ML24236A790

Pacific Gas and Electric Company Answer Opposing the Appeal of LBP-24-6 Filed by San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group

ML24236A790
Person / Time
Site:	Diablo Canyon
Issue date:	08/23/2024
From:	Bessette P, Lighty R, Matthews T Morgan, Morgan, Lewis & Bockius, LLP, Pacific Gas & Electric Co
To:	NRC/OCM
SECY RAS
References
RAS 57083, 50-275 LR-2, 50-323 LR-2
Download: ML24236A790 (0)

Text

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

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

Docket Nos. 50-275-LR-2 and 50-323-LR-2 August 23, 2024 PACIFIC GAS AND ELECTRIC COMPANYS ANSWER OPPOSING THE APPEAL OF LBP-24-6 FILED BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP 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 I.

INTRODUCTION............................................................................................................. 1 II.

BACKGROUND & LEGAL STANDARDS.................................................................... 4 A.

NRC Processes and Public Participation............................................................... 4

1.

Ongoing Operational Oversight................................................................. 4

2.

License Renewal Proceedings.................................................................... 5 B.

Standard of Review on Appeal.............................................................................. 9 III.

PETITIONERS FAIL TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION IN THE BOARDS CONTENTION ADMISSIBILITY RULINGS...... 10 A.

Petitioners Identify No Error of Law or Abuse of Discretion on Contention 1......................................................................................................... 10

1.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Scope Determination.................................................................. 11

2.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Genuine Dispute Ruling............................................................. 19

3.

Petitioners Make No Attempt to Identify Any Error of Law or Abuse of Discretion in the Boards Waiver Determination, Which Is Objectively Correct.............................................................................. 21 B.

Petitioners Identify No Error of Law or Abuse of Discretion on Contention 2......................................................................................................... 22 C.

Petitioners Identify No Error of Law or Abuse of Discretion on Contention 3......................................................................................................... 26 IV.

CONCLUSION................................................................................................................ 30

iii TABLE OF AUTHORITIES Federal Court Cases Heckler v. Chaney, 470 U.S. 821 (1985)...................................................................................... 18 Lincoln v. Virgil, 508 U.S. 182 (1993)......................................................................................... 15 Ruiz v. Morton, 462 F.2d 818 (9th Cir. 1972)............................................................................... 15 Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015)........................................... 15, 17, 18 United States v. Morgan, 118 F. Supp. 621 (S.D.N.Y. 1953)................................................ 15, 17 NRC Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009)......................................................................................... 3, 9, 17 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014)..................................................................................................... 9 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001)................................................................................................. 8 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),

CLI-15-6, 81 NRC 340 (2015)................................................................................................... 6 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),

LBP-08-13, 68 NRC 43 (2008)................................................................................................. 25 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),

CLI-15-23, 82 NRC 321 (2015)................................................................................................. 8 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),

CLI-07-3, 65 NRC 13 (2007)..................................................................................................... 9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

ALAB-952, 33 NRC 521 (1991).......................................................................................... 9, 14 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001).............................................................................................. 6, 7, 9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-91-13, 34 NRC 185 (1991)........................................................................................... 9, 14 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7),

CLI-17-12, 86 NRC 215 (2017)..................................................................................... 3, 10, 28 Hydro Res., Inc. (Crownpoint, NM),

CLI-06-1, 63 NRC 1 (2006)....................................................................................................... 9 In the Matter of David Geisen, CLI-10-23, 72 NRC 210 (2010)............................................................................................... 16

iv Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233 (2011)............................................................................................... 3, 9 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012)............................................................................................... 3, 9 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

ALAB-728, 17 NRC 777 (1983).............................................................................................. 21 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-83-32, 18 NRC 1309 (1983)............................................................................................. 21 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

LBP-24-6, 100 NRC __ (July 3, 2024) (slip op.).............................................................. passim Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999)................................................................................................. 8 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2),

CLI-10-2, 71 NRC 27 (2010)................................................................................................. 3, 9 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility),

CLI-07-20, 65 NRC 499 (2007)......................................................................................... 10, 25 U.S. Dept of Energy (High-Level Waste Repository),

LBP-09-6, 69 NRC 367 (2006)................................................................................................. 24 U.S. Dep't of Energy (High-Level Waste Repository),

CLI-08-11, 67 NRC 379 (2008)............................................................................................... 28 Union Electric Co. (Callaway Plant, Unit 1),

CLI-15-11, 81 NRC 546 (2015)............................................................................................... 29 USEC Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006)................................................................................... 10, 17, 29 Acts of Congress Administrative Procedure Act of 1946, Pub. L.79-404, 60 Stat. 237 (codified as amended at 5 U.S.C. ch. 5, subch. I § 500 et seq.).............................. 14, 15, 18, 19 Atomic Energy Act of 1954, Pub. L.83-703, 69 Stat. 919 (codified as amended at 42 U.S.C. ch. 14)........................................................................... 5, 14 Coastal Zone Management Act of 1972, Pub. L.92-583, 86 Stat. 1280 (codified as amended at 16 U.S.C. ch. 33 § 1451 et seq.)................................................. passim National Environmental Policy Act of 1969, Pub. L.91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. § 4321 et seq.)..................................................................... 7 Sherman Antitrust Act of 1890, Pub. L.51-647, 26 Stat. 209 (codified as amended at 15 U.S.C. §§ 1-7).............................................................................. 17

v Regulations 10 C.F.R. § 2.206...................................................................................................................... 5, 20 10 C.F.R. § 2.309................................................................................................................... passim 10 C.F.R. § 2.311........................................................................................................................ 1, 9 10 C.F.R. § 50.109.......................................................................................................................... 5 10 C.F.R. § 51.41............................................................................................................................ 7 10 C.F.R. § 51.45............................................................................................................................ 7 10 C.F.R. § 51.53............................................................................................................................ 7 10 C.F.R. § 54.21............................................................................................................................ 6 10 C.F.R. § 54.29............................................................................................................................ 6 10 C.F.R. § 54.3.............................................................................................................................. 4 10 C.F.R. § 54.30.......................................................................................................................... 20 10 C.F.R. Part 2............................................................................................................................... 5 10 C.F.R. Part 51................................................................................................................... 2, 7, 21 10 C.F.R. Part 54................................................................................................................. 5, 20, 23 Other Authorities Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182 (Jan. 14, 2004)............................................................................................. 8 Letter from T. Luster, CCC, to T. Jones, Senior Director Regulatory, Environmental and Repurposing, PG&E (Dec. 7, 2023).......................................................... 27 NRC, Process for the Ongoing Assessment of Natural Hazard Information (POANHI),

https://www.nrc.gov/reactors/operating/ops-experience/poanhi.html........................................ 4 NRC, Reactor Oversight Process (ROP),

https://www.nrc.gov/reactors/operating/oversight.html............................................................. 4 NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996).................................................................... 2, 7 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013).................................................................... 2, 7 NUREG-1437, Rev. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Feb. 2024)..................................................................... 2, 7 Transcript of Diablo Canyon Nuclear Power Plant, Units 1 & 2, License Renewal Hearing, May 22, 2024 (revised) (June 22, 2024)................................. passim

I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Pacific Gas and Electric Company (PG&E) submits this Brief in Opposition to the Appeal of LBP-24-6 (Appeal), filed by San Luis Obispo Mothers for Peace, Friends of the Earth, and the Environmental Working Group (collectively, Petitioners).1 In LBP-24-6,2 the Atomic Safety and Licensing Board (Board) denied Petitioners March 5, 2024 hearing request and petition to intervene in this proceeding (Petition).3 The Board denied the Petition after unanimously concluding that none of Petitioners three proposed contentions were admissible. On appeal, Petitioners purport to challenge all three of the Boards contention admissibility rulings. As explained below, the Commission should AFFIRM the Boards contention admissibility rulings in LBP-24-6.

