ML24096B784

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Reply by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group to Oppositions to Request for Hearing on Pacific Gas and Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant
ML24096B784
Person / Time
Site: Diablo Canyon  Pacific Gas & Electric icon.png
Issue date: 04/05/2024
From: Curran D, Leary C, Templeton H
Environmental Working Group, Friends of the Earth, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, San Luis Obispo Mothers for Peace
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 56984, 50-275-LR-2, 50-323-LR-2
Download: ML24096B784 (0)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of Pacific Gas and Electric Company Docket Nos. 50-275-LR, 50-373-LR Diablo Canyon Nuclear Power Plant April 5, 2024 Units 1 and 2 REPLY BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH AND ENVIRONMENTAL WORKING GROUP TO OPPOSITIONS TO REQUEST FOR HEARING ON PACIFIC GAS AND ELECTRIC COMPANYS LICENSE RENEWAL APPLICATION FOR THE DIABLO CANYON NUCLEAR PLANT Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel to San Luis Obispo Mothers for Peace Hallie Templeton Friends of the Earth 1101 15th Street, 11th Floor Washington, DC 20005 434-326-4647 htempleton@foe.org Counsel to Friends of the Earth Caroline Leary Environmental Working Group 1250 I St N.W.

Washington, DC 20005 202-667-6982 cleary@ewg.org Counsel to Environmental Working Group

TABLE OF CONTENTS Table of Authoritiesii I.

INTRODUCTION...1 II.

ARGUMENT...2 A. Petitioners Have Standing to Participate in this License Renewal Proceeding.2 B. Petitioners Contentions Are Admissible..5

1. Contention 1 is admissible..5
a. Petitioners safety claims raise a genuine dispute and are within the scope of this proceeding...6
b. Petitioners environmental claims raise a genuine dispute and are within the scope of this proceeding...11
2. Contention 2 is admissible12
3. Contention 3 is admissible15 III.

CONCLUSION..20

ii TABLE OF AUTHORITIES Judicial Decisions Students for Fair Admissions, Inc. v. President and Fellows of Harv. Coll.,

143 S.Ct. 2141, 600 U.S. 181 (2023)...2, 3 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)..7, 10 Statutes Atomic Energy Act, Section 189a4 Coastal Zone Management Act (CZMA).....16-19 CZMA § 307(c)(3)(A), 16 U.S.C. § 1456(c)(3)(A)...16 Regulations 10 C.F.R. § 2.309.4 10 C.F.R. § 2.309(c).16, 17 10 C.F.R. § 2.309(c)(1)...16,-17 10 C.F.R. § 2.309(f)(1)(vi).10 10 C.F.R. § 2.309(i)(2).1 10 C.F.R. § 2.714(a).4 10 C.F.R. § 51.45(d)..19 10 C.F.R. Part 54.6 Administrative Decisions Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1),

CLI-93-21, 38 NRC 87 (1993).4 Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-82-25, 15 N.R.C. 715 (1982)...4 Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 N.R.C. 399 (2007).3

iii Entergy Nuclear Operations, Inc. (Indian Point, Units 1 and 2), LBP-08-13, 68 N.R.C. 43 (2008)15 Exelon Nuclear Texas Holdings (Victoria County Station Site), LBP-11-16, 73 N.R.C. 645 (2011)..17-19 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 N.R.C. 195 (2003).13 Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia),

CLI-95-12, 42 N.R.C 111 (1995)..4 NextEra Energy Seabrook, L.L.C. (Seabrook Station, Unit 1), LBP-11-12, 73 N.R.C. 28 (2011)..3 Northern States Power Co. (Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311 (1989)..4 Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2),

CLI-76-2, 4 N.R.C. 610 (1976)..4 Miscellaneous Cal. Public Resources Code § 30600)..16 California Senate Bill 846 (2022).10 Hearing, Senate Committee on Environment and Public Works (April 19, 2023):

https://www.epw.senate.gov/public/index.cfm/hearings?ID=DD1B6EC6-588A-4A56-9961-F9961BE12270........................................................................................................7 Letter from Marilyn C. Kray, Exelon, to NRC re: Exelon Nuclear Texas Holdings, LLC Victoria County Station Early Site Permit Application Request for Withdrawal of Early Site Permit Application NRC Docket No.52-042 (Aug. 128, 2012)

(NRC Accession No. ML12241A303)..19 Texans for a Sound Energy Policys Hearing Request and Contentions (Jan. 24, 2011)

(NRC ADAMS Accession No. ML110240695)18

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of Pacific Gas and Electric Company Docket Nos. 50-275-LR, 50-373-LR Diablo Canyon Nuclear Power Plant April 5, 2024 Units 1 and 2 REPLY BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH AND ENVIRONMENTAL WORKING GROUP TO OPPOSITIONS TO REQUEST FOR HEARING ON PACIFIC GAS AND ELECTRIC COMPANYS LICENSE RENEWAL APPLICATION FOR THE DIABLO CANYON NUCLEAR PLANT I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(2) and the Atomic Safety and Licensing Boards (ASLBs) Memorandum and Order (Initial Prehearing Order) of March 31, 2024, Petitioners San Luis Obispo Mothers for Peace (SLOMFP), Friends of the Earth (FoE), and Environmental Working Group (EWG) hereby respond to oppositions by Pacific Gas and Electric Co. (PG&E) and the U.S. Nuclear Regulatory Commission (NRC or Commission)

Staff to Petitioners hearing request in this license renewal proceeding for the Diablo Canyon nuclear power plant (DCPP).1 As set forth below, the arguments in opposition to the admission of Petitioners three contentions lack merit, and therefore each of Petitioners contentions should properly be admitted.

