ML23331A821
| ML23331A821 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/05/2023 |
| From: | Bonta R, Hey M, Eric Michel, Ochoa E, Zuckerman L State of CA, Office of the Attorney General |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, 9th Circuit |
| References | |
| Case: 23-852, DktEntry: 29.1 | |
| Download: ML23331A821 (1) | |
Text
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 1 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 2 of 29 TABLE OF CONTENTS Page INTRODUCTION AND INTEREST OF AMICUS CURIAE ..................... 1 ARGUMENT ................................................................................................. 5 I. Special Circumstances and the Public Interest Support The NRCs Decision Because the Limited-Term, 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 3 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 4 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 5 of 29 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-5-2023-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-7-8-21.pdf ..................................................................................9 iv
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 6 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 7 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 8 of 29 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 may continue to contribute toward the States grid stability while the NRC evaluates PG&Es renewal applicationa 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 9 of 29 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 exemptions 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 circumstances 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 findings. 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 different 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 312, 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 10 of 29 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 goals, 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 provides 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 11 of 29 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 SUPPORT THE NRCS DECISION BECAUSE THE LIMITED-TERM, CONTINUED OPERATION OF DIABLO CANYON MAY BE REQUIRED TO PRESERVE GRID RELIABILITY WHILE MEETING THE STATES 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 12 of 29 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 Canyon may 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 reduce GHG emissions associated with electricity consumed in the State, consistent with the Nations and the States overall goals of limiting the risk of catastrophic climate change. In 2006, the California Legislature passed and Governor Schwarzenegger signed the historic Global Warming Solutions Act of 2006 (Assembly Bill No. 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 13 of 29 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, the State added interim targets of 90 percent electricity from renewables by 2035, and 95 percent by 2040.13 In working to achieve SB 100s clean 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. Sess. (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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 14 of 29 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 supply-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 electricity demand within a particular period of timea trend that is predicted to continue.19 The increase comes from growing electrification of buildings and transportationessential developments to reduce combustion of 15 Id. at 9.
16 Id. at 10, 11.
17 Id. at 10-12.
18 Id. at 7.
19 A 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 15 of 29 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 Unit 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-7-8-21.pdf.
24 See id.
9
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 16 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 17 of 29 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 invalidated the PUCs approval of PG&Es proposed retirement of Diablo Canyon beginning in 2024, and it required the PUC to set new retirement dates for the powerplants two unitsOctober 31, 2029 for Unit 1 and October 31, 2030 for Unit 2contingent 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 18 of 29 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 lines 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 Canyon to 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 19 of 29 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 maximum of 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 NRCS DECISION PRESENTS NO UNDUE RISK BECAUSE THE NRC AND THE STATE WILL WORK TOGETHER TO OVERSEE SAFETY DURING ANY CONTINUED OPERATIONS California is committed to seeing 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 approvals 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 lawhere, SB 846limits the duration of any continued operations, such that PG&E would have permission under state law to operate Diablo Canyon only until 2030.
37 See 88 Fed. Reg. at 14,398.
13
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 20 of 29 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&Es 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 projectsinformation 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 21 of 29 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 applications, 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),
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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 22 of 29 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, under which the NRC has continuing oversight of all aspects of the 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 23 of 29 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 2035, and requires the CEC to make these evaluations public.48 This evaluation is underway; the CEC has held public workshops by videoconference to present its analysis, and it solicited public comments. 49 Additionally, the CEC and PUC must submit a Joint Reliability 46 88 Fed. Reg. at 14,397.
47 Cal. Pub. Util. Code § 712.8(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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 24 of 29 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-years 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 meetingsPG&E, and three independent nuclear experts regarding 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 25 of 29 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 expectation 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 26 of 29
- 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 emissionsshould 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 27 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 28 of 29 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
Case: 23-852, 09/05/2023, DktEntry: 29.1, Page 29 of 29 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 23