ML25196A349

Commission Memorandum and Order (CLI-25-04)

ML25196A349
Person / Time
Site:	Diablo Canyon
Issue date:	07/15/2025
From:	Carrie Safford NRC/SECY
To:	NRC/OCM
SECY RAS
References
RAS 57410, 50-275-LR-2, 50-323 LR-2, CLI-25-04
Download: ML25196A349 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Annie Caputo Bradley R. Crowell Matthew J. Marzano In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units and )

Docket No. --LR-

--LR-CLI--

MEMORANDUM AND ORDER This proceeding relates to the license renewal application of the Diablo Canyon Nuclear Power Plant. San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group (Petitioners) have appealed the Boards denial of their petition for leave to intervene and request for a hearing.1 For the reasons discussed below, we affirm the Boards determination that Petitioners contentions are inadmissible.

BACKGROUND On November,, Pacific Gas & Electric (PG&E) applied for a renewal of the operating licenses for the Diablo Canyon Nuclear Power Plant for an additional twenty years.2 1 LBP--, NRC __ (July, ) (slip op.).

2 The initial license for Unit expired on November,, and the application would extend the license until November,. The license for Unit would be extended from August,

, to August,. See Letter from Paula Gerfen, PG&E, to NRC Document Control Desk (Nov., ), at (ADAMS accession no. MLA) (Cover Letter); see generally id., Encl., Diablo Canyon, Units and, License Renewal Application (Application). PG&E

The NRC Staff published a notice of opportunity to request a hearing on PG&Es application.3 Petitioners filed a petition to intervene, proffering three contentions.4 PG&E and the Staff opposed the petition on the grounds that none of the three contentions Petitioners submitted were admissible under our hearing standards.5 In LBP--, the Board held that the petition to intervene did not offer an admissible contention.6 Petitioners appeal the Boards denial of its three contentions.7 PG&E and the Staff oppose Petitioners appeal.8 requested, and was granted, an exemption from C.F.R. §.(b); thus, Units and are in timely renewal. See Cover Letter at.

3 License Renewal Application; Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, Units and, Fed. Reg., (Dec., ).

4 Request by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group for Hearing on Pacific Gas and Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Mar., ) (Petition). The Board deemed the petition timely because Petitioners emailed the document to counsel for the Staff and PG&E by the deadline, even though the pleading was not filed through the NRCs e-filing system until the following day. LBP--, NRC at __ (slip op. at ).

5 See Pacific Gas and Electric Companys Answer Opposing the Hearing Request Filed by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group (Mar.

, ) (opposing petition on both standing and contention admissibility); NRC Staff Answer Opposing the San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group Hearing Request (Mar., ) (Staff Answer). The Staff acknowledged Petitioners standing but argued that none of the proposed contentions was admissible. See Staff Answer at -, -.

6 The Board found that all three petitioners had demonstrated standing. See LBP--, NRC at __ (slip op. at ).

7 Brief by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group on Appeal of LBP-- (July, ) (Appeal).

8 Pacific Gas and Electric Companys Answer Opposing the Appeal by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group (Aug., ); NRC Staff Brief in Opposition to the San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group Appeal of LBP-- (Aug., ).

DISCUSSION A.

Scope of License Renewal The scope of the license renewal safety review and any associated license renewal adjudicatory proceeding is limited to the detrimental effects of aging posed by long-term reactor operation.9 As the Commission has explained, the objective of the license renewal safety review is to supplement the regulatory process, if warranted, to provide sufficient assurance that adequate safety will be assured during the extended period of operation.10 Effectuating this objective, the Commissions regulations in C.F.R. Part define the scope of the safety review as encompassing, essentially, the evaluation of 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.11 Underlying the Commissions license renewal regulations is the principle that each nuclear power plant has a plant-specific licensing basis that must be maintained during the renewal term in the same manner and to the same extent as during the original licensing term.12 This current licensing basis is the set of NRC requirements (including regulations, orders, technical specifications, and license conditions) applicable to a specific plant, and includes the licensees written, docketed commitments for ensuring compliance with applicable NRC requirements and the plant-specific design basis.13 The current licensing basis is not 9 See N.J. Envtl. Fedn v. NRC, F.d, (d Cir. ); NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC, ().

10 See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI--, NRC, () (quoting Nuclear Power Plant License Renewal; Revisions, Fed. Reg.,,, (May, ) (License Renewal Rule)).

11 C.F.R. §§.,..

12 Pilgrim, CLI--, NRC at (quoting License Renewal Rule, Fed. Reg. at,).

13 Id. at.

static. It is an evolving set of requirements and commitments for a specific plant that [is]

modified as necessary over the life of a plant to ensure continuation of an adequate level of safety.14 The NRC continually assesses the adequacy of and compliance with the licensing basis both during the original license term and the subsequent license renewal term, and does so through the NRC regulatory oversight process, which includes generic and plant-specific reviews, plant inspections, and enforcement actions.15 A license renewal application is also subject to an environmental review under the National Environmental Policy Act of, as amended (NEPA), and our regulations implementing NEPA.16 In the s, the NRC determined that many of the environmental effects associated with license renewal could be assessed generically because these effects are gradual, predictable, and well understood from operating experience.17 Therefore, the NRC developed a generic environmental impact statement (GEIS) for license renewal and codified its findings in our regulations.18 Recognizing that environmental issues might change over time and 14 Id. (quoting License Renewal Rule, Fed. Reg. at,).

