ML23283A288
| ML23283A288 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/05/2023 |
| From: | Bonta R, Hey M, Ochoa E, Zuckerman L State of CA, Office of the Attorney General |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, 9th Circuit |
| References | |
| 23-852, 29.1 | |
| Download: ML23283A288 (1) | |
Text
No.23-852 IN THE 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.
BRIEF OF THE STATE OF CALIFORNIA AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS
ROB BONTA (SBN 202668)
Attorney General of California EDWARD H. OCHOA (SBN 144842)
Senior Assistant Attorney General LAURA J. ZUCKERMAN (SBN 161896)
Supervising Deputy Attorney General
- MEGAN K. HEY (SBN 232345)
Deputy Attorney General 300 S. Spring Street, #1700 Los Angeles, CA 90013 Telephone: (213) 269-6344 E-mail: Megan.Hey@doj.ca.gov Attorneys for the State of California September 5, 2023 TABLE OF CONTENTS
Page
INTRODUCTION AND INTEREST OF AMICUS CURIAE..................... 1 ARGUMENT................................................................................................. 5 I. Special Circumstances and the Public Interest Suppor t The NRC s Decision Because the Limited-T er m, Continued Operation of Diablo Canyon May Be Required to Preserve Grid Reliability While Meeting the States Clean Energy Goals....................................................... 5 II. The NRCs Decision Presents No Undue Risk Because The NRC and the State Will Work Together To Oversee Safety During Any Continued Operations.............................. 13 CONCLUSION............................................................................................ 21 CERTIFICATE OF COMPLIANCE........................................................... 22 CERTIFICATE OF SERVICE.................................................................... 23
i TABLE OF AUTHORITIES
Page
FEDERAL REGULATIONS 10 Code of Federal Regulations
§ 2.109(b)....................................................................................................2
§ 50.12........................................................................................................2
§ 52.31(b)................................................................................................. 13
§ 54.17(a)....................................................................................................2 FEDERAL RULES Federal Rule of Appellate Procedure Rule 29(a)(2)...............................................................................................5 FEDERAL REGISTER NOTICES PG&E Diablo Canyon Power Plant, Units 1 and 2, 88 Fed. Reg 14,395 (Mar. 8, 2023)................................................. passim
STATE STATUTES California Public Resources Code
§ 25233(a)................................................................................................ 18
§ 25233(a)-(b).......................................................................................... 14
§ 25233.2(a)............................................................................................. 17
§ 25233.2(c)............................................................................................. 11
§ 25548(b)............................................................................................ 1, 11
§ 25548(c)................................................................................................ 12
§ 25548.2(a)............................................................................................. 15
§ 25548.2(c)............................................................................................. 16
§ 25548.3(c)(5)........................................................................................ 14
§ 25548.3(c)(14)...................................................................................... 14
ii TABLE OF AUTHORITIES (continued)
Page
California Public Utilities Code
§§ 399.11-399.33........................................................................................7
§ 712.1............................................................................................... 14, 18
§ 712.1(e)................................................................................................. 18
§ 712.1(f)................................................................................................. 18
§ 712.8(2)(A)........................................................................................... 13
§ 712.8(b)(1)............................................................................................ 11
§ 712.8(c)(1)(A)-(c)(2)(A)....................................................................... 11
§ 712.8(c)(2)(A)....................................................................................... 17
§ 712.8(c)(2)(D)....................................................................................... 19
OTHER AUTHORITIES Cal. Energy Commn, A Peek at Net Peak, (May 2021),
https://www.energy.ca.gov/data -reports/energy-insights/peek -net-peak#:~:text=Peak%20Demand%3A%20The%20highest%20amount%20 of%20electric,demand%20within%20a%20particular%20period%20of%
20time................................................................................................... 8, 9 Cal. Energy Commn, Diablo Canyon Power Plant Extension - CEC Analysis of Need to Support Reliability (Reliability Report) (March 2023),
https://efiling.energy.ca.gov/GetDocument.aspx?tn=249030&Document ContentId=83587................................................................... 7, 8, 9, 11, 12 Cal. Energy Commn, Lead Commissioner Workshop on SB 846 Reliability Assessment and CERIP, (Jan. 10, 2023), https://efiling.