This proceeding pertains to the License Renewal Application (LRA) filed by PG&E to seek extensions of the U.S. Nuclear Regulatory Commission (NRC) operating licenses for Diablo Canyon Power Plant, Units 1 and 2 (DCPP). The NRCs license renewal process includes both safety and environmental reviews; but the safety review focuses on one thing:

aging management. In Contentions 1 and 2, Petitioners sought an evidentiary hearing on certain ongoing operational matters (related to seismic topics and the Unit 1 reactor pressure vessel (RPV)) that are not related to aging management. Such matters have long been governed by other regulatory processes with separate avenues for public participation. Thus, as the Board correctly held, these challenges are inadmissible because they we brought in the wrong forum.

1 Notice of Appeal of LBP-24-6 by [Petitioners] (July 29, 2024) (ML24211A2887); Brief by [Petitioners] on Appeal of LBP-24-6 (July 29, 2024) (ML24211A288) (Appeal).

2 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-24-6, 100 NRC __

(July 3, 2024) (slip op.) (ML24185A197).

3 Re-filed Hearing Request by [Petitioners] for Hearing on [PG&Es] License Renewal Application for the Diablo Canyon Nuclear Plant (Mar. 5, 2024) (ML24067A079) (Petition).

2 To be clear, that does not mean that Petitioners safety concerns in Contentions 1 and 2 have been ignored.4 In fact, those same concerns already have been and are being given due consideration in an appropriate forum.5 So, beyond the legally required outcome here (as correctly determined by the Board), there also is no practical reason that a duplicative hearing must be held on these topics in this limited-scope license renewal proceeding.

Petitioners also proffered two environmental claims. In Contention 1, Petitioners brought a challenge regarding the analysis of potential environmental impacts from a hypothetical accident. However, that topic was analyzed in the NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants (GEIS).6 And the corresponding conclusions from the GEIS have been codified in NRC regulations following notice and comment rulemaking.7 Thus, Contention 1 purported to challenge to NRC environmental regulations, not the LRA. As a matter of law, challenges to regulations cannot be brought in individual licensing proceedings such as this, absent a special waiver from the Commission.

Petitioners neither requested nor received one here. So, as the Board again correctly held, that portion of Contention 1 also was inadmissible as a matter of law. Finally, in Contention 3, Petitioners essentially asked the Board to admit a placeholder contention on a baseless theory that the NRC might decide in the future to willfully violate the Coastal Zone Management Act 4

See, e.g., Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 30 n.130).

5 Id. at __ (slip op. at 4-5).

6 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Rev. 0, May 1996, ML040690705 (Vol. 1)) (1996 GEIS)); (Rev. 1, June 2013, ML13106A241 (Vol. 1)) (2013 GEIS); (Rev. 2, Aug. 2024, ML24086A526 (Vol. 1)) (2024 GEIS).

7 See 10 C.F.R. Part 51, Subpart A, app. B, tbl. B-1 (Design Basis Accidents and Severe Accidents).

3 (CZMA).8 Based on the longstanding doctrine that agencies are entitled to a presumption of administrative regularity, the Board correctly rejected that demand.

The Appeal provides no basis to overturn any of the well-reasoned bases for rejecting Contentions 1, 2, and 3. As an overarching matter, the applicable standard of review on appeal places an affirmative burden on the appellant to identify an error of law or abuse of discretion in the challenged ruling.9 Oddly, the Appeal fails even to mention this appellate standard. Petitioners do not acknowledge it; engage with it; or marshal fact and law toward any argument that LBP-24-6 is affected by an error of law or abuse of discretion. By disregarding the applicable standard, Petitioners have failed to meet their affirmative burden. The Appeal should be rejected on its face for that reason alone.

Furthermore, the Appeal largely repeats arguments that were presented to (and rejected by) the Board, without disputing the Boards analysis. But Commission precedent is clear that merely disputing the outcomeand hoping for a different result from the Commission without identifying reversible erroris categorically insufficient for an appeal.10 Ultimately, Petitioners have not identified any error of law or abuse of discretion in LBP-24-6. Thus, for the many reasons detailed below, the Commission should AFFIRM the Boards well-reasoned admissibility rulings on each of the three contentions.

8 Coastal Zone Management Act of 1972, Pub. L.92-583, 86 Stat. 1280 (codified as amended at 16 U.S.C.

ch. 33 § 1451 et seq.).

9 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 386 (2012) (citing Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), CLI-10-2, 71 NRC 27, 29 (2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233, 237 (2011)).

10 See, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7), CLI-17-12, 86 NRC 215, 219 (2017).

4 II.

BACKGROUND & LEGAL STANDARDS A.

NRC Processes and Public Participation In their original Petition, and again on Appeal, Petitioners seek to conflate and blur the line between two distinct NRC regulatory processes and their corollary opportunities for public participation. Thus, a brief summary of those processes and opportunities is instructive to the discussion on appeal, namely: the NRCs ongoing operational oversight and associated citizen enforcement petition opportunity; and the NRCs power reactor license renewal proceeding and associated licensing hearing opportunity.

1.

Ongoing Operational Oversight Every nuclear power plant, including DCPP, is subject to rigorous NRC operational oversight throughout the entire life of the licensed facility. Licensees are required to comply with stringent requirements associated with the full range of radiological safety, security, and environmental matters, including those related to seismic matters and RPV integrity, among many others. These obligations are collectively referred to as the plants Current Licensing Basis (CLB).11 The CLB is established at the time of initial plant licensing; it evolves throughout the life of the facility; and it carries forward into any renewal term. The NRC maintains a robust inspection and oversight program to ensure that CLB requirements are met throughout the plants lifecycle. Key features include the NRCs Reactor Oversight Process, which provides a comprehensive framework for continuous assessment and inspection of licensee facilities, and the NRCs Process for the Ongoing Assessment of Natural Hazards Information (POANHI), which is staffed by technical experts on external hazards.12 11 See 10 C.F.R. § 54.3(a) (defining the CLB).

12 See Reactor Oversight Process (ROP), NRC.GOV, https://www.nrc.gov/reactors/operating/oversight.html (last visited Aug. 20, 2024).Process for the Ongoing Assessment of Natural Hazard Information (POANHI),

NRC.GOV, https://www.nrc.gov/reactors/operating/ops-experience/poanhi.html (last visited Aug. 20, 2024).

5 The NRC employs a diverse toolkit for addressing safety issues throughout the life of the plant, including authority to issue orders to modify, suspend, or revoke a license.13 For example, the NRC may take enforcement action to address licensee noncompliance with safety regulations or may invoke its backfit14 process to modify a plants CLB if needed to address new safety information (including new seismic information).

