ML24089A241
| ML24089A241 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/29/2024 |
| From: | Bessette P, Lighty R, Matthews T Morgan, Morgan, Lewis & Bockius, LLP, Pacific Gas & Electric Co |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 56979, 50-323-LR-2, 50-275-LR-2 | |
| Download: ML24089A241 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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) March 29, 2024
PACIFIC GAS AND ELECTRIC COMPANYS ANSWER OPPOSING THE HEARING REQUEST 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
- i -
CONTENTS
I. INTRODUCTION............................................................................................................. 1
II. BACKGROUND............................................................................................................... 3 A. License Renewal Reviews..................................................................................... 3
- 1. Safety Review............................................................................................ 3
- 2. Environmental Review............................................................................... 5 B. The LRA and Hearing Opportunity....................................................................... 6 C. The Shutdown Requests......................................................................................... 8
III. EWG HAS NOT ESTABLISHED STANDING............................................................... 9 A. EWG Has Not Demonstrated Standing as a Matter of Right............................... 10
- 1. Legal Standards for Standing as a Matter of Right.................................. 10
- 2. EWG Has Not Established Organizational Standing............................... 11
- 3. EWG Has Not Established Representational Standing............................ 13 B. EWGs Request for Discretionary Intervention Should Be Denied.................... 14
- 1. Legal Standards for Discretionary Intervention....................................... 15
- 2. EWG Has Not Demonstrated Its Entitlement to Discretionary Intervention.............................................................................................. 15
IV. PETITIONERS HAVE NOT PROFFERED AN ADMISSIBLE CONTENTION......... 17 A. Legal Standards for Hearing Requests and Contention Admissibility................ 17
- 1. Issues Must Be Within the Scope of the Proceeding............................... 18
- 2. Disputes Must Be Pled in Sufficient Detail to Show That They Are Both Genuine and Material...................................................................... 19 B. Proposed Contention 1 (Seismic Matters) Is Inadmissible.................................. 21
- 1. Petitioners Safety Claims Are Inadmissible........................................... 21
- a. Technical and Regulatory Background Associated with Ongoing Seismic Compliance...................................................... 22
- b. Petitioners Safety Claims Fail to Raise a Genuine Dispute Because They Fail to Reference Any Specific Portion of the Safety Application.................................................................. 24
- c. Petitioners Safety Claims Are Beyond the Scope of This Proceeding Because They Seek to Challenge DCPPs CLB and NRC Policy on Seismic Analyses......................................... 25
- ii -
- 2. Petitioners Environmental Claims Are Inadmissible.............................. 30
- a. Petitioners Challenge to the Codified Analysis of Severe Accident Impacts Is Beyond the Scope of This Proceeding........ 32
- b. Petitioners Brief Mention of SAMAs Fails to Articulate a Genuine Dispute with the Environmental Report........................ 34
- c. Petitioners Claim That the Environmental Report Omits Consideration of the No-Action Alternative Is Demonstrably Incorrect............................................................... 35 C. Proposed Contention 2 (AMPs and TLAAs) Is Inadmissible.............................. 36
- 2. Proposed Contention 2 Fails to Demonstrate an Adequately Supported Genuine Dispute with the LRA.............................................. 39
- a. Petitioners Have Not Met Their Pleading Burden....................... 39
- b. The Macdonald Declarations Also Fail to Demonstrate an Adequately Supported Genuine Dispute with the LRA............... 42
- 3. Proposed Contention 2 Improperly Challenges Issues Beyond the Limited Scope of this License Renewal Proceeding................................ 44
- a. Petitioners Challenges to NRC Regulations Are Outside the Scope of This Proceeding...................................................... 44
- b. Petitioners Challenges to DCPPs CLB Are Outside the Scope of This Proceeding............................................................ 47 D. Proposed Contention 3 (CZMA) is Inadmissible................................................. 48
- 1. CZMA Requirements and Procedural History......................................... 49
- 2. Petitioners Mischaracterization of the CCC Letter Fails to Supply the Requisite Support for an Admissible Contention.............................. 50
- 3. Petitioners Have Not Identified Any Omission or Deficiency in the ER............................................................................................................ 51
V. CONCLUSI ON................................................................................................................ 54
I. INTRODUCTION
Pursuant to 10 C.F.R. § 2.309(i)(1), Pacific Gas and Electric Company (PG&E)
submits this Answer opposing the Hearing Request filed by San Luis Obispo Mothers for Peace
(SLOMFP), Friends of the Earth (FOE), and the Environmental Working Group (EWG)
(collectively, Petitioners) on March 5, 2024 (Petition).1 Petitioners seek to intervene in the
above-captioned proceeding and request a hearing to challenge the license renewal application
(LRA) PG&E submitted to the U.S. Nuclear Regulatory Commission (NRC) requesting the
renewal of the facility operating licenses for the Diablo Canyon Nuclear Power Plant, Units 1
and 2 (Diablo Canyon). Petitioners assert standing and proffer three proposed contentions.
Section II of this brief provides background information relevant to resolution of the
Petition, including a summary of (and important limitations on) the license renewal process, as
well as the relevant procedural history for this proceeding.
Standing is discussed in Section III. PG &E does not contest SLOMFPs or FOEs
representational standing in this adminis trative proceeding based on the Commissions
proximity-based standard. But, as explaine d in Section III.A, EWG lacks organizational
standing because it has not provided any information demonstrating organizational harm, and it
lacks representational standing because it is not a membership-based organization. And as
shown in Section III.B, EWG also has not demonstr ated that its participation would be necessary
to develop a sound record in this proceeding, so it has not met the criteria for discretionary
intervention. Thus, its request for party status should be DENIED.
1 Request by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group for Hearing on Pacific Gas & Elec. Co.s License Renewal Application for the Diablo Canyon Nuclear Plant (Mar. 4, 2024) (ML24065A432) ( Petition). As further explained below, the document itself is dated March 4, 2024, but it was not filed on the NRCs E-filing system until March 5, 2024.
Furthermore, as explained in Section IV, none of Petitioners three proposed contentions
are admissible. Petitioners Proposed Contenti ons 1 and 2 rehash earlier arguments from two
pending petitions seeking to shutdown DCPPone related to reactor vessel embrittlement
analyses and the other to seismic analyses. But, as detailed below, the above-captioned
proceeding is a limited-scope license renewal proceeding focused on certain topics related to
aging management during the proposed future period of extended operation (PEO). In
contrast, the matters raised by Petitioners relate to the Current Licensing Basis (CLB) of the
plant, which includes the full spectrum of operational safety requirements applicable to the plant
both now and during the PEO. Because the CLB cannot be challenged in a license renewal
proceeding, Petitioners claims are beyond the scope of this proceeding. Notably, the NRC is
actively evaluating Petitioners embrittlement and seismic claims through ongoing CLB
oversight processes (as detailed below), separate and apart from this license renewal proceeding.
Additionally, on both of those issues, Petitioners essentially advocate for the NRC to
completely overhaul its approved analytical methodologies and codified regulations. Those
challenges are beyond the scope of this proceeding because, as explained below, black letter law
holds that NRC methodologies and regulations cannot be challenged in individual adjudicatory
proceedings. Ultimately, this license renewal proceeding, with limited scope defined by rule, is
not a permissible forum to raise those issues. Accordingly, and for other reasons explained in
Sections IV.B. and IV.C, both Proposed Contentions 1 and 2 are inadmissible.
Proposed Contention 3, on the other hand, criticizes the LRA because PG&E has not yet
obtained a concurrence from the State of California on its Coastal Zone Management Act
(CZMA) Consistency Certification. However, Petitioners identify no requirement to have
done so at this early stage of the proceedingand no such requirement exists. Contrary to
Petitioners characterizations of fact and law, the state concurrence process remains ongoing.
So, as detailed in Section IV.D, Proposed Contention 3 is also inadmissible because it fails to
identify any deficiency in the LRA.
Because Petitioners have failed to proffer at least one admissible contention, the Petition
should be DENIED.
II. BACKGROUND
Relevant background information that may be instructive to resolution of the Petition is
summarized below. The scope and framework of NRC license renewal reviews are discussed in
Section II.A. A brief procedural history of the LRA and the instant hearing opportunity is
provided in Section II.B. And other recent filings by Petitioners that are relevant to this
proceeding are noted in Section II.C.
A. License Renewal Reviews
NRC license renewal reviews consist of two parts: (1) a safety review governed by
10 C.F.R. Part 54, and (2) an environmental review governed by 10 C.F.R. Part 51.
- 1. Safety Review
The objective of the NRCs safety review is to ensure that the licensee can successfully
manage the detrimental effects of aging during the period of extended operations.2 Thus, the
NRCs license renewal regulations in 10 C.F.R. Part 54 focus on whether the licensee can
manage the effects of aging on certain long-lived, passive components that are important to
safety.3 To do so, applicants must include descriptions of their aging management programs
(AMPs) for these components in their LRAs.4 These AMPs are at the core of the NRCs
2 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-6, 81 NRC 340, 347 (2015).
3 Id.; see also 10 C.F.R. §§ 54.21, 54.29(a).
4 Indian Point, CLI-15-6, 81 NRC at 348; see also 10 C.F.R. § 54.21(a)(3).
license renewal safety framework. The NRC has published guidance (known as the GALL
Report) that analyzes aging management issues generically and contains AMPs that applicants
may use to satisfy the aging mana gement requirements in Part 54.5
However, the safety review is not intended to duplicate the NRCs ongoing oversight of
operating reactors.6 The Commission has chosen, as a policy matter, to limit the scope of its
license renewal proceedings:
When the Commission issues an initial license, it makes a comprehensive determination that the design, construction, and proposed operation of the facility satisfied the Commissions requirements and provided reasonable assurance of adequate protection to the public health and safety and common defense and security. Each nuclear power plant also has a [(CLB)], a term of art comprehending the various Commission requirements applicable to a specific plant that are in effect at the time of the [LRA ].... 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 complianc e with the [CLB] during the original license term, they likewise can reasonably be expected to fulfill this function during the renewal term.7
Thus, ongoing agency oversight, and a plants CLB,8 are beyond the limited scope of license
renewal and beyond challenge in a license renewal adjudicatory proceeding.9 The Commission
long ago determined that it would be unnecessary and wasteful10 to permit such challenges.
5 See NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010)
(ML103490041) (GALL Report).
6 Indian Point, CLI-15-6, 81 NRC at 347.
7 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-9 (2001).
8 See 10 C.F.R. § 54.3 (defining the CLB).
9 Turkey Point, CLI-01-17, 54 NRC at 7-9.
10 Id. at 7.
- 2. Environmental Review
The objective of the NRCs environmental review is to analyze the potential
[environmental] impacts of an additional 20 years of nuclear power plant operation[s].11 For
license renewal, the NRCs environmental regulati ons in Part 51 are based, in large part, on the
Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS),
which summarizes the findings of a systematic inquiry (accomplished through notice and
comment rulemaking) into the potential environmental consequences of license renewal.12
Based on these analyses, the GEIS delineates two types of environmental issues:
- Generic Category 1 issues, for which the NRC made generic conclusions applicable to all existing nuclear power plants;13 and
- Plant-Specific Category 2 issues, for which site-specific analyses are required for each individual license renewal proceeding.14
For Category 1 issues, the GEIS analyses and impact conclusions are codified in 10 C.F.R. Part
51, Subpart A, Appendix B. Because those Category 1 findings are codified, they are not subject
to challenge in individual adjudicatory proceedings.15 As part of an initial LRA, applicants must
submit an environmental report that analyzes a ll Category 2 issues on a plant-specific basis.16
11 Id.
12 See NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (Vol. 1, ML040690705) (1996 GEIS); NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) (Vol. 1, ML13106A241) (GEIS). As used in this brief, GEIS refers to Rev. 1 unless otherwise noted.
The NRC is now working on Rev. 2 of the GEIS and corresponding changes to 10 C.F.R. Part 51, but that effort is only at the proposed rule stage and imposes no requirements here.
13 Turkey Point, CLI-01-17, 54 NRC at 11.
14 See id. at 11-12 (discussing Category 2 issues).
15 See 10 C.F.R. § 2.335 (prohibiting challenges to NRC regulations absent a waiver from the Commission); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007) (Because the generic e nvironmental analysis was incorporated into a regulation, the conclusions of that analys is may not be challenged in litigation.).