energy.ca.gov/GetDocument.aspx?tn=248361&DocumentContentld=827 76...................................................................................................... 11, 17 Cal. Energy Commn, SB 100 Joint Agency Report https://www.energy.ca.gov/sb100.............................................................6
iii TABLE OF AUTHORITIES (continued)
Page
Cal. Energy Commn, SB 846 Workshop Diablo Canyon Cost Comparison,
(July 7, 2023) https://efiling.energy.ca.gov/GetDocument.aspx?tn=250969&&
DocumentContentId=85912............................................................. 17, 18
Cal. Energy Commn Workshop, (Oct. 28, 2022),
https://efiling.energy.ca.gov/GetDocument.aspx?tn=247050
&DocumentContentId=8141................................................................... 12 Cal. Indep. System Operator, Understanding the ISO, https://www.caiso.com/about/Pages/ OurBusiness/Default.aspx (last visited Aug. 21, 2023)............................................................................. 11 Cal. Nat. Res. Agency Detailed Description and Plan of Actions Needed to Extend Operations of Diablo Canyon Power Plant, (Feb. 2023),
https://resources.ca.gov/- /media/CNRA-Website/Files/Initiatives/Transitioning -to -Clean-Energy/Diablo-Canyon-Detailed-Description -and-Plan.pdf.................................................... 14, 15 Cal. Nat. Res. Agency, Notice of Informational Listening Session Relating to the Diablo Canyon Power Plant Pursuant to SB 846, (Feb. 10, 2023),
https://resources.ca.gov/- /media/CNRA-Website/Files/Initiatives/Transitioning -to -Clean-Energy/NOTICE-FOR -
FEBRUARY-10-LISTENING-SESSION ---SB -846.pdf....................... 16 Cal. State Lands Commission Meeting Highlights (June 5, 2023) https://www.slc.ca.gov/commission-meeting -highlights/june 2023 -
meeting-highlights/.................................................................................. 15 Diablo Canyon Indep. Safety Commn, About the DCISC, https://www.dcisc.org/about/................................................................... 18
Governor Gavin Newsom, Proclamation of a State of Emergency (July 9, 2021), https://www.gov.ca.gov/wp-content/uploads/2021/07/Extreme -
Heat-Proc 8-21.pdf..................................................................................9
iv TABLE OF AUTHORITIES (continued)
Page
Letter from Edward Halpin, Senior Vice President, PG&E, to U.S. Nuclear Regulation Commission (June 21, 2016),
https://www.nrc.gov/docs/ML1617/ML16173A454.pdf...........................5 Assembly Bill No. 32, Chapter 488(Cal. 2006).............................................6
Senate Bill No. 100, Chapter 312, (Cal. 2018).................................................... 3, 6, 7 No. 846, Chapter 239, (Cal. 2022).................................................. 1, 9, 10 No. 1020, Chapter 361, (Cal. 2022)...........................................................7
v INTRODUCTION AND INTEREST OF AMICUS CURIAE The U.S. Nuclear Regulatory Commission (NRC) decision challenged in this
case concerns an issue of vital importance to the State of California: safeguarding
the reliability of the States electrical grid in the face of increasingly high demand
and stressed conditions caused by climate change, as the State moves to 100
percent renewable, non-nuclear, zero-carbon electricity by 2045.
The Diablo Canyon Power Plant (Diablo Canyon) was slated for closure
beginning in 2024. In 2022, however, California enacted stopgap legislation to
make it possible for Diablo Canyonwhich produces nearly nine percent of
Californias total electricity and 17 percent of its zero-carbon electricityto
continue operating until 2030. Senate Bill No. 846 (SB 846), Chapter 239, Statutes
of 2022. Californias Legislature found that [p]reserving 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. 1
That change in state policy made it necessary for Diablo Canyons operator,
Pacific Gas & Electric Company (PG&E), to restart the process of applying for
1 Cal. Pub. Util. Code § 25548(b).
1 renewals of the licenses for its nuclear reactors from the NRC, a process that
PG&E had begun in 2009 before withdrawing its application in 2018, deciding at
that time to decommission instead of seek renewal. To avoid interruptions in
service, the NRC automatically allows nuclear reactors to operate past their license
expiration dates when license renewal is sought at least five years before those
dates. 2 Because of the timing of SB 846, PG&E could not make this deadline. But
by law, the NRC may also waive that five -year rule in appropriate circumstances. 3
In March 2023, the NRC decided that Diablo Canyon could continue to
operate under its current licenses past their expiration dates while PG&E pursues
the full NRC license renewal process, provided that PG&E submits its renewal
application by the end of 2023 and satisfies an array of regulatory requirements at
the federal and state levels (Decision). 4 If PG&E satisfies the required conditions,
Diablo Canyon ma y continue to contribute toward the States grid stability while
the NRC evaluates PG&Es renewal application a process that would likely
move more quickly than a typical license renewal application because of the work
accomplished between 2009 and 2018, before PG&E withdrew its prior renewal
application.
