ML15057A618

14-1213 Respondents Motion to Defer Briefing Schedule

ML15057A618
Person / Time
Site:	Diablo Canyon
Issue date:	02/26/2015
From:	Mullins C E NRC/OGC
To:	US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
Creedon, Meghan
References
Download: ML15057A618 (62)

Text

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

. ________ RESPONDENTS' MOTION TO DEFER BRIEFING SCHEDULE JOHN C. CRUDEN ANDREW P. AVERBACH Assistant Attorney General Solicitor THEKLA HANSEN

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

-young@usdoj.gov February 26, 2015 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 1 of 12 (Page 1 of Total)

INTRODUCTION Pursuant to Rule 27, Fed. R. App. P., Respondents U.S. Nuclear Regulatory Commission ("NRC" or "Commission

")1 and the United States of America hereby move this Court to defer briefing in this case and hold the case in abeyance until the Commission completes proceedings on the hearing request filed by Petitioner Friends of the Earth ("FOE") and now pending before the agency. Pursuant to Circuit Rule 27(h)(2), the undersigned has consulted with other counsel in this case as to whether they consent to or oppose the granting of this motion. Counsel for Petitioner FOE has advised that FOE does not consent to this motion and will oppose it. Counsel for intervenor Pacific Gas & Electric ("PG&E") has advised that PG&E consents to the motion.

BACKGROUND FOE bases its Petition for Review on its assertion that the NRC has taken a regulatory action that requires the agency to provide an opportunity for a hearing under the Atomic Energy Act. Specifically, FOE claims that the NRC "approved" a change to the Final Safety Analysis Report ("Safety Report") of the Diablo Canyon Nuclear Power Plant. That change was contained in Revision 21 to the Safety Report, which was filed by PG&E in 2013. FOE claims that Revision 21 constitutes a "de facto" license amendment, which in turn requires the agency to

1 This motion will use "NRC" for the agency as a whole and "Commission" for the 5-member body that manages the agency.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 2 of 12 (Page 2 of Total) 2 hold a hearing on the change under section 189a(1)(A) of the Atomic Energy Act, 42 U.S.C. 2239(a)(1)(A). See Petition for Review (Oct. 28, 2014) (Exhibit 1) at 1

Petitioner's Docketing Statement (Dec. 1, 2014) (Exhibit 2) at 1 [sic]; Petitioner's Certificate as to Parties, Rulings, and Related Cases (Exhibit 3) (Dec. 1, 2014) at 1. Respondents moved to dismiss this case both for lack of final agency action and on ripeness grounds, noting that FOE had raised the exact same issue in a hearing request pending before the Commission. On February 20, 2015 a Motions Panel of this Court (Henderson, Srinivasan, and Pillard, per curiam) ordered that Respondents' Motion to Dismiss "be referred to the merits panel to which the petition for review is assigned."

Order in this Docket (Feb. 20, 2015) at 1. The panel also instructed the Clerk "to calendar this case for presentation to a merits panel." Id. B ut requiring the Commission's lawyers to prepare a merits brief on the issue of whether there has been a de facto license amendment in this case places the Commission's lawyers in the seemingly untenable position of preparing a merits argument before the ir client adopts a position on the issue in dispute. The issue of whether Revision 21 to the Safety Report constitutes a de facto license amendment (or whether there has been a de facto license amendment generally) is now pending in an adjudicatory proceeding before the Commission, which has not yet issued a final decision on those issues. Thus , while the Commission's lawyers USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 3 of 12 (Page 3 of Total) 3 will be able to present jurisdictional

-type arguments, it is not clear how they can present a merits argument to support a non

-existent Commission position , i.e., whether the underlying facts in this case constitute a de facto license amendment. Accordingly, as more fully explained below, we respectfully request that this Court defer briefing and hold this case in abeyance pending the Commission issuing a final decision on whether a de facto license amendment to the Diablo Canyon Safety Report has occurred

, requiring an opportunity for a hearing. ARGUMENT I. Until the Commission Issues a Final Decision on FOE's Hearing Request , There Is No Agency Positon for Its Attorney s to Defend. 1. Respondents recognize at the outset that this Court has declined to rule on our Motion to Dismiss. We do not challenge the Court's decision or seek to revisit the issues raised in our motion. But this Court has directed the Clerk to schedule the case for a merits briefing, which leaves the Commission's attorneys in a quandary. Separate and apart from whether the Commission has issued a final order that would support jurisdiction under the Hobbs Act, 28 U.S.C. § 2341 et seq., the Commission's attorneys do not have a Commission position to defend with respect to the merits of FOE's complaint

- that the Diablo Canyon licenses have been effectively amended

- as more fully demonstrated below. 2. The basis for the Petition for Review is indisputably included within the arguments FOE has raised before the Commission. This lawsuit challenges "the USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 4 of 12 (Page 4 of Total) 4 final order of the United States Nuclear Regulatory Commission ("NRC") approving Revision 21 to the [Safety Report]

for Diablo Canyon Units 1 & 2 without the required license amendment proceeding."

Petition for Review (Exhibit 1) at 1. And FOE's Non-Binding Statement of the Issues (Dec. 1, 2014) (Exhibit 4) identifies the issues before this Court as whether the NRC (1) "in failing to provide notice to the public of Revision 21 . . . and an opportunity for a hearing on the same, deprived [FOE] of its hearing rights in a license amendment proceeding[,]" and (2) "acted contrary to law by approving Revision 21 . . .

without the required opportunity for a hearing in a license amendment proceeding."

Id. at 1-2; see also Petitioner's Docketing Statement (Exhibit 2) at 1 [sic] ("The final agency action under review is the Nuclear Regulatory Commission's approval of Revision 21 . . . without the required license amendment proceeding.

"); Petitioner's Certificate as to Parties, Rulings, and Related Cases (Exhibit 3) at 1 (same). But FOE has raised those exact same issues before the Commission. For example, FOE contends in its administrative hearing request "that NRC has de facto amended the license s for Diablo Canyon through Revision 21 to the [Safety Report] and continues to engage in a de facto license amendment proceeding." FOE's Reply to NRC Staff's and Pacific Gas & Electric Company's Answers and Proposed Amicus Curiae Nuclear Energy Institute's Brief in Response to Petition USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 5 of 12 (Page 5 of Total) 5 to Intervene and Request for Hearing (Oct. 14, 2014) (Exhibit 5) at 11. FOE then submits an extensive argument that Revision 21 changed the seismic design bases of the facility, that those changes require a license amendment, and that the NRC's "approval" of Revision 21 constituted a de facto license amendment. Id. at 12-19. In fact, two of the major headings in this section of the pleading are "[] Revision 21 Requires a License Amendment," id. at 14, and "The NRC's Approval of Revision 21 Is A De Facto License Amendment."

Id. at 17.

There is simply no escape from the fact that the claims made in this lawsuit are identical to claims pending before the Commission. 3. When defending an agency decision, agency counsel can only argue those grounds upon which the agency relied in reaching its decision. For example, the Supreme Court once vacated and remanded a case in which agency counse l prevailed by arguing grounds not relied upon by the agency. See Philadelphia Gas Works v. FERC, 989 F.2d 1246, 1250 (D.C. Cir. 1993)

(citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)

). Thus, in responding to FOE's claim that a de facto license amendment has occurred, the Commission's lawyers may only advance arguments that the Commission has adopted when responding to that claim. But here the Commission has not issued a decision on whether Revision 21 constitutes a de facto amendment to the Diablo Canyon licenses or whether a de facto license amendment has occurred for other reasons contained in FOE's USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 6 of 12 (Page 6 of Total) 6 hearing request before the Commission. Instead, the Commission is still considering whether Revision 21

, and any associated decision by the NRC Staff to "accept" Revision 21 with its changes to the Diablo Canyon Safety Report

, constitutes a de facto license amendment.

As the Commission's attorneys may only defend the Commission's decision based on the rationale adopted in the Commission

's decision (and based on the administrative record), the Commission's attorneys will find it difficult to take a position

- much less provide the requisite level of analysis necessary to defend that position

- on the highly complex question under consideration, i.e., whether the factual circumstances presented constitute a de facto license amendment.

4. It is true that the NRC Staff has filed a pleading before the Commission arguing that the change to the Safety Report does not constitute a de facto license amendment. But the NRC Staff does not speak for the Commission, which is the ultimate arbiter of adjudicatory issues before the agency. Instead, the NRC Staff is a separate and independent party to the agency adjudication. Obviously, when it sits in its adjudicatory capacity, the Commission has the authority to overrule the NRC Staff's position. Should it do so, the Commission's attorneys must represent the Commission's position, not the NRC Staff's position.

Moreover , i f the Commission's attorneys present the NRC Staff's position (or PG&E's position) to the Court as the Commission's position, they will be USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 7 of 12 (Page 7 of Total) 7 usurping the Commission's prerogatives and denying FOE the benefit of the Commission's consideration. The same would hold true if the Commission's attorneys present FOE's position to the Court as the Commission's position (which would deny PG&E the benefit of the Commission's consideration). And in both cases th e information that the Commission's attorneys would provide would not assist the Court because the Commission would not have adopted either position.

II. Suspension of the Briefing Schedule Will Not Harm Petitioner.

1. Petitioner FOE will not be harmed by deferring briefing. First, it has not asked this Court to stay operation of the Diablo Canyon facility based on the threat of any damage from a posited earthquake on the faults described in the Safety Report and in other documents referenced by FOE. Thus, FOE has not claimed, much less demonstrated (including in response to our motion to dismiss), any clear threat to public health and safety that necessitate s immediate action by this Court on its hearing request. And by referring Respondents' motion to the merits panel ,

this Court has eliminated any fear that FOE will not have its day in court.

2. Second, deferring briefing will allow the Commission, which is the body to which Congress has given primary jurisdiction over the regulation of nuclear power, to determine whether the change in the Diablo Canyon Safety Report constitutes a change in the facility's license

s. That means that the technical expertise of the agency will be brought to bear on the issue. As the U.S. Court of USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 8 of 12 (Page 8 of Total) 8 Appeals for the Seventh Circuit pointed out recently in a case involving the Commission's oversight of decommissioning of nuclear facilities, not only is the Nuclear Regulatory Commission the designated policeman of decommissioners; its competence to assess the management of the complex, technologically sophisticated process of nuclear decommissioning exceeds that of state or federal judges, who are generalists.

Rulings on decommissioning, including rulings on the financial issues involved in decommissioning, are within the commission's primary jurisdiction.

Pennington v. Zion Solutions, LLC, 742 F.3d 715, 719 (7th Cir. 2014).

