ML24236A790
| ML24236A790 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/23/2024 |
| From: | Bessette P, Lighty R, Matthews T Morgan, Morgan, Lewis & Bockius, LLP, Pacific Gas & Electric Co |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 57083, 50-275 LR-2, 50-323 LR-2 | |
| Download: ML24236A790 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the matter of:
Docket Nos. 50-275-LR-2 and PACIFIC GAS AND ELECTRIC COMPANY 50-323-LR-2
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) August 23, 2024
PACIFIC GAS AND ELECTRIC COMPANYS ANSWER OPPOSING THE APPEAL OF LBP-24-6 FILED BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP
RYAN K. LIGHTY, ESQ.
TIMOTHY P. MATTHEWS, ESQ.
PAUL M. BESSETTE, ESQ.
Counsel for Pacific Gas and Electric Company TABLE OF CONTENTS I. INTRODUCTION............................................................................................................. 1 II. BACKGROUND & LEGAL STANDARDS.................................................................... 4 A. NRC Processes and Public Participation............................................................... 4
- 1. Ongoing Operational Oversight................................................................. 4
- 2. License Renewal Proceedings.................................................................... 5 B. Standard of Review on Appeal.............................................................................. 9 III. PETITIONERS FAIL TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION IN THE BOARDS CONTENTION ADMISSIBILITY RULINGS...... 10 A. Petitioners Identify No Error of Law or Abuse of Discretion on Contention 1......................................................................................................... 10
- 1. Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Scope Determination.................................................................. 11
- 2. Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Genuine Dispute Ruling............................................................. 19
- 3. Petitioners Make No Attempt to Identify Any Error of Law or Abuse of Discretion in the Boards Waiver Determination, Which Is Objectively Correct.............................................................................. 21 B. Petitioners Identify No Error of Law or Abuse of Discretion on Contention 2......................................................................................................... 22 C. Petitioners Identify No Error of Law or Abuse of Discretion on Contention 3......................................................................................................... 26 IV. CONCLUSI ON................................................................................................................ 30
ii TABLE OF AUTHORITIES
Federal Court Cases Heckler v. Chaney, 470 U.S. 821 (1985)...................................................................................... 18 Lincoln v. Virgil, 508 U.S. 182 (1993)......................................................................................... 15 Ruiz v. Morton, 462 F.2d 818 (9th Cir. 1972)............................................................................... 15 Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015)........................................... 15, 17, 18 United States v. Morgan, 118 F. Supp. 621 (S.D.N.Y. 1953)................................................ 15, 17
NRC Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-09-7, 69 NRC 235 (2009)......................................................................................... 3, 9, 17 Crow Butte Res., Inc. (Marsland Expansion Area),
CLI-14-2, 79 NRC 11 (2014)..................................................................................................... 9 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),
CLI-01-24, 54 NRC 349 (2001)................................................................................................. 8 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),
CLI-15-6, 81 NRC 340 (2015)................................................................................................... 6 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),
LBP-08-13, 68 NRC 43 (2008)................................................................................................. 25 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),
CLI-15-23, 82 NRC 321 (2015)................................................................................................. 8 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),
CLI-07-3, 65 NRC 13 (2007)..................................................................................................... 9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),
ALAB-952, 33 NRC 521 (1991).......................................................................................... 9, 14 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),
CLI-01-17, 54 NRC 3 (2001).............................................................................................. 6, 7, 9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),
CLI-91-13, 34 NRC 185 (1991)........................................................................................... 9, 14 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7),
CLI-17-12, 86 NRC 215 (2017)..................................................................................... 3, 10, 28 Hydro Res., Inc. (Crownpoint, NM),
CLI-06-1, 63 NRC 1 (2006)....................................................................................................... 9 In the Matter of David Geisen, CLI-10-23, 72 NRC 210 (2010)............................................................................................... 16
iii Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),
CLI-11-9, 74 NRC 233 (2011)............................................................................................... 3, 9 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),
CLI-12-7, 75 NRC 379 (2012)............................................................................................... 3, 9 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
ALAB-728, 17 NRC 777 (1983).............................................................................................. 21 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-83-32, 18 NRC 1309 (1983)............................................................................................. 21 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-24-6, 100 NRC __ (July 3, 2024) (slip op.).............................................................. passim Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),
CLI-99-10, 49 NRC 318 (1999)................................................................................................. 8 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2),
CLI-10-2, 71 NRC 27 (2010)................................................................................................. 3, 9 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility),
CLI-07-20, 65 NRC 499 (2007)......................................................................................... 10, 25 U.S. Dept of Energy (High-Level Waste Repository),
LBP-09-6, 69 NRC 367 (2006)................................................................................................. 24 U.S. Dep't of Energy (High-Level Waste Repository),
CLI-08-11, 67 NRC 379 (2008)............................................................................................... 28 Union Electric Co. (Callaway Plant, Unit 1),
CLI-15-11, 81 NRC 546 (2015)............................................................................................... 29 USEC Inc. (Am. Centrifuge Plant),
CLI-06-10, 63 NRC 451 (2006)................................................................................... 10, 17, 29
Acts of Congress Administrative Procedure Act of 1946, Pub. L.79-404, 60 Stat. 237 (codified as amended at 5 U.S.C. ch. 5, subch. I § 500 et seq.).............................. 14, 15, 18, 19 Atomic Energy Act of 1954, Pub. L.83-703, 69 Stat. 919 (codified as amended at 42 U.S.C. ch. 14)........................................................................... 5, 14 Coastal Zone Management Act of 1972, Pub. L.92-583, 86 Stat. 1280 (codified as amended at 16 U.S.C. ch. 33 § 1451 et seq.)................................................. passim National Environmental Policy Act of 1969, Pub. L.91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. § 4321 et seq.)..................................................................... 7 Sherman Antitrust Act of 1890, Pub. L.51-647, 26 Stat. 209 (codified as amended at 15 U.S.C. §§ 1-7).............................................................................. 17
iv Regulations 10 C.F.R. § 2.206...................................................................................................................... 5, 20 10 C.F.R. § 2.309................................................................................................................... passim 10 C.F.R. § 2.311........................................................................................................................ 1, 9 10 C.F.R. § 50.109.......................................................................................................................... 5 10 C.F.R. § 51.41............................................................................................................................ 7 10 C.F.R. § 51.45............................................................................................................................ 7 10 C.F.R. § 51.53............................................................................................................................ 7 10 C.F.R. § 54.21............................................................................................................................ 6 10 C.F.R. § 54.29............................................................................................................................ 6 10 C.F.R. § 54.3.............................................................................................................................. 4 10 C.F.R. § 54.30.......................................................................................................................... 20 10 C.F.R. Part 2............................................................................................................................... 5 10 C.F.R. Part 51................................................................................................................... 2, 7, 21 10 C.F.R. Part 54................................................................................................................. 5, 20, 23
Other Authorities Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182 (Jan. 14, 2004)............................................................................................. 8 Letter from T. Luster, CCC, to T. Jones, Senior Director Regulatory, Environmental and Repurposing, PG&E (Dec. 7, 2023).......................................................... 27 NRC, Process for the Ongoing Assessment of Natural Hazard Information (POANHI),
https://www.nrc.gov/reactors/operating/ops-experience/poanhi.html........................................ 4 NRC, Reactor Oversight Process (ROP),
https://www.nrc.gov/reactors/operating/oversight.html............................................................. 4 NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996).................................................................... 2, 7 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013).................................................................... 2, 7 NUREG-1437, Rev. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Feb. 2024)..................................................................... 2, 7 Transcript of Diablo Canyon Nuclear Power Plant, Units 1 & 2, License Renewal Hearing, May 22, 2024 (revised) (June 22, 2024)................................. passim
v I. INTRODUCTION
Pursuant to 10 C.F.R. § 2.311(b), Pacific Gas and Electric Company (PG&E) submits
this Brief in Opposition to the Appeal of LBP-24-6 (Appeal), filed by San Luis Obispo
Mothers for Peace, Friends of the Earth, and the Environmental Working Group (collectively,
Petitioners).1 In LBP-24-6,2 the Atomic Safety and Licensing Board (Board) denied
Petitioners March 5, 2024 hearing request and petition to intervene in this proceeding
(Petition).3 The Board denied the Petition after unanimously concluding that none of
Petitioners three proposed contentions were admissible. On appeal, Petitioners purport to
challenge all three of the Boards contention admissibility rulings. As explained below, the
Commission should AFFIRM the Boards contention admissibility rulings in LBP-24-6.