15 Id. (quoting License Renewal Rule, Fed. Reg. at,). The NRC also implements a process for ongoing assessment of natural hazards information to proactively, routinely, and systematically seek, evaluate, and respond to new information on natural hazards for operating nuclear power plants. Proposed Resolution of Remaining Tier and Recommendations Resulting from the Fukushima Dai-ichi Accident, Commission Paper SECY-- (Dec.,

), at & Encl. (MLA (package)); see Process for the Ongoing Assessment of Natural Hazards Information, Office of Nuclear Reactor Regulation Office Instruction LIC-(Nov., ) (MLC).

16 See U.S.C. § et seq.; see generally C.F.R. pt..

17 Entergy Nuclear Operations, Inc. (Indian Point, Units and ), CLI--, NRC, -

().

18 See C.F.R. pt., subpt. A, app. B.

additional issues may arise, the Commission committed to review the material in the GEIS on a ten-year basis.19 The revision produced in applies in this proceeding.20 For each environmental issue considered in the GEIS, the first determination is whether the analysis can be applied to all plants and whether additional plant-specific mitigation measures would be warranted.21 The GEIS designates as Category those issues for which the Staffs analysis has demonstrated the following: () the environmental impacts apply either to all plants or to all plants sharing a specified characteristic; () a single significance level (i.e.,

small, moderate, or large) has been assigned to the impacts; and () it has been determined that additional plant-specific mitigation measures are not likely to be sufficiently beneficial to warrant implementation.22 Category issues are those for which a site-specific impacts analysis is required.23 Because the findings of the NRCs review are summarized and codified in our regulations, Category generic findings may not be challenged in individual license proceedings unless accompanied by a petition for rule waiver.24 The applicants environmental report may adopt the generic findings of the GEIS, but must provide a site-specific analyses of 19 See id. (stating that the Commission intends to review the material in Appendix B on a -

year cycle... and update it if necessary); Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Final Report), NUREG-, rev., vol. (Aug. ), at xxxii (MLA (package)) ( GEIS).

20 See Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Final Report), NUREG-, rev., vols.,, and (Final Report) (June ) (MLA (package)) ( GEIS); Application, app. E, at -. The GEIS was not yet finalized when PG&E submitted its environmental report. As the Board noted, the portions of the GEIS pertaining to matters relevant to this proceeding are substantially similar to those in the revision of the GEIS. See LBP--, NRC at __ (slip op. at n.).

21 See GEIS, vol., at S-; see also C.F.R. Part, subpt. A, app. B, tbl.B-.

22 See GEIS, vol., at -.

23 Id. at -.

24 See C.F.R. §.; see also Indian Point, CLI--, NRC at -; Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI--, NRC, -

().

Category issues.25 The applicants environmental report is a starting point for the Staffs environmental review of the application, the results of which are prepared as a supplement to the GEIS.26 B.

Standards Governing Hearing Requests To be granted a hearing, a petitioner must demonstrate standing and propose at least one admissible contention.27 A contention is admissible if it meets the standards in C.F.R.

§.(f)(). These standards require that a contention state a genuine dispute with the application that is supported by specific facts or expert opinion.28 The dispute raised must also be within the scope of the proceeding and be material to the findings the NRC must make regarding the underlying licensing action.29 A contention that challenges an agency regulation is inadmissible unless the Commission grants a waiver of that regulation.30 As we have previously discussed, in, the NRC revised its rules to prevent the admission of contentions based on little more than speculation.31 We raised the admission standards for contentions to avoid the serious hearing delays caused in the past by ill-defined or poorly supported contentions.32 Under our current rules, while intervenors may use the discovery process to develop a case once contentions are admitted, contentions shall not be 25 See C.F.R. §.(c).

26 See id. §.(c).

27 Id. §.(d)(), (f)().

28 Id. §.(f)()(v)-(vi).

29 Id. §.(f)()(iii)-(iv).

30 See id. §§.(f)(iii),.(a), (b).

31 PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units and ), CLI--,

NRC, () (quoting Duke Energy Corp. (Oconee Nuclear Station, Units,, and ),

CLI--, NRC, ()).

32 Id.

admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute with the applicant.33 We therefore reserve our hearing process for genuine, material controversies between knowledgeable litigants.34 C.

Standard of Review Our regulations allow a petitioner whose hearing request has been wholly denied to appeal as of right.35 We generally defer to the Board on matters of contention admissibility unless an appeal demonstrates an error of law or abuse of discretion.36 Likewise, we generally defer to the Board on questions pertaining to the sufficiency of factual support for the admission of a contention.37 With these points in mind, we turn to Petitioners appeal.

D.

