ML23227A015

Pacific Gas and Electric Company Notice of Appeal and Brief in Support of Appeal of LBP-23-7

ML23227A015
Person / Time
Site:	Diablo Canyon
Issue date:	08/14/2023
From:	Lighty R Morgan, Morgan, Lewis & Bockius, LLP, Pacific Gas & Electric Co
To:	NRC/OCM
SECY RAS
References
RAS 56751, 72-26-ISFSI-MLR
Download: ML23227A015 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Independent Spent Fuel Storage Installation)

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Docket No. 72-26-ISFSI-MLR August 14, 2023 PACIFIC GAS AND ELECTRIC COMPANYS NOTICE OF APPEAL OF LBP-23-7 Pursuant to 10 C.F.R. § 2.311, Pacific Gas and Electric Company (PG&E) hereby files this Notice of Appeal of the Atomic Safety and Licensing Boards (Board) July 19, 2023, Memorandum and Order LBP-23-7.1 In that decision, the Board granted San Luis Obispo Mothers for Peaces (SLOMFP) March 13, 2023, hearing request and petition to intervene (Petition).2 As demonstrated in the accompanying Brief in Support of PG&Es Appeal of LBP-23-7, the decision to admit Contention A and grant the Petition resulted from legal error or abuse of discretion. Therefore, pursuant to 10 C.F.R. § 2.311(d)(1), PG&E appeals LBP-23-7 as a matter of right because the Petition should have been wholly denied.

1 Pac. Gas & Elec. Co. (Diablo Canyon Indep. Spent Fuel Storage Installation), LBP-23-7, 98 NRC __ (July 19, 2023) (slip op.) (ML19235A165). Under 10 C.F.R. § 2.311(b), appeals of licensing board orders on hearing requests and petitions to intervene are due within 25 days after the service of the order. Thus, this appeal is timely.

2 Re-Filed [SLOMFP]s Hearing Request and Petition to Intervene in License Renewal Proceeding for Diablo Canyon Spent Fuel Storage Installation (dated Mar. 13, 2023, properly filed and served Mar. 14, 2023)

(ML23073A382) (Petition).

2 Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

TIMOTHY P. MATTHEWS, ESQ.

PAUL M. BESSETTE, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 E-mail: timothy.matthews@morganlewis.com E-mail: paul.bessette@morganlewis.com Counsel for Pacific Gas and Electric Company Dated in Washington, D.C.

this 14th day of August 2023

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Independent Spent Fuel Storage Installation)

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Docket No. 72-26-ISFSI-MLR August 14, 2023 BRIEF IN SUPPORT OF PACIFIC GAS AND ELECTRIC COMPANYS APPEAL OF LBP-23-7 RYAN K. LIGHTY, ESQ.

TIMOTHY P. MATTHEWS, ESQ.

PAUL M. BESSETTE, ESQ.

MORGAN, LEWIS & BOCKIUS LLP Counsel for Pacific Gas and Electric Company

ii TABLE OF CONTENTS INTRODUCTION.............................................................................................................. 1 BACKGROUND................................................................................................................ 3 A.

Factual Background................................................................................................ 3 B.

Procedural History.................................................................................................. 5 C.

Standard of Review on Appeal............................................................................... 8 THE DECISION IN LBP-23-7 TO ADMIT CONTENTION A AND GRANT THE PETITION SHOULD BE REVERSED...................................................... 9 A.

As a Matter of Law, Part 72 Imposes No Obligation to Update the FQ Discussion in a Pending License Renewal Application.......................................... 9

1.

The Conclusion That Post-Submission Events Bear on the Compliance Status of an Accurate-When-Filed FQ Discussion Is Contrary to Settled Law.............................................................................. 9

2.

The Conclusion That 10 C.F.R. § 72.11(a) Imposes an Ongoing, Post-Submission Duty on License Applicants to Update Accurate-When-Filed FQ Discussions to Reflect Supervening Circumstances Is Legally Erroneous or an Abuse of Discretion.............. 11 B.

As a Matter of Law, the Commissions Legal Standards for FQ Are Relevant to the Admissibility of FQ Contentions................................................. 14

1.

LBP-23-7 Did Not Evaluate Whether Petitioner Disputed PG&Es Presumption of Financial Qualifications............................................... 15

2.

LBP-23-7 Did Not Evaluate Whether Petitioner Identified Any Support for Its Atextual Interpretation of 10 C.F.R. § 72.22(e)............... 16

3.

LBP-23-7 Did Not Evaluate Whether Petitioner Disputed PG&Es Satisfaction of the Commissions Plausibility Standard....................... 18 CONCLUSION................................................................................................................. 19

iii TABLE OF AUTHORITIES NRC CASES AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006)................................................................................................ 8 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009).................................................................................................. 9 Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska),

CLI-09-9, 69 NRC 331 (2009).................................................................................................. 8 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014).................................................................................................... 8 Crow Butte Res., Inc. (North Trend Expansion Project),

CLI-09-12, 69 NRC 535 (2009)................................................................................................ 8 EnergySolutions, LLC (Zion Nuclear Power Station, Units 1 & 2, et al.),

CLI-22-9, 96 NRC 107 (2022)................................................................................................ 11 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station, Units 1, 2, & 3 and ISFSI), CLI-21-1, 93 NRC 1, 36-37 (2021)...................................... 10, 19 Holtec Intl (HI-STORE Consol. Interim Storage Facility),

CLI-20-4, 91 NRC 167 (2020)................................................................................................ 15 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012).................................................................................................. 8 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1),

CLI-99-6, 49 NRC 201 (1999).................................................................................... 10, 18, 19 Pac. Gas & Elec. Co. (Diablo Canyon Indep. Spent Fuel Storage Installation),

