ML18218A176

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Joint Motion to Dismiss by Federal Respondents and Pacific Gas and Electric Co
ML18218A176
Person / Time
Issue date: 08/02/2018
From: James Adler, Andrew Averbach, Hansen-Young T
NRC/OGC, US Dept of Justice (DOJ), Winston & Strawn, LLP
To:
US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
References
16-1004, 1743756
Download: ML18218A176 (60)
v • d • e


Text

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 1 of 60 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 the UNITED STATES OF AMERICA, ) No. 16-1004

)

Respondents, )

)

PACIFIC GAS AND ELECTRIC COMPANY, )

)

Intervenor. )

_________________________________________)

JOINT MOTION TO DISMISS BY FEDERAL RESPONDENTS AND PACIFIC GAS AND ELECTIC COMPANY As discussed in the Fifth Status Report of June 29, 2018, the U.S. Nuclear Regulatory Commission (NRC) and the United States of America (collectively, the Federal Respondents), along with Intervenor for Respondents Pacific Gas and Electric Company, hereby ask the Court to dismiss the petition for review in the above-captioned case.

On June 20, 2016, Friends of the Earth and Pacific Gas and Electric Company, along with other parties, submitted a joint settlement proposal (Exhibit

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 2 of 60 A) to the California Public Utilities Commission, under the terms of which Pacific Gas and Electric Company agreed to, inter alia, retire Diablo Canyon at the expiration of its current NRC operating licenses. 1 Under the terms of the Joint Proposal Application, if approved by the California Public Utilities Commission, Pacific Gas and Electric Company would withdraw the NRC License Renewal Application for the Diablo Canyon nuclear power plant that is the subject of this petition for review.

On June 29, 2016, Pacific Gas and Electric Company and Friends of the Earth jointly requested, in a Joint Motion to Suspend Briefing (Exhibit B), that this Court suspend briefing in this matter pending action by the California Public Utilities Commission on the Joint Proposal Application. That Motion asked the Court to issue an order that would, among other things, [d]irect[] [Friends of the Earth] to submit a motion to dismiss this matter within 30 days of NRC acceptance of the withdrawal of the License Renewal Application for Diablo Canyon. Joint Motion to Suspend Briefing at 5.

1 Joint Proposal of Pacific Gas and Electric Company, Friends of the Earth, Natural Resources Defense Council, Environment California, International Brotherhood of Electrical Workers Local 1245, Coalition of California Utility Employees and Alliance for Nuclear Responsibility to Retire Diablo Canyon Nuclear Power Plant at Expiration of the Current Operating Licenses and Replace it with a Portfolio of GHG Free Resources (June 20, 2016), at 3 (Joint Proposal Application),

available online at http://www.pge.com/includes/docs/pdfs/safety/dcpp/JointProposal.pdf.

2

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 3 of 60 On July 21, 2016, this Court entered an order holding this case in abeyance pending further order of the Court. The Court directed the parties to file status reports at 120-day intervals beginning January 23, 2017. The Court also directed the parties to file motions to govern future proceedings in this case within 30 days of the completion of the proceedings of the California Public Utilities Commission and any subsequent proceedings of the Nuclear Regulatory Commission related thereto.

The parties filed the first status report on January 23, 2017, the second report on May 23, 2017, the third report on September 20, 2017, and the fourth report on January 18, 2018.

On April 23, 2018, the NRC published a Federal Register notice (Exhibit C) stating that Pacific Gas and Electric Companys request (filed on March 7, 2018) to withdraw the Diablo Canyon license renewal application had been accepted, effective on the date of the notice. Notice: PG&E; Diablo Canyon Power Plant Unit Nos. 1 and 2; Withdrawal of License Renewal Application, 83 Fed. Reg.

17,688 (April 23, 2018). Accordingly, the NRC nuclear reactor license renewal proceeding that was the subject of Friends of the Earths petition for review in the instant casewhich challenged the NRC order (Exhibit D) denying Friends of the 3

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 4 of 60 Earths petition to intervene in the NRC proceeding 2has now been terminated.

Apart from approving the license renewal applications withdrawal, NRC took no action on the application, and there are no remaining NRC proceedings pending regarding this matter.

Because the application for a renewed NRC license for Diablo Canyon was withdrawn from the NRC before NRC acted on it, the challenges to that applications adequacy that Friends of the Earth sought to litigate at the NRC are moot. Consequently, the instant petition for review of NRCs action denying Friends of the Earths request to intervene in the NRC proceeding to litigate those challenges is also moot. The Court should therefore dismiss the petition for review as moot. See Bucks Stove & Range Co. v. Am. Fedn of Lab., 219 U.S. 581 (1911)

(dismissing case as moot after parties settlement agreement mooted the underlying controversy); NRDC v. U.S. Nuclear Regulatory Commn, 680 F.2d 810, 814-15 (D.C. Cir. 1982) (The Supreme Court has made it clear that no justiciable controversy is presented . . . when the question sought to be adjudicated has been mooted by subsequent developments.); see also Lopez v. Natl Lab. Rel. Board, 655 Fed. Appx. 859, 861 (D.C. Cir. 2016) (unpublished) (holding that settlement 2

As reflected in Exhibit D, Friends of the Earth sought to intervene in the NRC proceeding to challenge certain aspects of Pacific Gas and Electric Companys application to renew the Diablo Canyon license. See also Exhibit A to Friends of the Earths Pet. for Rev. (Jan. 8, 2016) (same NRC order in slip opinion form).

4

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 5 of 60 of dispute before the agency mooted petition for review of agencys action denying request to intervene in the associated agency proceeding).

As stated in the June 29, 2016, Joint Motion to Suspend Briefing, and consistent with the Courts July 21, 2016, order suspending briefing in the instant case, NRCs approval of Pacific Gas and Electric Companys request to withdraw the Diablo Canyon license renewal application on April 23, 2018, should have resulted in Friends of the Earth filing a motion to dismiss its petition for review in the instant case by May 23, 2018more than two months ago. FOE has not filed such a motion.

Counsel for the Federal Respondents and Pacific Gas and Electric Company were unsuccessful in their efforts to contact Friends of the Earths counsel by both email and phone regarding the expected motion to dismiss. Pacific Gas and Electric Company informed its counsel that it understood Friends of the Earth was attempting to reach its own counsel to ensure this issue would be addressed. Based on these circumstances, the Federal Respondents and Pacific Gas and Electric Company filed the Fifth Status Report on June 29, 2018, which included as an attachment the NRCs April 23, 2018, Federal Register notice referenced above.

The Fifth Status Report also stated the Federal Respondents and Pacific Gas and Electric Companys plan, absent contrary direction from the Court, to file a motion 5

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 6 of 60 to dismiss with the Court should Friends of the Earth not file such a motion itself within thirty days.

It has now been over thirty days since the Fifth Status Report was filed, and Friends of the Earth has not filed a motion to dismiss or otherwise responded to the Fifth Status Report.

As discussed in the Fifth Status Report, and as is still the case today, the Federal Respondents and Pacific Gas and Electric Company are not aware of any change in Friends of the Earths position, expressed in the Joint Motion to Suspend Briefing, that Friends of the Earth would ask the Court to dismiss its petition for review upon successful withdrawal of the Diablo Canyon license renewal application. Further attempts by Federal Respondents and Pacific Gas and Electrics counsel, subsequent to the Fifth Status Reports filing, to contact Friends of the Earths counsel by email and phone regarding this case have been unsuccessful.

Accordingly, in light of Friends of the Earths previously stated position that this case should be dismissed after successful withdrawal of the Diablo Canyon license renewal application from the NRC, which occurred on April 23, 2018, and the fact that such withdrawal renders the petition for review moot, the Federal Respondents and Pacific Gas and Electric Company hereby ask the Court to dismiss the petition for review in the above-captioned case.

