ML24141A148
| ML24141A148 | |
| 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: 31.1 | |
| Download: ML24141A148 (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 SUPPLEMENTAL EXCERPTS OF RECORD
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
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INDEX Date Document Page 9/25/23 NRC Staff Answer to Petitioners Hearing SER-4 Request and Request to Suspend Operations 9/25/2023 PG&E Response to Petitioners Hearing SER-9 Request and Request for Emergency Order Requiring Immediate Shutdown of Diablo Canyon UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the Matter of
PACIFIC GAS AND ELECTRIC COMPANY Docket No. 50- 275
(Diablo Canyon Nuclear Power Plant, Unit 1)
NRC STAFF ANSWER TO SAN LUIS OBISPO MOTHERS FOR PEACE AND FRIENDS OF THE EARTH REQUEST FOR EMERGENCY ORDER REQUIRING IMMEDIATE SHUTDOWN
INTRODUCTION
On September 14, 2023, in a single pleading, San Luis Obispo Mothers for Peace and
Friends of the Earth (Petitioners) filed both a Request to the NRC Commissioners by San Luis
Obispo Mothers for Peace and Friends of the Earth for a Hearing on NRC Staff Decision
Effectively Amending Diablo Canyon Unit 1 Operating License to Extend the Schedule for
Surveillance of the Unit 1 Pressure Vessel (Hearing Request) and a Request for Emergency
Order Requiring Immediate Shutdown of Unit 1 Pending Completion of Tests and Inspections of
Pressure Vessel, Public Disclosure of Results, Public Hearing, and Determination by the
Commission that Unit 1 can Safely Resume Operation (Request to Suspend Operations). 1
Petitioners Request to Suspend Operations asks the Commission to issue an order requiring
1 Request to the NRC Commissioners by San Luis Obispo Mothers for Peace and Friends of the Earth for a Hearing on NRC Staff Decision Effectively Amending Diablo Canyon Unit 1 Operating License to Extend the Schedule for Surveillance of the Unit 1 Pressure Vessel and Request for Emergency order Requiring Immediate Shutdown of Unit 1 Pending Completion of Tests and Inspections of Pressure Vessel, Public Disclosure of Results, Public Hearing, and Determination by the Commission that Unit 1 can Safely Resume Operation (Sep. 14, 2023) (ML23257A302) (Petition).
Attached to the Petition is the Declaration of Digby Macdonald, Ph.D in Support of Hearing Request and Request for Emergency Order by San Luis Obispo Mothers for Peace and Friends of the Earth (Sep. 14, 2023) (Declaration).
By unopposed motion dated September 25, 2023, t he Staff requestedan opportunity for the Staff and Pacific Gas and Electric Company to answer the Hearing Request by October 9, 2023, or for direction from the Commission regardinghow and when to respond to the Hearing Request.
- 2 -
the i mmediate shutdown of and remedial actions for Diablo Canyon Nuclear Power Plant
(Diablo Canyon), Unit 1. 2 The U.S. Nuclear Regulatory Commission staff (the Staff) files this
answer that the appropriate response to Petitioners Request to Suspend Operations is for the
Commission to instead refer it to the Executive Director for Operations (EDO) for consideration
as a petition under 10 C.F.R. § 2.206. 3 This is appropriate because Petitioners Request to
Suspend Operations raises serious issues, is effectively a 10 C.F.R. § 2.206 request for agency
action, and would be best resolved by first being considered by the St aff s technical experts and
then being subject to review by the Commission, which is the process laid out in 10 C.F.R.
§ 2.206.
DISCUSSION
Petitioners Request to Suspend Operations is effectively a 10 C.F.R. § 2.206 request for
agency action. 10 C.F.R. § 2.206(a) states, in part, that [a]ny person may file a request to
institute a proceeding pursuant to [10 C.F.R. §] 2.202 to modify, suspend, or revoke a license,
or for any other action as may be proper. In turn, 10 C.F.R. § 2.202 (a) provides that [t]he
Commission may institute a proceeding to modify, suspend, or revoke a license or to take such
other action as may be proper by serving on the licensee an order that will [a]llege the
violations with which the licensee is charged, or the potentially hazardous conditions or other
facts deemed to be sufficient ground for the proposed action, and specify the action
proposed. 10 C.F.R. § 2.206(a) also requires that requests under that regulation specify the
action requested and set forth the facts that constitute the basis for the request. Petitioners
Request to Suspend Operations does all of these thingsit requests that the Commission issue
an order, presumably under 10 C.F.R. § 2.202 , to suspend the Diablo Canyon, Unit 1 license
(i.e., shut down the plant) and to modify the license and take other actions (i.e., require specific,
2 Petition at 27-28.
3 See, e.g., Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),
CLI 20, 76 NRC 437, 440 n.13 (2012) (stating that such a referral is consistent with agency practice).
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enumerated remedial actions), 4 it alleges that the licensee has committed violations (i.e., by not
properly monitoring the condition of the reactor pressure vessel), 5 and it asserts that there e xist
potentially hazardous conditions (i.e., that there is a serious risk of embrittlement of the reactor
pressure vessel). 6 Petitioners Request to Suspend Operations also sets forth alleged facts as
the basis for the request, including the declaration of Dr. Digby Macdonald. 7 Therefore, although
Petitioners indicate that their request should not be treated as a request for enforcement action
addressed to the Staff, 8 Petitioners Request to Suspend Operations is, effectively, a 10 C.F.R.
§ 2.206 request for agency action.