Analysis of the Boards Ruling on Contention Admissibility Petitioners claim that the Board erred in finding their three contentions inadmissible.

Briefly stated, these contentions are: () Contention, which challenged the unacceptable safety risk and significant adverse environmental impact of seismic core damage accidents at Diablo Canyon;38 () Contention, which claimed that the license renewal application does not include an adequate plan to monitor and manage the effects of aging due to embrittlement of the Unit reactor pressure vessel (RPV) or an adequate time-limited aging analysis (TLAA);39 33 Seabrook, CLI--, NRC at (quoting Oconee, CLI--, NRC at ).

34 Id. (quoting Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit ),

CLI--, NRC, () (footnote omitted)).

35 C.F.R. §.(c).

36 Seabrook, CLI--, NRC at.

37 See, e.g., DTE Electric Co. (Fermi ), CLI--, NRC, (); Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI--, NRC, ().

38 Petition at.

39 Id. at.

and () Contention, which stated that the application failed to comply with the Coastal Zone Management Act (CZMA).40 As explained below, we find that Petitioners have not demonstrated that the Board committed an error of law or abuse of discretion in denying admission of these three contentions.

Contention In Contention, Petitioners claimed that continued operation of the reactors raises an unacceptable risk of core damage accidents due to earthquakes, and therefore renewal of the operating licenses would violate the Atomic Energy Acts requirement to provide adequate protection to the health and safety of the public.41 Petitioners also asserted that PG&E underestimated the potential seismic hazard for Diablo Canyon, and therefore continued operation of Diablo Canyon posed large adverse environmental effects rather than the small effects described in PG&Es environmental report.42 Finally, Petitioners maintained that the environmental report should weigh the costs and benefits of the no-action alternative, which would entail closing Diablo Canyon on the reactors current retirement dates.43 As support for Contention, Petitioners cited an expert declaration by Dr. Peter Bird, Professor Emeritus of Geophysics and Geology at the University of California at Los Angeles.44 40 Id. at -; see Coastal Zone Management Act of, as amended, U.S.C. § -.

41 Petition at (quoting Atomic Energy Act of, as amended, §, U.S.C. § (internal quotations omitted)).

42 Id.; see also Tr. at ; LBP--, NRC at __ (slip op. at ).

43 Petition at,.

44 See id. at ; id., Ex., Declaration of Peter Bird, PhD (Mar., ) (Bird Declaration). As support for Contention, Petitioners also cited correspondence between the NRC and PG&E regarding Diablo Canyons seismic risk level and NRC guidance documents that they claimed support a finding that the seismic core damage frequency for Diablo Canyon, as estimated by Dr. Bird, poses a significant safety and environmental risk. Id. at -.

Petitioners conceded before the Board that the application is not required to address issues of seismic risk because these issues are not unique to license renewal.45 They claimed, however, that Contention was within the scope of the proceeding and admissible because of a formal commitment, made by NRC Chairman Hanson on behalf of the Commission to Senator Alex Padilla of the Senate Committee on Environment and Public Works, to re-examine seismic risks during the license renewal process.46 Petitioners also asserted that [t]his commitment logically encompasses the environmental risks posed by extended operation of [Diablo Canyon].47 The Board found that Contention raised concerns outside the scope of the proceeding and did not raise a genuine dispute with the application.48 The Board noted that the scope of a safety review on a license renewal application is limited by our regulations to evaluation of the AMP or TLAA for passive systems, structures and components, and Petitioners conceded that issues of seismic risk do not fall within the scope of these evaluations.49 The Board observed 45 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., ) at, (Reply).

46 Id. at. Petitioners quote Chair Hanson as stating:

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

Id.; see also Petition at -. Petitioners stated, [b]y declaring that its license renewal review will include an evaluation of seismic risks, the NRC has established the materiality of the issue and effectively removed the regulatory obstacles... to bar admission of Contention. Reply at -.

47 Reply at.

48 See C.F.R. §.(f)()(iii), (vi).

49 LBP--, NRC at __ (slip op. at ) (quoting Reply at ); see C.F.R. §..

that Chair Hansons statement, taken in the context of the full exchange with Senator Padilla and viewed in light of the agencys binding regulations and the Commissions associated adjudicatory pronouncements as to the scope of license renewal proceedings, provided nothing other than an indication that the Commission will consider the seismic risk on the required AMP or TLAA aspects of PG&Es [license renewal application].50 In addition, the Board concluded that Petitioners did not meet the required specificity for an admissible contention because Petitioners did not cite any specific portion of the Diablo Canyon [application] that will be impacted by the purportedly different seismic risk posited by Petitioners.51 The Board further found that Contention impermissibly challenged a Commission rule.52 Specifically, the GEIS states that changes in potential seismic hazards are not within the scope of the license renewal environmental review, except as part of the analysis of severe accident mitigation alternatives (SAMAs), because any such changes would not be the result of continued operation of the reactor.53 As Petitioners did not raise a SAMA concern or seek a waiver under C.F.R. §. to allow for a challenge to the GEISs codified conclusion that severe accident impacts were small, the Board found that Contention was inadmissible.54 The 50 LBP--, NRC at __ (slip op. at ). The Board found that Petitioners did not provide a basis for application of the conclusion in Union of Concerned Scientists that the NRC cannot remove from the scope of an adjudicatory proceeding those items that would be factored into the Commissions decision as to whether to grant a license or license renewal. Id.; see Union of Concerned Scientists v. NRC, F.d (D.C. Cir. ).