6

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 7 of 60 Respectfully submitted,

/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 (301) 415-1956 andrew.averbach@nrc.gov

/s/ James E. Adler James E. Adler Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 (301) 287-9173 james.adler@nrc.gov

/s/ Thekla Hansen-Young 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 thekla.hansen-young@usdoj.gov Counsel for Federal Respondents 7

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 8 of 60

/s/ Tyson R. Smith Tyson R. Smith WINSTON & STRAWN LLP 1700 K Street NW Washington, DC 20006 (415) 591-6874 trsmith@winston.com Counsel for Intervenor August 2, 2018 8

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 9 of 60 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Joint Motion to Dismiss complies with the formatting and type-volume restrictions of the rules of the U.S. Court of Appeals for the District of Columbia Circuit. The motion was prepared in 14-point, double spaced, Times New Roman font, using Microsoft Word 2013, in accordance with Fed. R. App. P. 32(a)(5) and Fed. R. App. P. 32(a)(6). The motion contains 1254 words and therefore complies with Fed. R. App. P. 27(d)(2)(A).

/s/ James E. Adler James E. Adler Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 10 of 60 CERTIFICATE AS TO PARTIES AND AMICI Pursuant to Circuit Rules 27(a)(4) and 28(a)(1)(A), I hereby submit the following list of parties and amici to the agency proceeding below and to the proceeding in this Court (D.C. Cir. No. 16-1004 - Friends of the Earth v. NRC):

Parties in this Court and in the agency proceeding below:

1. Friends of the Earth (Petitioner)
2. Nuclear Regulatory Commission (Respondent)
3. Pacific Gas and Electric Company (Intervenor for Respondents)

Parties in this Court but not in the agency proceeding below:

1. United States of America (Respondent, by statute (28 U.S.C. § 2348))

/s/ James E. Adler James E. Adler Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 11 of 60 CERTIFICATE OF SERVICE I certify that on August 2, 2018, I filed the foregoing Joint Motion to Dismiss with the U.S. Court of Appeals for the District of Columbia Circuit by filing it with the Courts CM/ECF system. That method is calculated to serve all counsel of record in case number 16-1004.

/s/ James E. Adler James E. Adler Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 287-9173 james.adler@nrc.gov

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 12 of 60 EXHIBIT A

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 13 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 14 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 15 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 16 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 17 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 18 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 19 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 20 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 21 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 22 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 23 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 24 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 25 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 26 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 27 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 28 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 29 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 30 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 31 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 32 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 33 of 60 USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 34 of 60 EXHIBIT B

USCA USCACaseCase#16-1004

  1. 16-1004 Document Document#1743756
  1. 1622320 Filed:

Filed:08/02/2018 06/29/2016 Page Page35 1 of 7 60 ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

)

Friends of the Earth, )

)

Petitioner, )

)

v. )

)

U.S. Nuclear Regulatory Commission, ) No. 16-1004 United States of America, )

)

Respondents, )

)

Pacific Gas & Electric Co., )

)

Intervenor. )

)

JOINT MOTION TO SUSPEND BRIEFING Pursuant to Federal Rule of Appellate Procedure 27, the undersigned parties jointly move to suspend briefing in this matter pending approval of a proposed settlement filed with the California Public Utilities Commission (CPUC) and, pursuant to that agreement, withdrawal of the license renewal application at issue in this matter. Petitioner Friends of the Earth (FOE) seeks review in this Court of Respondent Nuclear Regulatory Commissions (NRC) order denying FOEs request to intervene in an administrative proceeding regarding an application by 1

USCA USCACaseCase#16-1004

  1. 16-1004 Document Document#1743756
  1. 1622320 Filed:

Filed:08/02/2018 06/29/2016 Page Page36 2 of 7 60 Intervenor Pacific Gas & Electric Co. (PG&E) to renew the operating licenses for Diablo Canyon Nuclear Power Plant (Diablo Canyon) (License Renewal Application). Under the terms of the proposed settlement and as described more fully below, upon approval of the settlement by the CPUC, PG&E has agreed to withdraw the License Renewal Application and FOE has agreed to dismiss this matter. The undersigned parties therefore request briefing in this matter be suspended pending approval by the CPUC of the proposed settlement and subsequent withdrawal of the License Renewal Application pursuant to that agreement. Federal Respondents do not oppose the relief requested in this motion.

Background

1. On January 8, 2016, FOE sought review by this Court of the NRCs final action affirming an order by the Atomic Safety and Licensing Board denying FOEs petition to intervene in a proceeding regarding PG&Es application to renew its operating licenses for Diablo Canyon. See Petition for Review (Jan. 8, 2016); Memorandum and Order, CLI-15-21, Docket Nos. 50-275-LR, 50-323-LR (Nov. 9, 2015).
2. On June 20, 2016, FOE and PG&E, along with other parties, submitted a Joint Proposal to the CPUC, under the terms of which PG&E agreed to, inter alia, retire Diablo Canyon at the expiration of its current NRC operating licenses. Joint Proposal of Pacific Gas & Electric Company, Friends of the Earth, 2

USCA USCACaseCase#16-1004

  1. 16-1004 Document Document#1743756
  1. 1622320 Filed:

Filed:08/02/2018 06/29/2016 Page Page37 3 of 7 60 Natural Resources Defense Council, Environment California, International Brotherhood of Electrical Workers Local 1245, Coalition of California Utility Employees and Alliance for Nuclear Responsibility to Retire Diablo Canyon Nuclear Power Plant at Expiration of the Current Operating Licenses and Replace it with a Portfolio of GHG Free Resources (June 20, 2016),

http://www.pge.com/includes/docs/pdfs/safety/dcpp/JointProposal.pdf at 3 (Joint Proposal Application). The parties agreed to jointly propose and support the orderly replacement of Diablo Canyon with GHG free resources. Joint Proposal Application at 3.

3. Under the Joint Proposal Application, the parties agreed as follows:

Following final and non-appealable CPUC approval of the Joint Proposal Application, 1) PG&E will withdraw the Diablo Canyon NRC license renewal application and request that the proceeding be terminated with prejudice;

2) the Parties will support the withdrawal and termination of the Diablo Canyon NRC license renewal application; and 3) FOE will withdraw with prejudice the petition at the DC Circuit Court of Appeals and related pending hearing requests and motions in the Diablo Canyon license renewal case (Friends of the Earth v. U.S.

Nuclear Regulatory Commission, Case No. 16-1004 (D.C. Cir. filed Jan. 8, 2016)).

Joint Proposal Application at 16.

4. PG&E agreed to request that the CPUC issue a final decision approving the Joint Proposal Application no later than December 31, 2017. Joint Proposal Application at 18.

3

USCA USCACase Case#16-1004

  1. 16-1004 Document Document#1743756
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5. The parties further agreed that PG&Es obligation to withdraw its license renewal application . . . shall not become effective or binding until the CPUCs approval of the Joint Proposal Application has become final and non-appealable. Joint Proposal Application at 18.
6. Diablo Canyons current operating licenses expire on November 2, 2024 (Unit 1) and August 26, 2025 (Unit 2).
7. Petitioners brief in this matter is due July 25, 2016. Oral argument has not been scheduled.

Relief Sought

8. In light of the foregoing, the undersigned parties request that the briefing in this matter be suspended pending approval by the CPUC of the Joint Proposal Application and subsequent withdrawal by PG&E of the License Renewal Application.
9. The undersigned parties request an order:
a. Suspending briefing in this matter pending approval by the CPUC of the Joint Proposal Application and withdrawal of the License Renewal Application;
b. Directing PG&E to submit status reports every 120 days, beginning January 20, 2017, regarding the status of the CPUCs 4

USCA USCACase Case#16-1004

  1. 16-1004 Document Document#1743756
  1. 1622320 Filed:

Filed:08/02/2018 06/29/2016 Page Page395 of 7 60 consideration of the Joint Proposal Application and the status of PG&Es License Renewal Application;

c. Directing FOE to submit a motion to dismiss this matter within 30 days of NRC acceptance of the withdrawal of the License Renewal Application; and
d. Directing the parties to submit motions to govern future proceedings within 30 days of the CPUC taking any final action regarding the Joint Proposal Application that does not approve the Joint Proposal Application as submitted or otherwise has the effect that PG&E will not withdraw the License Renewal Application in accordance with the terms of the Joint Proposal Application.

