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Applicant Response Opposing Slomfp Petition for Review
	ML15282A459
Person / Time
Site:	Diablo Canyon
Issue date:	10/09/2015
From:	Post J, Repka D, Tanya Smith; Pacific Gas & Electric Co, Winston & Strawn, LLP
To:	; NRC/OCM
	SECY RAS
References
	50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01, RAS 28370
	Download: ML15282A459 (29)
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

APPLICANTS RESPONSE TO PETITION FOR REVIEW David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Jennifer Post Pacific Gas and Electric Company 77 Beale St., B30A San Francisco, CA 94105 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY October 9, 2015

TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. STANDARD FOR REVIEW ............................................................................................. 2 III. DISCUSSION ..................................................................................................................... 3 A. The Petition Fails to Meet the Standards for Interlocutory Review ....................... 3 B. The Commission Should Not Take Review of the Boards Decision Regarding Proposed Contention A ......................................................................... 4

1. Background ................................................................................................. 4

2. The Licensing Boards Decision ................................................................. 5

3. Petition for Review ..................................................................................... 6 C. The Commission Should Not Take Review of the Boards Decision Regarding Proposed Contention C........................................................................ 13

1. Background ............................................................................................... 13

2. The Licensing Boards Decision ............................................................... 13

3. The Petition for Review ............................................................................ 15 IV. CONCLUSION ................................................................................................................. 22 i

TABLE OF AUTHORITIES Page JUDICIAL DECISIONS Citizens Against Burlington v. Busey, 938 F.2d 190 (D.C. Cir. 1991) .................................................................................................10 City of Grapevine v. Dept of Transp.,

17 F.3d 1502 (D.C. Cir. 1994) .................................................................................................10 Envtl. Law & Policy Center v. NRC, 470 F.3d 676 (7th Cir. 2006) ...................................................................................................10 Natural Resources Defense Council v. Hodel, 865 F.2d 288 (D.C. Cir. 1988) .................................................................................................18 Robertson v. Methow Valley Citizens Council, 496 U.S. 332 (1989) .................................................................................................................20 ADMINISTRATIVE DECISIONS Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1 (2002) ..........................................................................21 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-08-2, 67 NRC 31 (2008) ...........................................................................3 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529 (2009).....................................................................18 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 (2010)...................................................14, 15, 18, 20 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39 (2012) .........................................................................15 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012).....................................................................14 First Energy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),

LBP-11-13, 73 NRC 534 (2011) ..............................................................................................18 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),

CLI-12-08, 75 NRC 393 (2012).....................................................................................5, 10, 14 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 NRC 3 (2001)...................................................................................................16 ii

Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174),

CLI-01-4, 53 NRC 31 (2001)...................................................................................................10 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-05, 75 NRC 301 (2012).....................................................................................5, 10, 20 Pacific Gas and Electric Co. (Diablo Canyon Power Plant, Units 1 and 2),

CLI-11-11, 74 NRC 427 (2011)...............................................................................................20 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-1, 61 NRC 160 (2005).................................................................................................12 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-943, 33 NRC 11 (1991) .................................................................................................3 STATUTES AND REGULATIONS 10 C.F.R. § 2.309 .....................................................................................................................18, 19 10 C.F.R. § 2.341 .......................................................................................................1, 2, 3, 4, 6, 15 10 C.F.R. § 50.54 ...................................................................................................13, 14, 15, 17, 22 10 C.F.R. § 51.53 .......................................................................................................................4, 16 FEDERAL REGISTER NOTICES 60 Fed. Reg. 22461 (May 8, 1995) ................................................................................................16 61 Fed. Reg. 28467 (June 5, 1996) ..................................................................................................7 MISCELLANEOUS NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants (June 2013) ............................................................................. passim Regulatory Guide 4.2, Supplement 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, Revision 1, June 2013 .......................................9 Report on the Analysis of the Shoreline Fault Zone, Central Coastal California: Report to the U.S. Nuclear Regulatory Commission (January 2011) (ADAMS Accession No. ML110140431) .................................................................................................................17 PG&E Letter DCL-15-027, Enclosure 2, Attachment 1, Update to the Diablo Canyon Power Plant License Renewal Application, dated February 25, 2015 (ADAMS Accession Nos. ML15056A741 and ML15056A755) ...............................................................4 iii

PG&E Letter DCL-15-035, Response to NRC Request for Information Pursuant to 10 CFR 50.5(f) Regarding the Seismic Aspects of Recommendation 2.1 of the Near-Term Task Force Review of Insights From the Fukushima Dia-Ichi Accident: Seismic Hazard and Screening Report, dated March 11, 2015 (ADAMS Accession No. ML15071A046) .......................................................................................................................13 iv

October 9, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

APPLICANTS RESPONSE TO PETITION FOR REVIEW I. INTRODUCTION In accordance with 10 C.F.R. § 2.341(b)(3), Pacific Gas and Electric Company (PG&E) responds to the San Luis Obispo Mothers for Peace (SLOMFP) Petition for Review of the Licensing Boards Memorandum and Order (Denying Motions to File New Contentions),

dated August 6, 2015.1 SLOMFP seeks interlocutory review of the portion of the Boards decision that found proposed Contentions A and C to be inadmissible. PG&E opposes the Petition for Review.

