ML15271A139

Memorandum and Order (Denying Petition to Intervene and Request for Hearing)(LBP-15-27)

ML15271A139
Person / Time
Site:	Diablo Canyon
Issue date:	09/28/2015
From:	Gary Arnold, Paul Ryerson, Nicholas Trikouros Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
ASLBP 15-941-05-LA-BD01, RAS 28328
Download: ML15271A139 (21)

Text

LBP-15-27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Paul S. Ryerson, Chairman Dr. Gary S. Arnold Nicholas G. Trikouros In the Matter of Docket No. 50-275 Docket No. 50-323 PACIFIC GAS & ELECTRIC COMPANY ASLBP No. 15-941-05-LA-BD01 (Diablo Canyon Nuclear Power Plant, Units 1 and 2) September 28, 2015 MEMORANDUM AND ORDER (Denying Petition to Intervene and Request for Hearing)

Before the Board, on referral by the Commission,1 is a limited portion of a petition for intervention and request for hearing by Friends of the Earth (FOE) in what FOE characterizes as a de facto license amendment proceeding involving the operating licenses held by Pacific Gas &

Electric Company (PG&E) for Diablo Canyon Power Plant Units 1 and 2.2 Specifically, the Commission has referred the question of whether FOE has identified an NRC activity that requires an opportunity to request an adjudicatory hearing pursuant to section 189a of the Atomic Energy Act of 1954, as amended (AEA).3 Because we conclude that the NRC has 1 See CLI-15-14, 81 NRC __, __ (slip op. at 2) (May 21, 2015).

2 Petition to Intervene and Request for Hearing by Friends of the Earth (Aug. 26, 2014)

(Petition).

3 CLI-15-14, 81 NRC at __ (slip op. at 2).

neither granted PG&E greater authority than that provided by its existing licenses nor otherwise altered the terms of those licenses, we determine that FOE is not entitled to an opportunity to request a hearing pursuant to AEA section 189a.

I. BACKGROUND As has been observed, [s]eismology is an evolving science.4 The history of the Diablo Canyon plant bears this out. In the nearly fifty years since construction began,5 two faults in close proximity to the plant have been discovered. The Hosgri Fault was identified during construction, and spurred extensive reanalysis and modifications of the plants design.6 The seismic safety of the plant was reviewed in a contested evidentiary hearing. The Licensing Board in that matter ruled, and the Atomic Safety and Licensing Appeal Board affirmed,7 that the Hosgri Fault had been adequately evaluated, and the plants safety reasonably assured, as the plant would conservatively withstand the potential effects of earthquakes associated with the Hosgri Fault.8 More recently, in 2008, the Shoreline Faultwhich allegedly runs within a mere 300 meters of the plants intake structure9was identified. A preliminary assessment by the NRC 4 Pac. Gas & Electric Co. (Diablo Canyon Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 913 (1981).

5 The construction permit for Unit 1 was issued in 1968 and for Unit 2 in 1970. See Pac. Gas &

Electric Co. (Diablo Canyon Nuclear Power Plant, Unit No. 2), LBP-74-60, 8 AEC 277, 277-78 (1974). Operating licenses for Units 1 and 2 respectively were issued in 1984 and 1985. CLI-15-14, 81 NRC at __ (slip op. at 2-3).

6 See Pac. Gas & Electric Co. (Diablo Canyon Power Plant, Units 1 and 2), LBP-79-26, 10 NRC 453, 470, 501-05 (1979).

7 Diablo Canyon, ALAB-644, 13 NRC at 996. A small portion of the opinion, concerning an unrelated matter, i.e., security plan issues, was not affirmed. Id.

8 See Diablo Canyon, LBP-79-26, 10 NRC at 478, 499.

9 Petition at 1.

Staff in 2009 found the plant safe,10 and a more detailed assessment in 2012 determined that

[t]he NRCs conservative estimates for the potential ground motions from the Shoreline fault are at or below the ground motions for which the [Diablo Canyon plant] has been evaluated previously and demonstrated to have reasonable assurance of safety.11 Diablo Canyons seismic safety, like that of all nuclear power plants in the United States, is also being reviewed under the NRCs post-Fukushima lessons learned and information-gathering process pursuant to 10 C.F.R. § 50.54(f), which authorizes the NRC to collect information from licensees to determine whether or not the license should be modified, suspended, or revoked.12 This is the context within which, on August 26, 2014, FOE filed its petition to intervene and request for hearing before the Commission. FOE alleges, inter alia, that the NRC Staff has permitted the Diablo Canyon reactors to operate outside their licensing basis, as FOE alleges the plants seismic design basis does not encompass the seismic risk associated with the Shoreline Fault, and that this alleged permission amends the license de facto.13 On October 6, 10 NRC, Research Information Letter 09-001, Preliminary Deterministic Analysis of Seismic Hazard at Diablo Canyon Nuclear Power Plant from Newly Identified Shoreline Fault (Apr.