LBP-23-7, 98 NRC ___ (July 19, 2023) (slip op.)........................................................... passim Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2)

CLI-16-9, 83 NRC 472 (2016).................................................................................................. 8 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-12-13, 75 NRC 681 (2012).............................................................................................. 13 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

LBP-11-32, 74 NRC 654 (2011)................................................................................. 10, 12, 13 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

LBP-12-13, 75 NRC 784 (2012)............................................................................................. 13 Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-03-12, 58 NRC 185 (2003)................................................................ 2, 4, 15 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-02-29, 56 NRC 390 (2002).............................................................................................. 10

iv Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998).................................................................................................. 8 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application),

CLI-18-5, 87 NRC 119 (2018).................................................................................................. 8 Union Elec. Co. (Callaway Plant, Unit 1),

LBP-12-15, 76 NRC 14 (2012)............................................................................................... 13 REGULATIONS 10 C.F.R. § 2.309................................................................................................................... passim 10 C.F.R. § 2.311........................................................................................................................ 1, 8 10 C.F.R. § 50.9...................................................................................................................... 11, 13 10 C.F.R. § 54.21.......................................................................................................................... 10 10 C.F.R. § 72.11................................................................................................................... passim 10 C.F.R. § 72.22................................................................................................................... passim FEDERAL REGISTER NOTICES Pacific Gas & Electric Company; Diablo Canyon Power Plant, Units 1 & 2; Exemption; issuance, 88 Fed. Reg. 14,395 (Mar. 8, 2023).......................................................................... 5 Pacific Gas and Electric Company; Diablo Canyon Independent Spent Fuel Storage Installation; License renewal application; receipt; notice of opportunity to request a hearing and petition for leave to intervene, 88 Fed. Reg. 1,431 (Jan. 10, 2023)...................... 5 OTHER AUTHORITIES

[PG&E, DCPP] Unit 1, Docket No. 50-275, Facility Operating License, License No.

DPR-80 (expires Nov. 2, 2024)................................................................................................ 4

[PG&E, DCPP] Unit 2, Docket No. 50-323, Facility Operating License, License No.

DPR-82 (expires Aug. 26, 2025).............................................................................................. 4 California Senate Bill No. 846, Diablo Canyon powerplant: extension of operations, (approved by Governor Sept. 2, 2022)...................................................................................... 5 Official Transcript of Proceedings, [NRC], [PG&E], Diablo Canyon [ISFSI], Docket No.

72-26-ISFSI-MLR (June 13, 2023) (Revised Transcript, filed July 6, 2023).................. passim Public Utilities Commission of the State of California, Decision Approving Retirement of Diablo Canyon Nuclear Power Plant, Decision 18-01-022 (Jan. 11, 2018)............................. 4

INTRODUCTION Pursuant to 10 C.F.R. § 2.311, Pacific Gas And Electric Company (PG&E) files this Brief in Support of PG&Es Appeal of the Atomic Safety and Licensing Boards (Boards)

July 19, 2023, Memorandum and Order LBP-23-7.1 In that decision, the Board granted a petition to intervene and request for adjudicatory hearing (Petition) filed by San Luis Obispo Mothers for Peace (SLOMFP or Petitioner).2 The Board concluded that SLOMFP demonstrated standing and proffered one admissible contention (Contention A), and therefore granted SLOMFPs Petition.3 As explained below, the decision to grant the Petition should be reversed due to multiple legal errors or abuses of discretion.

This proceeding involves PG&Es application (LRA) to renew its Part 72 license for the Diablo Canyon (DC) Independent Spent Fuel Storage Installation (ISFSI). When the LRA was filed, PG&E had no intention of also seeking renewal of its separate Part 50 reactor operating licenses for Diablo Canyon Power Plant (DCPP). However, six months after the LRA was submitted, the State of California directed PG&E to do just that.

In Contention A, SLOMFP alleged that the LRA was non-compliant with the U.S.

Nuclear Regulatory Commissions (NRCs) financial qualifications (FQ) requirements for ISFSI license renewal because PG&E did not subsequently update the LRA to reflect that plan to seek renewal of the DCPP operating licenses. In response, PG&E explained that Contention A was inadmissible for many reasons, including because SLOMFP identified no regulatory 1

Pac. Gas & Elec. Co. (Diablo Canyon Indep. Spent Fuel Storage Installation), LBP-23-7, 98 NRC ___

(July 19, 2023) (slip op.).

2 Re-Filed [SLOMFP]s Hearing Request and Petition to Intervene in License Renewal Proceeding for Diablo Canyon Spent Fuel Storage Installation (dated Mar. 13, 2023, properly filed and served Mar. 14, 2023)

(ML23073A382) (Petition).

3 DC ISFSI, LBP-23-7, 98 NRC at __-__ (slip op at 10-15).

2 duty to update an accurate-when-filed license applicationparticularly when PG&E has not yet submitted an application to renew the DCPP operating licenses and when there are pending state precursors for doing so. LBP-23-7 did not adequately address this defect. As explained below, controlling Commission case law makes clear that this constitutes legal error or abuse of discretion.

Furthermore, LBP-23-7 accepted SLOMFPs conclusory assertion that the NRCs completeness and accuracy regulation at 10 C.F.R. § 72.11(a) imposed precisely such an update obligation. But, as explained below, that provision pertains to the completeness and accuracy of information at the time of submittal; whereas, a separate provision, Section 72.11(b),

addresses the treatment of superseding information, and imposes a wholly different standard.

Thus, even if Section 72.11(b) imposes an update obligation in the licensing context, the admitted contention erroneously alleges non-compliance with Section 72.11(a), which is the wrong legal standard.