Although enforcement and backfit actions are most often initiated by the NRC staff, any member of the public may raise potential health, safety, or other compliance issues related to a plants CLB via a citizen enforcement petition. This process is described in 10 C.F.R. § 2.206 (and such petitions are often referred to as 2.206 petitions). The NRC can institute an action to modify, suspend, or revoke a license, or take other appropriate action to resolve the issue, as appropriate. This is the well-established process through which members of the public can challenge a plants CLB or seek enforcement of its requirements.

2.

License Renewal Proceedings Pursuant to the Atomic Energy Act (AEA),15 power reactor licensees can seek, and the NRC can issue, a renewed operating license to permit continued operation beyond the expiration of the plants initial operating license. A renewed license carries forward the plants CLB. And the NRCs ongoing operational oversight process covers the full range of safety, security, and environmental matters for plant operation regardless of the operating term, initial or renewal.

Thus, in promulgating 10 C.F.R. Part 54, the NRC reasonably chose to define its safety review framework as including only a limited scope of issues that are particularly germane to extended operationnamely, those focused on aging management. The purpose of the license renewal 13 See generally 10 C.F.R. Part 2, Subpart B.

14 See 10 C.F.R. § 50.109.

15 Atomic Energy Act of 1954, Pub. L.83-703, 69 Stat. 919 (codified as amended at 42 U.S.C. ch. 14).

6 proceeding is to ensure that the licensee can successfully manage the detrimental effects of aging, during extended operations,16 on certain long-lived, passive components that are important to safety.17 By design, license renewal proceedings are not intended to duplicate the NRCs ongoing oversight of operating reactors.18 The key components of a license renewal application include its aging management programs (AMPs) and time-limited aging analyses (TLAAs). Notably, the NRC has published guidance (known as the GALL Report) containing AMPs generically determined to satisfy Part 54, which applicants may adopt.19 If adopted, and otherwise consistent with the GALL Report, those AMPs are entitled to a rebuttable presumption of regulatory sufficiency.20 Through notice and comment rulemaking, the Commission purposefully chose to exclude operational oversight and CLB matters from the scope of its license renewal proceedings. As the Commission explained:

In establishing its license renewal process, the Commission did not believe it necessary or appropriate to throw open the full gamut of provisions in a plants [CLB] to re-analysis during the license renewal review. The [CLB] represents an evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety. It is effectively addressed and maintained by ongoing agency oversight, review, and enforcement.

Just as these oversight programs help ensure compliance with the

[CLB] during the original license term, they likewise can reasonably be expected to fulfill this function during the renewal term.21 16 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 347 (2015).

17 Id.; see also 10 C.F.R. §§ 54.21, 54.29(a).

18 Indian Point, CLI-15-6, 81 NRC at 347.

19 See NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010) (ML103490041).

20 See generally Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 45-47).

21 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 9 (2001)

(citation omitted).

7 Furthermore, the NRC also conducts a separate environmental review as part of any license renewal proceeding. The objective of that review is to analyze the potential

[environmental] impacts of an additional 20 years of nuclear power plant operation[s].22 This review is required to satisfy the National Environmental Policy Act (NEPA).23 The NRCs NEPA regulations are codified in 10 C.F.R. Part 51.

For license renewal, Part 51 is based in part on the GEIS, which summarizes the findings of a systematic inquiry into the potential environmental consequences of license renewal.24 Based on these analyses, the GEIS outlines two types of environmental issues:

• Generic Category 1 issues, for which the NRC made generic conclusions applicable to all existing nuclear power plants;25 and

• Plant-Specific Category 2 issues, for which site-specific analyses are required for each individual license renewal proceeding.26 Applicants must submit an environmental report (ER) that analyzes all Category 2 issues on a plant-specific basis.27 But, for Category 1 issues, impact conclusions are codified (via notice and comment rulemaking) in 10 C.F.R. Part 51, Subpart A, Appendix B and are not required to be re-analyzed in each individual license renewal application.28 Ultimately, the NRC Staff draws upon the applicants ER, the GEIS, and other sources to produce a plant-specific Supplemental Environmental Impact Statement (SEIS).29 22 Id.

23 National Environmental Policy Act of 1969, Pub. L.91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. § 4321 et seq.).

24 See 1996 GEIS at xxxiv; see 2013 GEIS at S-4; see also 2024 GEIS at xxxiv.

25 Turkey Point, CLI-01-17, 54 NRC at 11.

26 See id. at 11-12 (discussing Category 2 issues).

27 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii).

28 Id. § 51.53(c)(3)(i). Licensees may incorporate by reference those analyses and the codified impact findings from Appendix B. See id. § 51.53(a).

29 See 2013 GEIS at 1-16 to 1-18.

8 In license renewal proceedings, public participation opportunities include various public meetings, the opportunity to submit written comments on environmental scoping and the draft SEIS, and the opportunity to request a hearing to challenge the application. Pursuant to 10 C.F.R. § 2.309(a)(1), a hearing request may be granted only if the presiding officer determines that the petitioner has demonstrated standing and has proposed at least one admissible contention that meets the admissibility criteria in 10 C.F.R. § 2.309(f)(1).30 Failure to satisfy any one of these six admissibility criteria requires that a proposed contention be rejected.31 These criteria are strict by design.32 The petitioner alone bears the affirmative burden to satisfy these criteria.33 As particularly relevant here, to be admissible, contentions must fall within the scope of the proceeding, and must demonstrate a genuine dispute with the application on a material issue of fact or law. Contentions challenging ongoing agency oversight and a plants CLB, or codified impact conclusions from the GEIS, are inadmissible as beyond the limited scope of the license 30 To be admissible, 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 involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (vi) provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. 10 C.F.R. § 2.309(f)(1) 31 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

32 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

33 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)

([t]he proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted).

9 renewal hearing opportunity.34 The Commission long ago determined that it would be unnecessary and wasteful to permit such challengesbecause these issues are addressed through different regulatory pathways.35 B.

Standard of Review on Appeal NRC regulations at 10 C.F.R. § 2.311(c) permit petitioners to appeal orders denying hearing requests and petitions to intervene, as of right, on the sole question of whether the request and/or petition should have been granted.36 The Commission generally provides substantial deference 37 to Board decisions on contention admissibility, but will reverse a Boards ruling if there has been an error of law or an abuse of discretion.38 Thus, the Commission generally is disinclined to upset licensing board findings, particularly on matters involving fact-specific issues or consideration of expert affidavits or submissions.39 The Commission reviews questions of law de novo, and will reverse a licensing boards legal rulings if they are a departure from[,] or contrary to[,] established law.40 To prevail on an abuse of discretion claim, the appellant must persuade the Commission that a reasonable mind could reach no other result.41 An appeal that simply restates the petitioners arguments, is not a valid 34 Turkey Point, CLI-01-17, 54 NRC at 7-9; Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007) (Because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation.).

35 Turkey Point, CLI-01-17, 54 NRC at 7.

36 10 C.F.R. § 2.311(c).

37 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).