51 LBP--, NRC at __ (slip op. at -).

52 Id. at __ (slip op. at ).

53 See id. at __ (slip op. at ) (citing GEIS, vol. at -). The Board noted that there is no substantive difference in the parallel provision in the GEIS. Id. at __ (slip op. at n.)

(citing GEIS, vol., at -).

54 See id. at __ (slip op. at -). The environmental reports categorization of severe accident impacts as small came directly from Table B-of C.F.R. Part, Appendix B, which designates severe accidents as a Category issue not subject to challenge without a waiver petition. See C.F.R. pt., subpt. A, app. B, tbl.B-; LBP--, NRC at __ (slip op. at -

); Tr. at. The Board declined to admit the aspect of Contention that sought

Board was unpersuaded by Petitioners argument that Chair Hansons testimony operated to render their environmental claims admissible notwithstanding the codified scope of license renewal.55 We agree with the Board that the contention raises safety and environmental concerns outside the scope of this license renewal proceeding. Petitioners claim that continued operation of Diablo Canyon poses an unacceptable safety risk due to earthquakes is not unique to license renewal, but instead falls within the current licensing basis, and as such is addressed in the Commissions ongoing oversight of operating reactors.56 Further, as the Board observed, Petitioners have not established a nexus between their concerns and the evaluation of aging management or TLAA in the license renewal application.57 On the environmental side, we agree with the Board that the seismic concerns raised in Contention are excluded from consideration in the license renewal process.58 Importantly, Petitioners have conceded that, but for their reconsideration of the no-action alternative because it was based upon Petitioners claim that the environmental impacts of a severe accident were large rather than small and was thus inadmissible for the same reasons as described above. See LBP--, NRC at __ (slip op.

at n.).

55 LBP--, NRC at __ (slip op. at ).

56 Nuclear Power Plant License Renewal, Fed. Reg.,,, (Dec., ); see also Nuclear Power Plant License Renewal; Revisions, Fed. Reg.,,, (May, )

(stating 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 power 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.).

57 See LBP--, NRC at __ (slip op. at -).

58 The Board noted that Petitioners environmental concern in Contention was based upon a claim that PG&E underestimated the seismic hazard for Diablo Canyon. Id. at __ (slip op. at )

(citing Tr. at ). Petitioners have not contested the Boards characterization of the environmental aspect of their contention. See generally Appeal at -. The GEIS states that

[c]hanges in potential seismic hazards are not within the scope of the license renewal review except during the analysis of severe accident mitigation alternatives. As noted above, Petitioners disclaimed an intent to assert a SAMA claim in Contention. See LBP--,

NRC at __ (slip op. at - & n.) (citing Tr. at -, -).

argument regarding Chair Hansons testimony, the subject matter of Contention falls outside the scope of the proceeding.59 In their appeal, Petitioners reassert their claim that Chair Hansons testimony constituted a commitment that overrode the existing limitations on the scope of the NRCs license renewal safety and environmental reviews.60 However, they have not explained how the Boards understanding of Chair Hansons statement, giving due consideration to the full exchange 59 See Reply at - (acknowledging that the application is not required to address issues of seismic risk by C.F.R. Part and that safety reviews for reactor license renewal application[s] do not include seismic risks or issues that are not unique to license renewal);

Appeal at - (acknowledging that the license renewal process limits the safety review to aging management issues and excludes seismic risks from environmental reviews based on the

[GEIS] and noting that the NRCs Part regulations do not require PG&E to address seismic risk in the safety portion of its application.); Tr. at - (acknowledging severe accidents are Category issues with small impacts but stating the legal basis for Contention being within the scope of this license renewal proceeding... is Chairman Hansons statement to Senator Padilla.).

60 See Appeal at -.

between the Chair and Senator Padilla61 in the context of the NRCs licensing process,62 amounted to an error of law or abuse of discretion. Instead, Petitioners point to two district court cases that the Board itself considered in weighing Petitioners concerns and argue that they compel a different outcome.63 Even if we were to credit Petitioners views of the substance of Chair Hansons testimony, neither of these cases stands for the premise that a statement given during a congressional hearing by an agency official, even the Chair of the Commission, binds the agency to a course of action that overrides the plain language of the NRCs regulations and 61 See LBP--, NRC at __ (slip op. at -). Additional context of the exchange between Chair Hanson and Senator Padilla was reproduced by the Board:

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.

Id. at __ (slip op. at -) (quoting The Nuclear Regulatory Commissions Proposed Fiscal Year Budget: Hearing Before the S. Comm. on Envt and Pub. Works, th Cong. -

() (statement of Christopher Hanson, Chair, U.S. Nuclear Reg. Commn),

https://www.epw.senate.gov/public/?a=Files.Serve&File_id=FAAFDEE-B--BF-BADBBB).