The same principle applies here. Whether the Commission resolves the matter itself or refers the matter to a panel of the Atomic Safety and Licensing Board, the Commission will apply the agency's technical competence to the issues involved in this case. Here, Revision 21 added information to the Diablo Canyon Safety Report about the relationship of several earthquake faults in the region of the facility. And FOE now claims before the Commission that the analysis of the relationship of these faults constitutes a change in the licensing basis of the facility , constituting a license amendment. Thus, instead of decommissioning (as in the Pennington case above), the relevant technical competence involves the "complex [and] technologically sophisticated process" of assessing the ground acceleration associated with a possible earthquake on one of the various faults in the Diablo Canyon region and the potential resulting impact on the Diablo Canyon facility itself. USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 9 of 12 (Page 9 of Total) 9 If this Court moves forward with this case, it will have to decide this complex technical issue on its own without the benefit of the Commission's application of its technical expertise (and without the benefit of the Commission's attorneys explaining and defending the position adopted by the Commission). But the issue of the relationship of these earthquake faults to the facility's licensing bases is an issue that is clearly within the primary jurisdiction of the Commission

, and this Court should allow the Commission to exercise its competence

, and fulfill its statutory obligation to protect the public health and safety, with respect to this matter. Once the Commission has issued a final decision on whether a de facto license amendment has occurred , its attorneys will be able to present a position on that issue. And indeed, it is possible that the Commission will resolve this matter in FOE's favor, obviating the need for a decision by this Court.

3. Moreover, even assuming arguendo that this Court proceeds with merits briefing and (ultimately) direct s the Commission to provide the opportunity f or a hearing, the Commission would be performing essentially the same function that it

is now performing in the adjudicatory proceeding that FOE has initiated.

The Commission would either review the issues raised by FOE itself or refer the m to a Licensing Board for review. Thus, deferral of the briefing schedule will not eliminate any hearing opportunity that FOE now possesses.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 10 of 12 (Page 10 of Total) 10 CONCLUSION For the foregoing reasons, this Court should defer issuance of a briefing schedule and hold this case in abeyance pending final resolution of FOE's Petition to Intervene and Request for Hearing now pending before the Commission.

Respectfully submitted, __s/Andrew P. Averbach___

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

-Young__ __s/Charles E. Mullins__

THEKLA HANSEN

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

-young@usdoj.gov February 26

, 201 5

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 11 of 12 (Page 11 of Total) 11 CERTIFICATE OF SERVICE I certify that on February 26, 2015, I filed Respondents' Motion to Defer Briefing Schedule in Case No. 14

-1213 with the U.S. Court of Appeals for the District of Columbia Circuit by filing it with the Court's CM/ECF system. That method is calculated to serve:

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

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

Thekla Hansen

-Young Attorney, Appellate Section

Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415, Ben Franklin Station Washington, D.C. 20044 Respectfully submitted, __s/Charles E. Mullins__

CHARLES E. MULLINS Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 415-1618 charles.mullins@nrc.gov USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 12 of 12 (Page 12 of Total)

EXHIBIT 1 RESPONDENTS' MOTION TO DEFER BREIFING SCHEDULE CASE NO. 14

-1213 (D.C. Cir.)

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 1 of 50 (Page 13 of Total)

MTEDSWEStOU1WBF11 f FOR DSIRCI OF COLUMBIA CIRCUiT H2o14 9LEDL82U1E1 U14ITED STATES COURT OF APPEAL CLERK RE'/ERTuE DISTRICT OF COLUMBIA CIR)FRIENDS OF THE EARTH))Petitioner,))V*No.1t12i3 UNITED STATES NUCLEAR)REGULATORY COMMISSION and)UNITED STATES OF AMERICA,))Respondents.

)PETITION FOR REVIEW Pursuant to§189 of the Atomic Energy Act, 42 U.S.C.§2239;28 U.S.C.§2341-2344;the Administrative Procedure Act, 5 U.S.C.§551 et seq.;Rule 15 of the Federal Rules of Appellate Procedure; and Circuit Rule 15, Friends of the Earth ("Petitioner")

hereby petitions the Court for review of the final order of the United States Nuclear Regulatory Commission

("NRC")approving Revision 21 to the Final Safety Analysis Report as Updated (FSARU)for Diablo Canyon Units 1&2 without the required license amendment proceeding, in violation of 42 U.S.C.§2239."Diablo Canyon Power Plant Units 1&2 FSAR Update, Revision 21, (Sep.2013)ML 13280A390)

The NRC acted arbitrarily, abused its discretion, In response to a request to the NRC's Public Document Room, on October 1, 2014, NRC posted a redacted version of sections 2.5, 3.7, and 3.10 of Revision 21, USCA Case #14-1213 Document #1519386 Filed: 10/28/2014 Page 1 of 6 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 2 of 50 (Page 14 of Total) and violated the Atomic Energy Act, the Administrative Procedure Act, the Commission's policies and regulations, and other applicable laws and regulations in approving Revision 21.This Petition is filed within 60 days of the earliest public notice of NRC's approval of Revision 21 and is thus filed within the Hobbs Act's 60-day statute of limitations.

2$U.S.C.§2344.Petitioner was not aware, and could not have been aware of Revision 21 until its existence was made public in the September 10, 2014 release of the Case file in the matter of the Dissenting Professional Opinion of Dr.Michael Peck, then-NRC Senior Resident Inspector for Diablo Canyon Power Plant.2 Venue is appropriate in the U.S.Court of Appeals for the D.C.Circuit pursuant to 2$U.S.C.§2343.Therefore, Friends of the Earth respectffilly requests those chiefly related to the seismic design basis, on the NRC's Agencywide Document Access and Management System (ADAMS)(ML14269A007).

Attachment A to this Petition is the Panel Report issued in the agency's disposition of the Dissenting Professional Opinion of Dr.Michael Peck (DPO-2013-002).

Pages A-17 through A-19 of the Panel Report document the NRC's final order accepting and approving Revision 21.2 from Lara Uselding, NRC Region IV Public Affairs to interested parties on September 10, 2014: Based on your interest in the Michael Peck differing professional opinion AP story that ran a couple of weeks ago, I am sharing the agency's final decision that was made public today.Per the process, the Executive Director of Operations, Mark Satorius, has made a decision on the appeal and the submitter expressed his wish to have the file publically

[sicJ released.2 USCA Case #14-1213 Document #1519386 Filed: 10/28/2014 Page 2 of 6 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 3 of 50 (Page 15 of Total) that this Court (1)review NRC's order;(2)declare that NRC violated the Atomic Energy Act and Commission rules and regulations in failing to notice and provide opportunity for a license amendment proceeding in accordance with 42 U.S.C.§2239;(3)remand the matter to NRC for proper execution of the public hearing requirements for license amendments under the Atomic Energy Act and the agency's own regulations; (4)order that Diablo Canyon temporarily suspend operation until those proceedings are complete;and (5)grant any other relief that the Court may deem just and appropriate.

Dated: October 28, 2014 Respectfully submitted, Washington, D.C.(D.C'JarNo.

212621 JOhn B/Ayres Law Group 17O7LSt,NW Suite 850 Washington, DC 20036 (202)452-9200 ayresrayreslawgroup.com olsonj@ayreslawgroup.com bemetichj ayreslawgroup.com Counsel for friends of the Earth 3 USCA Case #14-1213 Document #1519386 Filed: 10/28/2014 Page 3 of 6 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 4 of 50 (Page 16 of Total)

FOR DISTRICT OF COLUMBIA CIRCUIT[T 2014'/pn FRIENDS OF THE EARTH Petitioners, UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondents.

OF COLUMBIA Cl))))))))))))))))RULE 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Local Rule 26.1 of the United States Court of Appeals for the District of Columbia Circuit, Petitioner Friends of the Earth submits the following disclosure:

Friends of the Earth is a nonprofit environmental advocacy organization with a mission to defend the environment and create a more healthy and just world, in particular by engaging in efforts to improve the environmental, health, and safety conditions at civil nuclear facilities licensed by the Nuclear Regulatory Commission.

RECEI JNITED STATES COURT OF APPE THE DISTRICT CLE: K v CiJIT No.14-1213 4 USCA Case #14-1213 Document #1519386 Filed: 10/28/2014 Page 4 of 6 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 5 of 50 (Page 17 of Total)

Friends of the Earth is part of Friends of the Earth International, a federation of grassroots groups working in 76 countries.

In the United States, Friends of the Earth has more than 9,100 members in all 50 states.Friends of the Earth is not a publicly held corporation.

No parent corporation or publicly held company has a 10%or greater ownership interest in Friends of the Earth.October 28, 2014 Respectffilly submitted, 4///Jesfca Olson Ayres Law Group Suite$50 1707 L St, NW Washington, DC 20036 (202)452-9211 olsonj@ayresiawgroup.com Counsel for Friends of the Earth 5 USCA Case #14-1213 Document #1519386 Filed: 10/28/2014 Page 5 of 6 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 6 of 50 (Page 18 of Total)

CERTIFICATE OF SERVICE I certify on this 28th day of October 2014 that I served a copy of the foregoing Petition for Review and Disclosure Statement by U.S.Mail, postage prepaid, on the following:

U.S.Nuclear Regulatory Commission Office of the General Counsel 11545 Rockville Pike, Rockville, MD 20852 Allison Macf arlane U.S.Nuclear Regulatory Commission 11545 Rockville Pike Rockville, MD 20852 Eric H.Holder, Jr.Attorney General U.S.Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-000 1 Jennifer Post Pacific Gas and Electric Company 77 Beale St., B3OA San francisco, CA 94105 Joh%I3emetich Ay4"es Law Group Suite 850 17O7LStNW Washington, DC 20036 (202)452-9211 bernetichj (Zlayreslawgroup.com 6 USCA Case #14-1213 Document #1519386 Filed: 10/28/2014 Page 6 of 6 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 7 of 50 (Page 19 of Total)

EXHIBIT 2 RESPONDENTS' MOTION TO DEFER BREIFING SCHEDULE CASE NO. 14

-1213 (D.C. Cir.)