PG&E also explained that, even if such a duty existed, SLOMFP identified no support for its assertion that NRC FQ standards for ISFSI operations require (or even permit) FQ discussions to reflect mere plans to seek future licensing approvals in separate proceedings. PG&E also pointed out that SLOMFPs purported dispute was unsupported and immaterial because, regardless of whether the FQ discussion mentions potential renewal of the DCPP operating licenses, PG&E is automatically presumed4 to satisfy the NRCs FQ requirements because it remains a rate-regulated utility. As a pleading matter, PG&E noted that Contention A did not 4

Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-03-12, 58 NRC 185, 192-193 (2003).

3 acknowledge any of these material circumstances or otherwise address the Commissions FQ standards, which are benchmarked to plausibility, not certainty as to future events.

LBP-23-7 largely sidestepped these legally relevant observations or erroneously concluded that they go to the merits. At the contention admissibility stage, however, the Board is required as a matter of law to evaluate whether petitioners have claimed the existence of information that, if true, would change the outcome of the proceeding. That does not require the weighing of evidence. It merely requires scrutiny of what has been pled.

Ultimately, as detailed below, the decision to admit Contention A is founded on multiple errors of law or abuses of discretion. As a result, the Commission should REVERSE the decision to admit Contention A. Further, because Petitioner proffered no other admissible contention, the Commission also should REVERSE the decision to grant the Petition.

Accordingly, the Commission also should TERMINATE the proceeding.

BACKGROUND A.

Factual Background On March 9, 2022, PG&E filed the LRA seeking a 40-year renewal of the specific license for the DC ISFSI, license number SNM-2511, issued under 10 C.F.R. Part 72, which expires on March 22, 2024.5 That license authorizes PG&E to receive, possess, transfer, and store spent fuel from DCPP. On September 8, 2022, the NRC determined that the LRA contained sufficient information to begin its technical review and was acceptable for docketing.6 5

Letter from M. Zawalick, PG&E, to NRC Document Control Desk, License Renewal Application for the Diablo Canyon Independent Spent Fuel Storage Installation, Encl. (Mar. 9, 2022) (ML22068A189) (LRA).

6 Letter from C. Markley, NRC, to M. Zawalick, PG&E, Application for Renewal of the Diablo Canyon Independent Spent Fuel Storage Installation License No. SNM-2511 - Accepted for Review (EPID No. L-2022-RNW-0007) (Sept. 8, 2022)(ML22238A239).

4 As relevant here, 10 C.F.R. § 72.22(e) requires ISFSI license renewal applicants to demonstrate to the Commission that they are financially qualified to operate the ISFSI during the renewal period. However, rate-regulated utilities are automatically presumed to be financially qualified (because reasonable and prudent costs of safe operation will be recovered through the ratemaking process), thus, no further demonstration is required; and the Commission has expressly confirmed that PG&E is entitled to that presumption.7 At the time the DC ISFSI LRA was filed in March 2022, PG&E planned to shut down and decommission the DCPP units at the end of their respective license terms (2024 for Unit 1 and 2025 for Unit 2),8 pursuant to a 2018 resource planning decision by the California Public Utilities Commission (CPUC).9 Accordingly, a summary description in Section 1.3.6 of the LRA (Financial Qualifications of PG&E) contained the following notation:

PG&E will remain financially qualified to carry out the operation.

.. of the ISFSI during the period of the renewed material license as required by 10 C.F.R. 72.22(e). The source of funds to operate the

[Diablo Canyon] ISFSI until the DCPP Unit 1 permanent shutdown in November 2024 is the General Rate Case process.... The source of funds to operate... the [Diablo Canyon] ISFSI starting in November 2024 of the renewed license period will include the PG&E Decommissioning Trust Fund, which is regulated by the CPUC and [NRC].10 On September 2, 2022, approximately six months after the LRA was submitted, the Governor of California signed Senate Bill No. 846 (SB 846), which invalidated the prior 7

DC ISFSI, CLI-03-12, 58 NRC at 192-193 (2003).

8

[PG&E, DCPP] Unit 1, Docket No. 50-275, Facility Operating License, License No. DPR-80 at 12 (ML053140349) (expires Nov. 2, 2024); [PG&E, DCPP] Unit 2, Docket No. 50-323, Facility Operating License, License No. DPR-82 at 10 (ML053140353) (expires Aug. 26, 2025).

9 Public Utilities Commission of the State of California, Decision Approving Retirement of Diablo Canyon Nuclear Power Plant, Decision 18-01-022 (Jan. 11, 2018), available at https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M205/K423/205423920.PDF.

10 LRA at 1-3 to 1-4.

5 CPUC decision and directed PG&E to seek renewal of the operating licenses for DCPP.11 Accordingly, on October 31, 2022, PG&E submitted to the NRC a document that, among other things, requested an exemption from the NRCs timely renewal regulation (Exemption Request).12 On March 2, 2023, the NRC granted that exemption, which effectively allows an application for renewal of the DCPP operating licenses to be considered timely if filed on or before December 31, 2023.13 As of the date of this pleading, no such application has been filed.14 B.

Procedural History On January 10, 2023, the NRC published in the Federal Register a notice of opportunity allowing the public to request a hearing and petition for leave to intervene in the license renewal proceeding for the DC ISFSI by March 13, 2023 (Hearing Opportunity Notice).15 On March 13, 2023, SLOMFP transmitted the Petition as an attachment to an email sent to six email addresses.16 On March 14, 2023, SLOMFP filed and served the Petition via the NRCs E-Filing system.17 11 California Senate Bill No. 846, Diablo Canyon powerplant: extension of operations, (approved by Governor Sept. 2, 2022) (SB 846), available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB846.