1 See Pacific Gas and Electric Companys Answer Opposing the Hearing Request Filed by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group (March 29, 2024) (PG&E Answer); NRC Staff Answer Opposing the San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group Hearing Request (March 29, 2024) (NRC Staff Answer). PG&E and the Staffs Answers respond to 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 (March 4, 2024) (Hearing Request).

2 II.

ARGUMENT A. Petitioners Have Standing to Participate in this License Renewal Proceeding.

The NRC Staff does not oppose the standing of any of the three petitioners. NRC Staff Answer at 8-9. But PG&E argues that EWG has not established either organizational standing as an institution or representative standing on behalf of its supporters. PG&E Answer at 11-14.

PG&E also states that [n]owhere in the Petition does EWG assert representational standing. Id.

at 13.

Petitioners respectfully submit that EWG has both asserted and established organizational standing as the equivalent of representative standing, as those terms are used by the Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harv.

Coll., 143 S.Ct. 2141, 600 U.S. 181 (2023). As the Court explained:

In cases like these, where the plaintiff is an organization, the standing requirements of Article III can be satisfied in two ways. Either the organization can claim that it suffered an injury in its own right or, alternatively, it can assert standing solely as the representative of its members. Warth v. Seldin, 422 U. S. 490, 511, 95 S. Ct. 2197, 45 L.

Ed. 2d 343 (1975). The latter approach is known as representational or organizational standing. Ibid.; Summers [v. Earth Island Institute, 555 U. S. 488, 497-498, 129 S. Ct.

1142, 173 L. Ed. 2d 1 2009]. To invoke it, an organization must demonstrate that (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977).

143 S. Ct. at 2157 (emphasis added). EWG has submitted three declarations by supporters who consider that EWG is representing their interests in a safe and healthful environment by participating in this proceeding, and who have authorized EWG to represent those interests. See Exhibits 1(G) through 1(I), the declarations of June Cochran, Patricia Kohlen, and Linda Parks.

In addition, EWG has submitted the declaration of EWG President Ken Cook, who attests that EWG works to empower people to live healthier lives in a healthier environment. See

3 Declaration of Ken Cook, ¶ 2 (Feb. 2, 2024) (Exhibit 1(F)). As he also states, the organizations extensive research helps supporters make safer and more informed choices. Id. Thus, EWG seeks to participate in the proceeding in a good faith effort to ensure that its supporters interest in protecting public health and safety and the environment from radiological contamination and risks are represented in the NRCs decisionmaking process.

EWG engages supporters by regularly communicating through email, social media, mobile app, and its website about its work. For example, in 2023 EWG sent 496 emails to its supporters providing update on EWGs work, groundbreaking news, and research. Additionally, EWG annually surveys its supporters on what issues and direction they would like to see EWGs work grow towards. In furtherance of EWGs mission, while financial support isnt required to support EWG, 61% of EWGs funding comes from its individual supporters. Linda Parks, who has authorized EWG to represent her interests in this proceeding, is one of EWGs financial supporters.

Therefore, EWG meets the test of Students for Fair Admissions, Inc. that its supporters voluntarily joined EWG, that they support EWGs mission, that they receive updates about the progress of the case and other EWG efforts, and that they have an opportunity to have input and direction on the case. 143 S.Ct. at 2158.

PG&E argues that in order to satisfy standing, EWG must demonstrate that it has members who qualify for standing in their own right. PG&E Answer at 13-14 (citing NextEra Energy Seabrook, L.L.C. (Seabrook Station, Unit 1), LBP-11-12, 73 N.R.C. 28, 40 (2011) (citing Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 N.R.C. 399, 409 (2007)). But PG&E completely fails to respond to Petitioners assertion that Students for Fair Admissions, Inc. allows organizations to establish their organizational or representational standing on behalf

4 of their supporters, without requiring a demonstration that those supporters have the same ability to control the organization as do members. Under well-established Commission precedents, this judicial decision governs this proceeding. See, e.g., Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-2, 4 N.R.C. 610, 613-14 (1976) ([I]n determining whether a petitioner for intervention in NRC domestic licensing proceedings has alleged an interest [which] may be affected by the proceeding within the meaning of Section 189a of the Atomic Energy Act and Section 2.714(a) [now Section 2.309] of NRCs rules of Practice, contemporaneous concepts of standing should be used.). See also Georgia Inst. of Tech.

(Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 N.R.C 111, 115 (1995)

(citing Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993)).