As a request for agency action, Petitioners Request to Suspend Operations would be
best resolved under the 10 C.F.R. § 2.206 process. 10 C.F.R. § 2.206 establishes a process by
which the public may bring enforcement issues, such as those raised in Petitioners Request to
Suspend Operations, to the attention of the agency and it ensures both transparency by
requiring the Staff to respond to such requests in writing and accountability by making these
Staff responses reviewable by the Commission. Specifically, 10 C.F.R. § 2.206(a) states that a
request for agency action is to be addressed to the EDO who then assigns it to the NRC office
with responsibility for the subject matter of the request. Thereafter, the Director of that office is
required, within a reasonable time, to either institute the requested proceeding or advise the
person who made the request in writing that no proceeding will be instituted in whole or in part. 9
With the completion of this Staff review, then the Commission may, on its own motion, review
the Staff decision to determine if the Staff abused its discretion. 10 Because the 10 C.F.R.
4 Petition at 27-28.
5 Id. at 26.
6 Id.
7 Id.
8 Id. at 29.
9 10 C.F.R. § 2.206(b).
10 10 C.F.R. § 2.206(c)(1).
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§ 2.206 process was established specifically to address concerns such as those in Petitioners
Request to Suspend Operations, that request should be referred to the EDO for consideration
as a petition under 10 C.F.R. § 2.206. The Commission has repeatedly reaffirmed the vitality of
the 10 C.F.R. § 2.206 process to address stakeholders concerns . 11
In the Request to Suspend Operations, Petitioners indicate that, contrary to 10 C.F.R.
§ 2.206, their request should not be reviewed by the Staff, but by the highest officials of the
agency. 12 However, Petitioners do not demonstrate that such a drastic action of excluding Staff
review is either necessary or advisable. Although they speak of the urgency of the matter, 13
Petitioners do not demonstrate that a fulsome technical evaluation and Staff decision followed
by a Commission review prior to issuing any order to shutdown Diablo Canyon, Unit 1 would
endanger the public health and safety. Petitioners also assert that the Staff shouldnt be trusted
to review the request, 14 but the Staff is the very entity with the technical expertise needed to
conduct such a review. In any case, the Commission retains supervisory authority over the Staff
both under 10 C.F.R. § 2.206(c) and at all times and can, therefore, ensure that both of these
Petitioners concerns (i.e., timeliness and bias) are protected against within the 10 C.F.R.
§ 2.206 process.
Finally, Petitioners cite to Yankee Rowe as support for their argument that, contrary to
10 C.F.R. § 2.206, a Staff review should be skipped; 15 however, Yankee Rowe does not stand
for this proposition. Yankee Rowe involved different petitioners asking the Commission itself to
11 See, e.g., All Operating Boiling Water Reactor Licensees with Mark I and Mark II Containments: Order Modifying Licenses with Regard to Reliable Hardened Containment Vents (Effective Immediately) and All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status: Order Modifying Licenses with Regard to Reliable Spent Fuel Pool Instrumentation (Effective Immediately), CLI-13- 2, 77 NRC 39, 50 n.57 (2013); San Onofre, CLI- 12- 20, 76 NRC at 439-40.
12 Petition at 29.
13 See Declaration at 14 (asserting that Unit 1 could approach NRCs threshold for remedial action as early as 2024).
14 Petition at 26-27.
15 Id. at 26 (citing Yankee Atomic Electric Company (Yankee Rowe Nuclear Power Station), CLI-91-11, 34 NRC 3 (1991)).
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act on their request for agency action. 16 In response, the Commission referred the matter to the
Staff for review under 10 C.F.R. § 2.206 . 17 The Staff performed its review and decided to deny
the request for agency action.18 It was only after this Staff decision that the Commission then,
upon the petitioners renewing their request for Commission review, elected to rule on the
petition. 19 As was done in Yankee Rowe, and for the other reasons discussed above, the
Commission should refer Petitioners Request to Suspend Operations to the EDO for
consideration as a petition under 10 C.F.R. § 2.206.
CONCLUSION
Petitioners Request to Suspend Operations raises serious issues that should first be
considered by the Staff because the Staff has the necessary technical expertise to evaluate and
address them. The Staffs determination would then be reviewed by the Commission, as it
deems necessary. Therefore, the Commission should refer Petitioners Request to Suspend
Operations to the EDO for consideration as a petition under 10 C.F.R. § 2.206.
Respectfully submitted,
/Signed ( electronically) by/
Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 287-9188 Dated September 25, 2023 E mail: Jeremy.Wachutka@nrc.gov
16 Yankee Rowe, CLI 11, 34 NRC at 5.
17 Id.
18 Id.
19 Id. at 6.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the matter of:
Docket No. 50-275 PACIFIC GAS AND ELECTRIC COMPANY September 25, 2023 (Diablo Canyon Nuclear Power Plant, Unit 1)
PACIFIC GAS AND ELECTRIC COMPANY RESPONSE TO THE REQUEST OF SAN LUIS OBISPO MOTHERS FOR PEACE AND FRIENDS OF THE EARTH FOR AN EMERGENCY ORDER REQUIRING IMMEDIATE SHUTDOWN OF DIABLO CANYON NUCLEAR POWER PLANT, UNIT 1
Timothy P. Matthews, Esq.
Paul M. Bessette, Esq.
Ryan K. Lighty, Esq.