16 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii).
However, further analysis of Category 1 issues is not required in the environmental report. 17
Ultimately, the NRC Staff draws upon the applicants ER, the GEIS, and other sources of
information to produce a plant-specific Supplemental Environmental Impact Statement (SEIS)
for each LRA.18
The NRC periodically updates the GEIS,19 and is currently engaged in a rulemaking to
update the codified analyses and conclusions in Part 51.20 SLOMFP previously submitted
comments to the NRC on the proposed rule.21 However, the updated GEIS and rule are not yet
final and do not apply here.
B. The LRA and Hearing Opportunity
PG&E filed its LRA for Diablo Canyon on November 7, 2023.22 The LRA contains both
an Environmental Report (ER) and a Safety Application.23 The NRC docketed the LRA and
published a notice in the Federal Register on December 19, 2023, announcing an opportunity to
17 See 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).
18 See GEIS at 1-16 to 1-19.
19 See 10 C.F.R. Part 51, Subpart A, Appendix B (On a 10-year cycle, the Commission intends to review the material in this appendix and update it if necessary.).
20 Renewing Nuclear Power Plant Operating LicensesEnvironmental Review; Proposed rule, 88 Fed.
Reg. 13,329 (Mar. 3, 2023).
21 Proposed Rule: Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, Comments by San Luis Obispo Mothers for P eace on Proposed Rule and Draft Generic Environmental Impact Statement for Renewing Nuclear Power Plant Licenses (May 2, 2023)
(ML23123A410) (SLOMFP Proposed Rule Comments).
22 Diablo Canyon, Units 1 and 2, License Rene wal Application (Nov. 7, 2023) (ML23311A154)
(LRA). PG&E originally filed a license renewal application in 2009, but it was subsequently withdrawn in 2018. A brief procedural history of the original proceeding and discussion of PG&Es decision to file a new LRA in 2023 is available here: Pacific Gas and Elec. Co.; Diablo Canyon Power Plant, Units 1 and 2; Exemption; issuance, 88 Fed. Reg. 14,395 (Mar. 8, 2023).
23 The Environmental Report is Appendix E to the LRA. For purposes of this pleading, the remainder of the LRA other than Appendix E is referred to as the Safety Application.
request a hearing with a deadline of March 4, 2024.24 The California Energy Commission
(CEC) timely filed a March 4, 2024, Request to Participate as a non-party in this proceeding,
pursuant to 10 C.F.R. § 2.315(c).25 Petitioners initially circulated the Petition via email to certain
individuals on March 4, 2024, and later filed their Petition via the agencys e-filing system on
March 5, 2024. The Board deemed the Petition timely, concluding that there was no prejudice in
filing the Petition one day late, but admonished Petitioners regarding the timeliness of future
filings.26 The Petition proffers three proposed contentions and was accompanied by several
exhibits.
- Exhibits 1(A) through 1(I) contain standing declarations;27
- Exhibit 2 contains a declaration from Peter Bird, Ph.D, dated March 4, 2024 (Bird Declaration);28
- Exhibit 3 contains two declarations from Digby Macdonald, Ph.D, one dated September 14, 2023 (2023 Macdonald Declaration) and another dated March 4, 2024 (2024 Macdonald Declaration)
(collectively, the Macdonald Declarations);29 and
- Exhibit 4 contains a letter from the California Coastal Commission (CCC) (CCC Letter).30
24 License Renewal Application; Pacific Gas and Elec. Co.; Diablo Canyon Nuclear Power Plant, Units 1 and 2, 88 Fed. Reg. 87,817 (Dec. 19, 2023).
25 Request of the California Energy Commission to Pa rticipate as Non-Party Pursuant to 10 C.F.R.
§ 2.315(c) (Mar. 4, 2024) (ML26064A132). PG &E supports CECs Request to Participate.
26 Licensing Board Memorandum and Order (Initial Prehearing Order) at 3-4 (Mar. 13, 2024)
(unpublished) (ML24073A326) (In itial Prehearing Order). PG&E has endeavored to keep footnotes to a minimum, as encouraged by the Board. Id. at 5. Although this pleading contains 232 footnotes, most are citations to source authority ; purely narrative footnotes are used sparingly.
27 Petition, Ex. 1 (included in same PDF as Petition, beginning at PDF page 24).
28 Petition, Ex. 2 (ML24065A434).
29 Petition, Ex. 3 (ML24065A435).
30 Petition, Ex. 4 (ML24065A436).
C. The Shutdown Requests
In September 2023, before the LRA was filed, SLOMFP and FOE asked the Commission
to (among other things) order the immediate shutdown of DCPP Unit 1 due to alleged concerns
regarding the embrittlement of its reactor vessel (Embrittlement Shutdown Request).31
Requirements related to reactor vessel embrittlement are part of the plants CLB. 32 As alleged
support, SLOMFP and FOE submitted the 2023 Macdonald Declaration.33 As noted in PG&Es
response, Dr. Macdonalds claims focused on advocating for the NRC to abandon its
longstanding regulations and guidance on this issue and instead adopt a completely new
methodology.34 The NRC Secretary (on behalf of the Commission) declined to order the
immediate shutdown of Unit 1, but referred the underlying concerns to the Executive Director
for Operations for consideration under 10 C.F.R. § 2.206.35 That is the process by which
members of the public may raise health and safety concerns related to the ongoing operation of a
nuclear power plant and its CLB.36 Notably, Petitioners re-attached Dr. Macdonalds declaration
31 [SLOMFP] and [FOE] Request for Hearing on NRC Staff Decision Effectively Amending Diablo Canyon 1 License, Request for Emergency Order Requ iring Shutdown, and Errata (Sept. 14, 2023)
(ML23257A302) (Embrittlement Shutdown Request).
32 See, e.g., 10 C.F.R. § 50.61, 50.61a (imposi ng requirements on operating plants).
33 Embrittlement Shutdown Request, Attach. 1 (Declar ation of Digby Macdonald, dated Sept. 14, 2023)
(Macdonald 2023 Declaration).
34 Pacific Gas and Elec. Co. Response to the Request of San Luis Obispo Mothers for Peace and Friends of the Earth for an Emergency Order Requiring Immediate Shutdown of Diablo Canyon Nuclear Power Plant, Unit 1 at 14-15 (Sept. 25, 2023) (ML23268A435).
35 NRC Secretary Order (Denying Hearing Request and Referring Request for Immediate Action to the Executive Director for Operations for Consideration Under 10 CFR 2.206) (Oct. 2, 2023)
(unpublished) (ML23275A225).
36 See generally Petition the NRC to Take an Enforcement Action, NRC.GOV, https://www.nrc.gov/about-nrc/regulatory/enforcemen t/petition.html (last visited Mar. 26, 2024).
from the Embrittlement Shutdown Request (related to the Unit 1 CLB) to their Petition in this
license renewal proceeding as alle ged support for Proposed Contention 2.37
In March 2024, concurrent with their filing of the Petition, Petitioners filed another
request asking the Commission to order the immediate shutdown of DCPP due to alleged seismic
safety concerns (Seismic Shutdown Request).38 Safety requirements related to seismic risk are
also part of the plants CLB.39 As alleged support, SLOMFP and FOE submitted the Bird
Declaration.40 Dr. Birds commentary is rooted in the previous comments submitted by
SLOMFP to the NRC as part of the GEIS update rulemaking.41 The NRC Secretary (on behalf
of the Commission) again declined to order the immediate shutdown of DCPP and referred the
Seismic Shutdown Request to the Executive Director for Operations for consideration under
10 C.F.R. § 2.206.42 Notably, Petitioners re-attached Dr. Birds declaration from the Seismic
Shutdown Request (related to the DCPP CLB and the GEIS rulemaking) as alleged support for
Proposed Contention 1 in their Petition.43
III. EWG HAS NOT ESTABLISHED STANDING
EWG asserts that it has standing as a matter of right. According to the Petition, EWG is a
501(c)(3) organization that permits individuals to sign up for an email list to receive monthly
37 Compare Embrittlement Shutdown Request, Attach. 1 with Petition, Ex. 3 at [PDF page 14].
38 Petition by [SLOMFP], [FOE], and [EWG] for Shutdown of Diablo Canyon Nuclear Power Plant Due to Unacceptable Risk of Seismic Core Damage Accident (Mar. 4, 2024) (ML24067A066)
(Seismic Shutdown Request).
39 See, e.g., Vistra Operations Co. LLC (Comanche Peak Nuclear Power Plant, Units 1 & 2), LBP-23-6, 97 NRC 147, 160 (2023) (Seismic risk evaluation ge nerally falls within the ambit of the [CLB]
safety issues.).
40 Seismic Shutdown Request, Ex. 1 (Declaration of Peter Bird, Ph.D, dated March 4, 2024).
41 Bird Declaration at 2 (first para. 4) (citing SLOMFP Proposed Rule Comments).
42 Secretary Order at 2 (Mar. 12, 2024) (ML24072A529).
43 Compare Seismic Shutdown Request, Ex. 1 with Petition, Ex. 2.
informational publications. But, as explained in Section III.A below, EWG has not met its
burden to show standing as a matter of right under 10 C.F.R. § 2.309(d). In the alternative, EWG
seeks discretionary intervention. But, as shown in Section III.B, neither has EWG established
that it is entitled to discretionary intervention under 10 C.F.R. § 2.309(e). Accordingly, EWGs
request for party status should be DENIED.
A. EWG Has Not Demonstrated Standing as a Matter of Right
As explained in the legal standards discussion in Section III.A.1, the NRC recognizes two
types of standing for entities: organizational and representational. EWG expressly asserts that it
is entitled to organizational standing. However, EWG does not allege any property or
financial interests near DCPP. For that and other reasons detailed in Section III.A.2, EWG has
not satisfied the requirements for organizational standing. Furthermore, EWG has submitted
affidavits from supporters. However, it is not a membership organization and therefore does
not qualify for representational standing either, as explained in Section III.A.3.
- 1. Legal Standards for Standing as a Matter of Right
The Atomic Energy Act of 1954 (AEA), as amended, allows individuals whose
interest may be affected to intervene in NRC licensing proceedings. 44 The Commission has
long applied judicial concepts of standing to determine whether a petitioners interest provides a
sufficient basis for intervention.45 Essential to establishing stan ding are findings of (1) injury,
(2) causation, and (3) redressability.46 Both an individual and an organization may assert
standing. An organization may assert standing in its own right (i.e., organizational standing) or
44 AEA § 189a (codified at 42 U.S.C. § 2239(a)).
45 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30 (1998).
46 EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 NRC 613, 621 (2011).
may assert a right to represent the interests of its members (i.e., representational standing). In all
cases, [t]he petitioner bears the burden to provide facts sufficient to establish standing.47
- 2. EWG Has Not Established Organizational Standing
Pursuant to 10 C.F.R. § 2.309(d)(1), a claim of standing must be accompanied by four
things:
(i) The name, address and telephone number of the requestor or petitioner;
(ii) The nature of the requestors/petitioners right under the Act to be made a party to the proceeding;
(iii) The nature and extent of the reques tors/petitioners property, financial or other interest in the proceeding; and
(iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors/petitioners interest.
Neither the discussion of EWGs standing in the Petition nor the affidavit of EWGs
President states EWGs physical address or telephone number.48 In contrast, the standing
regulation at 10 C.F.R. § 2.309(d)(1)(i) specifies that the petition must include this
information. EWGs claim of standing should be rejected for that reason alone.
The Petition similarly fails to address, in clear terms, the remaining three threshold
requirements, which hinders the Boards ability to evaluate standing. EWG fails to articulate the
possible effect of any decision or order in this proceeding on its property, financial, or other
47 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 139 (2010).