2 10 C.F.R. § 54.17(a); 10 C.F.R. § 2.109(b).
3 10 C.F.R. § 50.12.
4 PG&E Diablo Canyon Power Plant, Units 1 and 2, 88 Fed. Reg. 14,395 (Mar. 8, 2023).
2 California agrees with the NRC that the Decision is within the agencys
discretion and supported by law. As explained in the Decision and in NRCs
briefing, the agency is expressly authorized to grant e xemptions from the license
renewal timing requirements of 10 C.F.R. part 50 when (1) the exemptions are
authorized by law, will not present an undue risk to public health or safety, and are
consistent with the common defense and security; and (2) special c ircumstances
are present, as defined in 10 C.F.R. § 50.12(a)(2). 5 For the reasons set forth by the
NRC, the conditions allowing for the exemption are present here.
California writes separately to highlight two points relevant to the NRCs
exemption finding s. First, as the NRC determined, the Decision arose from special
circumstances. When the State approved PG&Es decision to withdraw its 2009
license renewal application and begin the decommissioning process, the States
electrical needs were materially dif ferent than they are today. In 2018, California
committed itself by statute to achieving 100 percent renewable or zero-emission
retail electrical power by 2045 to address climate change and protect the public
health. Senate Bill No. 100 (SB 100), Chapter 3 12, Statutes of 2018.
To meet that objective, the State has added renewable and zero-carbon
resources at an unprecedented rate. Yet electricity demand still regularly exceeds
the supply of clean power necessary for grid reliability because of the accelerating
5 88 Fed. Reg. at 14,396-14,397.
3 harms of climate change, including the disruption of power transmission by
wildfires, as in 2021; the effects of drought on the available supply of hydropower,
as in 2020-2022; and increasingly frequent extreme heat events, which result in
increased electricity usage. By enacting SB 846 in 2022, the State determined that
preserving the option to extend Diablo Canyons operations for a limited five-year
period would allow time for replacement clean-power resources, consistent with
the States SB 100 go als, to come online and to protect grid reliability. The NRC
reasonably determined that SB 846 reflects the type of special circumstances that
justify the Decision. 6
Second, as the NRC reasonably found, the Decision will not pose an undue
risk to public health and safety. Although the NRC regulates the nuclear reactors at
Diablo Canyon, the State has regulatory oversight over virtually all other aspects of
Diablo Canyons operations, and that oversight provid es an additional and ongoing
layer of health and safety review. State regulation includes the California Public
Utility Commissions (PUC) oversight of PG&Es operations of Diablo Canyon,
the State Water Resources Control Boards regulation of the use of coastal waters
for powerplant cooling, and the State Lands Commissions decisions whether the
powerplants operations on state -owned lands are consistent with state law,
including environmental protection laws. Pursuant to SB 846, State agencies must
6 88 Fed. Reg. at 14,397-14,398.
4 review applications relevant to their statutory responsibilities. Importantly, in
addition to the NRCs decision here, every necessary state application must also be
approved before Diablo Canyons operations can continue for an additional five
years beyond the expiration of the current licenses. SB 846 requires that each of
these state approvals be conducted through a public process. These state agency
reviews are in addition to the NRCs review and oversight, which will continue
under the current licenses if PG&E submits a docket -ready license renewal
application by December 31, 2023. 7
ARGUMENT I. SPECIAL CIRCUMSTANCES AND THE PUBLIC INTEREST SUP PORT THE NRC S DECISION BECAUSE THE LIMITED-TERM, CONTINUED OPERATION OF DIABLO CANYON MAY BE REQUIRED TO PRESERVE GRID RELIABILITY WHILE MEETING THE STATE S CLEAN ENERGY GOALS In 2016, PG&E asked the NRC to suspend its 2009 application to renew the
NRC licenses for Diablo Canyons two reactor units, pending approval by the PUC
of an agreement in principle that PG&E had reached with stakeholders not to
proceed with license renewal. 8 The PUC approved that change in direction in
7 The State files this brief as of right under Federal Rule of Appellate Procedure 29(a)(2).
8 Letter from Edward Halpin, Senior Vice President, PG&E, to U.S. Nuclear Regulation Commission (June 21, 2016),
https://www.nrc.gov/docs/ML1617/ML16173A454.pdf; see 88 Fed. Reg. 14,395, 14,396 (Mar. 8, 2023).
