ML16028A323

Motion of Pacific Gas and Electric Company for Leave to Intervene 1-27-16

ML16028A323
Person / Time
Site:	Humboldt Bay
Issue date:	01/27/2016
From:	Post J K, Repka D A, Smith T R Pacific Gas & Electric Co, Winston & Strawn, LLP
To:	NRC/OGC, US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
Mullins C E, OGC/LC
References
1595599, 16-1004
Download: ML16028A323 (8)

Text

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

__________________

__________________ )

FRIENDS OF THE EARTH ) ) Petitioner, ) ) v. )

) UNITED STATES NUCLEAR ) REGULATORY COMMISSION )

and the UNITED STATES OF AMERICA, ) No. 16-1004 ) Respondents, )

__________________

__________________)

MOTION OF PACIFIC GAS AND ELECTRIC COMPANY FOR LEAVE TO INTERVENE Pacific Gas and Electric Company ("PG&E") hereby moves this court for leave to intervene on its own motion and as of right in the above-captioned case pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure, Circuit Rule 15(b), and 28 U.S.C. § 2348. PG&E seeks intervention in support of the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") and offers the following grounds for the requested action:

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 1 of 8 2 1. Diablo Canyon Power Plant ("Diablo Canyon") is a two-unit nuclear plant licensed and regulated by the NRC. PG&E is the owner and operator of Diablo Canyon and holds the NRC operating licenses for the plant.

2. In November 2009, PG&E filed an application with the NRC to renew the operating licenses for the Diablo Canyon units for an additional 20 years. The application initiated an NRC administrative proceeding, including an opportunity for hearing.

3. In October 2014, Petitioner Friends of the Earth ("FOE") filed with the NRC an untimely Request for Hearing and Petition to Intervene in connection with the license renewal application. FOE sought to raise certain contentions related to seismic hazards at Diablo Canyon. Recognizing that such issues are not normally within the scope of an NRC license renewal review, FOE also filed a Petition for Waiver of the license renewal regulations to allow consideration of its contentions within the scope of the license renewal review and hearing.

4. PG&E, as the Diablo Canyon licensee, re sponded to FOE's Re quest for Hearing and Petition for Waiver and participated as a party in the administrative proceedings at the NRC. PG&E opposed the Request for Hearing and Petition for Waiver.

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 2 of 8 3 5. The NRC's Atomic Safety and Licensing Board denied the Request for Hearing and Petition for Waiver. FOE appealed the decision to the Commission. PG&E opposed the appeal.

6. The Commission issued a Memorandum and Order, CLI-15-21, dated November 9, 2015. The Commission affirmed the decision of the NRC's Atomic Safety and Licensing Board. The Commission's Memorandum and Order ended FOE's participation in the hearing process on the Diablo Canyon license renewal application.

7. In its Petition for Review, FOE seeks review by this Court of the Commission's Memorandum and Order, CLI-15-21. FOE requests that this Court vacate the Memorandum and Order and order the NRC to grant its petitions at the agency.

8. PG&E's operations are directly implicated by FOE's Request for Hearing and Petition for Waiver at the NRC and by the Petition for Review. PG&E would be the party directly affected should the Court grant the Petition for Review. Accordingly, PG&E has a direct and substantial interest in the case. Although NRC is a Respondent with respect to the Petition for Review, PG&E has a separate interest apart from the regulatory interests of the NRC.

9. Counsel for the NRC has indicated that the NRC does not object to this motion.

Counsel for FOE also has indicated that FOE does not object to this motion.

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 3 of 8 4 Wherefore, PG&E requests that it be granted leave to intervene as a party respondent in the captioned proceeding. Respectfully submitted, /s/ signed electronically by David A. Repka* Tyson R. Smith WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 202-282-5726 drepka@winston.com trsmith@winston.com Jennifer K. Post PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street, B30A San Francisco, CA 94105 415-973-9809 jlkm@pge.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY

• Counsel of Record

Dated: January 27, 2016 USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 4 of 8 1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

__________________ )

FRIENDS OF THE EARTH ) ) Petitioner, ) ) v. )

) UNITED STATES NUCLEAR ) REGULATORY COMMISSION )

and the UNITED STATES OF AMERICA, ) No. 16-1004 ) Respondents, )