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 8 of 50 (Page 20 of Total)

USC A Cas e #14-1 2 U 1 3 NI T E D D o c S u T m A e n T t E#S 1 5 C 2 4 O 6 U 6 4 RT OF A F i P l e P d: E 1 A 2 L/0 S1/201 4 Pag e 1 o f 4 DISTRICT OF COLUMBIA CIRCUIT 333 Constitution Avenue, NW Washington, DC 20001-2866 Phone: 2 02-216-7000 l Facsimile:

202-219-8530 AGENCY DOCKETING STATEMENT Administrative Agency Review Proceedings (To be completed by appellant/petitioner)

1. CASE NO. 14-1213 2. DATE DOCKETED: 10/28/2014

3. CASE NAME (lead parties only) Friends of the Earth v. Nuclear Regulatory Commission

4. TYPE OF CASE: Review Appeal Enforcement Complaint Tax Court 5. IS THIS CASE REQUIRED BY STATUTE TO BE EXPEDITED?

If YES, cite statute 6. CASE INFORMATION:

Yes No a. Identify agency whose order is to be reviewed: b. Give agency docket or order number(s):

c. Give date(s) of order(s): Nuclear Regulatory Commission N/A Please see attached. d. Has a request for rehearing or reconsideration been filed at the agency? If so, when was it filled? By whom? Yes No Has the agency acted? Yes No If so, when? e. Identify the basis of appellant's/petitioner's claim of standing. See D.C. Cir. Rule 15(c)(2): Please see attached. f. Are any other cases involving the same underlying agency order pending in this Court or any other? Yes No If YES, identify case name(s), docket number(s), and court(s) g. Are any other cases, to counsel's knowledge, pending before the agency, this Court, another Circuit Court, or the Supreme Court which involve substantially the same issues as the instant case presents? Yes No If YES, give case name(s) and number(s) of these cases and identify court/agency:

Please see attachment

h. Have the parties attempted to resolve the issues in this case through arbitration, mediation, or any oth er alternative for dispute resolution?

Yes No If YES, provide program name and participation dates.

Signature s/ Richard Ayres Date 12/01/14 Name of Counsel for Appellant/Petitioner Richard Ayres, Jessica Olson, John Bernetich Address 1707 L St, Suite 850, Washington, DC 20036 E-Mail ayresr@ayreslawgroup.com 202 452-9200 202 872-7739 Phone ( ) ATTACH A CERTIFICATE OF SERVICE Fax ( ) USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 9 of 50 (Page 21 of Total)

USCA Case #14

-1213 Document #1524664 Filed: 12/01/2014 Page 2 of 4 1 Attachment to DOCKETING STATEMENT Friends of the Earth v. U.S. Nuclear Regulatory Commission

, No. 14-1213 December 1, 2014 Filed on behalf of Petitioner Friends of the Earth *** Number 6.c. Identify the date of the order to be reviewed. The final agency action under review is the Nuclea r Regulatory Commission's approval of Revision 21 to the Final Safety Analysis Report as Updated for Diablo Canyon Power Plant Units 1 and 2, dated September 2013, without the required license amendment proceeding.

The first public notice and evidence of this approval is contained in the Panel Report disposing of the Dissenting Professional Opinion by then-NRC senior resident inspector for Diablo Canyon, Dr. Michael Peck, which is appended to the Petition for Review as Attachment A. The Panel Report, issued internally on April 3, 2014, was made public on September 10, 2014. Number 6.e. Identify the basis of petitioner's claim of standing. Petitioner Friends of the Earth (FoE) has standing because its members have been injured in fact by the Nuclear Regulatory Commission (NRC) action at issue, the injury is traceable to that action, and the injury would be redressed by a favorable ruling from this Court. This case involves the secret approval by the NRC of an amendment to the operating licenses for Diablo Canyon Power Plant Units 1 and 2, contained in Revision 21 to the Final Safety Analysis Report, in contravention of the Atomic Energy Act and the Commission's own regulations, which require the opportunity for a public adjudicatory hearing on any proposed license amendment.

The main subject of Revision 21 is the addition of a different method of analysis (and attendant assumptions) required to evaluate new information about the seismic conditions (i.e. capability of faults) around the Diablo Canyon Power Plant. USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 10 of 50 (Page 22 of Total)

USCA Case #14

-1213 Document #1524664 Filed: 12/01/2014 Page 3 of 4 2 FoE is a national non-profit environmental organization headquartered and incorporated in the District of Columbia with an office in Berkeley, California.

FoE has a nationwide membership of over 33,000 (including over 6,000 members in California) an d over 440,000 activists.

Among its missions, FoE seeks to insure that the public has an opportunity to influence the outcome of government and corporate decisions that affect the lives of many people. Since its inception in 1969, FoE has sought to improve the environmental, health, and safety conditions at civil nuclear facilities licensed by the NRC and its predecessor agencies. To that end, FoE utilizes its institutional resources, including legislative advocacy, litigation, and public outreach and education, to minimize the risks that nuclear facilities pose to its members and to the general public. Certain members of FoE living near Diablo Canyon are directly affected by the NRC's failure to notice and provide opportunity for a public adjudicatory hearing on the license amendment.

These members have personal health, safety, economic, aesthetic, and environmental interests in the proper operation of Diablo Canyon and the risk of harms that the plant's operation, without proper seismic analysis, poses to those interests.

These members support the Petition for Review and have authorized FoE to bring this Petition before the Court on their behalf. Number 6.g. Are there other cases, to counsel's knowledge, pending before the agency, this Court, another Circu it Court, or the Supreme Court which involve substantially the same issues as the instant case presents? Before the Nuclear Regulatory Commission:

In the Matter of Pacific Gas & Electric Company (Diablo Canyon Power Plant, Units 1 and 2), Docket Nos. 5- 275/50-323 (involving different legal issues). USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 11 of 50 (Page 23 of Total)

USCA Case #14

-1213 Document #1524664 Filed: 12/01/2014 Page 4 of 4 3 CERTIFICATE OF SERVICE I certify that a copy of the foregoing "Agency Docketing Statement,"

with attachment, has been served via the Court's Electronic Court Filing system upon all registered counsel this 1 st day of December, 2014. /s/Jessica Olson Jessica Olson Ayres Law Group LLP Suite 850 1707 L St NW Washington, DC 20036 (202) 452-9211 olsonj@ayreslawgroup.com USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 12 of 50 (Page 24 of Total)

EXHIBIT 3 RESPONDENTS' MOTION TO DEFER BREIFING SCHEDULE CASE NO. 14

-1213 (D.C. Cir.)

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 13 of 50 (Page 25 of Total)

USCA Case #14-1213 Document #1524666 Filed: 12/01/2014 Page 1 of 3 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ) FRIENDS OF THE EARTH ) ) Petitioner, ) ) v. ) ) UNITED STATES NUCLEAR ) REGULATORY COMMISSION and ) UNITED STATES OF AMERICA,

) )

No. 14-1213 Respondents.

) CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1)(A), Petitioner Friends of the Earth hereby certifies as follows: Parties and Amici. The parties to this proceeding are Petitioner Friends of the Earth and Respondents the United States Nuclear Regulatory Commission (NRC) and the United States of America. There are no amici. Rulings Under Review. The final agency action under review is the NRC's approval of Revision 21 to the Final Safety Analysis Report for Diablo Canyon Units 1 and 2, dated September 2013, without the required license amendment proceeding.

The first public notice and evidence of this approval is contained in the USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 14 of 50 (Page 26 of Total)

USCA Case #14-1213 Document #1524666 Filed: 12/01/2014 Page 2 of 3 2 Panel Report disposing of the Dissenting Professional Opinion by then-NRC senior resident inspector for Diablo Canyon, Dr. Michael Peck, which is appended to the Petition for Review as Attachment A. The Panel Report, issued internally on April 3, 2014, was made public on September 10, 2014. Related Cases. To Petitioner's knowledge, there are no related cases. Dated: December 1, 2014 Respectfully submitted, Washington, D.C. /s/ Richard Ayres Richard Ayres Jessica Olson John Bernetich Ayres Law Group LLP 1707 L St, NW Suite 850 Washington, DC 20036 (202) 452-9200 ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com bernetichj@ayreslawgroup.com Counsel for Friends of the Earth USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 15 of 50 (Page 27 of Total)

USCA Case #14-1213 Document #1524666 Filed: 12/01/2014 Page 3 of 3 3 CERTIFICATE OF SERVICE I certify that a copy of the foregoing "Certificate As To Parties, Rulings, And Related Cases" has been served via the Court's Electronic Court Filing system upon all registered counsel this 1 st day of December, 2014. /s/Jessica Olson Jessica Olson Ayres Law Group LLP Suite 850 1707 L St NW Washington, DC 20036 (202) 452-9211 olsonj@ayreslawgroup.com USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 16 of 50 (Page 28 of Total)

EXHIBIT 4 RESPONDENTS' MOTION TO DEFER BREIFING SCHEDULE CASE NO. 14

-1213 (D.C. Cir.)

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 17 of 50 (Page 29 of Total)

ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FRIENDS OF THE EARTH Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

) ) ) ) ) ) ) ) ) ) ) ) No. 14-1213 PETITIONER S NON-BINDING STATEMENT OF ISSUES TO BE RAISED Pursuant to the Clerks October 28, 2014 order in the above

-captioned case, Petitioner Friends of the Earth hereby submits the following non

-binding statement of the issues presented for review:

1.Whether the Nuclear Regulatory Commission (NRC), in failing toprovide notice to the public of Revision 21 to the Final Safet yAnalysis Report (as Updated) (FSARU) for Diablo Canyon PowerPlant Unit 1 and Unit 2 and an opportunity for a hearing on the same, USCA Case #14-1213 Document #1524669 Filed: 12/01/2014 Page 1 of 3 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 18 of 50 (Page 30 of Total)

"!deprived Petitioner of its hearing rights in a license amendment proceeding under section 189a of the Atomic Energy Act

. 2.Whether the NRC acted arbitrarily and capriciously, failed to engagein reasoned decision

-making, acted without substantial evidence,abused its discretion, or acted contrary to law by approving Revision21 to the FSARU for Diablo Canyon Power Plant Unit 1 and Unit 2without the required opportunity for a hearing in a license amendmen tproceeding

.This is a preliminary listing of issues that Petitioners may raise. Petitioners reserve the right to modify the list of issues addressed in its brief, as well as to address these and other issues in more detail in future pleadings.

Dated: December 1, 2014 Respectfully submitted, Washington, D.C.

/s/ Richard Ayres Richard Ayres Jessica Olson John Bernetich Ayres Law Group LLP 1707 L St, NW Suite 850 Washington, DC 20036 (202) 452-9200 ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com bernetichj@ayreslawgroup.com Counsel for Friends of the Earth USCA Case #14-1213 Document #1524669 Filed: 12/01/2014 Page 2 of 3 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 19 of 50 (Page 31 of Total)

1. !CERTIFICATE OF SERVICE I certify that a copy of the foregoing Petitioners Non

-Binding Statement Of Issues To Be Raised has been served via the Courts Electronic Court Filing system upon all registered counsel this 1 st day of December, 2014.

