ML24141A147
| ML24141A147 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 05/17/2024 |
| From: | Andrew Averbach, Kim T, Eric Michel, Richmond B NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | US Federal Judiciary, Court of Appeals, 9th Circuit |
| References | |
| Case: 23-3884, DktEntry: 30.1 | |
| Download: ML24141A147 (1) | |
Text
No. 23-3884 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SAN LUIS OBISPO MOTHERS FOR PEACE, and FRIENDS OF THE EARTH, Petitioners,
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION, and THE UNITED STATES OF AMERICA, Respondents,
and
PACIFIC GAS & ELECTRIC COMPANY,
Intervenor.
On Petition for Review of an Order of the U.S. Nuclear Regulatory Commission FEDERAL RESPONDENTS ANSWERING BRIEF
TODD KIM ANDREW P. AVERBACH Assistant Attorney General Solicitor BENJAMIN W. RICHMOND ERIC V. MICHEL Attorney Senior Attorney Environmental and Natural Office of the General Counsel Resources Division U.S. Nuclear Regulatory U.S. Department of Justice Commission Benjamin.Richmond@usdoj.gov Eric.Michel2@nrc.gov (202) 514 -3977 (301) 415 -0932
TABLE OF CONTENTS TABLE OF AUTHORITIES.................................................................... iii GLOSSARY............................................................................................ viii INTRODUCTION...................................................................................... 1 JURISDICTIONAL STATEMENT........................................................... 3 STATEMENT OF ISSUES....................................................................... 5 PERTINENT STATUTES AND REGULATIONS................................... 5 STATEMENT OF THE CASE.................................................................. 6 I. Statutory and Regulatory Background............................................ 6 A. Licensing of Nuclear Power Reactors............................................ 6 B. Reactor Vessel Material Surveillance Program............................ 7 C. Statutes and Regulations Governing NRC Hearings.................. 11 D. Authority of the NRC Secretary.................................................. 12 E. Section 2.206 Petitions................................................................. 14 II. Factual Background....................................................................... 15 A. Diablo Canyon Nuclear Power Plant........................................... 15 B. PG&Es Request for Approval to Change the Schedule for the Withdrawal of Capsule B.............................................. 17 C. NRC Approval of the Schedule Change....................................... 19 D. Petitioners Hearing Request and the Denial Order................... 21
SUMMARY
OF ARGUMENT................................................................. 25 STANDARD OF REVIEW...................................................................... 28 ARGUMENT........................................................................................... 29 I. NRC correctly concluded that Petitioners were not entitled to a hearing..................................................................................... 29 A. The Secretary explained in the Denial Order why the agency action was not a license amendment............................... 29 B. Petitioners effective amendment argument contradicted the facts before the agency and did not warrant further consideration................................................................................ 34 C. Petitioners arguments reinforce the consistency and reasonableness of NRCs decision................................................ 38 II. The Court lacks jurisdiction to review or vacate additional NRC decisions preceding the Denial Order................................... 40 III. The Secretary reasonably referred Petitioners immediate health and safety concerns to the appropriate agency process..... 42 IV. If the Court rules against NRC, remand for the agency to more fully explain or reconsider the Denial Order is the only appropriate remedy........................................................................ 45 CONCLUSION........................................................................................ 46
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TABLE OF AUTHORITIES
Cases
Cal. Assn of the Physically Handicapped, Inc. v. FCC, 833 F.2d 1333 (9th Cir. 1987)........................................................ 41-42
Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995)................................................................. 31
DHS v. Regents of the Univ. of Cal.,
591 U.S. 1 (2020)................................................................................. 45
FCC v. Prometheus Radio Project, 592 U.S. 414 (2021)............................................................................. 29
Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985).......................................................................... 4,14
Gill v. Dept of Justice, 913 F.3d 1179 (9th Cir. 2019)............................................................. 37
Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993)............................................................................. 40
Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017).......................................................... 45-46
In re Three Mile Island Alert, Inc.,
771 F.2d 720 (3d Cir. 1985)................................................................ 30
Interstate Com. Comm'n v. Bhd. of Locomotive Eng'rs,
482 U.S. 270 (1987)............................................................................. 28
- iii -
Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995)................................... 12, 30-31, 37, 43-44
Massachusetts v. NRC, 878 F.2d 1516 (1st Cir. 1989)........................................................ 30-31
Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983)......................................................................... 29, 37
Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015)............................................................... 39
San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986)............................................................... 15
San Luis Obispo Mothers for Peace v. NRC No.23-852, 2024 WL 1846133 (9th Cir. Apr. 29, 2024)............ 4, 15-16
Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988)............................................................... 12
Wide Voice, LLC v. FCC, 61 F.4th 1018 (9th Cir. 2023)............................................................. 29
- iv -
Statutes
Administrative Orders Review Act (Hobbs Act) 28 U.S.C. § 2342............................................................ 3, 12, 41, 45 28 U.S.C. § 2344...................................................................... 4-5, 41
Administrative Procedure Act 5 U.S.C. § 558................................................................................. 16 5 U.S.C. § 706............................................................................ 28-29
Atomic Energy Act of 1954, as amended 42 U.S.C. § 2014............................................................................... 6 42 U.S.C. § 2133...................................................................... 6-7, 41 42 U.S.C. § 2201.............................................................................. 6 42 U.S.C. § 2232............................................................................... 7 42 U.S.C. § 2233............................................................................... 7 42 U.S.C. § 2239............................................... 3-4, 11-12, 30, 41, 44
Energy Reorganization Act of 1974 42 U.S.C. § 5841..................................................................... 4, 6, 13
Government in the Sunshine Act 5 U.S.C. § 552b............................................................................... 13
Reorganization Plan No. 1 of 1980 5 U.S.C. app.................................................................................... 13
Regulations
10 C.F.R. § 1.25.........................................................................................13 10 C.F.R. § 2.105.........................................................................................7 10 C.F.R. § 2.206......................................................... 14, 23-24, 28, 43-4 4 10 C.F.R. § 2.309............................................................................... 12, 46 10 C.F.R. § 2.346............................................................... 13-14, 23-24, 33 10 C.F.R. § 50.34..................................................................................... 19
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10 C.F.R. § 50.36....................................................................................... 7 10 C.F.R. § 50.57....................................................................................... 7 10 C.F.R. § 50.59..................................................................................... 19 10 C.F.R. § 50.61....................................................................................... 8 10 C.F.R. § 50.61a..................................................................................... 8 10 C.F.R. § 50.71..................................................................................... 19 10 C.F.R. § 50.90....................................................................................... 7 10 C.F.R. § 50.91....................................................................................... 7 10 C.F.R. § 50.92..................................................................................... 41 10 C.F.R. Part 50, Appendix G.................................................................. 9 10 C.F.R. Part 50, Appendix H......... 7-11, 17 -18, 20, 23, 26, 31-35, 37-38 10 C.F.R. § 54.29....................................................................................... 6 10 C.F.R. § 54.31....................................................................................... 6
Commission Orders
Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1),
44 N.R.C. 315 (1996) (1996 WL 813246).......................... 11, 24, 30, 32
Entergy Nuclear Operations (Palisades Nuclear Plant),
82 N.R.C. 310 (2015) (2015 WL 13049820).......................................... 8
Fla. Power & Light Co. (St. Lucie Plant, Unit 2),
80 N.R.C. 167 (2014) (2014 WL 7331736)..................................... 36-37
Federal Register Notices
Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562 (Aug. 3, 2012)......................................................1 4
Applications and Amendments to Facility Operating Licenses Involving No Significant Hazards Considerations, 71 Fed. Reg. 46,929 (Aug. 15, 2006)....................................................36
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License Renewal Application; Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, 88 Fed. Reg. 87,817 (Dec. 19, 2023).................................................... 16
Notice of Acceptance for Docketing and Notice of Opportunity for Hearing Pacific Gas & Electric Company, Diablo Canyon Nuclear Power
- Plant, 75 Fed. Reg. 3493 (Jan. 21, 2010)....................................................... 15
Pacific Gas and Electric Company; Diablo Canyon Power Plant, 88 Fed. Reg. 14,395 (Mar. 8, 2023)..................................................... 16
Pacific Gas and Electric Company; Establishment of Atomic Safety and Licensing Board, 89 Fed. Reg. 18,443 (Mar. 13, 2024)................................................... 16
Reactor Vessel Material Surveillance Program, 85 Fed. Reg. 62,199 (Oct. 2, 2020)................................................... 7-1 1
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GLOSSARY
ASTM American Society for Testing and Materials
ER Petitioners Excerpts of Record
NRC Nuclear Regulatory Commission
PG&E Pacific Gas & Electric Company
SER Respondents Supplemental Excerpts of Record
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INTRODUCTION
Pacific Gas & Electric Company (PG&E) operates two nuclear
power reactor units at the Diablo Canyon Power Plant pursuant to
licenses issued by the Nuclear Regulatory Commission (NRC). In May
2023, as required by NRC regulations, PG&E sought the NRCs prior
approval before scheduling the removal of a particular surveillance
capsule (Capsule B) from one of its reactors during an upcoming
refueling outage. All power reactor licensees are required to place such
capsules inside their reactor vessels so that they can be periodically
withdrawn and tested to provide data on the vessels structural
integrity. The NRC approved this request in July 2023, and in doing so
it noted that (1) PG&E had already withdrawn and tested all the
capsules required by NRC regulations and its license; and (2) the
purpose of PG&Es request to withdraw Capsule B was to obtain data
that could support PG&Es then-forthcoming license renewal
application.
