ML15104A302

14-1213(D.C.Cir.) Respondents Response to Petitioner'S Motion to Supplement the Record (Filed)

ML15104A302
Person / Time
Site:	Diablo Canyon
Issue date:	04/07/2015
From:	Averbach A P, Cruden J C, Hansen-Young T, Mullins C E NRC/OGC, US Dept of Justice (DOJ)
To:	US Federal Judiciary, District Court for the District of Columbia
Creedon, Meghan
References
14-1213, 1546281
Download: ML15104A302 (55)

Text

ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 14-1213 FRIENDS OF THE EARTH, Petitioner, v. U.S. NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents, and PACIFIC GAS & ELECTRIC COMPANY, Intervenor.

________ RESPONDENTS' RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE RECORD JOHN C. CRUDEN ANDREW P. AVERBACH Assistant Attorney General Solicitor THEKLA HANSEN

-YOUNG CHARLES E. MULLINS Attorney Senior Attorney Appellate Section Office of the General Counsel Environment and Natural U.S. Nuclear Regulatory Commission Resources Division 11555 Rockville Pike U.S. Department of Justice Rockville, Maryland 2085 2 PO Box 7415, Ben Franklin Station (301) 415-1618 Washington, D.C. 20044 charles.mullins@nrc.gov (202) 307-2710 thekla.hansen

-young@usdoj.gov

April 7, 2015 USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 1 of 20 (Page 1 of Total)

INTRODUCTION In this lawsuit, Friends of the Earth ("FOE") alleges that the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") "approve d" Revision 21 to the Final Safety Analysis Report ("Safety Report") of the Diablo Canyon Nuclear Power Plant. Diablo Canyon is a two

-unit nuclear power plant owned and operated by Intervenor Pacific Gas & Electric Company ("PG&E"). FOE asserts that this "approval" constituted an amendment to the facility's operating licens es without the administrative hearing required by the Atomic Energy Act.

FOE has move d this Court to supplement the record with an internal PG&E document called the "Change Request" for a particular section (Section 2.5) of Revision 21. The Change Request contains a "redline strikeout" version of the Safety Report showing the changes in this portion of the document from Revision 20 to Revision 21. But PG&E did not submit the Change Request with Revision 21 , and it was not before the NRC when the NRC review ed Revision 21.

Moreover, while the Change Request is not part of the administrative record, the NRC agreed "in the spirit of cooperation" to allow FOE to cite it in its judicial filings and include portions in the Joint Appendix o f this case. Thus, this m otion not only lacks merit but wa s wholly unnecessary, and it should be denied.

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 2 of 20 (Page 2 of Total) 2 FACTUAL BACKGROU ND A. Revision 21 to the Diablo Canyon Safety Report.

1. NRC regulations require licensees to prepare and submit a Safety Report with an application to construct a nuclear power plant and to maintain that document at the facility on an ongoing basis. See 10 C.F.R. § 50.34(b). NRC regulations also require licensees to update the Safety Report regularly in order to advise the NRC of any changes to the facility or its procedures, including any changes made by license amendments. See 10 C.F.R. § 50.71(e).

Filing an update does not require either a license amendment or NRC approval. Instead, the NRC reviews updates to ensure that they address those changes at the facility that have been identified and that they meet the administrative requirements in

§ 50.71(e). A licensee must seek a license amendment for a change at the facility if indicated by an analysis of the change under 10 C.F.R.

§ 50.59. 2. On September 16, 2013, PG&E submitted Revision 21 to the Diablo Canyon Safety Report, which is the most recent update to that document. A copy of the submittal package is attached as Exhibit 1. NRC review of the document was assigned to Michael D. Orenak, a Project Manager in training, in the Division of Reactor Licensing, Office of Nuclear Reactor Regulation at the NRC. See Declaration of Michael D. Orenak ("Orenak Decl.") (Exhibit 2) ¶¶ 3-6. Mr. USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 3 of 20 (Page 3 of Total) 3 Orenak reviewed the submission for compliance with 10 C.F.R. § 50.71(e) and prepared a memo documenting his work. Orenak Decl

. ¶¶ 6-7. In the spring of 2014, Peter J. Bamford was assigned as the lead Project Manager for the Diablo Canyon facility. See Declaration of Peter J. Bamford ("Bamford Decl

.") (Exhibit 3) ¶ 3; Orenak Decl

. ¶ 11. Mr. Bamford reviewed Mr. Orenak's draft memo and made several suggestions regarding some items to be included in it. Bamford Decl

. ¶¶ 6-7; Orenak Decl

. ¶ 12. After Mr. Orenak incorporated the suggested changes, Mr. Bamford signed the memo on June 23, 2014 , as the lead Project Manager. Bamford Decl

. ¶ 7; Orenak Decl

. ¶ 13. The Revision 21 package that PG&E submitted and that Mr. Orenak and Mr. Bamford reviewed did not contain a "Change Request" or any other document that was a "redline strikeout" version of Revision 21. Bamford Decl

. ¶ 11; Orenak Decl. ¶ 10. Instead, PG&E submitted Revision 21 as a complete document on a compact disc with "change bars" in the margins to indicate where changes had been made to the document since Revision 20. Bamford Decl

. ¶ 9; Orenak Decl

. ¶ 8. See Exhibit 1 at Enclos ure 3, pp. 8-9. When submitting updates to a Safety Report, a licensee normally submits a complete electronic version of the revised Safety Report with a vertical change bar i n the margin of a page at the location of any change from the previous version. Bamford Decl

. ¶ 9; s ee also Declaration of Eric R. Oesterle ("Oesterle Decl.") USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 4 of 20 (Page 4 of Total) 4 (Exhibit 4)

¶ 10. "Change bars" are small vertical lines in the margin of a page that allow a viewer to go to the same section of a previous version of the document and compare the current version to the previous version.

Change bars indicate the location where a change has been made but do not give the nature of the change. A redline strikeout version gives both.

Bamford Decl

. ¶ 10; Oesterle Decl. ¶ 11. B ut while a licensee may create a redline version of the document, it is an internal licensee document. Oesterle Decl

. ¶ 8. Neither Mr. Bamford nor Mr. Oesterle recall s a licensee ever submitting a redline version of a Safety Report update as part of a licensee's section 50.71(e) submittal. Bamford Decl

. ¶ 12; Oesterle Decl

. ¶ 9. In accordance with NRC policy , on July 19, 2013

, Dr. Michael Peck, the NRC's former Resident Inspector at Diablo Canyon, submitted a Differing Professional Opinion related to seismic issues at Diablo Canyon

.1 Oesterle Decl.

1 As part of its mission to protect the public health and safety, the NRC maintains a Differing Professional Opinion program. This program encourage s employees to raise concerns about regulatory decision s wit hout fear of reprisal

It is the policy of the U.S. Nuclear Regulatory Commission to maintain a working environment that encourages employees to make known their best professional judgments even though they may differ from the prevailing staff view, disagree with a management decision or policy position, or take issue with a proposed or established agency practice involving technical, legal, or policy issues.

(-continued)

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 5 of 20 (Page 5 of Total) 5 ¶ 19. However, this process was entirely separate from the review of Revision 21 being challenged in this Petition for Review. Indeed, Dr. Peck did not take any part in the review of Revision 21. Orenak Decl. ¶ 14; Bamford Decl

. ¶ 8. And while both Mr. Orenak and Mr. Bamford were aware of Dr. Peck's Differing Professional Opinion, neither one took part in the NRC review of that document or in the review of Dr. Peck's appeal of the denial of the initial decision that declined to adopt his position. Orenak Decl

. ¶ 15; Bamford Decl. ¶ 13. B. The Certified Index of the Record.