5 2018. In large part, the withdrawal decision was based on the determination that
Diablo Canyon would not be necessary to meet the States energy needs, based on
the predicted demands that existed at the time. 9 Developments since 2018 have
shown that, in fact, operation of Diablo Canyonmay be needed for up to an
additional five years to support statewide electrical grid reliability without
increasing greenhouse gas (GHG) emissions until new renewable energy and zero-
carbon resources come online and are adequate to meet demand.
California has long worked to re duce GHG emissions associated with
electricity consumed in the State, consistent with the N ations and the States
overall goals of limiting the risk of catastrophic climate change. In 2006, the
California Legislature passed and Governor Schwarzene gger signed the historic
Global Warming Solutions Act of 2006 (Assembly BillNo. 32, Chapter 488,
Statutes of 2006). Since then, the State has adopted increasingly ambitious goals
for reducing climate -harming GHGs and moving California to a clean power grid.
To this end, the Legislature enacted and Governor Brown signed SB 100, The 100
Percent Clean Energy Act of 2018, which sets more stringent benchmarks for the
transition to clean electricity. 10 SB 100 directs the PUC, which regulates investor -
9 88 Fed. Reg. at 14,396, 14,398.
10 S. 100, 2017-2018 Leg., Reg. Sess. (Cal. 2018),
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB 100; see also SB 100 Joint Agency Report, CA Energy Commn,
https://www.energy.ca.gov/sb100 (last visited Aug. 21, 2023).
6 owned utilities statewide, to increase the amount of renewable and zero -emission
resources in the States Renewables Portfolio Standard such that by 2045, 100
percent of retail electricity sold in California, and all state agency electricity
consumed, will come from renewable and zero -carbon resources. 11 It specifies that
by the end of 2026, at least 50 percent of the States electricity will come from
renewable sources; 52 percent by end of 2027, and 60 percent by the end of 2030. 12
In 2022, through Senate Bill 1020, t he State added interim targets of 90 percent
electricity from renewables by 2035, and 95 percent by 2040. 13
In working to achieve SB 100sclean energy goals, California has
experienced an unprecedented expansion in clean energy development,
particularly solar and storage. 14 The States extraordinary pace of new
development is exemplified by its having brought more than 130 new clean
11 S. 100, 2017-2018 Leg., Reg. Sess. (Cal. 2018); through the California Renewables Portfolio Standard Program, the PUC mandates the minimum amount of electricity products from renewable resources that its regulated investor-owned utilities must procure and sell. Cal. Pub. Util. Code §§ 399.11-399.33.
12 S. 100, 2017-2018 Leg., Reg. Sess. (Cal. 2018).
13 S. 1020, 2021-22 Leg., Reg. Ses s. (Cal. 2022),
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB1 020.
14 Cal. Energy Commn, Diablo Canyon Power Plant Extension - CEC Analysis of Need to Support Reliability (Reliability Report) (March 2023), at p. 7, available at https://efiling.energy.ca.gov/GetDocument.aspx?
tn=249030&DocumentContentId=83587.
7 energy projects online in the last three years. 15 However, bringing such clean
energy projects onto the grid is a significant undertaking. These projects are large,
complex builds that face numerous implementation hurdles. 16 These hurdles
include construction su pply-chain disruptions (such as cost and availability of
materials and components, delivery disruptions, and price increases); challenges
inherent in the interconnection of multiple projects into the transmission system;
and local land use requirements that can require long wait times for permits, such
as land-use permits for solar/wind farms and storage projects. 17
Californias transition toward 100 percent clean power has coincided with an
era of increased electricity demand. 18 Each iteration of the CECs annual
California Energy Demand forecasts has shown a higher peak demand the
highest amount of electric ity demand within a particular period of time a trend
that is predicted to continue. 19 The increase comes from growing electrification of
buildings and transportation essential developments to reduce combustion of
15 Id. at 9.
16 Id. at 10, 11.
17 Id. at 10- 12.
18 Id. at 7.
19A Peek at Net Peak, Cal. Energy Commn (May 2021),
https://www.energy.ca.gov/data-reports/energy-insights/peek -net-peak#:~:text=Peak%20Demand%3A%20The%20highest%20amount%20of%20ele ctric,demand%20within%20a%20particular%20period%20of%20time ; Reliability Report at 7.