This proceeding pertains to the License Renewal Application (LRA) filed by PG&E to
seek extensions of the U.S. Nuclear Regulatory Commission (NRC) operating licenses for
Diablo Canyon Power Plant, Units 1 and 2 (DCPP). The NRCs license renewal process
includes both safety and environmental reviews; but the safety review focuses on one thing:
aging management. In Contentions 1 and 2, Petitioners sought an evidentiary hearing on certain
ongoing operational matters (related to seismic topics and the Unit 1 reactor pressure vessel
(RPV)) that are not related to aging management. Such matters have long been governed by
other regulatory processes with separate avenues for public participation. Thus, as the Board
correctly held, these challenges are inadmissible because they we brought in the wrong forum.
1 Notice of Appeal of LBP-24-6 by [Petitioners] (July 29, 2024) (ML24211A2887); Brief by [Petitioners] on Appeal of LBP-24-6 (July 29, 2024) (ML24211A288) (Appeal).
2 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-24-6, 100 NRC __
(July 3, 2024) (slip op.) (ML24185A197).
3 Re-filed Hearing Request by [Petitioners] for Hearing on [PG&Es] License Renewal Application for the Diablo Canyon Nuclear Plant (Mar. 5, 2024) (ML24067A079) (Petition).
To be clear, that does not mean that Petitioners safety concerns in Contentions 1 and 2
have been ignored.4 In fact, those same concerns already have been and are being given due
consideration in an appropriate forum.5 So, beyond the legally required outcome here (as
correctly determined by the Board), there also is no practical reason that a duplicative hearing
must be held on these topics in this limited-scope license renewal proceeding.
Petitioners also proffered two environmental claims. In Contention 1, Petitioners brought
a challenge regarding the analysis of potential environmental impacts from a hypothetical
accident. However, that topic was analyzed in the NRCs Generic Environmental Impact
Statement for License Renewal of Nuclear Power Plants (GEIS).6 And the corresponding
conclusions from the GEIS have been codified in NRC regulations following notice and
comment rulemaking.7 Thus, Contention 1 purported to challenge to NRC environmental
regulations, not the LRA. As a matter of law, challenges to regulations cannot be brought in
individual licensing proceedings such as this, absent a special waiver from the Commission.
Petitioners neither requested nor received one here. So, as the Board again correctly held, that
portion of Contention 1 also was inadmissible as a matter of law. Finally, in Contention 3,
Petitioners essentially asked the Board to admit a placeholder contention on a baseless theory
that the NRC might decide in the future to willfully violate the Coastal Zone Management Act
4 See, e.g., Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 30 n.130).
5 Id. at __ (slip op. at 4-5).
6 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Rev. 0, May 1996, ML040690705 (Vol. 1)) (1996 GEIS)); (Rev. 1, June 2013, ML13106A241 (Vol. 1)) (2013 GEIS); (Rev. 2, Aug. 2024, ML24086A526 (Vol. 1)) (2024 GEIS).
7 See 10 C.F.R. Part 51, Subpart A, app. B, tbl. B-1 (Design Basis Accidents and Severe Accidents).
2 (CZMA).8 Based on the longstanding doctrine that agencies are entitled to a presumption of
administrative regularity, the Board correctly rejected that demand.
The Appeal provides no basis to overturn any of the well-reasoned bases for rejecting
Contentions 1, 2, and 3. As an overarching matter, the applicable standard of review on appeal
places an affirmative burden on the appellant to identify an error of law or abuse of
discretion in the challenged ruling.9 Oddly, the Appeal fails even to mention this appellate
standard. Petitioners do not acknowledge it; engage with it; or marshal fact and law toward any
argument that LBP-24-6 is affected by an error of law or abuse of discretion. By disregarding
the applicable standard, Petitioners have failed to meet their affirmative burden. The Appeal
should be rejected on its face for that reason alone.
Furthermore, the Appeal largely repeats arguments that were presented to (and rejected
by) the Board, without disputing the Boards analysis. But Commission precedent is clear that
merely disputing the outcomeand hoping for a di fferent result from the Commission without
identifying reversible erroris categorically insufficient for an appeal. 10
Ultimately, Petitioners have not identified a ny error of law or abuse of discretion in
LBP-24-6. Thus, for the many reasons detailed below, the Commission should AFFIRM the
Boards well-reasoned admissibility rulings on each of the three contentions.
8 Coastal Zone Management Act of 1972, Pub. L.92-583, 86 Stat. 1280 (codified as amended at 16 U.S.C.
ch. 33 § 1451 et seq.).
9 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 386 (2012) (citing Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), CLI-10-2, 71 NRC 27, 29 (2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),
CLI-11-9, 74 NRC 233, 237 (2011)).
10 See, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7), CLI-17-12, 86 NRC 215, 219 (2017).
3 II. BACKGROUND & LEGAL STANDARDS
A. NRC Processes and Public Participation
In their original Petition, and again on Appeal, Petitioners seek to conflate and blur the
line between two distinct NRC regulatory processes and their corollary opportunities for public
participation. Thus, a brief summary of those processes and opportunities is instructive to the
discussion on appeal, namely: the NRCs ongoing operational oversight and associated citizen
enforcement petition opportunity; and the NRCs power reactor license renewal proceeding and
associated licensing hearing opportunity.
- 1. Ongoing Operational Oversight
Every nuclear power plant, including DCPP, is subject to rigorous NRC operational
oversight throughout the entire life of the licensed facility. Licensees are required to comply
with stringent requirements associated with the full range of radiological safety, security, and
environmental matters, including those related to seismic matters and RPV integrity, among
many others. These obligations are collectively referred to as the plants Current Licensing
Basis (CLB).11 The CLB is established at the time of initial plant licensing; it evolves
throughout the life of the facility; and it carries forward into any renewal term. The NRC
maintains a robust inspection and oversight program to ensure that CLB requirements are met
throughout the plants lifecycle. Key features include the NRCs Reactor Oversight Process,
which provides a comprehensive framework for continuous assessment and inspection of
licensee facilities, and the NRCs Process for the Ongoing Assessment of Natural Hazards
Information (POANHI), which is staffed by technical experts on external hazards.12
11 See 10 C.F.R. § 54.3(a) (defining the CLB).
12 See Reactor Oversight Process (ROP), NRC.GOV, https://www.nrc.gov/reactors/operating/oversight.html (last visited Aug. 20, 2024).Process for the Ongoing Assessment of Natural Hazard Information (POANHI),
NRC.GOV, https://www.nrc.gov/reactors/operating/ops-experience/poanhi.html (last visited Aug. 20, 2024).
