UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

In the Matter of 

PACIFIC GAS & ELECTRIC COMPANY 

(Diablo Canyon Power Plant, Units 1 and 2) 

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Docket Nos. 50-275, 50-323 

CLI-15-14 

MEMORANDUM AND ORDER 

We rule today on Friends of the Earth’s petition for intervention and request for hearing 

in what Friends of the Earth characterizes as a de facto license amendment proceeding 

involving the operating licenses held by Pacific Gas & Electric Company for Diablo Canyon 

Power Plant Units 1 and 2.1

 Friends of the Earth asserts, inter alia, that the NRC is allowing 

PG&E to operate Diablo Canyon outside of the plant’s licensing basis with respect to the 

analysis of new seismic data following discovery of the Shoreline Fault in 2008. Friends of the 

 

1 Petition to Intervene and Request for Hearing by Friends of the Earth (Aug. 26, 2014) (Hearing 

Request). Friends of the Earth also filed a petition to intervene in the Diablo Canyon license 

renewal proceeding, which also raised contentions associated with new seismic data; the Board 

denied the petition to intervene. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 and 2), LBP-15-6, 81 NRC __ (Feb. 11, 2015) (slip op.); Friends of the Earth’s 

Request for a Hearing and Petition to Intervene (Oct. 10, 2014). In addition, Friends of the 

Earth has a petition for review before the United States Court of Appeals for the District of 

Columbia Circuit in which Friends of the Earth challenges an asserted NRC final order relating 

to seismic analysis in connection with the Final Safety Analysis Report as Updated, Revision 21, 

for Diablo Canyon. Friends of the Earth v. NRC, No. 14-1213 (D.C. Cir. filed Oct. 28, 2014). 
- 2 - 

Earth also contends that the NRC’s assessment of this new information is insufficient to assure 

that the plant can safely shut down in the event of an earthquake caused by nearby faults. 

We refer a limited portion of the hearing request to the Atomic Safety and Licensing 

Board Panel to determine whether Friends of the Earth has identified an NRC activity that 

requires an opportunity to request an adjudicatory hearing pursuant to section 189a. of the 

Atomic Energy Act of 1954, as amended (AEA). In addition, we deny portions of the hearing 

request but refer Friends of the Earth’s underlying concerns to the Executive Director for 

Operations (EDO) for consideration pursuant to 10 C.F.R. § 2.206. Finally, we deny, without 

prejudice, Friends of the Earth’s alternative request that we exercise our inherent supervisory 

authority to order a discretionary hearing. 

I. BACKGROUND 

The seismic design basis of Diablo Canyon is complex.2

 A new fault, the Hosgri Fault, 

was identified during plant construction and the review of the operating license application for 

Diablo Canyon. That discovery led to an evaluation of certain aspects of the plant’s design and 

to plant modifications to address the potential effects of earthquakes associated with the Hosgri 

Fault.3

 In addition, a condition was added to the Unit 1 operating license which required that 

PG&E develop and implement a program to reevaluate the seismic design bases used for the 

plant.4

 The operating licenses for Units 1 and 2 were issued in 1984 and 1985, respectively, 

 

2 See, e.g., Pacific Gas & Electric Co. (Diablo Canyon Power Plant, Units 1 and 2), LBP-79-26, 

10 NRC 453 (1979); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 

and 2), ALAB-644, 13 NRC 903 (1981); Pacific Gas & Electric Co. (Diablo Canyon Nuclear 

Power Plants, Units 1 and 2), CLI-84-13, 20 NRC 267 (1984); Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177 (1985). 

3 See Diablo Canyon, ALAB-644, 13 NRC at 909-14; Diablo Canyon, LBP-79-26, 10 NRC at 

490. 

4 See Diablo Canyon, CLI-85-14, 22 NRC at 179 (this condition provides assurance “that the 

seismic design of Diablo Canyon will be subject to continuing scrutiny”). In this decision, we 

(continued . . .) 
- 3 - 

and in the early 1990s the NRC Staff concluded that PG&E had satisfied the license condition.5

As relevant here, a fault close to Diablo Canyon, called the Shoreline Fault, was 

identified in 2008. The NRC Staff documented a preliminary assessment of the new information 

in 2009 and a further assessment in 2012.6

 In its letter to PG&E summarizing the results of the 

NRC’s 2012 Assessment,7

 the Staff explained that it had concluded that ground motions from 

the Shoreline Fault are at or below those for which Diablo Canyon was evaluated previously and 

that the Staff was placing its evaluation of the Shoreline Fault into the context of the 

reevaluation of seismic hazards that was under way for all operating nuclear power reactors in 

connection with post-Fukushima lessons learned.8

 

(. . . continued) 

consider Friends of the Earth’s assertions as relating to the plant as a whole—that is, as 

assertions relating to both operating licenses, even though the seismic license condition resides 

in the Unit 1 operating license. 