Commission rules do not permit an interlocutory appeal for an order denying admission of a contention where the order neither wholly denies nor grants a request for a hearing, except in limited circumstances not addressed by SLOMFP. This alone is reason to deny the Petition. However, SLOMFPs petition also fails to demonstrate a substantial question for review considering the standards in 10 C.F.R. § 2.341(b)(4). The Petition presents neither a significant question or law or policy nor evidence of any clear legal or factual error in the Licensing Board decision. The Board decision was grounded in longstanding and well-1 San Luis Obispo Mothers for Peaces Petition for Review of Memorandum and Order (Denying Motions to File New Contentions), dated September 14, 2015 (Petition).

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established Commission precedent addressing the admissibility of environmental contentions.

The Board correctly cited and applied Commission precedent, NRC regulations, and the National Environmental Policy Act (NEPA) in denying SLOMFPs contention challenging the discussion of energy alternatives in PG&Es Environmental Report (ER). SLOMFP did not identify any reasonable alternative to Diablo Canyon license renewal that was not already considered in the ER. SLOMFP also failed to present an admissible Severe Accident Mitigation Alternative (SAMA) contention. SLOMFP presented no information to suggest that use of other assumptions or seismic models would change the outcome of the cost-benefit evaluation for SAMA candidates. The Petition for Review should be denied.

II. STANDARD FOR REVIEW Under 10 C.F.R. § 2.341(f)(2), the Commission may, in its discretion, grant a partys request for interlocutory review of a Board decision only if the party seeking review demonstrates that the issue for which it seeks review:

(i) threatens the party with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officers final decision; or (ii) affects the basic structure of the proceeding in a pervasive or unusual manner.

Under 10 C.F.R. § 2.341(b)(4), the Commission may, in its discretion, grant a petition for review of a full or partial initial decision, giving due weight to the existence of a substantial question with respect to the following considerations:

a finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; a necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; a substantial and important question of law, policy or discretion has been raised; 2

the conduct of the proceeding involved a prejudicial procedural error; or any other consideration which the Commission may deem to be in the public interest.

As discussed below, SLOMFP in its Petition has not met the standards for either review of an interlocutory decision or discretionary review of a partial or final decision.

III. DISCUSSION A. The Petition Fails to Meet the Standards for Interlocutory Review As a general rule, only final Licensing Board decisions are appealable to the Commission. The test for finality is a practical one. A Board action is final when it either disposes of a major segment of a case or terminates a partys right to participate. Rulings that do neither are interlocutory.2 Here, SLOMFP is already a party and there is one contention still pending before the Board, Contention EC-1.3 As a result, the Board decision denying admission of Contentions A and C does not dispose of a major portion of the case or terminate SLOMFPs right to participate in the proceeding.

The Memorandum and Order is a routine decision on admissibility of new contentions. As the Commission repeatedly has noted, the mere potential for legal error in a contention admissibility decision is not a ground for interlocutory review. Such issues can be addressed through a normal petition for review after a full or partial initial decision.4 Because SLOMFP did not discuss the standards for interlocutory review in 10 C.F.R. § 2.341(f)(2) in the 2

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-943, 33 NRC 11, 12-13 (1991).

3 PG&E moved for summary disposition of Contention EC-1 on July 31, 2015. The NRC Staff supported the motion, while SLOMFP opposed it. The Licensing Board has not yet ruled on the motion.

4 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-08-2, 67 NRC 31, 35 (2008); 10 C.F.R. § 2.341(b).

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Petition citing only the review standards for partial or final initial decisions in 10 C.F.R.

§ 2.341(b)(4) there is no basis for granting interlocutory Commission review. The Petition for Review should be denied on this basis alone.

B. The Commission Should Not Take Review of the Boards Decision Regarding Proposed Contention A

1. Background On February 25, 2015, PG&E submitted an update to its ER, Chapter 7, Alternatives to the Proposed Action, Chapter 8, Comparison of Environmental Impacts of License Renewal With the Alternatives, and Section 9.2, Alternatives.5 As required by NRC regulations and the Generic Environmental Impact Statement for License Renewal,6 PG&E considered the relative environmental impacts of replacement generation for the 2,285 megawatts of baseload, low carbon electricity currently generated by Diablo Canyon.

Alternatives found to be reasonable and evaluated in the Revised ER include natural gas-fired generation, purchased power, a combination of generation sources (including renewables), and demand-side management/energy efficiency (DSM/EE).

SLOMFPs proposed Contention A asserted that the Revised ER is inadequate to satisfy NEPA and 10 CFR § 51.53(c)(2) because it does not evaluate a reasonable array of energy alternatives that either currently are commercially viable or will become so in the near 5

PG&E Letter DCL-15-027, Enclosure 2, Attachment 1, Update to the Diablo Canyon Power Plant License Renewal Application, dated February 25, 2015 (ADAMS Accession Nos. ML15056A741 and ML15056A755) (Revised ER).