FOE filed this Petition for Review on October 28, 2014, seeking review of the decision contained in the June 23, 2014, memorandum that concluded that Revision 21 had been submitted in accordance with the administrative requirements of 10 C.F.R. § 50.71(e). Subsequently, FOE's counsel asked that the "Change Request" be listed in the Certified Index of the Record. See Email Exchange Package (Exhibit

5) at 1. Counsel for the NRC asked the appropriate NRC Staff whether they possessed that document. The NRC Staff advised him that they did not have that document. See Oesterle Decl. ¶¶ 5-7. On December 8, 2014 , FOE's counsel again requested that a redline version of Revision 21 (i.e., the The agency's policy, and t he procures it employs to guarantee that employees have an independent avenue to raise concerns of this nature

, are set forth in NRC Management Directive 10.159, which is publicly available at www.pbadupws.nrc.gov/docs/ML0417/ML041770431.pdf

. USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 6 of 20 (Page 6 of Total) 6 Change Request) be included in the Certified Index. Exhibit 5 at 3. In a response later that day, counsel for the NRC advised FOE's counsel that

[t]o our knowledge, the NRC does not have any such document in its possession.

The licensee does not submit redline UFSAR versions and does not submit UFSAR pages with licensee annotations.

While the license may have such a document at its facility, it did not submit that document to the NRC and thus, it is not a part of the agency record in this case.

Exhibit 5 at 4-5. Counsel for the NRC repeated that message in response to FOE's counsel's request for a "Change Package," which counsel also alleged had been submitted.

Id. at 5; s ee also Oesterle Decl

. ¶ 12. On December 11, FOE's counsel re

-iterated his request, noting that , as part of his Differing Professional Opinion, Dr. Peck had attached a portion of the "Change Request" to a document related to that issue. Exhibit 5 at 6. In response, counsel for the NRC explained that the Record consisted of the documents that were available to the decision

-makers in a proceeding

The record is supposed to designate those documents that were considered by the decision

-maker in reaching a decision.

Here, assuming arguendo that Dr. Peck had access to the licensee documents that you seek, they were not before the decision

-maker (i.e., Mr. Bamford and Mr. Markley) when they reviewed Revision

21. Thus, even if Dr. Peck may have seen or even taken the documents you describe with him, they would not be a part of the "record of decision."

Exhibit 5 at 7. Accordingly, the NRC did not list the Change Request in the Certified Index of the Record, which was filed on December 12, 2014.

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 7 of 20 (Page 7 of Total) 7 In addition, counsel for FOE noted that because the underlying litigation in this case concerned the changes between Revision 20 and Revision 21, some provision needed to be made for him to point out those changes. Exhibit 5 at 6 (2 nd paragraph). Accordingly, the NRC agreed to add Revision 20 to the Index. Exhibit 5 at 7. Furthermore, the NRC made public the seismic

-related portions of both Revision 20 and Revision 21 and provided all parties to the case with the entire copy of both Revision 20 and Revision 21 after redacting exempt material (mostly security-related) from the two documents. The NRC also agreed to include both documents in the Certified Index. Subsequently, FOE's counsel again reiterated his request for the inclusion of the PG&E Change Request. Exhibit 5 at 10. Counsel for the NRC denied that request: We do not agree that this document is part of the decision

-making process. For example, it is a licensee document, not an agency document. And it was not submitted to the agency as a part of Revision 21.

Thus, to the extent that Mr. Bamford was a "decision

-maker," he did not have access to that document and did not consider it when preparing the June 23 Memo.

Exhibit 5 at 11. But, in an effort to avoid an unnecessary dispute, the NRC agreed to allow FOE to use the Change Request to more easily demonstrate the changes in the Safety Report from Revision 20 to Revision 21: However, in the spirit of cooperation, we will not object if you cite the document in your pleadings and include portions of it in the Joint USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 8 of 20 (Page 8 of Total) 8 Appendix. That approach gives you with the ability to use the document but does not confer "record" status upon it. Id. (emphasis in original). Counsel for FOE did not respond to that offer. Instead, without any further consultation, FOE filed the instant mo tion. C. The Freedom of Information Act Request. On November 28, 2014, FOE filed a Freedom of Information Act (FOIA) request, seeking documents in the NRC's possession related to the seismic portions of Revision 21. Oesterle Decl

. ¶ 13. The request also sought any redline version of Revision 21.

Id. ¶¶ 1 4-15. The NRC assigned Mr. Oesterle to conduct the search in the Office of Nuclear Reactor Regulation in addition to the Licensing Division (which processed Revision 21)

, and his search did not find any responsive documents. Oesterle Decl

. ¶¶ 16-18. After conducting a routine search, Mr. Oesterle specifically asked Dr. Peck whether he had any documents responsive to the FOIA request.

Id. ¶¶ 1 9-20. In response, Dr. Peck provided Mr. Oesterle with the one section (Section 2.5) of the Change Request that was in his possession. Id. ¶¶ 2 1-22. Mr. Oesterle forwarded that document to the NRC's FOIA office, which in turn forwarded it to FOE.

Id. ¶ 23. Dr. Peck provided only Section 2.5 of Revision 21

, and that was the only portion forwarded to FOE.

Id. ¶ 23. Dr. Peck did not provide any other section of the Change Request, including Section 3.7, id. ¶ 24, which FOE's motion also seeks to include in the record. USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 9 of 20 (Page 9 of Total) 9 ARGUMENT A. This Motion Would Have Been Unnecessary if FOE Had Accepted NRC's Offer. 1. Initially, FOE's motion fails to address Respondents' offer to allow FOE to both cite to the Change Request and include portions of that document in the record. See Exhibit 5 at 11. FOE had expressed the view that it would be unable to demonstrate to this Court the changes from Revision 20 to Revision 21.

2 To address this concern, the NRC first placed complete versions of the seismic portions of both Revision 20 and Revision 21 in the public domain and included them in the Certified Index of the Record. The NRC then reviewed both submissions in their entirety and prepared redacted versions (omitting exempt material, mostly security-related, which is not at issue in this case) and provided a copy of that document to all parties in the case

- as well as listing the documents in the Certified Index.

But FOE continued to claim that it was unable to compare the changes in Revision 21 to the prior version of the Diablo Canyon Safety Report as contained in Revision 20 as part of this lawsuit. In response , the NRC stated that it was 2 2 See , e.g., Exhibit 5 at 6 ("As you know, this litigation relates to changes made in Revision 21.

In order to review the proposed changes, NRC officials must have had either a redline version of Revision 21, or have themselves compared Revision 21 with Revision 20.

If the NRC's position is that it does not possess a redline/annotated version of Revision 21 in the record, then we must ask that Revision 20 of the USFAR be included in the record, as well as of Revision 21."). USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 10 of 20 (Page 10 of Total) 10 willing - even though the document was not before the decision

-makers (i.e., Mr. Orenak and Mr. Bamford) in this case and thus is not part of the record , and even though FOE can compare the two versions of the Diablo Canyon Safety Report to find any differences

- to allow FOE to use the Change Request to more easily demonstrate any substantive differences between Revision 20 and Revision 21. As its counsel advised FOE, "in the spirit of cooperation, we will not object if you cite the document in your pleadings and include portions of it in the Joint Appendix." Exhibit 5 at 11 (emphasis in original).