5

 Boger, Bruce A., NRC, letter to J.D. Shiffer, PG&E (June 6, 1991) (ADAMS accession no. 

ML14279A124 (package)); Rood, Harry, NRC, letter to Gregory M. Rueger, PG&E (Apr. 17, 

1992) (ML14279A132); see also NRC Staff Answer to Petition to Intervene and Request for 

Hearing by Friends of the Earth (Oct. 6, 2014), at 4-5 (Staff Answer). 

6

 Research Information Letter 09-001, Preliminary Deterministic Analysis of Seismic Hazard at 

Diablo Canyon Nuclear Power Plant from Newly Identified “Shoreline Fault” (Apr. 2009) 

(ML090330523); Research Information Letter 12-01, Confirmatory Analysis of Seismic Hazard 

at the Diablo Canyon Power Plant from the Shoreline Fault Zone (Sept. 2012) (ML121230035) 

(2012 Assessment). 

7

 Sebrosky, Joseph M., NRC, letter to Edward D. Halpin, PG&E, “Diablo Canyon Power Plant, 

Unit Nos. 1 and 2--NRC Review of Shoreline Fault” (Oct. 12, 2012), at 1 (ML120730106). 

8 See generally 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 50.54(f) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task 

Force Review of Insights from the Fukushima Dai-Ichi Accident (Mar. 12, 2012) (ML12053A340) 

(Section 50.54(f) Request). After receiving the NRC’s letter, PG&E withdrew an earlier License 

Amendment Request (LAR), LAR-11-05, “Evaluation Process for New Seismic Information and 

Clarifying the Diablo Canyon Power Plant Safe Shutdown Earthquake” (Oct. 20, 2011) 

(ML11312A166), with the justification that it had been mooted by the 50.54(f) request and the 

guidance in the October 2012 NRC letter to PG&E. See Allen, Barry S., PG&E, letter to U.S. 

NRC Document Control Desk, “Withdrawal of License Amendment Request 11-05, Evaluation 

(continued . . .) 
- 4 - 

Friends of the Earth challenges NRC’s activities related to the analysis of the Shoreline 

Fault. First, Friends of the Earth contends that it is entitled to a public hearing under AEA 

section 189a. because the NRC is in effect granting a license amendment that has significant 

safety implications. As supporting evidence, Friends of the Earth states that the NRC is 

permitting PG&E to use methodologies and assumptions not prescribed in the operating 

licenses, thereby sidestepping an opportunity for hearing.9

 It also asserts that PG&E and the 

NRC Staff have admitted that a license amendment is necessary in connection with the 

submission of PG&E’s License Amendment Request 11-05, which was subsequently 

withdrawn.10 Second, Friends of the Earth contends that the Staff’s “determination that the new 

seismic information, including the Shoreline Fault earthquake and its effect on the San Luis Bay 

and Los Osos Faults, is a lesser-included case within the Hosgri Earthquake[,] is insufficient to 

[e]nsure that Diablo Canyon is operating . . . with an adequate margin of safety.”11

 

(. . . continued) 

Process for New Seismic Information and Clarifying the Diablo Canyon Power Plant Safe 

Shutdown Earthquake” (Oct. 25, 2012), at 2 (ML12300A105); see also Pacific Gas and Electric 

Company’s Answer to Friends of the Earth Hearing Request (Oct. 6, 2014), at 16 (PG&E 

Answer); Declaration of Mr. William R. Horstman in Support of Pacific Gas & Electric 

Company’s Answer Opposing Friends of the Earth’s Request for Hearing (Oct. 6, 2014), at 13. 

9

 Hearing Request at 33. 