2009) (ADAMS Accession No. ML090330523).

11 NRC, Research Information Letter 12-01, Confirmatory Analysis of Seismic Hazard at the Diablo Canyon Power Plant from the Shoreline Fault Zone at xii (Sept. 2012) (ADAMS Accession No. ML121230035) (2012 Assessment).

12 Letter from Joseph M. Sebrosky, Senior Project Manager, NRC, to Edward D. Halpin, Senior Vice President, PG&E, Diablo Canyon Power Plant, Unit Nos. 1 and 2NRC Review of Shoreline Fault at 1 (Oct. 12, 2012) (ADAMS Accession No. ML120730106); see also Letter from Eric J. Leeds and Michael R. Johnson, 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) (ADAMS Accession No. ML12053A340) (March 2012 Letter).

13 Petition at 29-70.

2014, PG&E, the NRC Staff,14 and the Nuclear Energy Institute (NEI), as an amicus curiae,15 filed briefs in opposition. FOE filed its reply on October 14, 2014.16 On May 21, 2015, the Commission referred a limited portion of FOEs hearing request to the Atomic Safety and Licensing Board Panel.17 The scope of the referral is limited to whether the NRC granted PG&E greater authority than that provided by its existing licenses or otherwise altered the terms of PG&Es existing licenses, thereby entitling Friends of the Earth to an opportunity to request a hearing pursuant to AEA section 189a.18 Supplemental briefs are also before the Board. In accordance with the Commissions directive,19 the Board allowed20 briefs by PG&E and the NRC Staff in response to an argument initially raised in FOEs reply concerning PG&Es Updated Final Safety Analysis Report 14 Pacific Gas and Electric Companys Answer to Friends of the Earth Hearing Request (Oct. 6, 2014); NRC Staff Answer to Petition to Intervene and Request for Hearing by Friends of the Earth (Oct. 6, 2014) (NRC Staff Answer).

15 Nuclear Energy Institute Motion for Leave to File Amicus Curiae Brief (Oct. 6, 2014); Amicus Curiae Brief of the Nuclear Energy Institute in Response to Friends of the Earth Hearing Request (Oct. 6, 2014).

16 Friends of the Earths Reply to NRC Staffs and Pacific Gas & Electric Companys Answers and Proposed Amicus Curiae Nuclear Energy Institutes Brief in Response to Petition to Intervene and Request for Hearing (Oct. 14, 2014) (Reply); see also Licensing Board Notice and Order (Scheduling Oral Argument) (June 2, 2015) at 3 (unpublished) (granting NEIs Motion for Leave to File Amicus Curiae) (Scheduling Order).

17 CLI-15-14, 81 NRC at __ , __ (slip op. at 2, 12). Some portions of the request were denied.

Others, such as FOEs underlying safety concerns, were referred to the Executive Director for Operations for consideration pursuant to 10 C.F.R. § 2.206. Id. at __ , __ (slip op. at 2, 11). In response to the Commissions referral, this Board was established on the same day by order of the Chief Administrative Judge. Licensing Board Order (Establishment of Atomic Safety and Licensing Board) (May 21, 2015) (unpublished).

18 CLI-15-14, 81 NRC at __ (slip op. at 7).

19 Id. at __ (slip op. at 8).

20 Scheduling Order at 2.

(UFSAR) Revision 21.21 Also, in response to FOEs motion to allow briefing concerning events that had taken place since its initial Petition to the Commission,22 the Board permitted short supplemental briefs, without ruling on which (if any) intervening events might be relevant.23 Accordingly, FOE filed its supplemental brief on June 19, 2015,24 and, on June 26, 2015, PG&E and the NRC Staff filed responses.25 Oral argument was held in Rockville, Maryland on July 9, 2015.26 II. ANALYSIS A. Standing FOE alleges that it is a national non-profit environmental organization.27 It bases its claim to standing on the interests of five individual members, who allege that the operation of Diablo Canyon, without proper seismic analysis, risks harm to their personal health, safety, economic, aesthetic, and environmental interests.28 21 Pacific Gas and Electric Companys Supplemental Brief Regarding UFSAR Revision 21 (June 15, 2015). NRC Staff Answer to Friends of the Earths De Facto License Amendment Claims Related to PG&Es Updated Final Safety Analy[s]is Report, Revision 21 (June 15, 2015).

22 Petitioner Friends of the Earths Motion to Allow Supplemental Briefing (June 5, 2015).

23 Licensing Board Order (Allowing Supplemental Briefing) (June 12, 2015) (unpublished).

24 Petitioner Friends of the Earths Supplemental Brief (June 19, 2015) (Supplemental Brief).

25 Pacific Gas and Electric Companys Response to FOEs Supplemental Brief (June 26, 2015);

NRC Staff Response to the Friends of the Earths Supplemental Brief (June 26, 2015) (NRC Staff Supplemental Response).

