ML24236A775
| ML24236A775 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/23/2024 |
| From: | Jeremy Wachutka NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 57082, 50-275-LR-2, 50-323-LR-2, LBP-24-6 | |
| Download: ML24236A775 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and
- 2)
Docket Nos. 50-275 LR-2 50-323 LR-2 NRC STAFF BRIEF IN OPPOSITION TO THE SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP APPEAL OF LBP-24-6 Jeremy L. Wachutka Counsel for NRC Staff August 23, 2024
TABLE OF CONTENTS Table of Contents........................................................................................................................... i Table of Authorities........................................................................................................................ ii Introduction................................................................................................................................... 1 Background................................................................................................................................... 2 I.
The 2009 License Renewal Application for Diablo Canyon and Resolution of All Contentions............................................................................................................................ 2 II.
The Request for Immediate Shutdown of Diablo Canyon Unit 1 because of Alleged Reactor Pressure Vessel Embrittlement and its Resolution..................................... 4 III. The Request for Immediate Shutdown of Diablo Canyon because of Alleged Seismic Risks and Ongoing Staff Review.............................................................................. 5 IV. The 2023 License Renewal Application for Diablo Canyon and Hearing Opportunity............................................................................................................................ 7 Discussion..................................................................................................................................... 8 I.
Petitioners Do Not Identify Any Board Error of Law or Abuse of Discretion........................... 9 A.
Requirements for Appeal of a Board Order Denying a Hearing Request........................... 9 B.
Requirements for Contention Admissibility....................................................................... 10 C. Requirements Regarding the Scope of License Renewal Proceedings........................... 10 D. Petitioners Do Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Contention 1........................................................................................ 13 E. Petitioners Do Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Contention 2........................................................................................ 21 F.
Petitioners Do Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Contention 3........................................................................................ 25 Conclusion.................................................................................................................................. 29
- ii -
TABLE OF AUTHORITIES Judicial Decisions FDA v. Brown & Williamson, 529 U.S. 120 (2000)....................................................................... 16 Pub. Citizen v. Dept of Justice, 491 U.S. 440 (1989).................................................................. 16 Texas v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015)......................................................... 19 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)...................................... 27 Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990).................................... 18, 27 United States v. Morgan, 118 F.Supp. 621 (S.D.N.Y. 1953).......................................................... 19 Administrative Decisions Commission AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006)................................................................................................................... 12 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461 (2008).................................................................................................................. 23 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658 (2008)................................................................................................................. 28 Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11 (2024)................. 9 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131 (2016).............. 10 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site),
CLI-22-8, 96 NRC 1 (2022)...................................................................................................... 23 Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
CLI-01-17, 54 NRC 3 (2001)..................................................................................................... 12 Florida Power and Light Co. (Turkey Point Nuclear Generating Units 6 and 7),
CLI-17-12, 86 NRC 215 (2017).................................................................................................... 9 International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247 (2001)................................................................................................................................ 10 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 (2012)....................................................................................................................................... 23 NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),
CLI-22-5, 95 NRC 97 (2022)......................................................................................... 9, 22, 24 Nuclear Fuel Services, Inc. (License Amendment Application), CLI-23-3, 98 NRC 33 (2023)...................................................................................................................................... 10 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-11-11, 74 NRC 427 (2011)....................................................................................... 3, 8, 9, 22 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-15-21, 82 NRC 295 (2015)......................................................................................... passim
- iii -
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-16-11, 83 NRC 524 (2016).......................................................................................... 4, 9, 27 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245 (2010).............................................................................................. 10 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499 (2007).......................... 10, 17, 19 U.S. Department of Energy (High Level Waste Repository), CLI-08-11, 67 NRC 379 (2008)...................................................................................................................................... 27 USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006).......................... 10, 17, 19 Virginia Electric and Power Co. d/b/a Dominion Virginia Power and Old Dominion Electric Coop. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692 (2012)................. 29 Atomic Safety and Licensing Appeal Board Arkansas Power and Light Co. (Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25 (1973)....................................................................................................................................... 27 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395 (1990).................................................................................................................. 10 Atomic Safety and Licensing Board Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), LBP-08-24, 68 NRC 691 (2008).................................................................................................................. 23 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43 (2008)................................................................................................................................. 24 Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4),
LBP-24-3, 99 NRC 39 (2024).................................................................................................. 27 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-10-15, 72 NRC 257 (2010).................................................................................................. 3 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-15-6, 81 NRC 314 (2015)..................................................................................................... 3 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-15-29, 82 NRC 246 (2015)................................................................................................. 4 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-24-6, 100 NRC __ (July 3, 2024) (slip op.)............................................................... passim U.S. Dept. of Energy (High-Level Waste Repository), LBP-09-6, 69 NRC 367 (2006)............... 24 Statutes 16 U.S.C. § 1456(c)(3)(A)............................................................................................................ 26 Atomic Energy Act of 1954.................................................................................................. passim Energy Reorganization Act of 1974............................................................................................. 20 Reorganization Plan No. 1 of 1980.............................................................................................. 20
- iv -
Regulations 10 C.F.R. § 2.206................................................................................................................. passim 10 C.F.R. § 2.309(f)(1)......................................................................................................... passim 10 C.F.R. § 2.335................................................................................................................... 14, 28 10 C.F.R. § 2.335(a).................................................................................................................... 10 10 C.F.R. § 51.20......................................................................................................................... 21 10 C.F.R. § 51.26......................................................................................................................... 21 10 C.F.R. § 51.53(c)(2)................................................................................................................... 3 10 C.F.R. § 51.53(c)(3)(ii)............................................................................................................. 14 10 C.F.R. § 51.73......................................................................................................................... 21 10 C.F.R. § 51.90......................................................................................................................... 21 10 C.F.R. § 51.95(c)(4)................................................................................................................. 14 10 C.F.R. Part 51, Subpt. A, App. B......................................................................................... 3, 14 10 C.F.R. § 54.4............................................................................................................................ 11 10 C.F.R. § 54.21.......................................................................................................................... 11 10 C.F.R. § 54.29.......................................................................................................................... 11 10 C.F.R. § 54.30.......................................................................................................................... 11 15 C.F.R. § 930.57....................................................................................................................... 26 15 C.F.R. § 930.58(a).................................................................................................................. 26 15 C.F.R. § 930.60....................................................................................................................... 26 Miscellaneous Generic Aging Lessons Learned (GALL) Report, NUREG-1801, Rev. 2 (2010).................. 23, 25 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Final Report, NUREG-1437, Revision 1 (June 2013).................................... 13, 14 License Renewal Application; Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, Units 1 and 2, 88 Fed. Reg. 87,817 (Dec. 19, 2023)................................ 7 Nuclear Plant License Renewal, 53 Fed. Reg. 32,919 (Aug. 29, 1988)....................................... 10 Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991)............................. 11 Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995)......................................................................................................................................... 11 Pacific Gas & Electric Company; Diablo Canyon Power Plant, Unit Nos. 1 and 2; Withdrawal of License Renewal Application, 83 Fed. Reg. 17,688 (Apr. 23, 2018).................... 4 Production and Utilization Facilities; Request for Comments on Development of Policy for Nuclear Power Plant License Renewal, 51 Fed. Reg. 40,334 (Nov. 6, 1986)........................................................................................................................................ 10
- v -
Review Process for 10 CFR 2.206 Petitions, Management Directive 8.11 (Mar. 1, 2019)...................................................................................................................................... 5, 6 Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal, Final Report, NUREG-1555, Supplement 1, Revision 2 (Aug. 2024).................................................................................... 27 U.S. Nuclear Regulatory Commission Internal Commission Procedures (Mar. 24, 2016)........................................................................................................................................ 20
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and
- 2)
Docket Nos. 50-275 LR-2 50-323 LR-2 NRC STAFF BRIEF IN OPPOSITION TO THE SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP APPEAL OF LBP-24-6 INTRODUCTION In accordance with 10 C.F.R. § 2.311(b), the U.S. Nuclear Regulatory Commission Staff files this brief in opposition to the San Luis Obispo Mothers for Peace (SLOMFP), Friends of the Earth (FOE), and Environmental Working Group (collectively, Petitioners) appeal of the holding of Atomic Safety and Licensing Board Memorandum and Order LBP-24-6 that none of Petitioners three contentions regarding the Pacific Gas and Electric Company (PG&E) license renewal application (LRA) for Diablo Canyon Nuclear Power Plant, Units 1 and 2 are admissible.