4 The NRC employs a diverse toolkit for addressing safety issues throughout the life of the
plant, including authority to issue orders to modify, suspend, or revoke a license.13 For example,
the NRC may take enforcement action to address licensee noncompliance with safety regulations
or may invoke its backfit14 process to modify a plants CLB if needed to address new safety
information (including new seismic information).
Although enforcement and backfit actions are most often initiated by the NRC staff, any
member of the public may raise potential health, sa fety, or other compliance issues related to a
plants CLB via a citizen enforcement petition. This process is described in 10 C.F.R. § 2.206
(and such petitions are often referred to as 2.206 petitions). The NRC can institute an action to
modify, suspend, or revoke a license, or take other appropriate action to resolve the issue, as
appropriate. This is the well-established process through which members of the public can
challenge a plants CLB or seek enforcement of its requirements.
- 2. License Renewal Proceedings
Pursuant to the Atomic Energy Act (AEA),15 power reactor licensees can seek, and the
NRC can issue, a renewed operating license to permit continued operation beyond the expiration
of the plants initial operating license. A renewe d license carries forward the plants CLB. And
the NRCs ongoing operational oversight process covers the full range of safety, security, and
environmental matters for plant operation regardless of the operating term, initial or renewal.
Thus, in promulgating 10 C.F.R. Part 54, the NRC reasonably chose to define its safety review
framework as including only a limited scope of issues that are particularly germane to extended
operationnamely, those focused on aging management. The purpose of the license renewal
13 See generally 10 C.F.R. Part 2, Subpart B.
14 See 10 C.F.R. § 50.109.
15 Atomic Energy Act of 1954, Pub. L.83-703, 69 Stat. 919 (codified as amended at 42 U.S.C. ch. 14).
5 proceeding is to ensure that th e licensee can successfully manage the detrimental effects of
aging, during extended operations,16 on certain long-lived, passive components that are
important to safety.17 By design, license renewal proceedings are not intended to duplicate the
NRCs ongoing oversight of operating reactors.18 The key components of a license renewal
application include its aging management programs (AMPs) and time-limited aging analyses
(TLAAs). Notably, the NRC has published guidance (known as the GALL Report)
containing AMPs generically determined to satisfy Part 54, which applicants may adopt.19 If
adopted, and otherwise consistent with the GALL Report, those AMPs are entitled to a rebuttable
presumption of regulatory sufficiency.20
Through notice and comment rulemaking, the Commission purposefully chose to exclude
operational oversight and CLB matters from the scope of its license renewal proceedings. As the
Commission explained:
In establishing its license renewal process, the Commission did not believe it necessary or appropriate to throw open the full gamut of provisions in a plants [CLB] to re-analysis during the license renewal review. The [CLB] represents an evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety. It is effectively addressed and maintained by ongoing agency oversight, review, and enforcement.
Just as these oversight programs help ensure compliance with the
[CLB] during the original license term, they likewise can reasonably be expected to fulfill this function during the renewal term.21
16 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 347 (2015).
17 Id.; see also 10 C.F.R. §§ 54.21, 54.29(a).
18 Indian Point, CLI-15-6, 81 NRC at 347.
19 See NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010) (ML103490041).
20 See generally Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 45-47).
21 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 9 (2001)
(citation omitted).
6 Furthermore, the NRC also conducts a separate environmental review as part of any
license renewal proceeding. The objective of that review is to analyze the potential
[environmental] impacts of an additional 20 years of nuclear power plant operation[s].22 This
review is required to satisfy the National Environmental Policy Act (NEPA).23 The NRCs
NEPA regulations are codified in 10 C.F.R. Part 51.
For license renewal, Part 51 is based in part on the GEIS, which summarizes the findings
of a systematic inquiry into the potential environmental consequences of license renewal.24
Based on these analyses, the GEIS outlines two types of environmental issues:
- Generic Category 1 issues, for which the NRC made generic conclusions applicable to all existing nuclear power plants; 25 and
- Plant-Specific Category 2 issues, for which site-specific analyses are required for each individual license renewal proceeding.26
Applicants must submit an environmental report (ER) that analyzes all Category 2
issues on a plant-specific basis.27 But, for Category 1 issues, impact conclusions are codified
(via notice and comment rulemaking) in 10 C.F.R. Part 51, Subpart A, Appendix B and are not
required to be re-analyzed in each individual license renewal application.28 Ultimately, the NRC
Staff draws upon the applicants ER, the GEIS, and other sources to produce a plant-specific
Supplemental Environmental Impact Statement (SEIS).29
22 Id.
23 National Environmental Policy Act of 1969, Pub. L.91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. § 4321 et seq.).
24 See 1996 GEIS at xxxiv; see 2013 GEIS at S-4; see also 2024 GEIS at xxxiv.
25 Turkey Point, CLI-01-17, 54 NRC at 11.
26 See id. at 11-12 (discussing Category 2 issues).
27 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii).
28 Id. § 51.53(c)(3)(i). Licensees may incorporate by reference those analyses and the codified impact findings from Appendix B. See id. § 51.53(a).
29 See 2013 GEIS at 1-16 to 1-18.
7 In license renewal proceedings, public participation opportunities include various public
meetings, the opportunity to submit written comments on environmental scoping and the draft
SEIS, and the opportunity to request a hearing to challenge the application. Pursuant to
10 C.F.R. § 2.309(a)(1), a hearing request may be granted only if the presiding officer
determines that the petitioner has demonstrated standing and has proposed at least one
admissible contention that meets the admissibility criteria in 10 C.F.R. § 2.309(f)(1).30 Failure to
satisfy any one of these six admissibility crit eria requires that a proposed contention be
rejected.31 These criteria are strict by design.32 The petitioner alone bears the affirmative
burden to satisfy these criteria. 33
As particularly relevant here, to be admissible, contentions must fall within the scope of
the proceeding, and must demonstrate a genuine dispute with the application on a material issue
of fact or law. Contentions challenging ongoing agency oversight and a plants CLB, or codified
impact conclusions from the GEIS, are inadmissibl e as beyond the limited scope of the license
30 To be admissible, a proposed contention must: (i) provid e a specific statement of the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised is within the scope of the proceeding; (iv) demonstrate that the issue raised is material to the findings the NRC must make to support the action involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including refere nces to the specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (vi) provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. 10 C.F.R. § 2.309(f)(1) 31 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).
32 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
33 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)
([t]he proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted).
8 renewal hearing opportunity.34 The Commission long ago determined that it would be
unnecessary and wasteful to permit such challengesbecause these issues are addressed
through different regulatory pathways.35
B. Standard of Review on Appeal
NRC regulations at 10 C.F.R. § 2.311(c) permit petitioners to appeal orders denying
hearing requests and petitions to intervene, as of right, on the sole question of whether the
request and/or petition should have been granted.36 The Commission generally provides
substantial deference 37 to Board decisions on contention admissibility, but will reverse a
Boards ruling if there has been an erro r of law or an abuse of discretion.38 Thus, the
Commission generally is disinclined to upset licensing board findings, particularly on matters
involving fact-specific issues or consideration of expert affidavits or submissions.39 The
Commission reviews questions of law de novo, and will reverse a licensing boards legal rulings
if they are a departure from[,] or contrary to[,] established law.40 To prevail on an abuse of
discretion claim, the appellant must persuade the Commission that a reasonable mind could
reach no other result.41 An appeal that simply restates the petitioners arguments, is not a valid
34 Turkey Point, CLI-01-17, 54 NRC at 7-9; Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007) (Because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation.).
35 Turkey Point, CLI-01-17, 54 NRC at 7.
36 10 C.F.R. § 2.311(c).