26 Tr. at 1-130. Two days before the oral argument the Board received an unsolicited limited appearance statement from a former NRC Commissioner, Dr. Victor Gilinsky. The statement was accepted without opposition, but, in accordance with 10 C.F.R. § 2.315(a), Dr. Gilinskys statement is not considered evidence in the proceeding. See Licensing Board Order (Allowing Limited Appearance Statement of Dr. Gilinsky) (July 15, 2015) (unpublished).

27 Petition at 71.

28 Id. at 72-73.

The NRC Staff challenges FOEs standing; PG&E does not. The Staff argues that, even if there were a de facto license amendment proceeding to trigger the opportunity for a hearing under section 189a of the AEA, the alleged harm to FOEs members is too attenuated to establish standing.29 Because we conclude that FOE fails to demonstrate the existence of a licensing action subject to AEA hearing rights, we need not address the issue of standing.30 B. Timeliness & Scope For similar reasons, the Board need not rule on whether FOEs petition is timely.31 The Board has concerns as to the timeliness of matters that were raised for the first time in FOEs Supplemental Briefall of which took place before the Commissions referral and most of which could have been brought to the Commissions attention earlier.32 29 NRC Staff Answer at 43-47; see also Petition at 71-87.

30 See Omaha Pub. Power Dist. (Fort Calhoun Station, Unit 1), CLI-15-5, 81 NRC 329, 333 (2015) (Commission did not reach standing question because it denied de facto license amendment petition on the merits).

31 See id. Again, the NRC Staffbut not PG&Echallenges the timeliness of FOEs original petition to the Commission. See Petition at 87-92 (arguing that the timeliness requirement of

§ 2.309(b) does not apply because no formal proceeding has been commenced, but that if the requirement does apply, that FOE has demonstrated good cause for the Commission to entertain an untimely petition); NRC Staff Answer at 47-48 (arguing that the Petition does not satisfy timeliness requirements as it is based on actions taken in 2012 and that the Petition is not based on new information).

32 At oral argument, FOEs counsel acknowledged that FOE had no real excuse for not bringing new developments to the Commissions attention during the almost nine-month period in which its Petition remained pending before the Commission. Tr. at 37-40. The NRC Staff appears to suggest that a petitioner is powerless to update its petition without going through the formality of filing a new or amended contention or a separate petition to allow for the consideration of additional claimsand satisfying both the late-filed criteria in 10 C.F.R. § 2.309(c) and the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). NRC Staff Supplemental Response at 7-8. The Board does not agree. There is a difference between asserting genuinely new arguments and alerting the tribunal to new, additional support for an existing argument. Cf. Fed. R. App. P. 28(j).

Moreover, it is questionable whetherregardless of their timelinessthese subsequent events are within the scope of the Commissions limited referral.33 Ultimately, however, it makes no difference. The Board concludes that none of the events on which FOE reliesin its Petition, in its Reply or in its Supplemental Brief establishes that the NRC has granted a de facto license amendment in connection with the Diablo Canyon facility.

C. Contentions In its Petition, FOE proffered two contentions.

Contention 1 states:

Because NRC is conducting a de facto license amendment proceeding that has significant safety implications, petitioner is entitled to a public hearing under section 189a of the Atomic Energy Act.34 Contention 2 states:

NRC Staffs determination that the new seismic information, including the Shoreline Earthquake and its effect on the San Luis Bay and Los Osos Faults, is a lesser-included case within the Hosgri Earthquake is insuffic[i]ent to insure that Diablo Canyon is operating safely with an adequate margin of safety.35 Contention 1 presents the same issue that the Commission has most clearly referred to the Board: that is, whether Friends of the Earth has identified an NRC activity that requires an 33 See, e.g., NRC Staff Supplemental Response at 2-6. Ironically, only Commissioner Svinickiwho dissented from referring FOEs petition to a Licensing Boardsuggested that the Boards role would necessarily require expanding the record, rather than ruling solely on the grounds that FOE previously presented to the Commission. CLI-15-14, 81 NRC at __ n.2 (slip op. at 1 n.2) (Svinicki, Commr, concurring in part and dissenting in part) (While I find that Friends of the Earths hearing request lacks sufficient information to show a de facto license amendment, I recognize that the majoritys referral will provide Friends of the Earth with a chance to develop its position further. Thus, should the Commission be called upon to provide another ruling in this proceeding, the issue we consider then will be different than the one before us today. At that time, I will consider, afresh, the record as it exists, including the additional arguments and potential factual positions that will be developed as a result of this referral.).

34 Petition at 29.

35 Id. at 47.

opportunity to request an adjudicatory hearing pursuant to section 189a of the Atomic Energy Act of 1954, as amended.36 There may be some question as to whetherif the Board were to rule in FOEs favor on this issuethe Commission intended for the Board to then address the admissibility of Contention 2.37 Because we conclude that FOE has not established an opportunity to request a hearing, however, we need go no further, and do not reach the admissibility of Contention 2.