8 fossil fuels in vehicles and buildings that generate even greater GHG emissions
and also actual temperatures, which continue to rise, leading to greater electricity
usage for cooling. 20 In the last decade, the State has seen extreme temperatures
occur more frequently and with greater magnitude. 21 Severe weather events due to
climate change impact the grids stability due to increased demand; in 2020, for
example, extreme heat and resulting demand resulted in rotating outages. 22
Climate -driven natural disasters also can directly affect the grid. In 2021, for
example, an Oregon wildfire damaged transmission lines that California relies on
for reliability. 23
California has sought to address these growing threats to the grid, and find
ways to bolster the grids reliability, without compromising the States efforts to
reach SB 100 goals. 24 While acknowledging PG&Es State -approved plans to retire
Diablo Canyons Unit 1 in 2024 and U nit 2 in 2025, the State determined in 2022
20 Reliability Report at 7-8.
21 Id. at 8.
22 Id. at 1.
23 Id.; see also Governor Gavin Newsom, Proclamation of a State of Emergency, 1 (July 9, 2021), https://www.gov.ca.gov/wp-content/uploads/2021/07/Extreme -Heat -Proc 8 -21.pdf.
24 See id.
9 that the possibility of keeping the powerplant online for up to five more years, as a
bridge to the States clean power future, was necessary. 25
Thus, in September 2022, the Legislature passed and Governor Newsom
signed SB 846 as an urgency statute that was necessary for the immediate
preservation of the public peace, health, or safety. 26 Quick action was warranted
to ensure the expeditious relicensing of [Diablo Canyons units] beyond the
expiration dates of their operating licenses thereby ensuring electrical reliability in
the California electrical system. 27
SB 846 amended sections of the State Government, Public Resources, Public
Utilities, and Water Codes to provide for State -level authority and actions
necessary to extend Diablo Canyons operations for up to five years beyond the
current license expiration dates. 28 SB 846 specifies that:
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
25 S. 846, 2021-2022 Leg., Reg. Sess. (Cal. 2022), https://leginfo.legislature.
ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB846.
26 S. 846 § 18, 2021-2022 Leg., Reg. Sess. (Cal. 2022).
27 Id.
28 S. 846 § 18, 2021-2022 Leg., Reg. Sess. (Cal. 2022).
10 prudent, cost effective, and in the best interests of all California electricity customers. The Legislature anticipates that this stopgap measure will not be needed for more than five years beyond the current expiration dates. 29
SB 846 invalidate d the PUCs approval of PG&Es proposed retirement of
Diablo Canyon beginning in 2024, and it require d the PUC to set new retirement
dates for the powerplants two unitsOctober 31, 2029 for Unit 1 and October 31,
2030 for Unit 2 contingent on a variety of necessary authorizations for such
operations by the NRC and various state agencies, discussed in section II, infra. 30
SB 846 also directed the California Energy Commission (CEC), in consultation
with the PUC and the California Independent System Operator (the entity that
controls the electrical transmission grid used by 80 percent of California), to
evaluate, in a public process, whether operating Diablo Canyon until 2030 would
be prudent to secure grid reliability. 31
In March 2023, following the required public process, the CEC issued an
Analysis of Need to Support Reliability (Reliability Report) 32 This document
29 Cal. Pub. Res. Code § 25548(b)(emphasis added).
30 Cal. Pub. Util. Code § 712.8(b)(1), (c)(1)(A) -(c)(2)(A).
31 Understanding the ISO, Cal. ISO, https://www.caiso.com/about/Pages/
OurBusiness/Default.aspx (last visited Aug. 21, 2023) ; Cal. Pub. Res. Code
§ 25233.2(c).
32 See n.16, supra; see also Notice of Lead Commissioner Workshop on SB 846 Reliability Assessment and CERIP, Cal. Energy Commn (Jan. 10, 2023),
energy.ca.gov/GetDocument.aspx?tn=248361&DocumentContentld=82776 ;
11 presented the CECs analysis of the grids stability challenges, and its
determination that it is prudent for the State, consistent with its climate goals, to
pursue extending operations of Diablo Canyon through 2030 to mitigate the risks
imposed by the dependence on an unprecedented speed and scale of development
and of increased frequency and intensity of climate -driven extreme events. 33 In
particular, the CEC noted that significant grid reliability risks [are expected to]
persist through 2030 under increased demand conditions, such as those
experienced in August 2020 and September 2022, and these risks to the grid are
compounded by the risk of coincident wildfires that could affect transmission line s
that import electricity to California. 34
California has added renewables and zero-carbon power resources at an
extraordinary rate, and it will continue to do so to meet its SB 100 goals. SB 846
requires this, amending the Public Resource Code to specify that during Diablo
Canyons extended operations, the State will continue to act with urgency to bring
clean replacement energy online to support reliability and achieve Californias
landmark climate goals. 35 The need for Diablo Canyonto help support grid
Schedule for Oct. 28 846 Workshop, Cal. Energy Commn (Oct. 28, 2022),
https://efiling.energy.ca.gov/GetDocument.aspx?tn=247050
&DocumentContentId=81412.