6 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants, at Section 2.4 (June 2013) (2013 GEIS).

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term (i.e., within the next ten years).7 SLOMFP claimed that the ERs analysis is arbitrarily restricted by the outdated view that alternatives must provide baseload generation and that the Revised ER unreasonably rejects the prospect that renewable technology, energy efficiency, and operational capabilities will be available to replace Diablo Canyons baseload generation by the time the current operating licenses expire (in November 2024 and August 2025).8 SLOMFP asserted that the analysis is unreasonable because it ignores the dramatic developments in virtually every one of the individual technologies (solar, wind, battery storage, information and control technologies) that would allow a much more flexible approach, and selectively and incorrectly rejects the estimation of potential capacity available from alternative resources.9

2. The Licensing Boards Decision The Licensing Board concluded that SLOMFP failed to demonstrate the admissibility of Contention A. Citing Commission precedent from 2012 in Seabrook and Davis-Besse, the Board held that only alternatives that supply baseload power defined as energy intended to continuously produce electricity at or near full capacity, with high availability constitute reasonable alternatives to license renewal.10 The Board cited the same decisions in confirming that an ER need only discuss alternatives that will bring about the ends of the 7

San Luis Obispo Mothers for Peaces Motion to File New Contentions Regarding Adequacy of Environmental Report for Diablo Canyon License Renewal Application, dated April 6, 2015, at 2 (Motion).

8 Id. at 4-6.

9 Id.

10 Memorandum and Order at 8, citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC 301, 339 n.223, 342 (2012) and FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC 393, 397 (2012).

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proposed action, which in the case of PG&Es application is to supply baseload power.11 The Board explained that, in order for Contention A to be admissible, SLOMFP must present a plausible, adequately supported argument that alternatives PG&E failed to consider could supply sufficient baseload power to replace Diablo Canyons generating capacity at the time its operating licenses expire in 2024 and 2025. After addressing each basis presented in support of the proposed contention, the Board concluded that SLOMFP had failed to satisfy this standard and denied admission of Contention A.

3. Petition for Review SLOMFPs Petition for Review rests on an assertion that review is justified under 10 C.F.R. §§ 2.341(b)(4)(ii) and (iii) because the Boards decision raises a significant question of law and policy regarding the effect of the 2013 revision to the GEIS. SLOMFP claims that the ASLB erred by ruling that NRC precedents pre-dating the 2013 License Renewal GEIS including the Seabrook and Davis-Besse decisions allowed PG&E to confine its alternative energy analysis to alternative sources of baseload power rather than considering combinations of non-baseload renewable energy sources, energy efficiency and demand-side management.12 According to SLOMFP, the Board improperly relied on precedents that referenced the original 1996 License Renewal GEIS, which has now been superseded by a markedly different analysis in the revised 2013 License Renewal GEIS.13 SLOMFP claims that the revised GEIS effectively abandoned the NRCs previous determination that alternative energy sources must 11 Id. at 9.

12 Petition at 2-3; see also, supra, note 10.

13 Petition at 3.

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provide baseload power and that the energy sector is changing so rapidly it is no longer possible to reach generic conclusions about alternative energy sources.14 SLOMFPs Petition does not identify a substantial and important question of law or policy. There is nothing new or unusual about the Boards application of Commission precedent to SLOMFPs proposed Contention A, particularly where, as here, the reasoning underlying those earlier decisions is directly applicable to the present circumstances. SLOMFP ignores the purpose and need for the proposed action, misconstrues the discussion of energy alternatives in the 2013 GEIS, and fails to grapple with the logic of the Commission precedent on reasonable energy alternatives.

First, PG&Es ER follows the same methodology for assessing energy alternatives as that used by the NRC for every license renewal application to date. When it first adopted the Part 51 regulations for license renewal in 1996, the Commission stated that [t]he purpose and need for the proposed action (renewal of an operating license) is to provide an option that allows for power generation capability beyond the term of a current nuclear power plant operating license to meet future system generating needs, as such may be determined by State, utility, and, where authorized, Federal (other than NRC) decisionmakers.15 The 2013 GEIS has this same purpose and need.16 And, PG&Es ER explains that Diablo Canyon currently provides approximately 2,285 megawatts of baseload, low carbon electricity to 14 Id. at 3-4, citing 2013 GEIS at 1-30 to 1-31.

15 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 61 Fed. Reg. 28467, 28472 (June 5, 1996) (1996 Final Rule).

16 See 2013 GEIS at 1-16 (noting that the purpose and need for the proposed action is to provide an option that allows for power generation capability beyond the term of a current nuclear power plant operating license to meet future system generating needs, as such needs may be determined by State, utility, and, where authorized, Federal (other than NRC) decision-makers).

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PG&Es customers. The purpose of the proposed action (Diablo Canyon license renewal) is therefore to retain the option to operate Diablo Canyon to supply baseload generation.

Consistent with this purpose and need, PG&E considered only alternatives that could replace the baseload generation of Diablo Canyon during the license renewal term to be reasonable.17 This is a straightforward application of Part 51 and the GEIS and does not present an unusual or unique issue of law or policy warranting Commission review.