Counsel for Pacific Gas and Electric Company CONTENTS
I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ............................................................................................................... 4 A. Brief Technical Background .................................................................................. 4 B. The Shutdown Request .......................................................................................... 7 III. THE COMMISSION SHOULD DENY THE SHUTDOWN REQUEST ON PROCEDURAL GROUNDS............................................................................................. 8 A. The Shutdown Request Is Procedurally Improper ................................................. 8 B. Viewed as a Motion, the Shutdown Request Fails to Comply with Multiple Procedural Requirements on Consultation and Timeliness ................................... 9 IV. THE COMMISSION SHOULD DENY THE SHUTDOWN REQUEST BECAUSE IT LACKS SUFFICIENT JUSTIFICATION ............................................... 10 A. The Shutdown Request Identifies No Extraordinary Circumstances Warranting Supervisory Intervention .................................................................. 10 B. The Request Fails to Justify the Drastic Action of Shutting Down Unit 1 ...... 13 V. CONCLUSI ON ................................................................................................................ 15
ii TABLE OF AUTHORITIES
NRC Cases Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),
CLI-11-14, 74 NRC 801 (2011) ................................................................................................ 8 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),
CLI-15-22, 82 NRC 310 (2015) ................................................................................................ 4 In the Matter of Licensees Authorized to Possess or Transport Strategic Quantities of Special Nuclear Material, CLI-77-3, 5 NRC 16 (1977).................................................................................................... 13 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),
CLI-19-7, 90 NRC 1 (2019)........................................................................................ 1, 8, 9, 10 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-15-14, 81 NRC 729 (2015) .............................................................................................. 13 Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2),
CLI-11-5, 74 NRC 141 (2011) ................................................................................................ 10 Yankee Atomic Elec. Co. (Yankee Rowe Nuclear Power Station),
CLI-91-11, 34 NRC 3 (1991).................................................................................................. 11
Federal Court Cases Nader v. NRC, 513 F.2d 1045 (D.C. Cir. 1975) ........................................................................... 13
Regulations 10 C.F.R. § 2.206 ................................................................................................................... passim 10 C.F.R. § 2.309 ........................................................................................................................ 1, 8 10 C.F.R. § 2.323 .................................................................................................................. 2, 9, 10 10 C.F.R. § 2.345 ........................................................................................................................ 1, 8 10 C.F.R. § 2.802 ........................................................................................................................ 1, 8 10 C.F.R. § 50.61 ............................................................................................................................ 5 10 C.F.R. § 50.61a .......................................................................................................................... 5 10 C.F.R. Part 2, Subpart H ............................................................................................................ 3 10 C.F.R. Part 50........................................................................................................................... 12 10 C.F.R. Part 50, Appendix H ............................................................................................... 4, 5, 6
iii Federal Register Notices Final Rule: Alternate Fracture Toughness Requirements for Protection Against Pressurized Thermal Shock Events, 75 Fed. Reg. 13, 13 (Jan. 4, 2010) ................................ 5 Final Rule: Analysis of Potential Pressurized Thermal Shock Events, 50 Fed. Reg.
29,937 (July 23, 1985) .............................................................................................................. 4 Final Rule: Fracture Toughness and Surveillance Program Requirements, 38 Fed. Reg.
19,012 (July 17, 1973) .............................................................................................................. 4
Other Authorities BLACKS LAW DICTIONARY (11th ed. 2019) ................................................................................... 9 NRC Regulatory Guide 1.99, Radiation Embrittlement of Reactor Vessel Materials (Rev. 2, May 1998) (ML003740284) ................................................................................... 6, 7
iv I. INTRODUCTION
Pacific Gas and Electric Company (PG&E) hereby submits this response1 to the
document styled as a Request for Emergency Order Requiring Immediate Shutdown of Unit 1
Pending Completion of Tests and Inspections of Pressure Vessel, Public Disclosure of Results,
Public Hearing, and Determination by the Commission That Unit 1 Can Safety Resume
Operation (Shutdown Request2) filed on the above-captioned adjudicatory docket on
September 14, 2023, by San Luis Obispo Mothers for Peace (SLOMFP) and Friends of the
Earth (FOE) (collectively, the Requesters).3 The Shutdown Request asks the Commission to
exercise its discretionary supervisory jurisdiction to order the immediate closure of Diablo
Canyon [Nuclear Power Plant, Unit 1 (Unit 1)] pending the completion of a series of remedial
actions.4
As a general matter, there is no procedural basis in the NRCs Rules of Practice and
Procedure that authorizes a request of this ty pe. In fact, the Commission has long held that
requests for exercise of supervisory authority such as this are procedurally improper.5 In
1 In an abundance of caution, PG&E is responding to the Shutdown Request as a general motion brought under the procedural requirements of 10 C.F.R. § 2.323.
2 Petition is an established and defined term in the NRCs Rules of Practice and Procedure. See, e.g.,
10 C.F.R. §§ 2.309 (petitions to intervene), 2.345 (petition for reconsideration), 2.802 (petition for rulemaking). None of those apply here. Because Requesters use the term in a manner that may lead to confusion, PG&E uses the term request used by Requesters in the caption to their filing.
3 Request to the NRC Commissioners by San Luis Obispo Mothers for Peace and Friends of the Earth for a Hearing on NRC Staff Decision Effectively Amending Diablo Canyon Unit 1 Operating License to Extend the Schedule for Surveillance of the Unit 1 Pressure Vessel and Request for Emergency Order Requiring Immediate Shutdown of Unit 1 Pending Completion of Tests and Inspections of Pressure Vessel, Public Disclosure of Results, Public Hearing, and Determination by the Commission That Unit 1 Can Safety Resume Operation (Sept. 14, 2023) (ML23257A302) (Shutdown Request). The document also contains a hearing request and two proposed contentions, to which PG&E will respond separately pursuant to 10 C.F.R. § 2.309.
