ML24089A110
| ML24089A110 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/29/2024 |
| From: | Murphy I, Jeremy Wachutka NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 56977, 50-275-LR-2, 50-323-LR-2 | |
| Download: ML24089A110 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and
- 2)
Docket Nos. 50-275 LR-2 50-323 LR-2 NRC STAFF ANSWER OPPOSING THE SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP HEARING REQUEST Jeremy L. Wachutka Ian M. Murphy Counsel for NRC Staff March 29, 2024
TABLE OF CONTENTS INTRODUCTION....................................................................................................................... 1 BACKGROUND......................................................................................................................... 2 DISCUSSION............................................................................................................................. 5 I.
Petitioners Have Demonstrated Standing under 10 C.F.R. § 2.309(d)................................. 5 A.
Requirements for Standing.............................................................................................. 5 B.
Petitioners Have Satisfied their Burden of Demonstrating Standing................................. 8 II.
None of the Proposed Contentions Satisfy the Admissibility Requirements in 10 C.F.R. § 2.309(f)................................................................................................................10 A.
Requirements for Contention Admissibility...................................................................... 10 B.
Requirements for Review of License Renewal Applications............................................ 14 C. Contention 1 is Not Admissible because it is Not within the Scope of this Proceeding and Does Not Show that a Genuine Dispute Exists with the Licensee......................................................................................................................... 21
- 1.
Contention 1 Raises Seismic Risks Arguments that are Outside the Scope of this License Renewal Proceeding...........................................................................22
- 2.
The Seismic Risks Arguments Raised by Contention 1 also Do Not Demonstrate that there is a Genuine Dispute with the Licensee because they Make no References to the Application...............................................................32
- 3.
The Contention 1 Environmental Impacts Arguments that Relate to Generic Determinations are Outside the Scope of this Proceeding and the Arguments that Relate to Site-Specific Determinations Do Not Show that a Genuine Dispute Exists with the Licensee..................................................................33 D. Contention 2 is Not Admissible because Petitioners Do Not Demonstrate that it is within the Scope of this Proceeding and Genuinely Disputes the License Renewal Application....................................................................................................... 37 E.
Contention 3 is Not Admissible because it Does Not Show that a Genuine Dispute Exists with the Licensee on a Material Issue of Law or Fact and because it Challenges Regulations without a Waiver......................................................46 CONCLUSION..........................................................................................................................50
March 29, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and
- 2)
Docket Nos. 50-275 LR-2 50-323 LR-2 NRC STAFF ANSWER OPPOSING THE SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP HEARING REQUEST INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i), the U.S. Nuclear Regulatory Commission Staff files this answer opposing the hearing request filed by San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group (Petitioners) because it does not propose at least one admissible contention. The hearing request was filed in response to a notice of opportunity to request a hearing that the NRC provided with respect to an application, including an Environmental Report, submitted by Pacific Gas and Electric Company (PG&E) for the renewal of the facility operating licenses for Diablo Canyon Nuclear Power Plant, Units 1 and 2. As discussed below, the Atomic Safety and Licensing Board should deny the hearing request because, although Petitioners demonstrate standing, none of Petitioners three proffered contentions are admissible. The argument in Contention 1 that new information demonstrates that seismic risks at Diablo Canyon are greater than currently quantified by PG&E does not amount to an admissible contention because it alleges a current operating issue that is, by the terms of the NRCs license renewal regulations, not within the scope of this license renewal proceeding. Additionally, neither this argument nor Petitioners challenge to the PG&E Environmental Report on the same basis shows that a genuine dispute exists with PG&E on a material issue of law or fact. Contention 2 regarding Diablo Canyon Unit 1 reactor pressure vessel embrittlement is not admissible because it does not make any specific references to, let alone engage with, the application in such a way as to demonstrate a genuine dispute with the application and instead relies on, again without specific references, an attached declaration.
Moreover, all of the arguments made in that declaration are outside the scope of this proceeding because they appear to relate to current operating issues and because they challenge the NRCs regulations without seeking a waiver of those regulations. Finally, the argument of Contention 3 that the Environmental Report is insufficient because it does not demonstrate compliance with the Coastal Zone Management Act fails to demonstrate a genuine dispute with PG&E and also amounts to a challenge to the NRCs regulations without seeking a waiver of those regulations. Therefore, Petitioners have not demonstrated that any of their proposed contentions satisfy the Commissions strict-by-design contention admissibility criteria and, accordingly, the hearing request should be denied.
BACKGROUND In 2009, PG&E submitted a license renewal application for Diablo Canyon.1 San Luis Obispo Mothers for Peace requested a hearing on that application.2 The Board granted that hearing request, in part, and the Commission affirmed the Boards decision, in part.3 On June 2, 2011, the NRC published a safety evaluation report documenting its safety review of the 1 Letter from James R. Becker, PG&E, to NRC Document Control Desk, Diablo Canyon Units 1 and 2, License Renewal Application (Nov. 23, 2009) (ML093340086).
2 Request by San Luis Obispo Mothers for Peace for Hearing on Pacific Gas & Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Mar. 22, 2010)
(ML100810439).
3 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427 (2011) (ML11285A022); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257 (2010) (ML102160435).
application, as supplemented through March 25, 2011.4 In October 2014, Friends of the Earth requested a hearing regarding the 2009 license renewal application based on new seismic information.5 The Board denied that hearing request and the Commission affirmed the Boards decision on appeal.6 In October 2015, the Board granted summary disposition of the sole remaining admitted contention and terminated the proceeding.7 The Commission affirmed the Boards decision on appeal.8 In 2018, PG&E requested to withdraw its 2009 license renewal application.9 The NRC granted PG&Es request and terminated its review of the application.10 By letter dated November 7, 2023, PG&E submitted a new license renewal application for Diablo Canyon.11 On December 19, 2023, the NRC provided notice of an opportunity to request a hearing on that application by March 4, 2024.12 In response, the California Energy Commission timely filed a request to participate as an interested governmental entity pursuant 4 Safety Evaluation Report Related to the License Renewal of Diablo Canyon Nuclear Power Plant, Units 1 and 2, Docket Nos. 50-275 and 50-323 (June 2011) (ML11153A103).
5 Request by Friends of the Earth for Hearing on Pacific Gas & Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Oct. 10, 2014) (ML14283A586).
6 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295 (2015) (ML15313A432); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-15-6, 81 NRC 314 (2015) (ML15042A326).
7 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-15-29, 82 NRC 246 (2015) (ML15294A301).
8 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-11, 83 NRC 524 (2016) (ML16154A047).
9 Letter from James M. Welsch, PG&E, to NRC Document Control Desk, Diablo Canyon Units 1 and 2, Request to Withdraw the Diablo Canyon Power Plant License Renewal Application (Mar.
7, 2018) (ML18066A937).
10 Letter from George A. Wilson Jr., NRC, to James M. Welsch, PG&E, Response to Request to Withdraw the Diablo Canyon Power Plant, Unit Nos. 1 and 2, License Renewal Application (Apr.
16, 2018) (ML18093A115); see also 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).
11 Letter from Paula Gerten, PG&E, to NRC Document Control Desk, Diablo Canyon Units 1 and 2 License Renewal Application (Nov. 7, 2023) (ML23311A154) (License Renewal Application).
12 Pacific Gas and Electric Company, Diablo Canyon Power Plant, Units 1 and 2, License Renewal Application; Acceptance for docketing; Opportunity to request a hearing and to petition for leave to intervene, 88 Fed. Reg. 87,817 (Dec. 19, 2023).
to 10 C.F.R. § 2.315(c).13 On March 4, 2024, Petitioners emailed their hearing request to the NRCs hearing docket and various attorneys for the Staff and for the law firm of Morgan, Lewis
& Bockius LLP.14 On March 5, 2024, Petitioners filed their hearing request via the NRCs E-Filing system.15 Petitioners separately submitted to the Commission a petition to immediately shut down Diablo Canyon for allegedly unacceptable seismic risk.16 In response to that shutdown petition, the NRC Secretary, for the Commission, determined that the shutdown petition is appropriately resolved as a request to institute a proceeding pursuant to 10 C.F.R.
§ 2.202 for the modification, suspension, or revocation of the Diablo Canyon licenses, or for any other action as may be proper and, accordingly, referred the petition to the NRC Staff Executive Director for Operations for consideration under 10 C.F.R. § 2.206.17 In their hearing request, Petitioners argue that a hearing should be granted regarding the new license renewal application because they have standing and have proposed three contentions.18 However, as explained below, although Petitioners have demonstrated standing, Petitioners have not demonstrated that any of their proposed contentions satisfy the Commissions strict-by-design contention admissibility requirements. Therefore, the hearing request should be denied.
13 Request of the California Energy Commission to Participate as a Non-Party Pursuant to 10 C.F.R. § 2.315(c) (Mar. 4, 2024) (ML24064A132).
14 Hearing Request from San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group (Mar. 4, 2024) (ML24067A088).
15 Request by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group for Hearing on Pacific Gas & Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (dated Mar. 4, 2024; filed Mar. 5, 2024) (ML24065A433)
(Hearing Request); Exhibit 1 - Standing Declarations (ML24065A433); Exhibit 2 - Declaration of Peter Bird (ML24065A434); Exhibit 3 - Declaration of Digby Macdonald (ML24065A435) (2024 Macdonald Declaration); Exhibit 4 - CCC [California Coastal Commission] Letter (ML24065A436).
16 Shutdown Petition to NRC Commissioners (Mar. 4, 2024) (ML24071A174).
17 Order of the Secretary (Mar. 12, 2024) (Referral of Petitioners Request to the Executive Director for Operations for Consideration under 10 C.F.R. § 2.206) (ML24072A529).
18 Hearing Request at 1.
DISCUSSION Under the Commissions rules of practice in 10 C.F.R. Part 2, any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for a hearing.19 This request must include the contentions that the person seeks to have litigated in the hearing.20 The request must be filed not later than the time specified in the notice of opportunity to request a hearing21 and must be electronically transmitted through the NRCs E-Filing system, unless the Commission or presiding officer grants an exemption permitting an alternative filing method.22 The presiding officer will grant the hearing request if they determine that the petitioner has standing under 10 C.F.R. § 2.309(d) and has proposed at least one admissible contention that meets the requirements in 10 C.F.R. § 2.309(f).23 As discussed herein, Petitioners have demonstrated standing to intervene, but have not demonstrated that at least one of their proposed contentions is admissible. Therefore, Petitioners hearing request should be denied.