Second, contrary to SLOMFPs assertions, the 2013 GEIS does not abandon the NRCs previous determination that alternative energy sources may be limited to those that provide baseload power. In fact, it affirms it. The NRC in the 2013 GEIS again defines the purpose and need for the proposed action (issuance of a renewed license) as providing an option that allows for baseload power generation capability beyond the term of the current nuclear power plant operating license to meet future system generating needs.18 And, in discussing alternatives, the 2013 GEIS notes that [t]he amount of replacement power generated must equal the baseload capacity previously supplied by the nuclear plant and reliably operate at or near the nuclear plants demonstrated capacity factor.19 SLOMFP also references the 2013 GEIS for the proposition that the energy industry is changing so rapidly it is no longer possible to reach generic conclusions about the need for baseload power.20 However, SLOMFP misconstrues the content and context of the 17 Revised ER at 7.1-1.

18 2013 GEIS at 1-3 (emphasis added).

19 Id. at 2-18 (emphasis added); see also id. (The no-action alternative, unlike the other alternatives, does not expressly meet the purpose and need of the proposed action, as it does not provide a means of delivering baseload power to meet future electric system needs.) (emphasis added).

20 Petition at 3-4, citing 2013 GEIS at 1-30 to 1-31.

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NRCs discussion in the 2013 GEIS of developments in the energy sector. The 2013 GEIS in no way undermines the focus on alternatives that provide replacement baseload energy. The NRC did acknowledge that it is inevitable that rapidly evolving technologies will outpace information presented in the GEIS and notes that energy policies are evolving rapidly as well.21 But, this acknowledgement is in the context of understanding how evolving technologies and policies influence the determination as to whether an energy alternative is expected to become commercially viable on a utility scale and operational prior to the expiration of the reactors operating license and therefore reasonable.22 For example, the Revised ER describes how policies in the State of California and technological developments in energy storage influenced the selection of the renewable components of a reasonable combination alternative.23 But, consideration of the effects of technological and policy developments is not a repudiation of PG&Es stated objective of supplying baseload generation.24 There was no change in the 2013 21 2013 GEIS at 1-30 to 1-31.

22 Id. at 2-18; see also Regulatory Guide 4.2, Supplement 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, Revision 1, June 2013, at 52 (A reasonable alternative must be commercially viable on a utility scale and operational before the expiration of the reactors operating license or expected to become commercially viable on a utility scale and operational before the expiration of the reactors operating license.).

23 See, e.g., Revised ER at 7.2-4. PG&Es combination energy alternative includes a contribution from natural gas, wind (with storage), solar thermal and photovoltaic (with storage), geothermal, and demand-side management.

24 To the contrary, the NRC acknowledges that, especially for rapidly evolving renewable energy technologies and energy storage technologies, the GEIS discussion will quickly be out of date, but explains that alternative technologies will be evaluated on a site-specific basis for reliability (as a baseload power source), availability, resource requirements, environmental impact, and existing transmission infrastructure. 2013 GEIS at A-214 (emphasis added).

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GEIS on the need for replacement baseload generation, and therefore no important question of law or policy that would warrant granting SLOMFPs Petition.

Third, the Commissions analyses in Seabrook and Davis-Besse are fully consistent with the discussion in the 2013 GEIS and the Boards decision. Both Commission decisions rested on the well-established principle that the scope of alternatives to be considered in an environmental review under NEPA should take into account the goals of the project sponsor.25 Applying this precedent, the Commission gives substantial weight to the preferences of the applicant and/or sponsor.26 The Commission decisions in both Seabrook and Davis-Besse,27 as well as the Board decision below,28 rest on this general principle, not on an assessment of technological advances or changes in energy policy.

Lastly, SLOMFP claims that the Board erred when it excused PG&E from considering an all-renewables/efficiency/demand-side-management alternative because that 25 See Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991), cert.

denied, 502 U.S. 994 (1991) (explaining that [w]hen the purpose [of the proposed action] is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved) (citation and internal quotation marks omitted);

City of Grapevine v. Dept of Transp., 17 F.3d 1502, 1506 (D.C. Cir.), cert. denied, 513 U.S. 1043 (1994); accord Envtl. Law & Policy Center v. NRC, 470 F.3d 676, 683-84 (7th Cir. 2006).

26 Memorandum and Order at 9, citing Seabrook, CLI-12-05, 75 NRC at 339; see also Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 55 (2001).

27 See Seabrook, CLI-12-05, 75 NRC at 339, 343 (according substantial weight to the applicants purpose in seeking license renewal, which was to make available baseload power); Davis-Besse, CLI-12-08, 75 NRC at 402 (rejecting admissibility of contention seeking expanded alternative analysis of wind, either alone or in combination with solar and storage, as failing to adequately demonstrate the capacity to produce baseload power).