The Boards determination that each of Petitioners contentions do not meet all the contention admissibility requirements is consistent with Commission regulations and precedent, including Commission precedent regarding a previous Diablo Canyon license renewal application.
Specifically, the Contention 1 argument alleging greater-than-assumed seismic risks for Diablo Canyon is outside the limited scope of license renewal, as defined by Commission regulations and precedent, and amounts to a challenge to those regulations without seeking a waiver of the regulations, as is required. The Contention 2 argument that focuses on the current condition of the Diablo Canyon Unit 1 reactor pressure vessel (RPV) instead of the management of its aging during the license renewal term is similarly inconsistent with the Commissions license renewal regulations and precedent. And the Contention 3 argument that the LRA does not comply with the Coastal Zone Management Act does not identify any actual non-compliance. Moreover, Petitioners previously raised before the Commission the arguments of Contentions 1 and 2 and the Commission has already addressed those arguments by referring them to the Staff for resolution. On appeal, Petitioners do not identify any error of law or abuse of discretion related to the Boards denial of their contentions or explain why the Commission should treat the arguments of Contentions 1 and 2 any differently than it did previously. Petitioners simply restate and impermissibly supplement arguments that they made previously, further challenge regulations without a waiver of those regulations, and generally express disagreement with LBP-24-6. Therefore, the Commission should deny Petitioners appeal and affirm LBP-24-6.
BACKGROUND I.
The 2009 License Renewal Application for Diablo Canyon and Resolution of All Contentions Arguments regarding a Diablo Canyon license renewal application have been raised before licensing boards and the Commission in the past. A number of those arguments are similar to arguments in Petitioners hearing request and appeal. The previous application of Commission regulations and precedent to those arguments demonstrates that the Board did not commit an error of law or abuse of discretion in denying Petitioners hearing request and that the Commission should deny Petitioners appeal.
In 2009, PG&E submitted a license renewal application for Diablo Canyon.1 SLOMFP requested a hearing on that application.2 The Board granted the hearing request, in part, and the Commission affirmed the Boards decision, in part, resulting in the admission of a single 1 Letter from James R. Becker, PG&E, to NRC Document Control Desk, Diablo Canyon Units 1 and 2, License Renewal Application (Nov. 23, 2009) (ML093340086).
2 Request for Hearing and Petition to Intervene by San Luis Obispo Mothers for Peace (Mar. 22, 2010)
(ML100810439).
contention of omission alleging that the severe accident mitigation alternatives (SAMA) analysis in the environmental report submitted with the application did not consider the seismic impacts from the Shoreline Fault, a recently identified fault located offshore of Diablo Canyon.3 SLOMFP also challenged the environmental impacts of spent fuel storage and submitted a petition for waiver of the NRCs regulations that otherwise provide that such an impact has been generically determined for the renewal of all plants.4 The Commission denied this contention finding that SLOMFP had not met the factors for the granting of the waiver and that, without such a waiver, the contention was not within the scope of the proceeding.5 On June 2, 2011, the Staff published a safety evaluation report documenting its safety review of the 2009 license renewal application, as supplemented through March 25, 2011.6 In October 2014, FOE requested a hearing based on the availability of additional PG&E analyses related to the Shoreline Fault.7 FOE argued that in light of these analyses, PG&E has not demonstrated that the plant can be safely operated under its existing operating license[s].8 The Board denied that argument as a current operating issue not unique to whether PG&Es licenses should be renewed and the Commission affirmed this decision on appeal.9 Thereafter, in October 2015, the Board granted summary disposition of the sole admitted contention, finding that PG&E had updated the SAMA analysis in its environmental report such 3 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 438 (2011); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-10-15, 72 NRC 257, 292 (2010).
4 Diablo Canyon, CLI-11-11, 74 NRC at 444-45 (citing 10 C.F.R. Part 51, Subpt. A, App. B and 10 C.F.R.
§ 51.53(c)(2)).
5 Id. at 451-52.
6 Safety Evaluation Report Related to the License Renewal of Diablo Canyon Nuclear Power Plant, Units 1 and 2, Docket Nos. 50-275 and 50-323 (June 2011) (ML11153A103).
7 Friends of the Earths Request for a Hearing and Petition to Intervene (Oct. 10, 2014) (ML14283A586).
8 Id. at 3.
9 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 304-05 (2015); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-15-6, 81 NRC 314, 320-21 (2015).
that it no longer omitted consideration of the Shoreline Fault.10 The Board also rejected a SLOMFP argument that, despite the absence of admitted contentions, the Board should hold the proceeding open until the Staffs issuance of a draft supplemental environmental impact statement.11 The Board stated that keeping the proceeding open would be contrary to the Commissions direction that a licensing boards jurisdiction terminates when there are no longer any contested matters pending before it and, accordingly, the Board terminated the proceeding.12 The Commission affirmed these actions on appeal.13 In 2018, PG&E requested, and the NRC granted, the withdrawal of the 2009 license renewal application.14 II. The Request for Immediate Shutdown of Diablo Canyon Unit 1 because of Alleged Reactor Pressure Vessel Embrittlement and its Resolution The argument of Contention 2 has already been raised before the Commission.
Specifically, on September 14, 2023, SLOMFP and FOE requested, in part, that the Commission order the immediate shutdown of Diablo Canyon, Unit 1 because of alleged embrittlement of its RPV.15 This request was supported by an attached declaration of Digby Macdonald, Ph.D.16 The 10 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-15-29, 82 NRC 246, 253-54 (2015).
11 Id.
12 Id. at 254-55.
13 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-11, 83 NRC 524 (2016).
14 Letter from James M. Welsch, PG&E, to NRC Document Control Desk, Diablo Canyon Units 1 and 2, Request to Withdraw the Diablo Canyon Power Plant License Renewal Application (Mar. 7, 2018)
(ML18066A937); Letter from George A. Wilson Jr., NRC, to James M. Welsch, PG&E, Response to Request to Withdraw the Diablo Canyon Power Plant, Unit Nos. 1 and 2, License Renewal Application (Apr. 16, 2018) (ML18093A115); Pacific Gas & Electric Company; Diablo Canyon Power Plant, Unit Nos. 1 and 2; Withdrawal of License Renewal Application, 83 Fed. Reg. 17,688 (Apr. 23, 2018).
15 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 (Sept. 14, 2023) (ML23257A302) (Embrittlement Shutdown Request).
16 Id. at Att. 1, Declaration of Digby Macdonald, Ph.D. in Support of Hearing Request and Request for Emergency Order by San Luis Obispo Mothers for Peace and Friends of the Earth (Sept. 14, 2023) (2023 Macdonald Declaration).
request argued that the Unit 1 [RPV] could reach an unacceptable level of embrittlement relatively early in the license renewal term and that, therefore, the Commission should order the immediate closure of Diablo Canyon pending the completion of a series of remedial actions.17 In response, the Secretary of the Commission, for the Commission, referred the request to the Staff for consideration under 10 C.F.R. § 2.206.18 In accordance with Management Directive (MD) 8.11, the Staff convened a Petition Review Board (PRB) to consider the matter.19 On March 8, 2024, the PRB issued its initial assessment that the request did not meet the applicable criteria for acceptance.20 The PRB also responded to all of the concerns raised in the request.21 Finally, the PRB informed SLOMFP and FOE that they may request a meeting with the PRB to supplement their request.22 Such a meeting was held on April 29, 2024 and was transcribed.23 After considering the additional information provided at that meeting, on June 18, 2024, the PRB issued its final assessment that the request did not meet the applicable criteria for acceptance.24 The PRB identified and responded to the additional information provided at the meeting and the matter was concluded.25 III. The Request for Immediate Shutdown of Diablo Canyon because of Alleged Seismic Risks and Ongoing Staff Review The argument of Contention 1 has already been raised before the Commission.
17 Embrittlement Shutdown Request at 2-3.
18 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 1) Order of the Secretary, at 3 (Oct. 2, 2023) (unpublished) (ML23275A225).
19 See Review Process for 10 CFR 2.206 Petitions, Management Directive 8.11 (Mar. 1, 2019)
(ML18296A043) (MD 8.11).