I. Petitioners Have Demonstrated Standing under 10 C.F.R. § 2.309(d)
As explained below, San Luis Obispo Mothers for Peace and Friends of the Earth have satisfied their burden of demonstrating representational standing, and Environmental Working Group has satisfied its burden of demonstrating organizational standing.
A. Requirements for Standing Under the general standing requirements set forth in 10 C.F.R. § 2.309(d)(1), a petitioner must state:
(i)
The name, address, and telephone number of the petitioner; 19 10 C.F.R. § 2.309(a).
20 Id.
21 10 C.F.R. § 2.309(b)(3).
22 10 C.F.R. § 2.302(a).
23 10 C.F.R. § 2.309(a).
(ii)
The nature of the petitioners right under the Atomic Energy Act of 1954, as amended (AEA), to be made a party to the proceeding; (iii)
The nature and extent of the petitioners property, financial, or other interest in the proceeding; and (iv)
The possible effect of any decision or order that may be issued in the proceeding on the petitioners interest.24 NRC regulations state that in ruling on a petition, the presiding officer must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in 10 C.F.R. § 2.309(d)(1).25 As the Commission has observed, the NRC has long applied contemporaneous judicial concepts of standing, which require an actual or threatened injury that is fairly traceable to the challenged action, is likely to be redressed by a favorable decision, and arguably falls within the zone of interests protected by the AEA.26 The injury must be both concrete and particularized, not conjectural, or hypothetical.27 Further, at the heart of the standing inquiry is whether the petitioner has alleged such a personal stake in the outcome of the controversy as to demonstrate that a concrete adverseness exists [that] will sharpen the presentation of issues.28 While the Commission generally requires the elements of standing to be pled with specificity, standing to intervene has been found to exist in construction permit and operating 24 10 C.F.R. § 2.309(d)(1).
25 10 C.F.R. § 2.309(d)(2).
26 El Paso Electric Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-20-7, 92 NRC 225, 230 (2020) (quoting Calvert Cliffs 3 Nuclear Project, LLC and UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009)).
27 Palo Verde, CLI-20-7, 92 NRC at 230 (quoting Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994)).
28 Gore, Oklahoma Site, CLI-94-12, 40 NRC at 71 (quoting Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978)).
license proceedings based upon a proximity presumption.29 In such proceedings, standing is presumed for persons who reside within, or have frequent contacts with, the zone of possible harm from the nuclear reactor.30 In practice, the Commission has found standing based on the proximity presumption for persons who reside within approximately 50 miles of the facility.31 As noted by the Commission, licensing boards have also employed the proximity presumption to establish standing to intervene in reactor operating license renewal proceedings.32 An organization seeking to intervene must satisfy the same standing requirements as an individual seeking to intervene.33 The organization may establish standing based on organizational standing (showing that its own organizational interests could be adversely affected by the proceeding) or representational standing (based on the standing of its members).34 Where an organization seeks to establish organizational standing, it must demonstrate that it is a voluntary membership organization with identifiable members who supports its mission and whom the organization represents in good faith.35 Where an organization seeks to establish representational standing, the organization must demonstrate that at least one of its members may be affected by the proceeding and that these members, who must be identified by name, have authorized the organization to represent them and to 29 See, e.g., Calvert Cliffs, CLI-09-20, 70 NRC at 915-17.
30 Id. at 915-16.
31 Id.
32 Id. at 915 n.15 (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 150, affd on other grounds, CLI-01-17, 54 NRC 3 (2001)).
33 Palo Verde, CLI-20-7, 91 NRC at 231.
34 Id. at 230-31.
35 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 199-201 (2023).
request a hearing on their behalf.36 This demonstration is typically accomplished via affidavit.37 Further, the member seeking representation must qualify for standing in [their] own right; the interests that the representative organization seeks to protect must be germane to its purpose; and neither the asserted claim nor the requested relief must require an individual member to participate in the organizations legal action.38 B. Petitioners Have Satisfied their Burden of Demonstrating Standing In the hearing request, San Luis Obispo Mothers for Peace (SLOMFP) describes itself as a California non-profit organization concerned with the dangers posed by Diablo Canyon and other nuclear reactors, nuclear weapons, and radioactive waste.39 Friends of the Earth (FoE) describes itself as a tax exempt, non-profit environmental advocacy organization dedicated to improving the environment and creating a more healthy and just world; it also states that it was founded in 1969 by David Brower in part to protest safety and environmental issues at the newly emerging Diablo Canyon.40 Environmental Working Group (EWG) describes itself as a non-profit, non-partisan organization that works to empower people to live healthier lives in a healthier environment.41 It also states that EWG has 58,000 active supporters residing in California, out of 410,000 active supporters nationwide.42 SLOMFP and FoE seek to demonstrate that they have representational standing under 10 C.F.R. § 2.309(d) based on the individual standing of five individuals who are members of 36 FirstEnergy Nuclear Operating Co. and FirstEnergy Nuclear Generation, LLC (Beaver Valley Power Station, Units 1 and 2; Davis-Besse Nuclear Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-20-05, 91 NRC 214, 220 (2020).
37 Id. at 220-221.
38 Id. at 220.
39 Hearing Request at 2.
40 Id.
41 Id. at 3.
42 Id.
both organizations.43 In support of this demonstration, SLOMFP and FoE attached to the hearing request declarations by these individuals stating that (1) they are members of both SLOMFP and FoE, (2) they would be injured by the continued operations of Diablo Canyon, Units 1 and 2, (3) they live within 50 miles of Diablo Canyon, and (4) they have authorized both SLOMFP and FoE to represent their interests in the Diablo Canyon license renewal application proceeding.44 Because the instant proceeding involves the renewal of the licenses for Diablo Canyon and because the information provided by SLOMFP and FoE is consistent with precedent regarding the proximity presumption and representational standing, SLOMFP and FoE have satisfied their burden of demonstrating standing.
EWG seeks to demonstrate that it has organizational standing under 10 C.F.R.
§ 2.309(d).45 In support of this demonstration, EWG attached to the hearing request a declaration by its President as well as declarations by three individuals stating that (1) they are supporters of EWG, (2) they would be injured by the continued operations of Diablo Canyon, Units 1 and 2, (3) they live within 50 miles of Diablo Canyon, and (4) they believe that EWG is representing them in good faith and that they have authorized EWG to represent their interests in the Diablo Canyon license renewal application proceeding.46 Because the instant proceeding involves the renewal of the licenses for Diablo Canyon and because the information provided by EWG is consistent with precedent regarding the proximity presumption and organizational standing, EWG has satisfied its burden of demonstrating standing.
43 Id.
44 Hearing Request Exhibit 1, at 1-5.
45 Hearing Request at 5.
46 Hearing Request Exhibit 1, at 6-10.
II. None of the Proposed Contentions Satisfy the Admissibility Requirements in 10 C.F.R.
§ 2.309(f)
A. Requirements for Contention Admissibility The legal requirements governing the admissibility of contentions are set forth in 10 C.F.R. § 2.309(f)(1)-(2). Specifically, a petitioner must set forth with particularity the contentions that the petitioner seeks to raise and, for each contention, the petitioner must:
(i)
Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)
Provide a brief explanation of the basis for the contention;47 (iii)
Demonstrate that the issue raised in the contention is within the scope of the proceeding;48 (iv)
Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding;49 (v)
Provide a concise statement of the alleged facts or expert opinions that support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely;50 and 47 Contentions cannot be based on speculation and must have some reasonably specific factual or legal basis. Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc.,
(Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211, 221 (2015).
48 The scope of the proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000). As a consequence, any contention that falls outside the specified scope of the proceeding must be rejected. See Diablo Canyon, CLI-11-11, 74 NRC at 435-36.
49 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec International (Hi-STORE Consolidated Interim Storage Facility),
CLI-20-4, 91 NRC 167, 190 (2020). There may, of course, be mistakes in an environmental document, but in an NRC adjudication, it is the burden of petitioners to show their significance and materiality because boards do not sit to flyspeck environmental documents or to add details or nuances and [i]f the [document] on its face comes to grips with all important considerations nothing more need be done. Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005) (quoting Systems Energy Resources, Inc.
(Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005)).
50 The petitioner is obliged to present the facts and expert opinions necessary to support its contention. See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006)
(stating that it is the petitioners responsibility to satisfy the basic contention admissibility (vi)
Provide sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.
Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner.51 For environmental issues arising under the National Environmental Policy Act of 1969, as amended (NEPA), a petitioner must file contentions based on the applicants environmental report.52 The Commission has explained that for the admissibility of a contention of omission this means that Petitioner must identify information that was not considered in the environmental review for the application at issue and explain, with asserted facts or expert opinion, how it presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.53 requirements; boards should not have to search through a petition to uncover arguments and support for a contention and may not simply infer unarticulated bases of contentions); see also Arizona Public Service Co., et. al. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991). Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012).
51 10 C.F.R. § 2.309(f)(2).
52 Id.
53 Luminant Generation Co. LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), Energy Northwest (Columbia Generating Station), Southern Nuclear Operating Company (Vogtle Electric Generating Plant, Units 3 and 4), Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), CLI-12-7, 75 NRC 379, 390-91 (2012).
The NRCs regulations governing contention admissibility are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.54 The Commission has explained that the contention admissibility rules are strict by design.55 Failure to satisfy any of the six pleading requirements renders a contention inadmissible.56 As noted above, the rules require a clear statement as to the basis for the contentions and the submission of supporting information and references to specific documents and sources that establish the validity of the contention.57 Although a petitioner does not have to prove its contention at the admissibility stage,58 the contention admissibility standards are meant to afford hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions.59 The petitioner must provide some support for the contention, either in the form of facts or expert testimony, and failure to do so requires that the contention be rejected.60 Any supporting material provided by the petitioner is subject to scrutiny by the presiding officer,61 who must confirm that the proffered material provides adequate support for the contention.62 If a petitioner neglects to 54 See, e.g., Southern Nuclear Operating Co. Inc. (Vogtle Electric Generating Plant, Unit 3),
LBP-20-8, 92 NRC 23,46 (2020) (quoting Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)).
55 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016). The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. 69 Fed. Reg. 2,182, 2,202 (Feb. 13, 2004).
56 Indian Point, CLI-16-5, 83 NRC at 136.
57 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).
58 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).
59 Oconee, CLI-99-11, 49 NRC at 334.
60 Palo Verde, CLI-91-12, 34 NRC at 155.
61 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).