28 See Memorandum and Order at 9 (noting objective of providing baseload power).

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alternative is not PG&Es preference.29 According to SLOMFP, PG&E does not express any business preference for an alternative that includes natural gas, but instead states that any other alternative is not possible.30 SLOMFP again misstates both the ER discussion and the Board decision. The Board explained that, although PG&E recognized that demand-side management and energy efficiency programs are not a source of generation, [DSM/EE programs] were indeed considered in the updated Environmental Report and deemed a reasonable alternative.31 And, PG&E in fact considered demand-side management and energy efficiency to be a reasonable alternative.32 In this regard, there is no difference between PG&E and SLOMFP.

Moreover, the preference that SLOMFP refers to is not a preference for natural gas, but instead reflects Diablo Canyons purpose of providing baseload generation.33 SLOMFPs misreading of both the Board decision and PG&Es Revised ER does not support Commission review.

SLOMFP also alleges that Board overlooked substantial evidence of the viability and rapid growth of [renewable and DSM/EE] technologies provided by SLOMFP and complains that the Board effectively reached the merits by weighing Mr. Coopers supported opinions against the statements in the Amended Environmental Report, and by failing to credit 29 Petition at 5, citing Memorandum and Order at 9.

30 Id.

31 Memorandum and Order at 9.

32 Revised ER at 7.2-6; id. at Table 8-1; Tr. at 850-855 (discussing the ERs conclusion that efficiency and demand-side management, standing alone, is a reasonable alternative to license renewal, not just as part of a combination alternative).

33 Compare Memorandum and Order at 9 (describing the purpose of the proposed action as baseload generation based on the applicants objectives) to Petition at 5 (arguing that Board refused to consider renewables/efficiency/demand-side management alternatives because PG&E expressed a preference for an alternative that include natural gas).

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Mr. Coopers expert opinion.34 But, it is of course the Boards responsibility to assess the factual basis for a proposed contention in the first instance, including an evaluation of the contention against the admissibility criteria. SLOMFP does not identify any material factual determination that was clearly erroneous, nor does SLOMFP attempt to show that it had in fact met the standards for an admissible energy alternative contention. In any event, the Board acknowledged the information and expert opinion provided by Mr. Cooper regarding expected technological advances in, among other things, wind, solar, and battery storage technologies, but concluded that this information was not evidence that these technologies will be commercially available and practicable to replace the baseload power provided by Diablo Canyon by 2024 or 2025.35 Because SLOMFP failed to present an alternative that could replace the baseload generation of Diablo Canyon at the end of license renewal term, the Board properly concluded that Contention A was inadmissible.36 34 Petition at 5.

35 Memorandum and Order at 11 (emphasis added); see also id. at 12.

36 Although the Licensing Board did not need to reach the issue because it found proposed Contention A to be inadmissible, the proposed contention also was untimely. The ER has, since it was initially filed, defined the reasonable alternatives to license renewal as alternatives that could replace the baseload capacity provided by Diablo Canyon. In this regard, there is no change in the Revised ER. SLOMFP could have challenged the scope of alternatives at the outset of the proceeding, or at least as long ago as publication of the 2013 GEIS. The Commission is free to affirm a Board decision on any ground finding support in the record, whether previously relied on or not. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 (2005).

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C. The Commission Should Not Take Review of the Boards Decision Regarding Proposed Contention C

1. Background PG&Es February 2015 Revised ER included an updated SAMA analysis for license renewal.37 Proposed Contention C was a challenge to the SAMA analysis. First, SLOMFP asserted that the updated SAMA analysis was inadequate with respect to seismic hazards because it was interim in nature. PG&E had not yet incorporated into the SAMA evaluation the updated probabilistic seismic hazard for Diablo Canyon as reported by PG&E in March 2015 as part of the post-Fukushima 10 C.F.R. § 50.54(f) seismic reevaluation.38 Second, SLOMFP challenged the adequacy of the Section 50.54(f) seismic reevaluation to support the February 2015 updated SAMA evaluation. Based on the views of its consultant, Dr. David Jackson, SLOMFP challenged the methodology and conclusions of PG&Es Seismic Hazard Report. SLOMFP did not challenge any specific aspect of the February 2015 updated SAMA evaluation, identify any additional SAMA to be considered, or argue that any particular SAMA would be cost-beneficial as a result of Dr. Jacksons arguments.

2. The Licensing Boards Decision The Board rejected proposed Contention C. The Board correctly noted at the outset that [t]he purpose of SAMA analyses is to identify safety enhancements that would be 37 The updated SAMA analysis is Attachment F to the Revised ER.

38 PG&E Letter DCL-15-035, Response to NRC Request for Information Pursuant to 10 CFR 50.5(f) Regarding the Seismic Aspects of Recommendation 2.1 of the Near-Term Task Force Review of Insights From the Fukushima Dia-Ichi Accident: Seismic Hazard and Screening Report, dated March 11, 2015 (ADAMS Accession No. ML15071A046)

(Seismic Hazard Report).