5

USCA USCACase Case#16-1004

  1. 16-1004 Document Document#1743756
  1. 1622320 Filed:

Filed:08/02/2018 06/29/2016 Page Page406 of 7 60 Respectfully submitted, David A. Repka /s/ Richard E. Ayres Tyson R. Smith Richard E. Ayres WINSTON & STRAWN LLP Jessica L. Olson 1700 K Street, NW AYRES LAW GROUP LLP Washington, DC 20006 1707 L St. NW, Suite 850 1-202-282-5726 Washington, DC 20036 (202) 452-9200 Counsel for Pacific Gas & ayresr@ayreslawgroup.com Electric Co. olsonj@ayreslawgroup.com John H. Bernetich AYRES LAW GROUP LLP 1536 Wynkoop St., Suite 528 Denver, CO 80202 (720) 504-3002 bernetichj@ayreslawgroup.com Counsel for Friends of the Earth Dated: June 29, 2016 6

USCA USCACase Case#16-1004

  1. 16-1004 Document Document#1743756
  1. 1622320 Filed:

Filed:08/02/2018 06/29/2016 Page Page417 of 7 60 CERTIFICATE OF SERVICE I certify that on June 29, 2016, I served the foregoing Joint Motion to Suspend Briefing in the above-captioned case upon all counsel registered with the Courts CM/ECF system.

Respectfully submitted,

/s/ John H. Bernetich John H. Bernetich AYRES LAW GROUP LLP 1536 Wynkoop St., Suite 528 Denver, CO 80202 (720) 504-3002 bernetichj@ayreslawgroup.com 7

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 42 of 60 EXHIBIT C

USCA Case #16-1004 17688 Document Federal Register / Vol. 83,#1743756 Filed:23, No. 78 / Monday, April 08/02/2018 2018 / Notices Page 43 of 60

  • Minimize the burden of the capacity, increasing community access). DATES: The effective date of the collection of information on those who We are particularly interested in withdrawal of the license renewal are to respond, including through the enhanced services for veterans/military application is April 23, 2018.

use of appropriate automated, families, sustained opportunities for ADDRESSES: Please refer to Docket ID electronic, mechanical, or other diverse youth and young professionals, NRC-2009-0052 when contacting the technological collection techniques or and assistance to marginalized young NRC about the availability of other forms of information technology families or seniors. Recipient information regarding this document.

(e.g., permitting electronic submission institutions are honored at an awards You may obtain publicly-available of responses). ceremony that is held in Washington, information related to this document ADDRESSES: Comments should be sent to DC. using any of the following methods:

Office of Information and Regulatory Agency: Institute of Museum and

  • Federal Rulemaking Website: Go to Affairs, Attn.: OMB Desk Officer for Library Services. http://www.regulations.gov and search Education, Office of Management and

Title:

IMLS National Medals for Docket ID NRC-2009-0052. Address Budget, Room 10235, Washington, DC Nomination Forms. questions about NRC dockets to Jennifer 20503, (202) 395-7316. OMB Number: 3137-0097. Borges; telephone: 301-287-9127; FOR FURTHER INFORMATION CONTACT: Dr. Frequency: Once per year. email: Jennifer.Borges@nrc.gov. For Sandra Webb, Director of Grant Policy Affected Public: Library and Museum technical questions, contact the and Management, Institute of Museum applicants. individual listed in the FOR FURTHER and Library Services, 955 LEnfant Plaza Number of Respondents: 160. INFORMATION CONTACT section of this North SW, Suite 4000, Washington, DC Estimated Average Burden per document.

20024-2135. Dr. Webb can be reached Response: 9 hours1.041667e-4 days <br />0.0025 hours <br />1.488095e-5 weeks <br />3.4245e-6 months <br />.

  • NRCs Agencywide Documents by Telephone: 202-653-4718 Fax: 202- Estimated Total Annual Burden: Access and Management System 653-4608, or by email at swebb@ 1,440 hours0.00509 days <br />0.122 hours <br />7.275132e-4 weeks <br />1.6742e-4 months <br />. (ADAMS): You may obtain publicly imls.gov, or by teletype (TTY/TDD) for Total Annualized Capital/Startup available documents online in the persons with hearing difficulty at 202- Costs: n/a. ADAMS Public Documents collection at 653-4614. Total Annual Costs: $40,219. http://www.nrc.gov/reading-rm/

SUPPLEMENTARY INFORMATION: The Dated: April 18, 2018. adams.html. To begin the search, select Institute of Museum and Library Kim Miller, ADAMS Public Documents and then Services is the primary source of federal select Begin Web-based ADAMS Grants Management Specialist, Office of support for the nations libraries and Grants Policy and Management. Search. For problems with ADAMS, museums. We advance, support, and please contact the NRCs Public

[FR Doc. 2018-08407 Filed 4-20-18; 8:45 am]

empower Americas museums, libraries, Document Room (PDR) reference staff at BILLING CODE 7036-01-P and related organizations through grant 1-800-397-4209, 301-415-4737, or by making, research, and policy email to pdr.resource@nrc.gov. The development. Our vision is a nation ADAMS accession number for each NUCLEAR REGULATORY document referenced (if it is available in where museums and libraries work COMMISSION together to transform the lives of ADAMS) is provided the first time that individuals and communities. To learn [Docket Nos. 50-275 and 50-323; NRC- it is mentioned in this document.

more, visit www.imls.gov. 2009-0552]

  • NRCs PDR: You may examine and Current Actions: This notice proposes purchase copies of public documents at the clearance of the IMLS National Pacific Gas & Electric Company; the NRCs PDR, Room O1-F21, One Medals Nomination forms and Diablo Canyon Power Plant, Unit Nos. White Flint North, 11555 Rockville instructions. The 60-day Notice for the 1 and 2; Withdrawal of License Pike, Rockville, Maryland 20852.

Notice of Proposed Information Renewal Application FOR FURTHER INFORMATION CONTACT:

Collection Requests: 2019-2021 IMLS AGENCY: Nuclear Regulatory Elaine Keegan, Office of Nuclear Reactor National Medals Nomination Forms was Commission. Regulation, U.S. Nuclear Regulatory published in the Federal Register on ACTION: License renewal application; Commission, Washington, DC 20555-November 27, 2017 (82 FR 56058). The withdrawal by applicant. 0001; telephone: 301-415-8517; email:

agency has taken into consideration the Elaine.Keegan@nrc.gov.

one comment that was received under

SUMMARY

The U.S. Nuclear Regulatory SUPPLEMENTARY INFORMATION: The this notice. Commission (NRC) has granted the licensee submitted its application for The National Medals are designed to request of Pacific Gas & Electric license renewal for DCPP, Unit Nos. 1 recognize outstanding libraries and Company (PG&E or the licensee) to and 2, on November 23, 2009 (ADAMS museums that have made significant withdraw its application, and all Accession No. ML093340086). DCPP, contributions in service to improve the associated correspondence and Unit Nos. 1 and 2, are located in San wellbeing of their communities. These commitments, dated November 23, Luis Obispo County, California, institutions exceed expected levels of 2009, for license renewal of Diablo approximately 7 miles northwest of community outreach beyond a single Canyon Power Plant (DCPP), Unit Nos. Avila Beach and 12 miles west-program or exhibit by building 1 and 2 (Operating License Nos. DPR- southwest of San Luis Obispo. On April community cohesion and serving as 80 and DPR-82, respectively). The 10, 2011, PG&E requested the deferral of catalysts for positive community license renewal application had a final decision on the license renewal amozie on DSK30RV082PROD with NOTICES change. Nominees should review the requested 20 additional years of application until seismic studies and a IMLS strategic plan (https:// operation for DCPP, Unit Nos. 1 and 2. report addressing the results of those www.imls.gov/publications/ By withdrawing the license renewal studies were completed (ADAMS transforming-communities-imls- application, the current operating Accession No. ML111010592).