12 Letter from P. Gerfen, PG&E, to NRC Document Control Desk, Request to Resume Review of the Diablo Canyon Power Plant License Renewal Application or, Alternatively, for an Exemption from 10 CFR 2.109(b),

Concerning a Timely Renewal Application (Oct. 31, 2022) (ML22304A691) (Exemption Request).

13 See Pacific Gas & Electric Company; Diablo Canyon Power Plant, Units 1 & 2; Exemption; issuance, 88 Fed.

Reg. 14,395 (Mar. 8, 2023).

14 As noted in PG&Es Answer, SB 846 (Section 9) amended the California Public Utilities code (Section 712.8(c)(2)(A)) to require the CPUC to authorize, by the end of 2023, the extended operation of DCPP. See

[PG&Es] Answer Opposing [SLOMFPs] Hearing Request and Petition to Intervene at 12 n.46 (Apr. 7, 2023)

(ML23097A129) (PG&E Answer). But, as of the date of this pleading, the CPUC has not yet done so.

15 Pacific Gas and Electric Company; Diablo Canyon Independent Spent Fuel Storage Installation; License renewal application; receipt; notice of opportunity to request a hearing and petition for leave to intervene, 88 Fed. Reg. 1,431 (Jan. 10, 2023).

16 See Petition at [PDF page 26 of 27] (first certificate of service).

17 See id. at [PDF page 27 of 27] (second certificate of service).

6 In the Petition, SLOMFP proposed two contentions. Contention A alleged that information in the LRA was incorrect and insufficient to satisfy certain NRC safety regulations,18 and Contention B alleged that it failed to satisfy certain NRC environmental review requirements.19 In both contentions, SLOMFP claimed that the LRA (which was submitted in March 2022) was deficient because it failed to consider PG&Es intention to seek renewal of the operating licenses for DCPP (as mandated by SB 846 in September 2022). On April 7, 2023, PG&E and the NRC Staff filed their respective Answers thereto,20 and SLOMFP filed its corresponding Reply on April 13, 2023.21 The Board heard oral arguments from SLOMFP, PG&E, and the NRC Staff on standing and contention admissibility on June 13, 2023.22 The following month, on July 19, 2023, the Board issued LBP-23-7, in which it concluded that a portion of Contention A, as reformulated by the Board, was admissible and that SLOMFP had demonstrated standing. Accordingly, the Board granted SLOMFPs Petition.

Contention A, as reformulated and admitted by the Board, reads as follows:

PG&Es ISFSI LRA fails to provide accurate and complete information regarding its satisfaction of NRC safety regulation 10 C.F.R. § 72.22(e) because its financial qualifications analysis is based on the incorrect assumption that PG&E will not seek renewal of the DCPP reactors.23 18 Id. at 5.

19 Id. at 9.

20 See PG&E Answer; NRC Staff Answer to [SLOMFP] Hearing Request and Petition to Intervene (Apr. 7, 2023)

(ML23097A063) (NRC Staff Answer).

21 See [SLOMFPs] Reply to PG&Es and NRC Staffs Responses to SLOMFPs Hearing Request and Petition to Intervene in License Renewal Proceeding for Diablo Canyon [ISFSI] at 3-4 (Apr. 13, 2023) (ML23103A394)

(SLOMFP Reply).

22 See Official Transcript of Proceedings, [NRC], [PG&E], Diablo Canyon [ISFSI], Docket No. 72-26-ISFSI-MLR (June 13, 2023) (Revised Transcript, filed July 6, 2023) (ML23186A163) (Tr.).

23 DC ISFSI, LBP-23-7, 98 NRC at __ (slip op at 20). Petitioner twice narrowed the scope of Contention A as originally proposed in its Petition, first abandoning its claim related to General Design Criteria, and later

7 The Board found that Contention A met all six contention admissibility criteria in 10 C.F.R. § 2.309(f)(1).24 As explained below, the Boards rulings as to two of those criteria are particularly relevant to this Appeal.

First, 10 C.F.R. § 2.309(f)(1)(v) requires that a proposed contention:

Provide a concise statement of the alleged facts or expert opinions which support the []petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the []petitioner intends to rely to support its position on the issue.

The Board concluded that Contention A satisfied this requirement for adequate support based solely on its references to the following information:

1.

the LRAs FQ discussion (which assumes that DCPP Unit 1 will cease operating in 2024);

2.

SB 846 and the Exemption Request (directing PG&E to seek license renewal for DCPP and discussing PG&Es plan to do so, respectively); and

3.

10 C.F.R. §§ 72.22(e) and 72.11(a) (which, according to the Board, collectively support [SLOMFPs] claim that the LRAs financial qualifications analysis must be grounded on facts that are complete and accurate in material respects).25 Second, 10 C.F.R. § 2.309(f)(1)(vi) requires that a proposed contention:

provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application abandoning its decommissioning-related claim. Id. at __ (slip op. at 4). The Board rejected Contention B in its entirety. Id. at __ - __ (slip op. at 15-20).

24 Under the first four criteria, a proposed contention must: (i) provide a specific statement of the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised is within the scope of the proceeding; (iv) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding. Failure to satisfy any one of the six admissibility criteria in 10 C.F.R. § 2.309(f)(1) renders a proposed contention inadmissible.

25 DC ISFSI, LBP-23-7, 98 NRC at __ (slip op at 14).

8 fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

The Board concluded that Contention A satisfied this requirement to demonstrate a material dispute because the FQ discussion in the LRA would be rendered erroneous under an assum[ed] future scenario in which Unit 1 is still operating beyond November 2024 (as directed by SB 846 and as intended by PG&E), which, according to the Board, raises a genuine question regarding PG&Es demonstration of its compliance with sections 72.22(e) and 72.11(a).26 C.