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cost beneficial to adopt.39 Further, [a]lthough a SAMA analysis considers safety issues, it is in actuality an environmental review that must be judged under NEPAs rule of reason and not under the safety requirements of the Atomic Energy Act.40 And, [i]n determining whether a SAMA contention such as Contention C is admissible, the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA.41 Against these standards, established by Commission precedent, the Board gave three reasons for rejecting proposed Contention C:

PG&Es seismic reevaluation submitted as part of the Section 50.54(f) process (i.e., the Seismic Hazard Report) was developed in a Part 50 process. A challenge to that seismic reevaluation cannot be litigated in a Part 54 license renewal proceeding.42 SLOMFPs contention did not show that the approach taken by PG&E

[in the SAMA evaluation] is not plausibly reasonable.43 SLOMFPs basis for a SAMA contention was therefore inadequate to demonstrate a genuine dispute on a material issue. The Board noted, but did not necessarily rely upon, the fact that Dr. Jacksons views were considered during the seismic hazards reevaluation process workshops conducted in developing the Seismic Hazard Report.44 Contention C never addresses the potential impact of any particular seismic model changes on the cost benefit evaluation of the SAMAs that 39 Memorandum and Order, slip op. at 15, citing Entergy Nuclear Generation Co. &

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 290-91 (2010), pet. for reconsid. denied, CLI-10-15, 71 NRC 469 (2010).

40 Id., citing Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 706-07 (2012).

41 Id. at 16, citing Davis-Besse, CLI-12-08, 75 NRC at 406.

42 Id.

43 Id., citing Pilgrim, CLI-12-15, 75 NRC at 714.

44 Id. at 16-17.

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PG&E considered.45 Without some plausible demonstration of why a different methodology would material affect the conclusions of the SAMA analysis, the contention cannot be admitted under Commission precedent.46 The Board further noted that proposed Contention C was premature insofar as it alleged deficiencies in the 2015 seismic analysis that had not yet even been incorporated in PG&Es SAMA analysis.47

3. The Petition for Review SLOMFP argues that Commission review is justified under 10 C.F.R.

§§ 2.341(b)(4)(i) and (ii) because the Board purportedly made clear factual and legal errors by ignoring and mischaracterizing the claims of the contention, and by applying erroneous legal standards by which it impermissibly judged the merits of the contention.48 But the Board did no such thing. The Board applied NRC regulations on the scope of license renewal reviews under 10 C.F.R. Part 54 to distinguish safety issues that are being addressed under the Part 50 oversight process (i.e., the Seismic Hazard Report and further seismic reevaluations for Diablo Canyon under 10 C.F.R. § 50.54(f)). And, with respect to the SAMA analysis that is part of the NEPA environmental review, the Board applied the Commissions precedent on the scope and admissibility of proposed SAMA contentions. The Board did not prejudge the merits; it applied the NRCs threshold admissibility criteria for contentions to determine that the attack on the 45 Id. at 17, citing Pilgrim, CLI-10-11, 71 NRC at 291.

46 Id., citing Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39, 57-58 (2012).

47 Id. at 17, n. 75. The first aspect of proposed Contention C is now moot. PG&E has submitted a further revised SAMA evaluation addressing the results of the March 2015 Seismic Hazards Report. As SLOMFP notes, it has also filed an amended proposed Contention C that remains before the Board. Petition at 6, n. 5.

48 Id. at 6.

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Seismic Hazard Report was inadequate to demonstrate a genuine dispute with PG&Es updated SAMA analysis and conclusions.

Focusing on the first of the Boards three points, SLOMFP argues that the Board has violated NEPA by restricting, without statutory basis, the scope of NEPA to exclude consideration of relevant information about environmental risk.49 SLOMFP cites generic cases holding that NEPA applies to NRC reviews and that the environmental review under NEPA is distinct from the safety review under the Atomic Energy Act. But those propositions are non-controversial. Here, the Board did not conclude that the environmental review was constrained by the scope of the Part 54 safety review. The Board concluded only that [i]nsofar as Contention C alleges deficiencies in [the] seismic reevaluation per se, the issue is a Part 50 safety issue to be addressed in a Part 50 process under the current operating license. This is fully consistent with the scope of issues defined in 10 C.F.R. Part 54 and the environmental review required under 10 C.F.R. Part 51 for license renewal. The license renewal regulations expressly exclude issues related to the Current Licensing Basis (CLB) of the plant.50 The CLB is effectively addressed and maintained by ongoing agency oversight, review, and enforcement in the current operating license term.51 The environmental regulations do require a SAMA evaluation under Section 51.53(c)(3)(ii)(L). The admissibility of the contention must be considered in that context, based on the scope of material issues, the admissibility threshold to be met for SAMA contentions, and applicable NEPA standards.

49 Id. at 7.

50 Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22461, 22463-64 (May 8, 1995).

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

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SLOMFP asserts, in effect, that it does not want to litigate the safety issue.

Instead, it wants to challenge the adequacy of the SAMA analysis by challenging the Seismic Hazard Report and its predicate because its concerns relate to the reliability of inputs to the SAMA Analysis concerning the characteristics and severity of the earthquake risk posed by Diablo Canyon.52 PG&E does not dispute that the contention is an environmental contention.

But SLOMFPs argument ignores two crucial facts relevant to its environmental challenge.