__________________

__________________)

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Pacific Gas and Electric Company ("PG&E") here by files this Disclosure Statement. PG&E is a corporation organized under the laws of the State of California, with its principal executive offices in San Francisco, California. PG&E is an operating public utility engaged principally in the business of providing electricity and natural gas distribution and transmission services throughout most of Northern and Central California. PG&E and its subsidiaries are subsidiaries of Pacific Gas and Electric Corporation, an energy-based holding company organized under the laws of the State of California, with its principal executive offices in San USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 5 of 8 2 Francisco, California. Pacific Gas and Electric Corporation, PG&E's parent corporation, is the only publicly held corporation owning ten percent or more of PG&E's stock.

Respectfully submitted, /s/ signed electronically by David A. Repka* Tyson R. Smith WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 202-282-5726 drepka@winston.com trsmith@winston.com Jennifer K. Post PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street, B30A San Francisco, CA 94105 415-973-9809 jlkm@pge.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY

• Counsel of Record

Dated: January 27, 2016 USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 6 of 8 1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

__________________ )

FRIENDS OF THE EARTH ) ) Petitioner, ) ) v. )

) UNITED STATES NUCLEAR ) REGULATORY COMMISSION )

and the UNITED STATES OF AMERICA, ) No. 16-1004 ) Respondents, )

__________________

__________________)

CERTIFICATE OF SERVICE I hereby certify that on this day, copies of "Motion Of Pacific Gas And Electric Company For Leave To Intervene" and "Corporate Disclosure Statement" in the captioned proceeding have been served by Electronic Case Filing ("ECF"), or, for any party not registered for ECF, by U.S. Mail, first class, postage prepaid.

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 7 of 8 2 RICHARD AYRES JESSICA OLSON JOHN BERNETICH Ayres Law Group

1707 L Street, NW Suite 850 Washington, DC 20036 ANDREW P. AVERBACH Solicitor CHARLES E. MULLINS Senior Attorney

Office of the General Counsel United States Nuclear Regulatory Commission

Washington, DC 20555-0001

Respectfully submitted, /s/ signed electronically by Tyson R. Smith WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 415-591-6874

drepka@winston.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY Dated: January 27, 2016

DC:784782.2 USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 8 of 8 1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

__________________ )

FRIENDS OF THE EARTH ) ) Petitioner, ) ) v. )

) UNITED STATES NUCLEAR ) REGULATORY COMMISSION )

and the UNITED STATES OF AMERICA, ) No. 16-1004 ) Respondents, )

__________________

__________________)

MOTION OF PACIFIC GAS AND ELECTRIC COMPANY FOR LEAVE TO INTERVENE Pacific Gas and Electric Company ("PG&E") hereby moves this court for leave to intervene on its own motion and as of right in the above-captioned case pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure, Circuit Rule 15(b), and 28 U.S.C. § 2348. PG&E seeks intervention in support of the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") and offers the following grounds for the requested action:

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 1 of 8 2 1. Diablo Canyon Power Plant ("Diablo Canyon") is a two-unit nuclear plant licensed and regulated by the NRC. PG&E is the owner and operator of Diablo Canyon and holds the NRC operating licenses for the plant.

2. In November 2009, PG&E filed an application with the NRC to renew the operating licenses for the Diablo Canyon units for an additional 20 years. The application initiated an NRC administrative proceeding, including an opportunity for hearing.

3. In October 2014, Petitioner Friends of the Earth ("FOE") filed with the NRC an untimely Request for Hearing and Petition to Intervene in connection with the license renewal application. FOE sought to raise certain contentions related to seismic hazards at Diablo Canyon. Recognizing that such issues are not normally within the scope of an NRC license renewal review, FOE also filed a Petition for Waiver of the license renewal regulations to allow consideration of its contentions within the scope of the license renewal review and hearing.

4. PG&E, as the Diablo Canyon licensee, re sponded to FOE's Re quest for Hearing and Petition for Waiver and participated as a party in the administrative proceedings at the NRC. PG&E opposed the Request for Hearing and Petition for Waiver.