Thus, FOE had the ability to use that portion of the Change Request that it obtained as a result of its FOIA request.

FOE's motion omits any reference to this offer and does not explain why it was insufficient for its needs.

Obviously, accepting this offer would have obviated the need for the parties to expend the time and effort briefing this motion and for this Court to expend the time reviewing and deciding it. 2. Moreover, FOE's omission violates at least the spirit of Circuit Rule 27(b)(2) ("Consultation"

). FOE implies that there was substantive communication between counsel on this issue and that Respondents simply denied FOE's request out of hand. See Motion at 2 n.1 ("Respondents have indicated that they object to [FOE]'s request to place the Change Request in the Record."

). But FOE did n ot communicate further with counsel for N RC or explain why the NRC's offer was insufficient. In fact, FOE never formally rejected Respondents' offer. Further USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 11 of 20 (Page 11 of Total) 11 substantive communication between counsel could have eliminated the need for unnecessary motion practice. 3. FOE also appears to imply that the NRC misled it by stating that the agency did not have the Change Request. But, as the complete email exchange between counsel reflects, the NRC responded in good faith by providing information that was correct "to our knowledge." Exhibit 5 at 4

-5. A nd when FOE's counsel stated that Dr. Peck had at least a portion of the document, id. at 6, the NRC pointed out that the dispute was of no consequence because Dr. Peck was not involved in the decision

-making process and that the decision

-makers did not have the document before them.

Id. at 7. The NRC has not acted in bad faith

instead, it has simply attempted to limit the record to those materials that were before the agency at the time that the decision under review was made. B. The Change Request Is Not Part of the Administrative Record

. 1. As FOE concedes, an agency's designation of the record is accorded a presumption of regularity.

See Motion at 7; Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); Sarah Lee Corp. v. Am. Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C. 2008). And it is axiomatic that a document must actually have been before the agency decision-maker as a part of the decision

-making process in order to be part of the record.

Se e , e.g., Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 420 (1971) ("That [judicial] review is to be based on the full USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 12 of 20 (Page 12 of Total) 12 administrative record that was before the Secretary at the time he made his decision.") (emphasis added).

In Saratoga Development Corp. v. United States, 21 F.3d 445 (1994), this Court held that an administrative record was not deficient where an agency did not include documents that we re not actually before the agency decision-maker during the decision

-making process: [T]he PADC did not exclude these reports from the record that it gave to the district court, for the simple reason that they were never part of the record in the first place; they were neither prepared for nor provided to the PADC or its staff.

Id. at 457 (footnote omitted). Thus, this Court held that the Pennsylvania Avenue Development Corporation ("PADC") was not required to include in the administrative record of a procurement decision some technical reports

- which were critical of the challenged project

- that were not prepared for the agency and not submitted to the agency staff.

Id. As we have shown, the same is true here. Both Mr. Orenak and Mr. Bamford, the two individuals who reviewed Revision 21 for the NRC, have unequivocally stated that neither the Change Request nor any other "redline" document was a part of the Revision 21 package. See Orenak Decl

. ¶ 10; Bamford Decl. at ¶ 11. Moreover, both Mr. Bamford and Mr. Oesterle have explained that licensees do not submit redline versions of Safety Report updates. Bamford Decl

. ¶ 9; Oesterle Decl

. ¶¶ 8, 10. In fact, neith e r Mr. Bamford nor Mr. Oesterle recall s USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 13 of 20 (Page 13 of Total) 13 ever seeing a licensee submit a redline version of a Safety Report update. Bamfor d Decl. ¶12; Oesterle Decl

. at ¶ 9. Instead, the Change Request is an internal PG&E document that, as in Saratoga Development

, was not prepared for NRC use and was not submitted to the NRC as part of Revision 21 package.

That document was not before the NRC decision

-makers when they were conducting their review of Revision 21; thus, it is not part of the administrative record of this case.

2. FOE admits that it must provide "concrete evidence" that the documents it seeks to provide "were before the actual decisionmakers." See Motion at 7. But that admission should dispose of this motion. FOE seeks to add the "Change Request" to the Record of this case. But as we have demonstrated above, that document was never placed before the decision

-makers in this case, i.e., Mr. Orenek and Mr. Bamford, who were the members of the NRC Staff who reviewed PG&E's submission of Revision 21. Given that FOE has not presented any "concrete evidence" that the document was actually before the NRC reviewers, its argument fail s. 3. Moreover, FOE cannot claim that the Change Reque st should be a part of the Record simply because Dr. Peck, another NRC employee, possessed a portion of the document, which FOE obtained pursuant to a Freedom of Information Act (FOIA) request. The fact that another agency employee had a portion of the USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 14 of 20 (Page 14 of Total) 14 document is irrelevant unless the document was placed before the actual decision

-maker. As one court has explained, Plaintiff cannot meet its burden by merely asserting that such documents and data are relevant, were possessed by the entire agency at or before the time the agency action was taken, and were inadequately considered.

City of Duluth v. Jewel, 968 F. Supp. 2d 281, 289 (D.D.C.

2013) (citations omitted

emphasis added). Instead, a party seeking to supplement the record "must offer

'reasonable, non

-speculative

' grounds for its belief that the documents were directly or indirectly considered by the [decision-maker]." Id. (emphasis in original).

Furthermore, the mere fact than an agency has some documents in their files at the same time it reached a decision on a matter does not mean that th ose documents were part of the record of that decision. For example, in Pacific Shores Subdivision v. U.S. Army Corps of Engineers, 448 F. Supp. 2d 1, 6 (D.D.C. 2006), the district court held that "it is not enough for Pacific Shores to state that the documents were before the entire Corps, but rather it must instead prove that the documents were before the Corps' decisionmaker(s)." The Pacific Shores court reached this conclusion even though the plaintiff s in that case w ere able to obtain the documents in question from the Corps through a FOIA request

Although Plaintiffs imply that the Corps possessed some of the documents because Plaintiffs obtained them through a Freedom of Information Act request, . . . there is no evidence that the Corps' USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 15 of 20 (Page 15 of Total) 15 decisionmaker(s) were actually aware of the fourteen documents Plaintiffs seek to include

. Id. at 7. This is precisely the situation here. FOE obtained one section of the Change Request from the NRC because it was in the possession of an NRC employee who had formerly been stationed at the Diablo Canyon facility and who submitted it in response to a FOIA request. But FOE has not shown

- indeed, cannot show

- that any part of the document was before the decision-makers in this case, i.e., Mr. Orenak and Mr. Bamford. To the contrary, the undisputed evidence shows that PG&E did not include the Change Request when it submitted Revision 21 and that it was not placed before the decision-makers in this case. Thus, the Change Request is not a part of the administrative record in this case.

4. Finally, FOE appears to request that Respondents should include in the record an entirely separate section of the Change Request, Section 3.7. Motion at 3

-4. And FOE implies that , even though the NRC produced Section 2.5 of the Change Request

, it withheld Section 3.7. Motion at 4.

But FOE's request cannot be supported. The NRC has provided FOE with the only portion of the Change Request of which it is aware is in its possession. As noted above, Section 2.5 of the Change Request was submitted by Dr. Peck, the former Resident Inspector at the Diablo Canyon USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 16 of 20 (Page 16 of Total) 16 facility , in response to F OE's FOIA request. Oesterle Decl.

¶¶ 19-22. Dr. Peck supplied Section 2.5 in response to an inquiry from Mr. Oesterle, who was assigned to survey his colleagues to see if any of them had documents responsive to the FOIA request. See Oesterle Decl. ¶¶ 20

-22. Mr. Oesterle forwarded that document to the NRC FOIA office, id. ¶ 23, which then provided it to FOE.