/s/Jessica Olson Jessica Olson Ayres Law Group LLP Suite 850 1707 L St , NW Washington, DC 20036 (202) 452-9211 olsonj@ayreslawgroup.com USCA Case #14-1213 Document #1524669 Filed: 12/01/2014 Page 3 of 3 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 20 of 50 (Page 32 of Total)

EXHIBIT RESPONDENTS' MOTION TO DEFER BREIFING SCHEDULE CASE NO. 14

-1213 (D.C. Cir.)

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 21 of 50 (Page 33 of Total)

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION

________________________________________________

In the Matter of ) ) Docket Nos. 50-275 PACIFIC GAS & ELECTRIC COMPANY ) 50-323 ) (Diablo Canyon Power Plant) ) October 14, 2014 FRIENDS OF THE EARTHS REPLY TO NRC STAFFS AND PACIFIC GAS & ELECTRIC COMPANYS ANSWERS AND PROPOSED AMICUS CURIAE NUCLEAR ENERGY INSTITUTES BRIEF IN RESPONSE TO PETITION TO INTERVENE AND REQUEST FOR HEARING Richard E. Ayres Jessica L. Olson John H. Bernetich Ayres Law Group 1707 L. Street, NW, Suite 850 Washington, DC 20036 Counsel for Friends of the Earth USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 22 of 50 (Page 34 of Total) 2 I. INTRODUCTION Following the 2008 discovery of the Shoreline fault just hundreds of meters offshore from Diablo Canyon, PG&E had to choose one of two ways to deal with this new finding: either seek to amend the plants licensing basis to incorporate the Shoreline fault into the its seismic design basis, or retrofit the plant to withstand a postulated Shoreline earthquake, which was projected to cause greater ground motion and occur closer to the plant than any fault known to exist up to that point. Unsurprisingly, PG&E chose the former, and in October 2011

, filed License Amendment Request 11-05 (LAR 11-05). When PG&E became aware, however, that NRC intended to deny LAR 11

-05Ñon grounds that the amendment would be unacceptable from technical and regulatory perspectives 1ÑPG&E must have realized that the consequences of such a denial would be catastrophic. Were NRC to deny LAR 11

-05, PG&E would have painted itself into a corner

having been denied its formal request to incorporate the Shoreline fault into its seismic design basis, the only option that would remain to PG&E would be an expensive retrofit. The company accordingly withdrew LAR 11

-05 before the NRC Staff could grant or deny the license amendment request.

PG&E must have also known that were it to withdraw its license amendment request, it would have the option of seeking to accomplish, through informal channels and negotiation s with the NRC Staff

, precisely that which it had sought to accomplish through LAR 11

-05Ñand that is what PG&E did. A comparison of the relief sought in LAR 11

-05 with the results achieved since that request was withdrawn demonstrates this point.

1 NRC draft document, Basis for DE Denial of Diablo Canyon 1&2 LAR 11

-05, at 3, ADAMS Accession No. ML13354B992.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 23 of 50 (Page 35 of Total) 3 ¥ In LAR 11-05, PG&E had sought to make the Hosgri Evaluation the plants Safe Shutdown Earthquake; at NRCs invitation, PG&E accomplished precisely that.

2 ¥ In LAR 11-05, PG&E had sought to make the Hosgri Evaluation the bounding evaluation and the yardstick by which the predicted ground motion from the Shoreline fault would be measured; later actions accomplished precisely that.

3 ¥ In LAR 11-05, PG&E had sought to analyze the recently discovered Shoreline fault according to the methodologies and assumptions of the Long Term Seismic Plan (LTSP); now PG&E has accomplished precisely that by simply inserting new language into its FSARU.

4 NRC Staff have negotiated these resu lts without requiring PG&E to meet the regulatory requirements applicable to establishing and amending a plants seismic design basis.

Respondents raise a number of arguments to avoid the obvious

Ñthat under 189(a)(1)(A) of the Atomic Energy Act and the regulations of the Nuclear Regulatory Commission, a change in the Seismic Design Basis of a nuclear power plant requires a license amendment, which requires an opportunity for a public hearing on the proposed change. The need for an amendment was recognized in 2009 by PG&E and the NRCs western office Staff, but the Commissions headquarters staff overruled them and gave PG&E permission to withdraw its proposed license amendment.

Instead, the Staff commenced the de facto license amendment process of which FoE complained in its Petition, which has resulted so far in the Staffs surreptitiously slipping into the license changes that substituted the Hosgri Evaluation (HE) for the Double Design Earthquake in the original license as the s eismic design basis and the Safe

2 See PG&E, Diablo Canyon Power Plant, Units 1 and 2, Final Safety Analysis Report Update, Rev. 21 (Sep. 2013), at 2.5-77 (hereinafter FSARU Rev. 21).

3 FSARU Rev. 21, at 2.5-66. 4 FSARU Rev. 21, at 2.5

-80. USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 24 of 50 (Page 36 of Total) 4 Shutdown Earthquake. Revision 21 was subjected to no public review, and would not have come to public light but for offhand reference s in the case file for the internal review of and decision on Dr. Michael Pecks dissenting professional opinion (DPO) released on September 10 , 2014. This reference confirms the existence of the de facto licensing amendment process FoE has identified.

PG&E and the NRC Staff attempt to avoid the implications of these facts by claiming that PG&E withdrew its license amendment because it was overtaken by the Commissions post-Fukushima 50.54(f) process. But the post

-Fukushima process does not supplant the requirement that a license amendment is required to change the seismic design basis for the plant. The Staff and PG&E also claim that the HE bounds the Shoreline and other newly understood faults near Diablo Canyon analyzed in the recently issued Central Coastal California Seismic Imaging Project Report 5 (PG&E Seismic Report

), even though the Shoreline fault is now shown to be closer to Diablo Canyon, stronger than previously known, and longer than the Hosgri fault ha d been assumed to be as recently as 2011.

But they offer no straight

-up comparison of the Hosgri fault with the other faults, using the same assumptions about ground motion; instead PG&E and the NRC Staff adjust the ground motion equations and other parameters on Shoreline to allow the bounding claim

. PG&E and the NRC Staff also urge FoE to avail itself of the 2.206 process.

But that process is designed for citizens who wish to initiate a proceeding to alter or amend an existing license, not for citizens to challenge a de facto license amendment proceeding initiated by the licensee and the Staff or ongoing license amendment proceedings.

5 See PG&E, Central Coastal California Seismic Imaging Project, http://www.pge.com/en/safety/systemworks/dcpp/seismicsafety/report.page (last accessed Oct. 1, 2014)

(hereinafter PG&E Seismic Report).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 25 of 50 (Page 37 of Total) 5 For these reasons, the NRC has violated 189a(a)(1)(A) of the Atomic Energy Act with respect to FSARU Revision 21. The Commission should convene an Atomic Safety and Licensing Board and direct it to grant FoEs Petition to Intervene and Request for a Hearing on licensing changes required as a result of discovery of the new seismic information described in PG&Es September 10, 2014 Seismic Report.

II. THE HOSGRI EVALUATION IS NOT PART OF DIABLO CANYONS SEISMIC DESIGN BASIS In maintaining that no de facto license amendment is occurring and that no license amendment is needed , both NRC Staff and PG&E rel y heavily on the assertion that the Hosgri Evaluation (HE) is part of the current licensing basis.

6 PG&E points to this assertion as proof that the plant is safe to continue operating and that no de facto license amendment has occurred. But PG&Es statement that the HE is part of the current licensing basis has little consequence to this proceeding and is intended to distract the Commission from the central issue

ÑPG&Es failure to satisfy its regulatory obligations under General Design Criterion 2 in 10 C.F.R. Part 50, Appendix A and other applicable Commission regulations

. Moreover, the document PG&E relies on to assert that the HE is the Safe Shutdown Earthquake (SSE) for Diablo Canyon

ÑSupplemental Safety Evaluation Report No. 7 (SSER 7)

Ñwas issued in 1978, six years before the plant received its operating license.

7 In any event, as a supplemental safety evaluation, SSE R 7 is not part of the current licensing basis and was superseded by the original Final Safety Analysis Report, approved by the NRC in 1984, which states that the Double Design Earthquake (DDE) is the SSE for Diablo Canyon.

6 PG&E Answer, at 2

-8; NRC Staff Answer, at 27.

7 NUREG-0675, Safety Evaluation Report Related to the Operation of Diablo Canyon Power Plant, Units 1 and 2, Supplement No. 7 (May 26, 1978) (hereinafter SSER 7).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 26 of 50 (Page 38 of Total) 6 a. Regulatory Framework Since PG&E and NRC Staff make much of the fact that the Hosgri Evaluation is included in Diablo Canyons current licensing basis (CLB), a brief recitation of the regulatory framework applicable to seismic design is appropriate. Diablo Canyons seismic design basi s i s set forth by three tiers of Commission regulations: the current licensing basis, the General Design Criteria, and the seismic design basis, each discussed in turn below.

i. Current Licensing Basis As defined by Commission regulations, the CLB is the set of NRC requirements applicable to a specific plant and a licensees written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis.

8 The CLB consists of the following:

¥ NRC regulations contained in 10 CFR parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, 55, 70, 72, 73, 100 and appendices thereto;

¥ Commission orders;

¥ License conditions;

¥ Exemptions;

¥ Technical specifications;

¥ Plant-specific design basis information defined in 10 CFR 50.2 and documented in the most recent UFSAR (as required by 10 CFR 50.71);

8 10 C.F.R. 54.3(a).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 27 of 50 (Page 39 of Total) 7 ¥ Licensee commitments remaining in effect that were made in docketed licensing correspondence (such as licensee responses to NRC bulletins, Licensee Event Reports, generic let ters, and enforcement actions); and

¥ Licensee commitments documented in NRC safety evaluations.

9 ii. General Design Criteria Each plant must meet each of 64 listed General Design Criteria.

These General Design Criteria, which as part of 10 C.F.R. Part 50 are included in each plants CLB, establish minimum requirements for the principal design criteria for water

-cooled nuclear power plants similar in design and location to plants for which construction permits have been issued by the Commission.

10 General Design Criterion 2 sets forth [d]esign bases for protection against natural phenomena

Structures, systems, and components important to safety shall be designed to withstand the effects of natural phenomena such as earthquakes, tornadoes, hurricanes, floods, tsunami, and seiches without loss of capability to perform their safety functions. The design bases for these structures, systems, and components shall reflect . . . [a]ppropriate consideration of the most severe of the natural phenomena that have been historically reported for the site and surrounding area, with sufficient margin for the limited accuracy, quantity, and period of time in which the historical data have been accumulated .