48 See generally Petition at 3-6; Ex. 1(F). The signature block for EWGs counsel at the end of the Petition includes an address and phone number for counsel, but it is unclear if that contact information also applies to EWG as an organizational entity.
interests. In fact, it does not clearly articulate what those interests are. Without this information,
the Board cannot evaluate any possible discrete institutional injury to EWG. 49
Likewise, EWGs assertion that the continued operation of DCPP is a high cost to
taxpayers and presents extreme safety and environmental hazards 50 is far too vague to
establish standing. Similarly, EWGs claimed interest in protecting public health and safety and
the environment from radiological contamination51 is a broad policy interest shared with many
others, which is an insufficient basis for standing.52 Such general interests are too broad to
constitute a protected interest under either the Atomic Energy Act or the National Environmental
Policy Act and are insufficient to establish standing. 53
EWG also suggests that its involvement in proceedings for the advocacy of alternatives
to dangerous nuclear reactor operation and its party status to intervene in a net energy metering
tariff proceeding[s] should suffice to grant it standing in this proceeding.54 But these statements
are irrelevant. Consistent with Commission precedent, a petitioner who has demonstrated
standing in one proceeding is not automatically granted standing in future proceedings related to
the same licensee, let alone an utterly unrelated proceeding.55
49 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 270 (2008) (citation omitted) (noting that general enviro nment and policy interests have been repeatedly found insufficient).
50 See Petition at 1.
51 Id. at 5.
52 FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station), CLI-20-5, 91 NRC 214, 221-222 (2020).
53 See generally Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-83-25, 18 NRC 327, 332 (1983).
54 Petition at 4.
55 Bell Bend, CLI-10-7, 71 NRC at 138 ([A] petitioner must make a fresh standing demonstration in each proceeding in which intervention is sought because a petitioners circumstances may change from one proceeding to the next.).
Next, EWG claims that DCPPs continued operation hurts [Californias] shift to safe,
renewable energy and prolongs the risk of a disaster at the plant.56 In essence, EWG simply has
an objection to the facility, which is insufficient to demonstrate standing.57 And EWGs
general desire to develop research reports and consumer guides to educate its email list
subscribers fares no better.58 As the Commission has explained, a mere intellectual or academic
interest in a facility or proceeding is insufficient, in and of itself, to demonstrate standing.59 It
also held that institutional interests in disse minating information and educating the public do
not constitute an interest which may be affected by the proceeding.60
Ultimately, EWG has not demonstrated organizational standing.
- 3. EWG Has Not Established Representational Standing
An organization may represent the interests of its members using representational
standing if it can: (1) show that the interests it seeks to protect are germane to its own purpose;
(2) identify, by name and address, at least one member who qualifies for standing in his or her
own right; (3) show that it is authorized by that member to request a hearing on his or her behalf;
and (4) show that neither the claim asserted nor the relief requested requires an individual
members participation in the organizations legal action. 61 Nowhere in the Petition does EWG
assert representational standing. But it does attach declarations from three supporters. Doing
56 Petition at 4.
57 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996); see also Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 188 (1999).
58 Petition at 3.
59 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-05-26, 62 NRC 577, 579-80 (2005).
60 Westinghouse Elec. Corp. (Export to South Korea), CLI-80-30, 12 NRC 253, 259 (1980).
61 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-2, 73 NRC 28, 40 (2011)
(citing Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 409 (2007)).
so appears to conflate the requirements for organizational and representational standing. In any
event, EWG has not established representational standing.
The substantially identical affidavits state that these individuals are supporter[s] of
[EWG], are located within the 50-mile ingestion pathway zone of Diablo Canyon, believe
that the continued operation of the Diablo Canyon reactors for a renewed operating license term
poses an unacceptable radiological accident risk that jeopardizes [t heir] health and safety and the
environment, receive monthly EWG emails, and have authorized EWG to represent their
interests.62 These statements appear to be directed at the requirements for representational
standing, even though EWG has not requested it.
However, EWGs attempt to establish representational standing fails because EWG itself
admits that it is not technically a membership organization and has no members to
represent.63 Thus, EWG has not satisfied the second prong of the representational standing test
because it has not identified at least one member who qualifies for standing.
Because EWG has not satisfied the requi rements for either organizational or
representational standing, it is not entit led to standing as a matter of right.
B. EWGs Request for Discretionary Intervention Should Be Denied
As explained in Section III.B.1, in some extraordinary circumstances, the NRC permits
discretionary intervention for petitioners who otherwise cannot demonstrate standing as a matter
of right. But, as shown in Section III.B.2, EWG has not identified any such extraordinary
circumstances here.
62 Petition, Ex. 1G to 1I.
63 Id. at 4-5.
- 1. Legal Standards for Discretionary Intervention
Pursuant to 10 C.F.R. § 2.309(e), the presiding officer may consider a request for
discretionary intervention where a party lacks standing to intervene as a matter of right under
10 C.F.R. § 2.309(d)(1). Such requests are evaluated against the six factors set forth in 10 C.F.R.
§ 2.309(e), which the presiding officer will consider and balance.64 Of the six factors, primary
consideration is given to the first factorassistance in developing a sound record.65 The
petitioner has the burden to establish that the factors in favor of intervention outweigh those
against intervention.66
- 2. EWG Has Not Demonstrated Its Entitlement to Discretionary Intervention
EWGs alternative request for discretionary inte rvention fails to establish that the factors
in favor of intervention outweigh those against intervention.67 In fact, EWG only addresses a
few of the factorseach with a single, conclusory sentence. First, it asserts that its participation
will assist in developing a sound record because it has experience working on public health and
environmental issues in California. However, the only issues raised in this proceeding pertain to
seismic risk evaluations, aging management of reactor vessels, and the Coastal Zone
64 Factors weighing in favor of allowing intervention include: (i) the extent to which the petitioners participation would assist in developing a sound r ecord; (ii) the nature of petitioners property, financial or other interests in the proceeding; and ( iii) the possible effect of any decision or order that may be issued in the proceeding. See 10 C.F.R. § 2.309(e)(1)(i)-(iii). Conversely, factors weighing against allowing intervention include: (i) the availa bility of other means whereby the petitioners interest might be protected; (ii) the extent to which petitioners interest will be represented by existing parties; and (iii) the extent to which pe titioners participation will inappropriately broaden the issues or delay the proceeding. See id. § 2.309(e)(2)(i)-(iii).
65 See Gen. Pub. Utils. Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 160 (1996).
66 See Nuclear Engg Co., Inc. (Sheffield, Ill., Low-Level Radioactive Waste Disposal Site),
ALAB-473, 7 NRC 737, 744 (1978) (requiring potential discretionary intervenor to show that it is both willing and able to make a valuable contributi on to the full airing of the issues... in this proceeding.).
67 Petition at 5-6.
Management Act. EWG pleads no specialized expertise or capability in any of these areas.
Next, EWG asserts that it has no means other than this proceeding for protecting its interests
because its co-petitioners may not be ab le to fully represent those interests.68 But, again, it
does not articulate what those interests allegedly are, much less any reason another party could
not represent them.
In sum, EWG has provided no specific and compelling reasons why an exceptional grant
of discretionary intervention would be warranted in this license renewal proceeding. EWGs
statements are vague and unspecific; indeed, they could be made by nearly any similarly situated
petitioner. The petitioner has the burden of convincing the Board that it can contribute to the
agencys decision-making process.69 EWG has not articulated any special circumstances that
NRC tribunals recognize as potential indicia of a petitioners ability to contribute to developing a
sound record. Such considerations include a petitioners showing of significant ability to
contribute on substantial issues of law or fact that will not be otherwise be properly raised or
presented; the specificity of such ability to contribute on those substantial issues of law or fact;
justification of time spent on considering the substantial matters of law or fact; the ability to
provide additional testimony, particular expertise, or expert assistance; [and] specialized
education or pertinent experience.70 At bottom, assertions of the type proffered by EWG are
insufficient to discharge a petitioners burden under 10 C.F.R. § 2.309(e). Accordingly, the
Board should conclude that discretionary intervention is not appropriate here.
68 Id. at 6.
69 Nuclear Engg Co., ALAB-473, 7 NRC at 745.
70 See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-81-1, 13 NRC 27, 33 (1981);
see also Fla. Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
LBP-90-24, 32 NRC 12, 16-17 (1990), affd, ALAB-952, 33 NRC 521, 532 (1991).
IV. PETITIONERS HAVE NOT PROFFERED AN ADMISSIBLE CONTENTION
Petitioners propose three contentions. As explained in Section IV.A, to be admissible,
contentions must satisfy all six admissibility criteria in 10 C.F.R. § 2.309(f)(1). However, as
detailed in Sections IV.B-D, Proposed Contentions 1-3, respectively, fail to satisfy one or more
of those criteria. Accordingly, each is inadmissible, and the Petition should be DENIED.
A. Legal Standards for Hearing Requests and Contention Admissibility
Pursuant to 10 C.F.R. § 2.309(a)(1), a hearing request and petition to intervene 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 all six of the threshold admissibility
criteria in 10 C.F.R. § 2.309(f)(1).71 Failure to satisfy any one of these six admissibility criteria
requires that a proposed contention be rejected.72 These criteria are strict by design.73 The
rules were toughened... in 1989 because in prior years licensing boards had admitted and
litigated numerous contentions that appeared to be based on little more than speculation.74 The
71 A proposed contention must: (i) provide a specific st atement 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 s upport the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support th e petitioners position and upon which the petitioner intends to rely; and (vi) provide sufficient informa tion to show that a genuine dispute exists with the
[applicant] on a material issue of law or fact. Id. § 2.309(f)(1).
72 See id.; 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).
73 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001).
74 Id. (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999)).
petitioner alone bears the affirmative burden to satisfy these criteria. 75 Thus, where a petition
fails to do so on its face, the Board may not cure a deficiency or fill a gap by supplying the
information that is lacking or making fact ual assumptions that favor the petitioner. 76 Key aspects
of the admissibility criter ia are summarized below.
- 1. Issues Must Be Within the Scope of the Proceeding
The subject matter of all contentions is limited to the scope of the proceeding delineated
by the Commission in its hearing notice and referral order delegating to the Licensing Board the
authority to conduct the proceeding.77 Challenges to NRC rules are prohibited as outside the
scope of a proceeding because, absent a waiver, no rule or regulation of the Commission... is
subject to attack... in any adjudicatory proceeding.78 In license renewal proceedings, out-of-
scope challenges include those directed at generic environmental analyses and conclusions from
the GEIS codified in 10 C.F.R. Part 51,79 and challenges to a plants CLB.80
75 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015) (The proponent of a contention is responsib le for formulating the contention and providing the necessary support to satisfy the contention ad missibility requirements and it is Petitioners responsibility, not the Boards, to formulate conten tions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted); see also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) ([T]he Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.).
76 See Fermi, CLI-15-18, 82 NRC at 149.
77 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-00-23, 52 NRC 327, 329 (2000); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790 (1985).
78 10 C.F.R. § 2.335(a).
79 Vt. Yankee, CLI-07-3, 65 NRC at 17-18.
80 See supra Section II.A.1.
- 2. Disputes Must Be Pled in Sufficient Detail to Show That They Are Both Genuine and Material
The NRCs contention admissibility criteria at 10 C.F.R. § 2.309(f)(1)(vi) require that a
proposed contention provide sufficient information to demonstrate the existence of a genuine
dispute on a material issue of law or fact.81 This requires pleading specificity, a reasoned
explanation, and a demonstration of materiality.
Pleading Specificity: As provided in the regulations:
This information must include 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....82
That is because the parties are entitled to be told at the outset, with clarity and precision, what
arguments are being advanced and what relief is being sought.83 The contention admissibility
requirements cannot be satisfied through mere notice pleading.84 Thus, petitioners must set
forth their contentions with particularity.85
Reasoned Explanation: The Commission has stated that petitioners must read the
pertinent portions of the license application... state the applicants position and the petitioners
opposing view, and then explain why the petitioner disagrees with the applicant.86 In other
words, a contention of sufficiency that does not directly controvert specific text within the
81 10 C.F.R. § 2.309(f)(1)(vi).
82 Id. (emphasis added).
83 Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 576 (1975) (emphasis added).
84 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016)
(cleaned up and citations omitted).
85 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010) (citation omitted).