Dr. Peck did not provide a copy of Section 3.7 in response to Mr. Oesterle's request. See Oesterle Decl. ¶ 24. Thus, FOE has all of the Change Request that was submitted by an y NRC employee in response to the FOIA request filed by FOE. The NRC is not aware of any other portion of the Change Request in the possession of any other NRC employee. There

is simply no requirement in the law that the NRC affirmatively seek and obtain documents from PG&E a nd then provide them to FOE for its use in litigation.

3

SUMMARY

Quite simply, this motion not only lacks merit but was unnecessary. As we noted above, we advised FOE that it could cite to the Change Request it obtained through its FOIA request and that it could include portions of the

3 Thus, to the extent that Dr. Peck's possession of Section 2.5 of the Change Request should be imputed to Messrs. Orenak and Bamford, it is the only section that could be considered part of the Record if this Court grants this Motion. USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 17 of 20 (Page 17 of Total) 17 document in the Joint Appendix. FOE implicitly rejected that offer and instead filed this motion.

Moreover, contrary to FOE's claims, PG&E never submitted the Change Request as part of the Revision 21 package and the NRC employees reviewing PG&E

's submission never had it before them

. Thus, to the extent that the NRC made a "decision" about Revision 21, th at decision was not in any way informed by the Change Request. It is true that one NRC employee who was not involved in the decision-making process had one section (Section 2.5) of the Change Request in his possession as part of a completely separate process that was unrelated to the alleged approval of Revision 21. But that employee's possession of one portion of the document does not mean that possession of the entire document can be considered part of the agency's decisionmaking process. And it certainly does mean that the NRC should be required to include in the administrative record an entirely separate portion of Revision 21 (Section 3.7) that is not even in its possession.

CONCLUSION For the foregoing reasons, this Court should deny the motion to supplement the Certified Index of the Record. USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 18 of 20 (Page 18 of Total) 18 Respectfully submitted,

__s/Andrew P. Averbach___

JOHN C. CRUDEN ANDREW P. AVERBACH Assistant Attorney General Solicitor __s/Thekla Hansen

-Young__ __s/Charles E. Mullins__

THEKLA HANSEN

-YOUNG CHARLES E. MULLINS Attorney Senior Attorney Appellate Section Office of the General Counsel Environment and Natural U.S. Nuclear Regulatory Commission Resources Division 11555 Rockville Pike U.S. Department of Justice Rockville, Maryland 2085 2 PO Box 7415, Ben Franklin Station (301) 415-1618 Washington, D.C. 20044 charles.mullins@nrc.gov (202) 307-2710 thekla.hansen

-young@usdoj.gov

April 7, 2015 USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 19 of 20 (Page 19 of Total)

CERTIFICATE OF SERVICE I certify under penalty of perjury that on April 7, 2015, I filed "Respondents' Response to Petitioner's to Supplement the Certified Index of the Record in Case No. 14-1213 with the U.S. Court of Appeals for the District of Columbia Circuit by filing it with the Court's CM/ECF system. That method is calculated to serve:

Richard E. Ayers David A. Repka Jessica L. Olson Darani M. Reddick John H. Bernetich Winston & Strawn, LLP Ayers Law Group 1700 K Street, N.W.

1707 L Street, N.W. Suite 850 Washington, D.C. 20006 Washington, D.C. 20036 Thekla Hansen

-Young Attorney, Appellate Section

Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415, Ben Franklin Station Washington, D.C. 20044

Respectfully submitted,

__s/Charles E. Mullins__

CHARLES E. MULLINS

Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 415-1618 charles.mullins@nrc.gov

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 20 of 20 (Page 20 of Total)

EXHIBIT 1 RESPONDENTS' RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE CERTIFIED INDEX OF THE RECORD Case No. 14

-1213 (D.C. Cir.)

Submission of Revision 21 to the Diablo Canyon Final Safety Analysis Report, as Updated (September 16, 2013)

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 1 of 35 (Page 21 of Total)

Pacific Gas and Electric Company'Barry S. Allen Site Vice President Diablo Canyon Power Plant Mail Code 104/6 P. 0. Box 56 Avila Beach, CA 93424 805.545.4888 Internal:

691.4888 Fax: 805.545.6445 September 16, 2013 PG&E Letter DCL-13-091 U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, DC *20555-0001 10 CFR 50.4 10 CFR 50.54 10 CFR 50.71 Docket No. 50-275, OL-DPR-80 Docket No. 50-323, OL-DPR-82 Diablo Canyon Power Plant Units 1 and 2 Updated Final Safety Analysis Report, Revision 21 Dear Commissioners and Staff: Pursuant to 10 CFR 50.71(e), 10 CFR 50.54(a)(3) and 10 CFR 50.4(b)(6), Pacific Gas and Electric Company hereby submits the Diablo Canyon Power Plant (DCPP)"Final Safety Analysis Report Update" (UFSAR), Revision 21. DCPP UFSAR, Revision 21, represents the status of DCPP Units 1 and 2 through March 23, 2013.As a minimum, DCPP UFSAR, Revision 21, reflects:

(1) changes made under the provisions of 10 CFR 50.59, which are identified in Enclosure 1; and (2) changes made as a result of license amendments, which are identified in Enclosure 2.Enclosure 3 contains the DCPP UFSAR, Revision 21, on one compact disc (CD), labeled "Diablo Canyon Power Plant FSAR Update, Revision 21," dated September 2013. The contents are in Adobe Acrobat portable document format.A copy of this CD is being provided to the Regional Administrator, Region IV, the DCPP NRR Project Manager, and the DCPP NRC Senior Resident Inspector.

The CD contains the following file: File Name 01 DCPP UFSAR R21.pdf File Size (Mb)39.8 There are no new or revised regulatory commitments as defined by Nuclear Energy Institute 99-04, "Guidelines for Managing NRC Commitment Changes," dated July 1999, in this submittal.

If you have any questions regarding this submittal, please contact Mr. Tom Baldwin at (805) 545-4720.rjýs I?A member of the STARS (Strategic Teaming and Resource Sharing) Alliance Callaway

• Comanche Peak

• Diablo Canyon

• Palo Verde

• San Onofre

• South Texas Project

• Wolf Creek USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 2 of 35 (Page 22 of Total)

NP]Document Control Desk September 16, 2013 Page 2 PG&E Letter DCL-13-091 I declare under penalty of perjury that the foregoing is true and correct.Executed on September 16, 2013.Sincerely, Barry S. Allen Site Vice President Enclosures cc: Diablo Distribution cc:/enc. Thomas R. Hipschman, NRC Senior Resident Inspector Jennivine K. Rankin, NRR Project Manager Steven A. Reynolds, Acting NRC Region IV Administrator A member of the STARS (Strategic Teaming and Resource Sharing) Alliance Callaway i Comanche Peak e Diablo Canyon

• Palo Verde

• San Onofre

• South Texas Project

• Wolf Creek USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 3 of 35 (Page 23 of Total)

PG&E Letter DCL-13-091 Enclosure 1 Changes Incorporated into the Diablo Canyon Power Plant Final Safety Analysis Report Update, Revision 21 Resulting from 10 CFR 50.59 Evaluations USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 4 of 35 (Page 24 of Total)