Eight weeks later, the NRC received an unsolicited hearing
request from San Luis Obispo Mothers for Peace and Friends of the
Earth (Petitioners), two organizations representing members with
- 1-concerns over the safety of Diablo Canyon Power Plant. Petitioners
requested a hearing because the NRCs approval allegedly constituted
an amendment of PG&Es license. Although the NRC had approved
PG&Es plans to withdraw Capsule B at the next available opportunity,
Petitioners attacked the decision as an unlawful extension of the
capsule's removal schedule, based on their theory that PG&E should
have been required to remove it years ago. The NRC summarily denied
the request because the July 2023 approval, on its face, did not amend
PG&Es license and thus no opportunity for a hearing was triggered.
Petitioners now challenge the NRCs denial of their hearing request (the
Denial Order).
The record demonstrates both the correctness and reasonableness
of the NRCs decision. On appeal, Petitioners fixate not on the Denial
Order that is under review, but rather on a series of separate NRC
decisions taken over the last fifteen years that allegedly violate a
license condition that only Petitioners contend exists. These prior
decisions were irrelevant to the NRCs 2023 decision and, in any event,
the Court lacks jurisdiction to review them because the available
window to challenge them has long ago closed. Even if the Court
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considers Petitioners untimely arguments, they only affirm the
reasonableness of the NRCs denial of Petitioners hearing request and
demonstrate that the agency has been taking the same consistent
position since 2008. This Court should deny the Petition for Review,
which plainly demonstrates that Petitioners are attempting to use the
most recent NRC decision involving this reactora decision that
approves the withdrawal of the surveillance capsule that Petitioners
demand be withdrawn as a vehicle to litigate the preceding
decade-plus of NRC oversight.
JURISDICTIONAL STATEMENT
This Court has subject -matter jurisdiction, pursuant to the
Administrative Orders Review Act (also known as the Hobbs Act), 28
U.S.C. § 2342, to review the Denial Order. 1-ER-003.
The Hobbs Act vests exclusive jurisdiction in the federal courts of
appeals to review and determine the validity of any NRC final order
entered into a proceeding described in Section 189(a) of the Atomic
Energy Act.1 28 U.S.C. § 2342(4); 42 U.S.C. § 2239(a), (b). This includes,
1 The Hobbs Act still refers to final orders of the Atomic Energy Commission, the NRCs predecessor. The Energy Reorganization Act of
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as relevant here, final orders in any proceeding... for the granting,
suspending, revoking, or amending of any license. 42 U.S.C.
§ 2239(a)(1)(A). Although the NRC action being challenged did not
constitute a license amendment (see infra, pp. 29-3 4), jurisdiction under
the Hobbs Act is to be construed broadly to encompass orders that are
preliminary, ancillary, or incidental to the core issue of a licens ing
proceeding. San Luis Obispo Mothers for Peace v. NRC, No.23-852,
2024 WL 1846133 at *8 (9th Cir. Apr. 29, 2024) (citing Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 743 (1985)). The Denial Order falls
within this broad and liberally interpreted grant of jurisdiction, id.,
because it denied Petitioners claim that the NRC had amended PG&Es
license for Unit 1, as discussed below.
The Petition for Review of the Denial Order is timely because it
was filed on November 30, 2023, within 60 days of the Denial Order,
which was issued on October 2, 2023. See 28 U.S.C. § 2344.
1974 abolished the Atomic Energy Commission and transferred all licensing and related regulatory functions to the newly created NRC.
42 U.S.C. § 5841(a), (f).
- 4 -
To the extent Petitioners seek this Courts review of other NRC
decisions dating back to 2008, see Brief at 7-8, this Court lacks
jurisdiction to review those orders because Petitioners failed to
challenge those decisions within 60 days of issuance, as required by the
Hobbs Act. 28 U.S.C. § 2344; see infra pp. 40-42.
STATEMENT OF ISSUES
- 1. Did the NRC correctly deny Petitioners hearing request
because the action Petitioners sought to challenge was, both on its face
and under applicable Commission precedent, not a license amendment?
- 2. Does this Court have jurisdiction under the Hobbs Act to
review additional NRC actions taken from 2008 to 2012?
PERTINENT STATUTES AND REGULATIONS
Pertinent statutes and regulations are included in an addendum
filed with this brief.
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STATEMENT OF THE CASE
I. Statutory and Regulatory Background
A. Licensing of Nuclear Power Reactors
The NRC is an independent health and safety regulatory
commission tasked by Congress to license and regulate the civilian use
of radioactive materials.2 See 42 U.S.C. §§ 2201(b), 5841(a)(1), (f). This
authority includes the licensing and regulation of commercial nuclear
power reactors, which are referred to in the Atomic Energy Act as
utilization facilities. 42 U.S.C. §§ 2014(cc), 2133. The Atomic Energy
Act empowers the NRC to issue licenses to operate commercial nuclear
power reactors for specified terms not to exceed forty years. Id.
§ 2133(c). These licenses can be renewed for additional terms not to
exceed twenty years if the applicable standards in NRC regulations are
met. 10 C.F.R. §§ 54.29, 54.31.
The NRC may issue the initial license to operate a nuclear power
reactor upon finding that there is reasonable assurance that the
2 As used herein, the term NRC refers generically to the agency, while the term Commission refers to the collegial body of presidential appointees, currently comprised of four members, that oversees the agency.
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applicant can operate the reactor without endangering the health and
safety of the public, and upon making a determination that issu ing the
license would not be inimical to the common defense and security or to
the health and safety of the public. 42 U.S.C. § 2133(b), (d); 10 C.F.R.
§ 50.57(a). Each operating license contains such terms and conditions as
the Commission may require to effectuate these standards. 42 U.S.C.
§ 2233. The license also includes technical specifications that establish
safety limits and other operational, design, and administrative controls
governing the operation of the reactor. See id. § 2232(a); 10 C.F.R.
§ 50.36. To amend the terms, conditions, or technical specifications of
an operating license, the licensee must file an application with the NRC
describing the desired changes. 10 C.F.R. § 50.90. The NRC publishes
these applications in the Federal Register. Id. §§ 2.105(a), 50.91.
B. Reactor Vessel Material Surveillance Program
NRC regulations require power reactor licensees to monitor the
structural integrity of the reactor vessel, which is the cylindrical steel
container that surrounds a nuclear reactor and creates a containment
barrier for the radioactive byproducts within. 10 C.F.R. Part 50,
Appendix H (Appendix H); see also Reactor Vessel Material Surveillance
- 7 -
Program, 85 Fed. Reg. 62,199, 62,200 (Oct. 2, 2020) (describing the
structure and characteristics of the reactor vessel). The vessel also
provides a containment area surrounding the nuclear reactor that can
be flooded in the event of an accident to maintain cooling of the reactor
core. Id. at 62,200.
The material properties of a reactor vessel change over time due to
heat and irradiation from neutrons released by nuclear fission. Id. This
process can decrease the fracture toughness of the reactor vessel and
render the reactor vessel vulnerable to fracture in an accident scenario
where the vessel is rapidly cooled. See Entergy Nuclear Operations
(Palisades Nuclear Plant), 82 N.R.C. 310, 311-12 (2015) (2015 WL
13049820) (describing pressurized thermal shock events). NRC
regulations establish minimum criteria that licensees must satisfy to
demonstrate adequate protection against such events. Id. at 312-13 ; 10
C.F.R. §§ 50.61, 50.61a. Licensees obtain data concerning the fracture
toughness properties of an individual reactor vessel through the
Reactor Vessel Material Surveillance Program, required by Appendix
H. This program is designed not only to examine the current status of
reactor vessel material properties but also to predict the changes in
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these properties resulting from the cumulative effects of neutron
irradiation. 85 Fed. Reg. at 62,201.
Appendix H requires licensees to obtain reactor vessel data via
specimens that are placed into surveillance capsules, which are
inserted into the reactor and withdrawn periodically. Appendix H, § I.
The specimens are made from the same material as the reactor vessel
and are placed near the inside wall of the vessels beltline region.3 Id.,
§ III.B.2. The surveillance capsules are then exposed to the same
operating conditions as the reactor vessel. Because the surveillance
capsules may be physically located closer to the reactor core than the
inner diameter of the vessel itself, the specimens within these capsules
are generally exposed to higher neutron irradiation levels than those
experienced by the reactor vessel and can be used to provide insight to
the future condition of the reactor vessel. 85 Fed. Reg. at 62,201.
The design of a licensees surveillance program the number of
capsules, their placement within the vessel, when they should be
3 The beltline of the reactor vessel refers to the region that directly surrounds the reactor core and that is predicted to experience the most significant neutron radiation damage. 10 C.F.R. Part 50, Appendix G,
§ II.F.
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withdrawn, and procedures for testing the specimens must meet
industry standards published by the American Society for Testing and
Materials (ASTM), which NRC has incorporated by reference into its
regulations. Appendix H, § I. Licensees must meet a specific
ASTM E 185 standard, which varies based on the purchase date of the
reactor vessel. The default ASTM standard is ASTM E 185-82 (i.e., the
standard in effect in 1982), Standard Practice for Conducting
Surveillance Tests for Light-Water Cooled Nuclear Power Reactor
Vessels. Id. § III.B.1. But reactor vessels purchased in or before 1982
(such as those at Diablo Canyon Power Plant) may use an earlier ASTM
standard. Id.
