is consistent with past timely renewal precedent for Indian Point, in which the NRC required the licensee to implement some (but not all) license renewal commitments prior to entering the PTR while NRC continued to process that LRA. 17
Contrary to the Organizations claims, continued operation does not require the NRC to complete its safety and environmental reviews associated with the LRA within any set time period. The timely renewal exemption for Oyster Creek (which the Organizations a cknowledged is applicable here) 18 is instructive on each of the points above. In that proceeding, the licensee offered to condition the exemption on the issuance of both a draft safety evaluation ( SE ) and a draft supplemental environmental impact statement ( SEIS ). However, the agency declined to adopt those conditions, with the following explanation:
The NRC does not specifically condition the exemption subject to issuance of a draft license renewal SE and associated draft SEIS, despite the licensees proposal to do so inasmuch as timely renewal requires only that the licensee submit a sufficient license renewal application in accordance with the agencys rules, in order for the
14 See, e.g., 10 C.F.R. § 2.802 (petitions for rulemaking).
15 See generally 10 C.F.R. § 50.100 (Revocation, suspension, modification of licenses, permits, and approvals for cause).
16 Letter from B. Harris, NRC, to Paula Gerfen, Senior Vice President and Chief Nuclear Officer, Pacific Gas & Electric Company, Request for Information Regarding Diablo Canyon Power Plant, Units 1 and 2 - December 8, 2022, Public Meeting (Feb. 17, 2023) (ML23041A186).
17 See also, e.g., Letter from to M. Evans, NRC, to Vice President, Entergy, Indian Point Nuclear Generating Unit No. 2 - Actions to be Completed Prior to Entering the Period of Timely Renewal (Aug. 19, 2013) (ML1 3197A034).
18 Opposition Letter at 20 n.78.
existing license not to expire until there is a final agency determinat ion. Of course, pending final action on the license renewal application, the NRC will continue to conduct all regulatory activities associated with licensing, inspection, and oversight, and will take whatever action may be necessary to ensure adequate protection of the public health and safety. The existence of this exemption does not affect NRCs authority, applicable to all licenses, to modify, suspend, or revoke a license for cause, such as a serious safety concern. 19
In other words, the NRC has previously rejected the very argument presented by the Organizations here.
For the same reasons, the Organizations various assertions regarding purportedly unresolved safety and environmental topics are immaterial to the NRCs consideration of the Exemption Request. For example, the Organizations discuss seismic requirements, water permits, coupons, plant maintenance, and decommissioning funding. But those discussions raise issues that are either governed by the current plant licenses (and thus are beyond the scope of both license renewal and this Exemption Request, and are more appropriately directed to an enforcement request under 10 C.F.R. § 2.206) or will be addressed in the forthcoming license renewal proceeding (and therefore are premature). 20 Either way, none of these issues bear on the Staffs consideration of whether the requirements in 10 C.F.R. § 50.12(a) have been satisfied as to PG&Es request for a case-specific exception to the LRA timeliness threshold.
In sum mary, the Exemption Request satisfies all requirements in 10 C.F.R. § 50.12(a) and nothing in the Opposition Letter casts doubt on the NRCs ability to grant that request.
Sincerely,
s/ Paul M. Bessette
Counsel for Pacific Gas and Electric Company
DB1/ 136287342.6
19 Letter from P. Tam to C. Crane, Oyster Creek Nuclear Generating Station - Exemption from the Requirements of Section 109(b) of 10 CFR Part 2, Regarding the Effect of Timely License Renewal Application (TAC No. MC3967), Encl. at 6 (Dec. 22, 2004) ( ML042960164).
20 See also Opposition Letter at 12 (acknowledging that these are things PG&E must address in a new license renewal application).