In any event, the NRC has previously recognized that [w]here... a nonmembership organization has a well-defined purpose which is germane to the proceedings, sponsors can be considered equivalent to members where they financially support the organization's objectives and have indicated a desire to be represented by the organization. Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-82-25, 15 N.R.C. 715, 736 (1982). See also Northern States Power Co. (Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311, 314 (1989).2 2 In response to PG&Es argument that EWG must provide a physical address and phone number, EWG confirms that the street address and telephone number on the signature line for their counsel, Caroline Leary, is the same physical address and telephone number for EWGs offices in Washington, D.C. This is also true for the physical address and telephone number of FoEs attorney, Hallie Templeton. SLOMFP, an all-volunteer organization, does not have a physical address or telephone number.

5 B. Petitioners Contentions Are Admissible.

1. Contention 1 is admissible.

Contention 1 asserts:

The NRC should deny PG&Es license renewal application for DCPP because continued operation of the reactors poses an unacceptable risk of core damage accidents due to earthquakes. Therefore, renewal of PG&Es operating license would not satisfy the statutory standard set by the Atomic Energy Act that operation of DCPP will provide adequate protection to the health and safety of the public. By the same token, continued operation of DCPP also poses significant or LARGE adverse environmental impacts, not SMALL impacts as asserted by PG&E in its Environmental Report. As required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(c)(iii), the Environmental Report should weigh the costs and benefits of the alternative that would avoid these impacts: closing DCPP on the reactors current 2024/2025 retirement dates.

Quantification of the seismic risks and environmental impacts can be found in PG&Es two most recent public reports on earthquake risks - its 2018 Seismic Probabilistic Risk Assessment (SPRA) and its 2023 Environmental Report. In the SPRA, PG&E estimates a value of 3 x 10-5 per year for seismic core damage frequency. In the Environmental Report, PG&E asserts a similar value (2.96 x 10-5) and characterizes their environmental significance as SMALL. As set forth in the attached Declaration of Peter Bird, Ph.D (March 4, 2024), (Bird Declaration), however, PG&Es SCDF estimate is too low by a factor of 47~70. PG&Es significant underestimate of SCDF arises principally from its assumption that the majority of large earthquakes affecting DCPP are strike-slip earthquakes and its disregard of the significant contribution of thrust-faulting earthquake sources under the DCPP site and in the adjacent Irish Hills. But the January 2024 occurrence of the Noto Peninsula earthquakes on analogous faults in Japan now demonstrates in no uncertain terms that PG&Es assumption is both unfounded and dangerous. As discussed below, these thrust-faulting earthquakes produce strong shaking that leads to a much higher chance of seismic core damage than the strike-slip faults assumed by PG&E to predominate at DCPP. Applying the experience of the Noto earthquakes to the thrust-faulting earthquakes at and near DCPP, a reasonable SCDF estimate could be as high as 1.4 x 10-3/year. As stated by Dr. Bird:

In the 2024 Noto Peninsula earthquake, we have the advantage of the finite-fault solution (USGS, 2024), which maps the amount of coseismic slip onto the active fault plane. This study showed maximum slip of 3.7 m under the center of the Noto Peninsula, with a mean slip that I visually estimate as 2.0 m (or 2000 mm) in the seismogenic depth range.

Dividing this mean slip of 2000 mm by the long-term tectonic slip-rate of 2.8 mm/a in the Irish Hills, the inferred recurrence rate for Noto-type earthquakes under the Irish Hills is 715 years. In other words, the inferred probability of Noto Peninsula-type earthquakes under the Irish Hills is the inverse of this, which is 1.4x10-3 /yr.

6 Again, reasonably presuming that the Noto Peninsula earthquake is a characteristic earthquake for this tectonic setting (shared by the Irish Hills in California), PGA values of 1.0~2.3 g (see section 1 above) must be expected with probability 1.4x10-3 /yr. However, in the 2015 SSC (specifically, in Figure 2.3.7-1 of PG&E, 2015L), we see that this outdated modeling associated this probability level with a PGA of only 0.32 g. Consequently, it appears that the 2015 SSC severely underestimated (by a factor of 3~7) the severity of shaking (PGA) that must be resisted every ~715 years.

In other words, as asserted by Dr. Bird, the severe accident that PG&E asserts will occur only once in 33,000~50,000 years may actually occur every ~715 years. That means that a license extension for 20 years would incur a ~2.8% probability of a severe accident.

Under NRC guidance, such a high core damage frequency calls for immediate regulatory action to maintain the plant in a safe condition. In this context, it requires the denial of PG&Es license renewal application.

Hearing Request at 7-10 (footnotes omitted). The contention is supported by the expert declaration of Dr. Peter Bird, Professor of Geophysics and Geology, Emeritus, at the University of California at Los Angeles. Exhibit 2, Declaration of Dr. Peter Bird, Ph.D (March 4, 2024)

(Bird Declaration).

a. Petitioners safety claims raise a genuine dispute and are within the scope of this proceeding.