37 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).
38 Comanche Peak, CLI-12-7, 75 NRC at 386 (citing Levy Cty., CLI-10-2, 71 NRC at 29; Oyster Creek, CLI-09-7, 69 NRC at 259; Comanche Peak, CLI-11-9, 74 NRC at 237).
39 Hydro Res., Inc. (Crownpoint, NM), CLI-06-1, 63 NRC 1, 2 (2006).
40 Oyster Creek, CLI-09-7, 69 NRC at 259 (citation omitted).
41 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 532 (1991), affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).
9 appeal.42 As the Commission has made clear, it will not consider new arguments raised for the
first time on appeal and that the licensing board never had a chance to consider.43
III. PETITIONERS FAIL TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION IN THE BOARDS CONTENTION ADMISSIBILITY RULINGS
On appeal, Petitioners assert that the Board erred in its admissibility rulings as to all three
proposed contentions. But, as explained further below, Petitioners identify no error of law or
abuse of discretion by the Board. Indeed, the Appeal is conspicuously devoid of any meaningful
engagement with the relevant legal standards for proposed contentions, much less the Boards
application of law and fact in the context of those standards. Instead, Petitioners recycle
arguments from their Petition alongside conclusory assertions that the Board erroneously and
arbitrarily denie[d] the public a hearing on crucial safety and environmental issues.44 This
approach, however, is insufficient to satisfy the standard of review on appeal, and wholly fails to
justify abandoning the substantial deference the Commission typically affords such decisions.
A. Petitioners Identify No Error of Law or Abuse of Discretion on Contention 1
In Contention 1, Petitioners raised both safety and environmental claims on seismic
matters. Petitioners safety claims purported to challenge seismic information related to the
plants CLB. And their environmental claims purported to challenge the NRCs codified
Category 1 analyses regarding potential environmental impacts of hypothetical accidents caused
by earthquakes. The Board held that: Petitioners safety claims failed to dispute any information
42 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility), CLI-07-20, 65 NRC 499, 503-05 (2007); Turkey Point, CLI-17-12, 86 NRC at 219 ([r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not suff icient; the appellant must point out the errors in the Boards decision.) (citations omitted).
43 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006) (quotations and citation omitted).
The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board. Id. (quotations and citation omitted).
44 Appeal at 1.
10 in the LRA; their environmental claims improperly challenged NRC regulations without the
necessary waiver; and both claims were beyond the scope of this license renewal proceeding.
On appeal, Petitioners present their disagreement with the Boards ruling, but wholly
disregard the appellate standard of review. Because they present no argument or assertion aimed
at that standard, they have not met their affirmative burden to demonstrate its satisfaction here.
Moreover, as detailed below, Petitioners arguments do not otherwise amount to identification of
any error of law or abuse of discretion in LBP-24-6. Accordingly, the Commission should
AFFIRM the Boards ruling on Contention 1.
- 1. Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Scope Determination
In the proceedings before the Board, Petitioners squarely acknowledged that their safety
and environmental claims in Contention 1 were beyond the limited scope of license renewal
proceedings as defined in the plain text of NRC regulations.45 As to safety, Contention 1 sought
to challenge seismic issues within the plants CLB, which is addressed through separate
processes and is outside the scope of license renewal. As to environmental matters, Contention 1
sought to challenge, without the required waiver, the NRCs codified analysis of the
environmental impacts of hypothetical accidents caused by earthquakes during a license renewal
term. Notably, certain seismic safety or environmental issues do, in fact, fall within the scope of
license renewal, such as those related to aging management ( i.e., AMPs or TLAAs) or severe
accident mitigation alternatives (SAMAs).46 But Petitioners raised no such challenges in
45 See, e.g., Appeal at 5 (admitting 10 C.F.R. Parts 51 and 54 do not require what Petitioners demand in Contention 1); Transcript of Diablo Canyon Nuclear Power Plant, Units 1 & 2, License Renewal Hearing, May 22, 2024 (revised) at 47-48 (June 22, 2024) (ML24179A075) (Tr.) (admitting that Contention 1 does not fit under the standard rules [for license renewal] that have be en in effect since 1991 and that agreeing that apart from words from Commissioner Hanson, seismic issues do not belong in a license renewal proceeding).
46 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 28, 35).
11 Contention 1. Instead, Petitioners opted to challenge only out-of-scope issues, based on an
unsupported theory that their challenges were nevertheless admissible due to a brief exchange at
a Congressional hearing.
Specifically, at that hearing,47 Senator Padilla asked Chair Hanson for [a]ny comments
on safety standards with specific concern about seismic risk at Diablo Canyon.48 Chair
Hanson answered by saying:
We are going to be looking at updated safety information as part of that license renewal process. We did require all plants to take a look at the enhanced, relook at their risks after Fukushima. Diablo, of course, did look at their seismic risk and we will take another look at that as part of the license renewal process.49
Petitioners theory was two-fold. First, as a factual matter, Petitioners argued that the
Chairs unscripted remark should be interpreted as contradicting the license renewal scope
limitations in NRC regulations. Petitioners read that statement as a commitment to conduct a
broad[er] review of seismic matters than required by N RC license renewal regulations and to
examine seismic risk with new eyes and in a comprehensive manner, and that it will be
conducted as part of the license renewal process.50
Second, as a legal matter, Petitioners speculated (without citation to any supporting legal
authority) that the statement of a single witness at a Congressional hearing creates binding legal
obligations capable of repealing regulations promulgated through notice and comment
rulemaking. According to Petitioners, the codified license renewal scope limitations long-
embedded in 10 C.F.R. Parts 51 and 54 were effectively repealed (albeit solely for DCPP, and
47 The complete question and answer on which Petitioners rely is provided in the Boards decision. Id. at __ (slip op. at 28-29).
48 Id.
49 Id. at __ (slip op. at 29).
50 Appeal at 13; see also Tr. at 65-67.
12 solely on seismic issues) by virtue of Chair Hansons remark without further action by Congress
or the Commission.
After duly considering Petitioners arguments, the Board was not persuaded that
anything in Chair Hansons testimony expressly, or even by implication, operates to expand the
codified scope of review on license renewal.51 Notably, the Board reached this conclusion on
solely factual grounds, rejecting Petitioners interpretation of Chair Hansons statement; it did
not reach (and did not need to reach) a definitive conclusion regarding Petitioners dubious
speculation on the legal effect of Congressional testimony. Ultimately, the Board unanimously
concluded that Contention 1 was inadmissible as beyond the scope of this proceeding, contrary
to 10 C.F.R. § 2.309(f)(1)(iii). The Appeal does not expose any error of law or abuse of
discretion in that conclusion.
- a. Petitioners Identify No Abuse of Discretion in the Boards Factual Conclusion Regarding the Meaning of Chair Hansons Remark
As noted above, the Board found nothing in the text of Chair Hansons testimony that
clearly expressed a plan to depart from the NRCs codified license renewal process. As the
Board noted, even if Petitioners claims regarding the legal effect of that testimony were
correct, there is nothing in that testimony indicating, and Chair Hanson did not expressly
state, any plan to broaden the license renewal seismic review to include CLB issues or
previously codified environmental analyses.52 Given that the Chairs remark can be read in
harmony53 with the existing codified scope provisions (e.g., consideration of seismic issues in
51 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 35).
52 Id. at __ (slip op. at 30).
53 Id.
13 the context of AMPs or SAMAs), the Board found Petitioners interpretation of the testimony to
be unavailing.