38 Comanche Peak, CLI-12-7, 75 NRC at 386 (citing Levy Cty., CLI-10-2, 71 NRC at 29; Oyster Creek, CLI-09-7, 69 NRC at 259; Comanche Peak, CLI-11-9, 74 NRC at 237).

39 Hydro Res., Inc. (Crownpoint, NM), CLI-06-1, 63 NRC 1, 2 (2006).

40 Oyster Creek, CLI-09-7, 69 NRC at 259 (citation omitted).

41 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 532 (1991), affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).

10 appeal.42 As the Commission has made clear, it will not consider new arguments raised for the first time on appeal and that the licensing board never had a chance to consider.43 III.

PETITIONERS FAIL TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION IN THE BOARDS CONTENTION ADMISSIBILITY RULINGS On appeal, Petitioners assert that the Board erred in its admissibility rulings as to all three proposed contentions. But, as explained further below, Petitioners identify no error of law or abuse of discretion by the Board. Indeed, the Appeal is conspicuously devoid of any meaningful engagement with the relevant legal standards for proposed contentions, much less the Boards application of law and fact in the context of those standards. Instead, Petitioners recycle arguments from their Petition alongside conclusory assertions that the Board erroneously and arbitrarily denie[d] the public a hearing on crucial safety and environmental issues.44 This approach, however, is insufficient to satisfy the standard of review on appeal, and wholly fails to justify abandoning the substantial deference the Commission typically affords such decisions.

A.

Petitioners Identify No Error of Law or Abuse of Discretion on Contention 1 In Contention 1, Petitioners raised both safety and environmental claims on seismic matters. Petitioners safety claims purported to challenge seismic information related to the plants CLB. And their environmental claims purported to challenge the NRCs codified Category 1 analyses regarding potential environmental impacts of hypothetical accidents caused by earthquakes. The Board held that: Petitioners safety claims failed to dispute any information 42 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility), CLI-07-20, 65 NRC 499, 503-05 (2007); Turkey Point, CLI-17-12, 86 NRC at 219 ([r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient; the appellant must point out the errors in the Boards decision.) (citations omitted).

43 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006) (quotations and citation omitted).

The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board. Id. (quotations and citation omitted).

44 Appeal at 1.

11 in the LRA; their environmental claims improperly challenged NRC regulations without the necessary waiver; and both claims were beyond the scope of this license renewal proceeding.

On appeal, Petitioners present their disagreement with the Boards ruling, but wholly disregard the appellate standard of review. Because they present no argument or assertion aimed at that standard, they have not met their affirmative burden to demonstrate its satisfaction here.

Moreover, as detailed below, Petitioners arguments do not otherwise amount to identification of any error of law or abuse of discretion in LBP-24-6. Accordingly, the Commission should AFFIRM the Boards ruling on Contention 1.

1.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Scope Determination In the proceedings before the Board, Petitioners squarely acknowledged that their safety and environmental claims in Contention 1 were beyond the limited scope of license renewal proceedings as defined in the plain text of NRC regulations.45 As to safety, Contention 1 sought to challenge seismic issues within the plants CLB, which is addressed through separate processes and is outside the scope of license renewal. As to environmental matters, Contention 1 sought to challenge, without the required waiver, the NRCs codified analysis of the environmental impacts of hypothetical accidents caused by earthquakes during a license renewal term. Notably, certain seismic safety or environmental issues do, in fact, fall within the scope of license renewal, such as those related to aging management (i.e., AMPs or TLAAs) or severe accident mitigation alternatives (SAMAs).46 But Petitioners raised no such challenges in 45 See, e.g., Appeal at 5 (admitting 10 C.F.R. Parts 51 and 54 do not require what Petitioners demand in Contention 1); Transcript of Diablo Canyon Nuclear Power Plant, Units 1 & 2, License Renewal Hearing, May 22, 2024 (revised) at 47-48 (June 22, 2024) (ML24179A075) (Tr.) (admitting that Contention 1 does not fit under the standard rules [for license renewal] that have been in effect since 1991 and that agreeing that apart from words from Commissioner Hanson, seismic issues do not belong in a license renewal proceeding).

46 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 28, 35).

12 Contention 1. Instead, Petitioners opted to challenge only out-of-scope issues, based on an unsupported theory that their challenges were nevertheless admissible due to a brief exchange at a Congressional hearing.

Specifically, at that hearing,47 Senator Padilla asked Chair Hanson for [a]ny comments on safety standards with specific concern about seismic risk at Diablo Canyon.48 Chair Hanson answered by saying:

We are going to be looking at updated safety information as part of that license renewal process. We did require all plants to take a look at the enhanced, relook at their risks after Fukushima. Diablo, of course, did look at their seismic risk and we will take another look at that as part of the license renewal process.49 Petitioners theory was two-fold. First, as a factual matter, Petitioners argued that the Chairs unscripted remark should be interpreted as contradicting the license renewal scope limitations in NRC regulations. Petitioners read that statement as a commitment to conduct a broad[er] review of seismic matters than required by NRC license renewal regulations and to examine seismic risk with new eyes and in a comprehensive manner, and that it will be conducted as part of the license renewal process.50 Second, as a legal matter, Petitioners speculated (without citation to any supporting legal authority) that the statement of a single witness at a Congressional hearing creates binding legal obligations capable of repealing regulations promulgated through notice and comment rulemaking. According to Petitioners, the codified license renewal scope limitations long-embedded in 10 C.F.R. Parts 51 and 54 were effectively repealed (albeit solely for DCPP, and 47 The complete question and answer on which Petitioners rely is provided in the Boards decision. Id. at __ (slip op. at 28-29).

48 Id.

49 Id. at __ (slip op. at 29).

50 Appeal at 13; see also Tr. at 65-67.

13 solely on seismic issues) by virtue of Chair Hansons remark without further action by Congress or the Commission.

After duly considering Petitioners arguments, the Board was not persuaded that anything in Chair Hansons testimony expressly, or even by implication, operates to expand the codified scope of review on license renewal.51 Notably, the Board reached this conclusion on solely factual grounds, rejecting Petitioners interpretation of Chair Hansons statement; it did not reach (and did not need to reach) a definitive conclusion regarding Petitioners dubious speculation on the legal effect of Congressional testimony. Ultimately, the Board unanimously concluded that Contention 1 was inadmissible as beyond the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii). The Appeal does not expose any error of law or abuse of discretion in that conclusion.

a.

Petitioners Identify No Abuse of Discretion in the Boards Factual Conclusion Regarding the Meaning of Chair Hansons Remark As noted above, the Board found nothing in the text of Chair Hansons testimony that clearly expressed a plan to depart from the NRCs codified license renewal process. As the Board noted, even if Petitioners claims regarding the legal effect of that testimony were correct, there is nothing in that testimony indicating, and Chair Hanson did not expressly state, any plan to broaden the license renewal seismic review to include CLB issues or previously codified environmental analyses.52 Given that the Chairs remark can be read in harmony53 with the existing codified scope provisions (e.g., consideration of seismic issues in 51 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 35).

52 Id. at __ (slip op. at 30).

53 Id.

14 the context of AMPs or SAMAs), the Board found Petitioners interpretation of the testimony to be unavailing.