PG&E and the NRC Staff assert that Contention 1 is inadmissible as a safety contention because it does not address any specific portion of PG&Es Safety Application and because it is outside the scope of this license renewal proceeding.3 PG&E Answer at 21-29, NRC Staff Answer at 22-32. While they are correct that its Safety Application is not required to address issues of seismic risk by 10 C.F.R. Part 54, it is incorrect that this is a complete block to 3 Safety Application is PG&Es term for the portion of its license renewal application other than the Environmental Report. PG&E Answer at 6 and n.22. The Safety Application primarily the requirements of NRC safety regulations implementing the Atomic Energy Act. The Environmental Report addresses the requirements of the National Environmental Policy Act (NEPA) and NRC implementing regulations. This Reply uses the term Safety Application or license renewal application (LRA) for the safety-related portion of PG&Es application.

7 admissibility. The contention is admissible because of a formal commitment, made by NRC Chairman Hanson on behalf of the Commission to Senator Alex Padilla of the Senate Committee on Environment and Public Works, to re-examine seismic risks during the license renewal process. Hearing Request at 14. As Mr. Hanson stated:

Were going to be looking at updated safety information as part of that license renewal process. We did require all plants to take a look at the enhanced... you know to relook at their risks after Fukushima; Diablo, of course did look at their seismic risk again, and well take another look at that as part of the license renewal process...

Hearing Request at 14 (emphasis added).4 As a general matter, it is true that safety reviews for reactor license renewal application do not include seismic risks or issues that are not unique to license renewal. See PG&E Answer at 3-4, 25-27. But here, Chairman Hanson has unequivocally testified before Congress that the Commission will evaluate seismic risk as part of the license renewal review for the Diablo Canyon reactors. His hearing testimony, made on behalf of the entire Commission, now establishes that seismic risk is material to the NRCs license renewal decision as the term is used in NRCs regulatory standard for judging the admissibility of contentions, 10 C.F.R. § 2.309(f)(1)(vi) (contentions must show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.). In other words, Chairman Hansons explicit commitment to review seismic risk brings Petitioners safety claims squarely within the scope of this proceeding. Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1438 (D.C. Cir. 1984) (holding that the NRC must offer a hearing on a material factor it relied on in a licensing decision). By declaring that its license renewal review will include an evaluation of 4 A recording of Mr. Hansons statement is posted on the Committees website at:

https://www.epw.senate.gov/public/index.cfm/hearings?ID=DD1B6EC6-588A-4A56-9961-F9961BE12270, and this particular statement can be heard at approximately 1:45:26. See Hearing Request at 14 and note 28.

8 seismic risks, the NRC has established the materiality of the issue and effectively removed the regulatory obstacles claimed by PG&E and the Staff to bar admission of Contention 1.5 In a footnote, PG&E argues that Commissioner Hansons commitment should not be credited because it was made from a single Commissioner. PG&E Answer at 31 n. 141. Or that if credited, it should only be taken to mean that the NRC will take seismic risks into consideration in evaluating the adequacy of aging management programs and Severe Accident Mitigation Alternatives. Id. See also NRC Staff Answer at 31. But Chairman Hanson was accompanied by all of his fellow Commissioners, who could be presumed to object or demur if they disagreed with his commitment. And nothing about his statement suggested an intent to limit the scope of the agencys seismic risk re-evaluation to a discrete set of reactor components or safety measures. Indeed, Mr. Hanson was responding to a broad question from Senator Padilla regarding how the NRC would ensure that DCPP was operationally safe with specific concerns about seismic risks. See Hearing Request at 14 and note 3 above.

PG&E also errs in arguing that Petitioners safety claims are impermissibly [v]ague.

PG&E Answer at 25. To the contrary, Petitioners claims are highly specific in all material respects. First, Petitioners and their expert, Dr. Peter Bird, make specific assertions that PG&E has underestimated core damage frequency due to its failure to consider the significant potential for earthquakes on thrust faults in the region; and that new information from the January 2024 5 For example, contrary to PG&Es argument at page 26 and the Staffs argument at page 32, the fact that Petitioners concerns are relevant to the safety of DCPPs operation during the current operating license term and are the subject of a 2.206 petition does not place them beyond the scope of this license renewal proceeding.

9 Noto Peninsula earthquake shows that shaking from thrust-fault earthquakes is severe enough to cause core damage.6 Petitioners are also specific with respect to the assertions by PG&E and the NRC that they challenge and the documents where those assertions are located, including titles, accession numbers, dates, and page numbers. See Hearing Request at 7-13 (Statement of Contention and Basis Statement) and Bird Declaration, § IV. And Petitioners and Dr. Bird are highly specific with respect to particular deficiencies in those documents and the quantitative and qualitative significance of those deficiencies. Id. Finally, it is clear from PG&Es Answer that Petitioners have challenged the adequacy of documents that are relevant to the NRCs seismic re-evaluation, i.e., documents cited in PG&Es Answer for the proposition that it has adequately considered seismic risks at Diablo Canyon. For example, PG&E claims that the Senior Seismic Hazard Analysis Committee (SSHAC) Level 3 assessment for seismic source characterization considered risk from all seismic sources, notably including faults near the DCPP shoreline and potential thrust fault earthquake sources. PG&Es Answer at 23 and note 102. The inadequacy of the SSHAC Level 3 assessment is a subject of Petitioners Hearing Request. Id. at 13 and note

6. See also Bird Declaration, ¶¶ 8, 9, 30, 32. Similarly, PG&E cites its Seismic Probabilistic Risk 6 The Staff correctly notes that in Contention 1, Petitioners seek consideration of allegedly new information of earthquakes in the Noto Peninsula of Japan in January 2024. Staff Answer at 21.