Section 189a of the AEA requires the NRC to provide an opportunity for hearing [i]n any proceeding under this [Act], for the granting, suspending, revoking, or amending of any license.38 Therefore, AEA section 189a hearing rights are triggered when a licensee submits a license amendment request to the NRC.

Additionally, the Commission has recognizedalthough it appears never to have actually confrontedother circumstances that might be tantamount to a license amendment.

Hearing rights may also be triggered when the substance of an NRC action, while not formally labeled as a license amendment, in effect accomplishes the same thing. As the Commission has explained, a de facto license amendment would exist, and hearing rights would be triggered, if the NRC were to grant a licensee greater operating authority or otherwise alter the terms of the license or permit the licensee to go beyond its existing license authority.39 36 CLI-15-14, 81 NRC at __ (slip op. at 2).

37 Compare id. (We refer a limited portion of the hearing request to the Atomic Safety and Licensing Board Panel to determine whether Friends of the Earth has identified an NRC activity that requires an opportunity to request an adjudicatory hearing pursuant to section 189a of the Atomic Energy Act of 1954, as amended (AEA).), with id. at __ (slip op. at 8-9) ([T]his referral includes such threshold issues as standing, timeliness, and satisfaction of contention admissibility standards in accordance with 10 C.F.R. § 2.309. [W]e direct the Board to rule on whether Friends of the Earths hearing request should be granted . . . . (emphasis added)).

38 42 U.S.C. § 2239(a)(1)(A).

39 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 328 (1996). In applying this standard, as directed by the Commission, the Board attaches little if any significance to the fact that, after discovery of the Shoreline Fault, PG&E initially elected to seek a license amendment, but then withdrew that request. See Letter from James

Where, on the other hand, NRC approval does not permit a licensee to operate in any greater capacity than originally authorized and all relevant safety regulations and license terms remain applicable, NRC approval does not amend the license.40 A de facto license amendment proceeding is not initiated merely because a licensee takes an action that requires some type of NRC approval,41 or because a licensee makes a change to its facility that is allowed under 10 C.F.R. § 50.59 without prior NRC approval.42 Nor may a petitioner create a hearing opportunity merely by claiming that a facility is improperly operating outside its licensing basis. Such claims are appropriately raised in a petition to initiate an enforcement proceeding under 10 C.F.R. § 2.206, rather than by a request for a hearing under AEA section 189a.43 For example, when a former NRC senior resident inspector at Diablo Canyon issued a Differing Professional Opinion (DPO) regarding PG&Es Becker, Site Vice President, PG&E, to NRC, License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Safe Shutdown Earthquake (Oct. 20, 2011) (ADAMS Accession No. ML11312A166); see also Letter from Barry Allen, Site Vice President, PG&E to NRC, Withdrawal of License Amendment Request 11-05, Evaluation Process for New Seismic Information and Clarifying the Safe Shutdown Earthquake (Oct. 25, 2012) (ADAMS Accession No. ML12300A105). We are not persuaded by FOEs argument that PG&Es actions in this regard are probative of whether the NRC Staff eventually granted PG&E greater authority or otherwise altered the terms of PG&Es licenses. See Petition at 34-38.

40 Perry, CLI-96-13, 44 NRC at 328.

41 See id. at 321. Judicial case law provides several examples of NRC approvals that did not trigger section 189a hearing rights. See, e.g., Massachusetts v. NRC, 878 F.2d 1516, 1521 (1st Cir. 1989) (NRC authorization to restart plant, following NRC Staffs review of forty-seven ordered modifications, not a license amendment); In re Three Mile Island Alert, Inc., 771 F.2d 720, 729-30 (3d Cir. 1985) (decision lifting license suspension and authorizing restart under stipulated conditions not a license amendment); San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1314 (D.C. Cir. 1984) (lifting of a license suspension not a license amendment),

rehg en banc on other grounds, 789 F.2d 26 (D.C. Cir.), cert. denied, 479 U.S. 923 (1986).

42 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 101-02 (1994); see infra text accompanying notes 62-70.

43 See S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC 437, 439 n.10 (2012) (A member of the public may challenge an action taken under 10 C.F.R. § 50.59 only by means of a petition under 10 C.F.R. § 2.206. (citing Yankee Nuclear, CLI-94-3, 39 NRC at 101 n.7)).

compliance with the plants technical specifications, he recommended that the NRC initiate an enforcement action to address the alleged noncompliance.44 The distinction between adjudicatory matters and regulatory oversight is especially important in the current environment. Following the Fukushima accident in Japan, the NRC Staff has asked for a seismic hazard reevaluation of all nuclear power reactors pursuant to 10 C.F.R. § 50.54(f). These reevaluations are not de facto license amendment proceedings because they do not amend any facilitys license. Rather, they are requests for information to allow the NRC to determine whether, as to each facility, it should or should not require additional action. Imposing any such new requirements would involve separate regulatory action. As to any individual facility, the Commission might then determine that an order, license amendment or rulemaking is necessary. At such time, the public would have an opportunity to participate in any such processes to the extent consistent with applicable NRC rules and precedent.