Standard of Review on Appeal Section 2.311 permits an appeal as of right on the question of whether an initial intervention petition should have been wholly denied, or alternatively, was granted improperly.27 The Commission generally defers to Board decisions on standing and contention admissibility, but will reverse a Boards ruling if there has been an error of law or abuse of discretion.28 The Commission has reversed Board decisions admitting speculative contentions because entertain[ing] contentions grounded on little more than guesswork would waste the scarce adjudicatory resources of all involved.29 The Commission reviews questions of law de 26 Id.

27 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 385 (2012) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1998); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 125 (2006)).

28 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 121 (2018) (citing Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-16-9, 83 NRC 472, 482 (2016); Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2014)).

29 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009); see also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 364 (2009) (arguments that are speculative do not form the basis for a litigable contention).

9 novo,30 and will reverse a licensing boards legal rulings if they are a departure from or contrary to established law.31 THE DECISION IN LBP-23-7 TO ADMIT CONTENTION A AND GRANT THE PETITION SHOULD BE REVERSED As detailed below, the decision in LBP-23-7 to admit Contention A (as reformulated by the Board) should be reversed. More specifically, the determination that Contention A satisfied the contention admissibility criteria in 10 C.F.R. § 2.309(f)(1)(v) and (vi) is affected by multiple and overlapping legal errors, abuses of discretion, or both.

A.

As a Matter of Law, Part 72 Imposes No Obligation to Update the FQ Discussion in a Pending License Renewal Application

1.

The Conclusion That Post-Submission Events Bear on the Compliance Status of an Accurate-When-Filed FQ Discussion Is Contrary to Settled Law As noted above, no party disputed the fact that the FQ discussion in the LRA was complete and accurate in all material respects at the time it was filed. Rather, in Contention A, Petitioners argued that post-submission circumstances subsequently rendered the FQ discussion inaccurate and incomplete.32 But, as PG&E argued before the Board, Petitioners failed to identify any legal, regulatory, or other authority imposing an obligation to presently update the FQ discussion to reflect post-submission (and potential future) occurrences.33 In LBP-23-7, the Board rejected PG&Es arguments.34 However, that ruling contradicts settled law and should be reversed.

30 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009).

31 See id. (citation omitted).

32 Petition at 5.

33 See, e.g., Tr. at 30-31 (R. Lighty, counsel for PG&E) (They havent identified any regulation in Part 72 that requires the LRA, which was complete and accurate at the time it was filed, to be updated... [a]nd our view is that there is no such regulation in Part 72 that requires that update to be made under these circumstances.).

34 DC ISFSI, LBP-23-7, 98 NRC at __ n.22 (slip op. at __ n.22) (concluding that this argument remains open for PG&E to advance at some future stage of the proceeding).

10 A nearly identical contention was unanimously rejected by the Commission just a few years ago in the Indian Point license transfer proceeding.35 There, a petitioner proposed a contention alleging that financial information in a pending applicationinformation that was complete and accurate when filedhad been rendered inaccurate by subsequent events.36 As the Commission explained, [t]his argument does not, however, raise a material dispute with the application.37 The Commission held that its Part 50 regulations did not impose a requirement for the applicant to update that financial discussion after the application had been submitted.38 The Commission also reiterated its longstanding legal authority holding that an applicants FQ discussion is acceptable if it is merely grounded in assumptions and forecasts that were plausible when [the application was] submitted.39 Although the Indian Point precedent involved an application under Part 50, its core legal conclusions are equally applicable to Part 72 applications. For example, and as PG&E argued, Part 72 regulations (like Part 50 regulations) do not impose any express requirement for the applicant to update the FQ discussion after a licensing application has been submitted.40 Likewise, the Commissions overarching FQ standard (i.e., plausible at the time of submission) 35 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station, Units 1, 2, & 3 and ISFSI), CLI 1, 93 NRC 1, 36-37 (2021) (New York Contention 2.J). Two Commissioners dissented, in part, but not as to New York Contention 2.J. Id. at 58-69.

36 Id. at 36-37.

37 Id.

38 Id. As the Commission noted, it knows how to impose an application update requirement if it so chooses. Id. at 37 & n.207. See also Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-11-32, 74 NRC 654, 668 n.31 (2011) (noting the requirement in 10 C.F.R. § 54.21(b) to submit periodic application updates of certain information related to power reactor license renewal application). Part 72 contains no analogous update requirement. Cf. also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-02-29, 56 NRC 390, 397 (2002) (Congress knows how to draft legislation that clearly states its intent.).

39 Indian Point, CLI-21-1, 93 NRC at 36 (citing N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 222 (1999)).

40 See, e.g., Tr. at 30-31 (R. Lighty, counsel for PG&E).

11 is equally applicable to Part 72 proceedings.41 Moreover, the Part 72 completeness and accuracy regulation that the Board cited as the legal basis for Contention A contains essentially identical text to the completeness and accuracy regulation in Part 50.42 Given all of this, there exists no legal basis to depart from the controlling authority in Indian Point.

Accordingly, the Commission should reverse the decision to admit Contention A as legally erroneous or an abuse of discretion.

2.

The Conclusion That 10 C.F.R. § 72.11(a) Imposes an Ongoing, Post-Submission Duty on License Applicants to Update Accurate-When-Filed FQ Discussions to Reflect Supervening Circumstances Is Legally Erroneous or an Abuse of Discretion The completeness and accuracy regulations in Parts 50 and 72 each contain two subsections. Subsection (a) requires that information be complete and accurate in all material respects at the time it is submitted to the NRC.43 In contrast, subsection (b) obligates applicants to update the NRC regarding any post-submission information identified as having a significant implication for public health and safety or common defense and security.44 As re-framed and admitted by the Board, Contention A charges that:

PG&Es ISFSI LRA fails to provide accurate and complete information regarding its satisfaction of NRC safety regulation 10 C.F.R. § 72.22(e) because its financial qualifications analysis is based on the incorrect assumption that PG&E will not seek renewal of the DCPP reactors.