4 Shutdown Request at 3; see id., attach. 1, Declaration Of Digby Macdonald, Ph.D in support of Hearing Request And Request For Emergency Order By San Luis Obispo Others For Peace And Friends Of The Earth (Macdonald Decl.).
5 See, e.g., NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-19-7, 90 NRC 1, 8 (2019). Counsel for Requesters also represented the filers in the Seabrook proceeding.
essence, the Shutdown Request is simply 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. If anything,
such requests are governed by the requirements of 10 C.F.R. § 2.206, and must be addressed to
the Executive Director for Operationsnot submitted as adjudicatory filings.
Even if such requests were permissible (they are not), they would be considered general
motions, governed by the requirements of 10 C.F.R. § 2.323 of the NRCs Rules of Practice and
Procedure. Counsel for Requesters is experi enced in NRC adjudicatory proceedings, having
submitted multiple extra-procedural requests an d general motions with the Commission in the
past,6 and is certainly aware that 10 C.F.R. § 2.323 imposes strict requirements for timeliness and
consultation with other parties. None of those requirements were satisfied here. Accordingly, if
the Commission considers the Shutdown Request as a matter of discretion, it should deny that
motion for failure to comply w ith the NRCs codified timeliness and consultation requirements.
Beyond these multiple and overlapping procedural defects, the Commission should deny
the Shutdown Request because it provides no subs tantive basis to justify an extraordinary
exercise of supervisory discretion, much less the drastic action of shutting down an operating
reactor. First, Requesters do not justify their demand to deviate from the NRCs normal process
of evaluating documents that present demands such as those in the Shutdown Request. For
example, demands for orders to suspend a license (essentially what Requesters seek here) are
appropriately dispositioned in the § 2.206 process. As another example, suggestions to modify
6 See Petition by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group to Deny Pacific Gas & Electric Companys Request to Review Undocketed license Renewal Application for the Diablo Canyon Unit 1 and Unit 2 Reactors and Petition to Deny Pacific Gas & Electric Companys Request to Extend the Diablo Canyon Reactors License Terms Without Renewing the Licenses (Jan. 10, 2023)
(ML23052A192); see Letter from J. Swanson, et al. to NRC Commissioners, Objection to PG&Es Requests Related to Withdrawn License Renewal Application for Diablo Canyon Nuclear Power Plant (Nov. 17, 2022);
Letter from J. Swanson, et al. to NRC Commissioners, PG&E Must be Required to Submit a New License see also Renewal Application for Diablo Canyon Units 1 and 2 and NRC Must Comply With All Safety and Environmental Requirements in Conducting its Review (Dec. 6, 2022) (ML22342B239).
2 NRC regulations (such as those presented in the Macdonald Declaration) are appropriately
routed through the Petition for Rulemaking process under 10 C.F.R. Part 2, Subpart H.
Disagreement with licensee actions and NRC Staff oversight that were conducted in full
compliance with NRC requirements (which is the case here) because Requesters prefer different
non-NRC approved methodologies (as presented in the Macdonald Declaration) is not a
sufficient basis to discard the NRCs long-established processes and invoke supervisory review.
The Commission has rarely exercised such discretion; and Requesters identify no reason to do so
here.
Furthermore, even if the Commission were to do so, it would find that the Shutdown
Request fails to provide a legitimate basis for the drastic relief that Requesters demand.
Requesters advocate that Unit 1 be shutdownnot because the applicant and Staff failed to
evaluate the underlying technical information in accordance with NRC requirements (which they
did)but because Requesters would prefer the NRC discard its codified analysis methodologies
and underlying consensus codes and, instead, adopt an experimental and untested methodology
developed by Dr. Macdonald. Such demands do not justify the extraordinary act of
immediately shutting down a plant, particularly in light of the extensive analyses that have
been conducted over the course of many decades on these exact matters.
Ultimately, the Request provides no basis for the Commission to order the immediate
shutdown of Unit 1. Accordingly, the Commission should deny the Request and refer the
underlying information to other appropriate processes.
3 II. BACKGROUND
A. Brief Technical Background
For the reasons discussed below, a detailed recitation of the technical requirements and
Unit 1 licensing history is not essential to resolving the Shutdown Request. However, a brief
recitation of key facts and concepts may provide some helpful context for the discussion.
The reactor pressure vessel (RPV) in an operating pressurized water reactor (PWR),
such as Unit 1, is continuously exposed to neutron radiation from the fission reaction occurring
inside the vessel.7 Over the life of the reactor, this can cause embrittlement of the RPV walls
and, in turn, decrease its fracture toughness.8 Fracture toughness is a measurement of an RPVs
ability to withstand a pressurized thermal shock (PTS) event a low probability event where
rapid cooling of the reactor vessel internal surface causes . . . thermal stress on the reactor
vessel, potentially leading to a fracture in the RPV wall.9
Recognizing the need to monitor fracture toughness, the NRC long-ago adopted detailed
regulatory requirements for PWR licensees to implement programs to monitor the embrittlement
of RPVs.10 These surveillance programs provide material property data (including Reference
Temperatures and Upper Shelf Energy values) necessary to implement a regulatory scheme to
protect RPVs from failure due to PTS.11 The NRC established screening criteria for these data
(beyond which certain actions or analyses may be required).12
7 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-22, 82 NRC 310, 311 (2015).