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 2 of 8 3 5. The NRC's Atomic Safety and Licensing Board denied the Request for Hearing and Petition for Waiver. FOE appealed the decision to the Commission. PG&E opposed the appeal.

6. The Commission issued a Memorandum and Order, CLI-15-21, dated November 9, 2015. The Commission affirmed the decision of the NRC's Atomic Safety and Licensing Board. The Commission's Memorandum and Order ended FOE's participation in the hearing process on the Diablo Canyon license renewal application.

7. In its Petition for Review, FOE seeks review by this Court of the Commission's Memorandum and Order, CLI-15-21. FOE requests that this Court vacate the Memorandum and Order and order the NRC to grant its petitions at the agency.

8. PG&E's operations are directly implicated by FOE's Request for Hearing and Petition for Waiver at the NRC and by the Petition for Review. PG&E would be the party directly affected should the Court grant the Petition for Review. Accordingly, PG&E has a direct and substantial interest in the case. Although NRC is a Respondent with respect to the Petition for Review, PG&E has a separate interest apart from the regulatory interests of the NRC.

9. Counsel for the NRC has indicated that the NRC does not object to this motion.

Counsel for FOE also has indicated that FOE does not object to this motion.

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 3 of 8 4 Wherefore, PG&E requests that it be granted leave to intervene as a party respondent in the captioned proceeding. Respectfully submitted, /s/ signed electronically by David A. Repka* Tyson R. Smith WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 202-282-5726 drepka@winston.com trsmith@winston.com Jennifer K. Post PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street, B30A San Francisco, CA 94105 415-973-9809 jlkm@pge.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY

• Counsel of Record

Dated: January 27, 2016 USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 4 of 8 1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

__________________ )

FRIENDS OF THE EARTH ) ) Petitioner, ) ) v. )

) UNITED STATES NUCLEAR ) REGULATORY COMMISSION )

and the UNITED STATES OF AMERICA, ) No. 16-1004 ) Respondents, )

__________________

__________________)

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Pacific Gas and Electric Company ("PG&E") here by files this Disclosure Statement. PG&E is a corporation organized under the laws of the State of California, with its principal executive offices in San Francisco, California. PG&E is an operating public utility engaged principally in the business of providing electricity and natural gas distribution and transmission services throughout most of Northern and Central California. PG&E and its subsidiaries are subsidiaries of Pacific Gas and Electric Corporation, an energy-based holding company organized under the laws of the State of California, with its principal executive offices in San USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 5 of 8 2 Francisco, California. Pacific Gas and Electric Corporation, PG&E's parent corporation, is the only publicly held corporation owning ten percent or more of PG&E's stock.

Respectfully submitted, /s/ signed electronically by David A. Repka* Tyson R. Smith WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 202-282-5726 drepka@winston.com trsmith@winston.com Jennifer K. Post PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street, B30A San Francisco, CA 94105 415-973-9809 jlkm@pge.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY

• Counsel of Record

Dated: January 27, 2016 USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 6 of 8 1 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

__________________ )

FRIENDS OF THE EARTH ) ) Petitioner, ) ) v. )

) UNITED STATES NUCLEAR ) REGULATORY COMMISSION )

and the UNITED STATES OF AMERICA, ) No. 16-1004 ) Respondents, )

__________________

__________________)

CERTIFICATE OF SERVICE I hereby certify that on this day, copies of "Motion Of Pacific Gas And Electric Company For Leave To Intervene" and "Corporate Disclosure Statement" in the captioned proceeding have been served by Electronic Case Filing ("ECF"), or, for any party not registered for ECF, by U.S. Mail, first class, postage prepaid.

USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 7 of 8 2 RICHARD AYRES JESSICA OLSON JOHN BERNETICH Ayres Law Group

1707 L Street, NW Suite 850 Washington, DC 20036 ANDREW P. AVERBACH Solicitor CHARLES E. MULLINS Senior Attorney

Office of the General Counsel United States Nuclear Regulatory Commission

Washington, DC 20555-0001

Respectfully submitted, /s/ signed electronically by Tyson R. Smith WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 415-591-6874

drepka@winston.com COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY Dated: January 27, 2016

DC:784782.2 USCA Case #16-1004 Document #1595599 Filed: 01/27/2016 Page 8 of 8