The Appeal largely glosses-over that portion of the Boards ruling, focusing instead on
the legal issue. Petitioners only acknowledgement of the Boards testimony interpretation, and
their sole attempt to dispute it, appears in a si ngle footnote. Therein, they disparage the Boards
view as a crabbed alternative interpretation.54 Assuming that criticism could be viewed as a
claim that the Board abused its discretion, it falls far short of the required demonstration. To
prevail on an abuse of discretion claim, the appellant has an affi rmative burden to show that a
reasonable mind could reach no other result.55 They have neither attempted nor done so here.
According to Petitioners, the entire Commission expressly, purposefully, and
unanimously intended to enact a sweeping and unprecedented repeal of its longstanding license
renewal regulationscontrary to the notice and comment requirements of the Administrative
Procedure Act (APA);56 devoid of any policy vote required by the AEA; and without
announcing any legal authority or precedent for such a maneuvervia a single, unscripted
remark presented in the broadest (i.e., vaguest) possible terms at a Congressional hearing.
Petitioners would have the Commission believe that this extraordinary reading is the only
reasonable interpretation of the subject testimony for one single reason: because the question and
answer at the Congressional hearing were presented in the broadest possible terms.57 But they
fail to explain why a broad discussion mandates the extraordinary result they seek here. And
they offer no reason why the Boards logical reading, in which the question-and-answer
54 Appeal at 13 n.35.
55 Turkey Point, ALAB-952, 33 NRC at 532, affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).
56 Administrative Procedure Act of 1946, Pub. L.79-404, 60 Stat. 237 (codified as amended at 5 U.S.C. ch. 5, subch. I § 500 et seq.).
57 Appeal at 13 n.35.
14 exchange can be read in harmony with existing regulations, is not one that a reasonable mind
could reach. Indeed, the Boards interpretation is factually substantiated and imminently
reasonable.58 And it is entitled to substantial deference here. Thus, Petitioners have not
demonstrated an abuse of discretion by the Board.
- b. Petitioners Arguments Regarding the Legal Effect of Congressional Testimony Provide No Grounds for Reversal Because They Are Irrelevant to the Outcome of LBP-24-6, Were Not Timely Raised, and Otherwise Fail to Demonstrate Any Error of Law
As noted above, Petitioners argued in their Petition, and re-argue in their Appeal, that
Contention 1 falls within the scope of this license renewal proceeding only because Chair
Hansons statement in a Congressional hearing overrode the APA and the NRCs scope
limitations as codified in Parts 51 and 54.59 But, in the proceedings before the Board,
Petitioners did not cite [any] authority for the proposition that such testimony is binding. 60
Thus, the Board conducted its own legal research. The Board identified a U.S. Supreme Court
case and a 9th Circuit case holding that statements to Congress can neither create legally
binding obligations nor expand and contract agency jurisdiction.61 The Board also reviewed
two non-binding district court cases noting that Congressional testimony could be viewed as
helpful and persuasive or otherwise clarify how existing regulations operate.62
58 Chair Hansons statement regarding NRC plans to look at seismic issues in the license renewal proceeding can be read in harmony with existing regulations requiring consideration of in-scope seismic topics. As noted above, seismic issues are within the scope of license renewal to the extent they are related to aging management (i.e., AMPs or TLAAs) or mitigation alternatives (i.e., SAMAs).
59 Appeal at 11-12; see Petition at 13-15 (discussing Chair Hansons statement as requiring the NRC to an extra safety review).
60 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 29 n.127).
61 Id. (discussing Lincoln v. Virgil, 508 U.S. 182, 194 (1993) and Ruiz v. Morton, 462 F.2d 818, 822 (9th Cir.
1972)).
62 Id. (discussing Texas v. United States, 86 F. Supp. 3d 591, 654 n.64 (S.D. Tex. 2015) and United States v.
Morgan, 118 F. Supp. 621 (S.D.N.Y. 1953)).
15 The Board expressed grave doubts that a statement during a congressional hearing,
even by the Commissions Chair, can otherwis e expand the scope of a licensing proceeding
beyond that defined by the Commissions adjudicatory precedent or hearing opportunity
notice.63 However, the Board stopped short of reaching a definitive conclusion regarding the
legal effect of Congressional testimony. Instead, the Board simply characterized the case law as
unclear and resolved the question on factual grounds alone.64 On appeal, Petitioners argue that
the Boards decision on Contention 1 should be reversed because the two district court cases
cited by the Board support[] their theory that Chair Hansons statement is legally binding.65
But these arguments provide no grounds for reversal for at least three reasons.
First, assuming arguendo that Petitioners are correct regarding the legal effect of
Congressional testimony (they are not), that circumstance would have no impact on the
admissibility ruling for Contention 1. The Board correctly rejected the contention on the factual
issue alone, mooting the corresponding legal question. As noted above, the Board concluded
that Chair Hansons statement was consistent with existing regulations that require consideration
of in-scope seismic issues in license renewal proceedings. Accordingly, the Boards
determination that the case law on the legal effect of Congressional testimony is unclear, even
if erroneous, would constitute nothing more than harmless error, which provides no grounds for
reversal.66
Second, the Appeal presents entirely new arguments seeking to equate the factual
circumstances of the two district court cases wi th the instant proceeding. But those arguments
63 Id. at __ (slip op. at 29).
64 Id. at __ (slip op. at 29 n.127).
65 Appeal at 12.
66 In the Matter of David Geisen, CLI-10-23, 72 NRC 210, 247 (2010) (error without prejudice is harmless and provides no grounds for reversal on appeal).
16 were never presented to the Board. In fact, the Board identified those cases in the first instance.
Petitioners presented zero arguments about those casesor any other authority allegedly
supporting their novel and speculative legal theoryto the Board. As the Commission has made
clear, it simply will not consider new argum ents raised for the first time on appeal.67 The Board
cannot be faulted for not considering unpresented arguments.
And third, the district court cases cited by Petitioners, United States v. Morgan,68 and
Texas v. United States,69 do not demonstrate any legal error by the Board. As explained below,
those cases do not support Petitioners theory that Congressional testimony can conjure new
binding legal obligations and override codified regulations. And those cases certainly do not
evidence any departure from established law.70
In Morgan, the government brought an action to restrain several defendants from
continuing alleged violations of the Sherman Anti-Trust Act.71 In determining whether the
defendants actions violated anti-trust law, the district court found persuasive and helpful an
advisory opinion from the U.S. Securities and Exchange Commission (SEC). That opinion,
consisting of a majority opinion (joined by three commissioners) and a concurring opinion
(authored by a fourth commissioner), provided the agencys views on the application of
[existing] antitrust laws to the securities field. 72 Notably, the district court disavowed any
binding legal effect of the opinion, expressly stating that the agencys views are not binding
67 USEC, CLI-06-10, 63 NRC at 458 (quotations and citation omitted). The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board.
Id. (quotations and citation omitted).
68 118 F. Supp. 621 (S.D.N.Y. 1953).
69 86 F. Supp. 3d 591 (S.D. Tex. 2015).
70 Oyster Creek, CLI-09-7, 69 NRC at 259 (citation omitted).
71 Sherman Antitrust Act of 1890, Pub. L.51-647, 26 Stat. 209 (codified as amended at 15 U.S.C. §§ 1-7).
72 Morgan, 118 F. Supp. 621, 698-99 (S.D.N.Y. 1953).
17 on me, or upon any other court or judge.73 Thus, Morgan stands for the unremarkable
proposition that an agency advisory opinion, much like an amicus brief, can be helpful to a
court. To be clear, Morgan did not involve Congressional testimony; it said nothing about the
legal effect of Congressional testimony or the constraints Congress placed on agency action in
the APA; it did not conclude that any agency statements were binding on anyone; and it
provides no support for a theory that an agency can be bound or required to act contrary to its
own regulations. At bottom, that case provides no obvious support for Petitioners claims and
certainly does not demonstrate that the Boards ruling is a departure from settled lawand the
Appeal offers no explanation otherwise.