8 Id. (citing Final Rule: Analysis of Potential Pressurized Thermal Shock Events, 50 Fed. Reg. 29,937 (July 23, 1985) (1985 PTS Rule)).
9 Id. at 311-12 (quoting 1985 PTS Rule, 50 Fed. Reg. at 29,938).
10 Id. at 312 (citing Final Rule: Fracture Toughness and Surveillance Program Requirements, 38 Fed. Reg.
19,012 (July 17, 1973) (establishing the program to monitor reactor pressure vessels in 10 C.F.R. Part 50, App.
H, Reactor Vessel Material Surveillance Program Requirements)).
11 Id.
12 Id.
4 However, since the establishment of these screening criteria in 1985, the state of science
and engineering knowledge has increased dramatically and NRC has responding accordingly.
As a result, the NRC has determined that the risk of through-wall cracking due to a PTS event is
much lower than previously estimated.13 In fact, the Commission concluded in 2010 that the
[Reference Temperature] screening criteria in [10 C.F.R.] § 50.61 are unnecessarily conservative
and may impose unnecessary burden on some licensees.14 Accordingly, the NRC codified a
different, alternative methodology at 10 C.F.R. § 50.61a that licensees could elect to use to
evaluate fracture toughness.15 Notably, PG&E did not elect to use the 50.61a methodology. For
Unit 1, the ability to withstand a PTS event is still evaluated against the unnecessarily
conservative 1985 screening limits codified in § 50.61.
Some of the material data relevant to these requirement s is obtained pursuant to
monitoring program requirements in 10 C.F.R. Part 50, Appendix H, which requires licensees to
monitor steel coupons placed in surveillance capsules within the RPV. These coupons are made
from the same materials as the RPV, but are placed closer to the core in order to accumulate
irradiation effects faster and provide forward-looking information that predicts ductility at 60,
80, and 100 year intervals.
The capsules are periodically removed from the RPV, and the coupons are then subjected
to Charpy impact testing, which determines the amount of energy absorbed by a material
during fracture. NRC Regulatory Guide 1.99 describes the method for calculating the Reference
Temperature and Upper Shelf Energy values based on this testing, including the criteria for
13 Id. at 312-13 (citing Final Rule: Alternate Fracture Toughness Requirements for Protection Against Pressurized Thermal Shock Events, 75 Fed. Reg. 13, 13 (Jan. 4, 2010) (emphasis added) (2010 PTS Rule)).
14 Id. at 313 n.11 (quoting 2010 PTS Rule, 75 Fed. Reg. at 13 (emphasis added)).
15 Id. at 313 (citing 2010 PTS Rule, 75 Fed. Reg. at 13).
5 which testing data may be considered credible for regulatory compliance purposes.16
10 C.F.R. Part 50, Appendix H specifies that the periodicity of capsule withdrawals 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 Unit 1, the applicable code is ASTM E
185-70.17 The regulations also provide that a licensees proposed capsule withdrawal schedule
must be approved by the NRC prior to implementation.18
Over the operating life of a plant, as cont emplated in the regulations, licensees request
and the NRC typically approves several adjustments to the withdrawal schedules for the RPV
capsules. Unit 1 is no exception. Each time PG&E has requested such an adjustment, the NRC
has concluded that the requirements of 10 C.F.R. Part 50, Appendix H, and ASTM E 185-70
have been satisfied.19 The NRC has also reviewed the results of Charpy testing from the Unit 1
capsules that have been withdrawn to date, and corresponding analyses conducted pursuant to the
16 NRC Regulatory Guide 1.99, Radiation Embrittlement of Reactor Vessel Materials (Rev. 2, May 1998)
(ML003740284).
17 See e.g., Letter from G. Rueger, PG&E, to NRC Document Control Desk, Supplemental Reactor Vessel Radiation Surveillance Program at 1 (Mar. 31, 1992) (ML16341G505).
18 10 C.F.R. Part 50, App. H § III.B.3.
19 Letter from H. Rood, NRC, to G. Rueger, PG&E, Evaluation of Diablo Canyon Unit 1 Supplemental Reactor Vessel Radiation Surveillance Program (TAC No. M83285) (Sept. 4, 1992) (ML16341G685) (concluding PG&Es March 31, 1992 request, which was submitted per the provisions of 10 C.F.R. [Part] 50, Appendix H, ASTM E 185-82, the draft edition of ASTM E 185-92, and ASTM E 185-70 was acceptable); Letter from A.
Wang, NRC, to J. Conway, PG&E, Diablo Canyon Power Plant, Unit No. 1 - Approval of Proposed Reactor Vessel Material Surveillance Capsule Withdrawal Schedule (TAC No. MD8371) at 1 (Sept. 24, 2008)
(ML082380306); Letter from C. Lyon, NRC, to J. Conway, PG&E, Diablo Canyon Power Plant, Unit No. 1 -
Approval of Proposed Reactor Vessel Material Surveillance Capsule Withdrawal Schedule (TAC No.
ME4924) at encl. (Oct. 29, 2010) (ML103010159); Letter from J. Sebrosky, NRC, to J. Conway, PG&E, Diablo Canyon Power Plant, Unit No. 1: Safety Evaluation for Request to Revise the Reactor Vessel Material Surveillance Program Withdrawal Schedule (TAC ME7615) at 1 (Mar. 2, 2012) (ML120330497); Letter from J. Dixon-Herrity, NRC to P. Gerfen, PG&E, Diablo Canyon Nuclear Power Plant, Unit 1 - Revision To The Reactor Vessel Material Surveillance Capsule Withdrawal Schedule at encl. § 4 (July 20, 2023)
(ML23199A312) (2023 Schedule Change Approval).