In both its initial Petition and in subsequent submissions, FOE points to several communications and events that allegedly support its claim that the NRC is conducting a de facto license amendment proceeding that entitles it to request a hearing now, rather than potentially at some future point. Because none involves the NRCs granting to PG&E greater authority than that provided by its existing licenses or otherwise altering their terms, none gives rise to hearing rights under AEA section 189a.

We consider each of FOEs arguments below.

First, FOE focuses on a March 12, 2012 request for information from the NRC Staff, pursuant to 10 C.F.R. § 50.54(f), that went to all nuclear power plant licensees, including PG&E.

FOE argues that, because that request allegedly directed PG&E to use specific methodologies 44 NRC, DPO Case File-DPO-2013-002, Doc. 1, DPO Submittal at 1-2 (July 19, 2013) (ADAMS Accession No. ML14252A743). An independent review panel subsequently reviewed the DPO and determined that enforcement action was unwarranted. Id., Doc. 8, DPO Appeal Decision at 4-5 (Sept. 9, 2014); see also id., Doc. 4, DPO Decision at 1-2 (May 29, 2014).

and assumptions to analyze new seismic data, it effectively amended the terms of the Diablo Canyon licenses.45 On the contrary, the Staffs letter merely asked all nuclear power plant licensees (1) to evaluate, in light of the Fukushima accident in Japan, their plants seismic and flood design bases using updated analytical methods, and (2) to provide additional information to enable the NRC to determine whether future changes to any of the plants design bases might be warranted.46 The Staffs March 12, 2012 request expressly stated that the evaluations associated with the requested information in this letter do not revise the design basis of the plant.47 Rather, the request contemplated that, for various plants, the licensees responses might (or might not) lead to further regulatory actions, such as orders, license amendments or rulemaking that might (or might not) trigger various forms of public participation at the appropriate time.48 As the Commission recently instructed, speculative changes to a plants licensing basis that may or may not occur do not constitute a proper ground on which to seek an adjudicatory hearing.49 The NRC Staffs March 12, 2012 request for information does not constitute a de facto license amendment.50 45 Petition at 34. In fact, the Staffs request showed some flexibility, stating that [a]lternate approaches with appropriate justification will be considered. March 2012 Letter at 3.

46 Id. at 4-5.

47 Id. at 4.

48 Id. at 1.

49 Fort Calhoun, CLI-15-5, 81 NRC at 338.

50 In a different context, another Licensing Board also concluded that the Staffs March 12, 2012 request for information did not constitute an approval. See Union Electric Co. (Callaway Plant, Unit 1), LBP-12-15, 76 NRC 14, 34 (2012) (ruling that March 12, 2012 information request was not an approval that needed to be listed in applicants environmental report under 10 C.F.R.

§ 51.45(d)).

Second, FOE seeks to rely on Research Information Letter 12-01, which, in September 2012, documented the NRC Staffs assessment of information concerning the newly discovered Shoreline Fault. FOE contends that the Staffs analysis, which concluded that Diablo Canyon can operate safely despite the Shoreline Fault (by comparing the Shoreline Fault to the Hosgri Fault), in effect amended the Diablo Canyon licensing basis.51 Research Information Letter 12-01, however, did not alter the terms of the Diablo Canyon operating licenses or provide PG&E with greater operating authority. It reached no conclusions whatsoever regarding the Diablo Canyon operating licenses. Rather, it focused on determining whether the plant can operate safely in light of the risk posed by the Shoreline Fault.52 Neither the Staffs comparison of the Shoreline Fault to the Hosgri Fault nor the Staffs alleged understatement of the risk posed by the Shoreline Fault53 amounted to a de facto license amendment. As the Commission recently observed, if a hearing could be invoked each time the NRC engaged in oversight or inquiry into plant conditions, the NRCs administrative process could be brought to a virtual standstill.54 Moreover, Research Information Letter 12-01 could not have added the prior evaluation of the Hosgri Earthquake to the plants seismic design basis because the Hosgri Earthquake has been an established part of the Diablo Canyon design basis since the facility began operation. The plants capacity to withstand the Hosgri Earthquake was extensively litigated and resolved at the time of initial licensing.55 Supplemental NRC safety evaluation reports 51 Petition at 42-43, 48-51.

52 2012 Assessment at 95. As explained infra, the NRC Staff continues to study the seismic risks at Diablo Canyonan undertaking that mayor may noteventually require PG&E to seek a license amendment, which would trigger AEA section 189a hearing rights at that time.