62 As part of license renewal, the Staff does not consider seismic risk or hazards independently, but the Staff does evaluate the impacts of the seismic hazard on structures, systems, and components within the scope of the license renewal review, such as those that are part of the AMP. In other words, the Staff considers how seismic hazards impact aging structures, systems, and components.

63 See Appeal at (citing Texas v. United States, F. Supp. d, n. (S.D. Tex. );

United States v. Morgan, F. Supp., (S.D.N.Y. )); LBP--, NRC at __ (slip op. at n.) (citing same).

the established scope of the license renewal review.64 Moreover, Petitioners ignore other, more compelling authorities cited by the Board that seem to support the Boards determination.65 In short, we find that Petitioners have not presented a basis to overturn the Boards decision on Contention.

Finally, we note that although Contention is not admissible within the narrow scope of this adjudicatory proceeding, Petitioners concerns about seismic risk have not been ignored.

Concurrently with filing their intervention petition, Petitioners requested that the Commission order the immediate shutdown of Diablo Canyon because of unacceptable seismic risks.66 Petitioners request was referred to the Executive Director of Operations for consideration under C.F.R. §..67 Although the Staff determined that there is no imminent safety concern that 64 See Appeal at (noting Board rejected Petitioners argument that Chairman Hansons commitment... overrode the NRCs Part and Part regulations and rendered Petitioners claims material to the NRCs license renewal decision....). In the first case cited by Petitioners, Texas v. United States, the testimony cited by the court merely consisted of the Internal Revenue Services Commissioners clarification of how an existing policy applied to a certain population. See Texas v. United States, F. Supp. at n.; Internal Revenue Service Operations and the Presidents Budget for Fiscal Year : Hearing Before the S.

Comm. On Finance, th Cong. (Feb., ). In the second case, United States v.

Morgan, the court considered the views of members of the Securities and Exchange Commission on the application of antitrust laws to certain securities matters in litigation, which the court noted were persuasive and helpful but not binding upon itself or upon any other court or judge. United States v. Morgan, F. Supp. at.

65 The Board considered Lincoln v. Vigil, U.S., (), wherein the Supreme Court found that Congressional testimony by Indian Health Service officials concerning a program for disabled childrens mental health did not commit the Service to continue that specific program, where funds were allocated generally, and their use was committed to the Services discretion.

The Board also cited Ruiz v. Morton, F.d, (th Cir. ), wherein the Ninth Circuit stated that Congressional awareness of the Bureau of Indian Affairs views of the limits of its own jurisdiction could not alter the clear language of a statute providing a broader reach for a program providing assistance to Native Americans throughout the United States.

66 See 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., ), at (MLA).

67 See Order of the Secretary (Mar., ) (unpublished) (referring request for consideration under C.F.R. §.) (MLA); see also Letter from Michael Franovich, NRC, to Diane Curran, Harmon, Curran, Spielberg, & Eisenberg, LLP; Hallie Templeton, Friends of the

warrants immediate shutdown of Diablo Canyon, the Staff accepted four of Petitioners seismic issues for further evaluation under the agencys §. process.68 After considering all of the information submitted to the petition review board, the Staff determined that it did not have a basis to grant the requested action of ordering the shutdown of Diablo Canyon.69 Contention In Contention, Petitioners claimed that the license renewal application does not include an adequate plan to monitor and manage the effects of aging due to embrittlement of the Unit [RPV] or an adequate [TLAA], as required by C.F.R. §..70 Petitioners rely on the declaration of their expert, Dr. Digby Macdonald, who asserts that prior analyses of RPV embrittlement for Diablo Canyon Unit have been inadequate. In Dr. Macdonalds opinion, the NRC currently lacks an adequate basis to conclude that Diablo Canyon Unit can be operated safely; therefore, the NRC lacks a reasonable basis to approve PG&Es license renewal application.71 The Board found Contention inadmissible for three reasons, each of which would independently support dismissal. First, the Board found that the contention challenged the basis for current and past operations at Diablo Canyon and thus raised issues outside the scope of a Earth; and Caroline Leary, Environmental Working Group (Aug., ) (MLA);

Letter from Michael Franovich, NRC, to Diane Curran, Harmon Curran, Spielberg, & Eisenberg, LLP; Hallie Templeton, Friends of the Earth; and Caroline Leary, Environmental Working Group (Dec., ) (MLA).

68 See Pacific Gas & Electric Company; Diablo Canyon Nuclear Power Plant, Units and ;

Petition, Fed. Reg., (Dec., ).

69 Directors Decision Under C.F.R.. (June, ), at - (MLA); see Letter from Michael X. Franovich, NRC, to Diane Curran, Harmon, Curran, Spielberg, & Eisenberg, LLP; Hallie Templeton, Friends of the Earth; and Caroline Leary, Environmental Working Group (June, ) (MLA).