. . .11 iii. Seismic Design Basis Design bases, which are a subset of a plants CLB, are used to demonstrate compliance with the General Design Criteria. Design bases are defined by regulation as:

that information which identifies the specific functions to be performed by a structure, system, or component of a facility, and the specific values or ranges of values chosen for controlling

9 10 C.F.R. 54.3(a); NRC Inspection Manual, Ch. 0326, Operability Determinations & Functionality Assessments for Conditions Adverse to Quality or Safety, ADAMS Accession No. ML13274A578, at 2.

10 10 C.F.R. pt. 50, Appx A. The General Design Criteria are also considered to be generally applicable to other types of nuclear power units and are intended to provide guidance in establishing the principal design criteria for such other units. Id. 11 10 C.F.R. pt. 50, Appx A, at I.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 28 of 50 (Page 40 of Total) 8 parameters as reference bounds for design. These values may be (1) restraints derived from generally accepted state of the art practices for achieving functional goals, or (2) requirements derived from analysis (based on calculation and/or experiments) of the effects of a postulated accident for which a structure, system, or component must meet its functional goals.

12 Appendix A to 10 C.F.R. Part 100 sets forth the seismic design basis for nuclear power plants by requiring that each plant develop an operating basis earthquake (OBE) and safe shutdown earthquake

.13 b. The Hosgri Evaluation Is Not Part Of The Plants Seismic Design Basis In their Answers, PG&E and the NRC Staff attempt to distract the Commission from the issues relevant to this de facto license amendment proceeding by focusing on the fact that the HE appears in some capacity in Diablo Canyons current licensing basis

. These assertions have no bearing on whether a de facto license amendment has taken place and therefore should be disregarded.

As made clear above, a nuclear power plants seismic design basis, which is part of the CLB, focuses on two postulated earthquakes

Ñthe operating basis earthquake and the safe shutdown earthquake.14 PG&E and the Staff point out that the HE has been part of Diablo

12 10 C.F.R. 50.2.

13 See 10 C.F.R. pt. 100, Appx A, at III(c), (d).

14 PG&Es implicit argument that Diablo Canyon is not subject to the requirements of Appendix A to 10 C.F.R. Part 100 borders on the absurd and should be rejected wholesale. See PG&E Answer, at 24. The lengthy seismic and regulatory history of Diablo Canyon clearly indicates that for well over 30 years, both PG&E and the NRC Staff have conducted their regulatory dealings as if the safety requirements in Appendix A to Part 100 have applied to Diablo Canyon. See SSER 7, at 2

-3 to 2-4 (The DDE was originally the equivalent of the event that was later formally defined as the safe shutdown earthquake in Appendix A to 10 CFR Part 100 . . . . The applicant still considers this to be the appropriate safe shutdown earthquake for this site as defined in Appendix A to 10 CFR Part 100.). PG&Es argument that Appendix A does not apply to Diablo Canyon is not only preposterous, given this long history, but would result in Diablo Canyons not being subject to any seismic design basis regulations at all, a result manifestly at odds with the Atomic Energy Acts safety-focused objective. See also PG&E, License Amendment Request 11

-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11312A166 (Oct. 20, 2011), at 1 (requesting NRC approval to designate the HE as Diablo Canyons SSE).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 29 of 50 (Page 41 of Total) 9 Canyons CLB for some time.

15 Indeed, in Revision 12 to the FSARU, issued in September 1998, PG&E noted that it had been requested by the NRC to evaluate the plants capability to withstand a postulated Richter Magnitude 7.5 earthquake centered along the Hosgri Fault, and presented results of this evaluation

.16 But until Revision 21 to the FSARU, issued in September 2013

, without notice to FoE or the public, the HE was not part of Diablo Canyons seismic design basis.17 This is evidenced by the narrowed scope of the HE analysis relative to the DDE/SSE analysis. Generally, as part of discharging its duties under General Design Criterion 2, a licensee is required to ensure that certain plant SSCs listed in Regulatory Guide 1.29, Seismic Design Classification, will remain functional following the SSE.

18 In the case of the HE, however, the NRC Staff did not subject PG&E to this requirement

. Instead, NRC allowed PG&E to analyze a more limit ed scope of SSCs, entirely divorced from the approved list in Regulatory Guide 1.29, to ensure they would remain functional following the HE.

The reduced scope of the HE analysis is due to the fact that the HE was inserted into the CLB not as a change to the seismic design basis, but as a response to a request by NRC to conduct certain additional analysis. Neither the fact that NRC requested PG&E to perform additional analysis of the Hosgri fault, nor the fact that the results of this analysis appear in the FSARU, affect the plants seismic design basis.

19 15 PG&E Answer, at 2

-8; NRC Staff Answer, at 27.

16 PG&E, Diablo Canyon Power Plant, Units 1 and 2, Final Safety Analysis Report Update, Rev. 12 (Sep. 1998), at 2.5

-58 (hereinafter FSARU Rev. 12). 17 A change to Diablo Canyons seismic design basis requires a license amendment. See infra Section III(b). 18 NRC, Regulatory Guide 1.29, Seismic Design Classification, Rev. 4 (March 2007), at 3 (implementing General Design Criterion 2 and providing a list of SSCs that must be designed to withstand the effects of the SSE and remain functional).

19 This point is further demonstrated by a guidance document issued by amicus curiae Nuclear Energy Institute (NEI) intended to assist licensees in determining compliance with the Commissions seismic design basis requirements. That guidance document provides that compliance with seismic design basis is determined in accordance with NRC Regulatory Guide 1.29

Ñthe very guide that NRC declined to require USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 30 of 50 (Page 42 of Total) 10 In any event, a statement by the NRC in SSER 7, which was issued before the plant received its operating license or submitted the plants original Final Safety Analysis Report

, cannot serve as proof that the HE is part of the plants seismic design basis.

Not every statement made in a safety evaluation is included within a plants CLB

Ñonly licensee commitments documented in NRC safety evaluations

.20 The NRC Staffs statement that it considers the HE to be the SSE is not a licensee commitment and is therefore not part of Diablo Canyons CLB

.21 The mere fact that a statement by the NRC appears in a SSER does not insert that statement into a plants CLB.

c. The Post-Fukushima Process Conducted Under 10 C.F.R. 50.54(f) Does Not Supplant The Requirement That A Change To Diablo Canyons Seismic Design Basis Be Achieved Through A License Amendment PG&E, NRC Staff, and NEI attempt to sweep the de facto license amendment into the 10 C.F.R. 50.54(f) regulatory process. But the post

-Fukushima review is independent of PG&Es obligations under its license and cannot substitute for the licensing proceeding demanded by the Atomic Energy Act for the design basis changes effected by Revision 21 and any other changes to the license required as a result of the information in the PG&E Seismic Report. The 50.54(f)

PG&E to follow in developing the HE. See NEI 97-04, Revised Appendix B, Guidance and Examples for Identifying 10 CFR 50.2 Design Bases, ADAMS Accession No. ML003771698.

20 10 C.F.R. 54.3.

21 Moreover, this statement is in direct contradiction to PG&Es stated belief in SSER 7 that the DDE, not the HE, was the plants SSE:

[The DDE] was originally the equivalent of the event that was later formally defined as the safe shutdown earthquake in Appendix A to 10 CFR Part 100. The applicant calls it the safe shutdown earthquake following the original terminology. In previous supplements to the Safety Evaluation Report, we have called it the safe shutdown earthquake following the terminology of Appendix A to 10 CFR Part 100.

The applicant still considers this to be the appropriate safe shutdown earthquake for this site as defined in Appendix A to 10 CFR Part 100. SSER 7, at 2

-3 to 2-4 (emphasis added).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 31 of 50 (Page 43 of Total) 11 process is a generally applicable requirement for all U.S. nuclear power plants to review the seismic hazards present for each plant and determine whether licensing changes might be warranted based on that review.

22 FoE does not assert that all plants engaged in 50.54(f) process are undergoing de facto license amendments, as NEI suggests.

23 Instead, FoE contends that NRC has de facto amended the license for Diablo Cany on through Revision 21 to the FSARU and continues to engage in a de facto license amendment proceeding based on the facts in this specific instance.

PG&E has a regulatory obligation to participate in the 50.54(f) process and provide the NRC with the requested seismic hazard reevaluation, but this process cannot exempt PG&E from an obligation imposed by NRC regulations or its license. PG&E has been conducting, and continues to conduct, a seismic reevaluation since 2008, when the Shoreline fault was discovered. The fact that the NRC has asked all plants to reassess seismic hazards in light of the Fukushima Dai

-Ichi Accident is no substitute for Diablo Canyon s pre-existing licensing obligations. For the reasons described herein and in FoEs Petition to Intervene, incorporating the seismic risk presented by the Shoreline fault into the license requires a license amendment.

The Staff has improperly issued a de facto license amendment by approving FSARU Revision 21 and continues to conduct an ongoing de facto licensing proceeding with respect to any other license revisions, such as to the ground motion potential equations, required as a result of the additional information contained in the PG&E Seismic Report.

22 Letter from E. Leeds, NRC, to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near

-Term Task Force Review of Insights From the Fukushima Dai

-Ichi Accident, ADAMS Accession No. ML12053A340 (Mar. 12, 2012).

23 Nuclear Energy Institutes Motion for Leave to File Amicus Curiae Brief, at 2.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 32 of 50 (Page 44 of Total) 12 III. ADDING THE HOSGRI EVALUATION TO DIABLO CANYONS SEISMIC DESIGN BASIS AS THE SAFE SHUTDOWN EARTHQUAKE WITHOUT A LICENSE AMENDMENT PROCEEDING VIOLATES 189 a OF THE ATOMIC ENERGY ACT In its Petition, FoE stated that the NRC was permitting PG&E to amend its license de facto through back channels and informal discussion, rather than through the license amendment process required by the Atomic Energy Act.

24 On September 10, 2014, the Staff publicly disclosed for the first time the existence of a revision (Revision 21) to the Final Safety Analysis Report Upd ate (FSARU) for Diablo Canyon that confirms the de facto license amendment process FoE h as described.25 Staffs argument in its decision on Dr. Pecks DPO seems to have been that no license amendment was needed because the license has already been amended.26 But Revision 21 accomplishes what PG&E proposed to do in LAR 11

-05Ñto add the Hosgri Evaluation to the seismic design bas is for the plant and to make the Hosgri Evaluation the SSE for Diablo Canyon.