20 Email from Natreon Jordan, NRC, to Diane Curran, SLOMFP and FOE, Initial Assessment for Mothers for Peace and Friends of the Earth 2.206 Petition Regarding Diablo Canyon (Mar. 8, 2024)
(ML24058A103).
21 Id.
22 Id.
23 See 2.206 Petition Review Board RE Diablo Canyon Power Plant Unit 1, Official Transcript of Proceedings (Apr. 29, 2024) (ML24132A002).
24 Letter from Jamie Pelton, NRC, to Diane Curran, SLOMFP and FOE (June 18, 2024) (ML24155A218).
25 Id.
Specifically, on March 4, 2024, Petitioners requested that the Commission order the immediate shutdown of Diablo Canyon because of alleged unacceptable seismic risks.26 This request was supported by an attached declaration of Peter Bird, Ph.D.27 The request argued that PG&E is underestimating the seismic risks to Diablo Canyon and that, therefore, the Commission should order the immediate closure of Diablo Canyon.28 In response, the Secretary of the Commission, for the Commission, referred the request to the Staff for consideration under 10 C.F.R. § 2.206.29 In accordance with MD 8.11, the Staff convened a PRB to consider the matter.
On May 15, 2024, the PRB issued its initial assessment that the request did not meet the applicable criteria for acceptance.30 The PRB also responded to all of the concerns raised in the request.31 Finally, the PRB informed Petitioners that they may request a meeting with the PRB to supplement their request.32 On June 7, 2024, Petitioners supplemented their request with another declaration of Dr. Bird.33 Petitioners also requested a meeting with the PRB, which was held on July 17, 2024 and was transcribed.34 Petitioners provided presentation material at that meeting.35 After considering the additional information provided since its initial assessment, the 26 Petition by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group for Shutdown of Diablo Canyon Nuclear Power Plant due to Unacceptable Risk of Seismic Core Damage Accident (Mar. 4, 2024) (ML24067A066) (Seismic Shutdown Request).
27 Id. at Ex. 1, Declaration of Peter Bird, Ph.D. (Mar. 4, 2024) (Bird Declaration).
28 Seismic Shutdown Request at 1-3.
29 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) Order of the Secretary (Mar. 12, 2024) (unpublished) (ML24072A529).
30 Email from Perry Buckberg, NRC, to Diane Curran, Hallie Templeton, Caroline Leary, Petitioners, Diablo Canyon Seismic Core Damage 2.206 petition - Initial Assessment (May 15, 2024)
(ML24136A162).
31 Id.
32 Id.
33 Supplemental Declaration of Peter Bird, Ph.D. (June 7, 2024) (ML24162A079).
34 See 10 CFR 2.206 Petition Review Board RE Diablo Canyon, Official Transcript of Proceedings (July 17, 2024) (ML24218A164).
35 Correcting 4 False Assumptions in PG&Es Seismic Source Characterization [2015] and Update [2024]
that Caused PG&E to Seriously Underestimate Seismic Hazard at Diablo Canyon Nuclear Power Plant (July 17, 2024) (ML24198A105).
PRB issued a final assessment that accepted four specific concerns raised by Petitioners regarding the risk of seismic induced core damage at Diablo Canyon.36 These concerns will be reviewed by the PRB and once the PRB has completed that review, it will consider whether enforcement action is warranted.37 IV. The 2023 License Renewal Application for Diablo Canyon and Hearing Opportunity By letter dated November 7, 2023, PG&E submitted a new license renewal application for Diablo Canyon,38 for which the Staff provided notice of an opportunity to request a hearing.39 In response, Petitioners filed a hearing request with three contentions.40 Attached to the hearing request was a declaration of Dr. Bird, which is identical to the Dr. Bird declaration that Petitioners provided with their request for immediate shutdown of Diablo Canyon because of alleged seismic risks. Also attached to the hearing request was a declaration of Dr. Macdonald, which refers to and has appended to it the 2023 Macdonald declaration that was provided with the request for immediate shutdown of Diablo Canyon Unit 1 because of alleged RPV embrittlement. The Staff and PG&E filed answers opposing the hearing request;41 Petitioners 36 Email from Perry Buckberg, NRC, to Diane Curran, Hallie Templeton, Caroline Leary, Petitioners, Diablo Canyon Seismic Core Damage 2.206 petition - Accepted (Aug. 22, 2024) (ML24235A203).
37 Id. Information on the status of 10 C.F.R. § 2.206 petitions under consideration, as well as information on petition actions that have been completed, is available at https://www.nrc.gov/reading-rm/doc-collections/petitions-2-206/index.html.
38 Letter from Paula Gerfen, PG&E, to NRC Document Control Desk, Diablo Canyon Units 1 and 2, License Renewal Application (Nov. 7, 2023) (ML23311A154) (LRA).
39 License Renewal Application; Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, Units 1 and 2, 88 Fed. Reg. 87,817 (Dec. 19, 2023).
40 Request by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group for Hearing on Pacific Gas & Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (dated Mar. 4, 2024; filed Mar. 5, 2024) (ML24065A433) (Hearing Request); Exhibit 1 - Standing Declarations (ML24065A433); Exhibit 2 - Declaration of Peter Bird (ML24065A434) (Bird Declaration); Exhibit 3 - Declaration of Digby Macdonald (ML24065A435) (2024 Macdonald Declaration);
Exhibit 4 - CCC [California Coastal Commission] Letter (ML24065A436) (CCC Letter).
41 NRC Staff Answer Opposing the San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group Hearing Request (Mar. 29, 2024) (ML24089A110); Pacific Gas and Electric Companys Answer Opposing the Hearing Request Filed by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group (Mar. 29, 2024) (ML24089A241).
filed a reply.42 On May 22, 2024, the Board held oral argument.43 On July 3, 2024, the Board issued LBP-24-6, denying Petitioners hearing request.44 On July 29, 2024, Petitioners filed a notice of appeal of LBP-24-6 and an accompanying supporting brief.45 DISCUSSION On appeal, Petitioners repeat and supplement the arguments that they made before the Board, as well as arguments that they have already made before the Commission, and do not identify any specific error of law or abuse of discretion related to the Boards denial of their three contentions. On the contrary, the Boards denial of those contentions is consistent with Commission regulations and precedent. Specifically, the Board correctly denied the safety argument of Contention 1 because, as the Commission held in a previous Diablo Canyon license renewal proceeding, concerns regarding the safety of a plant with respect to seismic risks are not within the limited scope of a license renewal proceeding.46 Moreover, this argument has already been referred to the Staff by the Commission. The Board correctly denied the environmental argument of Contention 1 because, as the Commission held in a previous Diablo Canyon license renewal proceeding, a challenge to the environmental impact determinations codified in the agencys rules without a waiver of those rules is not within the scope of a license renewal proceeding.47 The Board correctly denied Contention 2 because, in part, as the Commission held in a previous Diablo Canyon license renewal proceeding, the limited scope of 42 Reply by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group to Oppositions to Request for Hearing on Pacific Gas and Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Apr. 5, 2024) (ML24096B784) (Reply).
43 See Diablo Canyon Nuclear Power Plant Units 1 and 2 License Renewal, Official Transcript of Proceedings (May 22, 2024) (ML24150A182; ML24179A075) (Tr.).
44 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-24-6, 100 NRC
__ (July 3, 2024) (slip op.).
45 Notice of Appeal of LBP-24-06 by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group (July 29, 2024) (ML24211A287); Brief by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group on Appeal of LBP-24-06 (July 29, 2024)
(ML24211A288) (Appeal).
46 Diablo Canyon, CLI-15-21, 82 NRC at 304-05.
47 Diablo Canyon, CLI-11-11, 74 NRC at 451-52.
a license renewal proceeding cannot be circumvented by arguing that a current operating issue might carry forward into the license renewal term.48 Moreover, this argument has already been referred to the Staff by the Commission. And the Board correctly denied Contention 3 because that contention does not show, as is required by the Commissions regulations, that a genuine dispute exists with PG&E on a material issue of law or fact. Finally, the Board correctly rejected Petitioners argument that the proceeding should be kept open because of the potential for future litigation regarding Contention 3 because, as the Commission held in a previous Diablo Canyon license renewal proceeding, the Boards jurisdiction terminates when there are no longer any contested matters pending before it.49 Therefore, as explained below, for the same reasons that the Commission has done so previously with respect to similar arguments, the Commission should now deny Petitioners appeal.