The Appeal largely glosses-over that portion of the Boards ruling, focusing instead on the legal issue. Petitioners only acknowledgement of the Boards testimony interpretation, and their sole attempt to dispute it, appears in a single footnote. Therein, they disparage the Boards view as a crabbed alternative interpretation.54 Assuming that criticism could be viewed as a claim that the Board abused its discretion, it falls far short of the required demonstration. To prevail on an abuse of discretion claim, the appellant has an affirmative burden to show that a reasonable mind could reach no other result.55 They have neither attempted nor done so here.

According to Petitioners, the entire Commission expressly, purposefully, and unanimously intended to enact a sweeping and unprecedented repeal of its longstanding license renewal regulationscontrary to the notice and comment requirements of the Administrative Procedure Act (APA);56 devoid of any policy vote required by the AEA; and without announcing any legal authority or precedent for such a maneuvervia a single, unscripted remark presented in the broadest (i.e., vaguest) possible terms at a Congressional hearing.

Petitioners would have the Commission believe that this extraordinary reading is the only reasonable interpretation of the subject testimony for one single reason: because the question and answer at the Congressional hearing were presented in the broadest possible terms.57 But they fail to explain why a broad discussion mandates the extraordinary result they seek here. And they offer no reason why the Boards logical reading, in which the question-and-answer 54 Appeal at 13 n.35.

55 Turkey Point, ALAB-952, 33 NRC at 532, affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).

56 Administrative Procedure Act of 1946, Pub. L.79-404, 60 Stat. 237 (codified as amended at 5 U.S.C. ch. 5, subch. I § 500 et seq.).

57 Appeal at 13 n.35.

15 exchange can be read in harmony with existing regulations, is not one that a reasonable mind could reach. Indeed, the Boards interpretation is factually substantiated and imminently reasonable.58 And it is entitled to substantial deference here. Thus, Petitioners have not demonstrated an abuse of discretion by the Board.

b.

Petitioners Arguments Regarding the Legal Effect of Congressional Testimony Provide No Grounds for Reversal Because They Are Irrelevant to the Outcome of LBP-24-6, Were Not Timely Raised, and Otherwise Fail to Demonstrate Any Error of Law As noted above, Petitioners argued in their Petition, and re-argue in their Appeal, that Contention 1 falls within the scope of this license renewal proceeding only because Chair Hansons statement in a Congressional hearing overrode the APA and the NRCs scope limitations as codified in Parts 51 and 54.59 But, in the proceedings before the Board, Petitioners did not cite [any] authority for the proposition that such testimony is binding.60 Thus, the Board conducted its own legal research. The Board identified a U.S. Supreme Court case and a 9th Circuit case holding that statements to Congress can neither create legally binding obligations nor expand and contract agency jurisdiction.61 The Board also reviewed two non-binding district court cases noting that Congressional testimony could be viewed as helpful and persuasive or otherwise clarify how existing regulations operate.62 58 Chair Hansons statement regarding NRC plans to look at seismic issues in the license renewal proceeding can be read in harmony with existing regulations requiring consideration of in-scope seismic topics. As noted above, seismic issues are within the scope of license renewal to the extent they are related to aging management (i.e., AMPs or TLAAs) or mitigation alternatives (i.e., SAMAs).

59 Appeal at 11-12; see Petition at 13-15 (discussing Chair Hansons statement as requiring the NRC to an extra safety review).

60 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 29 n.127).

61 Id. (discussing Lincoln v. Virgil, 508 U.S. 182, 194 (1993) and Ruiz v. Morton, 462 F.2d 818, 822 (9th Cir.

1972)).

62 Id. (discussing Texas v. United States, 86 F. Supp. 3d 591, 654 n.64 (S.D. Tex. 2015) and United States v.

Morgan, 118 F. Supp. 621 (S.D.N.Y. 1953)).

16 The Board expressed grave doubts that a statement during a congressional hearing, even by the Commissions Chair, can otherwise expand the scope of a licensing proceeding beyond that defined by the Commissions adjudicatory precedent or hearing opportunity notice.63 However, the Board stopped short of reaching a definitive conclusion regarding the legal effect of Congressional testimony. Instead, the Board simply characterized the case law as unclear and resolved the question on factual grounds alone.64 On appeal, Petitioners argue that the Boards decision on Contention 1 should be reversed because the two district court cases cited by the Board support[] their theory that Chair Hansons statement is legally binding.65 But these arguments provide no grounds for reversal for at least three reasons.

First, assuming arguendo that Petitioners are correct regarding the legal effect of Congressional testimony (they are not), that circumstance would have no impact on the admissibility ruling for Contention 1. The Board correctly rejected the contention on the factual issue alone, mooting the corresponding legal question. As noted above, the Board concluded that Chair Hansons statement was consistent with existing regulations that require consideration of in-scope seismic issues in license renewal proceedings. Accordingly, the Boards determination that the case law on the legal effect of Congressional testimony is unclear, even if erroneous, would constitute nothing more than harmless error, which provides no grounds for reversal.66 Second, the Appeal presents entirely new arguments seeking to equate the factual circumstances of the two district court cases with the instant proceeding. But those arguments 63 Id. at __ (slip op. at 29).

64 Id. at __ (slip op. at 29 n.127).

65 Appeal at 12.

66 In the Matter of David Geisen, CLI-10-23, 72 NRC 210, 247 (2010) (error without prejudice is harmless and provides no grounds for reversal on appeal).

17 were never presented to the Board. In fact, the Board identified those cases in the first instance.

Petitioners presented zero arguments about those casesor any other authority allegedly supporting their novel and speculative legal theoryto the Board. As the Commission has made clear, it simply will not consider new arguments raised for the first time on appeal.67 The Board cannot be faulted for not considering unpresented arguments.

And third, the district court cases cited by Petitioners, United States v. Morgan,68 and Texas v. United States,69 do not demonstrate any legal error by the Board. As explained below, those cases do not support Petitioners theory that Congressional testimony can conjure new binding legal obligations and override codified regulations. And those cases certainly do not evidence any departure from established law.70 In Morgan, the government brought an action to restrain several defendants from continuing alleged violations of the Sherman Anti-Trust Act.71 In determining whether the defendants actions violated anti-trust law, the district court found persuasive and helpful an advisory opinion from the U.S. Securities and Exchange Commission (SEC). That opinion, consisting of a majority opinion (joined by three commissioners) and a concurring opinion (authored by a fourth commissioner), provided the agencys views on the application of

[existing] antitrust laws to the securities field.72 Notably, the district court disavowed any binding legal effect of the opinion, expressly stating that the agencys views are not binding 67 USEC, CLI-06-10, 63 NRC at 458 (quotations and citation omitted). The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board.

Id. (quotations and citation omitted).

68 118 F. Supp. 621 (S.D.N.Y. 1953).

69 86 F. Supp. 3d 591 (S.D. Tex. 2015).