strategic-plan-2018-2022) and highlight licenses will expire on November 2, The NRC staff issued a safety how their work aligns (e.g., promoting 2024, for DCPP Unit No. 1, and on evaluation report on June 2, 2011 lifelong learning, building institutional August 26, 2025, for Unit No. 2. (ADAMS Accession No. ML11153A103),

VerDate Sep<11>2014 17:09 Apr 20, 2018 Jkt 244001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\23APN1.SGM 23APN1

USCA Case #16-1004 Document Federal Register / Vol. 83,#1743756 Filed:23, No. 78 / Monday, April 08/02/2018 2018 / Notices Page 44 of 60 17689 that documented the technical safety SUPPLEMENTARY INFORMATION: Effective applies to all registered investment review of DCPP, Unit Nos. 1 and 2. with the ZIP Code Zone Charts update advisers. In relying on the rule, Appendix A of the safety evaluation on June 1, 2018, Inbound Mail from investment advisers must provide report listed PG&Es commitments for APO/FPO/DPO ZIP Codes will be certain disclosures to their clients.

renewal of the operating licenses. rezoned to coordinate the Origin/ Advisory clients can use the disclosures The NRC staff resumed the review of Destination ZIP Codes with the to monitor agency cross transactions the license renewal application after designated International Service Centers that affect their advisory account. The PG&E submitted the annual update for (ISC) through which each originating Commission also uses the information the application on December 22, 2014 ZIP Code dispatches mail. This means required by Rule 206(3)-2, in (ADAMS Package Accession No. that mail being sent from the various connection with its investment adviser ML14364A259). Subsequently, on June APO/FPO/DPO ZIP codes will be inspection program to ensure that 21, 2016, PG&E requested that the NRC realigned so that both outbound and advisers are in compliance with the staff suspend the license renewal review inbound ZIPs will be paired with the rule. Without the information collected (ADAMS Accession No. ML16175A561). areas they serve. The US Postal Service under the rule, advisory clients would At that time, PG&E also requested refers to these relationships as not have information necessary for approval from the California Public reciprocal or retrograde pairs. This monitoring their advisers handling of Utilities Commission not to proceed is a change from the current process their accounts and the Commission with license renewal. The NRC staff where Pacific ZIP Codes are zoned would be less efficient and effective in suspended the license renewal review through the San Francisco ISC and the its inspection program.

in July 2016. On January 11, 2018, the European ZIP Codes are zoned through The information requirements of the California Public Utilities Commission the JFK ISC. After June 1, 2018, each of rule consist of the following: (1) Prior to approved PG&Es proposal to close the five ISCs will be aligned with obtaining the clients consent, DCPP, Unit Nos. 1 and 2, when its reciprocal pairs for inbound mail from appropriate disclosure must be made to current licenses expire. By letter dated APO/FPO/DPO ZIP Codes. This will the client as to the practice of, and the March 7, 2018, PG&E requested result in a more accurate pricing model conflicts of interest involved in, agency withdrawal of its license renewal for Military customers mailing items cross transactions; (2) at or before the application, including all associated back to the United States. completion of any such transaction, the correspondence and commitments, for client must be furnished with a written Ruth Stevenson, confirmation containing specified DCPP, Unit Nos. 1 and 2 (ADAMS Attorney, Federal Compliance.

Accession No. ML18066A937). information and offering to furnish

[FR Doc. 2018-08360 Filed 4-20-18; 8:45 am] upon request certain additional Pursuant to the requirements in part 2 of title 10 of the Code of Federal BILLING CODE 7710-12-P information; and (3) at least annually, Regulations, the Commission grants the client must be furnished with a PG&Es request to withdraw DCPP, Unit written statement or summary as to the Nos. 1 and 2, license renewal SECURITIES AND EXCHANGE total number of transactions during the application. COMMISSION period covered by the consent and the total amount of commissions received Dated at Rockville, Maryland, this 17th day Submission for OMB Review; by the adviser or its affiliated broker-of April 2018. Comment Request dealer attributable to such transactions.

For the Nuclear Regulatory Commission. The Commission estimates that Eric R. Oesterle, Upon Written Request, Copies Available approximately 426 respondents use the From: Securities and Exchange Chief, License Renewal Project Branch, rule annually, necessitating about 50 Division of Materials and License Renewal, Commission Office of FOIA Services, responses per respondent each year, for Office of Nuclear Reactor Regulation. 100 F Street NE, Washington, DC a total of 21,300 responses. Each 20549-2736

[FR Doc. 2018-08366 Filed 4-20-18; 8:45 am] response requires an estimated 0.5 BILLING CODE 7590-01-P Extension: hours, for a total of 10,650 hours0.00752 days <br />0.181 hours <br />0.00107 weeks <br />2.47325e-4 months <br />. The Rule 206(3)-2; SEC File No. 270-216, OMB estimated average burden hours are Control No. 3235-0243 made solely for the purposes of the POSTAL SERVICE Notice is hereby given that, pursuant Paperwork Reduction Act and are not to the Paperwork Reduction Act of 1995 derived from a comprehensive or Revision to ZIP Code Zone Charts for (44 U.S.C. 3501 et seq.) the Securities representative survey or study of the APO/FPO/DPO Inbound Mail and Exchange Commission (the cost of Commission rules and forms.

Commission) has submitted to the This collection of information is AGENCY: Postal ServiceTM. Office of Management and Budget a found at (17 CFR 275.206(3)-2) and is ACTION: Notice. request for extension of the previously necessary in order for the investment approved collection of information adviser to obtain the benefits of Rule

SUMMARY

The Postal Service will rezone discussed below. 206(3)-2, The collection of information Inbound Mail from APO/FPO/DPO ZIP Rule 206(3)-2, (17 CFR 275.206(3)-2,) requirements under the rule is Codes to coordinate the Origin/ which is entitled Agency Cross mandatory. Information subject to the Destination ZIP Codes with the Transactions for Advisory Clients, disclosure requirements of Rule 206(3)-

designated International Service Centers permits investment advisers to comply 2 does not require submission to the (ISC) through which each originating with section 206(3) of the Investment Commission; and, accordingly, the ZIP Code dispatches mail.

amozie on DSK30RV082PROD with NOTICES Advisers Act of 1940 (the Act) (15 disclosure pursuant to the rule is not DATES: Applicable: June 1, 2018. U.S.C. 80b-6(3)) by obtaining a clients kept confidential.

FOR FURTHER INFORMATION CONTACT: blanket consent to enter into agency Commission-registered investment Direct questions or comments to cross transactions (i.e., a transaction in advisers are required to maintain and Kimberly G. Forehan by email at which an adviser acts as a broker to both preserve certain information required kimberly.g.forehan@usps.gov or phone the advisory client and the opposite under Rule 206(3)-2 for five (5) years.

(859) 447-2652. party to the transaction). Rule 206(3)-2, The long-term retention of these records VerDate Sep<11>2014 17:09 Apr 20, 2018 Jkt 244001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\23APN1.SGM 23APN1

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 45 of 60 EXHIBIT D

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 46 of 60 Cite as 82 NRC 295 (2015) CLI-15-21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Stephen G. Burns, Chairman Kristine L. Svinicki William C. Ostendorff Jeff Baran In the Matter of Docket Nos. 50-275-LR 50-323-LR PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) November 9, 2015 STANDARD OF REVIEW The Commissions standard of review is highly deferential; the Commission will not overturn a licensing boards ruling on threshold issues like intervention absent error of law or abuse of discretion.

CONTENTIONS, ADMISSIBILITY For a successful intervention petition or request for hearing, a petitioner must, in addition to demonstrating standing, propose at least one contention that: (1) provides a specific statement of the issue of law or fact to be raised or controverted; (2) provides a brief explanation of its basis; (3) demonstrates that the issue raised is within the scope of the proceeding; (4) demonstrates that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provides a concise statement of the alleged facts or expert opinions that support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue; and (6) provides sufficient information to show 295

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 47 of 60 that a genuine dispute exists with the applicant/licensee on a material issue of law or fact, with references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the contention must identify each failure and the supporting reasons for the petitioners belief.