PG&E Letter DCL-13-091 Enclosure 1 Changes Incorporated into the Diablo Canyon Power Plant Final Safety Analysis Report Update, Revision 21 Resulting from 10 CFR 50.59 Evaluations Numberý1)2009-004 2010-009 2010-025 2011-010 2011-014 2011-015 Description2 1000000120:

Revise Figure 5.3-1 for Reactor Coolant System Hot Leg, Cold Leg, and Average Reactor Coolant Loop Temperature (Unit 1 and Unit 2).DDP 1000000290 and 1000000291:

Upgrade Safety Parameter Display System (SPDS). The SPDS was upgraded to improve reliability and security, and to resolve obsolescence issues (Unit 1 and Unit 2).DDP 1000000321:

Auxiliary Building Control Board Upgrade-Phase 4B, Digital Upgrade. The upgrade integrates the temperature monitoring system at the auxiliary building control board into the new digital control system (Unit 1 and Unit 2).DDP 1000000237:

Replace the Unit 1 Westinghouse 7100 Process Control System (PCS). The Unit 1 7100 PCS was replaced with a new programmable logic controller (PLC)-based system.Calculation 9000019736:

Addition of Time Critical Operator Action (TCOA). Post Loss-of-Coolant design condition limits residual heat removal (RHR) pump time on recirculation flow without component cooling water cooling to RHR heat exchangers.

This new design condition required the addition of a TCOA that was implemented in the emergency operating procedure EOP E-1 (Unit 1 and Unit 2).DDP 1000000390:

Containment Polar Gantry Crane Modifications.

Upgraded antiquated design with new controls, motors, brakes, gearboxes, and associated modifications to the electrical power supply and circuits (Unit 2) to improve reliability.

2012-006 DDP 1000024850:

Relocate Intake Facility Gantry Crane Anchored Location (Unit Common). The "not-in-use" stored position for the intake gantry crane was moved to a location approximately 20 feet toward the south.2012-007 DDP 1000024811:

Containment Polar Gantry Crane Modifications.

Upgraded antiquated crane design with new controls, motors, brakes, gearboxes, and associated modifications to the electrical power supply and circuits (Unit 2) to improve reliability.

I USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 5 of 35 (Page 25 of Total)

PG&E Letter DCL-13-091 Enclosure I 2012-009 2012-013 2012-033 Class 1 E Battery Qualification:

The standard for performing the qualification for Class 1 E replacement batteries was changed from IEEE 535-1979, "IEEE Standard for Qualification of Class 1E Lead Storage Batteries for Nuclear Power Generating Stations," to IEEE 535-1986 (Unit I and Unit 2).DDP 1000000501:

Replace the Unit 2 Westinghouse 7100 PCS.The Unit 2 7100 PCS was replaced with a new PLC-based system.DDP 1000024853:

Remove the Unit 1 Auxiliary Building Heating Coils and Support Equipment.

Removed the heating coils and associated support equipment from the Unit 1 auxiliary building heating, ventilating, and air conditioning system.2012-034 DDP 1000000191:

Remove the Unit 2 Auxiliary Building Heating Coils and Support Equipment.

Removed the heating coils and associated support equipment from the Unit 2 auxiliary building heating, ventilating, and air conditioning system.2012-039 Use of SAP2000 Computer Program. Structural analysis program SAP2000 was used to supplement the GT STRUDL (Georgia Tech Structural Design Language) for seismic analysis of the containment annulus structure (Unit 2).(1) 10 CFR 50.59 Licensing Basis Impact Evaluation Number (2) DDP is the prefix for the SAP Design Change Package number (typical)2 USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 6 of 35 (Page 26 of Total)

PG&E Letter DCL-13-091 Enclosure 2 Changes Incorporated into the Diablo Canyon Power Plant Final Safety Analysis Report Update, Revision 21 Resulting From License Amendments USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 7 of 35 (Page 27 of Total)

PG&E Letter DCL-13-091 Enclosure 2 Changes Incorporated into the Diablo Canyon Power Plant Final Safety Analysis Report Update, Revision 21 Resulting From License Amendments Unit I LA Unit 2 LA Description 211 213 Revision to Technical Specification 3.8.1, "AC Sources -Operating," to Incorporate TSTF-163, Revision 2 (TAC Nos. ME5939 AND ME5940).212 214 Revision to Technical Specification 3.7.1, "Main Steam Safety Valves (MSSVs)," and Final Safety Analysis Report Update (TAC Nos. ME5713 and ME5714).213 215 Revision to Technical Specification 3.7.10, "Control Room Ventilation System (CRVS)" (Emergency Circumstances) (TAC Nos. MF0317 and MF0318).214 216 Change to Final Safety Analysis Report Update to Allow Use of Beacon Core Monitoring and Operations Support System (TAC Nos. ME7803 and ME7804).USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 8 of 35 (Page 28 of Total)

PG&E Letter DCL-13-091 Enclosure 3 Compact Disc, Diablo Canyon Power Plant Final Safety Analysis Report Update, Revision 21 USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 9 of 35 (Page 29 of Total)

PG&E Letter DCL-13-091 Enclosure 3 Compact Disc, Diablo Canyon Power Plant Final Safety Analysis Report Update, Revision 21 w t r ,-*USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 10 of 35 (Page 30 of Total)

EXHIBIT 2 RESPONDENTS' RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE CERTIFIED INDEX OF THE RECORD Case No. 14

-1213 (D.C. Cir.)

Declaration of Michael D. Orenak (April _, 2015

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 11 of 35 (Page 31 of Total)

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________

) FRIENDS OF THE EARTH, ) Petitioner, ) v. ) ) U.S. NUCLEAR REGULATORY COMMISSION

) No. 14-1213 and the UNITED STATES OF AMERICA, ) Respondents, ) and PACIFIC GAS & ELECTRIC COMPANY, ) Intervenor.

) ______________________________________________

) DECLARATION OF MICHAEL D. ORENAK 1. My name is Michael Orenak and I make the following statements based on my own personal knowledge or upon knowledge obtained in the course of my employment and relied upon by me in the performance of my duties.

2. I am a project manager in the Division of Reactor Licensing (Licensing Division) in the Office of Nuclear Reactor Regulation at the U.S. Nuclear Regulatory Commission.

3. On October 6, 2013 I was assigned to the Licensing Division as a Project Manager in training.

4. The duties of a Project Manager involve the oversight of licensed activities at one or more specific facilities. This oversight include s coordinating the review of a licensee's submissions in accordance with NRC regulations.

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 12 of 35 (Page 32 of Total) 2 5. By letter dated September 16, 2013, Pacific Gas &

Electric Company (PG&E) submitted Revision 21 of the Diablo Canyon Final Safety Analysis Report as Updated (Safety Report

) to the NRC in accordance with 10 C

.F R. § 50.71(e).

6. One of my training assignments was to review Revision 21 for compliance with 10 C.F.R. § 50.71(e).

7. I performed the Licensing Division review of Revision 21 to the Safety Report. I then drafted a memo documenting my work.

8. PG&E submitted Revision 21 on a compact disc as a complete document with "change bars" in the margin of a page where changes had been made to the document since Revision 20.

9. Change bars are small vertical lines in the margin of a page that allow a viewer to go to the same section of a previous version of the document and compare the current version to the previous version. Change bars indicate the location where a change has been made but do not give the nature of the change. A redline strikeout version gives both.

10. The Revision 21 package submitted by PG&E did not contain any PG&E document entitled "Change Request" or any other document that was a "redline strikeout" version of Revision 21.

1 1. In the spring of 2014, Peter Bamford was assigned as the lead Project Manager for the Diablo Canyon facility.