But the Staffs characterization of Petitioners concern regarding the new information is erroneous. According to the Staff, Petitioners assert that the Noto Peninsula earthquake 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. Id. The Staffs statement entangles two separate issues. Petitioners do contend that PG&E incorrectly failed to seriously consider thrust-faulting seismic sources (of large area, shallow depth, and frequent recurrence) under DCPP. See Bird Declaration, ¶ 14(5). However, the new information from the Noto earthquake is that the seismic accelerations from such an event would be large enough to cause core damage. See Bird Declaration, ¶¶ 30-34.

10 Assessment (SSPRA) as a key evaluation of seismic risk. PG&Es Answer at 23 and note 104.

It is also a subject of Petitioners Hearing Request. Id. at 8 and note 13. See also Bird Declaration, ¶¶ 5, 8, 32. These documents undoubtedly will be included in the seismic re-evaluation promised by Commissioner Hanson.

PG&E also argues that Contention 1 is inadmissible because it relies on Dr. Birds challenge to the consensus-based SSHAC process rather than PG&Es work. PG&E Answer at

28. See also id. at 29-30 (asserting that Dr. Bird derides the SSHAC process and that he favors abandoning it). But PG&E mischaracterizes Dr. Birds views. Dr. Bird has not challenged the SSHAC process itself, and indeed he participated in it with respect to Diablo Canyon. Bird Declaration, ¶ 3. But he does disagree with the committees subjective rather than algorithmic approach to the creation of deformation models. Id., ¶ 15. Dr. Bird advocates for application of mathematical principles to seismic risk analysis, regardless of whether they are applied by an individual or a committee. And his criticism of the SSHAC assumptions and outcomes are specific, objective and technical. Id., ¶¶ 41-44. Because PG&E relied on these assumptions and determinations in its seismic analysis, they are a legitimate target of Dr. Birds criticisms. Rather than deflecting Dr. Birds valid challenge to its seismic analysis, PG&E has only succeeded in confirming that Petitioners have a genuine and material dispute with PG&E as required by 10 C.F.R. § 2.309(f)(1)(vi).7 7 PG&E also attempts to defend its seismic analysis on the merits by citing the SB-846 seismic assessment that was delivered to the California Department of Water Resources on February 1, 2024. PG&E Answer at 23-24. And PG&E claims that the processes and results of this updated assessment were independently reviewed by geosciences and risk experts, including the UCLA Garrick Institute for the Risk Sciences, which found no significant increase in seismic risk to DCPP that would change previous conclusions by the NRC that the site is seismically safe. Id. But PG&E acknowledges that the seismic update is not publicly available, and PG&E does not cite or attach the Garrick Institute review. Id., note 107. Presumably, these documents

11

b. Petitioners environmental claims raise a genuine dispute and are within the scope of this proceeding.

PG&E and the Staff argue that Contention 1 is inadmissible to the extent that it challenges the Environmental Reports flawed conclusion that the adverse environmental impacts of accidents at the nuclear power plant are somehow SMALL. PG&E Answer at 30, NRC Staff Answer at 33-36. PG&E argues that NRC regulations preclude any such contention, instead restricting Petitioners to challenging the Severe Accident Mitigation Alternatives (SAMA) analysis. Id. at 31. Otherwise, according to PG&E, Petitioners must file a waiver petition. Id. at 34. See also NRC Staff Answer at 36. However, as discussed above in Section 1.a and in Petitioners Hearing Request at 13-15, Commissioner Hanson committed the NRC to re-evaluate seismic risks as part of the license renewal review for DCPP in testimony before Congress. This commitment logically encompasses the environmental risks posed by extended operation of DCPP. Therefore, as required by Union of Concerned Scientists, 735 F.2d at 1438, this part of Contention 1 may not be ruled out of scope. And Petitioners have satisfied the NRCs requirement to state their dispute with the seismic core damage frequency (SCDF) estimate in the Environmental Report, and the basis for that estimate, by citing the specific portions of the Environmental Report with which they disagree and the basis for their disagreement. See Hearing Request at 7-13, Bird Declaration, ¶¶ 10-13, 14(6), 15, 30, 34.

Finally, PG&E contests the admissibility of Petitioners claim that the Environmental Report should weigh the costs and benefits of the no-action alternative, i.e., the alternative of not re-licensing DCPP. PG&E Answer at 35. According to PG&E, the Environmental Report already does this. Id. (citing Environmental Report §§ 2.6 and 7). But neither of these sections of the will be subject to the seismic review to which Chairman Hanson committed the NRC. At this point, however, they have no bearing on the admissibility of Petitioners Contention 1.