62 See Vermont Yankee, ALAB-919, 30 NRC at 48.
provide the requisite support for its contentions, then the presiding officer should not make assumptions of fact that favor the petitioner or search for or supply information that is lacking.63 Moreover, providing any material or document as a basis for a contention without explaining its significance is grounds for the presiding officer to reject the contention.64 In sum, the information, facts, and expert opinions provided by the petitioner are examined by the presiding officer to determine whether they provide adequate support for the proffered contentions.65 The Commission has held that, absent a waiver, a contention must be rejected if it challenges applicable statutory requirements, regulations, or the basic structure of the Commissions regulatory process.66 Further, attempts to advocate for requirements stricter than those imposed by regulation constitute collateral attacks on the NRCs rules and are therefore inadmissible.67 Such challenges are outside the scope of the proceeding.68 Contentions that are nothing more than a generalization regarding the petitioners view of what applicable policies ought to be must also be rejected.69 The well-recognized presumption of administrative regularity fully extends to the discharge by the Staff of its responsibilities in connection with 63 See American Centrifuge Plant, CLI-06-10, 63 NRC at 457.
64 See Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 205 (2003).
65 American Centrifuge, CLI-06-10, 63 NRC at 457.
66 As set forth in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. Further, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit 2),
CLI-03-14, 58 NRC 207, 218 (2003).
67 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012);
see Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974) (explaining that a contention that seeks to raise an issue that is not proper for adjudication in the proceeding or that does not apply to the facility in question, or seeks to raise an issue that is not concrete or litigable must also be rejected).
68 Diablo Canyon, CLI-15-21, 82 NRC at 302 (Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.).
69 Millstone, CLI-03-14, 58 NRC at 218.
licensing, thus, Boards are obligated to proceed in deciding questions before them on the assumption that the Staff would fully and properly carry out its duties.70 The scope of a proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board,71 and any contention that falls outside of the specified scope must be rejected.72 Showing that a contention is within the scope of the proceeding, as is required by 10 C.F.R. § 2.309(f)(1)(iii), is of particular importance for proceedings related to license renewal applications because NRC regulations further restrict the scope of such proceedings. As discussed below, NRC regulations in 10 C.F.R. Part 54 define the scope of license renewal reviews, and Appendix B of 10 C.F.R. Part 51 contains additional provisions applicable to the environmental reviews related to license renewals.
B. Requirements for Review of License Renewal Applications The Commissions regulations in 10 C.F.R. Part 54 limit the scope of license renewal proceedings to those matters that must be considered for the license renewal application to be granted and that have not been addressed by rulemaking or on a generic basis.73 Under 10 C.F.R. § 54.29(a), when determining whether to grant a license renewal application, the Commission requires actions be identified that have been or will be taken with regard to:
(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under [10 C.F.R.]
§ 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under [10 C.F.R.] § 54.21(c).[74]
70 Arkansas Power & Light Co. (Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25, 28 (1973).
71 See Turkey Point, CLI-00-23, 52 NRC at 329.
72 See Diablo Canyon, CLI-11-11, 74 NRC at 435-36.
73 Oyster Creek, CLI-06-24, 64 NRC at 117-18; see also 10 C.F.R. § 54.29; Turkey Point, CLI-01-17, 54 NRC at 8-10.
74 10 C.F.R. § 54.29(a).
The effects of aging are typically managed through aging management programs; time-limited aging analyses are plant-specific safety analyses that were based on an explicitly assumed period of time75 and must remain valid for the period of extended operation, or have been projected to the end of the period of extended operation, or be adequately managed for the period of extended operation.76 The actions with regard to aging management and time-limited aging analyses must provide reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the plants current licensing basis,77 and that any changes made to the plants current licensing basis are in accord with the
[AEA] and the Commissions regulations.78 Additionally, a renewed license may be issued if the Commission finds that [a]ny applicable requirements of [10 C.F.R.] part 51 have been satisfied and [a]ny matters raised under [10 C.F.R.] § 2.335 have been addressed.79 Adjudications on license renewal applications are bounded by the same rules and scope as the NRCs license renewal review.80 Under 10 C.F.R. Part 54, the NRC conducts a technical review of the license renewal application to ensure that public health and safety requirements are satisfied.81 However, the focus of this safety portion of the NRCs license renewal review is on plant systems, structures, and components for which current [regulatory] activities and 75 Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,479 (May 8, 1995).
76 10 C.F.R. § 54.21(c).
77 The current licensing basis, as defined in 10 C.F.R. § 54.3, is the set of NRC requirements applicable to a specific plant and a licensees written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis (including all modifications and additions to such commitments over the life of the license) that are docketed and in effect.
78 10 C.F.R. § 54.29(a).
79 10 C.F.R. § 54.29(b)-(c).
80 Turkey Point, CLI-01-17, 54 NRC at 8 (Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent.).
81 Id. at 6.
requirements may not be sufficient to manage the effects of aging in the period of extended operation.82 The Commission has found it unnecessary, at the license renewal stage, to review issues already monitored and reviewed in ongoing regulatory oversight processes.83 Contentions falling outside the scope of this safety review are inadmissible and must be rejected.84 The Staffs license renewal safety review is typically guided by NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (SRP),85 and NUREG-1801, Generic Aging Lessons Learned (GALL) Report.86 While the NRC does not require license renewal applicants to use or reference guidance documents such as these in their applications, both the SRP and the GALL Report include elements that the NRC Staff considers acceptable for managing the aging effects on power reactor structures, systems, and components through the licensees aging management programs. The Commission has stated that an applicants use of an aging management program identified in the GALL Report constitutes reasonable assurance that it will manage the targeted aging effect during the renewal period.87 With respect to the environmental portion of the NRCs license renewal review, NEPA requires federal agencies to include in any recommendation or report on proposals for major 82 Id. at 10 (quoting 60 Fed. Reg. at 22,469).
83 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 8-10 (holding that [i]ssues like emergency planningwhich already are the focus of ongoing regulatory processesdo not come within the NRC's safety review at the license renewal stage).
84 10 C.F.R. § 2.309(f)(1)(iii); see, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 567 (2005).
85 See NUREG-1800, Rev. 2, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (Dec. 2010) (ML103490036).
86 See NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010)
(ML103490041).
87 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-08-23, 68 NRC 461, 468 (2008).
federal actions significantly affecting the quality of the human environment, a detailed statement on:
(i)
The environmental impact of the proposed action; (ii)
Any adverse environmental effects which cannot be avoided should the proposal be implemented; (iii)
Alternatives to the proposed action; (iv)
The relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (v)
Any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented.88 In accordance with its NEPA responsibilities, the Staff is required to take a hard look at the environmental impacts of a proposed major federal action that could significantly affect the environment, as well as reasonable alternatives to that action.89 This hard look is tempered by a rule of reasonconsideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some possibility of occurring.90 An agency thus need only address impacts that are reasonably foreseeable; the agency need not perform analyses concerning events that would be considered worst case scenarios or those considered remote and highly speculative.91 Further, NEPA does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.92 NEPA similarly 88 NEPA § 102(2)(C).
89 See Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998); Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019).
90 Crow Butte Marsland, LBP-19-2, 89 NRC at 40 (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973)).
91 Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 357 (2019) (quoting Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir.
1989)).
92 Crow Butte Marsland, LBP-19-2, 89 NRC at 40 (quoting Louisiana Energy Services, L.P.
(National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005)).
does not require review when the circumstances render review impossible.93 And NEPA gives agencies broad discretion to keep their inquiries within appropriate and manageable boundaries.94 As the Commission has observed, NEPA requires consideration of reasonable alternatives, not all conceivable ones.95 Further, environmental impact statements need only discuss those alternatives that will bring about the ends of the proposed action.96 To support the Staffs satisfaction of the requirements of NEPA as part of its review of license renewal applications, per 10 C.F.R. § 54.23, each license renewal application must include a supplement to the environmental report that complies with the requirements of Subpart A of 10 C.F.R. Part 51. The NRC has adopted the regulations in 10 C.F.R. Part 51 to implement the agencys NEPA responsibilities, and 10 C.F.R. § 51.53(c) governs the contents of an applicants environmental report at the operating license renewal stage. Under 10 C.F.R.
§ 51.53(c)(2), an applicant is required to discuss in [the environmental report] the environmental impacts of alternatives and any other matters described in [10 C.F.R.] § 51.45.
The [environmental] report is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alternatives to the proposed action except insofar as such costs and benefits are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation. The environmental report need not discuss other issues not related to the environmental effects of the proposed action and the alternatives.[97]
93 The Supreme Court has observed that where it is not possible for an agency to analyze the environmental consequences of a proposed action or alternatives to it, requiring such analysis would have no factual predicate and under those circumstances an environmental impact statement is not required. Kleppe v. Sierra Club, 427 U.S. 390, 401-02 (1976).
94 Crow Butte Marsland, LBP-19-2, 89 NRC at 40 (quoting Claiborne, CLI-98-3, 47 NRC at 103).
95 Seabrook, CLI-12-5, 75 NRC at 338.
96 Id. at 339.
97 10 C.F.R. § 51.53(c)(2).
For all applicants seeking license renewal after June 30, 1995, 10 C.F.R. § 51.53(c)(3) requires further conditions and considerations.98 Among these are that applicants are not required to include analyses of the environmental impacts of the license renewal issues identified in Subpart A of 10 C.F.R. Part 51, Appendix B, as Category 1 issues, whereas they are required to so include them for the license renewal issues identified as Category 2 issues.99 The regulations in Subpart A of 10 C.F.R. Part 51, Appendix B, are supported by a generic environmental impact statement for license renewal (LR GEIS), which can be found in NUREG-1437.100 The LR GEIS identifies 78 environmental impact issues for license renewal, of which 59 are generic Category 1 issues, 2 are uncategorized, and 17 are site-specific Category 2 issues.101 The LR GEIS addresses the Category 1 generic environmental impacts of operating a plant for an additional 20 years that are common to all plants or to a specific subgroup of plants and the Category 2 site-specific impacts, and its findings are listed in Table B-1 of Subpart A of 10 C.F.R. Part 51, Appendix B. Guidance for license renewal applicants preparing an environmental report is found in Regulatory Guide 4.2, Supplement 1.102 While a license renewal applicant is not required to reevaluate Category 1 issues in its environmental report, but instead references and adopts the Commissions generic findings set forth in Subpart A of 10 C.F.R. Part 51, Appendix B, under 10 C.F.R. § 51.53(c)(3)(iv) the environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. Thus, an environmental report must include a site-specific review of the Category 2 issues and must 98 10 C.F.R. § 51.53(c)(3).