70 Oyster Creek, CLI-09-7, 69 NRC at 259 (citation omitted).

71 Sherman Antitrust Act of 1890, Pub. L.51-647, 26 Stat. 209 (codified as amended at 15 U.S.C. §§ 1-7).

72 Morgan, 118 F. Supp. 621, 698-99 (S.D.N.Y. 1953).

18 on me, or upon any other court or judge.73 Thus, Morgan stands for the unremarkable proposition that an agency advisory opinion, much like an amicus brief, can be helpful to a court. To be clear, Morgan did not involve Congressional testimony; it said nothing about the legal effect of Congressional testimony or the constraints Congress placed on agency action in the APA; it did not conclude that any agency statements were binding on anyone; and it provides no support for a theory that an agency can be bound or required to act contrary to its own regulations. At bottom, that case provides no obvious support for Petitioners claims and certainly does not demonstrate that the Boards ruling is a departure from settled lawand the Appeal offers no explanation otherwise.

Texas also contradicts Petitioners position. In that case, a group of states sought injunctive relief in district court to prevent the federal government from implementing a program intended to provide legal status to individuals in the country illegally.74 The program was not promulgated via rulemaking or executive order, but rather was instituted via an agency memorandum. A central question in the case was whether the program was properly characterized as an exercise of prosecutorial discretion (i.e., not removing people from the country under immigration laws), which is presumptively unreviewable.75 Although part of the program arguably involved enforcement matters, the court considered whether the program also affirmatively conferred certain benefits.76 It was in this context that the district court discussed, in a footnote, the Congressional testimony of an IRS commissioner. The Commissioner explained how the new program interacted with existing tax rules and confirmed that it would 73 Id. at 699.

74 Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

75 Id. at 652-56 (discussing Heckler v. Chaney, 470 U.S. 821 (1985)).

76 Id. at 654-55.

19 effectively bestow a new tax benefit on certain individuals.77 In the courts view, this supported a conclusion that the program went beyond a mere exercise of enforcement discretion, and thus the government had improperly legislated a substantive rule without complying with the procedural requirements of the [APA].78 In summary, the court simply relied on the Commissioners explanation of how existing tax rules operate; it did not find that the testimony imposed some new, binding obligation, or otherwise authorized a departure from existing rules. Quite the oppositethe court found that conferring new tax benefits without engaging in notice and comment rulemaking would violate the APA. So too here. Applying the Texas decision to this proceeding, requiring the NRC to take an action outside its codified regulatory process without engaging in notice and comment rulemaking also would violate the APA.79 Thus, Texas also does not support any claim that LBP-24-6 is affected by legal error.

Ultimately, the Appeal fails to demonstrate any error of law or abuse of discretion in the Boards scope conclusion as to Contention 1.

2.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Genuine Dispute Ruling In LBP-24-6, the Board also concluded that the safety claims in Contention 1 are inadmissible because Petitioners failed to satisfy the genuine dispute requirement in 10 C.F.R.

§ 2.309(f)(1)(vi). Specifically, the Board held that Petitioners safety claims failed to dispute the 77 Id. at 654 n.64.

78 Id. at 677.

79 The Board squarely invited Petitioners to address APA requirements in the proceedings below, but Petitioners sidestepped the issue. Specifically, in response to a question from Judge Arnold on how comments of one Commissioner in response to a senators question toss [the fairly rigorous rule making process] out the window, Petitioners offered no discussion of the APA and instead merely demurred that they should be able to rely on the statement. Tr. at 57-58.

20 sufficiency of any specific safety content in the LRA and failed to identify the omission of any content required by 10 C.F.R. Part 54.80 In their Appeal, Petitioners express disagreement with that conclusion, but again fail to explain how the Boards decision was affected by any error of law or abuse of discretion.

First, Petitioners decry the Boards conclusion as tautological because the NRCs Part 54 regulations do not require PG&E to address seismic risk in the safety portion of its application.81 But Petitioners characterization of the regulations is not entirely inaccurate. To be clear, seismic matters are required to be addressed in the LRA to the extent they are within the scope of Part 54s aging management requirements. The Board was demonstrably correct in its observation that, although they could have, Petitioners did not challenge the sufficiency or omission of any such aging management content in the LRA. Petitioners do not claim otherwise.

Second, Contention 1 was directed at seismic safety matters that are unrelated to aging managementi.e., those encompassed by the plants CLB and subject to ongoing operational oversight. In that regard, Petitioners are spot-on that those matters (which have been or are being reviewed under the appropriate 2.206 petition process) are not required by Part 54 to be addressed (redundantly) in the LRA.82 And Petitioners acknowledgement of that fact simply serves to validate the Boards objectively correct conclusion that Contention 1 failed to dispute the sufficiency or omission of any information required to be presented in the LRA.

Here, Petitioners again fall back to arguing that if Chair Hansons statement is given binding effect (as shown above, it should not be), then the NRC will need to review in this license renewal proceeding all seismic matters, including those encompassed by the plants 80 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 32-33).

81 Appeal at 14.

82 10 C.F.R. § 54.30(b).

21 CLB.83 But even if Petitioners were correct, and the NRC unilaterally committed itself to conduct some extra-procedural review, that circumstance would not retroactively render PG&Es application materially defective. Safety contentions claiming the NRC failed in its review are per se inadmissible because it is the application, not the review, that must be challenged.84 Here, PG&E fully complied with all application-content requirements and submitted an LRA consistent with applicable guidance. Petitioners identify no portion of the exchange between Senator Padilla and Chair Hanson prescriptively defining additional information that must be included in an LRA. PG&E cannot be faulted for not including in its LRA information that is not required to be presented therein. Ultimately, the Appeal identifies no error of law or abuse of discretion in the Boards plainly correct ruling that Petitioners failed to dispute the LRA.

3.

Petitioners Make No Attempt to Identify Any Error of Law or Abuse of Discretion in the Boards Waiver Determination, Which Is Objectively Correct Lastly, the Board found that the environmental aspect of Contention 1 was inadmissible for the additional reason that it impermissibly seeks to challenge NRC regulations. That conclusion is indisputably correct as a matter of law.

Petitioners sought a hearing in this individual licensing proceeding to litigate the potential environmental impacts of hypothetical accidents initiated by seismic events. That issue, however, was comprehensively analyzed by the NRC in the GEIS, and the conclusions of that analysis were codified as Category 1 issues in 10 C.F.R. Part 51 via notice and comment rulemaking.85 The NRCs rules of practice and procedure funnel challenges to its regulations 83 Appeal at 14.

84 For safety contentions, the Commission has long held that the applicants license application is in issue, not the adequacy of the Staffs review of the application. An intervenor... may not proceed on the basis of allegations that the Staff has somehow failed in its performance. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983).

85 See 10 C.F.R. Pt. 51, App. B. Tbl. B-1.

22 into the rulemaking process and generally prohibit such challenges in individual licensing proceedings.86 However, litigants can seek a waiver of that general prohibition. Petitioners neither requested nor received such a waiver here. Thus, in the absence of the required waiver, the Board had no choice but to conclude that Petitioners challenge was impermissible. The Appeal offers no specific rebuttal to that conclusion, and therefore fails to demonstrate any error of law or abuse of discretion.

In sum, the Appeal fails to demonstrate any error of law or abuse of discretion in any of the Boards reasons for concluding that Contention 1 was inadmissible. Accordingly, the Commission should AFFIRM the Boards ruling on Contention 1.

B.