Depending on which ASTM standard applies, a surveillance
program may use three, four, or five surveillance capsules during a
reactors initial forty-year licensed period of operation. 85 Fed. Reg. at
62,201. Licensees may also insert additional surveillance capsules
beyond the required amountreferred to as standby capsules that
can be used to provide supplemental data (for example, data that may
support a license renewal application by provid ing insight on the
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condition of the reactor vessel during an extended period of operation
beyond forty years ). Id.; see also 1 -ER-014.
The NRC approves a licensees reactor vessel material
surveillance program at the time the agency licenses the reactor, and
any proposed changes to the program schedule must be approved by the
NRC to confirm that the changes comply with the applicable ASTM
standard. Appendix H, § III.B.3; see also Cleveland Elec. Illuminating
Co. (Perry Nuclear Power Plant, Unit 1), 44 N.R.C. 315, 322 (1996)
(1996 WL 813246) (requiring any proposed schedule to be submitted
to the NRC for approval prior to implementation).
C. Statutes and Regulations Governing NRC Hearings
The Atomic Energy Act provides members of the public with the
opportunity to seek a hearing in connection with specific NRC
proceedings, including proceedings for the granting, suspending,
revoking, or amending of an NRC license. 42 U.S.C. § 2239(a)(1)(A). An
NRC action that alters the terms of a license in such a manner as to
permit a licensee to operate a facility in any greater capacity that [it]
had previously been allowed constitutes a license amendment for
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which a hearing opportunity must be made available. Kelle y v. Selin, 42
F.3d 1501, 1515 (6th Cir. 1995).
Relevant here, if the NRC amends a license, any person whose
interest may be affected by the proceeding may request a hearing. 42
U.S.C. § 2239(a). If such a person demonstrates that they have
administrative standing to participate and submits at least one
admissible contention (i.e., a specific statement that raises a genuine
dispute with the proposed action on a material issue of law or fact), the
NRC will grant that individual status as a party to the licensing
proceeding and hold a hearing. See 10 C.F.R. § 2.309(d), (f).
Only a final order entered in an NRC licensing proceeding,
which includes an order declining to admit a putative inter venor as a
party, is subject to judicial review. 28 U.S.C. § 2342(4); 42 U.S.C.
§ 2239(b); see, e.g.¸ Sierra Club v. NRC, 862 F.2d 222, 224-25 (9th Cir.
1988) (reviewing NRC final order denying intervention by a prospective
party in a license amendment proceeding).
D. Authority of the NRC Secretary
The Commission is a collegial decision -making body that issue s
orders through a majority vote at open meetings where at least a
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quorum of its members are present. See 42 U.S.C. § 5841(a)(1); 5 U.S.C.
§ 552b. To enhance the timeliness and efficiency of the Commissions
adjudicatory functions, the Commission has delegated limited authority
to the Secretary of the Commission to act on its behalf under certain
circumstances when litigants submit requests, motions, or other
documents to the Commission.4 10 C.F.R. § 2.346. This includes the
authority to deny hearing requests that fail to comply with procedural
pleading requirements and fail to set forth an arguable basis for
further proceedings. Id. § 2.346(h). The Secretary may also take certain
procedural actions and actions on other minor matters that lack
precedential or policy significance on behalf of the Commission. Id.
4 The Office of the Secretary provides management and support services to the Commission including, among other things, receiving and processing motions and pleadings filed with the Commission, issuing and serving adjudicatory orders on behalf of the Commission, and maintaining the agencys official adjudicatory dockets. See 10 C.F.R.
§ 1.25(g). The Secretary is an officer whose appointment and removal is subject to the approval of the Commission. Reorganization Plan No. 1 of 1980, § 1(b)(1), 5 U.S.C. App.
- 13 -
§ 2.346(j); Amendments to Adjudicatory Process Rules and Related
Requirements, 77 Fed. Reg. 46,562, 46,576 (Aug. 3, 2012).5
E. Section 2.206 Petitions
Requesting an adjudicatory hearing when the NRC is issuing or
modifying a license is not the exclusive means for an interested member
of the public to raise perceived safety concerns. Any person, at any time,
can petition the agency to institute a proceeding to modify, suspend, or
revoke a license, or for any other action as may be proper, by
submitting a request to the appropriate NRC official and set[ting] forth
the facts that constitute the basis for the request. 10 C.F.R. § 2.206(a).
Within a reasonable time, the NRC must either institute the requested
proceeding or provide the petitioner with a written denial. Id.
§ 2.206(b). A denial is a reviewable final order in the courts of appeals
under the Hobbs Act. See Lorion, 470 U.S. at 746.
5 The procedures governing the Commissions internal conduct of business require the Secretary to circulate draft orders to the Commission at least three business days (in most cases) prior to issuing the order under this delegated authority. These Internal Commission Procedures are publicly available at https://www.nrc.gov/about-nrc/policy-making/internal.html. See Chapter I, section 1.(e).
- 14 -
II. Factual Background
A. Diablo Canyon Nuclear Power Plant
PG&E is an electric utility that holds licenses to operate two
nuclear power reactor units a t the Diablo Canyon Power Plant, in San
Luis Obispo, California. With respect to Unit 1 (the only reactor
relevant here), PG&E obtained a construction permit in 1968, an
operating license to conduct low power testing in 1981, and a full power
operating license in 1984. See San Luis Obispo Mothers for Peace v.
NRC, 789 F.2d 26, 28 -30 (D.C. Cir. 1986) (describing licensing history of
Diablo Canyon Power Plant).
In 2009, PG&E submitted an application to the NRC to renew its
reactor licenses.6 But pursuant to a decision approved by the California
Public Utilities Commission, in 2018 PG&E withdrew that application
and instead began planning to retire the reactors upon the expiration of
the initial term of its licenses in November 2024 (Unit 1) and August
2025 (Unit 2). San Luis Obispo, 2024 WL 1846133 at *3 -4. In
6 Notice of Acceptance for Docketing and Notice of Opportunity for Hearing Pacific Gas & Electric Company, Diablo Canyon Nuclear Power Plant, 75 Fed. Reg. 3493 (Jan. 21, 2010).
- 15 -
September 2022, the California State Legislature enacted legislation
reversing this decision to retire Diablo Canyon, and PG&E accordingly
resumed its efforts to renew its licenses. Id. at *4; 2-ER -126. The
current license expiration date for Unit 1 remains November 2, 2024.
However, PG&E has submitted an application to renew the licenses for
both units,7 and PG&E is now considered in timely renewal status,
meaning its licenses will not be deemed to have expired until the NRC
takes final action on PG&Es renewal application.8 See San Luis Obispo,
2024 WL 1846133 at *3-4 (describing generally PG&Es initial license
renewal application, withdrawal, and renewed efforts following
Californias legislative reversal). The NRCs review of PG&Es license
renewal application is currently ongoing, including consideration of a
hearing request submitted by Petitioners and others.9
7 License Renewal Application; Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, 88 Fed. Reg. 87,817 (Dec. 19, 2023).
8 5 U.S.C. § 558(c); see Pacific Gas and Electric Company; Diablo Canyon Power Plant, 88 Fed. Reg. 14,395 (Mar. 8, 2023).
9 See Pacific Gas and Electric Company; Establishment of Atomic Safety and Licensing Board, 89 Fed. Reg. 18,443 (Mar. 13, 2024).
- 16 -
B. PG&Es Request for Approval to Change the Schedule for the Withdrawal of Capsule B
On May 15, 2023, PG&E submitted a request to the NRC,
pursuant to the agencys Appendix H regulations, seeking approval of a
revision to its previously approved schedule for withdrawing a
particular surveillance capsule (Capsule B) from Unit 1. 2-ER -125. In
the request, PG&E explained that, in 2012, NRC had approved PG&Es
planned withdrawal of Capsule B during a future anticipated refueling
outage. 2-ER -125. PG&E had intended to remove the capsule in 2022 in
order to obtain data that could support its then-pending application to
renew its licenses. 2-ER -125. However, PG&E did not remove Capsule B
as scheduled in 2022 because, by that time, PG&E had withdrawn its
license renewal application and was planning to retire the facility.
2-ER -126. Capsule B, which was only scheduled for removal to support
license renewal, was thus reclassified as a standby capsule and not
removed as originally planned. 2-ER-128.
Following Californias legislative reversal of the decision to retire
Diablo Canyon Power Plant, PG&E notified the NRC that it would
submit a new application for license renewal by the end of 2023.
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2-ER -126, 128. Consequently, PG&Es May 2023 request to the NRC
sought the agencys approval to once again schedule the removal of
Capsule B, either during a planned refueling outage in the fall of 2023
or the spring of 2025.10 2-ER -126. PG&E stated that removing Capsule
B during this timeframe would support data acquisition for the period
of extended operation that is, it would provide data that could be
included in a license renewal application to operate Diablo Canyon past
its initial forty-year license termconsistent with applicable NRC
guidance for such applications. 2-ER-129 -130.
In support of its request, PG&E identified ASTM E 185 -70 as
the applicable ASTM standard for Unit 1 and explained that the NRC
had informed PG&E in 2012 (when the agency last approved the
schedule to remove Capsule B) that the requirements of Appendix H
and ASTM E 185-70 regarding the initial license period (the first 40
10 PG&E requested a two-outage window to remove Capsule B based on prior difficulty removing the same capsule. 2-ER-129. PG&E was not successful in removing the capsule during the fall 2023 outage and plans to remove it during the spring 2025 outage when alternative means of accessing the capsule will be available. This information post-dates the order under review and is not part of the record of decision.