53 Petition at 59-64.

54 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), CLI-14-11, 80 NRC 167, 175 (2014).

55 Diablo Canyon, LBP-79-26, 10 NRC at 499; Diablo Canyon, ALAB-644, 13 NRC at 923.

further confirm that the Hosgri Earthquake is part of the plants seismic design basis.56 Because FOE concedes that the plants licensing basis already permits the plant to operate in light of the seismic hazard posed by the Hosgri Faultand the Staff found that the seismic hazard from the Shoreline Fault is bounded by that from the Hosgri FaultFOEs hearing request fails to show that either PG&Es authority to operate the plant or the terms of its licenses have changed.57 Third, as another instance where NRC Staff action allegedly amounted to a de facto license amendment, FOE points to an October 12, 2012 letter that summarized the conclusions of Research Information Letter 12-01 and requested that, for certain further seismic analysis, PG&E use the process identified in the Staffs March 12, 2012 request for information pursuant to 10 C.F.R. § 50.54(f).58 As discussed, FOE has failed to show that either of these earlier two communications constituted de facto license amendments. For the same reasons, FOE fails to demonstrate that the Staffs October 12, 2012 letter, summarizing and elaborating on its earlier 56 See, e.g., Office of Nuclear Reactor Regulation (NRR), NRC, Safety Evaluation of the Diablo Canyon Nuclear Power Station Units 1 and 2, at 2-4 (Supp. 7 May 1978) (ADAMS Accession No. ML14279A129) (Hosgri event (0.75g) [t]his is the basis that we have approved for use in the seismic reevaluation. . . [W]e require that the plant design be shown to be adequate for the Hosgri event and the applicant is proceeding with the work necessary to demonstrate this.);

NRR, NRC, Safety Evaluation Report, NUREG-0675, at 1-7 (Supp. 34 June 1991) (ADAMS Accession No. ML14279A130) (The Staff notes that the seismic qualification basis for Diablo Canyon will continue to be the original design basis plus the Hosgri evaluation basis, along with the associated analytical methods, initial conditions, etc.). See also PG&E, Diablo Canyon Power Plant, Units 1 and 2, Final Safety Analysis Report Update at 2.5-58 (Rev. 12 Sept. 1998)

ADAMS Accession No. ML9810080139).

57 FOE also claims that the Hosgri Evaluation and the [Long Term Seismic Program] were . . .

intended to be a one-time exception from the plants licensing basis, and did not change the seismic design basis. Petition at 20; Reply at 9. The statement on which FOE relies, however, pertains solely to the Long-Term Seismic Program, not the evaluation of the Hosgri Earthquake.

See Petition at 20 n.51. Moreover, Research Information Letter 12-01 concluded that the seismic hazard by the Shoreline Fault was bounded by or equal to the hazard analyzed in both the Long Term Seismic Program and the Hosgri Evaluation. 2012 Assessment at 58.

58 Petition at 34.

communications, expanded PG&Es operating authority or otherwise altered the terms of the Diablo Canyon operating licenses in any way.

Fourth, in its Reply, FOE claims that the NRC Staffs acceptance of PG&Es UFSAR Revision 21, in September 2013 (shortly after FOEs initial Petition had been filed with the Commission), also constituted a de facto license amendment because, allegedly, it too inappropriately moved the Hosgri Earthquake into the Diablo Canyon plants existing seismic design basis.59 FOE also argues that UFSAR Revision 21 amends the license in that it:

(1) removes the Double Design Earthquake from the seismic design basis;60 and (2) provides authorization to use new methods of analysis to demonstrate satisfaction of the seismic design basis, including probabilistic methods rather than deterministic methods.61 FOEs argument, however, misconstrues the significance of the Staffs approval of a UFSAR revision. Pursuant to 10 C.F.R. § 50.71(e), licensees must periodically submit an updated FSAR to the NRC to report information and analyses submitted to the Commission by the . . . licensee or prepared by the . . . licensee pursuant to Commission requirement since the previous update. But the agency does not review such submittals for accuracy; nor does it approve the analyses therein. Rather, as stated when section 50.71(e) was promulgated, the regulation is only a reporting requirement.62 [A]pprovals of license amendments and technical specification changes are independent of the FSAR updating process.63 As the Commission explained when it promulgated the section 50.71(e) reporting requirement, [s]ubmittal of 59 Reply at 12-14.