Petitioners Identify No Error of Law or Abuse of Discretion on Contention 2 Contention 2 alleged that PG&Es LRA does not include an adequate plan to monitor and manage the effects of aging due to embrittlement of the Unit 1 [RPV] or an adequate

[TLAA] as required by 10 C.F.R. 54.21.87 After due consideration, the Board found Contention 2 inadmissible for two main reasons: because Petitioners claims were out-of-scope and because they failed to demonstrate a genuine dispute with the LRA.88 On appeal, Petitioners merely repeat selected statements from their declarant, Dr. Macdonald. As a matter of law, repetition of earlier claims is an insufficient basis to overturn a decision on appeal.

In fact, Petitioners offer oneand only onecriticism of the Boards ruling: that it failed to consider the detail and specificity with which Dr. Macdonald demonstrated that in 86 See 10 C.F.R. § 2.335.

87 Petition at 16.

88 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 38-47).

23 Shakespeares words, Whats past is prologue.89 Otherwise, the Appeal does not meaningfully engage with LBP-24-6; fails to distinguish between the Boards two primary bases for rejecting the contention; and offers no analysis of the admissibility criteria. As further explained below, Petitioners appealif it can even be characterized as suchwholly fails to demonstrate any error of law or abuse of discretion in the Boards ruling on Contention 2.

First, the Board held that Contention 2 was beyond the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), because it improperly challenged the plants CLB rather than aging management issues. Notwithstanding token citations to Part 54 in the Petition, and a few block quotes from the LRA in Dr. Macdonalds declaration, the Board found that Petitioners and Dr. Macdonalds claims were almost entirely devoted to actions taken by (or not taken by)

PG&E and/or the Commission prior to PG&Es submission of the LRA.90 As the Board noted, this backwards-looking gaze is problematic because it challenges a plants CLB, which is outside the scope of the proceeding.91 In reaching its scope conclusion, the Board relied, in part, on controlling precedent from the Point Beach proceeding, in which the Commission recently upheld a licensing boards rejection of a similar contention proffering backwards-looking criticisms of RPV embrittlement analyses.92 And at oral argument, the Board invited Petitioners to distinguish their claims, but received a response confirming that Petitioners were, in fact, seeking to challenge the plants CLB.93 Thus, despite Petitioners thin attempts to cloak the contention with cursory references to Part 54, the Board determined as a factual matter that Contention 2 sought to challenge the CLB, and therefore was out of scope.

89 Appeal at 15.

90 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 39).

91 Id. at __ (slip op. at 39-40).

92 Id.

93 Id. at __ (slip op. at 40).

24 Second, the Board held that Contention 2 failed to demonstrate a genuine dispute with the LRA, as required by 10 C.F.R. § 2.309(f)(1)(vi). Among other things, that criterion requires references to specific portions of the application being challengedsomething Petitioners failed to supply in the Petition itself. The Board acknowledged that a background discussion in Dr. Macdonalds declaration included block quotes from a few pages of the LRA.94 But it found that only two were accompanied by any discussion or criticism, neither of which identified a genuine dispute.95 The Board also reviewed the analytical section of the declaration and found that it was singularly focused on CLB matters, save two sentences providing conclusory assertions about license renewal with no link to any particular discussion in the LRA.96 At oral argument, Petitioners finally revealed that they were attempting to challenge the RPV AMP.97 But they still did not specify any particular AMP content being challenged.

Nevertheless, the Board acknowledged the LRAs statement that the RPV AMP was consistent with the GALL Report, which essentially entitles that AMP to a rebuttable presumption of regulatory sufficiency.98 However, Petitioners failed to acknowledge, grapple with, or otherwise dispute that relevant information, i.e., made no attempt to rebut that rebuttable presumption.

94 The Board noted that Petitioners failed to identify a single LRA provision in their Petition, as required by 10 C.F.R. § 2.309(f)(1)(vi), and correctly pointed out that their wholesale incorporation by reference of Dr.

Macdonalds declaration contravenes Commission precedent. However, the Boards ruling did not rest on that finding. Thus, Petitioners citation to a licensing board case (which is not controlling here and does not supersede Commission precedent) for the proposition that mere notice pleading suffices in NRC adjudicatory proceedings (it does not), does not demonstrate any error of law or abuse of discretion. See Appeal at 15 n.41 (citing U.S. Dept of Energy (High-Level Waste Repository), LBP-09-6, 69 NRC 367, 408 (2006)).

95 Of those two, one simply overlooked supposedly missing information and the other failed to explain why missing information was required to be included in an LRA. Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 41-43).

96 Id. at __ (slip op. at 43-44).

97 Tr. at 96-97.

98 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 44).

25 Accordingly, the Board properly concluded that Petitioners had not carried their burden to demonstrate a genuine dispute on a material issue of fact or law.

On appeal, Petitioners point to no error of law or abuse of discretion in the Boards ruling. In fact, it is not entirely clear which (if any) arguments in the Appeal may be directed at which admissibility criterion or which aspect of the Boards ruling. As to the Boards scope conclusion, Petitioners neither dispute the Boards characterization of their statements at oral argument nor rebut the Boards application of the Point Beach precedent. And as to the Boards genuine dispute conclusion, Petitioners say nothing about the GALL Report and (Shakespearian maxims aside) still do not tell us which portion of the RPV AMP they were purporting to dispute. Overall, the Appeal does little more than quote or reference certain statements from Dr.

Macdonalds declaration, claiming they are specific and well-supported. But this vague assertion identifies no error of law or abuse of discretion; and simply restating earlier arguments is not a valid appeal.99 Lastly, Petitioners appear to equate Contention 2 with an embrittlement contention that was admitted in the Indian Point proceeding.100 But they offer no analysis or discussion to support the suggested equivalence and fail to explain howor even assert thatit somehow contradicts any portion of LBP-24-6. In any event, a brief review of that decision makes clear that the specific claims in the Indian Point contention are easily distinguishable from the vague allegations offered by Petitioners here.101 Simply put, Petitioners unexplained reference to this 99 Shieldalloy, CLI-07-20, 65 NRC at 503-05.

100 Appeal at 17 (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 131 (2008)).

101 Compare, e.g., Indian Point, LBP-08-13, 68 NRC at 131 (noting that the operative challenge in that proceeding was whether an AMP was necessary) with Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 44) (noting that the LRA included an AMP entitled to a presumption of regulatory sufficiency, which Petitioners neither acknowledged nor challenged).

26 non-controlling licensing board decision does not remotely evidence any error of law or abuse of discretion in the Boards ruling here.

In sum, the Board fully considered Petitioners arguments and appropriately applied controlling law. On appeal, Petitioners do not claim or show otherwise. Instead, the Appeal merely recycles Petitioners original arguments and hopes for a different result from the Commission. This does not satisfy the appellate standard of review. Accordingly, the Commission should AFFIRM the Boards ruling on Contention 2.

C.