41 See, e.g., EnergySolutions, LLC (Zion Nuclear Power Station, Units 1 & 2, et al.), CLI-22-9, 96 NRC 107, 115 (2022).

42 Compare 10 C.F.R. § 50.9 with id. § 72.11 (containing substantively identical provisions except that the latter additionally references certificate holders and certificates of complianceterms that are specific to Part 72in addition to licensees and applicants).

43 10 C.F.R. §§ 50.9(a), 72.11(a).

44 Id. §§ 50.9(b), 72.11(b).

12 In other words, the admitted contention is framed against the standard in Subsection 72.11(a).45 However, no party disputed the fact that the LRA was complete and accurate in all material respects at the time it was submitted. Instead, Petitioners argued that the LRA subsequently became non-compliant with NRC licensing requirements by virtue of factual circumstances that arose after the LRA was submitted. Accordingly, in the post-submission context, compliance with Section 72.11 is properly evaluated against the standard in Subsection 72.11(b), not 72.11(a). As a result, the conclusion that Contention A raised a genuine dispute is fundamentally erroneous because it relies on the wrong legal standard.

Licensing boards in other past proceedings have acknowledged this distinction between the two subsections. For example, SLOMFP proposed a contention in the initial DCPP license renewal proceeding alleging that the pending application became non-compliant as a result of events that occurred after the application was filed.46 Consistent with the Indian Point precedent discussed above, the licensing board found that the absence of an explicit requirement to update the application was dispositive to the admissibility of the contention.47 The judges expressed skepticism that the completeness and accuracy regulation imposed a duty to update a pending application in the absence of an express application update requirement.48 Nevertheless, they evaluated that possibility and found that, while subsection (a) mandates that the application be complete and accurate when it is filed, it does not require that it be 45 See Petition at 7 n.11 (citing 10 C.F.R. § 72.11(a)); DC ISFSI, LBP-23-7, 98 NRC at __ (slip op. at 11, 13)

(citing Petition at 7 n.11); id. at __ n.17 (slip op. at 11 n.17) (quoting 10 C.F.R. § 72.11(a)); id. at __ (slip op. at

14) (citing 10 C.F.R. § 72.11(a) as a basis for the Boards determination regarding satisfaction of contention admissibility criterion in 2.309(f)(1)(vi)).

46 Diablo Canyon, LBP-11-32, 74 NRC at 657, 668 (addressing the need to update the applicants environmental report).

47 Id.

48 Id. at 668 n.31 (Even if this... provision constitutes a duty to supplement or update the application...).

13 supplemented or updated.49 According to the judges, subsection (b)which relates solely to identification of information with a significant implication for public health and safety or common defense and securitywas the only provision that arguably could create a duty to supplement or update the application.50 The licensing board referred its ruling to the Commission.51 However, the Commission declined to disturb the boards ruling,52 which has been referenced in at least two other licensing proceedings.53 Here, the admissibility ruling improperly disregards the mismatch between the legal standard cited by SLOMFP (10 C.F.R. § 72.11(a), which imposes a completeness and accuracy duty on applications at the time of submission) with SLOMFPs factual allegation in Contention A (that the LRA was rendered non-compliant by post-submission circumstances). Thus, the Board admitted for hearing a contention alleging non-compliance with an inapplicable regulation. But, as a matter of law, such a contention fails to raise a material dispute. If any provision in Part 72 imposes an application update requirement, it would be 10 C.F.R. § 72.11(b). But, as PG&E explained to the Board, SLOMFP neither acknowledged nor invoked the requirements of 10 C.F.R. § 72.11(b) nor alleged that those requirements were unmet here.54 Accordingly, the decision to admit the mismatched, immaterial contention should be reversed.

49 Id. (second emphasis added).

50 Id. (referencing equivalent requirements in 10 C.F.R. § 50.9(b)).

51 Id. at 671-672.

52 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-12-13, 75 NRC 681, 690 (2012).

53 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-12-13, 75 NRC 784, 785-791 (2012); Union Elec. Co. (Callaway Plant, Unit 1), LBP-12-15, 76 NRC 14, 43 (2012) (concurring opinion of Trikouros, A.J.).

54 Petitioner never acknowledged the standard in Subsection 72.11(b) and certainly never alleged that PG&Es plan to seek renewal of the DCPP operating licenses constituted a significant implication for public health and safety or common defense and security related to the ISFSI. See generally Petition, SLOMFP Reply, Tr. (none of which present such assertions). See also Tr. at 37-38 (R. Lighty, counsel for PG&E) (What we havent seen is Petitioners acknowledge or address that standard [10 C.F.R. § 72.11(b)], or explain or offer any theory as to why its satisfied here based on its claims in the petition.).

14 A few final points regarding completeness and accuracy bear attention. First, as the Board and parties squarely acknowledged, the NRC Staff has long been aware of PG&Es plan to submit an application to renew the DCPP operating licenses by the end of the year.55 Thus, there can be no assertion that PG&E has withheld complete and accurate information from the NRC, much less any information that could possibly result in a significant implication for public health and safety or common defense and security. Second, the NRC has issued neither a decision on the DC ISFSI LRA nor any draft safety or environmental review related thereto; and the future scenario cited as the basis for admitting Contention A (i.e., continued operation of DCPP Unit 1 beyond November 2024) is still more than 14 months away. Thus, there also can be no assertion that the NRC in any way relied on such alleged incomplete or inaccurate information in making any regulatory decision. To the extent SLOMFPs Petition implies otherwise, such claims are nothing more than baseless fodder for unnecessary litigation.