- 18 -
years of service for [Diablo Canyon Power Plant], Unit 1) have already
been met. 2-ER-128. That is, having already removed and tested the
three capsules required by the applicable ASTM standard, PG&E was
not required by NRC regulations or the Unit 1 license to remove or test
any additional capsules. PG&E also included an enclosure of a
marked-up excerpt from the plants updated final safety analysis report
for Unit 1, which confirmed Capsule Bs current status as a standby
capsule.11 2-ER -132.
C. NRC Approval of the Schedule Change
The NRC approved PG&Es request for a revision to the Capsule B
removal schedule on July 20, 2023 (Schedule Change Approval).
1-ER -009. In the Schedule Change Approval, the NRC acknowledged
11 An applicant for a license to operate a nuclear power reactor must include in their application a final safety analysis report, which is a document that describes the facility and provides safety analyses of its structures, systems, and components, in a ddition to other required technical information. See 10 C.F.R. § 50.34(b). This licensee-controlled document is required to be periodically updated to ensure its information is current and reflects any changes made to the facility or its procedures. Id. § 50.71(e). A licensee can make changes to the final safety analysis report without a license amendment so long as they do not change any technical specifications incorporated into the license, or the change does not involve certain unreviewed safety ques tions. See id.
§ 50.59(c).
- 19 -
that PG&E had already fulfilled its reactor vessel material
surveillance requirements for the initial forty-year license term for
Unit 1, and that PG&Es request was proactively addressing
surveillance data needs to support the submission of a license renewal
application. 1 -ER-009. As part of its approval, the NRC included a
safety evaluation that identified and assessed the applicable Appendix
H requirements. 1-ER -011.
The NRC confirmed in its safety evaluation that the applicable
ASTM standard for Diablo Canyon Unit 1 was ASTM E 185-70, which
recommends the withdrawal of three or more surveillance capsules at
specific times based on their estimated neutron fluence (the
cumulative number of neutrons passing through a given area over
time). 1-ER-013. The NRC noted that PG&E had already withdrawn
and tested three surveillance capsules at intervals consistent with the
applicable ASTM standard and that additional capsules are not needed
to satisfy the requirements of [Appendix H] and ASTM E 185 -70 for the
current operating license period. 1 -ER-013. The NRC ultimately
concluded that the withdrawal and testing of Capsule B supplements
the requirements of the reactor vessel material surveillance program for
- 20 -
the current license period, and that the withdrawal of the capsule
during the fall 2023 or spring 2025 outage would be consistent with
applicable NRC guidance for obtaining data relevant for a license
renewal application. 1-ER-014. The NRC approved PG&Es schedule for
removing Capsule B and noted that its approval made no conclusion
regarding the future use of the capsule in any future license renewal
application.12 1-ER -015.
D. Petitioners Hearing Request and the Denial Order
In September 2023, Petitioners submitted a request to the
Commission for a hearing on the NRCs decision to approve PG&Es
schedule for removing Capsule B (Hearing Request). 2-ER-036. In their
Hearing Request, Petitioners proffered two contentions, one alleging
that the NRCs decision posed an unacceptable risk to public health
and safety in violation of NRC regulations and the Atomic Energy Act,
and the other alleging that the NRC failed to comply with the National
Environmental Policy Act prior to approving PG&Es request.
2-ER -061-064.
12 At the time the NRC approved the schedule change, PG&E had not yet submitted a new license renewal application for Diablo Canyon.
- 21 -
Petitioners asserted that they were entitled to a hearing because
the NRCs July 2023 Schedule Change Approval was an effective
amendment of PG&Es license. 2 -ER-059. They argu ed that a 2006
amendment to the operating license for Diablo Canyon Unit 1 that
extended the term of the license by three years had also included an
implicit condition requiring the withdrawal of Capsule B during the
initial operating license term. 2-ER-055, 060. Petitioners pointed to no
such condition actually memorialized in PG&Es license, but instead
based this argument on language taken from the NRCs
contemporaneous safety evaluation of PG&Es request to extend its
license term. 2-ER-055. In that safety evaluation, the NRC described
PG&Es plans at the time to remove Capsule B in 2009. 2-ER- 055.
Petitioners further asserted that, beginning in 2008, PG&E and
the NRC pivoted and re -purposed Capsule B, abandoning the
requirement allegedly mandated by the 2006 l icense amendment and
stating instead that the capsule need not be removed. 2-ER -056, 057.
According to Petitioners, each time the NRC approved a PG&E request
to extend the schedule to withdraw Capsule Bin 2008, 2010, 2012,
and the most recent approval in 2023 such action was an effective
- 22 -
license amendment for which public notice and an opportunity for
hearing should be available. 2-ER -058, 060.
Petitioners also requested that the Commission order the
immediate shutdown of Unit 1 pending the completion of tests and
inspections of the reactor vessel. 2 -ER -065-066. The NRC staff and
PG&E each filed responses with the Secretary, arguing that the
shutdown request was effectively a 10 C.F.R. § 2.206 petition that
should be resolved under that established agency process. SER-4, 9.
On October 2, 2023, the NRC Secretary denied Petitioners
request and issued the Denial Order on behalf of the Commission,
pursuant to 10 C.F.R. § 2.346. 1-ER-003. With respect to the portion of
Petitioners request seeking a hearing, the Secretary determined that
the NRCs approval of the change to PG&Es withdrawal schedule, by
its own terms, does not amend or otherwise affect Diablo Canyons
current license and does not trigger an opportunity to request a
hearing, 1-ER-004. The Secretary explained that the July 2023
Schedule Change Approval plainly stated that additional capsules are
not needed to satisfy the requirements of [Appendix H] and ASTM E
185-70 for the current operating license period, and thus made clear
- 23 -
that the withdrawal of the capsule would only support a future license
renewal application. 1-ER-004. The Secretary also cited applicable
Commission precedent explaining that the schedule change did not
constitute a license amendment because it did not grant PG&E any
greater operating authority or otherwise alter the original terms of
the license. 1 -ER-004 (citing Perry, 44 N.R.C. at 326 (1996 WL
813246)). The Secretary accordingly denied Petitioners Hearing
Request pursuant to 10 C.F.R. § 2.346(h), which authorizes denial of a
hearing request where the request fails to comply with the
Commissions pleading requirements and fails to set forth an arguable
basis for further proceedings. 1-ER -005.
With respect to Petitioners additional request for the shutdown of
the Diablo Canyon Unit 1 reactor, the Secretary referred the Petition to
the NRCs Executive Director for Operations for consideration as a
request for action under 10 C.F.R. § 2.206. 1-ER-005.
Petitioners thereafter filed their Petition for Review of the Denial
Order in this Court, seeking review of the portion of the order denying
the Hearing Request. DktEntry 1.1 at 1-2.
- 24 -
SUMMARY
OF ARGUMENT
- 1. The Court should deny the Petition for Review because the NRCs
Denial Order was reasonable.
- a. The Denial Order correctly concluded that Petitioners were
not entitled to a hearing on the July 2023 Schedule Change Approval
and that Petitioners Hearing Request failed to set forth any arguable
basis for further proceedings. In the Denial Order, the Secretary
considered whether the Schedule Change Approval granted PG&E any
greater operating authority or otherwise altered the terms of PG&Es
license, which are the relevant factors in determining whether an NRC
action (regardless of label) constitutes a license amendment. The
Secretary quoted directly from the NRCs Schedule Change Approval, in
which the agency explained that PG&E was not required under the
terms of its current license to withdraw Capsule B, and the Secretary
properly concluded that granting permission to withdraw that capsule
did not provide the licensee with any greater operating authority than
its original license. The Secret ary also cited directly applicable
Commission precedent interpreting the relevant agency regulation
- 25 -
(Appendix H) that confirmed the approval in question was not a license
amendment.
- b. Petitioners assert that the Secretary failed to entertain their
argument that the NRCs approval was an effective amendment of
PG&Es license. Although the Secretary did not expressly rebut this
argument in the Denial Order, the argument flatly contradicted the
factual record that was before the agency. Petitioners alleged that the
NRC had implicitly created a license condition in 2006 requiring PG&E
to withdraw Capsule B in 2009, and that subsequent NRC -approved
extensions to PG&Es withdrawal schedule for Capsule B in 2008, 2010,
2012, and 2023 were in contravention of this alleged requirement. No
such license condition was ever created by the NRC and the factual
record before the Secretary clearly demonstrated the hollowness of this
theory. Given that it was readily discernible from the record that the
NRCs approval did no t amend PG&Es license, the Denial Orders
silence on this argument was reasonable.
- c. Petitioners present the same effective license amendment
theory to the Court, relying on NRC records and prior decisions that
were cited or referred to in their Hearing Request. But these documents
- 26 -
were irrelevant to the NRCs decision embodied in the Denial Order,
and in any event, they demonstrate the longstanding consistency of the
NRCs position concerning PG&Es compliance with its reactor material
surveillance program. These documents also confirm the untimeliness
of Petitioners complaint, which actually originates from a perceived
agency pivot that occurred in 2008. For the last fifteen years, the NRC
has repeatedly confirmed that PG&E is not required under its current
license for Unit 1 to remove this particular surveillance capsule, and
the NRCs 2023 decision maintaining this consistent position was not
arbitrary and capricious.