12 Environmental Report discusses the environmental or socioeconomic benefits of avoiding the potentially catastrophic effects of a seismically induced core damage accident. Therefore, this aspect of the contention is admissible.8

2. Contention 2 is admissible.

Petitioners Contention 2 asserts that:

PG&Es license renewal application does not include an adequate plan to monitor and manage the effects of aging due to embrittlement of the Unit 1 reactor pressure vessel (RPV) or an adequate time-limited aging analysis (TLAA), as required by 10 C.F.R.

§ 54.21.

Hearing Request at 16. As Petitioners assert in their Basis Statement, PG&Es proposed aging management program for the RPV relies heavily upon and perpetuates the preexisting and inadequate surveillance program that PG&E has used during the decades-old initial operating license period. Id. Petitioners rely for this assertion on the expert declaration of Dr. Digby Macdonald, which sets forth a set of fundamental deficiencies in PG&Es monitoring program, including its disregard of serious indications of embrittlement. Id. (citing Exhibit 3, Declaration of Digby Macdonald, Ph.D (March 4, 2024) (Macdonald Declaration)). As summarized in the contentions Basis Statement, [t]aking all of these deficiencies into account, Dr. Macdonald concludes that the NRC must reject PG&Es license renewal application because it relies on this outdated preexisting program without addressing or resolving multiple serious inadequacies.

Hearing Request at 17.

8 The NRC Staff contends that Petitioners have failed to meet the NRCs admissibility requirements for their challenge to the Environmental Report because Petitioners neither reference or dispute specific portions of the license renewal application, nor provide the supporting reasons for these disputes." NRC Staff Answer at 22. This claim is so patently incorrect as to suggest that the Staff did not read Contention 1 or Dr. Birds declaration. Contrary to the Staffs argument, Petitioners cite relevant sections of the Environmental Report in exacting detail, providing specific explanations of the reasons for each disagreement with PG&Es conclusions and the significance of the disagreement.

13 PG&E argues that Contention 2 fails to demonstrate a genuine and material dispute with PG&E because it does not engage with the regulatory requirements or explain, in any details, its theory on how any particular portion of the Safety Application allegedly fails to satisfy those requirements. PG&E Answer at 37 (emphasis in original). See also NRC Staff Answer at 39-40.

But in arguing against admissibility, it is in fact PG&E and the Staff who fail to engage the specific assertions of Petitioners expert, Dr. Macdonald.

PG&E argues, for example, that Dr. Macdonalds Scientific Analysis in Section V of his Declaration does not mention, reference, or analyze any specific LRA content or any license renewal requirement. PG&E Answer at 43 (emphasis in original). PG&E also claims that Petitioners have just refer[red] generally to voluminous documents. PG&E Answer at 41 (quoting Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 N.R.C. 195, 204 (2003)). See also NRC Staff Answer at 41 (asserting that Petitioners simply incorporate massive documents by reference). But these claims are not borne out by any reasonable reading of Dr. Macdonalds Declaration. PG&E simply disregards the fact that in Section IV of his Declaration, Dr.

Macdonald provides specific and detailed quotations from PG&Es license renewal application (LRA) that demonstrate reliance by the LRA on previous results of PG&Es reactor pressure vessel (RPV) surveillance program for its time-limited aging analyses (TLAAs). See id., ¶¶ 12-18. Dr. Macdonald also cites specific portions of the LRA to demonstrate that PG&E implicitly relies on deadlines in its current operating license for withdrawal of surveillance Capsule B and the conduct of ultrasonic testing, without explicitly setting new deadlines as part of the license renewal application. Id., ¶¶ 14, 16. Thus, Dr. Macdonald documents his observation that:

[T]he LRA incorporates and depends heavily on previous tests and analyses of RPV embrittlement at DCPP and other reactors for its conclusion that (a) the Unit 1 RPV is

14 entering the period of license renewal in a reasonably safe condition that complies with NRC regulations and (b) its condition can be adequately managed throughout the license renewal term.

Macdonald Declaration, ¶ 19. As Dr. Macdonald further attests, PG&Es conclusions in these sections of the LRA are not justified because PG&E has failed to demonstrate that the Unit 1 RPV is safe to operate in the current license term, let alone a renewal term. In support of his expert opinion, in ¶¶ 19-21, Dr. Macdonald summarizes and cross-references a previous declaration evaluating PG&Es current RPV monitoring program: Declaration of Digby Macdonald, Ph.D in Support of Hearing Request and Request for Emergency Order by San Luis Obispo Mothers for Peace and Friends of the Earth (Sept. 14, 2023) (9/14/23 Declaration)

(NRC Accession No. ML23257A302). These deficiencies include PG&Es inexplicable and gravely concerning decision to discard surveillance data showing that the Unit RPV would approach the NRCs screening limit for embrittlement at the end of its current operating life (¶¶ 19.a and 19.b), substitution of data from other reactors without applying a larger error band (¶ 19.c), failing to speed up the RPV monitoring schedule to get a better sense of its condition (¶¶ 19.d and 19.f), and unreasonable extending the schedule for ultrasound testing of the beltline region (¶¶ 19.e, 19.f, and 19.g). These explicitly-stated deficiencies support Dr. Macdonalds conclusion that:

[T]he NRC lacks a reasonable basis to approve PG&Es license renewal application.