Texas also contradicts Petitioners position. In that case, a group of states sought
injunctive relief in district court to prevent th e federal government from implementing a program
intended to provide legal status to individuals in the country illegally.74 The program was not
promulgated via rulemaking or executive order, but rather was instituted via an agency
memorandum. A central question in the case was whether the program was properly
characterized as an exercise of prosecutorial discretion (i.e., not removing people from the
country under immigration laws), which is presumptively unreviewable. 75 Although part of the
program arguably involved enforcement matters, the court consid ered whether the program also
affirmatively conferred certain benefits.76 It was in this context that the district court discussed,
in a footnote, the Congressional testimony of an IRS commissioner. The Commissioner
explained how the new program interacted with existing tax rules and confirmed that it would
73 Id. at 699.
74 Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).
75 Id. at 652-56 (discussing Heckler v. Chaney, 470 U.S. 821 (1985)).
76 Id. at 654-55.
18 effectively bestow a new tax benefit on certain individuals.77 In the courts view, this supported
a conclusion that the program went beyond a mere exercise of enforcement discretion, and thus
the government had improperly legislated a substantive rule without complying with the
procedural requirements of the [APA].78
In summary, the court simply relied on the Commissioners explanation of how existing
tax rules operate; it did not find that the tes timony imposed some new, binding obligation, or
otherwise authorized a departure from existing rules. Quite the oppositethe court found that
conferring new tax benefits without engaging in notice and comment rulemaking would violate
the APA. So too here. Applying the Texas decision to this proceeding, requiring the NRC to
take an action outside its codified regulatory process without engaging in notice and comment
rulemaking also would violate the APA.79 Thus, Texas also does not support any claim that
LBP-24-6 is affected by legal error.
Ultimately, the Appeal fails to demonstrate any error of law or abuse of discretion in the
Boards scope conclusion as to Contention 1.
- 2. Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Genuine Dispute Ruling
In LBP-24-6, the Board also concluded that the safety claims in Contention 1 are
inadmissible because Petitioners failed to satisfy the genuine dispute requirement in 10 C.F.R.
§ 2.309(f)(1)(vi). Specifically, the Board held that Petitioners safety claims failed to dispute the
77 Id. at 654 n.64.
78 Id. at 677.
79 The Board squarely invited Petitioners to address APA requirements in the proceedings below, but Petitioners sidestepped the issue. Specifically, in response to a question from Judge Arnold on how comments of one Commissioner in response to a senators question toss [the fairly rigorous rule making process] out the window, Petitioners offered no discussion of the APA and instead merely demurred that they should be able to rely on the statement. Tr. at 57-58.
19 sufficiency of any specific safety content in the LRA and failed to identify the omission of any
content required by 10 C.F.R. Part 54.80 In their Appeal, Petitioners express disagreement with
that conclusion, but again fail to explain how the Boards decision was affected by any error of
law or abuse of discretion.
First, Petitioners decry the Boards conclusion as tautological because the NRCs Part
54 regulations do not require PG&E to address seismic risk in the safety portion of its
application.81 But Petitioners characterization of the regulations is not entirely inaccurate. To
be clear, seismic matters are required to be addressed in the LRA to the extent they are within
the scope of Part 54s aging management requirements. The Board was demonstrably correct in
its observation that, although they could have, Petitioners did not challenge the sufficiency or
omission of any such aging management content in the LRA. Petitioners do not claim otherwise.
Second, Contention 1 was directed at seismic safety matters that are unrelated to aging
managementi.e., those encompassed by the plants CLB and subject to ongoing operational
oversight. In that regard, Petitioners are spot-on that those matters (which have been or are being
reviewed under the appropriate 2.206 petition process) are not required by Part 54 to be
addressed (redundantly) in the LRA.82 And Petitioners acknowledgement of that fact simply
serves to validate the Boards objectively correct conclusion that Contention 1 failed to dispute
the sufficiency or omission of any information required to be presented in the LRA.
Here, Petitioners again fall back to arguing that if Chair Hansons statement is given
binding effect (as shown above, it should not be), then the NRC will need to review in this
license renewal proceeding all seismic matters, including those encompassed by the plants
80 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 32-33).
81 Appeal at 14.
82 10 C.F.R. § 54.30(b).
20 CLB.83 But even if Petitioners were correct, and the NRC unilaterally committed itself to
conduct some extra-procedural review, that circumstance would not retroactively render PG&Es
application materially defective. Safety conten tions claiming the NRC failed in its review are
per se inadmissible because it is the application, not the review, that must be challenged.84 Here,
PG&E fully complied with all application-content requirem ents and submitted an LRA
consistent with applicable guidance. Petitioners identify no portion of the exchange between
Senator Padilla and Chair Hanson prescriptively defining additional information that must be
included in an LRA. PG&E cannot be faulted for not including in its LRA information that is
not required to be presented therein. Ultimately, th e Appeal identifies no error of law or abuse of
discretion in the Boards plainly correct ruling that Petitioners failed to dispute the LRA.
- 3. Petitioners Make No Attempt to Identify Any Error of Law or Abuse of Discretion in the Boards Waiver Determination, Which Is Objectively Correct
Lastly, the Board found that the environmental aspect of Contention 1 was inadmissible
for the additional reason that it impermissibly seeks to challenge NRC regulations. That
conclusion is indisputably correct as a matter of law.
Petitioners sought a hearing in this individual licensing proceeding to litigate the potential
environmental impacts of hypothetical accidents initiated by seismic events. That issue,
however, was comprehensively analyzed by the NRC in the GEIS, and the conclusions of that
analysis were codified as Category 1 issues in 10 C.F.R. Part 51 via notice and comment
rulemaking.85 The NRCs rules of practice and procedure funnel challenges to its regulations
83 Appeal at 14.
84 For safety contentions, the Commission has long held that the applicants license application is in issue, not the adequacy of the Staffs review of the application. An intervenor... may not proceed on the basis of allegations that the Staff has somehow failed in its performance. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983).
85 See 10 C.F.R. Pt. 51, App. B. Tbl. B-1.
21 into the rulemaking process and generally prohibit such challenges in individual licensing
proceedings.86 However, litigants can seek a waiver of that general prohibition. Petitioners
neither requested nor received such a waiver here. Thus, in the absence of the required waiver,
the Board had no choice but to conclude that Petitioners challenge was impermissible. The
Appeal offers no specific rebuttal to that conclusion, and therefore fails to demonstrate any error
of law or abuse of discretion.
In sum, the Appeal fails to de monstrate any error of law or abuse of discretion in any of
the Boards reasons for concluding that Contention 1 was inadmissible. Accordingly, the
Commission should AFFIRM the Boards ruling on Contention 1.
B. Petitioners Identify No Error of Law or Abuse of Discretion on Contention 2
Contention 2 alleged that PG&Es LRA does not include an adequate plan to monitor
and manage the effects of aging due to embrittlement of the Unit 1 [RPV] or an adequate
[TLAA] as required by 10 C.F.R. 54.21.87 After due consideration, the Board found
Contention 2 inadmissible for two main reasons: because Petitioners claims were out-of-scope
and because they failed to demonstrate a genuine dispute with the LRA.88 On appeal, Petitioners
merely repeat selected statements from their declarant, Dr. Macdonald. As a matter of law,
repetition of earlier claims is an insufficient basis to overturn a decision on appeal.