33 Reliability Report at 3-4.
34 Reliability Report at 3.
35 Cal. Pub. Res. Code § 25548(c).
12 reliability and provide a bridge to Californias clean power future will therefore be
temporary. Thus, SB 846 expressly limits Diablo Canyons extended operations to
a max i mu m o f five years. 36
As the NRC recognizes, the circumstances that gave rise to SB 846 are
compelling, and demonstrate that the Decision is in the public interest. 37
II. THE NRC S DECISION PRESENTS NO UNDUE RISK BECAUSE THE NRC AND THE STATE WILL WORK TOGETHER TO OVERSEE SAF ETY DURING ANY CONTINUED OPERATIONS California is committed to see ing that PG&E operates Diablo Canyon in
manner that is safe for the public and the environment pending review of its license
renewal application, and during extended operations if they are ultimately
authorized. To that end, under SB 846, the state agencies that have jurisdiction
over Diablo Canyons operations must consider applications by PG&E for the
various permits, certifications, or approvals that are prerequisites for extended
operations. These State appr ovals are in addition to the NRCs review and
oversight of the reactor units themselves, which will continue during the license
renewal application process.
36 Cal. Pub. Util. Code § 712.8(2)(A). While under federal law, PG&E may apply to the NRC for the standard license renewal period of 20 years, see 10 C.F.R. 52.31(b), state law here, SB 846 limits the duration of any continued operations, such that P G&E would have permission under state law to operate Diablo Canyon only until 2030.
37 See 88 Fed. Reg. at 14,398.
13 Additionally, SB 846 codifies and augments the important role of the
Independent Safety Committee for Diablo Canyon ; 38 conditions the States
financial support for extended operations on PG&E s undertaking updated seismic
and deferred maintenance studies ; 39 sets forth numerous contingencies enabling the
State to terminate extended operations beyond 2025 before the contemplated 2030
end date, if necessary; 40; and requires the CEC and PUC to submit to the State
Legislature quarterly assessments of the States estimated electricity supply and
demand, and the interconnection status of renewable projects information that
allows the Legislature to remain up to date on the States progress toward bringing
replacement projects online to safeguard grid reliability even without Diablo
Canyon. 41
California law charges several state agencies with authority over different
aspects of Diablo Canyons operations. These agencies include the California
Coastal Commission, which controls any development permits the powerplant
might require under the California Coastal Act; the State Lands Commission,
which controls PG&Es lease of the public lands on which portions of Diablo
Canyon sit; the Central Coast Water Quality Control Board, which controls
38 Cal. Pub. Util. Code § 712.1.
39 Cal. Pub. Res. Code § 25548.3(c)(14).
40 Cal. Pub. Res. Code § 25548.3(c)(5).
41 Cal. Pub. Res. Code § 25233(a) -(b).
14 PG&Es water discharge permits under the Clean Water Act; and the PUC, which
oversees PG&E costs and revenues associated with operating Diablo Canyon. 42
Consistent with SB 846, PG&E must apply to each of these state agencies for
approvals necessary to operate beyond 2025. 43 Each of these state agencies will
review the relevant application s, and such review will be subject to the standards in
each of the applicable laws. 44 SB 846 does not predetermine the outcome of any
state agency decision. If PG&E does not obtain any one of these necessary
42 See SB 846: Detailed Description and Plan of Actions Needed to Extend Operations of Diablo Canyon Power Plant, Cal. Nat. Res. Agency (Feb. 2023),
https://resources.ca.gov/- /media/CNRA-Website/Files/Initiatives/Transitioning -to -
Clean-Energy/Diablo-Canyon-Detailed -Description -and -Plan.pdf.