27 This kind of change cannot be made without a license amendment proceeding, including an opportunity for the public to participate as required by 189a of the Atomic Energy Act.

a. FSARU Revision 21 Changes The Safe Shutdown Earthquake For Diablo Canyon From The DDE To The Hosgri Evaluation Without Demonstrating Compliance With 10 C.F.R. Part 50, Appendix A, General Design Criterion 2 or 10 C.F.R. Part 100, Appendix A The seismic design bas i s for Diablo Canyon is established in FSARU Sections 3.1, Conformance with General Design Criteria, and 3.2.1, Seismic Classification, in accordance with Regulatory Guide 1.70 Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants (LWR Edition).

The Guide states

24 Friends of the Earth, Petition to Intervene and Request for Hearing, at 6.

25 NRC, DPO Case File for DPO

-2013-002, at 61, 62, 67, 68, and 72 (hereinafter DPO Case File).

26 DPO Case File at 66

-68. 27 PG&E, License Amendment Request 11

-05, Evaluation Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake, ADAMS Accession No. ML11312A166 (Oct. 20, 2011).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 33 of 50 (Page 45 of Total) 13 This section [of the FSAR] should identify those structures, systems, and components important to safety that are designed to withstand the effects of a Safe Shutdown Earthquake (see Section 2.5) and remain functional. These plant features are those necessary to ensure:

1. The integrity of the reactor coolant pressure boundary, 2. The capability to shut down the reactor and maintain it in a safe condition, or 3. The capability to prevent or mitigate the consequences of accidents that could result in potential offsite exposures comparable to the guideline exposures of 10 CFR Part 100.

28 Revision 20 to the FSARU for Diablo Canyon describes the DDE and supporting safety analysis as satisfying the requirements of 10 C.F.R. Part 50, Appendix A, General Design Criterion 2 and thus is equivalent to the SSE described in 10 C.F.R. 100, Appendix A.

29 To establish the DDE, PG&E committed to ensure that plant SSCs listed in Regulatory Guide 1.29 (Seismic Design Classification) would remain functional following a DDE/SSE event.

30 As required by 10 C.F.R. 50.55a, PG&E demonstrated that the combined accident and DD E/SSE loads did not exceed ASME Code acceptance limits for the reactor coolant pressure boundary.

Revision 21 (1) adds the Hosgri Evaluation to the seismic design basis, (2) makes it a Safe Shutdown Earthquake, and (3) adds the Shoreline fault zone as a lesser included case under the Hosgri evaluation

,31 without making any of these required demonstrations.

32 A Hosgri earthquake does not meet the requirements of 10 C.F.R. Part 50, General Design Criterion

2. Because the HE was not part of the seismic design basis, PG&E did not include a safety evaluation of a Hosgri earthquake scenario in the FSAR U, as required by 10 C.F.R. 50.34 for

28 Regulatory Guide 1.70 Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants (LWR Edition), ADAMS Accession No. ML011340122 (Nov. 30, 1978).

29 FSARU Rev. 20, Section 2.5.

30 See also NRC, Regulatory Guide 1.26, Quality Group Classifications and Standards for Water

-, Steam-, and Radioactive

-Waste-Containing Components of Nuclear Power Plants, ADAMS Accession No. ML070290283 (March 2007).

31 FSARU (Rev. 21), Section 2.5.3.9.3.

32 FSARU (Rev. 21) Section 2.5.5.9.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 34 of 50 (Page 46 of Total) 14 seismic design bases. The Hosgri Evaluation was instead included in FSARU Section 3.7.6 as an answer to an NRC question during the licensing process. Moreover, PG&E did not ensure that SSCs listed in Regulatory Guide 1.29 would remain functional following a Hosgri earthquake. The Hosgri Evaluation qualified equipment necessary to shut the plant down but did not take into account any possible accident loads, such as from a fire during the shut down process, as does the DDE.33 b. FSARU Revision 21 Requires A License Amendment Changes made to the FSARU for Diablo Canyon in Revision 21, such as (1) adding the Hosgri Evaluation to the seismic design bases in the FSARU, (2) asserting that it now qualifies as a Safe Shutdown Earthquake for Diablo Canyon, 34 and (3) including activity on the Shoreline fault as a lesser included case under the Hosgri evaluation

,35 cannot be made except through a license amendment. PG&Es responsibility for its failure to conduct even a 10 C.F.R. 50.59 screen to determine whether a license amendment might be necessary is a separate issue, not to be confused with the question before the Commission here. The point here is that 10 C.F.R. 50.59 requires a license amendment in certain circumstances in order to ensure that the safety analyses for the plant, the basis on which the plant is licensed, remain valid and up to date.

36 Section 50.59 states, in relevant part:

A licensee shall obtain a license amendment pursuant to 50.90 prior to implementing a proposed change, test, or experiment if the change, test, or experiment would:

É 33 FSARU (Rev. 20) Section 3.7.6.

34 10 C.F.R. Part 100, Appendix A, (c) defines the Safe Shutdown Earthquake

ÑsingularÑas the earthquake which produces the maximum vibratory ground motion for which certain structures, systems, and components are designed to remain functional.

The regulation does not permit a plant to have two SSEs in its seismic design basis. For Diablo Canyon, the only SSE that meets the requirements of Appendix A to Part 100 and General Design Criterion 2 is the DDE.

35 FSARU Rev. 21, Section 2.5.3.9.3.

36 10 C.F.R. 50.71(e).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 35 of 50 (Page 47 of Total) 15 (ii) Result in more than a minimal increase in the likelihood of occurrence of a malfunction of a structure, system, or component (SSC) important to safety previously evaluated in the final safety analysis report (as updated);

[or] É (viii) Result in a departure from a method of evaluation described in the FSAR (as updated) used in establishing the design bases or in the safety analy ses. Revision 21 triggers at least these two criteria of 50.59(c)(2).

Section 50.34(b) require s the original FSAR to include a safety analysis demonstrating that the General Design Criterion 2 design basis is satisfied.

37 PG&E made such a demonstrati on for all earthquake faults within 75 miles of the site known at the time, with the exception of the Hosgri fault. The safety analysis included development of a ground motion value, which PG&E asserted to be the design basis controlling parameter (0.4 g) to ascertain the stress Diablo Canyon would have to withstand following a DDE/SSE event. PG&E included in the FSAR, as required by 50.34(b), a demonstration that the SSCs listed in Regulatory Guide 1.29 would meet the design basis requirements of GDC 2 and Part 100, Appendix A.

By PG&Es own admission the new seismic information, described in more detail infra in Section IV, shows that ground motion from not just the Hosgri fault, but from what is now known to be the Hosgri

-Simeon, the Shoreline, Los Osos, and San Luis Bay faults, at Diablo Canyon could exceed the design basis controlling parameter, the DDE/SSE (0.4 g). This information requires PG&E to either (1) demonstrate that possible ground motion from this newly discovered seismic landscape is bounded by the DDE/SSE or (2) update the FSAR to alter the design bases to include a new SSE.

Had PG&E chosen option (1) and attempted to update the FSARU with the higher ground motion using the DDE/SSE as a benchmark, as the license requires, the seismic stress would

37 10 C.F.R. 50.34(b).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 36 of 50 (Page 48 of Total) 16 have exceed ed ASME Code acceptance limits for the reactor coolant pressure boundary, major structures (such as the reactor containment and auxiliary building), and the established qualification limits for SSCs listed as important to safety (under Regulatory Guide 1.29). NRC acknowledged as much by recognizing that predicted ground motion from the Hosgri and Shoreline faults were likely to exceed those from the DDE.

38 A change to the facility as described in the FSARU that results in exceeding the limits for seismic qualification requires NRC approval because of the increased likelihood of malfunction of SSCs important to safety during an earthquake.

39 PG&E chose option (2): to update the FSAR to alter the seismic design bas is and method of evaluation for the SSE, at the Staffs direction and with their approval, by making Revision 21 to the FSARU. Such a change require s a license amendment under 10 C.F.R. 50.59(c)(2)(viii) because using the Hosgri Evaluation yields non

-conservative results when compared to the DDE (the existing FSARU method).

40 PG&E similarly proposed to make the Hosgri Evaluation the Safe Shutdown Earthquake in LAR 11-05 and the NRC Staff indicated their intent to deny the proposal because it would decrease the margin of safety to an unacceptable level.

41 Revision 21 also fails to comply with 10 C.F.R. Part 50, Appendix A, General Design Criterion 2 and 10 C.F.R. Part 100, Appendix A (c), which requires the licensee to demonstrate

38 NRC Letter, Diablo Canyon Power Plant, Units Nos. 1 and 2 NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML 120730106 (Oct. 12, 2012), at 4 (The NRC recognizes that using the DDE as the basis of comparison will most likely result in the Shoreline fault and the Hosgri earthquake being reported as having greater ground motion than the SSE.).

39 NRC, Regulatory Guide 1.187, Guidance for Implementation of 10 C.F.R. 50.59, Changes Tests, and Experiments, ADAMS Accession No. ML003759710 (Nov. 2000). Regulatory Guide 1.187 endorsed NEI 96-07, Guidelines for 10 C.F.R. 50.59 Evaluations, ADAMS Accession No. ML003636043, as an acceptable method for implementation of 10 C.F.R. 50.59 (hereinafter NEI 96-07). 40 See also NEI 96-07. PG&E admits that less conservative damping values and other assumptions (such as material strengths) were used in connection with the 1977 HE structural evaluation and excess (and unnecessary) conservatism was eliminated. PG&Es Answer at 30. Whether or not they think the conservatism was excess, some of the margin of safety was eliminated.

41 NRC draft document, Basis for DE Denial of Diablo Canyon 1&2 LAR 11

-05, at 3, ADAMS Accession No. ML13354B9

92. USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 37 of 50 (Page 49 of Total) 17 that certain SSCs will remain functional following the Safe Shutdown Earthquake. Such SSCs are those necessary to assure (1) the integrity of the reactor coolant pressure boundary, (2) the capability to shut down the reactor and maintain it in a safe condition, and (3) the SSCs needed to prevent or mitigate the consequences of accidents would remain functional given the maximum earthquake potential based on local geology.

42 PG&E has not demonstrated the Hosgri Evaluation can meet each of these criteria.

c. The NRCs Approval Of Revision 21 Is A De Facto License Amendment Both the Staff and PG&E argue vigorously that the Staffs change to Diablo s license is not a license amendment because no license amendment application was filed and no proceeding was initiated. But it is settled law that it is the substance of the NRC action that determines entitlement to a section 189(a) hearing, not the particular label the NRC chooses to assign.