Petitioners Identify No Error of Law or Abuse of Discretion on Contention 3 Among many other environmental laws, federal license applicants (including applicants for NRC license renewals such as PG&E) and federal agencies (including the NRC) must comply with the CZMA. As relevant here, there are two main steps in the CZMA process: the certification, which an applicant must submit to the cognizant state agency (here, the California Coastal Commission (CCC)) with a copy thereof included in its application to the federal agency; and the subsequent concurrence from that state agency, which must be obtained before the license can be issued.102 In Contention 3, Petitioners alleged that the NRC cannot approve the LRA because PG&E has not yet obtained a CZMA concurrence. The Board held that this contention was inadmissible for failing to demonstrate a genuine dispute on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi). As explained below, the Boards ruling is manifestly correct, and the Appeal identifies no error of law or abuse of discretion in the Boards reasoning.

102 A federal agency can also issue a license without a state concurrence if: (1) the state fails to act, or (2) if the state rejects the certification and the applicant prevails on an appeal to the Secretary of Commerce. CZMA, 16 U.S.C. § 1456(c)(3)(A).

27 Based on two key conclusions, the Board essentially found that Contention 3 was unripe.

First, as a matter of settled law that no party disputed, the CZMA concurrence is not required at the application stage. Thus, as the Board correctly held, its absence from the LRA is not a cognizable deficiency (and PG&E fully complied with its obligation to provide the certification in the LRA). Second, as another matter of settled law that no party disputed, the NRC cannot approve the LRA unless and until that CZMA concurrence is issued. As the Board again correctly held, in the absence of some indication that the NRC intends to violate the statute by approving the LRA without that concurrence (which no party alleged), no genuine dispute currently exists on the matter of CZMA compliance. On appeal, Petitioners do not contest any of these fundamental aspects of the Boards ruling. Instead, Petitioners raise two tertiary claims that provide no grounds for reversal of the Boards ruling.

First, Petitioners point to a CCC request for additional information (RAI) to PG&E regarding its certification. Petitioners allege the RAI somehow exposes a genuine dispute because it constitutes evidence that PG&E could obtain a renewed license from the NRC without the required CZMA concurrence.103 But that argument fails to demonstrate any error of law or abuse of discretion. The Board squarely consideredand properly rejectedthat specious suggestion.104 On appeal, Petitioners offer no rebuttal of the Boards reasoning. They simply repeat the same argument and demand a different result. As the Commission has explained, [r]ecitation of an appellants prior positions in a proceeding or statement of general 103 See Appeal at 19 (citing Letter from T. Luster, CCC, to T. Jones, Senior Director Regulatory, Environmental and Repurposing, PG&E at 1 (Dec. 7, 2023)).

104 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 50-51).

28 disagreement with a decisions result is not sufficient; the appellant must point out the errors in the Boards decision.105 They have not done so here.

Furthermore, the Boards conclusion is legally and factually sound. Regardless of whether the CCC was satisfied with the completeness of the original certification, an extraordinary logical gap exists between that unremarkable circumstance (i.e., the issuance of an RAI) and the possibility that PG&E could obtain a renewed license without the required CZMA concurrence. Namely, that would require the NRC to purposefully elect to violate a federal statute. As a matter of settled law (which Petitioners do not dispute), the NRC is entitled to a presumption of administrative regularity.106 In other words, baseless speculation of illegal conduct can never provide the basis for an admissible contention. Here, the Board specifically probed this issue at oral argument, asking whether Petitioners had any basis to dispute the NRCs presumption of regularity. Petitioners admitted, [n]o, we have not presented evidence of irregularity by the staff.107 Given that admission, the Boards conclusion is imminently reasonable and fully consistent with controlling lawand Petitioners offer nothing to conclude otherwise here.

Second, Petitioners (admitting that no genuine dispute currently exists) argue that the Commission should hold the contention in abeyance pending further developments.108 According to Petitioners, that is because the NRC cannot reject [Contention 3] now and place extra burdens on Petitioners at whatever time in the future the NRC deems ripe for raising this 105 Turkey Point, CLI-17-12, 86 NRC at 219 (citations omitted).

106 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-11, 67 NRC 379, 384 (2008) (Absent clear evidence to the contrary, we presume that public officers will properly discharge their official duties. (cleaned up)).

107 Tr. at 143.

108 Appeal at 19.

29 material issue.109 Yet again, the Board squarely consideredand properly rejectedthat demand when Petitioners raised it in the initial proceedings. As the Board correctly explained, Commission precedent counsels that unripe placeholder contentions should be rejectedthe opposite of what Petitioners demand.110 On appeal, Petitioners neither acknowledge nor rebut the relevant Commission authority on that point. Petitioners simply recycle their arguments and demand a different result, which fails to constitute a valid appeal.

Next, Petitioners argue that a D.C. Circuit ruling from 1984, Union of Concerned Scientists v. NRC (UCS), compels the NRC to offer a hearing on CZMA issues.111 As a preliminary matter, this argument is new and untimely. In the proceedings before the Board, Petitioners never invoked the UCS case as alleged support for Contention 3. However, the Commission will not consider new arguments raised for the first time on appeal that the Board never had an opportunity to consider.112 Thus, the Commission should summarily reject these new arguments here.

Furthermore, UCS is inapt and provides no basis to disturb the Boards ruling. In UCS, the court held that the NRC cannot categorically exclude from the scope of a hearing opportunity any topic that is material to the underlying licensing decision. But the Boards ruling on Contention 3 in no way contradicts that holding. The Board did not conclude that CZMA issues are beyond the scope of (criterion (iii)) or are immaterial to (criterion (iv)) the proceeding.

Rather, it concluded that Petitioners wild speculation of illegal conduct was insufficient, as a 109 Id.

110 See, e.g., Union Electric Co. (Callaway Plant, Unit 1), CLI-15-11, 81 NRC 546, 548-50 (2015).

111 Appeal at 11, 13.

112 USEC, CLI-06-10, 63 NRC at 458 (quotations and citation omitted). The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board.

Id. (quotations and citation omitted).

30 matter of law, to demonstrate a genuine dispute with the application (criterion (vi)). UCS has no bearing whatsoever on that fundamental defect in Contention 3, and certainly exposes no error of law or abuse of discretion in the Boards ruling.

In sum, the Board fully considered Petitioners arguments and appropriately applied controlling law. On appeal, Petitioners offer no contrary demonstration. Petitioners simply recycle their original arguments, hoping for a different result from the Commission, and improperly raise new arguments for the first time on appeal, none of which satisfy the appellate standard of review. Accordingly, the Commission should AFFIRM the Boards ruling on Contention 3.

IV.

CONCLUSION Petitioners have not met their affirmative burden to demonstrate that the licensing board misapplied controlling law or abused its discretion in ruling on any of Petitioners three contentions. For the many reasons set forth above, the Commission should AFFIRM all three of the Boards contention admissibility rulings in LBP-24-6.

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 (202) 739-5274 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 (202) 739-5527 (202) 739-5796 Timothy.Matthews@morganlewis.com Paul.Bessette@morganlewis.com Counsel for Pacific Gas and Electric Company Dated in Washington, D.C.

This 23rd day of August 2024

DB1/ 150285390.4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the matter of:

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

Docket No. 50-275-LR-2 and 50-323-LR-2 August 23, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing PACIFIC GAS AND ELECTRIC COMPANYS ANSWER OPPOSING THE APPEAL OF LBP-24-6 FILED BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

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

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

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Pacific Gas and Electric Company