First, the SAMA analysis being challenged in proposed Contention C did not incorporate the March 2015 seismic hazard as developed in the Section 50.54(f) process.53 Proposed Contention C challenged PG&Es updated SAMA analysis submitted on February 25, 2015. That update incorporated information on probabilistic hazards developed as part of PG&Es 2011 Shoreline Fault Report.54 Accordingly, the Seismic Hazard Report was not an input to the SAMA analysis at least not at that time (February 2015). SLOMFP and Dr.

Jackson do not address the Shoreline Fault Report much less any deficiencies in that report (such as the reliability of inputs to that report) that could be germane to PG&Es SAMA results.

Second, and more importantly, SLOMFP ignores the standard articulated by the Commission and cited by the Board for the materiality and admissibility of SAMA contentions. A SAMA analysis is, as SLOMFP recognizes, part of a NEPA review. It is, as the 52 Petition at 7.

53 PG&E address the impact of the revised seismic hazards in a subsequent update, submitted on July 1, 2015. That submittal led to amended proposed Contention C that is still before the Board.

54 Report on the Analysis of the Shoreline Fault Zone, Central Coastal California: Report to the U.S. Nuclear Regulatory Commission (January 2011) (ADAMS Accession No. ML110140431) (Shoreline Fault Report).

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Board recognized, therefore subject to a standard of reasonableness.55 NRC hearings on NEPA issues are not [Environmental Impact Statement] editing sessions.56 For a SAMA contention to be admissible the Board correctly recognized that a SAMA contention must ultimately demonstrate a dispute that could lead to a different conclusion on potential cost-beneficial SAMAs.57 In previous guidance to a Board with respect to SAMA contentions, the Commission emphasized that the petitioner must show that [u]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety enhancements are cost-effective to implement.58 SLOMFP and Dr. Jackson had nothing to say about the SAMA issue.

Proposed Contention C on its face therefore does not address a material license renewal issue; it does not raise an issue that could lead to meaningful relief in this proceeding. The Board made exactly this point in its second and third reasons for rejecting the contention. There was no error of fact or law.

55 See, e.g., Natural Resources Defense Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir.

1988) (NEPA should be construed in the light of reason, and does not demand infinite study and resources).

56 Memorandum and Order, slip op. at 15, citing Entergy Nuclear Generation Co. &

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 533 (2009).

57 Pilgrim, CLI-09-11, 69 NRC at 533.

58 Pilgrim, CLI-10-11, 71 NRC at 315 (emphasis added). The Commission in Pilgrim was reviewing a Board decision dismissing a contention on summary disposition.

Nonetheless, the guidance with respect to SAMA contentions is generic with respect to materiality of a SAMA contention and would apply at any stage of a proceeding. The Commissions regulations defining the threshold for an admissible contention specifically require that a contention address a material issue in the proceeding. 10 C.F.R.

§ 2.309(f)(1)(iv); see also First Energy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, 73 NRC 534, 566 (2011).

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SLOMFP argues that the Board committed clear legal and factual errors in judging the adequacy of Contention C to meet NRC admissibility standards for SAMA contentions.59 SLOMFP maintains that it provided specific and well-supported criticisms of the data and methods relied on by PG&E for its earthquake risk estimates.60 But, even putting aside the fact that PG&E did not use the Seismic Hazard Report data in the challenged SAMA update, SLOMFP did not provide any specific criticism of the SAMA analysis data, methods, or conclusions. The NEPA SAMA analysis is what is relevant here; not the CLB Seismic Hazard Report. And SLOMFP attacked the latter, not the former. SLOMFPs challenge, therefore, was to the Part 50 issue that is expressly excluded from Part 54. SLOMFPs failure to show a nexus between the CLB Seismic Hazard Report and the relevant NEPA analysis that is, the reasonableness of PG&Es conclusions regarding SAMAs is precisely why the contention fails to demonstrate a genuine dispute on a material environmental issue.

SLOMFP suggests that the Board erred because it devised and applied a new, additional standard for admissibility of Contention C that impermissibly reached the merits of the contention: whether or not the SAMA Analysis was plausibly reasonable.61 However, the Board actually applied the standards for materiality and admissibility of SAMA contentions that the Commission has articulated. The Commission precedent provides specific guidance for Boards to apply in deciding (under 10 C.F.R. § 2.309(f)(1)(vi)) whether a proposed SAMA contention and its bases demonstrate a genuine dispute on a material issue. As for the plausibly 59 Petition at 8.

60 Id.

61 Id. at 9.

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reasonable standard, that standard plainly derives from well-known NEPA caselaw.62 SLOMFP characterizes the Boards decision as reaching the merits question the reasonableness of the SAMA analysis.63 In fact, the Board was assessing whether SLOMFP had actually provided any information directed to PG&Es SAMA analysis that would give rise to a dispute as to the reasonableness of that analysis. SLOMFP did not make a connection in its proposed contention and bases between Dr. Jacksons issues and the SAMA analysis, and therefore failed to meet the threshold for an admissible contention.

In its Petition (at 10-11) SLOMFP provides a summary of Dr. Jacksons points as raised to the Board. But this merely reiterates the same points considered by the Board.

SLOMFP still focuses on the Seismic Hazard Report with no reference to the SAMA analysis.