- 2. In addition to the Denial Order that is under review,
Petitioners ask the Court to review and vacate a series of allegedly
unlawful prior NRC decisions from 2008, 2010, and 2012. The Court
cannot review or vacate these orders because they are well outside the
60-day time period provided by the Hobbs Act for a party aggrieved to
seek judicial review, which is a jurisdictional limitation.
- 3. The Secretarys referral of the portion of the Hearing
Request seeking an immediate shutdown of the reactor, which
Petitioners are not challenging, demonstrates that the NRC is not
- 27 -
ignoring Petitioners asserted safety concerns or preventing Petitioners
from raising them. Rather, the NRC remains committed to considering
and responding to such concerns raised by members of the public
through the appropriate channels, including the agencys section 2.206
process and the ongoing Diablo Canyon license renewal proceeding in
which Petitioners are also currently participating.
- 4. If the Court does not deny the Petition for Review, the sole
appropriate remedy would be to remand the matter to the NRC to
either more fully explain or reconsider the Denial Order. The other
forms of relief sought by Petitioners, including vacatur of additional
prior NRC decisions or an order directing the NRC to grant Petitioners
an expedited hearing, are unavailable or improper in this case.
STANDARD OF REVIEW
When a petitioner challenges agency action under the Hobbs Act,
the familiar standards articulated in the Administrative Procedure Act,
5 U.S.C. § 706, govern judicial review. See Interstate Com. Comm'n v.
Bhd. of Locomotive Eng'rs, 482 U.S. 270, 282 (1987). The Court
evaluates whether the agencys decision is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.
- 28 -
5 U.S.C. § 706(2)(A); Wide Voice, LLC v. FCC, 61 F.4th 1018, 1024 (9th
Cir. 2023). This is a narrow, deferential standard in which the court is
not to substitute its judgment for that of the agency, but must consider
whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment. Id.
(citing Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)); see also FCC v. Prometheus Radio Project, 592 U.S.
414, 423 (2021) (under arbitrary and capricious standard of review, a
court simply ensure s that the agency has acted within a zone of
reasonableness and, in particular, has reasonably considered the
relevant issues and reasonably explained the decision).
ARGUMENT
I. NRC correctly concluded that Petitioners were not entitled to a hearing.
The Court should deny the Petition for Review because the record
amply demonstrates that the NRCs Denial Order was reasonable.
A. The Secretary explained in the Denial Order why the agency action was not a license amendment.
Contrary to Petitioners assertion that their Hearing Request was
denied without a word of explanation (Brief at 35), the Denial Order
- 29 -
clearly explained that Petitioners were not entitled to a hearing because
the NRC action on which they sought a hearing, on its face, did not
amend PG&Es license for Unit 1. 1-ER-004.
An interested person may only request a hearing under the
Atomic Energy Act in an NRC proceeding for the granting, suspending,
revoking, or amending of any license. 4 2 U.S.C. § 2239(a). And as the
NRC has explained, actions that grant the licensee any greater
operating authority, or otherwise alter the original terms of the
license, constitute a license amendment. 1-ER -004; see Perry, 44
N.R.C. at 326 (1996 WL 813246). The courts of a ppeals have accordingly
held that NRC actions that permit a licensee to operate a facility in
any greater capacity that [it] had previously been allowed create an
opportunity for a hearing under 42 U.S.C. § 2239(a). Kelley, 42 F.3d at
1515; see Massachusetts v. NRC, 878 F.2d 1516, 1520 (1st Cir. 1989)
(holding that NRC actions did not amend license when the licensee has
no greater operating authority); In re Three Mile Island Alert, Inc., 771
F.2d 720, 729 (3d Cir. 1985) (rejecting argument that NRC amended
license when the licensee has no greater operating authority).
- 30 -
Here, in denying Petitioners Hearing Request, the Secretary
appropriately considered whether the Schedule Change Approval
grant[ed] the licensee any greater operating authority or otherwise
alter[ed] the original terms of the license, in order to determine
whether the NRC action constituted a license amendment. 1-ER-004 ;
see Kelley, 42 F.3d at 1515 (citing Massachusetts, 878 F.2d at 1520 -21 );
see also Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 295 (9th
Cir. 1995) ( the substance of the NRC action determines entitlement to
a hearing, not the particular label the NRC chooses to assign to its
action).
This decision resolved an assertion that was plainly resolvable
from the face of the Hearing Request. In making her determination, the
Secretary quoted directly from the Schedule Change Approval itself, in
which the NRC stated that PG&E was not required under the terms of
its current license to withdraw any more surveillance capsules in order
to comply with Appendix H or the applicable ASTM standard for Unit 1.
1-ER -004. Thus, on its face, the Schedule Change Approval did not
amend or otherwise affect PG&Es current license to operate Unit 1.
1-ER -004. Rather, the record before the Secretary reflected that PG&E
- 31 -
was seeking NRC approval to schedule the withdrawal of a surveillance
capsule that it was under no obligation to withdraw, notwithstanding
Petitioners unsupported assertion to the contrary (see infra pp. 34-37 ).
The Secretary also cited to d irectly applicable Commission
precedent that confirmed the July 2023 Schedule Change Approval did
not constitute a license amendment. 1-ER -004 (citing Perry, 44 N.R.C.
315 (1996 WL 813246)). In Perry, the Commission stated that the plain
language of Section II.B.3 of Appendix H requires licensees to submit
all proposed withdrawal schedule changes to the NRC for advance
verification that the withdrawal is consistent with the applicable ASTM
standard. Id. at 326. But the Commission also explained that not all
such approvals are de facto license amendments. Id. Rather, so long as
a proposed change to a withdrawal schedule continues to conform to the
applicable ASTM standard for that reactor, that change in schedule
will not permit the licensee to operate in any greater capacity than the
original license prescribes. Id. at 327-28. That is, the NRCs review of
an Appendix H schedule change does not alter the terms of the license
but rather enforces license requirements. Id. at 328 (emphasis in
original).
- 32 -
Here, both PG&E (which maintains the withdrawal schedule) and
the NRC (which approves the withdrawal schedule) confirmed that the
applicable version of the ASTM standard for Diablo Canyon Unit 1 was
ASTM E 185-70, which requires the withdrawal and testing of three or
more capsules. 1-ER-013 ; 2-ER-126. Since PG&E had already
withdrawn and tested three capsules, its request to change Capsule B
from an unscheduled standby capsule to an additional surveillance
capsule scheduled for withdrawal plainly was consistent with the
requirements of Appendix H and did not grant PG&E any greater
operating authority than its existing authority under the terms of its
current license. 1-ER-004. Just as in Perry, the NRCs Schedule Change
Approval confirmed that PG&Es proposed change in withdrawal
schedule continued to comply with Appendix H and the applicable
ASTM standard. Thus, the Secretary correctly confirmed the Schedule
Change Approval was not a license amendment. 1-ER-004.
In sum, the record demonstrates that the Denial Order was a
straightforward exercise of the Secretarys authority under 10 C.F.R.
§ 2.346(h). The Hearing Request failed to set forth an arguable basis
for further proceedings because (1 ) the NRCs Schedule Change
- 33 -
Approval, on its face, did not grant PG&E any greater operating
authority or otherwise alter the terms of its license; and (2) directly
applicable Commission precedent interpreting Appendix H foreclosed
Petitioners argument that the Schedule Change Approval was a license
amendment.
B. Petitioners effective amendment argument contradicted the facts before the agency and did not warrant further consider ation.
Petitioners assert that the NRC failed to entertain the argument
they presented to the agency in their Hearing Request, which was that
the NRCs July 2023 Schedule Change Approval effectively amended
PG&Es license and thus they should have been afforded an opportunity
for a hearing. Brief at 40; 2-ER -0 59. While the Secretary did not
expressly rebut this argument in the Denial Order, this argument flatly
contradicted the record and thus did not require further elaboration. As
explained below, Petitioners theory claimed that the NRC had
implicitly created a new legal obligation for PG&E in 2006 relating to
the withdrawal of Capsule Ba n obligation that was not memorialized
by the NRC or ever acknowledged by the agency in the ensuing
seventeen years.
- 34 -
In their Hearing Request, Petitioners asserted that the NRC had
changed PG&Es Reactor Vessel Material Surveillance Program in 2006
to require withdrawal and testing of four capsules from the Unit 1
reactor, rather than the three capsules required by Appendix H and the
applicable ASTM standard. 2-ER-060. Petitioners identified a 2006
NRC approval of a PG&E request to extend its license for Unit 1 a n
additional three years as the genesis for this alleged new license
condition. 2-ER -054. Petitioners excerpted a portion of the NRC s
approval of that request, highlighting language where the NRC
described PG&Es previously approved reactor surveillance capsule
withdrawal schedule and PG&Es plans to withdraw a fourth capsule
(Capsule B) in 2009. 2-ER -055. Petitioners asserted that because the
NRC relied on a four -capsule program when issuing this 2006
approval, the NRC created a new license requirement for PG&E to
withdraw that fourth capsule. 2-ER -056. Notably, however, Petitioners
in their Hearing Request did not point to any provision of the Diablo
Canyon license reflecting this alleged 17 -year -old license condition or
demonstrating its actual existence (nor can they since no such condition
- 35 -
exists).13 Rather, Petitioners relied on the conclusory, unsupported
assertion that withdrawal of a fourth capsule had now become part of
PG&Es license. 2 -ER -060.