6 methodology in Regulatory Guide 1.99, demonstrating that the applicable Reference
Temperature and Upper Shelf Energy screening criteria are satisfied.20
B. The Shutdown Request
Requesters submitted the Shutdown Request on September 14, 2023, asking the
Commission to order the immediate shutdow n of Unit 1. The Shutdown Request was
accompanied by a Declaration from Dr. Digby Macdonald. The Shutdown Request references
certain portions of the Macdonald Declaration for the proposition that the Unit 1 RPV may reach
an unacceptable degree of embrittlement in late 2023.21 What the Shutdown Request does
not disclose, however, is the fact that this conclusion rests on novel and nascent analysis
methodologies that are not approved by the NRC. In fact, had they been used, it would have
violated NRC regulations, consensus codes and standards, and the Unit 1 operating license.
For example, Dr. Macdonald advocates the use of a wholly different methodology that
would replace the Charpy Impact Test22 that has long been a staple of the NRCs codified
procedures for evaluating fracture toughness and the various consensus codes and standards
endorsed by the NRC. According to Dr. Macdonald, nothing short of the NRCs adoption of
this completely new methodology, developed by him and his collea gue, is sufficient to reach a
finding of reasonable assurance.23 However, as explained below, this Shutdown Request is
certainly not the appropriate forum to lobby for changes to NRC regulations. Moreover, the
20 See 2023 Schedule Change Approval at encl. § 3.2 (Based on a review of the surveillance capsules that have already been withdrawn and tested for Diablo Canyon, Unit 1, the NRC staff notes that additional capsules are not needed to satisfy the requirements of Appendix H to 10 CFR Part 50 and ASTM E 185-70 for the current operating license period (i.e., 40 years).).
21 Shutdown Request at 2.
22 Macdonald Decl. at 27.
23 Macdonald Decl. at 33, 17.
7 allegation that these new methodologies rev eal unacceptable embrittlement is based on
methodologies that have not been reviewedor even consideredby the NRC.
III. THE COMMISSION SHOULD DENY THE SHUTDOWN REQUEST ON PROCEDURAL GROUNDS
The Shutdown Request is notable for its failure to identify any procedural basis in the
Commissions rules. It is captioned as a Request.24 But the Commissions adjudicatory rules
do not provide for the filing of any such request. And Requesters refer to their pleading as a
Petition and themselves as Petitioners.25 But a Petition is an established and defined
adjudicatory term in the NRCs Rules of Practi ce and Procedure, and it does not apply here. 26 In
short, there is no reference, anywhere in the document, to any regulation that purportedly
authorizes this type of submission as an adjudicatory filing. Nor does any such regulation exist.
And the Commission has plainly held that adjudicatory submissions of this type are
procedurally improper.27 Moreover, the Shutdown Request here is procedurally non-compliant
in multiple other respects. Accordin gly, it should be summarily rejected.
A. The Shutdown Request Is Procedurally Improper
Affirmative requests for exercise of supervis ory authority, such as the one presented
here, are disfavored and improper. The Commission has emphatically rejected similar requests
in the past, ordering that [t]he parties should limit their requests for our review to those set forth
in our rules.28 More directly, the Commission recen tly confirmedin a unanimous decision
24 See Shutdown Request (providing the full captioned title).
25 See, e.g., id . at 3.
26 See, e.g., 10 C.F.R. §§ 2.309 (petitions to intervene), 2.345 (petition for reconsideration), 2.802 (petition for rulemaking).
27 Seabrook, CLI-19-7, 90 NRC at 8.
28 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-11-14, 74 NRC 801, 813 n.67 (2011).
8 that such requests are procedurally improper.29 Accordingly, the Shutdown Request should be
summarily denied.
B. Viewed as a Motion, the Shutdown Request Fails to Comply with Multiple Procedural Requirements on Consultation and Timeliness
Even if requests for exercise of supervisory authority were permissible (they are not),
they would be considered general motions, governed by the requirements of 10 C.F.R. § 2.323 of
the NRCs Rules of Practice and Procedure.30 Counsel for Requesters is experienced in NRC
adjudicatory proceedings and is certainly aware that 10 C.F.R. § 2.323 imposes strict
requirements for timeliness and consultation with other parties. Nevertheless, none of those
requirements were satisfied (or even mentioned) here.
The timeliness requirement in § 2.323(a)(2) requires that motions be filed within ten
(10) days after the occurrence or circumstance from which the motion arises. It is unclear
which occurrence or circumstance purportedly gives rise to the Shutdown Request; but, in any
event, Requesters identify no PG&E filing, NRC approval, or any other event occurring within
10 days of September 14, 2023, when the Shutdown Request was filed.
Furthermore, 10 C.F.R. § 2.323(b) plainly specifies that [a] motion must be rejected if it
does not include a certification by the attorney or representative of the moving party that the
movant has made a sincere effort to contact other parties in the proceeding and resolve the
issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been
29 Seabrook, CLI-19-7, 90 NRC at 8.
30 The most proximate procedural analog to the Shutdown Request is a Motion. See Motion, BLACKS LAW DICTIONARY (11th ed. 2019) (A written [] application requesting [] a specified ruling or order.).