1 2. Mr. Bamford reviewed my draft memo and suggested several changes to it.

1 3. After I incorporated those changes he signed the memo as the lead Project Manager on June 23, 2014. USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 13 of 35 (Page 33 of Total)

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 14 of 35 (Page 34 of Total)

EXHIBIT 3 RESPONDENTS' RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE CERTIFIED INDEX OF THE RECORD Case No. 14

-1213 (D.C. Cir.)

Declaration of Peter J. Bamford (April _, 2015)

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 15 of 35 (Page 35 of Total)

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________

) FRIENDS OF THE EARTH, ) Petitioner, ) v. ) ) U.S. NUCLEAR REGULATORY COMMISSION

) No. 14-1213 a nd the UNITED STATES OF AMERICA, ) Respondents, ) and PACIFIC GAS & ELECTRIC COMPANY, ) Intervenor.

) _______________________________________________)

DECLARATION OF PETER J. BAMFORD

1. My name is Peter J. Bamford. I make the following statements based on my own knowledge or upon knowledge obtained in the course of my employment and relied upon by me in the performance of my duties.

2. I am currently assigned to the Japan Lesson s-Learned Division of the Office of Nuclear R eactor Regulation for the U.S. Nuclear Regulatory Commission.

3. March 23, 2014 to August 9, 2014, I was assigned as the Project Manager for the Diablo Canyon Power Plant, Units 1 and 2 in the Division of Operating Reactor Licensing (Licensing Division), in the Office of Nuclear Reactor Regulation. My Branch Chief was Michael Markley.

4. The duties of a Project Manager involve the oversight of licensed activities at one or more specific facilities. This oversight includes coordinating the review of a licensee's submissions in accordance with NRC regulations.

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 16 of 35 (Page 36 of Total) 2 5. By letter dated September 1 6, 2013, Pacific Gas & Electric Company (PG&E) submitted Revision 21 of the Diablo Canyon Final Safety Analysis Report as Updated (Safety Report

) to the NRC in accordance with 10 C

.F.R. § 50.71(e). 6. In June of 2014, I reviewed a draft memo that Mr. Michael Orenak, a Project Manager in training, had prepared documenting his review of Revision 21.

7. I made several suggestions regarding items to be included in the memo.

After Mr. Orenak incorporated my comments into the memo, I signed the memo on June 23, 2014.

8. Dr. Michael Peck was not involved in the process of performing the review of Revision 21 to the Diablo Canyon Safety Report for compliance with 10 C.F.R. § 50.71(e).

9. When submitting Safety Report updates, such as Revision 21, the licensee normally submits a complete Safety Report on a compact disk with "change bars" in the margins of a page to indicate places on that page where changes have occurred since the previous update. PG&E followed that process when submitting Revision 21.

10. Change bars are small vertical lines in the margin of a page that allow a viewer to go to the same section of a previous version of the document and compare the current version to the previous version. Change bars indicate the location where a change has been made but do not give the nature of the change. A redline strikeout version gives both.

11. I did not review a PG&E document known as a "Change Request" or any other redline strikeout version of Revision 21 to the Diablo Canyon Safety Report during my review and PG&E did not submit one as part of the package submitted on September 16, 2013.

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 17 of 35 (Page 37 of Total)

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 18 of 35 (Page 38 of Total)

EXHIBIT 4 RESPONDENTS' RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE CERTIFIED INDEX OF THE RECORD Case No. 14

-1213 (D.C. Cir.)

Declaration of Eric R. Oesterle (April _, 2015)

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 19 of 35 (Page 39 of Total)

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________

) FRIENDS OF THE EARTH, ) Petitioner, ) v. ) ) U.S. NUCLEAR REGULATORY COMMISSION

) No. 14-1213 a nd the UNITED STATES OF AMERICA, ) Respondents, ) PACIFIC GAS & ELECTRIC COMPANY, ) Intervenor.

) _______________________________________________

) DECLARATION OF ERIC R. OESTERLE 1. My name is Eric R. Oesterle and I make the following statements based on my own personal knowledge or upon knowledge gained in the course of my employment and relied up on by me in the performance of my duties.

2. I have been employed with the NRC as a Project Manager and Senior Policy Analyst for over 8 years.

3. During the period 10/4/14 to 11/29/14, I was assigned as lead NRC Project Manager for the Diablo Canyon Power Plant, Units 1 and 2.

4. From November 30, 2014 through March 7, 2015, I served as the Acting Chief of Plant Licensing Branch IV

-1 (Branch 4-1) in the Division of Operating Reactor Licensing (Licensing Division), Office of Nuclear Reactor Regulation (NRR). I was responsible for overseeing licensing actions associated with operating nuclear power plants in the western United States, including Diablo Canyon Power Plant (DCPP), Units 1 and 2.

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 20 of 35 (Page 40 of Total) 2 5. After Friends of the Earth (FOE) filed a Petition for Review with the United States Court of Appeals for the District of Columbia Circuit , m y management assigned me to support the NRC's Office of the General Counsel in responding to the Petition. In that role I provided assistance to Mr. Charles E. Mullins of the Office of the General Counsel.

6. During the development of an NRC's filing of documents with the Court during late November and early December 2014, Mr. Mullins asked me whether anyone in the Licensing Division had a redline strikeout version of Revision 21 to the Diablo Canyon Final Safety Analysis Report as Updated (Safety Report) and if so, did the NRC staff use that document in its recently completed review of Revision 21. 7. I checked with my colleagues in the Licensing Division and did not find anyone who had a copy of that document. Accordingly, I advised Mr.

Mullins that the Licensing Division did not have that document.

8. I also advised Mr. Mullins that while a licensee may create a redline strikeout version of the Safety Report update, that document is an internal licensee document

. 9. I further advised Mr. Mullins that I could not recall ever having seen or heard of a licensee submitting a redline strikeout version of a Safety Report update.

10. Instead, when submitting Safety Report updates, such as Revision 21, the licensee normally submits a complete Safety Report on a compact disk with "change bars" in the margins of a page to indicate places on that page where changes have occurred since the previous update.

11. Change bars are small vertical lines in the margin of a page that allow a viewer to go to the same section of a previous version of the document and compare the current version to the previous version.

Change bars indicate the location where a change has been made but do not give the nature of the change. A redline strikeout version gives both.

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 21 of 35 (Page 41 of Total) 3 12. On December 8, 2014, Mr. Mullins advised counsel for F OE by email that the NRC did not have a copy of the redline strikeout version of Revision 21 to the Diablo Canyon Safety Report. Mr. Mullins later provided me with a copy of that email.

1 3. On November 28, 2014, F OE submitted a Freedom of Information Act (FOIA) request (Case No. 2015

-0068) to the NRC for specific sections of the Revision s 20 and 21 of the Diablo Canyon Safety Report, associated with seismology and seismic design requirements.

14. In addition, F OE requested "the exact version of FSARU Revision 21 that displays the track changes made and PG&E's annotations, including justifications for each change," i.e., a "redline" version of Revision 21.

15. The FOIA request also specified that "the requested document was referenced by Dr. Michael Peck in his Appeal of the NRC Decision to reject his Dissenting [sic] Professional Opinion (See "DPO Case File for DPO

- 2013-002") released to the public on September 10, 2014."

1 6. As the Project Manager for Diablo Canyon Units 1 and 2, and later the Acting Branch Chief for Branch 4-1, my management assigned me to inquire among my NRR colleagues as to whether they had docume nts responsive to FOIA No. 2015

-0068 and to provide any documents retrieved to the NRC's FOIA Office.