The actual record before the Secretary reflected the opposite that
PG&Es current license for Unit 1 required no further capsules to be
withdrawn, a position the NRC had also taken the last time PG&E had
scheduled the withdrawal of Capsule B in 2012. 2-ER -126, 12 8. By
denying the Hearing Request, the Secretary reasonably exercised her
delegated authority and determined that the NRC need not expend the
resources to initiate an agency proceeding to scrutinize an argument
that flatly contradicted the facts before the agency. See, e.g., Fla. Power
& Light Co. (St. Lucie Plant, Unit 2), 80 N.R.C. 167, 175 (2014) (2014
WL 7331736) ([I]f a hearing could be invoked each time the NRC
engaged in oversight over or inquiry into plant conditions, the NRC's
13 In their Hearing Request, Petitioners themselves cited to the NRCs 2006 Federal Register notice announcing the approval of PG&Es license amendment request. 2-ER-056. Tellingly, this notice made no reference to any new license condition or new obligation for PG&E to remove an additional capsule. See Applications and Amendments to Facility Operating Licenses Involving No Significant Hazards Considerations, 71 Fed. Reg. 46,929, 46,945 (Aug. 15, 2006)).
- 36 -
administrative process could be brought to a virtual standstill.) (citing
Kelley, 42 F.3d at 1514). Such a hearing would involve reexamining
prior agency decisions dating back to 2006 to determine whether the
NRC had silently created the asserted license condition, a n undoubtedly
belated but also empty exercise given the multiple NRC decisions in the
ensuing nearly two decades reflecting the opposite. See, e.g., SER-18
(Each time PG&E has requested [a withdrawal schedule adjustment],
the NRC has concluded that the requirements of [Appendix H] and
ASTM E 185-70 have been satisfied.).
In sum, even if the Denial Order did not expressly address
Petitioners effective license amendment theory, the correctness of
NRCs denial decision is ultimately apparent from what the Secretary
did say, and the Court should uphold the decision on that basis. Gill v.
Dept of Justice, 913 F.3d 1179, 1187-88 (9th Cir. 2019) (court may
uphold a decision, even one of less than ideal clarity, if the agencys
path may reasonably be discerned (quoting Motor Vehicle, 463 U.S. at
43)).
- 37 -
C. Petitioners arguments reinforce the consistency and reasonableness of NRCs decision.
Petitioners present the same effective license amendment theory
to this Court. Brief at 37-38. In doing so Petitioners recount in detail
the history of PG&Es reactor surveillance program dating back to 1992
(Brief at 11-25), relying on NRC records that they cited or referenced in
their Hearing Request but were irrelevant to the NRCs issuance of the
Denial Order. These documents supplied by Petitioners only reinforce
the longstanding consistency of NRCs position with respect to PG&Es
obligations under its current license for Unit 1, and they further
demonstrate the untimeliness of Petitioners complaint.
As previously stated, supra pp. 34-3 6, Petitioners effective
amendment theory is predicated on their insistence that in 2006 the
NRC changed Unit 1 to a four -capsule program and imposed a condition
on the Unit 1 license requiring the removal of Capsule B by 2009. Brief
at 32; 2-ER-056. Petitioners themselves acknowledge that in 2008 the
first extension request the NRC received after allegedly creating this
license condition the NRC informed PG&E that it had already fulfilled
the requirements of Appendix H by removing and testing three
- 38 -
capsules. Brief at 20-21. The NRC repeated this confirmation in each
successive schedule change approval cited by Petitioners. Brief at 22,
24-25. Thus, even under Petitioners own theory, if the NRC had revised
PG&Es license to require removal of four capsules in 2006, the agency
unambiguously pivoted (Brief at 40) from that decision in 2008, long
before the 2023 decision they now challenge.
It is in this context that Petitioners curiously attack the NRCs
line of schedule change approvals as arbitrary and capricious for failure
to provide a reasoned explanation for its change of position. (Brief at
42-43 ). Petitioners own evidence shows the agency has repeatedly been
taking the same position for over fifteen years, at each opportunity. If
anything, it would have been arbitrary and capricious for the NRC to
abruptly change position in 2023 and assert, for the first time, that
PG&E was actually obligated to remove a fourth capsule
notwithstanding that it had already told the licensee the exact opposite
on three prior occasions. See Organized Village of Kake v. USDA, 795
F.3d 956, 966 (9th Cir. 2015) ( unexplained inconsistency between
agency actions is a reason for holding an interpretation to be an
arbitrary and capricious change).
- 39 -
Consistency of an agencys position is a factor in assessing the
weight that position is due. Good Samaritan Hosp. v. Shalala, 508 U.S.
402, 417 (1993). The record before the NRC at the time of the decision,
as well as the additional material provided by Petitioners, amply
demonstrates that the NRC has consistently applied the same standard
to PG&Es Unit 1 reactor vessel material surveillance program for
years, and that Petitioners actual grievance is with a perceived agency
pivot that by their own admission first surfaced in 2008. The Court
should reject Petitioners overt attempt to expand this case beyond the
Denial Order (which, as explained below, it lacks jurisdiction to do in
any event). Instead, it should deny the petition because the NRC
reasonably denied Petitioners 2023 Hearing Request.
II. The Court lacks jurisdiction to review or vacate additional NRC decisions preceding the Denial Order.
Petitioners Opening Brief devotes minimal discussion to
challenging the Denial Order that is under this Courts review (Brief at
40-41) and instead overtly and repeatedly attempts to sweep in
additional NRC decisions dating back to 2008, collectively referred to by
Petitioners as the Extension Decisions (Brief at 7).
- 40 -
Specifically, Petitioners assert that the NRC has repeatedly
amended PG&Es Unit 1 license through these Extension Decisions
(Brief at 37-38); violated the Atomic Energy Act (42 U.S.C. § 2239) by
failing to provide an opportunity for a hearing before making the
Extension Decisions (Brief at 38-39); and violated a separate provision
of the Atomic Energy Act (42 U.S.C. § 2133) and NRC regulations (10
C.F.R. § 50.92(a)) each time it issued an Extension Decision (Brief at
39). Petitioners go so far as to ask the Court to vacate these prior NRC
decisions, in addition to the Denial Order that is being challenged (Brief
at 43).
However, the Court lacks jurisdiction to review or vacate these
Extension Decisions identified by Petitioners that preceded the Denial
Order. As previously explained, the Hobbs Act confers jurisdiction on
this Court to review NRC final orders in licens ing proceedings,
including the denial of a hearing request. 28 U.S.C. § 2342; 42 U.S.C.
§ 2239. But the Hobbs Act also requires any party aggrieved to file its
petition for review no later than 60 days after entry of the order. 28
U.S.C. § 2344. That time limitation is jurisdictional and cannot be
extended by this Court. Cal. Assn of the Physically Handicapped, Inc. v.
- 41 -
FCC, 833 F.2d 1333, 1334 (9th Cir. 1987). Thus, the Court cannot
accept Petitioners invitation to expand the scope of its review here to
include additional NRC actions from 2008 to 2012 that are not even
mentioned in the Denial Order.
Petitioners do not attempt to grapple with this 60-day limitation,
other than alleging that the NRC has cumulatively amended PG&Es
licenses over a fifteen year period, culminating with the most recent
approval in 2023. Brief at 7. Whether a discrete NRC action amends a
license or otherwise expands a licensees operating authority is a binary
determination the July 2023 Schedule Change Approval either did or
did not amend the Unit 1 license as it existed at the time of the request,
and the Denial Order cogently explained why it did not. Petitioners
cannot use the most recent 2023 NRC decision as a vehicle to litigate
the preceding f ifteen years of NRC oversight.
III. The Secretary reasonably referred Petitioners immediate health and safety concerns to the appropriate agency process.
Although the Secretary denied Petitioners Hearing Request, she
also recognized that the request separately sought an immediate
shutdown of Diablo Canyon Unit 1 based on asserted safety concerns.
- 42 -
See 1-ER-005. Thus, the Secretary appropriately referred that portion of
the request to the agencys established process for reviewing petitions to
modify, suspend, or revoke a license, or for any other action that may
be proper. 1 -ER-005; 10 C.F.R. § 2.206(a).
Petitioners are not challenging this portion of the Denial Order, as
this referral was still pending at the time the Petition for Review was
filed. But contrary to Petitioners assertion that they have been
prevented by NRC from raising their public health and safety
concerns concerning the Diablo Canyon reactor material surveillance
program (Brief at 35), the NRC does in fact consider and respond to
such concerns asserting immediate safety issues through the
appropriate agency channels, and it is doing so here.14 Cf. Kelley 42 F.3d
at 1515 ([E]ven though petitioners are not automatically entitled to a
hearing pursuant to [42 U.S.C. § 2239(a)], they are not without
14 On March 8, 2024, the NRC provided Petitioners with an initial assessment that the petition would not be accepted because it raised issues that had been previously reviewed, but it afforded Petitioners an opportunity to clarify or supplement the petition. Counsel for Petitioners participated in a virtual public meeting on April 29, 2024, to address the NRC Petition Review Board assigned to their request.
These factual updates post-date the Petition for Review.
- 43 -
recourse. If petitioners wish to litigate these issues, which are beyond
the scope of required proceedings, they may file a petition with the
Commission pursuant to 10 C.F.R. § 2.206.).
Respondents also note that Petitioners have submitted a hearing
request to the NRC in conjunction with PG&Es request to renew the
Diablo Canyon Power Plant operating licenses for an additional twenty
years. In that hearing request, Petitioners have submitted a contention
raising their concerns with the Unit 1 reactor vessel, relying on the
same expert declaration from their Hearing Request. 2-ER-072. 15
In short, the NRC remains committed to its public health and
safety mission and to continuing to provide regulatory oversight of the
Diablo Canyon reactors through its licensing, inspection, and
enforcement activities.