CONTENTIONS, ADMISSIBILITY The Commissions contention admissibility requirements are strict by design; only focused, well-supported issues will be admitted for hearing.

CONTENTIONS, ADMISSIBILITY The Commissions rules of practice also place limits on the types of issues a petitioner may raise. As relevant here, 10 C.F.R. § 2.335(a) prohibits challenges to an agency rule or regulation in an adjudicatory proceeding without a waiver of that rule or regulation.

WAIVER OF RULE Because the Commissions rules were promulgated with the expectation that they will apply generically, rather than on a case-by-case basis, the Commission sets a high bar for waivers: a waiver request must demonstrate that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which it was adopted.

WAIVER OF RULE To determine whether the waiver standard has been met, the Commission applies a four-factor test. The petitioner must demonstrate that: (i) the rules strict application would not serve the purposes for which it was adopted; (ii) special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) waiver of the regulation is necessary to reach a significant safety or environmental problem.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 48 of 60 CONTENTIONS, ADMISSIBILITY Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.

LICENSE RENEWAL PROCEEDINGS The Commissions license renewal regulations rely on the regulatory processes applicable to all currently operating reactors to address most safety and security issues, limiting license renewal proceedings to consideration of only certain issues related specifically to plant aging.

MEMORANDUM AND ORDER Friends of the Earth has appealed the Atomic Safety and Licensing Boards ruling in LBP-15-6, in which the Board denied Friends of the Earths petition to intervene and its related request to waive certain regulations that govern the scope of this license renewal proceeding.1 For the reasons set forth below, we affirm the Boards ruling.

I. BACKGROUND In November 2009, Pacific Gas and Electric Company (PG&E) applied to renew the operating licenses for Diablo Canyon Units 1 and 2 for an additional 20 years.2 The NRC Staff docketed the application and provided an opportunity for interested persons to request an adjudicatory hearing.3 At that time, one petitioner, the San Luis Obispo Mothers for Peace, filed a request for hearing and proposed five contentions challenging the application.4 The Board admitted three 1

Friends of the Earths Notice of Appeal of LBP-15-6 (Mar. 9, 2015); Brief of Friends of the Earth in Support of Appeal of LBP-15-6 (Mar. 9, 2015) (Appeal); LBP-15-6, 81 NRC 314, 327 (2015).

2 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License Nos. DPR-80 and DPR-82 for an Additional 20-Year Period; Pacific Gas & Electric Company, Diablo Canyon Nuclear Power Plant, Units 1 and 2; and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information (SUNSI) for Contention Preparation, 75 Fed. Reg. 3493, 3493 (Jan. 21, 2010).

3 Id.

4 Request for Hearing and Petition to Intervene by San Luis Obispo Mothers for Peace (Mar. 22, 2010).

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 49 of 60 of them.5 We reversed in part and affirmed in part the Boards ruling, leaving one admitted contention pending in the proceeding.6 In that contention, Mothers for Peace asserted that PG&Es Environmental Report, specifically PG&Es severe accident mitigation alternatives analysis, failed to consider the Shoreline Fault, a recently discovered fault near the Diablo Canyon facility.7 Since the discovery of the Shoreline Fault, PG&E has undertaken a series of studies to gain a better understanding of the seismic landscape near Diablo Canyon.8 Among these efforts, at the request of the State of California, PG&E launched a major seismic imaging project, which culminated in a final report that PG&E provided to the NRC in September 2014.9 PG&E also incorporated the information it obtained from the seismic imaging project into its March 2015 response to the Staffs request for updated seismic hazard information from all licensees as part of the agencys response to the March 2011 nuclear accident at the Fukushima Dai-ichi Nuclear Power Plant in Japan.10 Over the course of 5

LBP-10-15, 72 NRC 257, 345-46 (2010). The Board also found that Mothers for Peace had demonstrated a prima facie case for waiver to support the admission of a fourth contention; the Board conditionally admitted that contention and certified the waiver petition to us for review. Id. at 345.

We denied the waiver request and thus found the contention inadmissible. CLI-11-11, 74 NRC 427, 452 (2011).

6 Id. at 444.

7 Id. at 438; see infra note 10.

8 See, e.g., Report on the Analysis of the Shoreline Fault Zone, Central Coastal California:

Report to the U.S. Nuclear Regulatory Commission (Jan. 2011), at ES-1 (ADAMS Accession No. ML110140425).

9 See Central Coastal California Seismic Imaging Project (Sept. 10, 2014) (ADAMS Accession No. ML14260A106 (package)).

10 See Allen, Barry S., PG&E, Letter to U.S. NRC Document Control Desk (Mar. 11, 2015), at 1-2, Enclosure 1 (ADAMS Accession No. ML15071A046 (package)); see also Tr. at 770-71. See generally 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 (Mar. 12, 2012) (ADAMS Accession No. ML12053A340)

(50.54(f) Letter); Final Determination of Licensee Seismic Probabilistic Risk Assessments Under the Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendation 2.1 Seismic of the Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (Oct. 27, 2015) (ADAMS Accession No. ML15194A015). PG&Es updated seismic hazard analysis also will be considered in certain limited respects to inform the Staffs environmental review of PG&Es license renewal application, specifically with regard to the severe accident mitigation alternatives analysis and Mothers for Peaces admitted contention. See Lindell, Joseph A., counsel for NRC Staff, Letter to Licensing Board (July 16, 2015), at 1 (ADAMS Accession No. ML15197A195); Tr. at 784. Relatedly, PG&E sought summary disposition of Mothers for Peaces admitted contention, arguing that because PG&E has now considered the Shoreline Fault in its severe accident mitigation alternatives analysis, the contention should be dismissed. See Pacific Gas and Electric Companys Motion for Summary Disposition on Contention EC-1 (July 31, 2015) at 1-2. The Board recently granted summary disposition and has terminated the proceeding. LBP-15-29, 82 NRC 246 (2015).

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 50 of 60 this ongoing process, the Staff will review PG&Es updated seismic hazard information to determine what impacts, if any, it will have on current operations at Diablo Canyon, including whether any changes to Diablo Canyons current licensing basis are necessary.11 One month after PG&E submitted the seismic imaging project report to the NRC, Friends of the Earth filed a petition to intervene with three proposed contentions.12 In general, Friends of the Earth asserted that the operating licenses for Diablo Canyon Units 1 and 2 may not be renewed until the agency explores, in an evidentiary hearing, the impact of the new seismic information on the safe operation of the plant.13 Although Friends of the Earth argued that its contentions were within the scope of the Diablo Canyon license renewal proceeding, as a precaution it also requested a waiver of three regulations in 10 C.F.R. Part 54 that pertain to the scope of the agencys license renewal review:14 10 C.F.R. § 54.4, which defines the scope of license renewal; 10 C.F.R. § 54.21, which sets forth the contents of a license renewal application; and 10 C.F.R. § 54.29, which sets forth the findings that the agency must make for the issuance of a renewed license.15 11 See Tr. at 764-65, 791-93; see also 50.54(f) Letter at 1 (The review will enable the staff to determine whether the nuclear plant licenses . . . should be modified, suspended, or revoked.).