99 10 C.F.R. § 51.53(c)(3)(i)-(ii).
100 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) (ML13106A241) (LR GEIS).
101 Id. at Vol 1, 1-36.
102 Regulatory Guide 4.2, Supp. 1, Rev. 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications (June 2013) (ML13067A354).
address any new and significant information that might render the Category 1 issues inapplicable in that license renewal application.103 The Staffs license renewal environmental review is typically guided by the LR GEIS and NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants Operating License Renewal.104 Like the applicant, the Staff is not required to address generic Category 1 impacts in its site-specific environmental impact statement, which the Staff publishes as a supplement to the LR GEIS.105 The Staff must, however, address any new and significant information of which it becomes aware that might affect either the generic or the site-specific findings in its draft or final supplemental environmental impact statement.106 Contentions raising environmental issues in a license renewal proceeding are limited to those issues that are affected by license renewal and that have not been addressed by rulemaking or otherwise on a generic basis.107 As the Commission has stated, Category 1 determinations are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings.108 Because these Category 1 determinations have been incorporated into a regulation, the conclusions of that analysis may not be challenged in 103 See, e.g., Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 212-13 (2013).
104 NUREG-1555, Supp. 1, Rev. 1, Standard Review Plans for Environmental Reviews for Nuclear Power PlantsOperating License Renewal (June 2013) (ML13106A246).
105 10 C.F.R. § 51.95(c).
106 See, e.g., Limerick, CLI-13-7, 78 NRC at 216-17; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-16-8, 83 NRC 417, 439 (2016). Following publication of a site-specific supplement to the LR GEIS, further supplementation is required only if there are significant new circumstances or information [that] paint[s] a dramatically different picture of impacts compared to the description of impacts in the [environmental impact statement. Massachusetts v. NRC, 708 F.3d 63, 68-69 (1st Cir. 2013) (quoting Town of Winthrop
- v. FAA, 535 F.3d 1, 12 (1st Cir. 2008)).
107 Turkey Point, CLI-01-17, 54 NRC at 11-12; see 10 C.F.R. § 51.53(c)(3)(i)-(ii).
108 Id.
litigation unless the rule is waived.109 Accordingly, a contention challenging a Category 1 determination, even if based on new and significant information, can be admitted only if the Commission grants a waiver of its regulations according to the provisions of 10 C.F.R.
§ 2.335.110 C. Contention 1 is Not Admissible because it is Not within the Scope of this Proceeding and Does Not Show that a Genuine Dispute Exists with the Licensee Contention 1 states:
Continued operation of [Diablo Canyon] under renewed license[s] poses an unacceptable safety risk and significant adverse environmental impact of seismic core damage accidents.[111]
Contention 1 consists of both a safety argument and an environmental argument. Specifically, Petitioners assert that PG&E has underestimated the [q]uantification of the seismic risks and the environmental impacts at Diablo Canyon.112 The basis for these arguments is the allegedly new information of earthquakes in the Noto Peninsula of Japan in January 2024, which Petitioners assert demonstrates that PG&E has erroneously assumed that the majority of large earthquakes affecting Diablo Canyon would be strike-slip earthquakes and not thrust-faulting earthquakes.113 According to Petitioners, and based on the declaration of Peter Bird, Ph.D, that is attached to the hearing request, the earthquake sources relevant to Diablo Canyon are similar to those in the Noto Peninsula of Japan and thrust-faulting earthquakes from these sources, as 109 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (footnotes omitted),
reconsid. denied, CLI-07-13, 65 NRC 211, 214 (2007). This approach has been found to comply with NEPA. See, e.g., Massachusetts v. NRC, 708 F.3d at 68-69.
110 10 C.F.R. § 2.335(b).
111 Hearing Request at 7.
112 Id. at 8.
113 Id.
occurred in Japan, would produce stronger shaking that entails greater seismic risks and greater environmental impacts than what is assumed by PG&E.114 As explained below, Contention 1 is not admissible because it raises issues outside the scope of this license renewal proceeding. Under 10 C.F.R. Parts 51 and 54, the scope of license renewal proceedings is specifically limited to those issues that are unique to license renewal and that have not been addressed by rulemaking or on a generic basis.115 In Contention 1, however, Petitioners raise seismic risks arguments that challenge the Diablo Canyon current licensing basis, which is, by rule, a matter outside the scope of a license renewal proceeding.116 Similarly, in Contention 1, Petitioners raise environmental impacts arguments that challenge issues that have been generically resolved by rule. Finally, to the extent that Petitioners environmental impacts arguments have to do with site-specific issues, these arguments do not show that a genuine dispute exists with PG&E on a material issue of law or fact because Petitioners neither reference or dispute specific portions of the license renewal application, nor provide the supporting reasons for these disputes. Therefore, neither the seismic risks argument nor the environmental impacts argument in Contention 1 satisfies the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)(iii) and (vi) and, as such, Contention 1 should be denied.
- 1. Contention 1 Raises Seismic Risks Arguments that are Outside the Scope of this License Renewal Proceeding Petitioners first argument in Contention 1, that new information demonstrates that PG&Es quantification of seismic risks for Diablo Canyon is too low, is inadmissible because it challenges the current operation of and the licensing basis for Diablo Canyon, not the license 114 Id. at 8-9.
115 Oyster Creek, CLI-06-24, 64 NRC at 117-18.
116 See e.g., 10 C.F.R. § 54.30 (If the reviews required by § 54.21 (a) or (c) show that there is not reasonable assurance during the current license term that licensed activities will be conducted in accordance with the [current licensing basis], then the licensee shall take measures under its current license, as appropriate. The licensees compliance with the obligation to take measures under its current license is not within the scope of the license renewal review.).
renewal application. As discussed next, the NRCs ongoing oversight of the plantnot its review of a license renewal applicationensures that the plant complies with its licensing basis and provides and maintains an acceptable level of safety so that operation will not be inimical to public health and safety or common defense and security, and, accordingly, the NRCs license renewal rule is specifically limited to issues unique to license renewal and explicitly excludes issues, like Petitioners seismic arguments, related to current operations. As a threshold matter, Petitioners effectively concede that their seismic risks argument is based on current operation through their statements that [t]he unacceptable risk of an earthquake-related core damage accident at [Diablo Canyon] is current and ongoing117 and appl[ies] during the current license term118 and that, therefore, Diablo Canyon should be closed no later than the expiration dates of its current operating licenses.119 Because Petitioners arguments in Contention 1 solely address current operating issues, Contention 1 fails to satisfy 10 C.F.R. § 2.309(f)(1)(iii) and should be denied.
The basis for the distinction of the NRCs license renewal rule between in-scope issues unique to license renewal and out-of-scope issues related to current operations is explained by the Commissions first principle of license renewal.120 This principle is that license renewal has to do with age-related degradation and possibly a few other issues related to safety only during the period of extended operation of nuclear power plants.121 All other issues are covered by the regulatory process, which is adequate to ensure that the licensing bases of all 117 Hearing Request at 7 n.10.
118 Id. at 12 n.25.
119 Id. at 12.
120 60 Fed. Reg. at 22,463.
121 Id.
currently operating plants provides and maintains an acceptable level of safety so that operation will not be inimical to public health and safety or common defense and security.122 The screening process established in 10 C.F.R. Part 54 ensures that the scope of license renewal is consistent with the first principle of license renewal. First, 10 C.F.R. § 54.4 defines the plant systems, structures, and components within the scope of license renewal. Then, from these items, the applicant determines which structures and components are subject to aging management review and also which involve time-limited aging analyses.123 For structures and components subject to aging management review, the applicant must demonstrate that the effects of aging will be adequately managed so that the intended functions of these structures and components will be maintained consistent with the current licensing basis for the period of extended operation.124 Similarly, for structures and components that involve time-limited aging analyses, the applicant must either demonstrate that these calculations will remain valid for the period of extended operation, that they have been projected to the end of the period of extended operation, or that the effects of aging on the intended functions will be adequately managed for the period of extended operation.125 A license renewal application is acceptable if these two requirements regarding aging management and time-limited aging analyses are met.126 10 C.F.R. Part 54 also specifically identifies the issues that are outside the scope of license renewal. First, the standards for issuance of a renewed license at 10 C.F.R. § 54.29(a) rely on the fact that the existing current licensing basis continues into the period of extended operation and that changes to the current licensing basis must be made under the appropriate regulations separate from license renewal. Second, 10 C.F.R. § 54.30 explicitly states that any 122 Id.
123 10 C.F.R. § 54.21.
124 10 C.F.R. § 54.21(a)(3).
125 10 C.F.R. § 54.21(c).
126 10 C.F.R. § 54.29.
issues of compliance with the plants current licensing basis during the current license are not within the scope of the license renewal review. As the Commission has explained, [g]iven [its]
ongoing obligation to oversee the safety and security of operating reactors, such current operating issues will be addressed by the existing regulatory process within the present license term rather than deferred until the time of license renewal127 and must be addressed as they arise.128 Adjudicatory hearings on license renewal applications share the same scope as the license renewal review.129 Thus, pursuant to 10 C.F.R. § 2.309(f)(1)(iii), an issue raised in a contention is within the scope of a license renewal proceeding if it is an issue unique to license renewal; otherwise, the issue is not within the scope of the license renewal proceeding. Instead, such current operating issues are addressed separately under the NRCs regulatory process through, for example, modifications to a plants licensing basis.130 In the instant proceeding, Petitioners fail to address the limited scope of license renewal and the implications of this limited scope for their arguments; instead, they argue that their Contention 1 regarding seismic issues is admissible under Section 182 of the AEA.131 Specifically, Petitioners argue that Section 182 of the AEA allows them to challenge any NRC licensing action on the basis that the plant does not provide adequate protection to the health 127 60 Fed. Reg. at 22,463-64.
128 Diablo Canyon, CLI-15-21, 82 NRC at 304; see also 56 Fed. Reg. 64,943, 64,949 (The NRCs existing regulatory processes provide continued assurance that the [current] licensing basis at an operating plant provides an acceptable level of safety at any point in time during its operating life and that the current licensing bases of older plants remain acceptable through backfit of new requirements and guidance when that is necessary for adequate safety or warranted as worthwhile safety enhancements.).
129 Turkey Point, CLI-01-17, 54 NRC at 8 (Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent.).
130 56 Fed. Reg. at 64,949; see also 10 C.F.R. § 2.206.
131 Hearing Request at 7, 13, 14, 15.
and safety of the public.132 Petitioners argument is not, however, consistent with the full language of the law that they cite or with the regulatory framework for license renewal that the Commission developed to implement that law.