15 The Atomic Safety and Licensing Board has scheduled an initial prehearing conference to hear oral argument on the admissibility of Petitioners contentions on May 22, 2024. Petitioners hearing request is publicly available at https://adamswebsearch2.
nrc.gov/webSearch2/main.jsp?AccessionNumber=ML24065A432.
- 44 -
IV. If the Court rules against NRC, remand for the agency to more fully explain or reconsider the Denial Order is the only appropriate remedy.
Finally, Petitioners seek unavailable or improper relief from the
Court: (1) vacatur of four NRC actions that this Court lacks jurisdiction
to review (i.e., the Extension Decisions from September 2008, October
2010, March 2012, and July 2023) ; and (2) an order directing the NRC
to grant an expedited" hearing on whether any of these prior decisions
should have been issued. Brief at 43-44. Because the Court does not
have jurisdiction over any NRC action besides the Denial Order, issuing
relief as to any such order would contravene the Hobbs Act. 28 U.S.C.
§ 2342.
With respect to the Denial Order that is properly under review, if
the Court determines that the agency s justification for its actions is
inadequate, it should remand for the agency to either (1) offer a fuller
explanation of the agencys reasoning at the time it took the action; or
(2) take new action. DHS v. Regents of the Univ. of Cal., 591 U.S. 1,
20-21 (2020). Petitioners requested remedy of compelling the NRC to
hold a hearing, which amounts to a mandatory injunction, is
extraordinary relief. Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir.
- 45 -
2017). Such action would be particularly inappropriate where, as here,
the agency has not yet passed on the question of whether Petitioners
have raised admissible contentions that would warrant a hearing under
the rules governing agency adjudication. See 10 C.F.R. § 2.309(f)(1).
CONCLUSION
For the reasons stated herein, the Court should deny the Petition
for Review.
Respectfully submitted,
/s/ Benjamin W. Richmond /s/ Eric V. Michel TODD KIM ANDREW P. AVERBACH Assistant Attorney General Solicitor BENJAMIN W. RICHMOND ERIC V. MICHEL Attorney Senior Attorney Environmental and Natural U.S. Nuclear Regulatory Resources Division Commission U.S. Department of Justice Eric.Michel2@nrc.gov Benjamin.Richmond@usdoj.gov (301) 415 -0932 (202) 514 -3977
- 46 -
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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Signature /s/ Eric V. Michel Date 5/17/2024 ADDENDUM
Administrative Orders Review Act (Hobbs Act) 28 U.S.C. § 2342.................................................................................. 1a 28 U.S.C. § 2344.................................................................................. 1a
Administrative Procedure Act 5 U.S.C. § 706...................................................................................... 1a
Atomic Energy Act of 1954, as amended 42 U.S.C. § 2133.................................................................................. 2a 42 U.S.C. § 2233.................................................................................. 4a 42 U.S.C. § 2239.................................................................................. 4a
10 C.F.R. § 2.206..................................................................................... 5a 10 C.F.R. § 2.309..................................................................................... 6a 10 C.F.R. § 2.346..................................................................................... 8a 10 C.F.R. § 50.90..................................................................................... 9a 10 C.F.R. § 50.92..................................................................................... 9a 10 C.F.R. Part 50, Appendix H............................................................. 10a
28 U.S.C. § 2342 (Excerpted)
Jurisdiction of court of appeals The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of-(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42; Jurisdiction is invoked by filing a petition as provided by section 2344 of this title.
28 U.S.C. § 2344 Review of orders; time; notice; contents of petition; service On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of-(1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.
The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.
5 U.S.C. § 706 Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-
1a (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
42 U.S.C. § 2133 Commercial licenses (a) Conditions. The Commission is authorized to issue licenses to persons applying therefor to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or export under the terms of an agreement for cooperation arranged pursuant to section 2153 of this title, utilization or production facilities for industrial or commercial purposes. Such licenses shall be issued in accordance with the provisions of subchapter XV and subject to such conditions as the Commission may by rule or regulation establish to effectuate the purposes and provisions of this chapter.
(b) Nonexclusive basis. The Commission shall issue such licenses on a nonexclusive basis to persons applying therefor (1) whose proposed activities will serve a useful purpose proportionate to the quantities of special nuclear material or source material to be utilized; (2) who are equipped to observe and who agree to observe such safety standards to
2a protect health and to minimize danger to life or property as the Commission may by rule establish; and (3) who agree to make available to the Commission such technical information and data concerning activities under such licenses as the Commission may determine necessary to promote the common defense and security and to protect the health and safety of the public. All such information may be used by the Commission only for the purposes of the common defense and security and to protect the health and safety of the public.
(c) License period. Each such license shall be issued for a specified period, as determined by the Commission, depending on the type of activity to be licensed, but not exceeding forty years from the authorization to commence operations, and may be renewed upon the expiration of such period.
(d) Limitations. No license under this section may be given to any person for activities which are not under or within the jurisdiction of the United States, except for the export of production or utilization facilities under terms of an agreement for cooperation arranged pursuant to section 2153 of this title, or except under the provisions of section 2139 of this title. No license may be issued to an alien or any any corporation or other entity if the Commission knows or has reason to believe it is owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government. In any event, no license may be issued to any person within the United States if, in the opinion of the Commission, the issuance of a license to such person would be inimical to the common defense and security or to the health and safety of the public.
(f) Accident notification condition; license revocation; license amendment to include condition. Each license issued for a utilization facility under this section or section 2134(b) of this title shall require as a condition thereof that in case of any accident which could result in an unplanned release of quantities of fission products in excess of allowable limits for normal operation established by the Commission, the licensee shall immediately so notify the Commission. Violation of the condition prescribed by this subsection may, in the Commission's discretion, constitute grounds for license revocation. In accordance with
3a section 2237 of this title, the Commission shall promptly amend each license for a utilization facility issued under this section or section 2134(b) of this title which is in effect on June 30, 1980, to include the provisions required under this subsection.
42 U.S.C. § 2233 (Excerpted)
Terms of licenses Each license shall be in such form and contain such terms and conditions as the Commission may, by rule or regulation, prescribe to effectuate the provisions of this chapter, including the following provisions:
(b) No right to the special nuclear material shall be conferred by the license except as defined by the license.
(c) Neither the license nor any right under the license shall be assigned or otherwise transferred in violation of the provisions of this chapter.
(d) Every license issued under this chapter shall be subject to the right of recapture or control reserved by section 2138 of this title, and to all of the other provisions of this chapter, now or hereafter in effect and to all valid rules and regulations of the Commission.
42 U.S.C. § 2239 (Excerpted)
Hearings and judicial review (a)(1)(A) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding....
(b) The following Commission actions shall be subject to judicial review in the manner prescribed in chapter 158 of title 28 and chapter 7 of title 5:
4a (1) Any final order entered in any proceeding of the kind specified in subsection (a)....
10 C.F.R. § 2.206 (Excerpted)
Requests for action under this subpart.
(a) Any person may file a request to institute a proceeding pursuant to § 2.202 to modify, suspend, or revoke a license, or for any other action as may be proper.... The request must specify the action requested and set forth the facts that constitute the basis for the request. The Executive Director for Operations will refer the request to the Director of the NRC office with responsibility for the subject matter of the request for appropriate action in accordance with paragraph (b) of this section.
(b) Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the Director of the NRC office with responsibility for the subject matter of the request shall either institute the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to the request, and the reasons for the decision.
(c) (1) Director's decisions under this section will be filed with the Office of the Secretary. Within twenty-five (25) days after the date of the Director's decision under this section that no proceeding will be instituted or other action taken in whole or in part, the Commission may on its own motion review that decision, in whole or in part, to determine if the Director has abused his discretion. This review power does not limit in any way either the Commission's supervisory power over delegated staff ac tions or the Commission's power to consult with the staff on a formal or informal basis regarding institution of proceedings under this section.
(2) No petition or other request for Commission review of a Director's decision under this section will be entertained by the Commission.
5a (3) The Secretary is authorized to extend the time for Commission review on its own motion of a Director's denial under paragraph (c) of this section.
10 C.F.R. § 2.309 (Excerpted)
Hearing requests, petitions to intervene, requirements for standing, and contentions.
(a) General requirements. Any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing.... [E]xcept as provided in paragraph (e) of this section, the Commission, presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request for hearing and/or petition for leave to intervene, will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of paragraph (d) of this section and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section....
(d) Standing.
(1) General requirements. A request for hearing or petition for leave to intervene must state:
(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's 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 requestor's/petitioner's interest.
(2) Rulings. In ruling on a request for hearing or petition for leave to intervene, the Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on such requests must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in paragraph (d)(1) of this section.
6a (3) Standing in enforcement proceedings. In enforcement proceedings, the licensee or other person against whom the action is taken shall have standing.
(f) Contentions.
(1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition 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; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's 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 requestor/petitioner intends to rely to support its position on the issue; (vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of t he application (including the applicant's 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 matte r as required by law, the identification of each failure and the supporting reasons for the petitioner's belief;...
(2) 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. On issues arising under the 7a National Environmental Policy Act, participants shall file contentions based on the applicant's environmental report.
Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.