I.
Petitioners Do Not Identify Any Board Error of Law or Abuse of Discretion A. Requirements for Appeal of a Board Order Denying a Hearing Request Under 10 C.F.R. § 2.311, a Board order denying a hearing request is appealable by the petitioner on the question as to whether the hearing request should have been granted. On threshold matters such as contention admissibility, though, the Commission will defer to the Boards rulings unless an appeal demonstrates an error of law or abuse of discretion.50 Therefore, an appeal of a Boards decision on contention admissibility or standing that consists of just a [r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient.51 It is also not sufficient to present[]
48 Diablo Canyon, CLI-11-11, 74 NRC at 435-37. See also NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2), CLI-22-5, 95 NRC 97, 108 (2022).
49 Diablo Canyon, CLI-16-11, 83 NRC at 538-39.
50 See, e.g., Nuclear Fuel Services, Inc. (License Amendment Application), CLI-23-3, 98 NRC 33, 36 (2023) (citing Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2024)).
51 Florida Power and Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017).
arguments and evidence never provided to the Board.52 Further, an argument that was previously made before the presiding officer but not discussed on appeal is considered abandoned.53 B. Requirements for Contention Admissibility The requirements for contention admissibility are in 10 C.F.R. § 2.309(f)(1), which states that a hearing request must set forth with particularity the contentions that the petitioner seeks to raise and that, for each contention, the hearing request must satisfy six criteria. The contention admissibility requirements are strict by design.54 Failure to satisfy any one of the six criteria renders a contention inadmissible.55 Absent a waiver, a contention must be rejected as outside the scope of the proceeding if it challenges applicable regulations.56 C. Requirements Regarding the Scope of License Renewal Proceedings In developing its license renewal regulations at 10 C.F.R. Part 54, the NRC engaged in extensive research and public outreach regarding how to define the scope of license renewal.57 Ultimately, in a final rule issued in 1991, the NRC decided that it is not necessary to review each 52 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007) (quoting USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006)).
53 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245, 257 (2010) (citing International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395, 414 (1990)).
54 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).
55 Id.
56 10 C.F.R. § 2.335(a) ([N]o rule or regulation of the Commission is subject to attack in any adjudicatory proceeding in the absence of a waiver petition granted by the Commission.); Diablo Canyon, CLI-15-21, 82 NRC at 302 (Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.).
57 See, e.g., Production and Utilization Facilities; Request for Comments on Development of Policy for Nuclear Power Plant License Renewal, 51 Fed. Reg. 40,334, 40,335 (Nov. 6, 1986) (proposing for public comment questions such as whether a plant applying for license renewal should be required to demonstrate conformance with regulations then in effect and which, if any, licensing criteria are not appropriate for reviewing license renewal applications); Nuclear Plant License Renewal, 53 Fed. Reg.
32,919, 32,919-20 (Aug. 29, 1988) (asking what the benefits are of requiring a licensee to verify its licensing design basis as part of license renewal).
license renewal application against current licensing standards to ensure that continued operation during the license renewal term is not inimical to the public health and safety because the NRCs ongoing regulatory oversight ensures that new issues and concerns are addressed as they arise.58 Instead, the review of a license renewal application involves evaluating only the safety issue that has not been treated in a comprehensive fashion in the Commissions ongoing oversight of operating reactors, which is age-related degradation of plant systems, structures, and components that is unique for the extended period of operation.59 In 1995, the Commission confirmed this limited scope for license renewal.60 10 C.F.R. Part 54 implements this limited scope by specifically defining those issues that are unique to license renewal as, generally speaking, the effects of aging as managed through aging management programs (AMPs) and the continued applicability of time-limited aging analyses (TLAAs) with respect to certain systems, structures, and components.61 10 C.F.R. Part 54 bases the issuance of renewed licenses on applicants addressing these issues that are unique to license renewal.62 10 C.F.R. Part 54 then provides that all other issues are not within the scope of license renewal.63 Because of these regulations and their regulatory history, the Commission has consistently held that the scope of license renewal proceedings is specifically limited to those issues that are 58 Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,945 (Dec. 13, 1991) ([T]he added discipline of a formal license renewal review against the full range of current safety requirements would not add significantly to safety.).
59 Id. at 64,946.
60 Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,464 (May 8, 1995)
(explaining that the first principle of license renewal is that with the exception of age-related degradation unique to license renewal, the regulatory process is adequate to ensure that the licensing bases of all currently operating plants provides and maintains an acceptable level of safety so that operation will not be inimical to public health and safety or common defense and security.).
61 10 C.F.R. §§ 54.4, 54.21.
62 10 C.F.R. § 54.29.
63 10 C.F.R. § 54.30 (stating that any instances of licensed activities not being conducted in accordance with a plants current licensing basis during the license term are not within the scope of the renewal review and, instead, must instead be dealt with under [the] current license).
unique to license renewal; all other issues are dealt with through the NRCs ongoing regulatory oversight of the plant, which is separate from its review of a license renewal application.64 The NRCs ongoing regulatory oversight of plants involves ensuring that plants comply with their current licensing bases or that their current licensing bases are modified as needed.
For example, following the accident at the Fukushima Dai-Ichi nuclear power plant resulting from the March 11, 2011, Great Tohoku Earthquake and subsequent tsunami, the Staff directed all licensees, including the Diablo Canyon licensee, to determine, in part, whether their plants current licensing bases needed to be modified with respect to seismic and flooding hazards.65 The NRC also implements a Process for Ongoing Assessment of Natural Hazards Information (POANHI) to proactively and routinely aggregate and assess new natural hazards information for operating nuclear power plants.66 Additionally, any concerns regarding the current operation of plants may be brought to the attention the NRC through a request pursuant to 10 C.F.R.
§ 2.206 to institute a proceeding to modify, suspend, or revoke a license, or for any other action that may be proper. Thus, the Commission routinely states that contentions in license renewal proceedings that relate to out-of-scope current operating issues, rather than issues unique to 64 See, e.g., Diablo Canyon, CLI-15-21, 82 NRC at 304-05 (As the Board properly recognized, this contention raises a current operating issue that is not unique to whether [the] licenses should be renewed. A central principle of our license renewal regulations is that such issues must be addressed as they arise. Accordingly, our regulations rely on the regulatory processes applicable to all currently operating reactors to address most safety and security issues, limiting license renewal proceedings to consideration of only certain issues related specifically to plant aging. Contention 1 does not address the particular aging-related matters within the scope of license renewal proceedings under our 10 C.F.R. Part 54 regulations. Thus, the contention is outside the scope of this license renewal proceeding.). See also AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 117-18 (2006); Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10 (2001).
65 See, e.g., Letter from NRC to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (Mar. 12, 2012) (ML12053A340).
66 Process for the Ongoing Assessment of Natural Hazards Information, Office of Nuclear Reactor Regulation Office Instruction LIC-208 (Nov. 20, 2019) (ML19210C288).
license renewal, are appropriately resolved through the 10 C.F.R. § 2.206 process instead of through the hearing opportunity on the license renewal application.67 D. Petitioners Do Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Contention 1 In Contention 1, Petitioners point to January 2024 earthquakes in the Noto Peninsula of Japan to argue that earthquake sources relevant to Diablo Canyon are similar to those in the Noto Peninsula and that, therefore, the seismic risks at Diablo Canyon, with respect to both (1) the safety of the plant and (2) the environmental impacts from severe accidents at the plant, are greater than those assumed by PG&E.68 In LBP-24-6, consistent with Commission regulations and precedent, the Board correctly determined that the safety argument of Contention 1 is not admissible because seismic risk is not an issue unique to license renewal, but is addressed by the NRCs ongoing regulatory oversight and, therefore, contrary to 10 C.F.R. § 2.309(f)(1)(iii),
this argument is not within the scope of this license renewal proceeding.69 The Board also correctly determined that the safety argument of Contention 1 is not admissible for the independent reason that, contrary to 10 C.F.R. § 2.309(f)(1)(vi), Petitioners do not cite to any specific portion of the Diablo Canyon LRA that will be impacted by the purportedly different seismic risk that they posit.70 With respect to the environmental argument of Contention 1, the Board correctly determined, first, that it is not admissible pursuant to 10 C.F.R. § 2.309(f)(1)(iii).