Section 182 of the AEA states that applications for operating licenses shall include information as the NRC may, by rule or regulation, deem necessary in order to enable it to find that the utilization special nuclear material will provide adequate protection to the health and safety of the public.133 With respect to license renewal, as discussed above, the NRCs regulations specifically find adequate protection of the health and safety of the public through a review of information related to aging management and time-limited aging analyses combined with the NRCs ongoing oversight of all other issues.134 Therefore, Petitioners assertion that, pursuant to Section 182 of the AEA, they may raise any issue that they may believe concerns public health and safety in a license renewal proceeding is incorrect.135 In fact, one of the fundamental aspects of 10 C.F.R. Part 54 is the determination that a review of all issues related to the public health and safety is not necessary during license renewal.136 The Commission has previously determined that seismic arguments such as Petitioners are outside the scope of license renewal because they challenge the current operations of a plant. In particular, a substantively identical seismic issue was raised previously with respect to Diablo Canyon license renewal and the Commission found such seismic issues to be current 132 Id. at 7, 14 (quoting AEA § 182).
133 42 U.S.C. 2232(a).
134 See 60 Fed. Reg. at 22,464.
135 See Hearing Request at 14 (arguing that Contention 1 is admissible because of the NRCs authority and obligation under the Atomic Energy Act to ensure that its licensing decisions pose no undue risk to public health and safety).
136 56 Fed. Reg. at 64,945 ([T]he Commission does conclude that (a) its program of oversight is sufficiently broad and rigorous to establish that the added discipline of a formal license renewal review against the full range of current safety requirements would not add significantly to safety, and (b) such a review is not needed to ensure that continued operation during the period of extended operation is not inimical to the public health and safety.).
operating issues outside of the scope of license renewal and therefore inadmissible. In October 2014, Friends of the Earth requested a hearing regarding the 2009 license renewal application for Diablo Canyon.137 That hearing request included a contention arguing that new seismic information shows that the seismic energy associated with seismic activity in the vicinity of Diablo Canyon is far greater than previously known and that PG&E has not demonstrated that the plant can be safely shut down under these conditions.138 The Board denied this contention because the concern with the ability of Diablo Canyon to shut down safely following a potential earthquake is a current operating issue, and is not unique to whether PG&Es licenses should be renewed.139 The Commission affirmed this ruling, stating that the argument that PG&E must adequately demonstrate that Diablo Canyon can be safely shut down following an earthquake based on new information is a current operating issue that is outside the license renewal process and is subject, instead, to the NRCs regulatory processes applicable to all currently operating reactors.140 Petitioners seismic risks argument in the instant Diablo Canyon license renewal proceeding is substantively identical to the argument that Friends of the Earth made in the previous Diablo Canyon license renewal proceeding in that in both instances, petitioners alleged that new information supported an argument that the Diablo Canyon current licensing basis is inadequate with respect to seismic matters. Just as the Board and the Commission determined previously, this Board should also conclude that such seismic risks arguments are outside the scope of license renewal.
As explained by the Commission during the previous Diablo Canyon license renewal proceeding, Petitioners can raise concerns regarding seismic risks as well as other current 137 Request by Friends of the Earth for Hearing on Pacific Gas & Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Oct. 10, 2014) (ML14283A586).
138 Id. at 10.
139 Diablo Canyon, LBP 15-6, 81 NRC at 8.
140 Diablo Canyon, CLI 15-21, 82 NRC at 304-5.
operating issues by filing a request pursuant to 10 C.F.R. § 2.206 to institute a proceeding to modify, suspend, or revoke a license, or for any other action that may be proper, if they believe that PG&Es seismic design and licensing basis is now invalid and that safe operation of the plant can no longer be assured.141 Petitioners have already done so hereseparate from their hearing request, they submitted to the Commission a petition essentially identical to Contention 1 that asserts that Diablo Canyon is currently unsafe and must be immediately shut down.142 The NRC Secretary, on behalf of the Commission, referred that petition to the Staff for action under 10 C.F.R. § 2.206, and it is currently under consideration.143 The nexus between a plants seismic design and the license renewal review was explained by the Commission during rulemaking.144 The Commission explained that if the condition of long-lived passive structures and components degraded below the current licensing basis, including the seismic design, and the licensee did not detect and correct the degradation, then a failure of redundant, passive structures and components is possible given, for example, the occurrence of a design-basis seismic event.145 In other words, a concern relevant to the license renewal review is how the aging of the plant is managed such that the current seismic design is considered and addressed. However, Contention 1 only asserts that the current seismic design is insufficient. A concern with the seismic design itself, as opposed to a concern with how aging effects are managed to maintain equipment within the current seismic design, is, as demonstrated by the above Commission explanation, an immediate concern that is outside the narrow scope of the license renewal review.
141 Id. at 307-8.
142 Shutdown Petition to NRC Commissioners (Mar. 4, 2024) (ML24071A174).
143 Order of the Secretary (Mar. 12, 2024) (Referral of Petitioners Request to the Executive Director for Operations for Consideration under 10 C.F.R. § 2.206) (ML24072A529).
144 60 Fed. Reg. at 22,486.
145 Id.
Petitioners do not attempt to show that their seismic risks argument is related to issues unique to license renewal, i.e., related to flaws in aging management and time-limited aging analyses; instead, it appears that Petitioners argument only relates to the Diablo Canyon current licensing basis, i.e., its seismic design. 10 C.F.R. § 54.3 defines current licensing basis as, in part, the set of NRC requirements applicable to a specific plant and a licensees written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis that are docketed and in effect, which includes the NRC regulations contained in 10 CFR parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, 55, 70, 72, 73, 100 and appendices thereto; orders; license conditions; exemptions; and technical specifications and the plant-specific design-basis information documented in the most recent final safety analysis report.146 This definition includes the NRCs regulations relevant to seismic matters.
For instance, applications for power reactor licenses must include principal design criteria,147 the minimum requirements for which for water-cooled nuclear power plants include that structures, systems, and components important to safety must be designed to withstand the effects of natural phenomena such as earthquakes without loss of capability to perform their safety functions.148 Such applications must also include a safety assessment of the site under 10 C.F.R. Part 100,149 which includes seismology.150 Based on these regulations, a plants licensing basis will include requirements related to seismic design and those requirements must be met at all times.151 New information, which could be obtained through the NRCs inspection and oversight processes, among other sources, could demonstrate non-compliance with these 146 10 C.F.R. § 54.3.
147 10 C.F.R. § 50.34(a)(3)(i).
148 10 C.F.R. Part 50, Appendix A.
149 10 C.F.R. § 50.34(a)(1)(i).
150 10 C.F.R. § 100.10.
151 10 C.F.R. § 54.30.
requirements or that a modification to these requirements is necessary.152 The NRCs regulatory process addresses this through actions on a plant-specific or on an industry-wide basis to either modify the current licensing basis to resolve the concern or to ensure the continued compliance with the present current licensing basis.153 In either case, seismic design is not part of the license renewal process. In sum, the entirety of Petitioners seismic risks argument is focused on current operating issues and not issues unique to license renewal; therefore, it is outside of the scope of this license renewal proceeding and, pursuant to 10 C.F.R. § 2.309(f)(1)(iii), should be denied.
Moreover, the fact that Petitioners are focused on a current operating issue with respect to their seismic risk argument is supported by the fact that all of the documents to which they refer in making this argument relate to current operating matters. Petitioners refer to NRC Office Instruction LIC-504,154 but that document has to do with the disposition of safety issues that may emerge as a result of operating experiences or inspections and may require the issuance of safety orders.155 Petitioners refer to NRC Regulatory Guide 1.174,156 but that document has to do with licensing basis changes and does not address license renewal.157 Petitioners refer to a series of interactions between the NRC and PG&E related to the accident at the Fukushima Dai-ichi nuclear power plant resulting from the March 11, 2011, Great Tohoku Earthquake and subsequent tsunami,158 but those interactions had to do with determining, in part, whether the 152 60 Fed. Reg. at 22,473-74.
153 Id.
154 Hearing Request at 10, 12.
155 NRC Office Instruction LIC-504, Rev. 6, Integrated Risk-Informed Decision-Making Process for Emergent Issues at 4 (Sept. 7, 2023) (ML23165A117).
156 Hearing Request at 12.
157 Regulatory Guide 1.174, Rev. 1, An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis (Nov. 2002)
(ML023240437).
158 Hearing Request at 8, 13.
Diablo Canyon current licensing basis needed to be modified with respect to seismic hazards.159 As indicated by the references used, all of Petitioners seismic concerns appear to relate to current operating issues and not to issues unique to license renewal and, therefore, do not amount to an admissible contention.
Although the NRCs regulatory framework, Commission precedent, and Petitioners own arguments and supporting declarations all indicate that their concerns regarding seismic matters involve the current operations of the plant and are therefore inadmissible in a license renewal hearing, Petitioners argue that Contention 1 satisfies the scope requirement of 10 C.F.R.
§ 2.309(f)(1)(iii) because of a statement by the Chair of the Commission.160 Specifically, they quote the Chair as having said that the NRC will look at Diablo Canyon seismic risk as part of the license renewal process.161 As explained above, this license renewal process includes ensuring that aging effects are managed such that, among other things, the plant continues to meet its seismic design.162 This license renewal process also relies on the NRCs ongoing oversight process to provide reasonable assurance of adequate protection of human health and safety by ensuring the plants compliance with its licensing basis, including the seismic design, at all times.163 Under 10 C.F.R. § 54.30, if the Staff finds during its review of a license renewal application that the licensee has not demonstrated that licensed activities will be conducted in accordance with the licensing basis during the current licensing term, the Staff will take action under the current license to ensure compliance. Petitioners seismic concerns are related to the 159 See, e.g., Letter from NRC to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident at encl. 1, page 1 (Mar. 12, 2012) (ML12053A340).
160 Hearing Request at 13-14.
161 Id. at 14.
162 60 Fed. Reg. at 22,486.
163 60 Fed. Reg. at 22,463-64.
seismic design itself, which is part of the current licensing basis, and not how the seismic design is maintained through, for example, aging management. This is why the Commission referred Petitioners shutdown petition, which included essentially the same arguments as in Contention 1 that Diablo Canyon should be immediately shut down due to seismic risks, to the NRC Staff Executive Director for Operations to address through the 10 C.F.R. § 2.206 process. Moreover, this referral ensures that Petitioners current operating concerns with the Diablo Canyon seismic design will be reviewed immediately and thoroughly in parallel with the Staffs review of the license renewal application and determination whether its proposed aging management programs are designed to ensure, among other things, that the plants seismic design is maintained. But, as explained in this answer, Petitioners assertion in Contention 1 that the Diablo Canyon seismic design is insufficient is not within the scope of the Staffs review of the license renewal application. Therefore, pursuant to 10 C.F.R. § 2.309(f)(1)(iii), Contention 1 should be denied.