70 Petition at.

71 Id., Ex., Declaration of Digby Macdonald (Mar., ), ¶¶ - (Macdonald Declaration).

license renewal safety review.72 Second, the Board found neither the petition nor Dr. Macdonalds declaration specifically identified portions of the application that are the subject of a genuine, material dispute that would warrant a hearing.73 Third, the Board found that Petitioners had not disputed the relevant aspects of PG&Es application, which states that the AMP for the RPV was consistent with the Generic Aging Lessons Learned (GALL) Report, a key license renewal guidance document that describes acceptable AMPs.74 On appeal, Petitioners repeat arguments they made before the Board but do not show error in the Boards reasoning or point to specific parts of the Boards analysis they disagree with. Instead, they argue generally that the Board failed to consider the detail and specificity within Dr. Macdonalds declaration.75 Petitioners point to several subparagraphs in Dr. Macdonalds declaration which claim that PG&E, when seeking Staff approval of changes to its current licensing basis for ensuring RPV integrity, discarded certain plant-specific data that it considered unfavorable and substituted data from other reactors in its evaluation, resulting in an unjustifiable delay in the withdrawal of capsules from Diablo Canyon Unit for physical testing.76 In Petitioners view, these actionsused to justify current and past operationswould be relevant here because the license renewal application depends on the results of the current 72 LBP--, NRC at __ (slip op. at -).

73 Id. at __ (slip op. at -).

74 Id. at __ (slip op. at -). The Staff utilizes two essential documents in its safety review of a license renewal applicationthe GALL Report and the License Renewal Standard Review Plan.

See Generic Aging Lessons Learned (GALL) Report, NUREG-, rev. (Sept. ), vol.

(ML) & vol. (ML) (GALL Report); Generic Aging Lessons Learned (GALL) ReportFinal Report, NUREG-, rev. (Dec. ) (ML) (GALL Report Rev. ); Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants, NUREG-, rev. (Sept. ) (ML) (Standard Review Plan). The GALL Report systematically compiles generic AMPs that the Staff has found effective to manage the effects of aging. See GALL Report Rev. at.

75 Appeal at.

76 Id. at (citing Macdonald Declaration, ¶¶.a-g).

reactor vessel surveillance program and related analyses, and therefore, the Board should have granted a hearing.77 We disagree. As the Board correctly held, license renewal proceedings are not intended to duplicate the Staffs ongoing oversight of operating reactors or to reexamine a plants current licensing basis.78 The Board reviewed Dr. Macdonalds assertions and found that they challenge the basis for Staff decisions on RPV integrity made during its routine oversight of Diablo Canyon in the initial license term.79 Those decisions concern current and past operations and are not part of this license renewal proceeding.

The Board was also correct that Contention did not present a material dispute regarding information in the application. The Board searched the petition and Dr. Macdonalds declaration for specific, material disputes and found references to five pages of the [license renewal application] and/or its Enclosure E in Petitioners filings; however, the Board concluded that Petitioners had not shown how the two issues raised from within those pages were material to the adequacy of the AMP for the RPV.80 On the first issue, the Board noted Dr. Macdonalds statement that he was unable to locate any commitment by PG&E to a deadline for removing and testing Capsule B,81 but the Board itself found this information in the application.82 On the second issue, the Board noted Dr. Macdonalds statement that he could not discern how certain ultrasonic testing of beltline welds relates to the scheduled ultrasonic testing inspection.83 But 77 Id. at (emphasis in original).

78 See C.F.R. §.; Indian Point, CLI--, NRC at.

79 LBP--, NRC at __ (slip op. at ).

80 Id. at __ (slip op. at -).

81 Id. at __ (slip op. at ) (citing Macdonald Declaration, ¶ ).

82 Id. at __ (slip op. at ).

83 Id. (citing Macdonald Declaration, ¶ ).

the Board found that neither the petition nor Dr. Macdonalds declaration explained the significance of this relationship or showed that such information is required to be included in the application.84 On appeal, Petitioners do not show any error in the Boards reasoning. Therefore, we see no basis to overturn the Boards decision.

Finally, we find no error in the Boards third basis for rejecting Contention the application includes an undisputed statement that the RPV AMP will be consistent with a generically approved AMP in the GALL Report.85 The Board rightly noted that if an AMP is consistent with the GALL Report, then the Commission accepts the applicants commitment to implement that AMP, finding the commitment itself to be an adequate demonstration of reasonable assurance under section.(a).86 But here, the Board found Contention inadmissible because Petitioners did not cite, assert, or argue in their Petition or accompanying expert report... that PG&Es reactor vessel surveillance AMP either is not consistent with the GALL Report or that PG&E failed to include sufficient information for them to be able to make that determination.87 Petitioners do not address this finding on appeal. Therefore, we see no basis to overturn the Boards dismissal of Contention.88 84 Id. The Board also confirmed at oral argument that Petitioners did not challenge any specific TLAA. Id. at __ (slip op. at -) (citing Tr. at -).