60 Tr. at 107.

61 Id. at 109.

62 Periodic Updating of Final Safety Analysis Reports, Final Rule, 45 Fed. Reg. 30,614, 30,615 (May 9, 1980).

63 Id.

updated FSAR pages does not constitute a licensing action but is only intended to provide information.64 Such FSAR updates must reflect (1) changes a licensee has made through a license amendment request under 10 C.F.R. § 50.90 (which would have triggered an opportunity to request a hearing); and (2) certain changes that do not require a license amendment pursuant to 10 C.F.R. § 50.59. Actions taken by a licensee under the authority of section 50.59 do not give rise to hearing rights under the AEA,65 but rather are monitored by the NRC Staffs inspections and oversight, which may be challenged only by a petition for enforcement pursuant to 10 C.F.R. § 2.206.66 Therefore, although the Staff reviews section 50.71(e) submissions for compliance with such administrative requirements as timeliness and content, the agency does not approve substantive changes, such as changes to a seismic analysis, as part of the section 50.71(e) process. Thus, UFSAR Revision 21 could not constitute a de facto amendment of the licenses for Diablo Canyon. If PG&E made any such reported changes without proper authorization or analysis, that would be a matter for NRC oversight, not for adjudication.67 FOEs interpretation of the NRC Staffs approval of section 50.71(e) updates would lead to anomalous results. Under section 50.71(e), licensees must update their FSARs every two years.68 If FOE were correct, then every two years the agency would approve all listed section 50.59 changes at a facility and the public would have an opportunity to request hearings 64 Id.

65 Fort Calhoun, CLI-15-5, 81 NRC at 337.

66 See San Onofre, CLI-12-20, 76 NRC at 439 n.10 (citing Yankee Nuclear, CLI-94-3, 39 NRC at 101 n.7).

67 Id.

68 See 10 C.F.R. § 50.71(e)(4).

on those approvals. A fundamental purpose of section 50.59, however, is to permit licensees to make certain limited changes to their facilities without Commission approval.69 Thus, FOEs interpretation directly conflicts with the Commissions clear admonition that a member of the public may challenge an action taken under 10 C.F.R. § 50.59 only by means of a petition under 10 CF.R. § 2.206.70 Moreover, because UFSARs that have been updated under section 50.71(e) must also list any license amendments that the agency has approved under section 50.90 within the preceding two years, FOE would apparently have the NRC approve all license amendments twice.

FOE has not demonstrated that the NRC Staffs acceptance of UFSAR Revision 21 plausibly constituted a de facto license amendment.

Fifth, in its Supplemental Brief,71 FOE points to the NRC Staffs December 2014 inspection report assessing PG&Es seismic operability determination after issuance of the September 2014 Seismic Imaging Project Report. As the Commission has explained, however, the NRCs inspection process is separate from its licensing process.72 Staff oversight activities that ensure compliance with existing requirements do not constitute de facto license amendments. Thus, NRC inspection reports, even inspection reports documenting violations, are not de facto license amendments.73 The Commission has recognized this distinction in this 69 Changes, Tests, and Experiments, 64 Fed. Reg. 53,582, 53,584 (Oct. 4, 1999).

70 Yankee Nuclear, CLI-94-3, 39 NRC at 101 n.7.

71 As previously stated, there is substantial question whether any of the matters discussed in FOEs Supplemental Brief were timely raised or are within the scope of the Commissions referral. The Board need not decide these issues, however, because we conclude that none of the matters raised by FOEin or after its initial Petitionconstitute grounds for finding a de facto license amendment.

72 St. Lucie, CLI-14-11, 80 NRC at 174.

73 Fort Calhoun, CLI-15-5, 81 NRC at 336-37.

very case, by referring FOEs safety claims to the Executive Director for Operations for consideration under 10 C.F.R. § 2.206.74 Sixth, FOE focuses on a March 2015 seismic hazard report issued by PG&E in response to the NRC Staffs information request under section 50.54(f), which was part of the Commissions post-Fukushima review of all power reactors. The March seismic hazard report, by itself, cannot possibly grant a de facto license amendment for the simple reason that it was issued by PG&E. A licensee cannot grant itself a license amendmentde facto or otherwise.75 Finally,76 FOE points to the NRC Staffs May 13, 2015 letter responding to PG&Es March 2015 seismic hazard report, claiming that the letter had the effect of augmenting the plain terms of the licenses seismic design basis to include an extra-design basis [ground motion] response spectrum.77 FOE claims that PG&Es March 2015 report shows that it cannot presently comply with conditions in the Diablo Canyon plants operating licenses, and that the NRC Staffs May 13, 2015 letter granted PG&E additional operating authority because it endorses PG&Es plan to address this supposed noncompliance.78 74 CLI-15-14, 81 NRC at __ (slip op. at 12).

75 See St. Lucie, CLI-14-11, 80 NRC at 173 (A licensee cannot amend the terms of its license unilaterally.).

76 Although the Board does not take FOE to suggest that testimony before a Senate committee could somehow grant a license amendment, we have also considered FOEs argument that the testimony of Dr. Sam Blakesleea geophysicist and former California state senator who presented testimony in December 2014 to the Unites States Senate Committee on Environment and Public Worksdescribes the significance of the Staffs willingness to allow PG&E free rein to substitute revised methods of analysis in the Diablo Canyon UFSAR. Supplemental Brief at

16. Dr. Blakeslees testimony demonstrates that he shares FOEs general concerns about the safe operation of Diablo Canyon; however, the Commission has not referred such concerns to this Board. It has referred FOEs concerns regarding operational safety to the NRC Executive Director for Operations to address as a request for enforcement action pursuant to 10 C.F.R.