- 2. The Seismic Risks Arguments Raised by Contention 1 also Do Not Demonstrate that there is a Genuine Dispute with the Licensee because they Make no References to the Application The Contention 1 seismic risks argument is also not admissible because it does not demonstrate that there is a genuine dispute with the licensee. 10 C.F.R. § 2.309(f)(1)(vi) states that, to be admissible, a contention must refer to specific portions of the application that the petitioner disputes and provide the supporting reasons for each dispute. Here, though, Petitioners do not make any references to the application with respect to seismic safety matters.
For this reason alone, the Contention 1 seismic risks argument does not satisfy 10 C.F.R.
§ 2.309(f)(1)(vi) and, therefore, does not amount to an admissible contention.
- 3. The Contention 1 Environmental Impacts Arguments that Relate to Generic Determinations are Outside the Scope of this Proceeding and the Arguments that Relate to Site-Specific Determinations Do Not Show that a Genuine Dispute Exists with the Licensee Petitioners second argument in Contention 1 is that new information demonstrates that PG&Es environmental impacts determinations with respect to license renewal in the Environmental Report are too low.164 Petitioners use the same allegedly new information to support this argument as they use to support their seismic risks argument.165 As discussed next, to the extent that Petitioners refer to specific portions of the Environmental Report as part of this argument, these portions relate to generic issues that are not within the scope of this proceeding. To the extent that Petitioners argue that there are site-specific concerns with respect to the Environmental Report, they do not show that there is a genuine dispute with PG&E on a material issue of fact or law. Therefore, pursuant to 10 C.F.R. § 2.309(f)(1)(iii) and (vi), Petitioners Contention 1 environmental impacts argument does not amount to an admissible contention.
Petitioners cite to the Environmental Report at 4-61 and 4-62 and state that the continued operation of Diablo Canyon poses significant or LARGE adverse environmental impacts166 and not the SMALL impacts of the LR GEIS.167 However, these pages of the Environmental Report discuss two conclusions regarding environmental impacts and both conclusions are resolved generically by rule and, therefore, absent a waiver from the Commission under 10 C.F.R. § 2.335, they are not within the scope of this license renewal proceeding.
164 Hearing Request at 7-8.
165 Id.
166 Id. at 7.
167 Id. at 7 n.11.
The Environmental Report at 4-61 discusses, in part, the topic of design-basis accidents, which the NRCs regulations state is a generic Category 1 issue for which the NRC has concluded that the environmental impacts are of SMALL significance for all plants.168 This portion of the Environmental Report discusses new information specific to Diablo Canyon with respect to this topic and the determination that the new information is not significant in that it would not change the generically applicable SMALL determination of the NRCs regulations.169 Therefore, PG&E concludes that the Category 1 determination of SMALL for the topic applies to the license renewal of Diablo Canyon.170 Neither the Category 1 determination regarding design-basis accidents in the NRCs regulations nor the PG&E analysis of new and significant information related to it are subject to challenge in a license renewal proceeding without a waiver of the NRCs regulations.171 Petitioners have not requested such a waiver. Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(iii), an argument regarding this finding is not within in the scope of this proceeding and cannot be the basis for an admissible contention.
The Environmental Report at 4-61 also discusses the topic of severe accidents. The NRC has determined by rule that [t]he probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.172 The Environmental Report includes new information regarding this topic and the determination that this information is not significant.173 Since a waiver of the NRCs regulations has not been requested, Petitioners bare assertion that this SMALL finding should be a LARGE finding and their implication that the 168 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.
169 ER at 4-60-4-61.
170 Id. at 4-61.
171 See, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
CLI-01-17, 54 NRC 3, 11-13 (2001).
172 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.
173 ER at 4-62-4-64.
new and significant information analysis is inadequate, does not amount to an admissible contention.174 Although the NRCs regulations generically conclude that the environmental consequences of severe accidents are SMALL, they also state that an environmental report must provide an analysis of alternatives to mitigate severe accidents for all plants that have not considered such alternatives.175 As explained by the Commission, this severe accident mitigation alternatives (SAMA) analysis identifies and evaluates mitigation measures that could be installed or implemented to further reduce severe accident risk beyond that necessary to provide adequate protection of public health and safety.176 The evaluation consists of a comparison of the risk-reduction potential of identified mitigation measures with their cost and determines which are cost-beneficial.177 The Environmental Report for Diablo Canyon summarizes its SAMA analysis in Section 4.15.3 and provides a detailed description of it in Attachment G, which spans 276 pages.
Petitioners make the bare assertion that based on the allegedly new information that the current licensing basis for Diablo Canyon underestimates seismic risks, the SAMA listed in Appendix G of the Environmental Report are grossly inadequate to address the magnitude of the environmental impacts involved.178 In a similarly superficial manner, Petitioners state that they challenge the adequacy of the Environmental Report179 and the significance of environmental impacts and reasonable alternatives for avoiding or mitigating those impacts.180 174 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 11-13.
175 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1; 10 C.F.R. § 51.53(c)(3)(ii)(L).
176 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-16-10, 83 NRC 494, 498 (2016).
177 Id.
178 Hearing Request at 7 n.12.
179 Id. at 14-15.
180 Id. at 15.
Besides a general reference to a 276-page portion of the Environmental Report, Petitioners do not refer to any specific portions of the SAMA analysis that they dispute or include the supporting reasons for such disputes, as is required by 10 C.F.R. § 2.309(f)(1)(vi). Therefore, Petitioners have not provided sufficient information to show that a genuine dispute exists with the SAMA analysis on a material issue of law or fact and thus this argument does not amount to an admissible contention.
Petitioners also argue that the Environmental Report is inadequate because it allegedly does not discuss the alternative of closing Diablo Canyon on the dates of the expiration of the current licenses.181 This is not a genuine dispute with the application because it is an incorrect statement of fact;182 the Environmental Report discusses closing Diablo Canyon on the dates of the expiration of the current licenses as the no-action alternative, i.e., the alternative of not renewing the current licenses.183 Therefore, this argument is not admissible.
In sum, Petitioners arguments in Contention 1 related to the environmental impacts of the allegedly new information of increased seismic risks are not admissible because, to the extent that they challenge NRC rules, they are not within the scope of this proceeding because Petitioners have not requested a waiver of those rules and, to the extent that they challenge the discussion of site-specific issues in the Environmental Report, they do not show that a genuine dispute exists with PG&E on a material issue of fact or law because Petitioners do not reference the specific portions of the Environmental Report that they dispute with the supporting reasons for each dispute. Since neither its safety nor its environmental arguments satisfy all of the contention admissibility requirements of 10 C.F.R. § 2.309(f), Contention 1 should be denied.
181 Id. at 7, 7 n.12.
182 Petitioners appear to concede that this is incorrect by later stating that the adverse impact posed by continued operation of [Diablo Canyon] can and should be eliminated by closing the reactors no later than their current retirement dates, i.e. implementing the no action alternative under NEPA. Hearing Request at 12.
183 See, e.g., ER at § 7.1.
D. Contention 2 is Not Admissible because Petitioners Do Not Demonstrate that it is within the Scope of this Proceeding and Genuinely Disputes the License Renewal Application Contention 2 states:
PG&E fails to provide an adequate plan to monitor and manage the effects of aging on [the Diablo Canyon] unit 1 reactor pressure vessel.[184]
Contention 2 also states that PG&Es license renewal application does not include an adequate time-limited aging analysis.185 Petitioners then assert that the proposed aging management program for the [Diablo Canyon Unit 1 reactor pressure vessel] relies heavily upon and perpetuates the preexisting and inadequate surveillance program that PG&E has used during the initial operating license period.186 Thereafter, instead of further discussing the unidentified, allegedly inadequate aging management program and time-limited aging analysis, Petitioners assert deficiencies that appear to be related to the current implementation of the Diablo Canyon Unit 1 reactor pressure vessel surveillance program.187 Specifically, they assert that the implementation of this program has been deficient because PG&E did not consider serious indications of embrittlement that existed in 2003 and did not conduct further monitoring of the [Diablo Canyon] Unit 1 [reactor pressure vessel] in the subsequent two decades, including removal of specimens for testing and ultrasound inspection of reactor beltline welds.188 Petitioners also list, without further explanation, the following concerns: the erroneous 184 Hearing Request at 16.
185 Id.
186 Id. Although Petitioners only refer to a surveillance program, the 2023 Macdonald Declaration clarifies that the program in question has to do with 10 C.F.R. § 50.61 and 10 C.F.R. Part 50, Appendix G. These regulations, in turn, discuss surveillance program with respect to 10 C.F.R. Part 50, Appendix H, which is entitled Reactor Vessel Material Surveillance Program Requirements. That regulation explains that a reactor vessel material surveillance program monitor[s] changes in the fracture toughness properties of ferritic materials in the reactor vessel beltline region of light water nuclear power reactors which result from exposure of these materials to neutron irradiation and the thermal environment.
187 Hearing Request at 16-17.
188 Id. at 17.
assumption that embrittlement accrues in a non-Markovian manner, the appearance of Extrema in Capsule V CGraphs and Tables, the general failure by both PG&E and the NRC to address the significance of errors in PG&Es analyses, and PG&Es failure to address the potentially significant role of hydrogen in the embrittlement/crack propagation process.189 Instead of explaining any details of these concerns, Petitioners refer the reader to the declaration of Digby Macdonald, Ph.D., included with the Hearing Request (2024 Macdonald Declaration) and a previous declaration of Dr. Macdonald (2023 Macdonald Declaration) that was filed with the Commission in 2023 in support of a request for the immediate shut down of Diablo Canyon, Unit 1 because of alleged embrittlement of its reactor pressure vessel.190 As discussed next, Contention 2 is not admissible because Petitioners only make bare assertions that the contention raises issues unique to license renewal when, in fact, the contention appears to instead implicate current operating issues. Therefore, Contention 2 is not pled with the necessary specificity to demonstrate that it is within the scope of this proceeding and that a genuine dispute exists with PG&E on a material issue of law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(iii) and (vi), respectively. Moreover, even if the Board were to search through the 2024 and 2023 Macdonald Declarations attached to the hearing request and that are generally referred to in Contention 2, it would also not find therein a sufficient argument regarding scope or genuine dispute. Therefore, Contention 2 should be denied.