Unless 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.

Id., ¶ 21.

With these specific and well-supported statements, Dr. Macdonalds Declaration demonstrates that specific portions of PG&Es LRA (i.e., Safety Application) depend on an RPV monitoring program that is fundamentally inadequate to support that reliance and therefore

15 are, in [his] professional judgment, deficient. Entergy Nuclear Operations, Inc. (Indian Point, Units 1 and 2), LBP-08-13, 68 N.R.C. 43, 131 (2008) (Indian Point). Therefore, Petitioners have more than sufficiently raised a genuine issue to be resolved at an evidentiary hearing. Id.

Finally, PG&E argues that Dr. Macdonalds criticisms of PG&Es current RPV monitoring program concern the adequacy of the current licensing basis for Unit 1 and therefore take Contention 2 beyond the limited scope of this license renewal proceeding. PG&E Answer at 44, 47-48. See also NRC Staff Answer at 39, 42-43. As discussed above, however, Dr.

Macdonald has established that the LRA depends on the results of the current RPV surveillance program and related analyses for its assertions that the Unit 1 RPV can be adequately managed during the license renewal term. As in Indian Point, Petitioners have lawfully based their contention on serious embrittlement issues that are not adequately addressed in [the licensees]

LRA. Id., 68 N.R.C. at 131.

Based on the foregoing, PG&Es attempts to discredit and disregard Dr. Mcdonalds expert conclusions are baseless and unfounded. Petitioners Contention 2 raises a genuine dispute that is abundantly within the scope of this license renewal proceeding, and is therefore admissible.

3. Contention 3 is admissible.

Petitioners Contention 3 asserts:

The NRC may not approve renewal of PG&Es operating licenses for DCPP because PG&E has not demonstrated compliance with the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451, et seq. For the same reason, PG&Es Environmental Report also fails to satisfy the requirements of NRCs own regulations mandating the content of environmental reports.

Hearing Request at 18 (footnote omitted). In support of the contention Petitioners attached a letter from the California Coastal Commission (CCC) to PG&E withholding approval of PG&Es Coastal Zone Consistency Certification (Consistency Certification) pending

16 resolution of a set of deficiencies identified by the CCC. Exhibit 4, Letter from Tom Luster, CCC, to Tom Jones, PG&E re: Pacific Gas & Electric Companys Requested Nuclear Regulatory Commission License Renewal for Diablo Canyon Power Plant, San Luis Obispo County - Incomplete Consistency Certification at 3-8 (Dec. 7, 2023) (CCC Letter). In addition to state approval of its Consistency Certification, PG&E may be required to obtain one or more coastal development permits (CDPs). Hearing Request at 19 (citing Cal. Public Resources Code § 30600).

PG&E concedes that as a general matter, there is no dispute that some form of CZMA concurrence is required before the NRC can approve the LRA. PG&E Answer at 52.9 But PG&E contends that Petitioners need to explain why that concurrence purportedly is required now, or why the absence of such concurrence at this preliminary stage renders the LRA deficient in any way. Id. (emphasis in original). PG&Es argument flies in the face of NRC regulations requiring exactly what Petitioners are attempting to do here: that contentions must be raised at the earliest possible opportunity. See, e.g., 10 C.F.R. § 2.309(c).10 Moreover, because PG&Es 9 As PG&E recognizes, the CZMA allows the NRC to approve the LRA even without state concurrence - but only under some circumstances, id. (emphasis in original). As provided by CZMA § 307(c)(3)(A):

No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary [of the Department of Commerce], on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security.

16 U.S.C. § 1456(c)(3)(A). No such circumstances exist here.

10 10 C.F.R. § 2.309(c)(1) provides:

Filings after the deadline; submission of hearing request, intervention petition, or motion for leave to file new or amended contentions(1) Determination by presiding officer.

Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section [i.e., the deadline for

17 entire LRA is being offered for a hearing now, there is nothing preliminary about this stage of the proceeding for purposes of filing a timely hearing request. Petitioners properly make this contention because it is evident now that PG&E lacks an essential prerequisite for license renewal (i.e., the States concurrence with its CZMA certification). Indeed, under 10 C.F.R. § 2.309(c), there can be no doubt that if Petitioners waited until some future time to submit this contention, it would be vulnerable to rejection for lack of timeliness.11 PG&E cannot have it both ways. The contention is both timely and admissible.