§ 2.206. See CLI-15-14, 81 NRC at __ (slip op. at 9).

77 Supplemental Brief at 6-7.

78 Id. at 2.

The Staffs May 13, 2015 letter was not a de facto license amendment. As previously explained, the Hosgri Earthquake is not an extra-design basis but is a part of the historic design basis. Furthermore, the letter merely confirmed that PG&E is following the 10 C.F.R.

§ 50.54(f) process that, as part of its ongoing oversight responsibilities, the Staff initiated with its request for information back in March 2012. Diablo Canyons seismic hazard re-evaluation results, like those of certain other nuclear power plants, warranted additional analysis. The Staffs May 13, 2015 letter confirmed the next steps in the post-Fukushima process: that is, that PG&E will submit further evaluations in 2017 for the NRCs review. This ongoing process mightor might notrequire PG&E to obtain a license amendment in the future. The mere possibility of a future license amendment, however, does not trigger a hearing opportunity today.79 Ultimately, this Board must remain mindful of the limited scope of the Commissions referral, which is to determine whether FOE has established a right to request a hearing under section 189a of the AEA. There are various other ways in which the public may participate in NRC activities. The Commission has directed the Staff to investigate FOEs concerns regarding operational safety as though FOE had sought one such opportunitya petition for enforcement pursuant to 10 C.F.R. § 2.206.80 Additionally, the Commission has retained for itself the option of exercising its discretion to conduct an evidentiary hearing even though one is not required by the AEA.81 This Board is charged solely with determining whether, even though no license amendment has been formally approved by the NRC, FOE has nonetheless established a right 79 Fort Calhoun, CLI-15-5, 81 NRC at 337.

80 CLI-15-14, 81 NRC at __ (slip op. at 9).

81 Id. at __ (slip op. at 11-12).

to request an evidentiary hearing under section 189a of the AEA on the theory that a license amendment has been granted de facto. We conclude that FOE has established no such right.

III. ORDER For the reasons stated, FOEs petition to intervene and request for hearing is denied. In accordance with 10 C.F.R. § 2.311, any appeal to the Commission from this Memorandum and Order must be taken within twenty-five (25) days after it is served.

THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

___________________________

Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE

/RA/

___________________________

Dr. Gary S. Arnold ADMINISTRATIVE JUDGE

/RA/

___________________________

Nicholas G. Trikouros ADMINISTRATIVE JUDGE Rockville, Maryland September 28, 2015

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275 and 50-323

)

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying Petition to Intervene and Request for Hearing) have been served upon the following persons by the Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chairman Edward L. Williamson, Esq.

Administrative Judge E-mail: edward.williamson@nrc.gov E-mail: paul.ryerson@nrc.gov Beth Mizuno, Esq.

E-mail: beth.mizuno@nrc.gov Dr. Gary S. Arnold David Roth, Esq.

Administrative Judge E-mail: david.roth@nrc.gov E-mail: gary.arnold@nrc.gov Jeremy Wachutka, Esq.

E-mail: jeremy.wachutka@nrc.gov Nicholas G. Trikouros Joseph Lindell, Esq.

Administrative Judge E-mail: joseph.lindell@nrc.gov E-mail: nicholas.trikouros@nrc.gov Mitzi Young, Esq.

E-mail: mitzi.young@nr.gov Alana Wase, Law Clerk Catherine E. Kanatas, Esq.

alana.wase@nrc,gov catherine.kanatas@nrc.gov John Tibbetts, Paralegal E-mail: john.tibbetts@nrc.gov OGC Mail Center E-mail: OGCMailCenter@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 OCAA Mail Center Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov

2 Diablo Canyon Nuclear Power Plant - Docket Nos. 50-275 and 50-323 MEMORANDUM AND ORDER (Denying Petition to Intervene and Request for Hearing)

Counsel for Pacific Gas and Counsel for Friends of the Earth Electric Company Ayers Law Group LLP Winston & Strawn, LLP 1707 L Street NW, Suite 850 101 California Street Washington, DC 20036 San Francisco, CA 94111-5802 Richard E. Ayres, Esq.

David A. Repka, Esq. E-mail: ayresr@ayreslawgroup.com E-mail: drepka@winston.com Jessica Olson, Esq.

Tyson Smith, Esq. E-mail: olsonj@ayreslawgroup.com E-mail: trsmith@winston.com John Bernetich, Esq.

Carlos Sisco, Senior Paralegal E-mail: bernetichj@ayreslawgroup.com E-mail: csisco@winston.com

[Original signed by Clara Sola ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 28th day of September, 2015