43 See id.
44 See id. The State anticipates that PG&Es applications for all aspects of pursuing extended operations will be processed efficiently. SB 846 requires the state agencies involved in necessary state approvals to act on such applications within 180 days of submission. Cal. Pub. Res. Code § 25548.2(a). Additionally, the NRC and state agencies will be able to capitalize on their reviews of PG&Es 2009 license renewal applications. See 88 Fed. Reg. 14,395, 14,397 (Mar. 8, 2023).
Thus, if extended operations are not ultimately approved, the additional time of operation under the Decision will be relatively short; whereas if extended operations are ultimately approved, the Decision will avoid a gap in Diablo Canyons operations that could be devastating to electrical reliability in the State, and could render the powerplant unable to return to service as a stopgap measure, given the logistical challenges of any stoppage. As of June 2023, the State Lands Commission approved PG&Es application to extend its lease of State lands until October 2030, which coincides with Diablo Canyons extended operations under SB 846. https://www.slc.ca.gov/commission-meeting -highlights/june-5-2023-meeting-highlights/ Cal. State Lands Commn (June 5, 2023). The approved lease extension is conditioned on PG&E satisfying all of the conditions of SB 846. See id.
15 approvals, the process stops. Thus, there exist numerous off-ramps at the state level
if an aspect of Diablo Canyons continued operations does not satisfy applicable
state standards.
Further, SB 846 provides for a public participation process on these
decisions. Among other things, it requires the Secretary of the Natural Resources
Agency to facilitate a joint public process with applicable state agencies at least 30
days before issuing any State permit or other State approval necessary for the
continued operations of Diablo Canyon. This process will allow the public to raise
any concerns about environmental impacts, and the state decision makers to
consider such public input and any necessary mitigation before approving extended
operations. 45
These necessary State approvals are in addition to the continuing inspections
and oversight by the NRC. The Decision does not result in a change to Diablo
Canyons current operating licenses, u nder which the NRC has continuing
oversight of all aspects of t he powerplant, and it can modify, suspend, or revoke
operations, if necessary, for cause, including over safety concerns. Thus, the expert
45 Cal. Pub. Res. Code § 25548.2(c). The California Natural Resources Agency has hosted one such meeting to date. Cal. Nat. Res. Agency, Notice of Informational Listening Session Relating to the Diablo Canyon Power Plant Pursuant to SB 846, (Feb. 10, 2023), https://resources.ca.gov/- /media/CNRA-Website/Files/Initiatives/Transitioning -to -Clean-Energy/NOTICE-FOR -
FEBRUARY-10-LISTENING-SESSION ---SB -846.pdf.
16 federal nuclear regulatory agency has found that the limited extension the Decision
provides would not result in undue risk. 46 Pursuant to the Decision, if PG&E
submits a license renewal application suitable for docketing by December 31,
2023, the NRCs oversight under the current licenses will continue until the NRC
completes its review of the applications. If PG&E does not obtain NRC approval
for any continued operations, then the powerplant would have to cease operations
sooner as dictated by the NRC. 47
SB 846 also requires numerous reports and assessments to evaluate extended
operations to ensure that Diablo Canyon is used only as long as necessary for grid
reliability, which the State has determined will be five years or less. It directs the
CEC to undertake a cost comparison of extended operations compared to other
feasible resources available for the years 2024 to 20 35, and requires the CEC to
make these evaluations public. 48 This evaluation is underway; the CEC has held
public workshops by videoconferenc e to present its analysis, and it solicited public
comments. 49 Additionally, the CEC and PUC must submit a Joint Reli ability
46 88 Fed. Reg. at 14,397.
47 Cal. Pub. Util. Code § 7 12.8(c)(2)(A).
48 Cal. Pub. Res. Code § 25233.2(a).
49 See, e.g, Meeting Schedule - Lead Commissioner Workshop on SB 846 Reliability Assessment and CERIP, Cal. Energy Commn (January 10, 2023); SB 846 July 7 Workshop Diablo Canyon Cost Comparison, Cal. Energy Commn (July 7, 2023),
17 Planning Assessment to the Legislature, to be updated quarterly, to continually
monitor expected electricity supply and demand, and the status of the renewable
projects coming online during the five -year s between 2025 and 2030. 50 As
described below, the PUC can advance Diablo Canyons retirement before 2030, if
its continued operation becomes unnecessary for grid stability before that date.