Specifically, the Board identified that the Commissions 2013 Generic Environmental Impact 67 See, e.g., Diablo Canyon, CLI-15-21, 82 NRC at 307-08 (As the Board correctly observed, our rules provide other mechanisms for Friends of the Earth to raise its concerns that would not require us to redefine the scope of this proceeding. In particular, Friends of the Earth may file a request to institute a proceeding to modify, suspend, or revoke a license, or for any other action that may be proper, if it believes that PG&Es seismic design and licensing basis is now invalid and that safe operation of the plant can no longer be assured. We decline to set aside our license renewal regulations to conduct what would be an entirely different proceeding when there are more appropriate avenues available for Friends of the Earth to seek relief.).
68 Hearing Request at 7-13.
69 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 27-28).
70 Id. at __ (slip op. at 32).
Statement (GEIS) states as part of its discussion of the generic issue of geology and soils that
[c]hanges in potential seismic hazards are not within the scope of the license renewal environmental review, except, where appropriate, during the analysis of [SAMA], because any such changes would not be the result of continued operation of the nuclear power plant.71 The Board explained that this statement is codified by the Commissions regulations72 and that Petitioners conceded at oral argument that they were not asserting a SAMA contention.73 Therefore, the Board concluded that the environmental argument of Contention 1 is, by rule, not within the scope of this license renewal proceeding.74 As a second, independent reason for its rejection of the environmental argument of Contention 1, the Board identified that the characterization of severe accidents as having SMALL environmental impacts in the Diablo Canyon environmental report came directly from the Commissions regulations, which, in turn, are based on the GEIS.75 Therefore, the Board correctly concluded that Petitioners assertion that this characterization should have been LARGE instead of SMALL amounts to a challenge to the GEIS and the Commissions regulations, which is prohibited by 10 C.F.R.
§ 2.335 without a waiver, and Petitioners did not request a waiver.76 On appeal, Petitioners concede that their Contention 1 safety and environmental arguments are not admissible under the Commissions regulations and precedent, which define the scope of license renewal and license renewal proceedings as limited to those issues unique 71 Id. at __ (slip op. at 34) (quoting Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Final Report, NUREG-1437, Revision 1, at 3-52 (June 2013)
(ML13106A241)).
72 Id. (citing, inter alia, 10 C.F.R. § 51.95(c)(4) (In order to make recommendations and reach a final decision on the proposed action, the NRC staff, adjudicatory officers, and Commission shall integrate the conclusions in the [GEIS] for issues designated as Category 1 [i.e., generic] with information developed for those Category 2 [i.e., site-specific] issues applicable to the plant under [10 C.F.R.] § 51.53(c)(3)(ii) and any new and significant information.)).
73 Id. (citing Tr. at 46-47, 77-80).
74 Id.
75 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 35-36) (citing 10 C.F.R. Part 51, Subpt. A., App. B, Tbl. B-1).
76 Id. at __ (slip op. at 36-37).
to license renewal, whereas all other issues are addressed by the NRCs ongoing regulatory oversight, and which prohibit challenges to the NRCs regulations without a waiver of those regulations.77 Instead, they rely wholly on an unsupported theory, repeated from their hearing request, reply, and oral argument, that a specific statement made by the NRC Chair during a congressional budget hearing had the effect of overriding these regulations and precedent, as well as overriding the Commission regulations regarding contention admissibility, such that Petitioners Contention 1 should be granted.78 In LBP-24-6, the Board included the testimony referred to by Petitioners as follows:
Sen. Padilla. And in the same spirit but more specifically, not just maintaining safety standards more broadly, but continuing to be operationally safe with specific concern about seismic risk, which we have talked about for years here, and maintaining of that. Any comments here would be helpful. Also a friendly reminder to anticipate that when you do have these public hearings.
Mr. Hanson. Of course. We are going to be looking at updated safety information as part of that license renewal process.
We did require all plants to take a look at the enhanced, relook at their risks after Fukushima. Diablo, of course, did look at their seismic risk and we will take another look at that as part of the license renewal process.
We also have a process, it is the process on natural hazards information, basically, it is kind of an ongoing information gathering on external hazards to plants where we look at that in conjunction with the licensee about maybe any changing conditions at the plant with regard to external hazards to make sure we are incorporating that into our safety bases.[79]
77 Appeal at 5 (NRC regulations for implementation of the Atomic Energy Act (10 C.F.R. Part 54) excuse[]
PG&E from addressing seismic risks in the safety portion of its [LRA] and NRC regulations for the implementation of the National Environmental Policy Act (10 C.F.R. Part 51) excuse[] PG&E from addressing seismic risks in its Environmental Report.). See also Appeal at 12-13.
78 Compare Hearing Request at 13-15, Reply at 7-8, 11, and Tr. at 42, 47-48, 75-76 with Appeal at 11-13.
79 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 28-29) (citing the Nuclear Regulatory Commissions Proposed Fiscal Year 2024 Budget: Hearing Before the S. Comm. on Envt and Pub.
Works, 117th Cong. 73-74 (2023) (statement of Christopher Hanson, Chair, U.S. Nuclear Reg. Commn),
https://www.epw.senate.gov/public/?a=Files.Serve&File_id=FAA1FDEE-B869-4888-BF76-5BA6D8B317BB).
Petitioners assert that this testimony amounts to a binding commitment by the Commission that the NRC will, as part of its review of the Diablo Canyon LRA, conduct a comprehensive review of the seismic risk to [Diablo Canyon] and, not only that, but will include the public in that review through the hearing process.80 Thus, on the basis of their interpretation of a single statement by the NRC Chair, Petitioners seek to override the entirety of the Commissions regulatory structure for license renewals and for hearings that limit reviews of license renewal applications to issues unique to license renewal, that address all other issues through ongoing regulatory oversight, and that grant hearings only for requests that satisfy the NRCs contention admissibility requirements.81 In LBP-24-6, the Board rejected Petitioners expansive and unsupported interpretation of the NRC Chairs testimony. This was not an error of law or abuse of discretion because the Board properly considered the NRC Chairs words both in their context and with a view to their place in the overall statutory scheme82 and so as to avoid absurd results.83 First, the Board interpreted the NRC Chairs testimony in harmony with the Commissions regulations and precedent that define the license renewal process as both (1) the review of a license renewal application with respect to issues unique to license renewal and (2) ongoing regulatory oversight for all other issues. Specifically, the Board rightly understood the statement that the NRC is going to be looking at updated safety information as part of that license renewal process as referring to the fact that the review of a license renewal application involves reviewing all issues unique to license renewal, including to the extent that they may be impacted by seismic risk.84 80 Appeal at 2.
81 See id. at 11 (Chairman Hansons commitment overrode the NRCs Part 54 and Part 51 regulations and rendered Petitioners claims material to the NRCs license renewal decision.).
82 FDA v. Brown & Williamson, 529 U.S. 120, 133 (2000).
83 Pub. Citizen v. Dept of Justice, 491 U.S. 440, 453-55 (1989).
84 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 30).
Second, whereas Petitioners only quoted an excerpt of the NRC Chairs testimony to support their argument,85 the Board considered the entirety of that testimony and demonstrated that the question posed to the NRC Chair and his response included both aspects of the Commissions license renewal process. Specifically, in response to the broad question of Diablo Canyon continuing to be operationally safe with respect to seismic risk, the NRC Chair not only discussed the review of license renewal applications, which would include looking at seismic risk as it may relate to issues unique to license renewal, but he also discussed the previous example of the NRC, in its oversight role, requiring that all plants relook at seismic risks following the Fukushima Dai-Ichi accident. Additionally, he went on to discuss the NRCs POANHI process of continually gathering external hazards information and using that information to determine whether any changes to plant safety bases may be required. This amounts to a fulsome explanation of the entirety of the Commissions license renewal process and not some sort of implicit commitment to act contrary to that process and to review current seismic risks as part of the review of the Diablo Canyon LRA. The Boards interpretation also avoided the absurd result that the NRC Chair who is, as stated by Petitioners, closely familiar with the general regulatory framework of the NRCs regulatory process in speaking to an audience [un]familiar with the structure of the NRCs license renewal process86 would entirely countermand that process without clearly and affirmatively explaining this intent.87 85 See Hearing Request at 14; Appeal at 5.