12 Friends of the Earths Request for a Hearing and Petition to Intervene (Oct. 10, 2014) at 1 (Petition); Affidavit and Curriculum Vitae of Dr. Gerhard Jentzsch (Oct. 8, 2014); Gundersen Affidavit Supporting Friends of the Earths Petition to Intervene (Oct. 10, 2014). Friends of the Earth filed a separate hearing request, a portion of which we referred to the Atomic Safety and Licensing Board to determine whether, as Friends of the Earth asserts, there is an ongoing de facto license amendment proceeding involving PG&Es updated seismic hazard evaluation, for which the NRC is required to provide an opportunity to request a hearing under the Atomic Energy Act of 1954, as amended (AEA). See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-14, 81 NRC 729, 730, 734-35 (2015); Petition to Intervene and Request for Hearing by Friends of the Earth (Aug. 26, 2014) (Hearing Request) (ADAMS Accession No. ML14254A223 (package)); see also infra note 69 (discussing the referral of a portion of this hearing request to the Staff for resolution under section 2.206). The Board recently denied Friends of the Earths request for hearing on the ground that the NRC has neither granted PG&E greater authority than that provided by its license nor otherwise altered the terms of those licenses, and therefore, Friends of the Earth had not demonstrated the existence of a licensing action subject to hearing rights under section 189a of the Atomic Energy Act. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-15-27, 82 NRC 184, 186 (2015). Friends of the Earth has appealed the Boards decision.

Friends of the Earths Notice of Appeal of LBP-15-27 (Oct. 23, 2015); Brief of Friends of the Earth in Support of Appeal of LBP-15-27 (Oct. 23, 2015) (ADAMS Accession No. ML15296A550).

13 See Petition at 1-2, 6, 10.

14 See id. at 20-21, 30; Friends of the Earths Petition for Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding (Oct. 10, 2014) (Waiver Request); Declaration of Richard Ayres, Counsel for Friends of the Earth, Regarding Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding (Oct. 10, 2014).

15 10 C.F.R. §§ 54.4, 54.21, 54.29.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 51 of 60 In response to questioning from the Board at oral argument, Friends of the Earth requested waiver of 10 C.F.R. § 54.30 to the extent it also precluded the litigation of Friends of the Earths proposed contentions.16 That section states that matters relating to reasonable assurance of safety during the current license term are to be addressed under the current license and are outside the scope of a license renewal review.17 Mothers for Peace filed an answer in support of Friends of the Earths petition to intervene and waiver request.18 PG&E and the Staff opposed Friends of the Earths intervention on several grounds. Both PG&E and the Staff asserted that Friends of the Earths proposed contentions were not timely filed because, in PG&Es view, Friends of the Earth could have filed them in 2011, when PG&E submitted an earlier report on the Shoreline Fault to the agency, or, in the Staffs view, no later than 2012, when the Staff completed a confirmatory analysis of that report.19 In addition, PG&E and the Staff argued that the proposed contentions were outside the scope of the proceeding because they raised current operating issues rather than the safety issues designated for review in a license renewal proceeding specifically, those relating to the aging management of certain structures, systems, and components during the period of extended operation.20 PG&E and the Staff also asserted that Friends of the Earths waiver request should not be granted because Friends of the Earth had not demonstrated special circumstances that would prevent the challenged license renewal regulations from serving their intended purpose.21 The Board decline[d] to reject [Friends of the Earths] petition as untimely, but ultimately found that Friends of the Earths contentions did not meet our admissibility requirements and that its waiver request did not demonstrate a prima 16 Appeal at 1-2 n.3; Tr. at 740-41. Because we find that Friends of the Earth has not met the standard for a waiver of our rules, we need not address the timeliness of this additional request.

17 10 C.F.R. § 54.30.

18 San Luis Obispo Mothers for Peaces Response to Friends of the Earths Request for a Hearing and Petition to Intervene and Petition for Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding (Nov. 4, 2014), at 1.

19 See Pacific Gas and Electric Companys Answer Opposing the Friends of the Earth Hearing Request and Petition for Waiver (Nov. 4, 2014) at 23-25 (PG&E Answer); NRC Staffs Answer to Friends of the Earths Request for a Hearing and Petition to Intervene and Waiver Petition (Nov. 4, 2014) at 20 (Staff Answer). See generally Report on the Analysis of the Shoreline Fault Zone, Central Coastal California (Jan. 7, 2011) (ADAMS Accession No. ML110140431 (package)); Research Information Letter 12-01, Confirmatory Analysis of Seismic Hazard at Diablo Canyon Power Plant from the Shoreline Fault Zone (Sept. 2012) (ADAMS Accession No. ML121230035). Friends of the Earth filed a reply to PG&Es and the Staffs answers. Friends of the Earths Reply to NRC Staffs and Pacific Gas & Electric Companys Answers to Petition to Intervene and Request for Hearing (Nov. 12, 2014).

20 See PG&E Answer at 13-15; Staff Answer at 25-26, 30, 37.

21 See PG&E Answer at 25-28; Staff Answer at 41-50.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 52 of 60 facie case for waiver.22 The Board therefore denied both the petition to intervene and the waiver request, and Friends of the Earth filed the instant appeal.23 Friends of the Earths appeal qualifies as an appeal as of right under 10 C.F.R. § 2.311(c).24 Our standard of review is highly deferential; we will not overturn a licensing boards ruling on threshold issues like intervention absent error of law or abuse of discretion.25 II. DISCUSSION For a successful intervention petition or request for hearing, a petitioner must, in addition to demonstrating standing, propose at least one contention that:

(1) provides a specific statement of the issue of law or fact to be raised or controverted; (2) provides a brief explanation of its basis; (3) demonstrates that the issue raised is within the scope of the proceeding; (4) demonstrates that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provides a concise statement of the alleged facts or expert opinions that support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue; and (6) provides sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact, with references to specific portions of the application (including the applicants envi-ronmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or if the petitioner believes that the application fails to contain information on a relevant matter as required 22 LBP-15-6, 81 NRC at 320, 325.

23 Id. at 327. PG&E and the Staff oppose Friends of the Earths Appeal. See Pacific Gas and Electric Companys Opposition to Friends of the Earth Appeal from LBP-15-6 (Apr. 3, 2015) at 1; NRC Staffs Answer to Friends of the Earths Appeal of Memorandum and Order LBP-15-6 (Denying Petition to Intervene and Petition for Waiver) (Apr. 2, 2015) at 2.

24 See 10 C.F.R. § 2.311(c) (providing an appeal as of right on the question whether a request for hearing or petition to intervene should have been granted).

25 See, e.g., CLI-11-11, 74 NRC at 431.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 53 of 60 by law, the contention must identify each failure and the supporting reasons for the petitioners belief.26 Our contention admissibility requirements are strict by design; only focused, well-supported issues will be admitted for hearing.27 Our rules of practice also place limits on the types of issues a petitioner may raise. As relevant here, 10 C.F.R. § 2.335(a) prohibits challenges to an agency rule or regulation in an adjudicatory proceeding without a waiver of that rule or regulation. And because our rules were promulgated with the expectation that they will apply generically, rather than on a case-by-case basis, we set a high bar for waivers: a waiver request must demonstrate that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which . . . [it] was adopted.28 To determine whether this standard has been met, we apply a four-factor test.29 The petitioner must demonstrate that:

(i) the rules strict application would not serve the purposes for which it was adopted; (ii) special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) waiver of the regulation is necessary to reach a significant safety or environmental problem.30 Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.31 26 10 C.F.R. § 2.309(a), (f)(1)(i)-(vi). The Board found that Friends of the Earth had demonstrated standing through the authorized representation of members who live within 50 miles of the Diablo Canyon Nuclear Power Plant site. See LBP-15-6, 81 NRC at 317-18 & n.22. The Boards ruling on Friends of the Earths standing is not before us on appeal.

27 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001).

28 10 C.F.R. § 2.335(b); see also Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 206-07 (2013).

29 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005).

30 Id.; Limerick, CLI-13-7, 78 NRC at 207-09.

31 See 10 C.F.R. § 2.309(f)(1)(iii). We also discussed the relationship between sections 2.335(a) and 2.309(f)(iii) earlier in this proceeding. See CLI-11-11, 74 NRC at 452.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 54 of 60 On appeal, Friends of the Earth asks us to reverse the Boards ruling in LBP-15-6, grant its waiver request, and admit Contentions 1 and 3 for hearing.32 In the alternative, Friends of the Earth asks us to grant the waiver request and remand the proceeding to the Board to consider anew the admissibility of Contentions 1 and 3.33 We find that the Board appropriately denied Friends of the Earths petition to intervene and waiver request. Therefore, we decline to remand the contention admissibility issue for the Board to address a second time.