In Contention 2, although Petitioners mention the issues of aging management and time-limited aging analysis,191 which are unique to license renewal and, therefore, within the scope of 189 Id.
190 Request to the NRC Commissioners by San Luis Obispo Mothers for Peace and Friends of the Earth for a Hearing on NRC Staff Decision Effectively Amending Diablo Canyon Unit 1 Operating License to Extend the Schedule for Surveillance of the Unit 1 Pressure Vessel and Request for Emergency Order Requiring Immediate Shutdown of Unit 1 Pending Completion of Tests and Inspections of Pressure Vessel, Public Disclosure of Results, Public Hearing, and Determination by the Commission that Unit 1 Can Safely Resume Operation at Att. 1 (Sept. 14, 2023) (ML23257A302).
191 Hearing Request at 16.
a license renewal proceeding, Petitioners do not explain how the concerns that they list are actually related to those issues. First, besides the single mention of time-limited aging analysis, Petitioners do not discuss the topic again. Second, the only statement that Petitioners provide as to how their listed concerns connect to license renewal is that PG&Es proposed aging management program for the [reactor pressure vessel] relies heavily upon and perpetuates the preexisting and inadequate surveillance program that PG&E has used during the initial operating license period.192 This statement, though, is made without any specific reference to the license renewal application, let alone an explanation for how exactly the preexisting surveillance program is relied upon by the license renewal application. Finally, although Petitioners identify reactor pressure vessels as components within the scope of license renewal,193 they do not explain how their specific concerns regarding the Diablo Canyon Unit 1 reactor pressure vessel are within the scope of this license renewal proceeding, as is required.194 Instead, Petitioners simply repeat and add to, at a summary level, arguments that were previously made in an attempt to demonstrate that Diablo Canyon Unit 1 should be immediately shut down because of the current condition of its reactor pressure vessel.195 Such bare assertions are insufficient to trigger a full adjudicatory proceeding.196 Moreover, without further explanation, these arguments appear to be arguments related to the current implementation of the reactor pressure vessel surveillance program and not arguments specific to the license renewal application. Because of this lack of specificity and similarity to previously made arguments regarding current operating issues, Petitioners have not demonstrated that 192 Id. at 16.
193 Id. at 17.
194 10 C.F.R. § 2.309(f)(1)(iii) requires a demonstration that the issue raised in the contention is within the scope of the proceeding.
195 See Hearing Request at 16-17 (referring to Section V of the 2024 Macdonald Declaration, which summarizes arguments from the 2023 Macdonald Declaration).
196 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012).
Contention 2 is, in fact, within the scope of this license renewal proceeding as is required by 10 C.F.R. § 2.309(f)(1)(iii).
Petitioners also do not satisfy the requirement of 10 C.F.R. § 2.309(f)(1)(vi) that a contention must show that a genuine dispute exists with the licensee on a material issue of law or fact to be admissible. As an initial matter, it does not appear that Petitioners affirmatively address the 10 C.F.R. § 2.309(f)(1)(vi) contention admissibility requirement at all. Although Contention 2 is divided into sections that appear to be dedicated to each of the other contention admissibility requirements,197 there is no section discussing the 10 C.F.R. § 2.309(f)(1)(vi) contention admissibility requirement. Moreover, whereas 10 C.F.R. § 2.309(f)(1)(vi) states that to be admissible a contention must include references to specific portions of the application that the petitioner disputes, the text of Contention 2 does not include a single reference to a specific portion of the license renewal application. Instead, Contention 2 only generally refers to the license renewal application198 or the application.199 Ultimately, Contention 2 is less than 3 pages long and does not show exactly where, if at all, it disputes the license renewal application, let alone that it engages with the application to the extent required to show the existence of a genuine dispute.200 Again, without any explanation to the contrary, it appears that Contention 2 is simply repeating arguments that were made previously concerning the current 197 Specifically, the sections of Contention 2 are titled Statement of Contention, Basis Statement, Demonstration that the Contention is Within the Scope of the Proceeding, Demonstration that the Contention is Material to the Findings NRC Must Make to Renew PG&Es Operating License, and Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials, which appear to match up with the contention admissibility requirements of 10 C.F.R.
§ 2.309(f)(1)(i)-(v), respectively, with no section to address 10 C.F.R. § 2.309(f)(1)(vi).
198 Hearing Request at 16-17.
199 Id. at 18.
200 See, e.g., Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 341-42 (1999) (A contention that fails directly to controvert the license application is subject to dismissal.).
operations of Diablo Canyon and is not genuinely disputing the application. Therefore, it should be denied.
Instead of explaining how Contention 2 is within the scope of this proceeding and explaining how Contention 2 genuinely disputes the application, Petitioners appear to rely on the 2023 and 2024 Macdonald Declarations for satisfying these requirements.201 However, 10 C.F.R. § 2.309(f)(1) specifies that it is the Hearing Request that must satisfy the contention admissibility requirements. The Commission has recognized this regulatory requirement by rejecting contentions that generally rely, without further explanation, on other documents to satisfy the contention admissibility requirements.202 As the Commission has stated, its practice is clear that a petitioner may not simply incorporate massive documents by reference as the basis for or a statement of his contentions because this does not serve the purposes of a pleading in which participants must clearly identify the matters on which they intend to rely with reference to a specific point.203 Petitioners, however, have done exactly that in this proceeding by providing a contention of less than 3 pages that depends on general references to two declarations totaling 59 pages for the satisfaction of the contention admissibility requirements.
Therefore, the failure of Contention 2 to satisfy 10 C.F.R. § 2.309(f)(1)(iii) and (vi) is not cured by its general references to the Macdonald Declarations and, accordingly, it should be denied.
As the Commission has stated, a petitioner has the affirmative obligation to explain how the information in its supporting documents provides a basis for its claim[s] and the 201 See Hearing Request at 16-18.
202 See, e.g., Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 204 (2003)
(Petitioners have an obligation not just to refer generally to voluminous documents, but to provide analysis and supporting evidence as to why particular sections of those documents provide a basis for the contention); American Centrifuge Plant, CLI-06-10, 63 NRC at 457 (stating that it is the petitioners responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention and may not simply infer unarticulated bases of contentions).
203 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-03, 29 NRC 234, 240-41 (1989).
Commission will not sift through the parties pleadings to uncover and resolve arguments not advanced by the litigants themselves.204 Moreover, in this case, Petitioners have experience in proceedings before the NRC205 and are represented by similarly experienced counsel.206 Therefore, this is not an example of the situation of an inexperienced pro se litigant that may be treated more leniently than a litigant with counsel.207 Nonetheless, even if the Board were to analyze the Macdonald Declarations to determine whether they satisfy the contention admissibility requirements regarding scope and genuine dispute, which are not otherwise satisfied by Contention 2, the Board would still have to find that Contention 2 is inadmissible for the following reasons.
First, like Contention 2, the Macdonald Declarations do not demonstrate that the arguments related to the reactor pressure vessel surveillance program are unique to license renewal and, therefore, within the scope of this license renewal proceeding. Dr. Macdonalds expert opinion is that the NRC currently lacks an adequate basis to conclude that Diablo Canyon Unit 1 can be operated safely and that the NRC should, therefore, order an immediate shutdown of Unit 1 (as opposed to waiting until October when, per Dr. Macdonald, a shutdown is scheduled).208 Further, Dr. Macdonald is of the opinion that Unit 1 must remain shut down pending a variety of tests, possible remedial action, and possible review by the NRC, the Advisory Committee On Reactor Safeguards, and the public.209 The concerns and steps desired 204 FirstEnergy Nuclear Operating Company and FirstEnergy Nuclear Generation, LLC (Beaver Valley Power Station, Units 1 and 2; Davis-Besse Nuclear Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-20-5, 91 NRC 214, 223 n.45 (2020).
205 See, e.g., Diablo Canyon, LBP 10-15, 72 NRC at 273 (granting a San Luis Obispo Mothers for Peace hearing request with respect to the 2009 license renewal application for Diablo Canyon).
206 See, e.g., Memorandum and Order (Initial Prehearing Order) at 3 (Mar. 13, 2024)
(ML24073A326).
207 See Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 45 n.246 (2010).
208 2024 Macdonald Declaration at 8.
209 Id.
by Dr. Macdonald are concerns with how the licensee is meeting the current licensing basis or whether the current licensing basis is sufficient, but such concerns are outside of the scope of license renewal per 10 C.F.R. § 54.30(b). Although paragraph 21 of the 2024 Macdonald Declaration states that for these same reasons the NRC lacks a reasonable basis to approve the license renewal application, this same paragraph makes clear that the concern is really with out-of-scope current operating issues by stating, [u]nless and until the NRC establishes that the Unit 1 pressure vessel can operate with a reasonable degree of safety, it has no basis to permit continued operation in a license renewal term. For these reasons, the Macdonald Declarations could not satisfy 10 C.F.R. § 2.309(f)(1)(iii).
The Macdonald Declarations also could not satisfy 10 C.F.R. § 2.309(f)(1)(vi). Unlike Contention 2, the 2024 Macdonald Declaration does identify specific portions of the license renewal application.210 For instance, Dr. Macdonald identifies the Diablo Canyon reactor vessel surveillance aging management program at License Renewal Application § B.2.3.18 and the fact that it involves withdrawing and testing a surveillance capsule in Diablo Canyon Unit 1 after it has accumulated 1-2 times the peak reactor vessel neutron fluence at 60 years of operation.211 However, Dr. Macdonald does not dispute the accompanying statement in the application that, for Diablo Canyon Unit 1, this aging management program is consistent with the GALL Report.212 An applicants use of an aging management program identified in the GALL Report constitutes reasonable assurance that it will manage the targeted aging effect during the renewal period.213 Without providing any reason for how the referenced portions of the license 210 See 2024 Macdonald declaration at 4-6.
211 Id. at 6 (citing License Renewal Application at B.2-95).
212 See License Renewal Application at B.2-95-B.2-96 (stating that the Diablo Canyon reactor vessel surveillance aging management program is consistent with the GALL Report with one exception that is only applicable to Unit 2).
213 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 468 (2008).
renewal application are being disputed, the 2024 Macdonald Declaration could not amount to an admissible contention.