10 Id. at 34-38, 41-43; see supra note 8. 

11 Hearing Request at 47. The Petition relies extensively on a 2013 Differing Professional 

Opinion (DPO) by Dr. Michael Peck who previously served as a Senior Resident Inspector at 

Diablo Canyon. See, e.g., Hearing Request at 2-3, 23-25, 61-63. Dr. Peck, in his DPO, had 

recommended enforcement action and asserted, among other things, that a license amendment 

is required to revise the “double design earthquake” evaluation to higher ground motions 

associated with new seismic information. See DPO Case File for DPO-2013-002, Document 8, 

DPO Appeal Decision (Sept. 9, 2014), at 3-4 (ML14252A743) (DPO Case File). The DPO Case 

file is a single ADAMS file with eight separate documents. An Ad Hoc Review Panel, convened 

to review the DPO, concluded that PG&E used an acceptable method in its evaluation of the 

Shoreline Fault Zone, found no significant or immediate concerns relating to the NRC’s 

understanding of the new seismic information, and identified no potential violation of 10 C.F.R. 

§ 50.59. (Section 50.59 sets forth the types of changes, tests, or experiments that may be 

(continued . . .) 
- 5 - 

The Staff and PG&E oppose the request for hearing.12 The Staff argues that Friends of 

the Earth has not identified a 10 C.F.R. § 50.90 license amendment application or a completed 

NRC action that effectively amends the Diablo Canyon operating licenses to allow PG&E to 

operate the plant in a greater capacity than prescribed in the licenses.13 The Staff also argues 

that the expressed concerns about safety, the licensee’s compliance with regulatory 

requirements, and the adequacy of NRC oversight are appropriately addressed as requests for 

enforcement action pursuant to 10 C.F.R. § 2.206.14 In addition, the Staff asserts that Friends of 

the Earth has not demonstrated standing to intervene, has not demonstrated that its intervention 

petition is timely, and has not shown that a discretionary hearing is warranted.15

PG&E argues, among other things, that Friends of the Earth mischaracterizes the Diablo 

Canyon seismic licensing basis and that there is no pending licensing amendment proceeding, 

de facto or otherwise.16 PG&E also responds that it has established that Diablo Canyon can be 

 

(. . . continued) 

undertaken without prior NRC approval as well as those that would require a license 

amendment. See 10 C.F.R. § 50.59(c).) The Director of the Office of Nuclear Reactor 

Regulation agreed with these technical findings, and the Executive Director for Operations 

determined on appeal by Dr. Peck that he was unable to arrive at the same conclusion as Dr. 

Peck with regard to the exclusion of the Hosgri evaluation and associated methodologies from 

the licensing basis. DPO Case File, Document 8, DPO Appeal Decision at 4-5. 

12 Staff Answer at 2-3; PG&E Answer at 1, 31; see also Nuclear Energy Institute Motion for 

Leave to File Amicus Curiae Brief (Oct. 6, 2014) (NEI Motion). NEI represents that PG&E 

supports its motion, Friends of the Earth does not oppose it, and the NRC Staff did not object to 

the filing but reserved the right to respond. NEI Motion at 1 n.2. Our referral to the Atomic 

Safety and Licensing Board Panel includes NEI’s request. 

13 Staff Answer at 2-3. 

14 Id. See generally 10 C.F.R. § 2.206(a) (“Any person may file a request to institute a 

proceeding pursuant to § 2.202 to modify, suspend, or revoke a license.”). The Commission on 

its own motion may review that decision. Id. § 2.206(c). 

15 Staff Answer at 2-3. 

16 PG&E Answer at 1-2, 16-17. 
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shut down safely following an earthquake on the Shoreline, San Luis Bay, and Los Osos 

faults.17 In addition, PG&E asserts that the petition is inconsistent with the ongoing NRC 

process for reevaluation of seismic hazards and seismic licensing bases and that any plant or 

licensing basis changes found to be necessary, or any required license amendments (together 

with associated hearing opportunities), will be identified in due course in accordance with NRC 

processes and regulations.18

II. DISCUSSION 

Friends of the Earth requests that we take three actions: (1) that we grant Friends of the 

Earth’s intervention in the asserted de facto license amendment proceeding; (2) that we 

empanel an Atomic Safety and Licensing Board to a conduct a public adjudicatory hearing to 

determine whether Diablo Canyon can shut down safely in light of the effect of potential 

earthquakes that could affect the plant; and (3) that we order PG&E to suspend operations 

pending a determination, following a public hearing, that Diablo Canyon can be safely operated 

in accordance with any necessary amendments.19 We address these requests in turn. 