A. Friends of the Earths Contentions 1 and 3 In Contention 1, Friends of the Earth argued that the information in the seismic imaging report demonstrates that the potential energy from seismic activity near Diablo Canyon is far greater than previously known.34 Friends of the Earth asserted that PG&Es imaging study revealed that the Shoreline Fault is longer than previously known, that it may rupture with the Hosgri Fault (a nearby fault that was used in the calculation of the seismic design and licensing basis for Diablo Canyon during the initial operating license proceeding), and that the Hosgri and San Simeon faults are assumed to be connected.35 Friends of the Earth asserts that this new information demonstrates that previous seismic studies by PG&E significantly underestimated the potential seismic energy that could be released near Diablo Canyon.36 Based on its interpretation of the new information, Friends of the Earth questioned PG&Es conclusion that the updated ground motion calculations are bounded by Diablo Canyons existing seismic design and licensing bases.37 Friends of the Earth also questioned PG&Es calculation methodology, arguing that the equations used in the seismic imaging report were not peer-reviewed and have not been approved by the NRC.38 Ultimately, Friends of the Earth argued that the Board should not renew the operating licenses for Diablo Canyon until PG&E can demonstrate that the plant can be safely shut down following an earthquake on one or more of [the nearby] faults.39 32 Appeal at 2. Friends of the Earth does not challenge the Boards ruling on Contention 2, which pertained to aging management of certain switches and snubbers. Id. at 2 n.6; Petition at 21.

33 Appeal at 2.

34 Petition at 10.

35 Id. at 11-12.

36 Id. at 12.

37 See id. at 15.

38 See id. at 13-15.

39 Id. at 10; see also id. at 8 (Contention 1: PG&Es operating license for Diablo Canyon should not be renewed unless and until PG&E establishes that the plant can withstand and be safely shut down following an earthquake on the Hosgri-San Simeon, Shoreline, Los Osos, or San Luis Bay Faults.).

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 55 of 60 The Board rejected Friends of the Earths Contention 1 because it did not meet three of the requirements for an admissible contention.40 The Board noted that Friends of the Earth did not dispute that safe shutdown of the plant is a current operating issue that is not dependent upon whether PG&Es licenses . . . should be renewed.41 The Board found this concern to be outside the narrow scope of the license renewal proceeding, which, for safety-related issues, is limited to plant structures and components that will require an aging management review for the period of extended operation [under the renewed license] and the plants systems, structures, and components that are subject to an evaluation of time-limited aging analyses.42 Similarly, the Board found that Friends of the Earth did not raise an issue material to the findings the NRC must make to support the licensing action, which, as noted above, is narrowly focused.43 Finally, the Board found that Friends of the Earth had not raised a genuine dispute with PG&E because its concerns do not actually challenge any specific part of PG&Es license renewal application.44 We agree with the Boards finding that Contention 1 is outside the scope of this license renewal proceeding. Contention 1 asserts that, to obtain a renewed license, PG&E must adequately demonstrate that Diablo Canyon can withstand and be safely shut down following an earthquake on the Hosgri-San Simeon, Shoreline, Los Osos, or San Luis Bay faults.45 As the Board properly recognized, this contention raises a current operating issue that is not unique to whether PG&Es licenses which do not expire until nearly a decade from now should be renewed.46 A central principle of our license renewal regulations is that such issues must be addressed as they arise.47 Accordingly, our regulations rely on the 40 LBP-15-6, 81 NRC at 321-22. All six requirements must be met for a contention to be admitted.

10 C.F.R. § 2.309(f)(1).

41 LBP-15-6, 81 NRC at 320-21.

42 Id. at 321 (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-01-20, 54 NRC 211, 212 (2001)).

43 Id. at 321-22.

44 Id. at 322.

45 Petition at 8.

46 LBP-15-6, 81 NRC at 320-21.

47 Final Rule: Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,463-64 (May 8, 1995) (License Renewal Rule) (reaffirming the regulatory philosophy that, [g]iven the Commissions ongoing obligation to oversee the safety and security of operating reactors, issues that are relevant to current plant operation will be addressed by the existing regulatory process within the present license term rather than deferred until the time of license renewal); see also Millstone, CLI-05-24, 62 NRC at 560-61 ([I]t makes no sense to spend the parties and our own valuable resources litigating allegations of current deficiencies in a proceeding that is directed to future-oriented issues of aging. (emphasis in original)). This concept is the first principle of license renewal, which (Continued) 304

USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 56 of 60 regulatory processes applicable to all currently operating reactors to address most safety and security issues, limiting license renewal proceedings to consideration of only certain issues related specifically to plant aging.48 Contention 1 does not address the particular aging-related matters within the scope of license renewal proceedings under our 10 C.F.R. Part 54 regulations. Thus, the contention is outside the scope of this license renewal proceeding.

A contention outside the scope of a proceeding is not admissible for hearing in that proceeding.49 To remedy that deficiency, Friends of the Earth must persuade us to grant its waiver petition, in which it asks us to set aside, for purposes of this specific proceeding, the foundational regulations in 10 C.F.R. Part 54 that define the scope of our license renewal proceedings. As discussed in Part II.B, infra, Friends of the Earth has not demonstrated that a waiver of our basic rules governing license renewal proceedings is warranted here. Therefore, we uphold the Boards ruling that Contention 1 is inadmissible because it is outside the scope of the proceeding.50 In Contention 3, Friends of the Earth asserted that PG&Es integrated plant assessment, under which PG&E must identify the structures, systems, and com-ponents subject to an aging management review, is faulty because it rests on seismic data that has been shown to be obsolete and inaccurate.51 Friends of the Earth argued that PG&E must demonstrate that the structures, systems, and components identified in the integrated plant assessment can continue to perform their intended functions during the period of extended operation in light of the newly understood seismic circumstances of the plant.52 The Board likewise found this contention inadmissible, observing that Friends of the Earth d[id] not explain how its claims . . . would affect the Staffs ability to make the findings required for license renewal.53 The Board noted that Friends of is that the regulatory process is adequate to ensure that the licensing bases of all currently operating plants provide[ ] and maintain[ ] an acceptable level of safety so that operation will not be inimical to public health and safety or common defense and security. License Renewal Rule, 60 Fed. Reg. at 22,464.

48 See 10 C.F.R. §§ 54.4 (defining the scope of our license renewal regulations), 54.21 (specifying license renewal application requirements), 54.29(a) (indicating the safety findings we must make before issuing renewed licenses).

49 10 C.F.R. § 2.309(f)(1)(iii); see also 10 C.F.R. § 2.335(a).

50 Because Contention 1 is outside the scope of this license renewal proceeding and inadmissible on that basis alone, we need not reach the Boards findings regarding other contention admissibility requirements.

51 Petition at 30-31 (Contention 3: PG&E has failed to establish in its aging management plan that the effects of aging on Diablo Canyon will be adequately managed for the period of extended operation, in violation of 10 C.F.R. § 54.21(a)(3).).

52 Id. at 31.

53 LBP-15-6, 81 NRC at 324.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 57 of 60 the Earth did not cite any specific portion of the license renewal application that it found deficient, nor did Friends of the Earth explain how its generalized concerns about aging components relate to the updated seismic information in the seismic imaging report.54 The Board thus dismissed the contention for failure to raise an issue that is material to the findings the NRC must make to support the proposed licensing action.55 The Board also found that because Friends of the Earth did not provide any specific references to the license renewal application, Friends of the Earth had failed to demonstrate the existence of a genuine dispute with PG&E on a material issue of fact or law.56 We agree that Friends of the Earths intervention petition does not identify any specific portion of the application that it seeks to challenge and therefore lacks the specificity that our contention admissibility rules require. The Board properly found Contention 3 inadmissible.57 B. Friends of the Earths Waiver Request On appeal, Friends of the Earth reasserts that it is entitled to a waiver to litigate Contentions 1 and 3.58 The Board denied Friends of the Earths waiver request for failure to meet two of the four waiver factors.59 First, the Board found that Friends of the Earth had not shown that application of the regulations in this proceeding would not serve the purposes for which they were adopted. The Board found that our license renewal regulations would serve exactly their intended purpose by focusing the proceeding on future-oriented aging issues.60 Second, the Board found that Friends of the Earth had not shown that a waiver is necessary to reach a significant safety issue.61 Although the Board observed that potential 54 Id. at 324-25; see also 10 C.F.R. § 2.309(f)(1)(vi).