9 unsuccessful.31 The Shutdown Request includes no such certification. Thus, the outcome here
is nondiscretionarythe Shutdown Request must be rejected.32
IV. THE COMMISSION SHOULD DENY THE SHUTDOWN REQUEST BECAUSE IT LACKS SUFFICIENT JUSTIFICATION
In addition to denying the Shutdown Request on procedural grounds, the Commission
also should deny it because it fails to provide sufficient justification for the requested actions.
A. The Shutdown Request Identifies No Extraordinary Circumstances Warranting Supervisory Intervention
Notwithstanding the obvious procedural defects identified above, the Commission, of
course, may exercise its discretion to invoke its inherent supervisory authority over agency
proceedings if it finds a compelling reason to address a novel or important issue.33 But the
Commission rarely circumvents the normal proc esses contemplated in its regulations; and,
historically, it has done so only in truly extraordinary circumstances.
For example, the Commission stepped-in to exercise supervisory authority following the
September 11 terrorist attacks due to a corresponding flurry of litigation in dozens of NRC
proceedings.34 As another example, the Commission acted directly on a series of petitions
following the Fukushima Dai-ichi accident.35 Neither is comparable to the instant Shutdown
Request.
In fact, the circumstances presented in the Shutdown Request stand in stark contrast to
the truly exceptional and unprecedented situations in those examples. Simply put, the
31 Emphasis added.
32 10 C.F.R. § 2.323(b).
33 Seabrook, CLI-19-7, 90 NRC at 10.
34 See, e.g., Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141 (2011).
35 Id. at 145-46.
10 Requesters have identified a declarant who disagrees with the technical conclusions of the
applicant and the NRC Staff (some that are many decades old) on matters of strict and long-
standing regulatory oversight and compliance. But that is not extraordinary in any way. Indeed,
as mentioned above, the NRCs regulations at 10 C.F.R. § 2.206 contemplate an entire process
for resolving precisely this type of claim. 36 Requesters do not even mention that process, and
certainly make no showing that anything here warrants discarding the NRCs normal, codified
procedure altogether.
Instead, Requesters point to the Yankee Rowe case as alleged justification for their
demand.37 But, as explained below, that case provides no support. As a preliminary matter, it
is important to note that the first step the Commission took upon receiving the request in Yankee
Rowe was to refer it to the § 2.206 process.38
Furthermore, the Commission invoked supervisory review in Yankee Rowe only after
issuance of the Directors Decision as part of that § 2.206 process.39 And the Commission did
not choose that course casually. As the Commission noted, [t]his power is exercised sparingly,
and only when a question of sufficient public importance has been raised. 40 In that case, the
Commission found it appropriate to intervene fo r two reasonsneither of which apply here.
36 See also NRC, Management Directive 8.11, Review Process for 10 C.F.R. § 2.206 Petitions (Mar. 1, 2019)
(ML18296A043); NRC, Desktop Guide: Review Process for 10 C.F.R. § 2.206 Petitions (Nov. 8, 2021)
(ML21237A347).
37 Shutdown Request at 3 n.11 (citing Yankee Atomic Elec. Co. (Yankee Rowe Nuclear Power Station), CLI 11, 34 NRC 3, 12 (1991)).
38 Yankee Rowe, CLI-91-11, 34 NRC at 5 (In view of the request for emergency action, the Commission referred the Petition to the Staff for an immediate response to the request.).
39 Id. at 6.
40 Id.
11 First, the issue in Yankee Rowe involved broad, crossover policy implications for other
unrelated proceedings, including an ongoing rulemaking and future licensing applications. 41
Requesters fail to identify or allege the existence of any such multi-proceeding implications here.
Second, the matter at issue in Yankee Rowe involved a situation that was not directly
contemplated in NRC regulations.42 More specifically, that case involved the discovery of
information that prevented the NRC from conducting its oversight activities as contemplated
during the pendency of a rulemaking to amend the relevant regulation. That certainly is not the
case here. Requesters identify nothing that prevents the NRC Staff from conducting oversight of
capsule withdrawal schedules or fracture toughness analyses as contemplated under 10 C.F.R.
Part 50. And, in fact, the Staff has performed such oversight as to Unit 1without impediment
(or any outstanding concerns)for nearly four decades.
In short, Requesters simply disagree with the methodology used for that oversight, which
was performed pursuant to codified NRC regulations, duly promulgated agency guidance, and
technical specifications imposed in the Unit 1 license via agency order. But, without more,
Requesters disagreement and desire to promote an alternative analysis methodology (one that
deviates from those regulations, guidance, and orders) does not rise to the level of extraordinary
circumstances warranting Commission interjection; and it is not at all analogous to the
circumstances of the September 11 terrorist attacks, the Fukushima Dai-ichi accident, or the
multi-proceeding, oversight-preventing circumstances presented in Yankee Rowe.
41 Id. at 12 (the satisfactory resolution of this matter has implications in terms of age-related degradation considerations in the context of the ongoing reactor operating license renewal rulemaking and subsequent renewal applications.).
42 Id.
12 For these many reasons, the Commission should deny the request for supervisory
intervention.