1 7. Thus, at the same time working to support Mr. Mullins on the NRC response to the FOE petition, I was gathering documents to provide in response to the specific request of FOIA Case No. 2015

-0068.

1 8. My requests for responsive documents did not reveal any copies of a redline strikeout version of Revision 21 in the possession of anyone in NRR.

1 9. Subsequently , I broadened the scope of my request within the NRC to additional NRC staff that would not typically be involved in Safety Report update reviews. I specifically emailed a request to Dr. Michael Peck, who is USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 22 of 35 (Page 42 of Total)

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 23 of 35 (Page 43 of Total)

EXHIBIT 5 RESPONDENTS' RESPONSE TO PETITIONER'S MOTION TO SUPPLEMENT THE CERTIFIED INDEX OF THE RECORD Case No. 14

-1213 (D.C. Cir.)

Email Exchanges Between Counsel USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 24 of 35 (Page 44 of Total) 1 From: John Bernetich [1]

Sent: Monday, November 24, 2014 12:01 PM To: Mullins, Charles Cc: Richard E. Ayres; Jessica Olson

Subject:

Re: My current view of the Record Chuck,

We intend to ask for the following documents:

1. Two inspection reports cited in the June 23, 2014 memo from Peter Bamford to Michael Markley (IR 2012004, IR 2011005)

2. A "change report" submitted by PG&E to accompany its submission of FSAR Revision 21 (in addition to the cover letter)

3. Documents cited by Dr. Peck in his appeal of the Panel Report issued in DPO

-2013-002 4. Any documents related to a 50.59 review prepared for Revision 21, including emails between PG&E and NRC, and between NRC Staff members

In addition, we do not agree with your suggestion that the documents from the de facto licensing proceeding before the Commission should be included in the record for the Court of Appeals on the Revision 21 issue.

Thanks, John

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 25 of 35 (Page 45 of Total) 2 From: Mullins, Charles Sent: Monday, November 24, 2014 12:19 P M To: 'John Bernetich' Cc: Richard E. Ayres; Jessica Olson

Subject:

RE: My current view of the Record John; I will check into these documents but I doubt seriously that we would agree to include any internal emails in the list.

And my current instructions from management are to include the pleadings.

Chuck USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 26 of 35 (Page 46 of Total) 3 From: Richard E. Ayres [2]

Sent: Monday, December 08, 2014 4:49 PM To: Mullins, Charles Cc: Jessica Olson; John H. Bernetich

Subject:

Materials for the Record Chuck -

Thanks for sending me the list of documents you are proposing for the Record in No. 14

-1213. I have some further thoughts for additions to the proposal which I would like to bring to your attention.

1.) I note that while all the other documents relating to Peck's DPO are included in your list, the DPO itself is not.

To complete this part of the record, the DPO should be included.

2.) We must ask you to look further for the redline version of Revision 21 that we referred to.

A redline version of a few pages of Revision 21 is shown in a screen shot included in Inspector Peck's Appeal.

In a footnote, Peck references the screen shot as being of DCPP Form 69-20108, USFSAR Change Request Section 2.5 (June 2013).

Thus Peck, an NRC employee, appears to have a redline and/or annotated copy of Revision 21.

Peck also makes reference to the document "with highlighted changes incorporated with Revision 21 and PG&E's annotations." DPO at 11.

Thus apparently the NRC did receive Revision 21 with redline and/or annotations, or other means of identifying the changes PG&E made through Revision 21.

The document, which is the subject of the litigation, must be included in the record.

3.) Likewise, the suggestion that a "Change Document" (actually, "Change Package") was not filed with Revision 21 seems at odds with the requirements of 10 CFR 50.71(e).

It seems difficult to believe that both the licensee and the NRC overlooked these requirements.

4.) With respect to Item 5 on your list, the only public version of Revision 21 we are aware of includes only sections 2.5 and 3.7 of the USFSAR.

We seek review of the NRC acceptance of Revision 21.

Thus the record for review must include the entirety of Revision 21, not just two subsections of the Revision.

I must request that the documents described above be included in the record for the litigation and provided to us.

If they are not, we will have to ask the court to stay the filing of motions and briefing while it considers our motion to supplement the record with these documents.

I will look forward to receiving your agreement to these additions at your earliest convenience.

Richard Ayres Ayres Law Group LLP 1707 L Street, N.W., Suite 850 USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 27 of 35 (Page 47 of Total) 4 From: Mullins, Charles Sent: Monday, December 08, 2014 6:02 PM To: Richard E. Ayres (ayresr@ayreslawgroup.com)

Cc: bernetichj@ayreslawgroup.com; Jessica Olson (olsonj@ayreslawgroup.com); Averbach, Andrew; Avila, Aaron (ENRD) (Aaron.Avila@usdoj.gov); Hansen

-Young, Thekla (ENRD) (Thekla.Hansen-Young@usdoj.gov)

Subject:

RE: Materials for the Record Mr. Ayres; Please see our response below.

Chuck From: Richard E. Ayres [3] Sent: Monday, December 08, 2014 4:49 PM To: Mullins, Charles Cc: Jessica Olson; John H. Bernetich

Subject:

Materials for the Record Chuck -

Thanks for sending me the list of documents you are proposing for the Record in No. 14

-1213. I have some further thoughts for additions to the proposal which I would like to bring to your attention.

1.) I note that while all the other documents relating to Peck's DPO are included in your list, the DPO itself is not.

To complete this part of the record, the DPO should be included. The DPO is cited in your filing with the Commission.

That was why we did not list it specifically

- and one reason to include the proviso to cite documents that are a part of the record.

But we have no problem including it specifically.

2.) We must ask you to look further for the redline version of Revision 21 that we referred to.

A redline version of a few pages of Revision 21 is shown in a screen shot included in Inspector Peck's Appeal.

In a footnote, Peck references the screen shot as being of DCPP Form 69-20108, USFSAR Change Request Section 2.5 (June 2013).

Thus Peck, an NRC employee, appears to have a redline and/or annotated copy of Revision 21.

Peck also makes reference to the document "with highlighted changes incorporated with Revision 21 and PG&E's annotations." DPO at 11.

Thus apparently the NRC did receive Revision 21 with redline and/or annotations, or other means of identifying the changes PG&E made through Revision 21.

The document, which is the subject of the litigation, must be included in the record.

To our knowledge, the NRC does not have any such document in its possession.

The licensee does not submit redline UFSAR versions and does not submit UFSAR pages with licensee USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 28 of 35 (Page 48 of Total) 5 annotations.

While the license may have such a document at its facility, it did not submit that document to the NRC and thus, it is not a part of the agency record in this case.

3.) Likewise, the suggestion that a "Change Document" (actually, "Change Package") was not filed with Revision 21 seems at odds with the requirements of 10 CFR 50.71(e).

It seems difficult to believe that both the licensee and the NRC overlooked these requirements.

To our knowledge, the NRC does not have any such document in its possession.

"Change packages" are not submitted to the NRC and a change package is not submitted with the 50.71(e) FSAR update.

Again, while the license may have such a document at its facility, it was not submitted to the NRC and thus, it is not a part of the agency record in this case.

4.) With respect to Item 5 on your list, the only public version of Revision 21 we are aware of includes only sections 2.5 and 3.7 of the USFSAR.

We seek review of the NRC acceptance of Revision 21.

Thus the record for review must include the entirety of Revision 21, not just two subsections of the Revision.