86 Rules of Practice for Domestic Licensing Proceedings; Procedural Changes in the Hearing Process; Final Rule, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) (Procedural Changes); see also Millstone, CLI-01-24, 54 NRC at 358.
application is subject to dismissal.87 And for contentions of omission, the petitioner must explain
why the applicant allegedly had a legal obligation to provide such information, and then show
that such information is, in fa ct, absent from the application.88 As particularly relevant here,
conclusory assertions are not enough. Presiding officers must scrutinize pleadings, expert
opinions, and other documents to confirm that they support a proposed contention and articulate
a specific dispute.89 A petitioners imprecise reading of a document cannot support a litigable
contention.90 Likewise, a pleading or expert opinion that merely states a conclusion, without
providing a reasoned basis or explanation for that conclusion, cannot satisfy this criterion.91 In
sum, bare assertions and speculation, even by experts, are incap able of providing the requisite
support to demonstrate the existence of a genuine dispute.92
Materiality: The purpose of an adjudicatory hearing is not to flyspeck documents. 93
Thus, the admissibility criteria place the burden on the petitioner to demonstrate, as a threshold
matter in the pleading, that the alleged dispute pertains to a material issue of fact or law.
A dispute is material only if it would make a difference in the outcome of the licensing
87 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010); Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993).
88 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-15, 60 NRC 81, 95 (2004) (explaining that if the allegedl y missing information is indeed in the license application, then the contention does not raise a genuine dispute).
89 See Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48-49 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).
90 See Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 300 (1995).
91 See USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).
92 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).
93 System Energy Res., Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005).
proceeding.94 Mere suggestions of other ways an analysis could have been done do not
provide this demonstration.95
B. Proposed Contention 1 (Seismic Matters) Is Inadmissible
In Proposed Contention 1, Petitioners purport to challenge matters related to seismic risk,
but do not specify whether they are seeking to raise a safety or environmental contention. In
fact, Petitioners appear to commingle arguments as to both safety and environmental matters.
Regardless, as detailed below, Proposed Contention 1 fails to raise an admissible safety or
environmental contention. These claims are addressed in Sections IV.B.1 and IV.B.2,
respectively.
- 1. Petitioners Safety Claims Are Inadmissible
As to safety, Petitioners ask the NRC to deny the LRA because continued operation
allegedly poses an unacceptable risk of core damage accidents due to earthquakes.96
According to Petitioners, this unacceptable risk does not satisfy the Atomic Energy Acts
requirement that operation of [Diablo Canyon] will provide adequate protection to the health
and safety of the public.97 These claims are inadmissible for two primary reasons. As
explained in Section IV.B.1.b, Petitioners fail to identify or challenge any specific portion of
PG&Es Safety Application. And as explained in Section IV.B.1.c, Petitioners arguments
challenge CLB matters and NRC regulatory policy, both of which are beyond the scope of this
proceeding. A brief technical primer related to seismic safety is provided in Section IV.B.1.a.
94 Oconee, CLI-99-11, 49 NRC at 333-34 (citation omitted).
95 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012).
96 Petition at 7.
97 Id. at 7 (citing 42 U.S.C. § 2232).
- a. Technical and Regulatory Background Associated with Ongoing Seismic Compliance
Safety is the top responsibility at PG&E, which is why DCPP was built with earthquake
safety at the forefront.98 Updated assessments continue to confirm that the plant is seismically
safe.99 PG&Es robust commitment to seismic safety is reflected through its ongoing Long-Term
Seismic Program (LTSP).100 The LTSP is comprised of a diverse team of geosciences and
seismic researchers, and professionals who work with independent seismic experts to continually
ensure the facility remains seismically safe. Th is team timely evaluates data from faults and
seismic events (including the 2024 Noto earthquake in Japan) and works with the research
community to advance the state of data, models, and methods used for site-specific seismic
hazard and risk assessment.
In response to the 2011 events at Fukushima Daiichi, the NRC did not order any
immediate plant shutdowns, but instead issued letters to all power reactor licensees, including
PG&E, directing them to reevaluate seismic hazards at their sites based on lessons-learned
from the Fukushima event.101 Among many other actions in response thereto, in 2015, PG&E
98 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 909-13 (1981) (discussing the design basis for Diablo Canyon to withstand seismic events); see also id. at 923-40 (discussing the reanalysis of seismic risk following the discovery of the Hosgri fault).
99 See, e.g., Diablo Canyon Independent Safety Committee, Thirty-Third Annual Report on the Safety of Diablo Canyon Nuclear Power Plant Operations, July 1, 2022-June 30, 2023, at § 4.20 (Sept. 13, 2023) (ML24003A721) (discussing Long-Term Seismic Program, seismic safety program, independent peer review for seismic studies at Diablo Canyon, and concluding that the seismic safety of the DCPP reactors is fully adequate now, and requires no additional upgrades or other changes to bring it up-to-date or to improve it.)
100 See Final Report of Diablo Canyon Long-Ter m Seismic Program at 2-4 (July 31, 1998)
(ML17083C123) (discussing LTSP creation and development); see also LRA, App. E at 3-51 (ER).
101 See NRC Letter to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request for Information Pursuant to Title 10 of the Code of Federal Regulations
performed a Senior Seismic Hazard Analysis Committee (SSHAC) Level 3 assessment for
seismic source characterization (2015 SSC SSHAC).102 That assessment considered risk from
all seismic sources, notably including faults near the DCPP shoreline and potential thrust fault
earthquake sources.103 PG&E also updated its seismic probabilistic risk assessment
(SPRA).104 The NRC conducted a careful, independent review of those analyses and
concluded that PG&Es actions were fully compliant with NRC regulations and guidance, and
that no further actions were needed to ensure adequate protection of public health and safety.105
Furthermore, California Senate Bill (SB) 846, which directed PG&E to pursue renewal of
the DCPP licenses, required PG&E to prepare a separate updated seismic assessment for the
states consideration.106 On February 1, 2024, PG&E delivered the SB-846 seismic assessment
50.54(f) Regarding Recommendations 2.1, 2.3, and 9. 3, of the Near-Term Task Force Review of Insights for the Fukushima Dai-Ichi Accident at 4 (Mar. 12, 2012) (ML12053A340).
102 See Letter from F. Vega, NRC, to E. Halpin, PG&E, [DCPP] - Staff Assessment of Information Provided under [10 C.F.R. § 50.54(f)] Seismic Hazard Reevaluations for Recommendation 2.1 of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (CAC Nos.
MF5275 and MF5276), Encl. at 11 (Dec. 21, 2 016) (ML16341C057) (NRC 12/21/16 Letter)
(based on the NRC staff's review of the SSHAC documentation, observations made at SSHAC workshops, and knowledge of the geological and seismological characteristics of the DCPP region, the NRC staff concludes that the licensee acceptably implemented a SSHAC Level 3 process to develop the SSC model.). PG&E also performed a SSHAC Level 3 assessment for ground motion characterization.
103 Id., Encl. at 9 (noting consideration of whether or not to project a blind thrust fault beneath the Irish Hills).
104 Letter from J. Welsch, PG&E to NRC, Seismic Probabilistic Risk Assessment for the Diablo Canyon Power Plant, Units 1 and 2 - Response to N RC Request for Information Pursuant to 10 CFR 50.54(f) Regarding Recommendation 2.1: Seismic of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (Apr. 24, 2018) (ML18120A201).
105 See Letter from R. Bernardo, NRC to J. Welsch, PG&E, Diablo Canyon Power Plant, Unit Nos. 1 And 2 - Documentation of the Completion of Requi red Actions Taken in Response to the Lessons Learned From the Fukushima Dai-Ichi Accident (May 8, 2020) (ML20093B934).
106 See S.B. 846 § 5 (codified at C AL. PUB. RES. CODE § 25548.3(c)(13)).
to the California Department of Water Resources.107 That assessment again considered thrust
fault earthquake sources near Diablo Canyon Power Plant. The updated SB-846 seismic
assessmentwhose process and results were independently reviewed by geosciences and risk
experts, including the UCLA Garrick Institute for the Risk Sciencesfound no significant
increase in seismic risk to DCPP that would change previous conclusions by the NRC that the
site is seismically safe.
- b. Petitioners Safety Claims Fail to Raise a Genuine Dispute Because They Fail to Reference Any Specific Portion of the Safety Application
As explained above,108 10 C.F.R. § 2.309(f)(1)(vi) mandates that a contention identify
two things: the specific portions of the application being challenged and the supporting reasons
for each dispute. Contrary to this non-discretionary requirement, Proposed Contention 1 does
not reference any specific portions of the Safety Application that Petitioners purport to
challenge. In other words, the Petition does not mention a single chapter, section, page, exhibit,
attachment, or statement across more than 1,700 pages of content in the Safety Application. By
way of example, if Petitioners were intending to challenge the portion of the Safety Application
explaining that [c]racking of the steel [pressurizer] seismic lug and support skirt is managed by
the DCPP ASME Section XI Inservice Inspection, Subsections IWB, IWC, and IWD AMP
(B.2.3.1),109 their pleading is deficient because: (1) it does not identify that specific portion of
the application, and (2) it does not explain why that AMP (or any other AMP) fails to satisfy any
requirement for aging management.
107 The document will soon be available on PG&Es public website, but is not available as of the date of this pleading.
108 See supra Section IV.A.2.
109 LRA at 3.1-35.
Vague safety claims, such as those raised by Petitioners here without citation to or
discussion of any portion of the Safety Application, fall far short of their burden110 to plead a
dispute with clarity and precision. Thus, Petitioners safety claims in Proposed Contention 1 are
facially inadmissible. And neither the Board nor the other parties are required to speculate about
what portions of the Safety Application Petitioners may be seeking to challenge and on what
grounds. Presiding officers cannot be faulted for not having searched for a needle that may be
in a haystack,111 and are not required to piece together and discern a partys argument and the
grounds for its claims.112 Because Petitioners fundamental pleading burden has not been met
here, Petitioners safety claims in Proposed Contention 1 are inadmissible for failing to satisfy
the plain text of 10 C.F.R. § 2.309(f)(1)(vi).
- c. Petitioners Safety Claims Are Beyond the Scope of This Proceeding Because They Seek to Challenge DCPPs CLB and NRC Policy on Seismic Analyses
Because Petitioners failed to satisfy 10 C.F.R. § 2.309(f)(1)(vi), no further analysis of the
safety claims in Proposed Contention 1 is required. But, if the Board nevertheless considers
those claims further, it should conclude that they are inadmissible for the additional reason that
they are outside the scope of this proceedi ng, contrary to 10 C.F.R. § 2.309(f)(1)(iii).
In Proposed Contention 1, Petitioners allege that DCPPs seismic risk has been
underestimated. But, as noted above, Petitioners have not connected their safety-related seismic
110 See supra Section IV.A.2.
111 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 240-41 (1989)
(citations omitted).
112 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 404 n.67 (2012) (The Commission should not be expected to sift unaided through earlier briefs or other documents to piece together a nd discern a partys argument and the grounds for its claims.) (quoting Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 534 (2009)).
risk claims to any alleged deficiency in the Safety Application. That is not surprising because
those claims are not related to license renewal; they pertain to the ongoing operation of the plant
and DCPPs CLB. As detailed below, it is settled law that a contention challenging a plants
CLB is outside the limited scope of a license renewal proceeding. 113 In fact, the Commission has
expressly heldin a proceeding specific to DCPPthat safety-related challenges on seismic
issues pertain to the CLB, not license renewal.114 Petitioners seismic CLB-related challenges
here are inadmissible for the same reason.
First, Petitioners allege that continued operation of the [DCPP] reactors poses an
unacceptable risk of core damage accidents due to earthquakes.115 As Petitioners explain, their
concern pertains to an alleged circumstance that is current and ongoing116 and involves the
current license term.117 In fact, Petitioners raised these same arguments in the Seismic
Shutdown Request; and that request was referred to the NRCs Executive Director for
Operations for consideration as a CLB enforcement petition under 10 C.F.R. § 2.206.118 Simply
put, Petitioners admit that their concern is not specific to license renewal and that it raises a
challenge to DCPPs current operation and CLB. By way of a recent example, a licensing board
in a different proceeding rejected portions of a proposed contention that claimed a plants
continued operation (the same language used by Petitioners here) violated NRC
113 Turkey Point, CLI-01-17, 54 NRC at 7-9.
114 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 304-05 (2015).
115 Petition at 7 (emphasis added).
116 Id. at 7 n.10.
117 Id. at 12 n.25.
118 See supra Section II.C.
requirements.119 On appeal, the Commission squarely affirmed that decision, agreeing with the
licensing board that the contention improperly challenged the basis for current and past
operations, not [the licensees] plans for managing aging during the period of extended
operation.120 So too here.