B. The Request Fails to Justify the Drastic Action of Shutting Down Unit 1
Both the Commission and the United States Court of Appeals for the District of
Columbia Circuit have long recognized that neither the Atomic Energy Act nor NRC regulations
require the invocation of drastic emergency action, such as plant shutdown or suspension of
licensee activities, merely because a third party alleges information adverse to the integrity of
existing nuclear power safety systems.43 The Commission has expressed a strong preference for
deferring to staffs careful, though expeditious, review of safety allegations (e.g., through the
§ 2.206 process or formal rulemaking) in lieu of a hurried response that may impose
unwarranted and severe impact[s] on the operations of our licensees.44
In fact, in 2015, the Commission consideredand summarily rejecteda similar request
filed by FOE seeking an order to suspend operations pending a determination, following a
public hearing, that Diablo Canyon can be safely operated.45 In that proceeding, just as here,
FOE infused its filing with assertions that challenge whether Diablo Canyon can be shut down
safely in light of [safety] issues and whether continued operation should be allowed.46 As the
Commission explained, a request for a hearing on safety concerns and for a safe operation
determination falls squarely within the purposes of a request for enforcement action.47 And the
Commission concluded that FOEs allegations were insufficient to warrant a departure from the
43 Nader v. NRC, 513 F.2d 1045, 1054-55 (D.C. Cir. 1975); In the Matter of Licensees Authorized to Possess or Transport Strategic Quantities of Special Nuclear Material, CLI-77-3, 5 NRC 16, 21 (1977) (citing same).
44 SNM Licensees, CLI-77-3, 5 NRC at 21.
45 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-15-14, 81 NRC 729, 736 (2015).
46 Id. at 736 n.31.
47 Id. at 736.
13 normal § 2.206 processes in light of the extensive licensee and Staff review of the precise issue
raised by FOE.48
So too here. Requesters proffer allegations related to em brittlement, fracture toughness,
pressurized thermal shock, and the capsule withdrawal schedule for Unit 1 as a basis to seek the
immediate closure of Diablo Canyon and insist that a public hearing should be held before
Unit 1 is allowed to resume operation.49 But, again, those demands fall squarely within the
§ 2.206 process. Moreover, PG&E and the NRC Staff have engaged in extensive review and
analysis of embrittlement, fracture toughness, pressurized thermal shock, and the capsule
withdrawal schedule for Unit 1, and there are no outstanding Staff co ncerns related to continued
safe operation of Unit 1. Accordingly, the Commission should deny the Shutdown Request, just
as it did under nearly identical circumstances in 2015.
Notwithstanding the many alarmist charac terizations, the Shutdown Request and
Macdonald Declaration are conspicuously devoid of any detailed allegation that even a single
NRC regulatory requirement is unmet for Unit 1. But that is not surprising, because PG&E and
the NRC Staff have fully and strictly complied with all legal, regulatory, and license
requirements related to embrittlement, fracture toughness, pressurized thermal shock, and the
capsule withdrawal schedule for Unit 1.
Requesters assertion that a safety concern exists is rooted in the fundamental premise
that the requirements themselves should be modified. Put another way, Requesters reach their
extreme conclusion that continue d operation of Unit 1 poses an unreasonable risk to public
health and safety by discounting the rigorous testing and analytical methods adopted by
48 Id. at 737.
49 Shutdown Request at 3-4.
14 consensus standards organizations,50 codified in NRC regulations, and imposed as technical
specifications in the Unit 1 license following robust NRC staff review and public participation.
Instead, they purport to conduct an ad hoc analysis of incomplete 51 information using a
completely new methodology.52 But that completely new methodology has not been
adopted by any consensus organizations; it has not been codified in NRC regulations; and it
certainly is not the methodology of public record imposed in the Unit 1 technical specifications.
Ultimately, Requesters identify no legitimate basis to grant the Request for Shutdown
Order and Remedial Measures. Accordingly, the Commission should deny that request.
V. CONCLUSION
The Commission should summarily reject the Shutdown Request because it is
procedurally improper or because it fails to satisfy the procedural mandates for general
motions. If the Commission nevertheless considers the Filing, it should conclude that Requesters
identify no basis to deviate from the NRCs normal § 2.206 process and does not remotely
provide justification for requiring an immediate shutdown of Unit 1.
50 Id. at 1.
51 Id at 28 (referencing the impossibility of obtaining some documents that were key to understanding PG&Es and the Staffs analyses of record).
52 McDonald Decl. at 17 § V.A.2 para. 1. Indeed, Requesters conclusion that the Unit 1 RPV may reach an unacceptable degree of embrittlement in late 2023 rests on an opaque assertion that Dr. Macdonalds completely new methodology requires a considerable 20-EFPY band of uncertainty (+/- 10 EFPY).
Shutdown Request at 2. But, neither the Shutdown Request nor the Macdonald Decl. acknowledge or discuss the significant conservatisms or methods of accounting for uncertainty that are built-in to the NRC-approved methodologies that have been used in the extensive analyses of Unit 1 embrittlement to date.
15 Respectfully submitted,
Signed (electronically) by Ryan K. Lighty Executed in Accord with 10 C.F.R. § 2.304(d)
RYAN K. LIGHTY, ESQ. TIMOTHY P. MATTHEWS, ESQ.
MORGAN, LEWIS & BOCKIUS LLP PAUL M. BESSETTE, ESQ.
1111 Pennsylvania Avenue, N.W. MORGAN, LEWIS & BOCKIUS LLP Washington, D.C. 20004 1111 Pennsylvania Avenue, N.W.
(202) 739-5274 Washington, D.C. 20004 Ryan.Lighty@morganlewis.com (202) 739-5527 (202) 739-5796 Timothy.Matthews@morganlewis.com Paul.Bessette@morganlewis.com
Counsel for Pacific Gas and Electric Company
Dated in Washington, D.C.
This 25th day of September 2023
16