85 Id. at __ (slip op. at -).

86 Id. at __ (slip op. at ) (quoting Seabrook, CLI--, NRC at ); see also Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI--, NRC,

(); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI--,

NRC, - (). An AMP that is consistent with the GALL Report may still be challenged through the filing of a contention that is specific, well-supported, and shows a material dispute. Vermont Yankee, CLI--, NRC at -.

87 LBP--, NRC at __ (slip op. at ).

88 The lack of a specific challenge to the Boards third basis is itself sufficient grounds to reject the contention on appeal. See, e.g., Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units & ), CLI--, NRC, () (rejecting an appeal that did not address each independent ground for a Boards denial of contention admissibility).

Contention In Contention, Petitioners asserted that the license renewal application should not be approved because PG&E has not demonstrated compliance with the CZMA.89 Specifically, Petitioners claimed that the inclusion of a CZMA consistency certification in the environmental report is insufficient by itself to support license renewal.90 Rather, Petitioners asserted, before the NRC can approve the license renewal application, the consistency certification must also be sanctioned by the State of California and the State must grant any necessary coastal development permitsneither of which has yet occurred.91 As support for this claim, Petitioners pointed to a letter from the California Coastal Commission stating that PG&Es consistency certification is not yet complete and noting areas of inadequacy that PG&E must address.92 The Board dismissed Contention for failing to demonstrate a genuine dispute with the application.93 While the CZMA requires that the NRC ultimately receive concurrence from the State on a licensees consistency certification, that final concurrence is not required to be submitted with the application.94 The Board noted that at the application stage, the CZMA requires only that an applicant for a required Federal license or permit... shall provide in the 89 Petitioners also asserted in their petition that, because PG&E has not demonstrated compliance with the CZMA, the environmental report also did not satisfy C.F.R. §§.(b),

(c), and (d). Petition at & n.. In their Reply and in oral argument before the Board, however, Petitioners withdrew the portion of the contention asserting a violation of these regulations. See Reply at ; Tr. at.

90 Petition at.

91 Id. at -; see also Tr. at (The failing of PG&E is to receive approval from the California Coastal Commission of its certification.).

92 See Petition at, Ex..

93 LBP--, NRC at __ (slip op. at, ) (citing C.F.R. §.(f)()(vi)).

94 Id. at __ (slip op. at ) (citing CZMA, U.S.C. § (c)()(A)). While the CZMA provides a pathway for the Secretary of Commerce to approve the activity, that procedure is not relevant here. Id.

application to the licensing or permitting agency a certification that the proposed activity complies with the enforceable policies of the States approved program and that such activity will be conducted in a manner consistent with that program.95 Because PG&E submitted the consistency certification with its application, PG&E supplied all that was required at this stage.96 The Board also dismissed Petitioners concern that the license renewal application could be granted without Californias final consistency determination, a concern apparently based on the California Coastal Commissions letter informing PG&E that further information was required before it could consider the consistency certification.97 The Board noted that both the Staff and PG&E were aware that a consistency determination is required prior to approval of the license renewal application, and Petitioners did not present any evidence that the Staff would fail to act in conformity with the CZMA.98 Finally, the Board rejected Petitioners bid to admit Contention as a placeholder contention, observing that the Commission disfavors contentions that serve as a placeholder for future potential deficiencies.99 On appeal, Petitioners do not challenge the Boards characterization of its contention or the reasons for the Boards determination that its contention did not raise a genuine dispute with PG&Es application. Instead, Petitioners argue that the Boards ruling is unlawful under Union of 95 Id. (quoting U.S.C. § (c)()(A)).

96 Id. at __ (slip op. at ).

97 Id. at __ (slip op. at ).

98 Id. at __ (slip op. at -); see Tr. at ; U.S. Department of Energy (High-Level Waste Repository), CLI--, NRC, () (Absent clear evidence to the contrary, we presume that public officers will properly discharge their official duties.) (citing United States Postal Service v. Gregory, U.S., ()). The Staffs Environmental Standard Review Plan provides that a license cannot be issued until the State determines that the proposed license renewal action would be consistent with the State program. Environmental Standard Review Plan at -.

99 See LBP--, NRC at __ (slip op. at ).

Concerned Scientists v. NRC.100 Under this precedent, Petitioners assert, because a final consistency determination is essential to the NRCs licensing decision, it is a material issue on which the NRC must offer a hearing.101 Petitioners state that the Commission may hold the contention in abeyance pending further developments, but we may not reject the contention now as unripe and later impose a heightened pleading standard on Petitioners for litigating their concern.102 We do not agree that Union of Concerned Scientists mandates the admission of Petitioners unripe contention. In Union of Concerned Scientists, the Court of Appeals struck down a rule promulgated by the NRC which provided that the Atomic Safety and Licensing Board need not consider the results of emergency preparedness exercises in a licensing hearing. The rule provided, in lieu of a hearing opportunity, that the NRCs final issuance of the license must be preceded by the NRCs conclusionbased on satisfactory completion of an emergency preparedness exercisethat there was reasonable assurance that adequate protective measures can and would be taken in the event of a radiological emergency.103 The court found that, because the rule categorically denied the opportunity for a hearing on a material factor relied upon by the Commission in making its licensing decisions, it was issued in excess of the Commissions authority.104 100 Appeal at (citing Union of Concerned Scientists, F.d at ).