86 Appeal at 12-13.
87 Petitioners also state that the California legislature implicit[ly] assum[ed] that before permitting continued operation of [Diablo Canyon], the NRC would undertake a robust reexamination of seismic and other safety risks to [Diablo Canyon]. Appeal at 4. However, Petitioners do not explain how such an alleged assumption could impact the proper interpretation of the NRC Chairs testimony. If anything, any perceived public confusion regarding the Commissions license renewal process would tend to support the interpretation that if the NRC Chair had intended to change that process, then he would have done so clearly and affirmatively. Moreover, Petitioners do not explain how their discussion of the legislatures concern with the costs of plant upgrades, id., couldnt just as easily relate to aging management activities that are within the scope of the Diablo Canyon LRA. Finally, this is a new argument that was not raised before the Board and, therefore, should not now be entertained by the Commission. See Shieldalloy, CLI-07-20, 65 NRC at 503-05 (quoting American Centrifuge, CLI-06-10, 63 NRC at 458).
Finally, Petitioners assertion that the NRC Chairs testimony also committed to include the public in the review of current seismic issues through the hearing process is meritless.88 As with Petitioners other arguments, this would amount to overriding the Commissions regulations, which, in this instance, specify the requirements for an admissible contention. However, there is no support in the record for Petitioners argument. Additionally, although Petitioners assert that the NRC Chairs statement made their Contention 1 arguments material to the NRCs license renewal decision under Union of Concerned Scientists v. NRC, 735 F.2d 143[7], 1438 (D.C. Cir.
1984),89 that decision, as later ruled by the same court, does not stand for the proposition advanced by Petitioners that any party raising a material issue has a right to intervene under the Atomic Energy Act of 1954, as amended (AEA).90 Importantly, the NRC Chairs statement that the NRC will take another look at seismic risk as part of the license renewal process is not simply theoretical: consistent with the framework of the Commissions license renewal regulations, which includes looking at issues related to current operation as they may arise, the NRC is, in fact, currently examining the exact seismic issue that Petitioners raised in Contention 1 under its 10 C.F.R. § 2.206 process. At the same time as the filing of their hearing request, Petitioners also submitted this issue to the Commission in their petition seeking the immediate shutdown of Diablo Canyon and the Commission referred it to the Staff to consider under 10 C.F.R. § 2.206.91 Moreover, the Staffs ongoing 10 C.F.R. § 2.206 review is much more developed than Petitioners hearing request.
Whereas the hearing request includes only the Dr. Bird declaration, the Staffs 10 C.F.R. § 2.206 review includes that same declaration as well as Petitioners supplement to that declaration, 88 Appeal at 2.
89 Id. at 11.
90 Union of Concerned Scientists v. NRC, 920 F.2d 50, 54 (D.C. Cir. 1990).
91 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) Order of the Secretary (Mar. 12, 2024) (unpublished) (ML24072A529).
supporting testimony, and a presentation.92 Based on this additional information, the Staff recently accepted four specific concerns raised by Petitioners regarding the risk of seismic induced core damage at Diablo Canyon.93 These concerns will be reviewed by the Staff and once the Staff has completed that review, it will consider whether enforcement action is warranted.94 Therefore, the issue is being resolved through the appropriate process and there is no basis to also resolve that issue through this license renewal proceeding.
As the Board correctly found, Petitioners provided no support before the Board for their argument that the NRC Chairs testimony could have the effect of overriding Commission regulations and precedent such that Contention 1 should be admitted.95 Therefore, as a threshold matter, the Commission should not entertain this argument now that for the first time on appeal, Petitioners have attempted to provide support for it.96 But even if the Commission were to reach this argument, the Commission, too, would rightly find it lacking. Although Petitioners assert on appeal that NRC Commissioners have plenary power, they cite to caselaw that does not actually support their argument that this power could extend to overriding existing Commission regulations and precedent through an NRC Chair statement.97 Instead, the 92 See Seismic Shutdown Request; Supplemental Declaration of Peter Bird, Ph.D. (June 7, 2024)
(ML24162A079); 10 CFR 2.206 Petition Review Board RE Diablo Canyon, Official Transcript of Proceedings (July 17, 2024) (ML24218A164); Correcting 4 False Assumptions in PG&Es Seismic Source Characterization [2015] and Update [2024] that Caused PG&E to Seriously Underestimate Seismic Hazard at Diablo Canyon Nuclear Power Plant (July 17, 2024) (ML24198A105).
93 Email from Perry Buckberg, NRC, to Diane Curran, Hallie Templeton, Caroline Leary, Petitioners, Diablo Canyon Seismic Core Damage 2.206 petition - Accepted (Aug. 22, 2024) (ML24235A203).
94 Id.
95 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 29 n.127) (Petitioners did not cite authority for the proposition that such testimony is binding.).
96 Appeal at 12-13. See Shieldalloy, CLI-07-20, 65 NRC at 503-05 (quoting American Centrifuge, CLI 10, 63 NRC at 458) (The purpose of an appeal to the Commission is to point out errors made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the Board.).
97 Appeal at 12 (citing Texas v. United States, 86 F.Supp.3d 591, 654 n.64 (S.D. Tex. 2015) (using, in part, the testimony of the Internal Revenue Service Commissioner to understand how statutory provisions would apply to a specific set of facts, not to argue that that testimony could somehow override those provisions); United States v. Morgan, 118 F.Supp. 621, 699 (S.D.N.Y. 1953) (discussing as persuasive an relevant legal requirements are the Energy Reorganization Act of 1974, as amended, and the Reorganization Plan No. 1 of 1980, and the guidance for implementing these legal requirements is the NRCs Internal Commission Procedures (ICP).98 These statutes and guidance provide that the functions of the Commission of policy formulation, rulemaking, and orders and adjudications are vested in the Commission as a whole.99 With respect to these functions, each Commissioner has equal responsibility and authority and has one vote, with the action of the Commission determined by a majority vote of the Commissioners present.100 The ICP explains how such voting is performed.101 Moreover, when acting as principal executive officer, the NRC Chair is governed by such regulatory decisions, findings, and determinations as the Commission may by law be authorized to make.102 Therefore, Petitioners claim that the NRC Chairs testimony, along with the silence of the other Commissioners, overrides the Commissions regulations and precedent with respect to the Diablo Canyon license renewal is baseless.103 Commission decisions on adjudicatory and rulemaking matters require voting and Petitioners have not explained how the NRC Chairs testimony and the silence of the other Commissioners could constitute voting. Likewise, Petitioners do not provide support for the view that the NRC Chair has the legal authority to unilaterally override Commission regulations and opinion of the U.S. Securities and Exchange Commission (SEC) applying facts to law, and not that the SEC could somehow override that law)).
98 U.S. Nuclear Regulatory Commission Internal Commission Procedures (Mar. 24, 2016)
(ML19296A025) (ICP).
99 Reorganization Plan No. 1 of 1980 at § 1(a).
100 Energy Reorganization Act of 1974 at § 201.
101 See ICP at Ch. III (Commission decision-making is done through notational voting on prescribed vote sheets, by affirming a notational vote at an Affirmation session, by responding to action memoranda, or through voting at scheduled Commission meetings.).
102 Reorganization Plan No. 1 of 1980 at § 2(c).
103 Appeal at 5 (Chairman Hanson and his fellow Commissioners committedformally and without rebuttal or qualificationto undertake a new review of seismic risks to [Diablo Canyon] during the license renewal process.). See also Appeal at 13 n.35 ([N]one of [the NRC Chairs] fellow [C]ommissioners demurred or sought to qualify his statement. Thus, they can reasonably be presumed to have agreed with and supported [the NRC Chairs] promise.).
precedent. Therefore, the Board did not commit an error of law or abuse its discretion by rejecting Petitioners unsupported theory.
In sum, Petitioners concede that Contention 1 is not admissible under the Commissions regulations and precedent.104 Petitioners argument that a statement made by the NRC Chair should be considered in isolation, rather than in context and with consideration for all applicable statutes, regulations, and caselaw, is unreasonable and does not cure the deficiencies in Contention 1. Moreover, the Staff is already considering the substance of Contention 1 in the correct processthe 10 C.F.R. § 2.206 request for agency action process.105 Therefore, just as the Commission has previously decline[d] to set aside [its] license renewal regulations to conduct what would be an entirely different proceeding when there are more appropriate avenues available to seek relief,106 the Board appropriately rejected Petitioners request to do that here and the Commission should affirm that decision.