43 FSARU Revision 21 not only trigger ed at least two criteria of 10 C.F.R. 50.59(c), but Revision 21 also grant ed PG&E additional operating authority, thus meeting the definition of a de fac to license amendment set forth by the Commission. In Cleveland Electric Illuminating Co., the Commission stated that a de facto license amendment has occurred, and hearing rights are implicated, where the change granted the licensee greater operating authority or otherwise alter[ed] the original terms of the license.

44 Revision 21 accomplishes both. It allows PG&E to operate Diablo Canyon with a reduced margin of safety by changing the seismic design basis for

42See also NRC, Regulatory Guide 1.70 Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants (LWR Edition), ADAMS Accession No. ML011340122 (Nov. 30, 1978).

43 Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 295 (1st Cir. 1995) (emphasis added). Accord, Mass. v. NRC, 878 F.2d 1516, 1521 (1st Cir. 1989) (The fact that the NRC did not call its decision to restart a reinstatement of the license is not controlling); Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407, 416 (1942) ([T]he particular label placed upon [its action] by the Commission is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive.).

44 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant), CLI 13, 44 NRC 315, 326

-27 (1996) (footnotes omitted).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 38 of 50 (Page 50 of Total) 18 the plant and effectively exempting the Shoreline fault, a fault located with 600 meters of the plant, from meeting General Design Criterion 2 and Part 100, Appendix A (Safe Shutdown) requirements to which the plant was licensed.

Thus, by the standard set forth by the Commission in Perry, Revision 21 is a de facto license amendment.

In short, the Staff is in the midst of doing through a de facto license amendment proceeding what PG&E initially proposed: for example, to change the license so that, in dealing with new seismic data, the company may choose the less conservative of the Hosgri Evaluation analytical framework or the DDE analytical framework, rather than having to demonstrate the plants safety using both postulated earthquake evaluations. In the Staffs disposition of Dr. Pecks DPO, which was released for the first time in September 2014

, 45 the Staff revealed that a part of the license had already been amended by Revision 21, which inserted the Hosgri Evaluation methodology into Diablo Canyon s seismic design basis. Thus, Revision 21, a de facto license amendment standing on its own, clearly indicates that the larger de facto license amendment proceeding detailed in Petitioner initial filing is underway and continues. It began when PG&E and the NRC Staff in positions closest to the plant recognized that to apply the Hosgri Evaluation to the newly discovered Shoreline fault, it would be necessary to amend the existing license. PG&E, with the encouragement of the NRC Staff, decided to file a license amendment (LAR 11

-05) with the Commission. But the Commission staff internally expressed doubts about designating the Hosgri Evaluation as a Safe Shutdown Earthquake and signaled to PG&E that the Staff planned to deny the amendment request.

46 Relying on the Fukushima 50.54(f) process as pretext, PG&E subsequently withdrew its license amendment proposal. Instead, the Staff amended the license de facto through Revision 21 and other documents, 45 DPO Case File at 61.

46 NRC draft document, Basis for DE Denial of Diablo Canyon 1&2 LAR 11

-05, at 3, ADAMS Accession No. ML13354B992.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 39 of 50 (Page 51 of Total) 19 without the opportunity for public participation called for in AEA 189a(a)(1)(A).47 This de facto proceeding continues today.

48 IV. THE HOSGRI EVALUATION CANNOT BOUND THE SHORELINE AND OTHER FAULTS BECAUSE THAT EVALUATION IS SPECIFIC TO THE HOSGRI FAULT Revision 21 to the FSARU is evidence that the NRC has issued at least one de facto license amendment in the ongoing de facto amendment proceeding to address new seismic information about the area around Diablo Canyon.

PG&Es justification for its claim that the Hosgri analysis bounds the Shoreline fault evidences another de facto amendment in the works. As noted in passing in PG&Es Answer, the company released a new analysis reporting on its seismic studies, the PG&E Seismic Report, on September 10, 2014.

49 The PG&E Seismic Report describe significant new geophysical data gathered for faults near Diablo Canyon including the Hosgri, Shoreline, San Simeon, San Luis Bay, and Los Osos faults, and concludes that many of these faults are capable of producing much greater earthquakes than previously thought. PG&E contends in its Seismic Report, as they do in their Answer, that even given this new information, the ground motions predicted for the plant are bounded by the 1977 Hosgri spectrum and 1991 LTSP response spectra

, 50 , 51 and therefore require no changes in the SSCs in

47 The critical difference between LAR 11

-05 and Revision 21 is that the public was excluded from the process in the latter. Indeed, if it had not been for the release of Dr. Pecks DPO and the subsequent Staff disposition, the public would still be entirely unaware of changes made in the way the seismic safety of this nuclear power plant is being determined.

48 As part of the Fukushima 50.54(f) process, PG&E is required to provide NRC with a seismic hazard evaluation no later than March 2015. See NRC Letter, Diablo Canyon Power Plant, Units Nos. 1 and 2 NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307), ADAMS Accession No. ML 120730106 (Oct. 12, 2012), encl. 1, and 5

-7. FoE expects that the conclusions in this evaluation will constitute further de facto amendments to Diablo Canyons license in addition to the de facto license amendment already effected by the issuance of Revision 21 to the plants FSARU.

49 PG&E Answer, at 11.

50 PG&E Seismic Report, Ch. 13 at 20.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 40 of 50 (Page 52 of Total) 20 order to withstand the newly

-discovered potential earthquakes. This claim is in error for two reasons: (1) the PG&E Seismic Report describes substantially more seismic capability than previously identified during the licensing of Diablo Canyon; and (2) PG&E s reassurance s about the potential ground motion at Diablo associated with these findings are dependent upon the substitution of new, entirely different assumptions for those used in either the DDE or the Hosgri Evaluation.

First, as the PG&E Seismic Report shows, the company had an incomplete picture of the seismic potential in the area around Diablo Canyon in 1977. The Shoreline fault, which was then unknown, is now known to connect to the Hosgri fault in such a way that a rupture on one fault could trigger a rupture on the other. The two faults together are 145 km in length, far longer than the 110 km the Hosgri fault was previously thought to be. In 1977

, the San Simeon fault was not known to connect to the Hosgri fault; PG&Es Seismic Report now describes the two faults as structurally connected. During the original DDE analysis, PG&E presumed there was no connection between the San Simeon and Hosgri faults and that joint rupture was not possible.

52 PG&Es Seismic Report now says these faults are so interconnected that they are assumed to rupture together. We now know a great deal more about the potential for seismic activity in the area of Diablo Canyon, particularly that the known faults are longer than they first appeared to be and connected in ways that increase the greatest potential energy that could be released along the faults.

Second, in light of the different ground motion prediction equations used in the Hosgri analysis and in the PG&E Seismic Report, the conclusions of the two are incommensurable. To

51 To the extent PG&E might argue that FSARU Revision 21 now includes the Shoreline Fault Zone as a lesser included case under the Hosgri Evaluation, the PG&E Seismic Report shows this assertion to be baseless.

52 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant (Units 1 and 2

)), LBP-79-26, 10 NRC 453, 472-73 (1979).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 41 of 50 (Page 53 of Total) 21 determine the amount of ground motion caused by the energy released in the rupture of a particular fault that will reach Diablo, NRC uses certain assumptions called ground motion prediction equations to arrive at the ground motion response spectra.

53 These spectra predict how much of the energy from an earthquake, and which frequencies of vibration, will be attenuated as they travel from the fault to Diablo, and therefore, how much of the seismic energy will reach the plant structure. The Double Design Earthquake applies one specification of ground motion spectra to arrive at the conclusion that such an earthquake at a specified distance could produce 0.4 g of ground motion at the plant.

To evaluate an earthquake on the Hosgri fault, however, NRC agreed to allow PG&E to apply a different set of ground motion potential equations, which are site

-specific to Diablo Canyon (1977 HE spectrum).

54 The analysis in chapter 13 of PG&Es Seismic Report applies yet another set of new and novel ground motion prediction equations from those used to evaluate either the DDE or the Hosgri earthquake. For this analysis, PG&E developed a new set of ground motion prediction equations that further differ from those used to arrive at the DDE, Hosgri, and LTSP ground motion prediction equations. The new ground motion prediction equations used by PG&E to justify their conclusion that the Hosgri Evaluation is the bounding analysis for all the new seismic data will require a license amendment. The FSAR U provides ground motion prediction equations used to bound DDE (0.4 g) and Hosgri (0.75 g) events.

55 Section 2.5.3.10 (and References 12 and 24) of the

53 NRC Standard Review Plan 2.5.2.6 Ground Motion Response Spectra; Reg. Guide 1.60 Design Response Spectra for Seismic Design of Nuclear Power Plants.

54 See FSARU Section 2.5.3.10.4 (Rev. 21) (É[T]he 1991 LTSP ground motion response spectra does not replace or modify the DE, DDE, or 1977 Hosgri response spectra described above.)

55 NRC Standard Review Plan 2.5.2.6 Ground Motion Response Spectra; Reg. Guide 1.60 Design Response Spectra for Seismic Design of Nuclear Power Plants incorporated into the Final Safety Analysis Report as Updated for Diablo Canyon, Rev. 21, section 2.5.3.10; Pacific Gas & Electric Co.

(Diablo Canyon Nuclear Power Plant, Unit 1 & 2); Atomic Safety and Licensing Appeal Board, 13 NRC USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 42 of 50 (Page 54 of Total) 22 FSAR U describes these ground motion response spectra. PG&E used neither the DDE nor the Hosgri ground motion prediction equations to calculate the ground motion potential of the new seismic data.

The ground motion prediction equations used to arrive at the DDE of 0.4 g are, and were at the time they were used, peer

-reviewed, scientifically accepted, NRC

-approved assumptions that were in the FSARU and part of the seismic design basis. In response to NRC questions about how Diablo Canyon would respond to ground motion produced during a Hosgri event, the NRC reviewed and approved a revised set of ground motion potential equations that produced the 0.75 g value for predicted ground motion at the plant. FSA R U section 2.5.3.10.3 incorporates NRC Supplement No. 5 to the Safety Evaluation Report (Sept. 1976), which permitted PG&E to use a different set of ground motion potential equations for that fault.

56 However, the ground motion prediction equations used in the 2014 PG&E Seismic Report are an entirely new set of assumptions, not found in either the seismic design basis or elsewhere in the FSARU

.57 The predictions of the two different sets of equations are not comparable. Thus PG&E compares apples to oranges when it uses the PEER ground

-motion prediction equations to argue that the

903, 936 (1981) (describing Staffs decision to apply different ground motion prediction equations to a Hosgri event than the equations required by Reg. Guide 1.60).