Second, Petitioners focus on CLB issues is further demonstrated by the authorities they
cite in Proposed Contention 1. For example, Petitioners cite guidance documents that apply to
NRC Staffs ongoing oversight function and license amendment proceedings.121 Those guidance
documents are not applicable to license renewal proceedings. Likewise, Petitioners cite to the
NRCs obligation under the Atomic Energy Act of 1954, as amended, to ensure adequate
protection to the health and safety of the public.122 However, as explained above,123 the
Commission has chosen as a policy matter to fulf ill that obligation through its ongoing oversight
functionand has expressly declined to do so through its limited-scope license renewal
proceedings. Not surprisingly, then, the Commissions regulations expressly state that CLB-
related issues are to be addressed under the current license, and are not within the scope of the
license renewal review.124
Third, Proposed Contention 1 relies on the Bird Declarationthe same one submitted
with the Seismic Shutdown Requestwhich purports to challenge DCPPs seismic risk analysis.
119 NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 & 2), LBP-21-5, 94 NRC 1 (2021).
120 NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 & 2), CLI-22-5, 95 NRC 97, 108 (2022) (emphasis added).
121 Id. at 10 n.20 (citing NRC Office Instruction LIC-504); id. at 13 n.27 (citing NRC Office Instruction LIC-101); id. at 12 (citing NRC Regulatory Guide 1.174).
122 Id. at 7 (quoting 42 U.S.C. § 2232).
123 See supra Section II.A.1.
124 10 C.F.R. § 54.30 (identifying [m]atte rs not subject to a renewal review).
As with the Petition, the safety-related arguments presented in the Bird Declaration also seek to
challenge the CLB, rather than the Safety Application. Dr. Bird acknowledges that PG&Es
NRC-approved seismic risk analysis contains no error in computations.125 But he disputes the
outcome of the 2015 SSC SSHAC process.126 Between 2012 and 2015, Dr. Bird and other
experts presented various theories and methodologies to the SSHAC. But, as noted in his
Declaration, Dr. Bird disagrees with the weighting the consensus-based SSHAC process
ultimately placed on his theories and methodologies. That dispute, however, is beyond the scope
of this proceeding. The development and analysis of the 2015 SSC SSHAC was reviewed and
approved by the NRC as part of the agencys ongoing oversight of DCPP and its CLB.127
In Dr. Birds view, the SSC should have given more weight to the possibility of thrust-
faulting, which occurred in the Noto Earthquake. However, Dr. Birds theory regarding thrust-
faulting at DCPP is not new. His views were evaluatedand given due considerationas part
of the 2015 SSC SSHAC.128 This limited-scope license renewal proceeding is not the proper
venue to rehash that CLB process. And Dr. Bird does not connect these out-of-scope CLB safety
arguments to any portion of the license renewal Safety Application.
The Commission long ago determined that a reassessment of CLB safety issues at the
license renewal stage would be unnecessary and wasteful 129 because those issues are
effectively addressed and maintained by ongoing agency oversight, review, and
125 Bird Declaration at 2 ¶ 5.
126 Bird Declaration at 2 ¶ 5 (criticizing certa in models used by the SSHAC in the 2015 SSC).
127 NRC 12/21/16 Letter, Encl. at 11.
128 See, e.g., id., Encl. at 9.
129 Turkey Point, CLI-01-17, 54 NRC at 7.
enforcement.130 Neither the Petition nor the Bird Declaration challenge the extensive
discussion of aging management in the Safety Application. And this limited-scope license
renewal proceeding is not the appropriate foru m to appeal the conclusions of the 2015 SSC
SSHAC process.131
Lastly, Dr. Birds fundamental dispute with the DCPP seismic analysis stems from his
disagreement with the NRC-approved methodology used to perform that analysis. PG&E has
long followed the NRC-endorsed SSHAC process, as defined throughout the agencys guidance
documents, including NUREG/CR-6372,132 NUREG-2117,133 NUREG-2213,134 and Regulatory
Guide 1.208.135 In his Declaration, Dr. Bird derides the NRC-endorsed SSHAC process as
subjective.136 In Dr. Birds view, PG&E should abandon the committee-based SSHAC
process and instead use an algorithm-based methodology (specifically, the one that he now
130 Dominion Nuclear CT, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004) (citation omitted).
131 The appropriate forum for challenges to li censee compliance with CLB matters is the NRCs 10 C.F.R. § 2.206 processand Dr. Birds Declarati on has been referred for technical consideration under that process.
132 See, e.g., Recommendations for Probabilistic Seismic Hazard Analysis: Guidance on Uncertainty and Use of Experts: Main Report (NUREG/CR-6372, Vo lume 1) at 1 (Apr. 1997) (ML080090003) (In order to provide technical guidance on the subject of a methodology for Probabilistic Seismic Hazard Analysis (PSHA), a Senior Seismic Hazard Analysis Committee (SSHAC) was formed in early 1993 under the three-way sponsorship of the U. S. Department of Energy (DOE), the U. S. Nuclear Regulatory Commission (NRC), and the Electric Power Research Institute (EPRI).).
133 See generally Practical Implementation Guidelines for SSHAC Level 3 and 4 Hazard Studies (NUREG-2117, Revision 1) (Apr. 2012) (ML12118A445).
134 See generally Updated Implementation Guidelines for SSHAC Hazard Studies (NUREG-2213)
(Oct. 2018) (ML18282A082).
135 See, e.g., Regulatory Guide 1.208, A Performance-Based Approach to Define the Site-Specific Earthquake Ground Motion at A-1 (Mar. 2007) (M L070310619) (An accepted PSHA model is a method of conducting a Probabilistic Seismic Hazard Analysis (including the seismic sources and ground motion equations) that has been developed using Senior Se ismic Hazard Analysis Committee (SSHAC) guidelines.).
136 Bird Declaration at 5.
proposes) to perform its seismic analyses.137 However, abandoning the rigorous SSHAC process
and adopting a single, algorithmic model would be antithetical to the NRCs longstanding
consensus-based process. And Dr. Birds proposal has never been reviewed or approved by the
NRC as a stand-alone substitute to the SSHAC process for nuclear power plant seismic
evaluations. Indeed, had PG&E discarded the SSHAC process and simply adopted a single
model, such as that proposed by Dr. Bird, it likely would have violated NRC regulations and the
DCPP operating licenses.
But more to the point, Dr. Birds criticism is directed at NRC policy and corresponding
requirements for seismic analysesnot any specific portion of the license renewal Safety
Application. Whereas, [t]he adjudicatory process is not the pr oper venue to hear any contention
that merely addresses petitioners own view regarding the direction regulatory policy should
take.138 Thus, these arguments are beyond the scope of this proceeding; contrary to 10 C.F.R. §
2.309(f)(1)(iii); and fail to raise a genuine dispute with the application on a material issue of fact
or law, which is contrary to 10 C.F.R. § 2.309(f)(1)(vi).
- 2. Petitioners Environmental Claims Are Inadmissible
As to environmental matters, Petitioners pur port to challenge a statement in the ER
noting that the adverse environmental impacts from Seve re Accidents are SMALL.139 But as
shown in Section IV.B.2.a, that is a generic conclusion codified in NRC regulations and not
subject to challenge here. Petitioners also briefly mention Severe Accident Mitigation
137 Id. (PG&Es error lies in the subjective [i.e., committee-based, not algorithm-based] creation of deformation models that served as the basis for the 2015 SSHAC Level-3 SSC.).
138 Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421, 431 (2008) (citing Phila. Elec. Coop. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 21 n.33 (1974)).
139 Petition at 7.
Alternativesin a single footnotebut, as explained in Section IV.B.2.b, fail to challenge any
specific portion of the corresponding analysis in the ER. Petitioners also claim that PG&Es ER
needed to weigh the costs and benefits of the alternative that would avoid these impacts: closing
[Diablo Canyon] on the reactors current 2024/2025 retirement dates.140 But as noted in Section
IV.B.2.c, PG&Es ER did thatPetitioners simply disregard the relevant discussion.
Individually and collectively, these arguments fail to raise an admissible contention.141
As relevant here, the Commission has explained that:
the NRCs environmental review for license renewal encompasses the issue of potential severe reactor accidents. The NEPA look at beyond-design-basis reactor accidents consists of two separate analyses: (1) a generic severe accident impacts analysis; and (2) a site-specific severe accident mitigation analysis the SAMA analysis. The NRCs Generic Environmental Impact Statement (GEIS) for license renewal contains an extensive analysis of the potential environmental impacts of severe accidents.142
The Commission has further explained that the GEIS analysis of severe accident impacts
is bounding for all reactors, and therefore license renewal applicants need not provide a site-
specific analysis of severe accident environmental impacts. 143 Thus, the Commission
generically determined, based on probability-weighted consequences, that the environmental
140 Id.
141 Petitioners also mention certain statements made by the NRC Chair at a Congressional hearing. Id.
at 13-15. To the extent Petitioners assert that these statements, from a single Commissioner, have the force and effect of law or somehow amend codified Commission regulations at 10 C.F.R. Parts 51 or 54 to impose new obligations on PG&E regardi ng the required content of an LRA, they fail to cite any supporting authority for that dubious pr oposition. Moreover, the Chairs statements are entirely consistent with the longstanding framework for considering seismic matters to the extent they relate to issues within the scope of license renewal, such as aging management of in-scope components and SAMAs. But, as explained herein, Petitioners have not raised litigable challenges as to any of those issues.
142 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-16-10, 83 NRC 494, 497 (2016)
(emphasis added).
143 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-16-7, 83 NRC 293, 295 n.6 (2016).
impacts from severe accidents at plants operating under renewed licenses are expected to be
small our lowest impact category. 144 As a result, the Commission codified its GEIS
analysis and conclusion regarding severe accident impacts in its regulations at 10 C.F.R. Part 51,
Subpart A, App. B, tbl. B-1.145
As noted above,146 NRC regulations cannot be challenged in individual adjudicatory
proceedings absent a waiver, with Petitioners neither requested nor received. This prohibition
extends to GEIS conclusions codified in Table B-1 and precludes challenges to an applicants
new and significant information discussion on those issues.147 And the Commission has
consistently ruled that challenges to the GEIS analysis of severe accident impacts are
impermissible in individual license renewal proceedings.148
- a. Petitioners Challenge to the Codified Analysis of Severe Accident Impacts Is Beyond the Scope of This Proceeding
Petitioners primary environmental claim in Proposed Contention 1 is that the ERs
conclusion regarding SMALL severe accident impacts is incorrect.149 According to
Petitioners, had PG&E used Dr. Birds (non-NRC approved) seismic analysis methodology, the
144 Id. at 323 n.156 (citation omitted).
145 Id.
146 See supra Section IV.A.1.
147 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 382-84, 388-89 (2012) (a contention seeking to challenge an applicants new and significant information discussion amounts to an impermis sible collateral attack on our regulations); Vt.
Yankee, CLI-07-3, 65 NRC at 21 (allowing generic envi ronmental conclusions to be adjudicated site by site based merely on a claim of new and significant information would defeat the purpose of resolving generic issues in a GEIS.) (citation omitted).
148 Indian Point, CLI-15-6, 81 NRC at 380 n.214 (We recently reaffirmed, in the Pilgrim license renewal proceeding, that the GEIS findings with respect to severe accident consequences are not subject to challenge in individual license renewal proceedings.) (citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010)).
149 Petition at 7.
impact conclusion would be LARGE. However, as detailed above, challenges to the
SMALL severe accident impacts conclusion are impermissible here because it is a generic
conclusion codified in NRC regulations. Accordingly, it is not subject to attack in this
adjudicatory proceeding. Petitioners arguments on this subject therefore fail to satisfy the
admissibility criterion in 10 C.F.R. § 2.309(f)(1)(iii).