E. Petitioners Do Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Contention 2 In Contention 2, Petitioners argued that the Diablo Canyon LRA does not include an adequate plan to manage the aging of the Diablo Canyon Unit 1 RPV.107 For support, Petitioners referred to the 2024 Macdonald Declaration, which, in turn, refers to the LRA, alleges that the embrittlement of the Diablo Canyon Unit 1 RPV is currently unacceptable, and argues that because the LRA relies upon the current RPV surveillance program, this situation will continue into the license renewal term.108 104 Appeal at 5.
105 Therefore, contrary to Petitioners statement, they have not been barr[ed] from providing any input regarding safety issues. Appeal at 2. Moreover, the Commissions regulations include the solicitation and consideration of comments on environmental issues. See, e.g., 10 C.F.R. §§ 51.20, 51.26, 51.73, and 51.90. Finally, 10 C.F.R. § 2.206 is the exactly applicable process for bringing Petitioners repeated claims that the seismic risks for Diablo Canyon meet[] the NRCs criteria for immediate shutdown of a nuclear reactor. Appeal at 8, 10.
106 Diablo Canyon, CLI-15-21, 82 NRC at 308.
107 Hearing Request at 16.
108 Id. at 16-17; 2024 Macdonald Declaration at 4-6.
In LBP-24-6, the Board correctly determined that Contention 2 is not admissible for three independent reasons.109 First, contrary to 10 C.F.R. § 2.309(f)(1)(iii), Contention 2 is not within the scope of this license renewal proceeding because, as demonstrated by Petitioners focus on actions taken by (or not taken by) PG&E and/or the Commission prior to PG&Es submission of the LRA, it has to do with the alleged current embrittlement of the Diablo Canyon Unit 1 RPV as opposed to the issue of how PG&E intends to manage the aging of the RPV during the license renewal term.110 The Commission has held that such an argument is a challenge to a current operating issue and is, therefore, not within the scope of a license renewal proceeding.111 Additionally, prior to filing their hearing request, Petitioners raised this issue directly to the Commission in their request for immediate shutdown of Diablo Canyon Unit 1 because of alleged reactor pressure vessel embrittlement.112 After considering the issue, the Commission found that Petitioners argument concerns a current operating issue and referred it to the Staff for consideration under 10 C.F.R. § 2.206, which is the regulatory process by which the public may bring current operating issues to the attention of the NRC.113 Second, the hearing request does not include any references to specific portions of the LRA as is required by 10 C.F.R.
§ 2.309(f)(1)(vi).114 Instead, Petitioners incorporate by reference the 2024 Macdonald Declaration and its references to the LRA, which the Board rightly found likely contravenes 109 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 38).
110 Id. at __ (slip op. at 38-41).
111 Id. at __ (slip op. at 39-40) (citing Point Beach, CLI-22-5, 95 NRC at 108). See also Diablo Canyon, CLI-11-11, 74 NRC at 435-37 (holding that alleged current mismanagement at Diablo Canyon could not be carried forward to support a contention regarding the license renewal term, instead, such matters are appropriately addressed as part of the NRCs ongoing regulatory oversight of the plant and, therefore, could properly be brought to the Staffs attention by filing a request for agency action in accordance with 10 C.F.R. § 2.206).
112 See Embrittlement Shutdown Request.
113 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 1) Order of the Secretary, at 3 (Oct. 2, 2023) (unpublished) (ML23275A225).
114 See Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 41-42).
Commission regulations and precedent.115 This is because 10 C.F.R. § 2.309(f)(1) specifies that it is the request or petition that must provide sufficient information that must include references to specific portions of the application. Moreover, the Board determined that, contrary to 10 C.F.R. § 2.309(f)(1)(iv), the references in the 2024 Macdonald Declaration to the LRA are not material to the findings that the Staff must make in response to the LRA.116 Finally, at oral argument, Petitioners acknowledged that the only aspect of the LRA that they were challenging was the reactor vessel surveillance AMP.117 However, the LRA expressly notes that that AMP is consistent with exception with the reactor vessel surveillance AMP in the NRCs Generic Aging Lessons Learned (GALL) Report.118 And Commission precedent provides that AMPs taken from the GALL Report are assumed to be reasonable.119 Therefore, the Board correctly found that Contention 2 is not admissible for the third independent reason that Petitioners did not dispute the statement in the LRA regarding consistency with the GALL Report.120 On appeal, Petitioners do not identify a specific error of law or abuse of discretion related to the Boards denial of Contention 2 and, instead, simply restate the arguments from their hearing request. As before, they continue to reiterate their claim that the embrittlement of the Diablo Canyon Unit 1 RPV is currently unacceptable and, therefore, will continue to be so during the license renewal term.121 This, though, does not engage with the Boards decision; on 115 Id. at __ (slip op. at 42 n.174) (citing 10 C.F.R. § 2.309(f)(1); Entergy Nuclear Operations, Inc.
(Palisades Nuclear Plant and Big Rock Point Site), CLI-22-8, 96 NRC 1, 100 (2022); Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), LBP-08-24, 68 NRC 691, 737 (2008))
116 Id. at __ (slip op. at 42-44).
117 Id. at __ (slip op. at 46 n.195) (citing Tr. at 96-97).
118 LRA at App. B, B.2-95 (citing Generic Aging Lessons Learned (GALL) Report, NUREG-1801, Rev. 2, at § XI.M31 (2010) (ML103490041)).
119 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 45-46) (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 304 (2012); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 467-68 (2008)).
120 Id. at __ (slip op. at 46-47).
121 Appeal at 14-16.
the contrary, it reinforces the Boards finding that Contention 2 has to do with a current operating issue and so, contrary to 10 C.F.R. § 2.309(f)(1)(iii), is not within the scope of this license renewal proceeding. Petitioners point to LBP-08-13 as support that Contention 2 should have been found to be within the scope of this proceeding.122 However, they do not dispute that a later ruling by the Commission, which was binding on the Board, found that concerns with the current condition of an RPV are not within the scope of a license renewal proceeding.123 In response to the Board finding that Contention 2 is likely inadmissible because, contrary to 10 C.F.R. § 2.309(f)(1)(vi), it does not include any references to specific portions of the LRA but, instead, refers only to the 2024 Macdonald Declaration, which, in turn, refers to the LRA, Petitioners point to LBP-09-6.124 However, the facts of that decision are the exact opposite of the instant facts and align with, rather than contradict, the Boards denial of Contention 2. In LBP-09-6, petitioners submitted attachments to their hearing requests that pointed back to the hearing requests for support, while the hearing requests themselves contained all of the required information.125 Therefore, the basis for the potential inadmissibility of Contention 2 was not at issue in LBP-09-6. Here the Board appropriately found that Contention 2 likely fails to meet the requirements of 10 C.F.R. § 2.309(f)(1) because, per the language of that rule, it is the hearing request that must include references to specific portions of the application and not attachments to that hearing request. Therefore, Petitioners reference to LBP-09-6 does not support an argument that the Board erred or abused its discretion in rejecting Contention 2.
Finally, even if Petitioners were correct that under 10 C.F.R. § 2.309(f)(1)(iii) their Contention 2 argument is within the scope of this license renewal proceeding and that under 10 122 Id. at 17 (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 131 (2008)).
123 See Point Beach, CLI-22-5, 95 NRC at 107-08.
124 Appeal at 15 n.41 (citing U.S. Dept. of Energy (High-Level Waste Repository), LBP-09-6, 69 NRC 367, 408 (2006)).
125 High-Level Waste Repository, LBP-09-6, 69 NRC at 406-09.
C.F.R. § 2.309(f)(1)(vi) the references to the LRA in the 2024 Macdonald Declaration may stand in for the lack of such references in the hearing request itself, Petitioners do not dispute the other two independent reasons provided by the Board for the denial of Contention 2. The Board appropriately found that, contrary 10 C.F.R. § 2.309(f)(1)(iv), the references to the LRA in the 2024 Macdonald Declaration regarding (1) the deadline for removing and testing Capsule B and (2) the relation of certain ultrasonic testing of beltline welds to the scheduled ultrasonic testing inspection were not material to the findings that the Staff must make.126 Petitioners do not dispute this finding on appeal but simply repeat the two references to the LRA.127 Additionally, Petitioners do not dispute the Boards denial of Contention 2 for failing to provide any argument concerning the consistency of the LRA with the GALL Report.128 By not disputing two of the independent reasons for the Boards denial of Contention 2, Petitioners have not shown that the Board erred or abused its discretion and, therefore, the Commission should deny Petitioners appeal of the Boards denial of Contention 2.