101 Id.

102 Id. at.

103 Union of Concerned Scientists, F.d at.

104 Id. at, -. The court rejected the licensees argument that the evaluation of emergency preparedness exercises was part of the NRCs ongoing monitoring function...

rather than part of its initial licensing responsibilities because the Commission itself says that it relies on its assessment of emergency exercises in deciding whether to issue a license. The NRC did not take a position on this argument before the court. Id. at.

In contrast, here, Petitioners are not prohibited by rule from raising a concern in the adjudicatory process regarding PG&Es compliance with the CZMA. Under the CZMA and applicable regulations, PG&E is required to submit a consistency certification with its license renewal application.105 Had PG&E failed to do so, Petitioners would not have been barred from challenging this omission within the license renewal hearing process. Because PG&E did submit this consistency certification with its application, they have complied with the law as it applies at the license renewal application stage. Therefore, Petitioners have not demonstrated that the Board erred in denying Contention.106 In sum, we find that the Board considered the record and reasonably determined that Petitioners Contentions through did not meet our contention admissibility standards. We find no error of law or abuse of discretion and defer to the Boards judgment on the inadmissibility of these contentions.

105 CZMA, U.S.C. § (c)()(A); C.F.R. §.(a); see also Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement : Operating License Renewal (Final Report), NUREG-, Supp., rev. (Aug. ), at - (MLA) (Environmental Standard Review Plan) (noting that nuclear power plants situated in a coastal zone or coastal watershed require submission to the affected State certification that the proposed license renewal action is consistent with the State Coastal Zone Management Program).

106 We decline to adopt Petitioners suggestion to hold the contention in abeyance pending further developments, which would amount to admitting Contention as a placeholder contention. Appeal at. Our regulations do not provide for the filing of contentions that merely anticipate a future deficiency, rather than pointing to a present defect, in a license application.

See generally C.F.R. §.(f)(); see also Union Electric Co. (Callaway Plant, Unit ),

CLI--, NRC, () (declining to allow placeholder contention); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit ), CLI--, NRC,

(). However, under our reopening rule, Petitioners will still have the opportunity to raise a new contention on compliance with the CZMA as the Staffs review of the application progresses. See C.F.R. §.(a), (b); Virginia Electric and Power Co. d/b/a Dominion Virginia Power and Old Dominion Electric Cooperative (Combined License Application for North Anna Unit ), CLI--, NRC, ().

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

PACIFIC GAS AND ELECTRIC COMPANY

)

Docket Nos. 50-275-LR-2

)

50-323-LR-2 (Diablo Canyon Nuclear Power Plant,

)

Units 1 and 2)

)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-25-04) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 Jeremy A. Mercer, Chair, Administrative Judge Nicholas G. Trikouros, Administrative Judge Dr. Gary S. Arnold, Administrative Judge Whitlee Dean, Law Clerk Georgia Rock, Law Clerk E-mail: jeremy.mercer@nrc.gov nicholas.trikouros@nrc.gov gary.arnold@nrc.gov whitlee.dean@nrc.gov georgia.rock@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 David Roth Susan H. Vrahoretis Jeremy L. Wachutka Anne Fream, Paralegal Georgiann Hampton, Paralegal Joelysa McLeod, Paralegal E-mail: david.roth@nrc.gov susan.vrahoretis@nrc.gov jeremy.wachutka@nrc.gov anne.fream@nrc.gov georgiann.hampton@nrc.gov joelysa.mcleod@nrc.gov Counsel for Pacific Gas and Electric Company Morgan, Lewis & Bockius, LLC 1111 Pennsylvania Ave NW Washington, DC 20004 Paul Bessette Scott Clausen Ryan K. Lighty Timothy Matthews E-mail: paul.bessette@morganlewis.com scott.clausen@morganlewis.com ryan.lighty@morganlewis.com timothy.matthews@morganlewis.com

Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

COMMISSION MEMORANDUM AND ORDER (CLI-25-04) 2 Counsel for San Luis Obispo Mothers for Peace Harmon, Curran, Spielberg, &

Eisenberg, LLP 1725 DeSales Street, N.W.

Suite 500 Washington, DC 20036 Diane Curran E-mail: dcurran@harmoncurran.com Counsel for Environmental Working Group 1250 I Street, NW. Suite 1000 Washington, DC 20005 Caroline Leary E-mail: cleary@ewg.org Counsel for Friends of the Earth 1101 15th Street, 11th Floor Washington, DC 20005 Hallie Templeton E-mail: HTempleton@foe.org California Energy Commission Chief Counsels Office 715 P Street Sacramento, CA 95814 Melanie Mariotti E-mail: melanie.mariotti@energy.ca.gov Office of the Secretary of the Commission Dated at Rockville, Maryland, this 15th day of July 2025.

CLARA SOLA Digitally signed by CLARA SOLA Date: 2025.07.15 13:43:10 -04'00'