Petitioners environmental claims in Proposed Contention 1 focus, almost exclusively,150
on statements in PG&Es ER related to the issue of Severe Accident impacts. For example,
Petitioners cite page 4-61 of the ER and note that they are seeking to challenge the conclusion
that severe accident impacts are SMALL.151 As shown on that page of the ER, the subject
discussion pertains to ER Section 4.15.2, Severe Accidents, and it quotes the codified
[f]indings from 10 CFR Part 51, Subpart A, Appendix B, Table B-1.152 Likewise, Petitioner
references PG&Es observation that updated seismic PRA information does not alter the generic
SMALL impacts conclusion in the GEIS.153 That observation is found in PG&Es discussion
of new and significant information for Severe Accidents.154 Further, Dr. Birds Declaration
focuses on the generic analysis of Severe Accident impacts. Indeed, he repeatedly invokes
criticisms of the generic evaluation in the 2023 draft license renewal GEIS, which is irrelevant to
150 The Petition contains a single reference to SAMA s, which is discussed in the subsection below.
151 Petition at 7 & n.11 (citing ER at 4-61).
152 ER at 4-61.
153 Petition at 7 & n.11 (citing ER at 4-61).
154 ER at 4-62.
this proceeding.155 Dr. Bird also references the same ER Section, 4.15.2, and ER page, 4-61,
mentioned above, which focus on Severe Accident impacts.156
As detailed above, challenges to the NRCs codified severe accident impacts conclusion
and applicant discussions of new and significant information on that topic are impermissible
collateral attacks on NRC regulations absent a waiver from the Commission. Petitioners
counsel has filed such waiver petitions in many other proceedingsbut did not do so here. In
sum, because Proposed Contention 1 plainly seeks to litigate those exact issues, whereas
Petitioners have neither requested nor received a waiver, these claims are beyond the scope of
this proceeding. Accordingly, those arguments are inadmissible for failure to satisfy 10 C.F.R. §
2.309(f)(1)(iii).
- b. Petitioners Brief Mention of SAMAs Fails to Articulate a Genuine Dispute with the Environmental Report
In Proposed Contention 1, Petitioners make a single referencein a footnoteto Severe
Accident Mitigation Alternatives (SAMAs).157 Therein, Petitioners allege that the SAMAs
listed in Appendix [sic] G of the [ER] are grossly inadequate to address the magnitude of the
environmental impacts involved.158 But Petitioners offer no further explanation of that vague
and conclusory assertion. Notwithstanding the extensive and detailed technical evaluation
provided across 276 pages in Attachment G to the ER, Petitioners do not specifically identify any
one or more SAMA analyses that allegedly are inadequate. They do not explain how those
155 See, e.g., Bird Declaration at 2, 3 (paras. 10 and 11), 12 (para. 36). As Dr. Bird notes, his criticisms were submitted as comments on the proposed rule. Id. at 2 (first para. 4). Unlike this license renewal proceeding, that rulemaking process is the appropriate forum to provide input regarding the generic analyses and conclusions in the GEIS.
156 See, e.g., id. at 2 (second para. 4), 3 (para. 12).
157 Petition at 7 n.12.
158 Id.
unidentified analyses fall short of any SAMA-related requiremen t. And they certainly do not
proffer any argument to demonstrate that the alleged non-satisfaction of that unidentified
requirement would be material. Simply put, Petitioners conclusory sentence claiming SAMAs
are inadequate is not enough for an admissible contention.159 Accordingly, this argument is
inadmissible for failure to satisfy 10 C.F.R. § 2.309(f)(1)(v) and (vi).
- c. Petitioners Claim That the Environmental Report Omits Consideration of the No-Action Alternative Is Demonstrably Incorrect
Finally, Petitioners argue that the ER should weigh the costs and benefits of the
alternative of closing DCPP on the reactors current 2024/2025 retirement dates as allegedly
required by NEPA.160 To the extent Petitioners statement implies that this analysis was not, in
fact, included, their claim is demonstrably untrue and fails to raise an admissible contention.
The ER expressly analyzes an alternative to the proposed action in which the DCPP
operating licenses would not be renewed and the units would cease operation on their current
expiration dates. Specifically, as explained in ER Section 2.6, the no-action alternative [] would
result in the NRC not renewing the DCPP OLs. The no-action alternative is analyzed in detail
in ER Chapter 7. And ER Chapter 8 provides a comparative analysis of the no-action alternative
versus the proposed action. Petitioners disregard, rather than dispute, the relevant analysis. And
159 Fermi, CLI-15-18, 82 NRC at 142 (conclusory statem ents do not amount to a challenge to the SAMA analysis.); see supra Section IV.A.2.
160 Petition at 7. For clarity, NEPA imposes requireme nts on federal agencies, not private applicants.
See, e.g., Paina Haw., LLC, CLI-06-18, 64 NRC 1, 5 (2006) (citing Wetlands Action Network v.
Army Corps of Engrs, 222 F.3d 1105, 1114 (9th Cir. 2000) (It is the NRC, not [the applicant], that has the legal duty to perform a NEPA analysis and to issue appropriate NEPA documents.)).
Whereas, an NRC applicants NEPA-related obligations are codified in NRC regulations. See generally 10 C.F.R. Part 51.
by doing so, they have failed to raise a genuine dispute with the ER, as required by 10 C.F.R. §
2.309(f)(1)(vi).161
Furthermore, Petitioners assertion that the no-action alternative should be
implement[ed]162 identifies no dispute with the ER and misapprehends the scope of NEPA. As
the Commission has often reminded petitioners, NEPA does not require that the agency select
any particular options.163 Accordingly, Petitioners statements regarding the no-action
alternative are inadmissible for failure to satisfy 10 C.F.R. § 2.309(f)(1)(vi).
C. Proposed Contention 2 (AMPs and TLAAs) Is Inadmissible
In Proposed Contention 2, Petitioners claim the LRA is deficient because it allegedly
does not include either (1) an adequate plan to monitor and manage the effects of aging due to
embrittlement of the Unit 1 reactor pressure vessel (RPV), or (2) an adequate time-limited
aging analysis (TLAA), as required by 10 C.F.R. § 54.21.164 A brief summary of the NRCs
AMP and TLAA requirements, and the portions of the Safety Application that address those
requirements, is provided in Section IV.C.1. As detailed below, this contention is inadmissible
for two primary reasons.
First, as discussed in Section IV.C.2, the short discussion in the Petition (which is only
about two pages in total) fails to satisfy 10 C.F.R. § 2.309(f)(1)(vi). That is because, among
other reasons, it does not engage with the relevant regulatory requirements or explain, in any
161 See, e.g., Holtec Intl (HI-STORE Consol. Interim Storage Facility), LBP-19-4, 89 NRC 353, 390 (2019) (contention inadmissible for failure to dem onstrate a genuine dispute if the allegedly missing analysis is in fact presented in the ER).
162 Petition at 12.
163 Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 44 (2001)
(citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50 (1989) (explaining that NEPA does not mandate particular results, but simply prescribes the necessary process.)).
164 Petition at 16.
detail, its theory on how any particular portion of the Safety Application allegedly fails to satisfy
those requirements. Instead of articulating specific arguments in the pleading, Petitioners
attempt to incorporate by refe rence a lengthy attachment. But, as a matter of law, the
Commission has held that this approach is insuff icient to demonstrate an admissible contention.
Petitioners may attempt to cure this defect by supplying new and untimely details in their Reply
pleading, but that is impermissible.165
Second, even if the Board and other parties were required to scour that attachment to look
for information that might support the admissibility of the proposed contention (they are not), the
claims therein still would be insufficient for various reasons. Namely, as detailed in Section
IV.C.3, the attachment proffers out-of-scope challenges to DCPPs CLB, NRC regulations, and
the agencys ongoing oversight activities, and therefore fails to satisfy 10 C.F.R. §
2.309(f)(1)(iii). For any or all of these reasons, Proposed Contention 2 is inadmissible.
NRC regulations at 10 C.F.R. § 54.21 prescribe the technical information that is required
to be presented in a LRA. As relevant to the first prong of Proposed Contention 2, 10 C.F.R. §
54.21(a)(3) requires an applicant to demonstrate (for certain components, including the RPV)
that the effects of aging will be adequately managed during the license renewal term.
Notably, the NRC has published a guidance document (NUREG-1801, referred to as the GALL
Report) that provides AMPs generically determined to satisfy the applicable Part 54
requirements for license renewal.166 Applicants may adopt those AMPs. If so, the agencys
165 A reply may not be used as a vehicle to cure de ficient contentions merely because those deficiencies were identified in an answer pleading. Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),
CLI-08-19, 68 NRC 251, 262 n. 32 (2008) (citations omitted).
166 See GALL Report.
generic determination that those AMPs satisfy the requirements of Part 54 is entitled to special
weight in adjudicatory proceedings.167 And the Commission has stated that a commitment by a
license renewal applicant to implement one of the AMPs from the GALL Report is sufficient to
provide reasonable assurance that the effects of aging will be adequately managed as required by
As explained in the Safety Application, PG&E addresses the aging management
requirement of 10 C.F.R. § 54.21(a)(3) primarily in Section 3, which presents the result of its
aging management reviews,169 and Appendix B, which describes the various AMPs and activities
credited for managing aging effects during the license renewal term.170
As relevant to the second prong of Proposed Contention 2, 10 C.F.R. § 54.21(c) requires
an applicant to provide a list of time-limited aging analyses (TLAAs) and demonstrate that:
(i) The analyses remain valid for the period of extended operation;
(ii) The analyses have been projected to the end of the period of extended operation; or
(iii) The effects of aging on the intended function(s) will be adequately managed for the period of extended operation.
167 Seabrook, CLI-12-5, 75 NRC at 314 n.78 (quoting Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-22, 54 NRC 255, 264 (2001)); see also id. (We recognize, of course, that guidance documents do not have the force and effect of law. Nonetheless, guidance is at least implicitly endorsed by the Commission and therefor e is entitled to correspondingly special weight)
(quoting Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 375 n.26 (2005)).
168 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 36-37 (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 468 (2008)); see also Seabrook, CLI-12-5, 75 NRC at 304 (If the NRC concludes that an
[AMP] is consistent with the GALL Report, then it accepts the applicants commitment to implement that AMP, finding the commitment itself to be an adequate demonstration of reasonable assurance under section 54.29(a).).
169 LRA at 1-9.
170 Id. at 1-9 to 1-10.
PG&E addresses this requirement in Section 4 of the Safety Application, which lists the
specific TLAAs relied upon and provides the required demonstrations.171
- 2. Proposed Contention 2 Fails to Demonstrate an Adequately Supported Genuine Dispute with the LRA
Neither the Petition nor the Macdonald Declar ations provide any meaningful engagement
with the LRA or the license renewal requirements in 10 C.F.R. Part 54. As detailed below, the
Petition itself is both brief and vague, whereas the Macdonald Declarations focus on non-license
renewal matters. Neither satisfies 10 C.F.R. § 2.309(f)(1)(v) or (vi).
- a. Petitioners Have Not Met Their Pleading Burden
The brief discussion of Proposed Contention 2, as presented in the Petition, fails to satisfy
the pleading requirements for an admissible contention. The Petition mentions the concepts of
aging management and TLAAs, but does not otherwise identify any specific AMP or TLAA
being challenged. For example, Petitioners indicate they seek a hearing to challenge PG&Es
proposed [AMP] for the RPV.172 But, as explained in the LRA:
The following AMPs manage the aging effects for the RV components:
- ASME Section XI Inservice Inspection, Subsections IWB, IWC and IWD (B.2.3.1)
- Boric Acid Corrosion (B.2.3.4)
- Cracking of Nickel-Alloy Components and Loss of Material Due to Boric Acid-Induced Corrosion in Reactor Coolant Pressure Boundary Components (B.2.3.5)
- Flux Thimble Tube Inspection (B.2.3.23)
- PWR Vessel Internals (B.2.3.7)
- Reactor Head Closure Stud Bolting (B.2.3.3)
- Reactor Vessel Surveillance (B.2.3.18)
- TLAA - Cumulative Fatigue Damage (Section 4.3)
- Water Chemistry (B.2.3.2).173
171 Id. at 1-9.
172 Petition at 16.
173 LRA at 3.1-6.
It is unclear which, if any, of these nine AMPs Petitioners seek to challenge because Petitioners
fail to cite or discuss any of them.
Likewise, the Petition offers no explanationat allfor the second prong of the
contention alleging that the LRA does not include an adequate TLAA. Aside from the lone
reference in the Statement of Contention,174 the remainder of Proposed Contention 2 does not
mention TLAA again.175 More broadly, given the absence of any reference to any specific
AMP or TLAA, it is not entirely clear whether Proposed Contention 2 is intended as a contention
of omission (because it alleges the LRA does not include something) or one of sufficiency
(because it alleges the LRA omits an adequate plan or analysis).