55 Id. (citing 10 C.F.R. § 2.309(f)(1)(iv)).

56 Id. at 325 (citing 10 C.F.R. § 2.309(f)(1)(vi)).

57 The Board also found that Friends of the Earth would have needed to obtain a rule waiver in order to obtain a hearing on Contention 3. Id. Because we find that Contention 3 is inadmissible due to lack of specificity, we need not reach the question of whether Contention 3 is an out-of-scope contention requiring a rule waiver.

58 Appeal at 7-8.

59 LBP-15-6, 81 NRC at 326-27.

60 Id. at 326 (citing Millstone, CLI-05-24, 62 NRC at 561). In its waiver request, Friends of the Earth pointed broadly to the safety-related purpose of our license renewal regulations. See Waiver Request at 6-7. Although it is true that our license renewal regulations are designed with safety as their goal, they were drawn specifically to ensure that current safety issues are prioritized (and are addressed as part of the NRCs ongoing oversight activities) over those that are unique to the period of extended operation that is, to ensure that safety issues are addressed at their appropriate time. See License Renewal Rule, 60 Fed. Reg. at 22,463-64; Millstone, CLI-05-24, 62 NRC at 560-61 (rejecting a similarly broad interpretation of the purpose of the license renewal regulations).

61 LBP-15-6, 81 NRC at 327.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 58 of 60 seismic risks to the Diablo Canyon facility are important issues most certainly significant ones, the Board concluded that Friends of the Earth could raise its concerns through other, more appropriate avenues.62 Having agreed with the Boards finding that Contention 1 is outside the scope of this license renewal proceeding and, therefore, may not be litigated absent a rule waiver,63 we turn to the Boards denial of Friends of the Earths waiver petition.64 We agree with the Board that Friends of the Earth has not met the standards for a waiver of our rules, but we reach this conclusion on different grounds. We find that Friends of the Earth has not shown that special circumstances exist that were not considered, either explicitly or by necessary implication, when we adopted our license renewal regulations the second factor in our waiver test.65 At bottom, Friends of the Earth argues that a safety issue relating to the current operation of Diablo Canyon requires attention as part of this license renewal proceeding. But we contemplated precisely this type of circumstance when we devised the licensing structure of Part 54. We were aware, when adopting the rule, that issues relevant to current plant operation could arise while a license renewal application was under review, and, based on our confidence in the NRCs regulatory process, we reaffirmed our view that those issues are best addressed as part of our regular oversight activities, outside of license renewal.66 We see no reason to revisit that rationale in this case.

As the Board correctly observed, our rules provide other mechanisms for Friends of the Earth to raise its concerns that would not require us to redefine the scope of this proceeding.67 In particular, Friends of the Earth may file a request 62 Id.

63 See supra Section II.A.

64 As already discussed, we do not reach the question here of whether a waiver would be necessary to permit litigation of Contention 3. See supra note 57. Accordingly, although both Friends of the Earths waiver petition and the Boards decision contemplate that a waiver would be necessary for both Contention 1 and Contention 3, our waiver analysis here assumes, without deciding, that Contention 1 is the only contention requiring a waiver.

65 See Millstone, CLI-05-24, 62 NRC at 560.

66 License Renewal Rule, 60 Fed. Reg. at 22,463-64. Friends of the Earth does argue, when addressing this second waiver-test factor, that [t]he license renewal rule was based on the implicit assumption that a plants seismic design basis would be static, so that there was no need to revisit the seismic assumptions to determine whether alterations to the plants current licensing basis were necessary when considering a license renewal. Appeal at 10; see also id. at 14-15. Yet, when issuing our license renewal regulations, we explained plant licensing bases as follows: The [current licensing basis] represents the evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety. License Renewal Rule, 60 Fed. Reg. at 22,473 (emphasis added). Modifications to a plants licensing basis made outside of license renewal could include, for instance, changes addressing newly discovered seismic risks.

67 See LBP-15-6, 81 NRC at 327.

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 59 of 60 to institute a proceeding . . . to modify, suspend, or revoke a license, or for any other action that may be proper, if it believes that PG&Es seismic design and licensing basis is now invalid and that safe operation of the plant can no longer be assured.68 Friends of the Earth also may file a petition for rulemaking to expand the scope of our license renewal regulations.69 We decline to set aside our license renewal regulations to conduct what would be an entirely different proceeding when there are more appropriate avenues available for Friends of the Earth to seek relief.

That said, we consider seriously concerns regarding the safe operation of the current nuclear fleet. Today we conclude only that Friends of the Earth has not demonstrated that its seismic concerns are appropriately addressed as part of this license renewal adjudication, which, under our regulations, is limited in scope.

Outside of this proceeding, the agency is conducting a comprehensive review of licensee seismic hazard reevaluations, including the information that PG&E provided in March of this year, which may lead to changes in the current licensing basis for Diablo Canyon, as well as for other operating plants.70 Therefore, although we decline to permit Friends of the Earth to litigate its concerns in this proceeding, the seismic information that has given rise to these concerns is under close and active consideration by the agency.

68 10 C.F.R. § 2.206(a).

69 See 10 C.F.R. § 2.802. We are not persuaded by Friends of the Earths arguments that neither the section 2.206 process nor the opportunity to file a petition for rulemaking would address its claims. See Appeal at 17-19. First, contrary to Friends of the Earths view, see id. at 18-19, the 2.206 process is designed for bringing just such a challenge regarding a licensees current operation under its existing license. By its plain terms, section 2.206 provides an opportunity for the modification, suspension, or revocation of a license, any of which actions might be appropriate as a remedy for Friends of the Earths concern that seismic considerations render operation of Diablo Canyon unsafe, if Friends of the Earth determines that its concerns differ from those already pending before the Staff.

See Diablo Canyon, CLI-15-14, 81 NRC at 736 n.32 (referring a portion of a similar hearing request filed by Friends of the Earth to the Staff as a request for enforcement action under section 2.206, with instructions to the Staff to consider Friends of the Earths concerns regarding the safe operation of Diablo Canyon). Second, although Friends of the Earth asserts that it does not wish to challenge our regulations in Part 54 as a general matter, see Appeal at 17, a petition for rulemaking to expand license renewal safety reviews, if successful, could be applied to this proceeding. See 10 C.F.R.

§ 2.802. Third, Friends of the Earths insistence that its seismic concerns must be addressed only in the course of a license renewal proceeding because of their relation to safety during the period of extended operation, Appeal at 19, does not account for the fact that the current licensing basis (including any adjustments that may have been made to it to deal with emergent safety issues) carries forward from the initial license term into the period of extended operation. Friends of the Earths concerns therefore appropriately could be addressed as part of the agencys continuing oversight of Diablo Canyon irrespective of when, during the plants operating life, they may arise.

70 Any amendment to an existing license as a result of this process would be subject to a hearing opportunity under the AEA. See AEA § 189a, 42 U.S.C. § 2239(a).

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USCA Case #16-1004 Document #1743756 Filed: 08/02/2018 Page 60 of 60 III. CONCLUSION Friends of the Earth has not raised an admissible contention that is suitable for litigation in this license renewal proceeding, nor has it established that a waiver of our rules is warranted to address its concerns. We therefore affirm the Boards denial, in LBP-15-6, of Friends of the Earths waiver petition and its petition to intervene.

IT IS SO ORDERED.

For the Commission ANNETTE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 9th day of November 2015.

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