We are willing to include the entire copy of Revision 21 in the certified Index, but this could delay production of the record.

But this does not have any bearing on the forthcoming motion to dismiss, which will be based on (a) standing and (b) your hearing request now pending before the Commission.

I must request that the documents described above be included in the record for the litigation and provided to us. If they are not, we will have to ask the court to stay the filing of motions and briefing while it considers our motion to supplement the record with these documents.

I will look forward to receiving your agreement to these additions at your earliest convenience.

Richard Ayres USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 29 of 35 (Page 49 of Total) 6 From: Richard Ayres [4] Sent: Thursday, December 11, 2014 5:58 PM To: Mullins, Charles Cc: Jessica Olson Esq.; John H. Bernetich; Averbach, Andrew; Avila, Aaron (ENRD)

(Aaron.Avila@usdoj.gov); Hansen-Young, Thekla (ENRD) (Thekla.Hansen

-Young@usdoj.gov)

Subject:

Re: Materials for the Record Chuck

Thanks for your response regarding the record in the FoE v. NRC litigation.

I appreciate your agreement to enter Dr. Peck's DPO in the Record.

With respect to a redline version of Revision 21, we seem to be at an impasse here.

As I said in my previous e

-mail, Dr. Peck's Appeal includes a screen shot

- a picture

- of a few pages of a redline/annotated version of what Peck identifies as DCPP Form 69

-20108, USFAR Change Request Section 2.5 (June, 2013).

Since Dr. Peck is an NRC employee, I am at a loss to understand your assertion that "To our knowledge, the NRC does not have any such document in its possession."

Your response compels me to ask whether you or anyone else involved i n preparing this litigation been in touch with Dr. Peck to determine if he has the document we requested be included in the Record?

As you know, this litigation relates to changes made in Revision 21.

In order to review the proposed changes, NRC officials must have had either a redline version of Revision 21, or have themselves compared Revision 21 with Revision 20.

If the NRC's position is that it does not possess a redline/annotated version of Revision 21 in the record, then we must ask that Revision 20 of the USFAR be included in the record, as well as of Revision 21.

I will look forward to a seeing your index, Dick USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 30 of 35 (Page 50 of Total) 7 From: Mullins, Charles Sent: Friday, December 12, 2014 1:41 PM To: 'Richard Ayres' Cc: Jessica Olson Esq.; John H. Bernetich; Averbach, Andrew; Avila, Aaron (ENRD) (Aaron.Avila@usdoj.gov); Hansen

-Young, Thekla (ENRD) (Thekla.Hansen

-Young@usdoj.gov)

Subject:

RE: Materials for the Record Mr. Ayers; The record is supposed to designate those documents that were considered by the decision

-maker in reaching a decision.

Here, assuming arguendo that Dr. Peck had access to the licensee documents that you seek, they were not before the decision

-maker (i.e., Mr. Bamford and Mr. Markley) when they reviewed Revision 21.

Thus, even if Dr. Peck may have seen or even taken the documents you describe with him, they would not be a part of the "record of decision."

I will agree to add Revision 20 to the list

- as I understand that the Staff will be prepared a copy of it for release in response to a FOIA request.

I will proceed as follows:

I will file the Certified Index that I have sent you

- with the addition of Revision 20

- while we continue this discussion.

I can always file an amended Index if I am convinced that any additional documents were before the NRC decision

-maker when in the process of evaluating Revision 21.

Chuck USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 31 of 35 (Page 51 of Total) 8 From: Mullins, Charles Sent: Monday, December 15, 2014 10:10 AM To: 'Richard E. Ayres' Cc: John H. Bernetich; Jessica Olson

Subject:

RE: Certified Index to the Record Richard; First, I apologize for the error in the Certified Index.

Please check ML13280A391 and see if that is the correct document.

Second, with regard to the complete copy of Revisions 20 and 21, they must go through a screening process to redact exempt information

- such as security

-related information that might aid an adversary

- and the Staff informs me that this process will take a week to 10 days for each document.

When the reviews are completed and the redacted documents are placed in public ADAMS, I will file a Supplement to the Certified Index giving the ML citations (as I will do with the correct ML number regarding Item #4).

Third, we do not agree that these documents are necessary to respond to our motion to dismiss, which raises the questions of whether there is a final order that is appealable under the Hobbs Act and whether, in any event, the case should be dismissed because the same issue that FOE has raised before the Court is pending before the Commission.

These questions are wholly independent of the contents of the current or prior versions of the FSAR.

Chuck USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 32 of 35 (Page 52 of Total) 9 From: Richard Ayres [5] Sent: Monday, December 15, 2014 3:23 PM To: Mullins, Charles

Subject:

Filing of the Record Chuck -

Thank you for your e

-mail sent this morning.

We appreciate the correction in the Certified Index.

With respect to the screening process for Revisions 21 and 20, let me suggest an option that might avoid our having to ask for additional time to respond to your motion.

Sections 2.5, 3.7, and 3.10 of Revisions 21 and 20 are the parts we are most interested in seeing before we respond to your motion, and I am sure that they are a small part

- perhaps 10%

- of the total pages of the documents.

Let me suggest that the Staff screeners be asked to review those sections immediately

- if they expect to take a week to 10 days to do each entire document, it should be possible to complete their review of the three sections in about a day each.

Then they could finish the remainder of each document over the next couple of weeks.

We would appreciate your assistance on this.

In light of the tight timetable for responding to your motion, I look forward to hearing from you today in response to my proposal.

Thanks, Richard Ayres

USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 33 of 35 (Page 53 of Total) 10 From: Richard E. Ayres [6]

Sent: Thursday, March 19, 2015 1:26 PM To: Mullins, Charles

Subject:

Record for the Court

- Change Package Chuck -

I haven't heard from you about whether you will include the "change package" in the record for the court as we requested.

If the NRC staff is not prepared to do that, we'll need to file a motion to supplement the record.

Could you give me the NRC's position on this by COB Monday so we can move ahead with our motion if necessary?

Thanks, Richard Ayres USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 34 of 35 (Page 54 of Total) 11 From: Mullins, Charles Sent: Friday, March 20, 2015 11:47 AM To: 'Richard E. Ayres'

Subject:

RE: Record for the Court

- Change Package Richard; I apologize for the delay.

I got sidetracked on another assignment.

We do not agree that this document is part of the decision

-making process.

For example, it is a licensee document, not an agency document. And it was not submitted to the agency as a part of Revision 21.

Thus, to the extent that Mr. Bamford was a "decision

-maker," he did not have access to that document and did not consider it when preparing the June 23 Memo.

You also have both Revision 20 and Revision 21, and I am informed that while there are some redactions from both documents, there are no redactions from the seismic sections.

Thus, you can determine the changes to the seismic sections of the FSARU between Revision 20 and Revision 21 without using the "Change Document."

Therefore, we do not agree to include it in the record.

However, in the spirit of cooperation, we will not object if you cite the document in your pleadings and include portions of it in the Joint Appendix. That approach gives you with the ability to use the document but does not confer "record" status upon it.

You have spoken about filing a Motion to Supplement if we did not agree to include the document in the Record.

I will be out of town from March 26th through mid

-afternoon March 30th, dealing with some family legal matters.

If you feel the need to file an additional motion (which I respect), I would respectfully ask as a professional courtesy that you wait until the morning of March 30th to file. That should not interfere with any briefing schedule, should the Court issue one.

Have a good weekend.

Chuck USCA Case #14-1213 Document #1546281 Filed: 04/07/2015 Page 35 of 35 (Page 55 of Total)