Furthermore, the Petition does not engage with the relevant regulatory requirements or
explain, in detail, its theory on how any particular portion of the LRA allegedly fails to satisfy
those requirements. Petitioners invoke 10 C.F.R. § 54.21 in the Statement of Contention, but
no other portion of Proposed Contention 2 proffers any explanation of what those requirements
are or why the LRA allegedly falls short of satisfying them. Petitioners make the conclusory
statement that some unspecified AMP perpetuates the preexisting and inadequate surveillance
program from the initial operating period. 176 But they fail to explain how this perceived
inadequacy fails to satisfy some aspect of 10 C.F.R. § 54.21, or why that alleged defect is
material to the Staffs review of the LRA. For example, assuming arguendo that Petitioners
intended to challenge the Reactor Vessel Surv eillance AMP described in Section B.2.3.18 of
the Safety Application, they fail to identify this AMP as the target of their challenge, fail to
174 Petition at 16.
175 See id. at 16-18.
176 Id. at 16.
explain what aspect of Part 54 allegedly is unmetor why, and fail to acknowledge that this
AMP is consistent with the GALL Report,177 and therefore is covered by the NRCs generic
determination that it satisfies the requirements of Part 54. 178 Petitioners disregard, rather than
dispute, this information.
In contrast, the Commissions admissibility criteria impose an affirmative burden on
Petitioners to supplyin the Petitionsufficient information to show a genuine dispute with the
applicant on a material issue of law or fact.179 Petitioners cannot just refer generally to
voluminous documents, such as the LRA; they must identify the specific sections being
disputed and explain why those particular sections... provide a basis for the contention.180
Thus, a proposed contention that does not identify any specific portion of the application that it
seeks to challenge lacks the necessary specificity to demonstrate a genuine dispute with the
application, and is inadmissible.181 The pleading also must supply the supporting reasons for
each dispute; or, if the petitioner believes that an application fails altogether to contain
information required by law, the petitioner must identify each failure, and provide supporting
reasons for the petitioners belief.182 On its face, the Petition does none of these things as to
Proposed Contention 2.
177 LRA at B.2-95. Specifically, that AMP is consistent with exception. But that exception pertains only to Unit 2, whereas Proposed Contention 2 relates to Unit 1. More importantly, Petitioners do not argue that the exception in any way renders the AMP inconsistent with the GALL Report.
178 See supra Section IV.C.1.
179 10 C.F.R. § 2.309(f)(1)(vi).
180 Fansteel, CLI-03-13, 58 NRC at 204.
181 Diablo Canyon, CLI-15-21, 82 NRC at 306.
182 Susquehanna Nuclear, LLC (Susquehanna Steam Elec. Station, Units 1 and 2), CLI-17-4, 85 NRC 59, 74 (2017) (citing 10 C.F.R. § 2.309(f)(1)(vi)).
Instead of articulating such information in the pleading, Petitioners attempt to incorporate
by reference the Macdonald Declarations, which are provided in a 59-page, single-spaced
attachment to the Petition. But, as a matter of law, the Commission has held that this approach is
insufficient to satisfy a petitioners pleading burden:
Commission practice is clear that a petitioner may not simply incorporate massive documents by reference as the basis for or as a statement of his contentions....
Such a wholesale incorporation by reference does not serve the purposes of a pleading.... The Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point.
The Commission cannot be faulted for not having searched for a needle that may be in a haystack.183
Moreover, providing a document or an expert opinion as the foundation for a contention,
without setting forth an explanation of its significance, is inadequate to support the admission of
a contention.184 In short, the Commission has repeatedly refused to allow petitioners to shift
their pleading burden to the presiding officer and other parties by requiring them to examine
expert affidavits or other attachments to identify a potential ba sis for a contention when those
arguments are not otherwise advanced in the petition.
Because the assertions in Proposed Contention 2 do not demonstrate an adequately
supported genuine dispute with the LRA, it fails to satisfy 10 C.F.R. § 2.309(f)(1)(v) and (vi) and
is inadmissible.
- b. The Macdonald Declarations Also Fail to Demonstrate an Adequately Supported Genuine Dispute with the LRA
Even if the Petitioners could shift their plead ing burden to the Board and the other parties
by requiring them to scour the Macdonald Declarations for information to support the
183 Seabrook, CLI-89-3, 29 NRC at 240-41 (citations omitted).
184 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), LBP-10-6, 71 NRC 350, 361 (2010) (citing Indian Point, LBP-08-13, 68 NRC at 63; Fansteel, CLI-03-13, 58 NRC at 204).
admissibility of Proposed Contention 2 (they cannot), the claims therein still would not provide a
sufficient basis for an admissible contention in this limited-scope license renewal proceeding.
That is because Dr. Macdonalds criticisms are not focused on license renewal requirements or
the LRA, and therefore fail to raise an adequately supported genuine dispute with the LRA, as
required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).
As noted above, the Macdonald Declarations consist of two separate documents. First,
the 2023 Macdonald Declaration is a 46-page document dated September 14, 2023, that criticizes
certain aspects of NRC regulations, policy, and oversight, and DCPPs CLB. That declaration is
separately being evaluated by NRC technical staff under 10 C.F.R. § 2.206, the appropriate
forum for consideration of CLB issues. Importantly, the 2023 Macdonald Declaration does not
mention, address, acknowledge, or dispute any portion of the LRAbecause it was prepared
before the LRA was submitted. Second, the 2024 Macdonald Declaration is a shorter 12-page
document. It largely repeats information from the 2023 Macdonald Declaration, but it also
purports to raise concerns about the LRA. On closer inspection, however, those concerns simply
rehash Dr. Macdonalds criticisms of various subjects outside the scope of license renewal, with
no clear challenge to any particular discussion in the LRA itself, and no engagement with any
portion of Part 54.
Section IV of the 2024 Macdonald Declarati on, framed as a background discussion,
provides selective quotations of the LRA. But, Dr. Macdonalds analysis is found in
Section V. That discussion does not mention, reference, or analyze any specific LRA content or
any license renewal requirement. Therein, Dr. Macdonald offers a single, vague assertion that
some unspecified portion of the LRA incorporates and depends heavily on previous tests and
analyses. The remainder of the discussion focuses on his criticisms of those previous matters,
relying primarily on the 2023 Macdonald Declaration. It does not, even once, mention 10 C.F.R.
§ 54.21, or any other license renewal requirement. And it obviously does not explain why
incorporation of previous tests and analyses renders that unspecified portion of the LRA
materially noncompliant with some unspecified regulation.
Simply put, the Macdonald Declarations fall far short of demonstrating an adequately
supported genuine dispute with the LRA. Accordingly, even if an expert declaration was a
permissible substitute for a pr operly pled contention (it is not), the Macdonald Declarations
would nevertheless fail to satisfy 10 C.F.R. § 2.309(f)(1)(v) and (vi) here.
- 3. Proposed Contention 2 Improperly Challenges Issues Beyond the Limited Scope of this License Renewal Proceeding
As noted above,185 Dr. Macdonalds criticisms of NRC regulations, NRC oversight, and
the DCPP CLB are being evaluated by the NRCs technical staff in a separate proceeding. So, as
a practical matter, it would be inefficient and wasteful to convene a hearing to perform a
duplicative evaluation of those same issues here. And, as a legal matter, all of those arguments
are beyond the limited scope of this license renewal proceeding, which renders Proposed
Contention 2 inadmissible for failing to satisfy 10 C.F.R. § 2.309(f)(1)(iii).
- a. Petitioners Challenges to NRC Regulations Are Outside the Scope of This Proceeding
A contention that challenges NRC regulations is outside the scope of the proceeding
unless the Commission grants a petitioner a waiver to do so. 186 Petitioners received no such
waiver in this proceeding. Even so, Petitioners challenge the NRCs regulations in 10 C.F.R.
§ 50.61 and Appendix H. According to Petitioners, these regulations and the NRC-approved
185 See supra Section II.C.
186 10 C.F.R. § 2.335(a).
surveillance program for Diablo Canyon are inadequate and fundamentally deficient.187 But
according to the Commission, a contention that claims an NRC regulation is inadequate is
impermissible in adjudicatory proceedings.188 Moreover 10 C.F.R. § 50.61 incorporates by
reference specific ASME codes. To the extent that Petitioners challenge the sufficiency of these
codes in the proposed contention, the Commission holds that contentions cannot attack the
methodologies in industry codes incorporated into NRC regulations.189
As an example, Dr. Macdonald advocates the use of a wholly different methodology that
would replace the Charpy Impact Test190 that has long been a staple of the NRCs codified
procedures for evaluating fracture toughness and the various consensus codes and standards
endorsed by the NRC. According to Dr. Macdonald, nothing short of the NRCs adoption of
this completely new methodology, developed by him and his colleague (but not reviewed or
accepted by the NRC), is sufficient to reach a finding of reasonable assurance.191 However, such
arguments are plainly beyond the scope of this license renewal proceeding. Whereas, a
rulemaking petition under 10 C.F.R. Part 2, Subpart H is the appropriate forum to lobby for
changes to NRC regulations.
In addition, Dr. Macdonald presents his ad ditional, more recent concerns about the
NRCs fracture toughness regulations.192 But all of these additional concerns either attack the
187 Petition at 16.
188 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-19-7, 90 NRC 1, 12 (2019) ([T]o the extent [the petitioner]... does not think that the existing rules are adequate, [the petitioner]
presents a challenge to our existing regulations, which is impermissible in an adjudicatory proceeding.).
189 Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 156 (1991).
190 2023 Macdonald Declaration at 27.
191 Id. at 33, 17.
192 Id. at 9-11; Petition at 17.
sufficiency of the NRCs regulations or advocate for stricter or different regulatory requirements.
In particular, Dr. Macdonald claims that:
- The calculations in Regulatory Guide 1.99,193 which licensees can rely on to demonstrate compliance with 10 C.F.R. § 50.61, are based on erroneous assumptions that embrittlement accrues in a non-Markovian manner;194
- Regulatory Guide 1.99, 10 C.F.R. § 50.61, and 10 C.F.R. § 50.61 lack a statistical basis to consider errors in test data; 195 and
- NRC regulations do not require PG&E to consider hydrogen embrittlement or hydrogen-induced cracking.196
Dr. Macdonald also offers a recommendation on how the NRC could improve the
accuracy of certain data by replacing Charpy testing with nano-indentation.197
These additional concerns expressed by Dr. Macdonald either advocate for stricter
requirements than agency rules impose, or would change the nature of existing regulations.
According to the Commission and other licensing boards, such contentions are outside the scope
of an adjudicatory proceeding and are inadmissible.198
193 See generally Reg. Guide 1.99, Rev. 2 (May 1988) (ML031430205); see id. at 1.99-2 (discussing the basis for the Equation 2 in Regulatory Position 1.1); see also id. at 1.99-3 (discussing the calculation for RTNDT).
194 2024 Macdonald Declaration at 9-10.
195 Id. at 11.
196 Id. at 11-12.
197 Id. at 8.
198 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 159-60, affd, CLI-01-17, 54 NRC 3 (2001) (rejecti ng the petitioners contention that a license renewal applicant needed to prepare a proba bilistic risk assessment, where NRC regulations did not require such an analysis); see also PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant),
LBP-08-18, 70 NRC 385, 403 (2008) (citing Peach Bottom, ALAB-216, 8 AEC at 20-21).
A contention that challenges a plants CLB is outside the limited scope of a license
renewal proceeding.199 Even so, Petitioners seek a hearing to challenge DCPPs CLB by
claiming that the preexisting surveillance program used during the decades-old initial
operating license period was inadequate and fundamentally deficient.200 According to
Petitioners, these deficiencies include a failure to consider serious indications of embrittlement
that existed in 2003 and [a] failure to conduct further monitoring of the Unit 1 RPV in the
subsequent two decades (i.e., between 2003 and 2023).201 Similarly, Dr. Macdonald expresses
his concerns about continued operation of Unit 1.202 In short, Petitioners proposed contention,
and Dr. Macdonalds assertions on the current status of the plant, and both relate to Diablo
Canyons CLB and ongoing NRC oversight. Indeed, Petitioners (excluding the EWG) already
filed a petition in September 2023 regarding these concerns,203 and the Commission referred this
petition to the Executive Director for Operations for consideration. 204 Thus, not only is this
challenge to the NRCs oversight outside the scope of this proceeding, it is the subject of a
separate NRC proceeding altogether.