PG&E and the Staff also rely on an inapplicable case for the proposition that Contention 3 is inadmissible. PG&E Answer at 52, NRC Staff Answer at 48. In Exelon Nuclear Texas Holdings (Victoria County Station Site), LBP-11-16, 73 N.R.C. 645 (2011) (Victoria), the ASLB found inadmissible a contention that a license applicant for an Part 52 early site permit (ESP) had failed to comply with the CZMA because the application did not include the required determination that the proposed activity is consistent with the Texas Coastal Management Program. 73 N.R.C. at 704. The ASLB ruled that the contention was mooted initial hearing requests] will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

(emphasis added in subsections (i), (ii), and (iii)).

11 PG&E cites the CCC Letter for the proposition that a six-month period for the CCCs review of its Consistency Certification has not yet started. PG&E Answer at 52 and note 226. But that does not constitute grounds to reject the contention. If the States review results in its approval of PG&Es Consistency Certification, then PG&E can move to dismiss the contention as moot.

18 when the applicant, Exelon Nuclear Texas Holdings (Exelon), submitted a consistency certification. 73 N.R.C. at 705.

The circumstances of Victoria differ from these circumstances in the key respects that in Victoria, (a) Exelon had not filed a consistency certification with the NRC at all because it did not consider the CZMA to be applicable; and (b) despite the confusing language of the statement of TSEPs contention, the missing certification was the actual subject of the contention.12 The petitioner, Texans for a Sound Energy Policy (TSEP), challenged Exelons failure to submit a consistency certification as follows:

The Exelon application does not include any certification that the proposed activity complies with and will be conducted in a manner consistent with the Texas Coastal Management Program. The Exelon application does not include the necessary data and information required by 15 C.F.R. § 930.57(a). The Exelon application does not demonstrate that the activity will be consistent with the enforceable policies of the Texas Coastal Management Program required by 15 C.F.R. § 930.58(a)(3).

Texans for a Sound Energy Policys Hearing Request and Contentions (Jan. 24, 2011) (NRC ADAMS Accession No. ML110240695) (footnote omitted).

When Exelon submitted a consistency certification a day after TSEP filed its hearing request, TSEP agreed that is contention had been mooted. 73 N.R.C. at 705 n.372. Therefore, the ASLB also dismissed it as moot contention of omission Id.

In this proceeding, in contrast to Victoria, PG&E has submitted a consistency certification to the NRC but the CCC has found it inadequate to support approval. See Exhibit

4. Petitioners are simply contending that PG&E must obtain state approval of its Consistency 12 As the ASLB noted, while the statement of the petitioners contention in Victoria faulted the license application for the lack of a consistency determination by the state, the basis statement asserted that the Environmental Report violated the CZMA because it does not include any certification of compliance with [the state law implementing the CZMA].

73 N.R.C. at 705 n. 367.

19 Certification before it can obtain license renewal. Unlike TSEP in the Victoria ESP proceeding, Petitioners are not confusing any CZMA certification with a state consistency decision. And while TSEP stated that it would review Exelons consistency certification and take further action as needed, it appears the issue was mooted in 2012 by Exelons withdrawal of the ESP application. See Letter from Marilyn C. Kray, Exelon, to NRC re: Exelon Nuclear Texas Holdings, LLC Victoria County Station Early Site Permit Application Request for Withdrawal of Early Site Permit Application NRC Docket No.52-042 (Aug. 28, 2012) (NRC Accession No. ML12241A303).

Finally, both PG&E and the Staff contend that Petitioners have not demonstrated a violation of NRC regulation 10 C.F.R. § 51.45(d) because the regulation does not require PG&E to do more than report on the status of its CZMA certification. PG&E Answer at 53, NRC Staff Answer at 46-47. Petitioners do not contest this argument and hereby withdraw the portion of the contention asserting a violation of 10 C.F.R. § 51.45(d). However, Petitioners continue to advance the timeliness and admissibility of the contention for the portion asserting that the LRA does not satisfy the CZMA because it lacks state approval of its Consistency Certification.

20 III.

CONCLUSION For the foregoing reasons, the ASLB should find that Petitioners have standing and admit their contentions.

Respectfully submitted,

__/signed electronically by/___

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel to San Luis Obispo Mothers for Peace

__/signed electronically by/___

Hallie Templeton Friends of the Earth 1101 15th Street, 11th Floor Washington, DC 20005 434-326-4647 htempleton@foe.org Counsel to Friends of the Earth

__/signed electronically by/___

Caroline Leary Environmental Working Group 1250 I St N.W.

Washington, DC 20005 202-667-6982 cleary@ewg.org Counsel to Environmental Working Group April 5, 2024

21 CERTIFICATE OF SERVICE I certify that on April 5, 2024, I served the foregoing REPLY BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH AND ENVIRONMENTAL WORKING GROUP TO OPPOSITIONS TO REQUEST FOR HEARING ON PACIFIC GAS AND ELECTRIC COMPANYS LICENSE RENEWAL APPLICATION FOR THE DIABLO CANYON NUCLEAR PLANT on the ASLB and the parties to this proceeding by posting it on the NRCs Electronic Information Exchange.

__/signed electronically by/___

Caroline Leary

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