B.

As a Matter of Law, the Commissions Legal Standards for FQ Are Relevant to the Admissibility of FQ Contentions LBP-23-7 did not consider the Commissions legal standards for financial qualifications in evaluating Contention A. A comparison of those standards against the claims raised by Petitioner was essential to determining whether Contention A raised an adequately supported material dispute, as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi). Thus, even if Part 72 imposes some obligation to update the FQ discussion in a pending license renewal application based on postulated future events, this lack of comparison of the Petitioners assertions against the relevant FQ legal standards still constitutes reversible legal error or abuse of discretion.

55 See, e.g., DC ISFSI, LBP-23-7, 98 NRC at __ n.20 (slip op at 13 n.20) (citing the NRC Staffs acknowledgement of these plans and disavowing any substantive concerns with PG&Es financial qualifications to operate the ISFSI).

15

1.

LBP-23-7 Did Not Evaluate Whether Petitioner Disputed PG&Es Presumption of Financial Qualifications As noted above, settled law specifies that PG&E is entitled to a legal presumption that it is financially qualified to operate the DC ISFSI because it is an electric utility that recovers costs through a regulated rate recovery process.56 That settled law also specifies that, in order to prevail at an evidentiary hearing on a challenge to PG&Es financial qualifications, a petitioner must proffer sufficient evidence to rebut that presumption.57 By extension, at the admissibility stage, a contention that fails to allege that the petitioner can proffer sufficient evidence to rebut the presumptionor a contention that disregards the presumption altogetheris inadmissible on its face.

Here, Contention A criticizes language in the LRA (reflecting the legal status quo) that may, at some point in the future, be overtaken by certain events related to the potential renewal of the DCPP operating licenses. However, the Petition does NOT allege thatshould those events come to fruitionPG&E would be financially unqualified to hold an ISFSI license.58 Nor does the Petition acknowledge the presumption or allege that SLOMFP could rebut that presumption at a hearing. Ultimately, SLOMFP offers no reason that the application verbiage would make a difference in the outcome of the licensing proceeding,59 given PG&Es presumption of financial qualifications combined with the State of Californias explicit statutory 56 DC ISFSI, CLI-03-12, 58 NRC at 192-193.

57 Id. at 193 (declining to second-guess the licensing boards application of this standard).

58 See also, DC ISFSI, LBP-23-7, 98 NRC at __ n.20 (slip op at 13 n.20) (the NRC Staff also has no substantive concerns with PG&Es financial qualification to operate the ISFSI).

59 Holtec Intl (HI-STORE Consol. Interim Storage Facility), CLI-20-4, 91 NRC 167, 190 (2020).

16 authorization for PG&Es recovery of ISFSI operating costs during any potential renewal period.60 PG&E raised this argument before the Board.61 However, LBP-23-7 rests on the conclusion that PG&Es argument goes to the merits.62 But that is not so. PG&E argued that SLOMFP did not allege the existence of a material evidentiary dispute because it entirely sidestepped the most imperative consideration for materiality on FQ issuesi.e., the presumption. Thus, the conclusion in LBP-23-7 is erroneous.

Furthermore, LBP-23-7 offered no explanation as to how Contention A could be viewed as satisfying the support and materiality requirements in 10 C.F.R. § 2.309(f)(1)(v)-(vi) given Petitioners failure to engage with the most material fact relevant to its claimthe existence of the presumption. And, in light of the Commissions holding that rebuttal of the presumption is a prerequisite to prevailing on the merits, then the existence (or not) of an allegation in the Petition that SLOMFP could rebut that presumption is plainly material to contention admissibility. Accordingly, the non-consideration of this pleading defect at the contention admissibility stage constitutes legal error or abuse of discretion.

2.

LBP-23-7 Did Not Evaluate Whether Petitioner Identified Any Support for Its Atextual Interpretation of 10 C.F.R. § 72.22(e)

LBP-23-7 concluded that Petitioner identified a genuine dispute as to PG&Es compliance with 10 C.F.R. § 72.22(e) assuming Unit 1 is still operating beyond November 60 As noted in PG&Es Answer, SB 846 (Section 9) amended the California Public Utilities code (Section 712.8(h)(1)) to authorize recovery of all reasonable costs and expenses necessary to operate [DCPP] beyond the current expiration dates and (Section 5) amended the California Public Resources Code (Section 25548.1(d)) to confirm that such operations include spent fuel management and storage facilities. PG&E Answer at 14 n.53.

61 See, e.g., id. at 14 (SLOMFP does not allege in its Petition that continued operation of DCPP would render PG&E unable to cover ISFSI operating costs through this normal process.... SLOMFP offers nothingno explanation or alleged supportto rebut this presumption.).

62 DC ISFSI, LBP-23-7, 98 NRC at __ n.20 (slip op at 13 n.20).

17 2024.63 But, as PG&E explained to the Board, that scenario cannot occur under the legal status quo (which is what the LRA reflects). For the future scenario contemplated as the basis for admitting Contention A come to fruition, several events would first need to occur.64 However, on its face, 10 C.F.R. § 72.22(e), does not impose an express textual requirement that financial qualifications discussions in ISFSI license renewal applications assume continued operation of co-located reactors based on the announcement of a plan to seek approval for such continued operation.