199 Turkey Point, CLI-01-17, 54 NRC at 7-9.
200 Petition at 16 (emphasis added).
201 Id. at 17 (emphasis added).
202 2023 Macdonald Declaration at 33.
203 See Seismic Shutdown Request.
204 NRC Secretary Order (Denying Hearing Request and Referring Request for Immediate Action to the Executive Director for Operations for Consideration Under 10 CFR 2.206) (Oct. 2, 2023)
(unpublished) (ML23275A225).
The Commission long ago determined that a reassessment of CLB safety issues at the
license renewal stage would be unnecessary and wasteful 205 because those issues are
effectively addressed and maintained by ongoing agency oversight, review, and
enforcement.206 That is the case here. The NRC reviewed and approved (as part of the CLB)
PG&Es surveillance program for Unit 1 and fo und that PG&E fulfilled the surveillance
requirements for the full term of the initial Unit 1 operating license. 207 Petitioners challenge to
the surveillance program activities during the init ial operating period is thus a challenge Diablo
Canyons CLB and is outside the scope of this proceeding.
D. Proposed Contention 3 (CZMA) is Inadmissible
Proposed Contention 3 alleges that the LRA is deficient because PG&E has not
demonstrated compliance with the [CZMA] and as a result, its ER fails to satisfy the
requirements of NRCs own regulations mandating the content of environmental reports.208 As
explained below, Petitioners have not demonstrated an adequately supported genuine dispute
with the LRA on a material issue of fact or law, as required by 10 C.F.R. § 2.309(f)(1)(v) and
(vi), because the claims rely on various factual and legal misrepresentations or
misunderstandings, which are detailed in Section IV.D.2, and because they fail to articulate any
actual deficiency in the ER, as explained in Section IV.D.3. Accordingly, Contention 3 is
inadmissible.
205 Turkey Point, CLI-01-17, 54 NRC at 7.
206 Millstone, CLI-04-36, 60 NRC at 637-38.
207 See Letter from J. Sebrosky, NRC to J. Conway, PG&E (Diablo Canyon Power Plant, Unit No. 1:
Safety Evaluation for Request to Revise the Reactor Vessel Material Surveillance Program Withdrawal Schedule (TAC ME7615)), Encl. 1 at 3 (Mar. 2, 2012) (ML120330497).
208 Petition at 18.
- 1. CZMA Requirements and Procedural History
The CZMA, and the corresponding regulations of the National Oceanic and Atmospheric
Agency, provide that certain applicants for Federal licenses or permits:
shall provide in the application to the li censing or permitting agency a certification that the proposed activity complies with the enforceable policies of the states approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the a pplicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data.209
Upon the receipt of both the consistency certification and all necessary data and
information (which are different things),210 the designated agency (in California, that is the
California Coastal Commission (CCC)) has six months to review and notify the Federal
agency concerned that the state concurs with or objects to the applicants certification.211 If the
designated agency receives the consistency certification, but not all necessary data and
information, it must notify the applicant of the incomplete submission.212 The CZMA further
provides that:
No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicants certification or until, by the states failure to act, the concurrence is conclusively presumed, unless the Secretary
[of Commerce], on his own initiative or upon appeal by the applicant, finds... that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security. 213
209 16 U.S.C. § 1456(c)(3)(A); see also 15 C.F.R. § 930.57(a) (stating essentially the same).
210 See, e.g., 15 C.F.R. § 930.60.
211 16 U.S.C. § 1456(c)(3)(A). If the designated agen cy fails to act within six months, the states concurrence with the certification shall be conclusively presumed. Id. And if the state objects to the certification, the applicant may appeal to the Secretary of Commerce, who has final authority to issue the concurrence. Id.
212 15 C.F.R. § 930.60(a)(2).
213 16 U.S.C. § 1456(c)(3)(A). If the designated agen cy fails to act within six months, the states concurrence with the certification shall be conclusively presumed. Id.
Separately, NRC regulations require that an ER identify and discuss the status of all
permits, licenses, and other approvals that are required from federal, state, and local agencies.214
If applicable to a given licensing action, the CZMA concurrence is among the approvals that
must be identified and discussed in the ER.
On November 7, 2023, PG&E submitted the LRA to the NRC. In accordance with the
CZMA, Attachment F to the ER contained PG&Es Consistency Certification to the CCC. And
in accordance with 10 C.F.R. § 51.45(d), the ER also listed the CZMA Concurrence among the
approvals required for the proposed action.215 The Consistency Certification was also sent to the
CCC, which received it on November 8, 2023.216 By letter dated December 7, 2023, the CCC
notified PG&E that its Consistency Certificatio n had been deemed incomplete pending receipt
of additional information (CCC Letter).
- 2. Petitioners Mischaracterization of the CCC Letter Fails to Supply the Requisite Support for an Admissible Contention
In Proposed Contention 3, Petitioners assert that the CCC formally rejected PG&Es
Consistency Certification and that the CCC Letter constitutes an unequivocal rejection
thereof.217 Those characterizations are not supported by the CCC Letter itself.
On its face, the CCC Letter does not include the word rejection. The CCC simply
characterizes the Consistency Certification as not yet complete.218 Indeed, Incomplete
Consistency Certification is the subject line of that letter. The CCC also invokes the regulations
at 15 C.F.R. §§ 930.58 and 930.60, regarding necessary information and incomplete
214 10 C.F.R. § 51.45(d).
215 ER at 9-9, tbl. 9.1-2.
216 Petition, Ex. 4 at 1 (CCC Letter).
217 Petition at 19-20.
218 CCC Letter at 1.
submissions, rather than 15 C.F.R. § 930.63, which pertains to formal objections (i.e., denials).
The CCCs own characterization is borne out in its various requests asking that PG&E [p]lease
amend the certifications analyses to include assessments of the proposed extended operation[],
revise the certification to apply the appropriate standards of review in the relevant analyses,
and provide additional information219 The CCC also notes that its review of the Consistency
Certification will not commence until we receive the missing necessary data and
information.220 These statements are consistent with the existence of a pending Consistency
Certification that requires supplementation and on which the clock has not yet begun to run,
rather than one that has been rejected or on which the clock has run out.
By any colorable reading, the CCC Letter is merely a request for additional information,
not a formal rejectionand certainly not an unequivocal one, as Petitioners assert.221
- 3. Petitioners Have Not Identified Any Omission or Deficiency in the ER
In Proposed Contention 3, Petitioners vaguely allege non-compliance with the CZMA
and NRC regulations at 10 C.F.R. § 51.45(b), (c), and (d). But they offer little or no explanation
to demonstrate the existence of a genuine dispute with the LRA on a material issue of law or
fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).
First, Petitioners claim that the NRC may not approve renewal of PG&Es operating
licenses for DCPP because PG&E has not demons trated compliance with the [CZMA]. But
219 Id. at 2-3, 7 (emphasis added).
220 Id. at 1 (emphasis added).
221 See also Initial Prehearing Order at 6 (citing 10 C.F.R. § 2.323(d) and cautioning the parties to not stretch arguments beyond what they and the legal/factual support can bear.); Pub. Serv. Co. of Okla.
(Black Fox Station, Units 1 and 2), ALAB-505, 8 NRC 527, 532 (1978) (counsel appearing before NRC licensing boards have a manifest and iron-clad obligation of candor, including a duty to call attention to facts of record which, at the very l east, cast a quite different light upon the substance of arguments being advanced by counsel.).
they do not offer any clear explanation as to the purported noncompliance they are alleging.
Petitioners suggest that PG&Es Consistency Certification must be sanctioned by the State of
California, and that the NRC must [] find that the State has confirmed PG&Es compliance
with the CZMA before approving the LRA.222 These are not complete and accurate statements
of law because the CZMA allows the NRC to approve the LRA even without state concurrence
under certain circumstances.223 But, as a general matter, there is no dispute that some form of
CZMA concurrence is required before the NRC can approve the LRA.
What is missing here, however, is any explanation from Petitioners as to why that
concurrence purportedly is required now, or why the absence of such concurrence at this
preliminary stage renders the LRA deficient in any way. But that is not surprising. As another
licensing board noted in rejecting a similar proposed contention, this argument seems to confuse
an applicants CZMA certification with a states final consistency decision.224 The CZMA
process obviously contemplates a period of time, after submission of the application, in which
the state agency will review the Consistency Certification before concurring or objecting. 225 And
as the CCC itself has explained, that period has not yet started.226 Simply put, Petitioners point
to no unmet legal requirement to obtain the CZMA concurrence at this point. And no such
requirement exists.
222 Petition at 18, 21.
223 16 U.S.C. § 1456(c)(3)(A) (providing that state inaction or Secretary of Commerce approval are other means of compliance).
224 Exelon Nuclear Tex. Holdings, LLC (Victoria County Station Site), LBP-11-16, 73 NRC 645, 704 (2011).
225 See, e.g., 15 C.F.R. § 930.60 (discussing six-month review period).
226 CCC Letter at 1.
Second, Petitioners claim that PG&E has allegedly omitted specific information required
by 10 C.F.R. § 51.45(b), (c), and (d) from its ER.227 But this claim fails to engage with the
regulatory requirements upon which it relies and does not detail any way in which the ER fails to
satisfy those standards.
The Commissions regulations in 10 C.F.R. § 51.45(d) state:
The environmental report shall list all Federal permits, licenses, approvals and other entitlements which must be obtained in connection with the proposed action and shall describe the status of compliance with... applicable environmental quality standards and requirements including, but not limited to, applicable zoning and land-use regulations, and thermal and other water pollution limitations or requirements which have been imposed by Federal, State, regional, and local agencies having responsibility for environmental protection....228
As noted above, the ER, in fact, lists the CZMA concurrence as one of the required
approvals and describes the status of compliance therewith.229 More broadly, the ER explains
that ER sections 9.1, 9.5, and 9.7 address this requirement. Petitioners fail to engage with those
portions of the ER or explain any purported defectand the cited regulation certainly does not
require all listed authorizations and permits be obtained prior to ER submittal. Petitioners are
simply wrong in their assertion that 10 C.F.R. § 51.45(d) requires anything more.
The other regulations cited by Petitioners, 10 C.F.R. § 51.45(b) and (c), prescribe the
general content of the ER. As summarized in ER table 1.1-1, 10 C.F.R. § 51.45(b) is addressed
in ER sections 2.1, 1.1, 3.0, 4.0, 6.3, 2.6, 7.0, 8.0, 6.5, and 6.4; and 10 C.F.R. § 51.45(c) is
addressed in ER sections 2.6, 4.0, 7.0, and 8.0. Petitioners fail to acknowledge or engage with
any of these sections of the ER, much less articulate any dispute therewith.
227 Petition at 18-19.
228 10 C.F.R. § 51.45(d).
229 ER at 9-9, tbl. 9.1-2, 9-19.
Finally, Petitioners allege that the State must grant any necessary coastal development
permits (CDPs),230 and highlight the CCC Letters observation that PG&E may be required
to obtain a CDP.231 Petitioners then claim that the NRC cannot approve the LRA because of the
potential requirement to obtain one or more CDPs.232 However, Petitioners supply no
reasoned explanation or legal support for this assertion. Some federal statutes, such as the
CZMA, preclude NRC license issuance pending some other approval. But the state statute cited
by Petitioners does no such thing. And the notion that the mere potential for some obligation
to arise in the future constitutes a legal barrier is dubious, at best.
Ultimately, Petitioners have not demonstrated an adequately supported genuine dispute
with the application on a material issue of fact or law, as required by 10 C.F.R. § 2.309(f)(1)(v)
and (vi). Accordingly, Contention 3 is inadmissible.
V. CONCLUSION
The EWG lacks standing and its request for party status should be DENIED. The
Petition also should be DENIED because Petitioners failed to propose an admissible contention
as required by 10 C.F.R. § 2.309(a).
230 Petition at 19 (citing Cal. Public Resources Code § 30600).
231 Id. at 20.
232 Id.
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 29th day of March 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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) March 29, 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 Hearing Request Filed by San Luis Obispo
Mothers for Peace, Friends of the Earth and Environmental Working Group was served on 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/ 145642117