In fact, Petitioners offer oneand only onecriticism of the Boards ruling: that it
failed to consider the detail and specificity with which Dr. Macdonald demonstrated that in
86 See 10 C.F.R. § 2.335.
87 Petition at 16.
88 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 38-47).
22 Shakespeares words, Whats past is prologue.89 Otherwise, the Appeal does not
meaningfully engage with LBP-24-6; fails to distinguish between the Boards two primary bases
for rejecting the contention; and offers no analysis of the admissibility criteria. As further
explained below, Petitioners appealif it can even be characterized as suchwholly fails to
demonstrate any error of law or abuse of discretion in the Boards ruling on Contention 2.
First, the Board held that Contention 2 was beyond the scope of this proceeding, contrary
to 10 C.F.R. § 2.309(f)(1)(iii), because it improperly challenged the plants CLB rather than
aging management issues. Notwithstanding token citations to Part 54 in the Petition, and a few
block quotes from the LRA in Dr. Macdonalds declaration, the Board found that Petitioners
and Dr. Macdonalds claims were almost entirely devoted to actions taken by (or not taken by)
PG&E and/or the Commission prior to PG&Es submission of the LRA.90 As the Board noted,
this backwards-looking gaze is problematic because it challenges a plants CLB, which is outside
the scope of the proceeding.91 In reaching its scope conclusion, the Board relied, in part, on
controlling precedent from the Point Beach proceeding, in which the Commission recently
upheld a licensing boards rejection of a similar contention proffering backwards-looking
criticisms of RPV embrittlement analyses.92 And at oral argument, the Board invited Petitioners
to distinguish their claims, but received a response confirming that Petitioners were, in fact,
seeking to challenge the plants CLB.93 Thus, despite Petitioners thin attempts to cloak the
contention with cursory references to Part 54, the Board determined as a factual matter that
Contention 2 sought to challenge the CLB, and therefore was out of scope.
89 Appeal at 15.
90 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 39).
91 Id. at __ (slip op. at 39-40).
92 Id.
93 Id. at __ (slip op. at 40).
23 Second, the Board held that Contention 2 failed to demonstrate a genuine dispute with the
LRA, as required by 10 C.F.R. § 2.309(f)(1)(vi). Among other things, that criterion requires
references to specific portions of the application being challengedsomething Petitioners
failed to supply in the Petition itself. The Board acknowledged that a background discussion in
Dr. Macdonalds declaration included block quotes from a few pages of the LRA.94 But it found
that only two were accompanied by any discussion or criticism, neither of which identified a
genuine dispute.95 The Board also reviewed the analytical section of the declaration and found
that it was singularly focused on CLB matters, save two sentences providing conclusory
assertions about license renewal with no link to any particular discussion in the LRA.96 At
oral argument, Petitioners finally revealed that they were attempting to challenge the RPV
AMP.97 But they still did not specify any particular AMP content being challenged.
Nevertheless, the Board acknowledged the LRAs statement that the RPV AMP was consistent
with the GALL Report, which essentially entitles that AMP to a rebuttable presumption of
regulatory sufficiency.98 However, Petitioners failed to acknowledge, grapple with, or otherwise
dispute that relevant information, i.e., made no attempt to rebut that rebuttable presumption.
94 The Board noted that Petitioners failed to identify a single LRA provision in their Petition, as required by 10 C.F.R. § 2.309(f)(1)(vi), and correctly pointed out that their wholesale incorporation by reference of Dr.
Macdonalds declaration contravenes Commission precedent. However, the Boards ruling did not rest on that finding. Thus, Petitioners citation to a licensing board case (which is not controlling here and does not supersede Commission precedent) for the proposition that mere notice pleading suffices in NRC adjudicatory proceedings (it does not), does not demonstrate any error of law or abuse of discretion. See Appeal at 15 n.41 (citing U.S. Dept of Energy (High-Level Waste Repository), LBP-09-6, 69 NRC 367, 408 (2006)).
95 Of those two, one simply overlooked supposedly missing information and the other failed to explain why missing information was required to be included in an LRA. Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 41-43).
96 Id. at __ (slip op. at 43-44).
97 Tr. at 96-97.
98 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 44).
24 Accordingly, the Board properly concluded that Petitioners had not carried their burden to
demonstrate a genuine dispute on a material issue of fact or law.
On appeal, Petitioners point to no error of law or abuse of discretion in the Boards
ruling. In fact, it is not entirely clear which (if any) arguments in the Appeal may be directed at
which admissibility criterion or which aspect of the Boards ruling. As to the Boards scope
conclusion, Petitioners neither dispute the Boards characterization of their statements at oral
argument nor rebut the Boards application of the Point Beach precedent. And as to the Boards
genuine dispute conclusion, Petitioners say nothing about the GALL Report and (Shakespearian
maxims aside) still do not tell us which portion of the RPV AMP they were purporting to
dispute. Overall, the Appeal does little more than quote or reference certain statements from Dr.
Macdonalds declaration, claiming they are specific and well-supported. But this vague
assertion identifies no error of la w or abuse of discretion; and simply restating earlier arguments
is not a valid appeal.99
Lastly, Petitioners appear to equate Contention 2 with an embrittlement contention that
was admitted in the Indian Point proceeding.100 But they offer no analysis or discussion to
support the suggested equivalence and fail to explain howor even assert thatit somehow
contradicts any portion of LBP-24-6. In any event, a brief review of that decision makes clear
that the specific claims in the Indian Point contention are easily distinguishable from the vague
allegations offered by Petitioners here.101 Simply put, Petitioners unexplained reference to this
99 Shieldalloy, CLI-07-20, 65 NRC at 503-05.
100 Appeal at 17 (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 131 (2008)).
101 Compare, e.g., Indian Point, LBP-08-13, 68 NRC at 131 (noting that the operative challenge in that proceeding was whether an AMP was necessary) with Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 44) (noting that the LRA included an AMP entitled to a presumption of regulatory sufficiency, which Petitioners neither acknowledged nor challenged).
25 non-controlling licensing board decision does not remotely evidence any error of law or abuse of
discretion in the Boards ruling here.
In sum, the Board fully considered Petiti oners arguments and appropriately applied
controlling law. On appeal, Petitioners do not claim or show otherwise. Instead, the Appeal
merely recycles Petitioners original arguments and hopes for a different result from the
Commission. This does not satisfy the appellate standard of review. Accordingly, the
Commission should AFFIRM the Boards ruling on Contention 2.
C. Petitioners Identify No Error of Law or Abuse of Discretion on Contention 3
Among many other environmental laws, federal license applicants (including applicants
for NRC license renewals such as PG&E) and federal agencies (including the NRC) must
comply with the CZMA. As relevant here, there are two main steps in the CZMA process: the
certification, which an applicant must submit to the cognizant state agency (here, the
California Coastal Commission (CCC)) with a copy thereof included in its application to the
federal agency; and the subsequent concurrence from that state agency, which must be
obtained before the license can be issued.102 In Contention 3, Petitioners alleged that the NRC
cannot approve the LRA because PG&E has not yet obtained a CZMA concurrence. The
Board held that this contention was inadmissible for failing to demonstrate a genuine dispute on
a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi). As explained below,
the Boards ruling is manifestly correct, and the Appeal identifies no error of law or abuse of
discretion in the Boards reasoning.
102 A federal agency can also issue a license without a state concurrence if: (1) the state fails to act, or (2) if the state rejects the certification and the applicant prevails on an appeal to the Secretary of Commerce. CZMA, 16 U.S.C. § 1456(c)(3)(A).