SB 846 also codified and augmented the role of the Independent Safety
Committee for Diablo Canyon, a unique safety check created by PUC orders in
1988. 51 One of the paramount functions of the Independent Safety Committee is to
facilitate dialogue between the publicwhich is invited to quarterly public
committee meetings PG&E, and three independent nuclear expertsregarding
safety issues at Diablo Canyon. SB 846 also requires the Independent Safety
Committee to annually transmit its findings and recommendations for improved
safety to the Legislature, the Governor, PG&E, the PUC, the CEC, and the
NRC. 52 PG&E must annually provide a response to the findings and
recommendations to the governmental entities that received them. 53
https://efiling.energy.ca.gov/GetDocument.aspx?tn=250969&&DocumentContentI d=85912.
50 Cal. Pub. Res. Code § 25233(a).
51 Cal. Pub. Util. Code § 712.1; see also Diablo Canyon Indep. Safety Commn, https://www.dcisc.org/about/ (last visited Aug. 21, 2023).
52 Cal. Pub. Util. Code § 712.1(e).
53 Cal. Pub. Util. Code § 712.1(f).
18 Additionally, SB 846 conditioned a $1.4 billion dollar loan from the State to
PG&E for Diablo Canyons extended operations on PG&Es conducting an
updated seismic assessment of the powerplant, and an independent study to
identify and evaluate any deferred maintenance at Diablo Canyon, including
potential risks that could result from continued operations, and potential remedies
to address such risks. 54
Finally, SB 846 conferred upon the PUC express authority to shorten the
extension of operations for any of the following circumstances, including if the
PUC determines that costs needed to keep Diablo Canyon running safely cannot be
justified:
- If the PUC, after reviewing the annual reports and recommendations by the Independent Safety Committee, determines that the costs of any upgrades necessary to address seismic safety or issues of deferred maintenance that may have arisen due to the expectatio n of the powerplant closing sooner are too high to justify incurring, or if the United States Nuclear Regulatory Commissions conditions of license renewal require expenditures that are too high to justify incurring;
- If the NRC denies the renewal application;
- If the loan from California to PG&E for the extension of Diablo Canyons operations is terminated;
- If the PUC determines that any costs associated with the license renewal, or if or seismic safety any other safety upgrades recommended by the Independent Safety Committee are too high to justify; or
54 Cal. Pub. Res. § 25548.3(c)(13), (c)(14).
19
- If adequate renewables/zero-carbon resources come online such that Diablo Canyon is no longer necessary to protect the grids reliability. 55
California continues to grapple with the challenges of providing reliable
power to its residents in the face of extreme heat and other weather events caused
by climate change. As California moves to continue building the clean electricity
infrastructure of the future, the State has determined that Diablo Canyona
powerplant that has safely and reliably produced nine percent of the States
electricity for decades, without producing GHG emissions should operate a few
years longer to protect electrical reliability. California is committed to ensuring
this process unfolds safely, and for the foregoing reasons, believes that the limited,
five-year term of extended operations pursuant to SB 846, and even more limited
term of operations contemplated by the Decision, will pose no undue risk to public
safety or the environment.
55 Cal. Pub. Util. Code § 712.8(c)(2)(D).
20 CONCLUSION For the foregoing reasons, the State of California respectfully requests that
this Court deny the Petition.
Dated: September 5, 2023 Respectfully Submitted,
ROB BONTA Attorney General of California EDWARD H. OCHOA Senior Assistant Attorney General LAURA J. ZUCKERMAN Supervising Deputy Attorney General
/s/ Megan K. Hey MEGAN K. HEY Deputy Attorney General Attorneys for Amicus Curiae State of California
21 CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rules of Appellate Procedure 29(b)(4) and 32(g),
I hereby certify that the foregoing Brief of the State of California as Amicus
Curiae In Support of Respondents contains 4,442 words, as counted by a
word processing system that includes headings, footnotes, quotations, and
citations in the count, and is therefore within the applicable word limit. This
Brief also complies with the typeface and type -style requirements of Rule
32(a)(5) and (a)(6) because this document has been prepared in a
proportionately spaced typeface using Microsoft Word in Times New
Roman size 14.
September 5, 2023 /s/ Megan K. Hey MEGAN K. HEY Deputy Attorney General Attorneys for Amicus Curiae State of California
22 CERTIFICATE OF SERVICE The undersigned certifies that on September 5, 2023, the foregoing
Brief of the State of California as Amicus Curiae In Support of Respondents
was served electronically through the Courts CM/ECF system on all ECF -
registered counsel.
September 5, 2023 /s/ Megan K. Hey MEGAN K. HEY Deputy Attorney General Attorneys for Amicus Curiae State of California
LA2023602127 66206379.docx
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