10 C.F.R. § 2.346 Authority of the Secret ary When briefs, motions or other documents are submitted to the Commission itself, as opposed to officers who have been delegated authority to act for the Commission, the Secret ary or the Assistant Secretary is authorized to:
(a) Prescribe procedures for the filing of briefs, motions, or other pleadings, when the schedules differ from those prescribed by the rules of this part or when the rules of this part do not prescribe a schedule; (b) Rule on motions for extensions of time; (c) Reject motions, briefs, pleadings, and other documents filed with the Commission later then the time prescribed by the Secretary or the Assistant Secretary or established by an order, rule or regulation of the Commission unless good cause is shown for the late filing; (d) Prescribe all procedural arrangements relating to any oral argument to be held before the Commission; (e) Extend the time for the Commission to rule on a petition for review under § 2.341; (f) Extend the time for the Commission to grant review on its own motion under § 2.341; (g) Direct pleadings improperly filed before the Commission to the appropriate presiding officer for action; (h) Deny a request for hearings, where the request fails to comply with the Commission's pleading requirements set forth in this part, and fails to set forth an arguable basis for further proceedings; (i) Refer to the Atomic Safety and Licensing Board Panel or an Administrative Judge, as appropriate requests for hearing not falling 8a under § 2.104, where the requestor is entitled to further proceedings; and (j) Take action on other minor matters.
10 C.F.R. § 50.90 Application for amendment of license, construction permit, or early site permit.
Whenever a holder of a license, including a construction permit and operating license under this part, and an early site permit, combined license, and manufacturing license under part 52 of this chapter, desires to amend the license or permit, application for an amendment must be filed with the Commission, as specified in §§ 50.4 or 52.3 of this chapter, as applicable, fully describing the changes desired, and following as far as applicable, the form prescribed for original applications.
10 C.F.R. § 50.92 Issuance of amendment (a) In determining whether an amendment to a license, construction permit, or early site permit will be issued to the applicant, the Commission will be guided by the considerations which govern the issuance of initial licenses, construction permits, or early site permits to the extent applicable and appropriate. If the application involves the material alteration of a licensed facility, a construction permit will be issued before the issuance of the amendment to the license, provided however, that if the application involves a material alteration to a nuclear power reactor manufactured under part 52 of this chapter before its installation at a site, or a combined license before the date that the Commission makes the finding under § 52.103(g) of this chapter, no application for a construction permit is required. If the amendment involves a significant hazards consideration, the Commission will give notice of its proposed action:
(1) Under § 2.105 of this chapter before acting thereon; and (2) As soon as practicable after the application has been docketed.
(b) The Commission will be particularly sensitive to a license amendment request that involves irreversible consequences (such as one that permits a significant increase in the amount of effluents or radiation emitted by a nuclear power plant).
9a (c) The Commission may make a final determination, under the procedures in § 50.91, that a proposed amendment to an operating license or a combined license for a facility or reactor licensed under §§ 50.21(b) or 50.22, or for a testing facility involves no significant hazards consideration, if operation of the facility in accordance with the proposed amendment would not:
(1) Involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) Create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) Involve a significant reduction in a margin of safety.
10 C.F.R. Part 50, Appendix H Reactor Vessel Material Surveillance Program Requirements
I. Introduction II. Definitions III. Surveillance Program Criteria IV. Report of Test Results
I. Introduction The purpose of the material surveillance program required by this appendix is to monitor 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. Under the program, fracture toughness test data are obtained from material specimens exposed in surveillance capsules, which are withdrawn periodically from the reactor vessel. These data will be used as described in section IV of appendix G to part 50.
ASTM E 185-73, Standard Recommended Practice for Surveillance Tests for Nuclear Reactor Vessels; ASTM E 185 -79, Standard Practice for Conducting Surveillance Tests for Light-Water Cooled Nuclear Power Reactor Vessels; and ASTM E 185 -82, Standard Pract ice for Conducting Surveillance Tests for Light-Water Cooled Nuclear Power Reactor Vessels; which are referenced in the following paragraphs, have been approved for incorporation by reference by the Director of the 10a Federal Register. Copies of ASTM E 185 -73, -79, and -82, may be purchased from the American Society for Testing and Materials, 1916 Race Street, Philadelphia, PA 19103 and are available for inspection at the NRC Library, 11545 Rockville Pike, Two White Flint North, Rockville, MD 20852-2738.
II. Definitions All terms used in this appendix have the same meaning as in appendix G.
III. Surveillance Program Criteria A. No material surveillance program is required for reactor vessels for which it can be conservatively demonstrated by analytical methods applied to experimental data and tests performed on comparable vessels, making appropriate allowances for all uncertainties in the measurements, that the pea k neutron fluence at the end of the design life of the vessel will not exceed 1017 n/cm2 (E >1 MeV).
B. Reactor vessels that do not meet the conditions of paragraph III.A of this appendix must have their beltline materials monitored by a surveillance program complying with ASTM E 185, as modified by this appendix.
- 1. The design of the surveillance program and the withdrawal schedule must meet the requirements of the edition of the ASTM E 185 that is current on the issue date of the ASME Code to which the reactor vessel was purchased; for reactor vessels purchased after 1982, the design of the surveillance program and the withdrawal schedule must meet the requirements of ASTM E 185-82. For reactor vessels purchased in or before 1982, later editions of ASTM E 185 may be used, but including only those editions through 1 982. For each capsule withdrawal, the test procedures and reporting requirements must meet the requirements of ASTM E 185 -82 to the extent practicable for the configuration of the specimens in the capsule. If any of the optional provisions in paragraphs III.B.4(a) through (d) of this section are implemented in lieu of ASTM E 185, the number of specimens included or tested in the surveillance program shall be adjusted as specified in paragraphs III.B.4(a) through (d) of this section.
11a
- 2. Surveillance specimen capsules must be located near the inside vessel wall in the beltline region so that the specimen irradiation history duplicates, to the extent practicable within the physical constraints of the system, the neutron spectrum, temperature history, and maximum neutron fluence experienced by the reactor vessel inner surface. If the capsule holders are attached to the vessel wall or to the vessel cladding, construction and inservice inspection of the attachments and attachment welds must be done according to the requirements for permanent structural attachments to reactor vessels given in Sections III and XI of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code). The design and location of the capsule holders must permit insertion of replacement capsules. Accelerated irradiation capsules may be used in addition to the required number of surveillance capsules.
- 3. A proposed withdrawal schedule must be submitted with a technical justification as specified in § 50.4. The proposed schedule must be approved prior to implementation.
- 4. Optional provisions. As used in this section, references to ASTM E 185 include the edition of ASTM E 185 that is current on the issue date of the ASME Code to which the reactor vessel was purchased through the 1982 edition.
(a) First Provision: Heat-Affected Zone Specimens The inclusion or testing of weld heat-affected zone Charpy impact specimens within the surveillance program as specified in ASTM E 185 is optional.
(b) Second Provision: Tension SpecimensIf this provision is implemented, the minimum number of tension specimens to be included and tested in the surveillance program shall be as specified in paragraphs III.B.4(b)(i) and (ii) of this section.
(i) Unirradiated Tension SpecimensTwo tension specimens from each base and weld material required by ASTM E 185 shall be tested, with one specimen tested at room temperature and the other specimen tested at the service temperature; and (ii) Irradiated Tension SpecimensTwo tension specimens from each base and weld material required by ASTM E 185 shall be included in each surveillance capsule and tested, with one
12a specimen tested at room temperature and the other specimen tested at the service temperature.
(c) Third Provision: Correlation Monitor MaterialsThe testing of correlation monitor material specimens within the surveillance program as specified in ASTM E 185 is optional.
(d) Fourth Provision: Thermal MonitorThe inclusion or examination of thermal monitors within the surveillance program as specified in ASTM E 185 is optional.
C. Requirements for an Integrated Surveillance Program.
- 1. In an integrated surveillance program, the representative materials chosen for surveillance for a reactor are irradiated in one or more other reactors that have similar design and operating features. Integrated surveillance programs must be approved by the Director, Office of Nuclear Reactor Regulation, on a case-by -case basis. Criteria for approval include the following:
- a. The reactor in which the materials will be irradiated and the reactor for which the materials are being irradiated must have sufficiently similar design and operating features to permit accurate comparisons of the predicted amount of radiation damage.
- b. Each reactor must have an adequate dosimetry program.
- c. There must be adequate arrangement for data sharing between plants.
- d. There must be a contingency plan to assure that the surveillance program for each reactor will not be jeopardized by operation at reduced power level or by an extended outage of another reactor from which data are expected.
- e. There must be substantial advantages to be gained, such as reduced power outages or reduced personnel exposure to radiation, as a direct result of not requiring surveillance capsules in all reactors in the set.
- 2. No reduction in the requirements for number of materials to be irradiated, specimen types, or number of specimens per reactor is permitted.
- 3. After (the effective date of this section), no reduction in the amount of testing is permitted unless previously authorized by the Director, Office of Nuclear Reactor Regulation.
13a IV. Report of Test Results A. Each capsule withdrawal and the test results must be the subject of a summary technical report to be submitted, as specified in § 50.4, within eighteen months of the date of capsule withdrawal, unless an extension is granted by the Director, Office of Nuclear Reactor Regulation.
B. The report must include the data required by ASTM E 185, as specified in paragraph III.B.1 of this appendix, and the results of all fracture toughness tests conducted on the beltline materials in the irradiated and unirradiated conditions.
C. If a change in the Technical Specifications is required, either in the pressure-temperature limits or in the operating procedures required to meet the limits, the expected date for submittal of the revised Technical Specifications must be provided with the report.
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