26 Based on two key conclusions, the Board essentially found that Contention 3 was unripe.
First, as a matter of settled law that no party disputed, the CZMA concurrence is not required
at the application stage. Thus, as the Board correctly held, its absence from the LRA is not a
cognizable deficiency (and PG&E fully complied with its obligation to provide the
certification in the LRA). Second, as another matter of settled law that no party disputed, the
NRC cannot approve the LRA unless and until that CZMA concurrence is issued. As the
Board again correctly held, in the absence of some indication that the NRC intends to violate the
statute by approving the LRA without that concurrence (which no party alleged), no genuine
dispute currently exists on the matter of CZMA complian ce. On appeal, Petitioners do not
contest any of these fundamental aspects of the Boards ruling. Instead, Petitioners raise two
tertiary claims that provide no grounds for reversal of the Boards ruling.
First, Petitioners point to a CCC request for additional information (RAI) to PG&E
regarding its certification. Petitioners allege the RAI somehow exposes a genuine dispute
because it constitutes evidence that PG&E could obtain a renewed license from the NRC
without the required CZMA concurrence.103 But that argument fails to demonstrate any error of
law or abuse of discretion. The Board squarely consideredand properly rejectedthat
specious suggestion.104 On appeal, Petitioners offer no rebuttal of the Boards reasoning. They
simply repeat the same argument and demand a different result. As the Commission has
explained, [r]ecitation of an appellants prior po sitions in a proceeding or statement of general
103 See Appeal at 19 (citing Letter from T. Luster, CCC, to T. Jones, Senior Director Regulatory, Environmental and Repurposing, PG&E at 1 (Dec. 7, 2023)).
104 Diablo Canyon, LBP-24-6, 100 NRC at __ (slip op. at 50-51).
27 disagreement with a decisions result is not sufficient; the appellant must point out the errors in
the Boards decision.105 They have not done so here.
Furthermore, the Boards conclusion is legally and factually sound. Regardless of
whether the CCC was satisfied with the completeness of the original certification, an
extraordinary logical gap exists between that unremarkable circumstance ( i.e., the issuance of an
RAI) and the possibility that PG&E could obtain a renewed license without the required CZMA
concurrence. Namely, that would require the NRC to purposefully elect to violate a federal
statute. As a matter of settled law (which Petitioners do not dispute), the NRC is entitled to a
presumption of administrative regularity.106 In other words, baseless speculation of illegal
conduct can never provide the basis for an admissible contention. Here, the Board specifically
probed this issue at oral argument, asking whether Petitioners had any basis to dispute the NRCs
presumption of regularity. Petitioners admitted, [n]o, we have not presented evidence of
irregularity by the staff. 107 Given that admission, the Boards conclusion is imminently
reasonable and fully consistent with controlling lawand Petitioners offer nothing to conclude
otherwise here.
Second, Petitioners (admitting that no genuine dispute currently exists) argue that the
Commission should hold the contention in abeyance pending further developments.108
According to Petitioners, that is because the NRC cannot reject [Contention 3] now and place
extra burdens on Petitioners at whatever time in the future the NRC deems ripe for raising this
105 Turkey Point, CLI-17-12, 86 NRC at 219 (citations omitted).
106 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-11, 67 NRC 379, 384 (2008) (Absent clear evidence to the contrary, we presume that public officers will properly discha rge their official duties. (cleaned up)).
107 Tr. at 143.
108 Appeal at 19.
28 material issue.109 Yet again, the Board squarely consideredand properly rejectedthat
demand when Petitioners raised it in the initial proceedings. As the Board correctly explained,
Commission precedent counsels that unripe placeholder contentions should be rejectedthe
opposite of what Petitioners demand.110 On appeal, Petitioners neither acknowledge nor rebut
the relevant Commission authority on that point. Petitioners simply recycle their arguments and
demand a different result, which fails to constitute a valid appeal.
Next, Petitioners argue that a D.C. Circuit ruling from 1984, Union of Concerned
Scientists v. NRC (UCS), compels the NRC to offer a hearing on CZMA issues.111 As a
preliminary matter, this argument is new and un timely. In the proceedings before the Board,
Petitioners never invoked the UCS case as alleged support for Contention 3. However, the
Commission will not consider new arguments raised for the first time on appeal that the Board
never had an opportunity to consider.112 Thus, the Commission should summarily reject these
new arguments here.
Furthermore, UCS is inapt and provides no basis to disturb the Boards ruling. In UCS,
the court held that the NRC cannot categorically exclude from the scope of a hearing opportunity
any topic that is material to the underlying licensing decision. But the Boards ruling on
Contention 3 in no way contradicts that holding. The Board did not conclude that CZMA issues
are beyond the scope of (criterion (iii)) or are immaterial to (criterion (iv)) the proceeding.
Rather, it concluded that Petitioners wild speculation of illegal conduct was insufficient, as a
109 Id.
110 See, e.g., Union Electric Co. (Callaway Plant, Unit 1), CLI-15-11, 81 NRC 546, 548-50 (2015).
111 Appeal at 11, 13.
112 USEC, CLI-06-10, 63 NRC at 458 (quotations and citation omitted). The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board.
Id. (quotations and citation omitted).
29 matter of law, to demonstrate a genuine dispute with the application (criterion (vi)). UCS has no
bearing whatsoever on that fundamental defect in Contention 3, and certainly exposes no error of
law or abuse of discretion in the Boards ruling.
In sum, the Board fully considered Petiti oners arguments and appropriately applied
controlling law. On appeal, Petitioners offer no contrary demonstration. Petitioners simply
recycle their original arguments, hoping for a different result from the Commission, and
improperly raise new arguments for the first time on appeal, none of which satisfy the appellate
standard of review. Accordingly, the Commission should AFFIRM the Boards ruling on
Contention 3.
IV. CONCLUSION
Petitioners have not met their affirmative burden to demonstrate that the licensing board
misapplied controlling law or abused its discretion in ruling on any of Petitioners three
contentions. For the many reasons set forth above, the Commission should AFFIRM all three of
the Boards contention admissibility rulings in LBP-24-6.
Respectfully submitted,
Signed (electronically) by Ryan K. Lighty Executed in Accord with 10 C.F.R. § 2.304(d)
RYAN K. LIGHTY, ESQ. TIMOTHY P. MATTHEWS, ESQ.
MORGAN, LEWIS & BOCKIUS LLP PAUL M. BESSETTE, ESQ.
1111 Pennsylvania Avenue, N.W. MORGAN, LEWIS & BOCKIUS LLP Washington, D.C. 20004 1111 Pennsylvania Avenue, N.W.
(202) 739-5274 Washington, D.C. 20004 ryan.lighty@morganlewis.com (202) 739-5527 (202) 739-5796 Timothy.Matthews@morganlewis.com Paul.Bessette@morganlewis.com
Counsel for Pacific Gas and Electric Company
Dated in Washington, D.C.
This 23rd day of August 2024
30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the matter of:
Docket No. 50-275-LR-2 and PACIFIC GAS AND ELECTRIC COMPANY 50-323-LR-2
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) August 23, 2024
CERTIFICATE OF SERVICE
Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing
PACIFIC GAS AND ELECTRIC COMPANYS ANSWER OPPOSING THE APPEAL OF
LBP-24-6 FILED BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE
EARTH, AND ENVIRONMENTAL WORKING GROUP was served upon the Electronic
Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com
Counsel for Pacific Gas and Electric Company
DB1/ 150285390.4