SLOMFP still is missing an element of a claim that is necessary for admissibility of a contention.

Citing a prior Commission decision in this case, SLOMFP claims that criticisms of the details of a SAMA analysis are not required where a contention asserts that significant information or inputs have been omitted from the analysis as a whole.64 But here it is not a matter of SLOMFPs failure to provide criticisms of the details of the SAMA analysis. It is SLOMFPs failure to address the SAMA analysis at all. In that failure, the proposed contention crosses over 62 See, e.g., Robertson v. Methow Valley Citizens Council, 496 U.S. 332, 352 (1989).

(NEPA requires no more (or less) than a reasonably complete discussion of possible mitigation measures.); see also Seabrook, CLI-12-05, 75 NRC at 323 ([U]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions and models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis.); Pilgrim, CLI-10-11, 71 NRC at 317 (same).

63 Petition at 9.

64 Id. at 10, citing Pacific Gas and Electric Co. (Diablo Canyon Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 442-43 (2011).

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from a contention challenging an environmental review issue to a contention challenging a Part 50 safety issue beyond the scope of the proceeding.

In an earlier Commission decision in this proceeding, CLI-11-11, the Commission addressed admissibility of Contention EC-1. Contention EC-1 also is a SAMA contention. The Commission rejected PG&Es argument at that time that the contention should not have been admitted because the basis for the contention lacked information on implementation costs and benefits. The Commission explained its prior decision in McGuire/Catawba,65 and observed that it does not follow that in every proceeding in which a SAMA-related contention is filed, the contention must be supported in exactly the same way (that is, with information on costs or benefits of a challenged SAMA). But neither the decision in McGuire/Catawba nor the prior decision in this case undercuts precedent on SAMA contentions requiring some basis that challenges the SAMA analysis itself. In McGuire/Catawba, the Commission explained that the admitted contention in that case cited a specific deficiency in the SAMA analysis a failure to consider the results of a specific study.66 And, Contention EC-1 alleged a failure to consider the then-newly-discovered Shoreline Fault in the original SAMA analysis. But here, even assuming that the Seismic Hazard Report is faulty and unreliable as Dr. Jackson claims, proposed Contention C never addressed specific impacts on the SAMA analysis or how the SAMA results are unreasonable.67 65 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 11-12 (2002).

66 McGuire/Catawba, CLI-02-17, 56 NRC at 9-10.

67 SLOMFP also cites Davis-Besse, CLI-12-18, 75 NRC 393. In that case the Commission upheld admissibility of some portions of a SAMA contention and rejected others. Id. at 406-418. Suffice it to say, the admitted portion of the contention specifically addressed a SAMA methodology (i.e., use of the MAAP code). The Commission rejected other portions of the contention because they lacked sufficient basis to demonstrate a genuine 21

The Board correctly observed, as noted above, that Dr. Jacksons views on seismic hazards in the region of Diablo Canyon were considered in the process involved in responding to the Section 50.54(f) letter a process defined in the Section 50.54(f) letter itself.

SLOMFP finds this to be impermissible at this stage of the proceeding, a shift in the burden of proof from PG&E to SLOMFP.68 But SLOMFP reads too much into the Boards point. The Board is merely highlighting that the issues being raised not only can be, but have been, raised in a Part 50 process. This demonstrates the true nature of Dr. Jacksons issues; they are CLB issues. Dr. Jacksons views on the adequacy of the CLB do not need to be shoe-horned into an environmental contention in this proceeding in order to be heard and considered for regulatory purposes.

At bottom, the Board made an appropriate threshold determination on the admissibility of a proposed SAMA (environmental) contention. The Board assessed the nature of the contention, constrained it to the relevant environmental issues in this case, and then applied Commission precedent to determine that the contention failed to demonstrate a genuine dispute on a relevant (SAMA) issue. The Board did not err in any factual finding, in identifying the correct legal standard and Commission precedent, or in applying that standard and precedent.

IV. CONCLUSION For the above reasons, the Commission should deny the Petition for Review.

SLOMFPs proposed contentions are not admissible in this license renewal proceeding.

dispute that is, they failed to identify a plausible impact on the licensees SAMA analysis. Id. at 416, 418.

68 Id. at 8-9. SLOMFP glibly dismisses the senior seismic experts involved in the consensus process under 10 C.F.R. § 50.54(f) as PG&Es paid consultants. This is an unnecessary and unfair attack on the integrity of the experts. Experts engaged in the process are not expected, by PG&E or NRC, to work pro bono.

22

Respectfully submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Executed in accord with 10 C.F.R. 2.304(d)

Jennifer Post Pacific Gas and Electric Company 77 Beale St., B30A San Francisco, CA 94105 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY Dated at Washington, District of Columbia this 9th day of October 2015 23

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANTS RESPONSE TO PETITION FOR REVIEW in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 9th day of October 2015, which to the best of my knowledge resulted in transmittal of the foregoing to those on the EIE Service List for the captioned proceeding.

Respectfully submitted,

/s/ signed electronically by David A. Repka Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY 1

SF:395829.1