In answering the Petition, PG&E highlighted Petitioners failure to identify (as a pleading matter) any support, legal authority, precedent, or even an explanation for its bare assertion that 10 C.F.R. § 72.22(e) imposes such a requirement. And PG&E noted that a requirement to assume a favorable outcome in a separate future licensing proceeding is questionable, at best, and might run counter to the NRCs requirements for financial projections.65 Disappointingly, the discussion in LBP-23-7 misconstrued PG&Es argument on this issue as a challenge to the scope of Contention A (i.e., going to satisfaction of 10 C.F.R. § 2.309(f)(1)(iii)).66 The Board then rejected that (misconstrued) argument.67 However, PG&E did not advance a scope argument on this issue. As presented in its Answer, PG&E argued as follows:

• SLOMFP provides no support for its overarching claim that financial projections in the DC ISFSI LRA are somehow required to assume 63 Id. at __ (slip op at 14).

64 See, e.g., PG&E Answer at 12 n.46 (CPUC authorization for extended operation remains outstanding); id. at 3 (application for renewal of the DCPP operating licenses must be filed by December 21, 2023). See also generally Tr. at 30 (at least three other judicial or administrative proceedings remain ongoing in which the same Petitioner is seeking to prevent continued operation).

65 E.g., PG&E Answer at 11 (NRC guidance and Commission precedent suggest that doing so is disfavored and likely prohibited.).

66 DC ISFSI, LBP-23-7, 98 NRC at __ (slip op at 12 n.19).

67 Id.

18 NRC approval of a separate, potential, future licensing application for renewal of the DCPP licenses.68

• SLOMFP identifies zero support for its suggestion that PG&E was required, for purposes of satisfying 10 C.F.R. § 72.22(e), to reflect a projected scenario that is not yet authorized by state law, or to prejudge the outcome of a future application to the NRC for renewal of the DCPP licenses.69 By its plain and unequivocal text, this line of argument was directed at Petitioners failure to satisfy the support criterion in 10 C.F.R. § 2.309(f)(1)(v), not the scope criterion in Section 2.309(f)(1)(iii).70 Ultimately, these arguments were neither addressed nor dispositioned in LBP-23-7, which constitutes reversible legal error.

3.

LBP-23-7 Did Not Evaluate Whether Petitioner Disputed PG&Es Satisfaction of the Commissions Plausibility Standard More broadly, LBP-23-7 presupposes a standard of compliance as to 10 C.F.R. § 72.22(e) that is contrary to settled law. The Commission has held that the mere casting of doubt on some aspects of proposed funding plans is not by itself sufficient to defeat a finding of reasonable assurance.71 Here, the ruling on Contention A failed to consider or explain why SLOMFPs reference to PG&Es plan to seek renewal of the DCPP operating licenses amounts to anything more than mere casting of doubt. More importantly, the Commission has long refused to require applicants to provide absolutely certain predictions of future circumstances in their financial qualification discussions.72 As noted above, controlling authority states that an 68 PG&E Answer at 11 (emphasis added).

69 Id. at 12 (emphasis added). See also Tr. at 30 (JUDGE HAWKENS: At what point would PG&E be required to amend the application? MR. LIGHTY:... thats [] an issue that petitioner shouldve addressed in [its]

petition.).

70 Neither the word scope nor any reference to 10 C.F.R. § 2.309(f)(1)(iii) appears on the pages of PG&Es Answer cited by the Board on this issue. Compare DC ISFSI, LBP-23-7, 98 NRC at __ n.19 (slip op at 12 n.19)

(citing PG&E Answer at 11, 12) with PG&E Answer at 11, 12.

71 Seabrook, CLI-99-6, 49 NRC at 222.

72 Id. at 221.

19 applicants financial projections will be acceptable if they are grounded in assumptions and forecasts that were plausible when the [projections] were submitted.73 Thus, to the extent Contention A was admitted as a challenge to PG&Es inability to predict (in the LRA submitted in March 2022) the states passage of SB 846 (which occurred in September 2022), the contention is not material because, as a matter of settled law, satisfaction of the Commissions FQ requirements does not require absolutely certain predictions.

Alternatively, to the extent Contention A was admitted as a challenge to the plausibility of PG&Es financial projections based on post-submission circumstances, it is not material because, as a matter of settled law, plausibility is measured at the time of submission. Either way, the decision to admit Contention A should be reversed.

For any or all of these reasons, the Commission should conclude that the Board committed legal error or abused its discretion in admitting Contention A.

CONCLUSION74 For all the reasons explained above, the Commission should REVERSE the decision to admit Contention A. Because Petitioner proffered no other admissible contention, the Commission also should REVERSE the decision to grant the Petition. Accordingly, the Commission also should TERMINATE the proceeding.

73 Indian Point, CLI-21-1, 93 NRC at 36 (citing Seabrook, CLI-99-6, 49 NRC at 222).

74 In parallel with this Appeal, on August 10, 2023, PG&E submitted a voluntary revision to the LRA to reflect the potential for DCPP continued operations beyond the current operating license expiration dates. Letter from M. Zawalick, PG&E, to NRC Document Control Desk, [DC ISFSI LRA], Revision 1 at 1 (Aug. 10, 2023)

(ML23222A287).

20 Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

TIMOTHY P. MATTHEWS, ESQ.

PAUL M. BESSETTE, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 E-mail: timothy.matthews@morganlewis.com E-mail: paul.bessette@morganlewis.com Counsel for Pacific Gas and Electric Company Dated in Washington, D.C.

this 14th day of August 2023

DB1/ 140127934 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Independent Spent Fuel Storage Installation)

)

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)

)

)

)

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Docket No. 72-26-ISFSI-MLR August 14, 2023 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Pacific Gas and Electric Companys Notice of Appeal of LBP-23-7 and Brief in Support of Pacific Gas and Electric Companys Appeal of LBP-23-7 were filed through the E-Filing system.

Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Pacific Gas and Electric Company