56 It bears noting that the ground motion prediction equations approved for the Hosgri evaluation were found by former Commissioners Bradford and Gilinsky to significantly reduce the safety margin built in to the DDE. See Opinion of Gilinsky and Bradford, 1982 WL 31523, at 5

-6 (Every advantage was taken of slack in safety margins left in the pre

-Hosgri analysis, both in developing the response spectrum and in its application.).

57 Indeed, PG&E was required by the California legislation ordering the seismic review to submit its analysis to an Independent Peer Review Panel (IPRP) formed to review the ongoing seismic studies at Diablo Canyon. It appears that PG&E ignored this requirement and simply released the Seismic Report without submitting the report to the IPRP. See Critics allege the Diablo Canyon seismic studies lacked proper review, New Times SLO (Oct. 8, 2014), at http://www.newtimesslo.com/news/11514/critics

-allege-the-diablo-canyon-seismic-studies-lacked-proper-review/ USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 43 of 50 (Page 55 of Total) 23 ground motions possible from ruptures on the studied faults are bounded by the 1977 Hosgri and 1991 LTSP ground motion response spectrum.

58 PG&E is required to evaluate these data under the requirements of NRC regulations and the Diablo Canyon license, not their own invented, non

-peer reviewed, non

-NRC approved methods. PG&Es repeated substitution of revised ground motion equations, each of which seems to systematically counterbalance the increased potential for seismic energy being reported in the fault system around Diablo, does not inspire confidence in the utilitys conclusions that the plant remains safe.

Thus PG&Es claim that the 1977 Hosgri earthquake scenario and LTSP bound the potential seismic energy released from the Shoreline, San Simeon, Los Osos, and San Luis Bay faults is entirely illogical. The Hosgri analysis is specific to that fault and, even if it could be applied to other faults, the only meaningful way to determine whether one bounded the other would be to compare the results using the same ground motion prediction equations used t o analyze the Hosgri earthquake. Instead, PG&E has applied an entirely new set of assumptions in its 2014 Seismic Report, as it did in its 2011 report to the NRC

.59 PG&E states that the analysis of ground motion potentials in the PG&E Seismic Report are based on a constantly evolving, entirely new set of ground motion potential equations from those used in either the 1977 Hosgri Evaluation or the 1991 LTSP.

60 Thus, the result of the first calculation, done with a particular set of assumptions and data, cannot rationally be compared, let alone be asserted to somehow bound, the result of a second calculation performed with an entirely different set of assumptions and augmented data.

58 PG&E Seismic Report, Ch. 13 at 12.

59 Pacific Gas and Electric Company (PG&E), 2011. Shoreline Fault Zone Report: Report on the Analysis of the Shoreline Fault Zone, Central Coastal California, report to the U.S. Nuclear Regulatory Commission, January; www.pge.com/myhome/edusafety/ systemworks/dcpp/shorelinereport/

. 60 PG&E Answer, at 30

-31. USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 44 of 50 (Page 56 of Total) 24 The illogic of PG&Es position in light of the newly published findings is obvious on its face. PG&E states that the Shoreline and Hosgri faults are capable of rupturing together along their entire 145

-kilometer length, a part of which is located only 600 meters from the plant; it is therefore difficult indeed to understand how the company could conclude that the Hosgri fault alone, at 100 kilometers in length and located five kilometers from the plant, is capable of a more powerful impact on Diablo Canyon. The only possible explanation for such an otherwise irrational claim lies in the ground motion prediction equations and perhaps other assumptions used in the two calculations in the case of Hosgri, approved by the Commission; in the case of the new PG&E report, equations that have not been subjected to peer or public review , let alone approved for incorporation into the FSARU as part of the seismic design basis

. V. THE DIABLO CANYON DE FACTO LICENSE AMENDMENT IS NOT APPROPRIATELY CONSIDERED UNDER 10 C.F.R. 2.206 a. The Current Proceeding is a De Facto License Amendment.

Both the Staff and PG&E erroneously argue that Petitioner s claim should be filed under 10 C.F.R. 2.206. That section provides that [a]ny person may file a request to institute a proceeding to modify, amend, or revoke a provision of an existing license.

61 The Commission often takes the position that citizens who seek to institute a proceeding to enforce the provisions of a license should submit their requests through the 2.206 process. Thus , the 2.206 process has two hallmarks: (1) it provides a place for a citizen to initiate an effort to change or enforce an existing license provision; and (2) it focuses on enforcing or changing settled license provisions.

By contrast, FoEs Petition is filed with respect to licensing changes in a de facto license amendment proceeding that has already been initiated by the NRC Staff and PG&E. Petitioner ask s for the process due in such a license amendment process under 189(a)(1)(A) of the

61 10 C.F.R. 2.206(a) (emphasis added). USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 45 of 50 (Page 57 of Total) 25 Atomic Energy Act, the opportunity for a public review of change s in the license to consider whether Diablo Canyon can withstand the maximum potential earthquake from the Shoreline Fault. The fact that Petitioner cite s 50.59 as a guide to NRC policy regarding when an action, such as a change in the FSAR, would require a license amendment, does not convert its Petition into a request under 2.206. Section 50.59 does provide guidance to licensees with respect to when a license amendment is necessary; but the principles enunciated therein are also a means to determine whether the NRC Staff has initiated or should initiate a license amendment.

62 See LBP-13-07, In the Matter of Southern California Edison Co. (San Onofre Generating Station, Units 2 and 3) where the ASLB was asked by the Commission to determine whether a confirmatory action letter issued to the company constituted a de facto license amendment. There , the ASLB noted that 50.59 establishes standards that may guide this Board in resolving that issue.

Whether or not PG&E did a 50.59 analysis on the proposed change, however, is irrelevant as to the nature of the Diablo Canyon proceeding now before the NRC. As both the NRC Staff and PG&E point out, the decision whether to do a 50.59 review is entirely up to the licensee. While the criteria of 50.59 may be used as an indicator of when an action constitutes a license amendment, 63 whether the licensee has discharged its duty to undertake such an analysis is an enforcement matter with which this Petition is not concerned.

62 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP 07, ASLBP No. 13

-924-01-CAL-BD01 (May 13, 2013), slip op. at *23, vacated on other grounds by 2013 WL 6384599 (Dec. 5, 2013).

63 Id. USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 46 of 50 (Page 58 of Total) 26 b. The 2.206 Petition Process Does Not Provide An Opportunity For Meaningful Relief

. In its Answer, the Staff avers that FOE is no stranger to the 2.206 process. That is true, but its experience suggests only the futility of seeking redress through that process. On June 18, 2012, FoE and named members initiated a claim seeking enforcement action against the licensee for its failure to comply with 10 C

.F.R. 50.59 when replacing steam generators. This petition was referred to Executive Director for Operations (EDO) for consideration as a 2.206 petition. Nearly two years and four months later, and nearly a year and four months after the plants owner announced that the plant would be closed permanently, the EDO has not responded to FoEs petition, although FoEs counsel continues to receive phone calls at roughly quarterly intervals from EDO staff assuring him that the Staff is busily working on a Proposed Directors Decision.

VI. CONCLUSION At the close of its Answer, PG&E makes a remarkable statement: that the regulations and guidance do not require that the . . . assumptions from the 30

-year old analysis be combined with new seismic hazards information to determine the operability of Diablo Canyon.

64 The assumptions referred to are evidently the duly adopted provisions of the Diablo Canyon license regarding the transmission of seismic ground motion to the plant, for in the next sentence the licensee claims that the safety of current operation has been established by showing that revised ground motions are less than the licensing basis ground motions.

65 These sentences encapsulate the arguments made by the licensee and supported by the Staff in this litigation. The licensee and the Commission Staff are prepared to play fast and loose

64 PG&E Answer, at 30

-31. 65 PG&E Answer, at 31.

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 47 of 50 (Page 59 of Total) 27 with the license granted by the NRC, under which PG&E is permitted to operate Diablo Canyon, and with the Atomic Energy Act. Inconvenient provisions of the license, which might require actions to strengthen the plant be taken in light of the increased power of the potential seismic activity reported in the PG&E Seismic Report, are instead to be ignored by amending the license in closed door conversations between the licensee and the Staff, rather than through the open public process required by the Atomic Energy Act.

Thus the fundamental question before the Commission in this case is whether it will insist that its Staff and the licensees adhere to the terms of the Commissions regulations, or whether the Commission will endorse the Staffs end run around the Atomic Energy Act and Commission rules. We urge that the Commission correct the Staffs error, and require a public license amendment proceeding on the implications of the new seismic findings on the safety of continued operation of the Diablo Canyon plant.

In the past the Commission has taken the position that licenses authorize only what is explicitly allowed, and the courts agree.

66 The Commission should affirm that position by convening an ASLB and directing it to grant FoEs Petition to Intervene and Request for a Hearing in the ongoing de facto license amendment proceeding.

66 Citizens Awareness Network, Inc., v. NRC, 59 F.3d 284, 294 (1st Cir. 1995) (Regulated conduct which is neither delineated, nor reasonably encompassed within the delineated categories of authorized conduct, presumptively remains unlicensed.).

USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 48 of 50 (Page 60 of Total) 28 Respectfully submitted, /s/ Richard Ayres

/s/ Jessica Olson

/s/ John Bernetich Richard Ayres Jessica Olson John Bernetich Ayres Law Group 1707 L Street, NW, Suite 850 Washington, DC 20036 Tel: (202) 452-9200 / Fax: (202) 872

-7739 ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com bernetichj@ayreslawgroup.com Counsel for Friends of the Earth Date: October 14, 2014 USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 49 of 50 (Page 61 of Total) 29 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION

________________________________________________

In the Matter of ) ) Docket Nos. 50-275 PACIFIC GAS & ELECTRIC COMPANY ) 50-323 ) (Diablo Canyon Power Plant) ) October 14, 2014 CERTIFICATE OF SERVICE I hereby certify that, on this date, the Friends of the Earths Reply to NRC Staffs and Pacific Gas & Electric Companys Answers and Proposed Amicus Curiae Nuclear Energy Institutes Brief in Response to Petition to Intervene and Request for Hearing was served via the Electronic Information Exchange system

. Signed (electronically) by Jessica Olson Jessica L. Olson Ayres Law Group 1707 L St., N.W., Suite 850 Washington, D.C. 20036 Phone: 202

-452-9200 E-mail: olsonj@ayreslawgroup.com Counsel for Friends of the Earth USCA Case #14-1213 Document #1539762 Filed: 02/26/2015 Page 50 of 50 (Page 62 of Total)