F. Petitioners Do Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Contention 3 The Board determined that Contention 3, through which Petitioners argued that PG&E has failed to demonstrate compliance with the Coastal Zone Management Act (CZMA), is not admissible because Petitioners do not show that a genuine dispute exists with PG&E on a material issue of law or fact as is required by 10 C.F.R. § 2.309(f)(1)(vi).129 On appeal, Petitioners do not identify an error of law or abuse of discretion related to this determination and, therefore, the Commission should deny the appeal.
126 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 42-45).
127 Appeal at 15-16 (Dr. Macdonald also cited specific portions of the LRA to demonstrate that PG&E implicitly relies on deadlines in its current operating license for withdrawal of surveillance Capsule B and the conduct of ultrasonic testing, without explicitly setting new deadlines as part of the license renewal application.).
128 See Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 45-47).
129 See id. at __ (slip op. at 47-52).
In LBP-24-6, the Board discussed the CZMA consistency determination process in which a license renewal applicant must provide a consistency certification in its federal application and at the same time to the state, along with necessary data and information.130 The state then reviews the consistency certification and the necessary data and information, asks for additional information on the consistency certification and/or the necessary data and information as needed, and then determines whether to concur with or object to the consistency certification.131 Based on this process, the Board correctly determined that all that was required of PG&E at the application stage was to provide a consistency certification to the NRC and the California Coastal Commission, which it has done.132 That the California Coastal Commission has informed PG&E that it needs more information before it can consider the Diablo Canyon license renewal consistency certification,133 and that the CZMA generally prohibits federal agencies from granting licenses until the state concurs with the consistency certification, does not change the fact that nothing more was required of PG&E with respect to the LRA.134 Petitioners concern is essentially speculation that in the future, contrary to the CZMA, the NRC may issue renewed licenses for Diablo Canyon without the State of Californias concurrence on the consistency certification. Petitioners argued that, therefore, the Board should admit Contention 3 now to 130 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 48-49). See 15 C.F.R. § 930.57 ([A]ll applicants for required federal licenses subject to State agency review shall provide in the application to the federal licensing agency a certification that the proposed activity complies with and will be conducted in a manner consistent with the management program. At the same time, the applicant shall furnish to the State agency a copy of the certification and necessary data and information.).
131 Id. See 15 C.F.R. § 930.60 (The State agencys six-month review period of an applicants consistency certification begins on the date the State agency receives the consistency certification required by [15 C.F.R.] § 930.57 and all the necessary data and information required by 15 C.F.R. § 930.58(a); however, this six-month review period will not commence if an applicant (1) fails to submit a consistency certification or (2) fails to submit all necessary data and information in which case the State agency will notify the applicant and request the missing information and commence the six-month review period once the missing information is received).
132 Id. at __ (slip op. at 48-50) (citing LRA at § 9.5.11 & Att. F).
133 See CCC Letter.
134 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 49-50) (citing 16 U.S.C. § 1456(c)(3)(A) (No license shall be granted by the Federal agency until the state has concurred with the applicants certification.)).
account for such an eventuality and to preclude such an argument raised by Petitioners in the future from being found to be untimely.135 The Board correctly found this argument unpersuasive because the record demonstrates that the Staff and PG&E are both aware of the requirements of the CZMA, there is a presumption of administrative regularity that the Staff will fully and properly carry out its duties, Petitioners have not presented any evidence to rebut the presumption that the Staff will act in conformity with the CZMA, and the Commission disapproves of the admission of unripe or placeholder contentions.136 Therefore, the Board appropriately concluded that Contention 3 is not admissible because Petitioners do not demonstrate a genuine dispute with PG&E on a material issue of law or fact as is required by 10 C.F.R. § 2.309(f)(1)(vi).137 On appeal, Petitioners argue that the Boards denial of Contention 3 was unlawful under the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in Union of Concerned Scientists v. NRC (UCS I) because concurrence from the California Coastal Commission is a material issue on which the NRC must offer a hearing under the AEA.138 This argument fails, though, because, as later ruled by that same court, UCS I does not establish, as [Petitioners] contend[], that any party raising a material issue has a right to intervene, but only that the NRC may not preclude all parties from raising a specified material issue.139 135 Id. at __ (slip op. at 50-51) (citing Reply at 16-17; Tr. at 137, 142).
136 Id. at __ (slip op. at 50-51) (citing Tr. at 141-43; Diablo Canyon, CLI-16-11, 83 NRC at 536 n.72; Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal, Final Report, NUREG-1555, Supplement 1, Revision 2, at 3-3 (Aug. 2024)
(ML23201A227); U.S. Department of Energy (High Level Waste Repository), CLI-08-11, 67 NRC 379, 384 (2008); Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-3, 99 NRC 39, 66 (2024)). See also Arkansas Power and Light Co. (Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25, 28 (1973) (The well-recognized presumption of administrative regularity fully extends to the discharge by the staff of its responsibilities and, therefore, a licensing board is obligated to proceed in deciding the question before it on the assumption that the staff would fully and properly carry out its duties.).
137 Id. at __ (slip op. at 52).
138 Appeal at 18-19 (citing Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1438, 1443 (D.C. Cir.
1984) (UCS I)).
139 Union of Concerned Scientists v. NRC, 920 F.2d 50, 54 (D.C. Cir. 1990) (UCS II).
Instead, the applicable standard for intervention in this proceeding includes the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) and those requirements are consistent with the AEA.140 Petitioners implicit challenge to that standard through its assertion of an alternative standard amounts to an impermissible challenge to the Commissions regulations without a waiver of those regulations.141 Ultimately, the Board correctly determined that Contention 3 does not meet all of the contention admissibility requirements. By advocating for different requirements than those prescribed by the NRCs rules instead of challenging the Boards application of the facts to those rules, Petitioners have not identified a Board error of law or abuse of discretion.
Finally, in response to the Boards discussion that violations of the CZMA could be raised in the future upon their alleged occurrence through motions to reopen the record under 10 C.F.R. § 2.326 and motions to file new or amended contentions under 10 C.F.R. § 2.309(c),142 Petitioners assert that [t]he NRC may not reject the contention now as unripe and later impose a heightened pleading standard on Petitioners for litigating their concern.143 Here, too, Petitioners impermissibly substitute their preferred standard for the Commissions and challenge the Commissions regulations without seeking a waiver that would allow them to do so.144 Moreover, as the Commission has held, [w]hile [the] rule governing motions to reopen sets a high standard it by no means prohibits hearings on significant new safety or environmental 140 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 677-78 (2008) (petitioner argued that the AEA guarantees a right to a hearing on any issue that is material to licensing, but the Commission held that its rules appropriately limit that right and, therefore, must be met before any hearing may be granted).
141 See 10 C.F.R. § 2.335.
142 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 51, 51 n.212).
143 Appeal at 19.
144 See 10 C.F.R. § 2.335.
issues and therefore is not tantamount to denying [a petitioner] its right to a hearing under the AEA.145 In sum, Petitioners arguments on appeal regarding Contention 3 that the AEA both requires a hearing and prohibits the termination of this proceeding in this instance are contrary to the Commissions regulations, which, consistent with the AEA, appropriately limit the right to a hearing and appropriately dictate how terminated proceedings may be reopened. Therefore, Petitioners have not identified an error of law or abuse of discretion by the Board and the Commission should deny their appeal.
CONCLUSION For the reasons provided above, the Commission should deny Petitioners appeal and affirm LBP-24-6.
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 August 23, 2024 Email: Jeremy.Wachutka@nrc.gov 145 Virginia Electric and Power Co. d/b/a Dominion Virginia Power and Old Dominion Electric Coop. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 700 (2012).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2 Docket Nos. 50-275 LR-2 50-323 LR-2 Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFF BRIEF IN OPPOSITION TO THE SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP APPEAL OF LBP-24-6, dated August 23, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 23rd day of August 2024.
/Signed (electronically) by/
Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9188 Email: Jeremy.Wachutka@nrc.gov