Instead of disputing portions of the license renewal application or identifying omissions in the license renewal application, as is required for an admissible contention, Dr. Macdonald discusses a number of concerns with the current implementation of the PG&E reactor vessel material surveillance program, which program he states that the license renewal applications reactor vessel surveillance aging management program depends on.214 All of these concerns, though, could not amount to an admissible contention because they effectively challenge NRC regulations and guidance or assert requirements that are more restrictive than NRC regulations and guidance and, therefore, they are not within the scope of this proceeding as is required by 10 C.F.R. § 2.309(f)(1)(iii). Dr. Macdonald states that PG&E should have included an additional margin of error in its calculation of reference temperature,215 but doesnt point to any NRC requirement for that position or discuss the margin already required by NRC regulations and guidance. Dr. Macdonald states that PG&E discounted data as not credible,216 but doesnt show how this determination was inconsistent with the relevant NRC guidance.217 Dr. Macdonald states that PG&E improperly considered data from other reactors,218 but doesnt explain how doing so is inconsistent with 10 C.F.R. § 50.61. Dr. Macdonald states that PG&E should have removed a surveillance capsule earlier than required and should conduct additional beltline inspections,219 but doesnt explain how that is required by NRC regulations. Dr. Macdonald states that test methods different than those required by the NRCs regulations should be 214 2024 Macdonald declaration at 6-12.
215 Id. at 6-7.
216 Id. at 7.
217 See, e.g., Regulatory Guide 1.99, Rev. 2, Radiation Embrittlement of Reactor Vessel Materials (May 1988) (ML003740284).
218 2024 Macdonald Declaration at 7.
219 Id. at 7-8.
performed.220 Finally, Dr. Macdonalds additional concerns appear to challenge NRC guidance and to seek to impose requirements beyond what is required by NRC regulations.221 The Commission has held that, absent a waiver, an argument must be rejected if it challenges applicable statutory requirements, regulations, or the basic structure of the Commissions regulatory process.222 Further, attempts to advocate for requirements stricter than those imposed by regulation constitute collateral attacks on the NRCs rules.223 Such challenges are outside the scope of a proceeding.224 Therefore, since Petitioners have not requested a waiver of the regulations that Dr. Macdonalds arguments effectively challenge, these arguments could not satisfy 10 C.F.R. § 2.309(f)(1)(iii).
In conclusion, Contention 2 does not satisfy with the requisite specificity the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)(iii) and (vi). In particular, although Contention 2 generally mentions the license renewal application and aging management programs and time-limited aging analyses, it doesnt provide any explanation or references to demonstrate that its arguments actually relate to specific portions of the application and specific issues within the scope of this license renewal proceeding. Moreover, Petitioners cannot cure 220 Id. at 8.
221 Id. at 9-12.
222 As set forth in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. Further, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit 2),
CLI-03-14, 58 NRC 207, 218 (2003).
223 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012)
(citations omitted); see Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974) (explaining that a contention that seeks to raise an issue that is not proper for adjudication in the proceeding or that does not apply to the facility in question, or seeks to raise an issue that is not concrete or litigable must also be rejected).
224 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 82 NRC 295, 302 (2015) (Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.).
this deficiency through general references to the Macdonald Declarations. Finally, even if they were subject to being evaluated for whether they satisfy the contention admissibility requirements, the Macdonald Declarations could not amount to an admissible contention because they have to do with out-of-scope current operating issues, do not provide the supporting reasons for any disputes with the referenced portions of the license renewal application, and impermissibly challenge the NRCs regulations without a waiver of those regulations. For each of these independent reasons, the Board should deny Contention 2.
E. Contention 3 is Not Admissible because it Does Not Show that a Genuine Dispute Exists with the Licensee on a Material Issue of Law or Fact and because it Challenges Regulations without a Waiver Contention 3 states:
PG&E fails to demonstrate compliance with the Coastal Zone Management Act [(CZMA)].[225]
Contention 3 is not admissible because, as explained below, Petitioners do not show that a genuine dispute exists with PG&E on a material issue of law or fact because they do not establish that the license renewal application fails to contain information required by the NRCs regulation at 10 C.F.R. § 51.45(d). Instead, Petitioners demand more in the application than the description of the status of compliance that is required by 10 C.F.R. § 51.45(d). Therefore, to the extent that Petitioners demand a state agencys final concurrence in the application, their arguments amount to a challenge to 10 C.F.R. § 51.45(d), which is not admissible in this proceeding because Petitioners have not requested a waiver of that requirement.226 225 Hearing Request at 18. The CZMA requires, in part, that any applicant for a required Federal license or permit to conduct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the enforceable policies of the states approved program and that such activity will be conducted in a manner consistent with the program. 16 U.S.C. § 1456(c)(3)(A).
226 As stated in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. Further, any contention that amounts to an attack on applicable statutory The NRCs regulation at 10 C.F.R. § 51.45(d) states, in part, that:
The environmental report shall list all Federal permits, licenses, approvals and other entitlements which must be obtained in connection with the proposed action and shall describe the status of compliance with these requirements. The environmental report shall also include a discussion of the status of compliance with applicable environmental quality standards and requirements including, but not limited to, applicable zoning and land-use regulations, and thermal and other water pollution limitations or requirements which have been imposed by Federal, State, regional, and local agencies having responsibility for environmental protection.
As required by 10 C.F.R. § 51.45(d), PG&E included in its Environmental Report the status of its CZMA certification including the fact that it had submitted a request to the appropriate state agency.227 Petitioners argue that the license renewal application is incomplete because it does not include the state agencys final concurrence with the CZMA certification.228 However, under 10 C.F.R. § 51.45(d), the application only needs to list the permits needed and to describe the status of compliance, thus the application is not incomplete under 10 C.F.R. § 51.45(d) for failing to show that PG&E has already obtained all permits or achieved compliance with all permits.
Therefore, Petitioners have not identified an error or omission in the license renewal application by stating the undisputed fact that PG&E and the state have not yet completed the CZMA process. By not disputing the license renewal application, Petitioners have not demonstrated a genuine dispute with the licensee and, pursuant to 10 C.F.R. § 2.309(f)(1)(vi), Contention 3 is not admissible.
requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Millstone, CLI-03-14, 58 NRC at 218.
227 License Renewal Application, at Appendix E, Attachment F. The state agency replied to PG&E on December 7, 2023 requesting additional information before it could commence its review. Hearing Request, at Exhibit 4.
228 Hearing Request at 20.
A Board previously found a similar contention to be inadmissible, finding that including only a CZMA certification in a license renewal applications environmental report is sufficient for compliance with 10 C.F.R. § 51.45 and the CZMA. Specifically, in Victoria, petitioner Texans for a Sound Energy Policy (TSEP) proffered, among others, a contention stating that Exelon Nuclear Texas Holdings, LLC (Exelon) failed to comply with the CZMA because its license renewal application did not include the required determination that the proposed activity is consistent with the Texas Coastal Management Program.229 One day after TSEP filed its petition, Exelon submitted its CZMA certification to the NRC, which it had also submitted to the appropriate state agency.230 The Victoria Board held that TSEPs CZMA contention was inadmissible, finding that as NRC Staff point[ed] out, TSEP also seems to confuse an applicants CZMA certification with a states final consistency decision. TSEP fails to point to any regulation indicating that an applicants [environmental report] must include a final consistency determination by the relevant state, and the regulations clearly state that only a consistency certification must be submitted, not a final consistency determination as well.231 Since Exelon had submitted its consistency certification, the Victoria Board held that the contention was moot and inadmissible, because TSEP fail[ed] to present a genuine dispute of material fact or law as required by 10 C.F.R.
§ 2.309(f)(1)(vi).232 Here, Petitioners similarly do not point to any regulation indicating that an applicants environmental report must include a final consistency determination by the appropriate state agency. Therefore, as was determined in Victoria, this Board should also 229 Exelon Nuclear Texas Holdings, LLC (Victoria County Station Site), LBP-11-16, 73 NRC 645, 704 (2011).
230 Id. at 705.
231 Id. at 708 n.367.
232 Id. at 705. The Victoria Board found standing and held eight other contentions to be admissible; however, Exelon later withdrew its application. Exelon Nuclear Texas Holdings (Victoria County Station Site), LBP-12-20, 76 NRC 215 (2012).
determine that Contention 3 is not admissible because it does not demonstrate that a genuine dispute exists with PG&E.
In sum, 10 C.F.R. § 51.45 requires that an environmental report include discussion of the status of compliance with the CZMA, but it does not require final concurrence by the appropriate state agency. Petitioners arguments in Contention 3 are not admissible because they do not demonstrate that PG&Es application is incomplete under the standards of 10 C.F.R. § 51.45(d).
Petitioners have therefore not demonstrated the existence of a genuine dispute with PG&E as required by 10 C.F.R. § 2.309(f)(1)(vi). To the extent that Petitioners argue that license renewal is not appropriate because PG&E has not obtained the state agencys final consistency determination of the CZMA certification, their contention is premature and should be rejected as a placeholder contention.233 And, to the extent that Petitioners challenge PG&Es inclusion of the CZMA certification, rather than the state agencys final consistency determination, in the Environmental Report as inconsistent with their interpretation of the CZMA, Petitioners arguments amount to a challenge to 10 C.F.R. § 51.45(d), but they have neither requested nor received a waiver from the Commission to challenge the applicability of that rule to this proceeding. Such a challenge is outside of the scope of this proceeding, contrary to 10 C.F.R.
§ 2.309(f)(1)(iii).234 Because Contention 3 does not satisfy the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)(iii) and (vi), it should be denied.
233 See Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-03, 99 NRC __, __ (Mar. 7, 2024) (slip op. at 30) (citing Union Electric Co. (Callaway Plant, Unit 1),
CLI-15-11, 81 NRC 546, 548-50 (2015); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009)).
234 Diablo Canyon, CLI-15-21, 82 NRC at 302 (Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.).
CONCLUSION As explained above, Petitioners have demonstrated standing but have not demonstrated that at least one of their proposed contentions satisfy all of the contention admissibility requirements. Therefore, their hearing request should be denied.
Respectfully submitted,
/Signed (electronically) by/
Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9188 Email: Jeremy.Wachutka@nrc.gov Executed in Accord with 10 CFR 2.304(d)
Ian M. Murphy Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-5233 Dated March 29, 2024 Email: Ian.Murphy@nrc.gov
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2 Docket Nos. 50-275 LR-2 50-323 LR-2 Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFF ANSWER OPPOSING THE SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP HEARING REQUEST, dated March 29, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 29th day of March 2024.
/Signed (electronically) by/
Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9188 Email: Jeremy.Wachutka@nrc.gov