A. Request for Hearing on the Asserted De Facto License Amendment 

Friends of the Earth’s hearing request points to several events and ongoing activities 

that it cites as evidence of an ongoing de facto license amendment proceeding. These include 

the activities associated with the following NRC correspondence: (1) the NRC Staff’s March 

2012 request for information to all power plant licensees pursuant to 10 C.F.R. § 50.54(f); (2) 

Research Information Letter 12-01 (Sept. 2012), which documented the staff’s assessment of 

the new Shoreline Fault information; and (3) the NRC Staff’s October 2012 letter to PG&E that 

 

17 Id. at 24-31. 

18 PG&E Answer at 2. 

19 Hearing Request at 7. 
- 7 - 

summarized the results of the 2012 assessment and placed the Staff’s further review of new 

information in the context of the NRC’s section 50.54(f) letter requesting seismic reevaluations 

by all power reactor licensees.20

We refer a portion of the hearing request to the Chief Administrative Judge of the Atomic 

Safety and Licensing Board Panel. The scope of the referral is limited to whether the NRC 

granted PG&E greater authority than that provided by its existing licenses or otherwise altered 

the terms of PG&E’s existing licenses, thereby entitling Friends of the Earth to an opportunity to 

request a hearing pursuant to AEA section 189a.21

PG&E and the Staff argue that Friends of the Earth is challenging only NRC oversight 

and enforcement of Diablo Canyon’s licenses and related requirements rather than an actual de 

facto amendment of those licenses.22 We emphasize that claims regarding inadequacies in a 

licensee’s technical evaluations or non-compliance with its license, standing alone, do not 

suffice to identify an activity that may constitute a license amendment.23 Such concerns are 

appropriately addressed by the NRC Staff in the enforcement context. As we have recently 

 

20 Id. at 14-18, 21-22, 32-33, 42. 

21 See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 

NRC 315, 326-28 (1996) (comparing Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 

295 (1st Cir. 1995) (the agency had expressly altered the policy and application of 10 C.F.R. 

§ 50.59 as it related to decommissioning activities, permitting the licensee to dismantle major 

structural components without prior NRC approval of a final decommissioning plan), with 

Massachusetts v. NRC, 878 F.2d 1516 (1st Cir. 1989), and In re Three Mile Island Alert, Inc., 

771 F.2d 720 (3d Cir. 1985) (NRC approvals of plant restart and lifting suspension did not 

trigger AEA section 189a. hearing rights)). And we have recently issued two decisions providing 

additional direction in this area. Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-11, 

80 NRC 167 (2014); Omaha Public Power District (Fort Calhoun Station, Unit 1), CLI-15-5, 81 

NRC __ (Mar. 9, 2015) (slip op.). 

22 See, e.g., Staff Answer at 2-3; PG&E Answer at 18-20. 

23 See St. Lucie, CLI-14-11, 80 NRC at 173 (“A licensee cannot amend the terms of its license 

unilaterally. Agency approval or authorization is a necessary component of Commission action 

that affords a hearing opportunity under section 189a., but not all agency approvals granted to 

licensees constitute de facto licensee amendments.”) (citations omitted). 
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held, licensee action without an NRC approval of an increase in authority or alteration of the 

terms of the license does not constitute a de facto amendment.24

We note that, in its reply to the PG&E and Staff answers, Friends of the Earth asserts 

that the Staff has “approved” PG&E’s Final Safety Analysis Report Update, Revision 21, and 

this action, standing alone, grants PG&E greater operating authority and alters the terms of the 

operating licenses.25 Elsewhere, Friends of the Earth refers to the asserted approval of 

Revision 21 as a “confirmation” of the de facto license amendment proceeding that is 

referenced in the hearing request.26 The Board, as part of its consideration of this matter 

(including the timeliness of the arguments raised in the reply), should provide an opportunity for 

the Staff and PG&E to respond to these assertions. 

In addition, this referral includes such threshold issues as standing, timeliness, and 

satisfaction of contention admissibility standards in accordance with 10 C.F.R. § 2.309.27 

Finally, we direct the Board to rule on whether Friends of the Earth’s hearing request should be 

 

24 Id. (rejecting the petitioners’ premise that a series of Staff communications relating to plant 

oversight should be considered as an element of a single, overarching de facto license 

amendment “since only certain activities trigger the opportunity for a hearing”). 

25 Friends of the Earth’s Reply to NRC Staff’s and Pacific Gas & Electric Company’s Answers 

and Proposed Amicus Curiae Nuclear Energy Institute’s Brief in Response to Petition to 

Intervene and Request for Hearing (Oct. 14, 2014), at 11-19 (Friends of the Earth Reply). 

26 Id. at 4. 

27 The participants and the Board should assign no significance to the fact that we are not ruling 

on Friends of the Earth’s hearing request ourselves. We note that we have ruled recently on 

other hearing requests related to asserted de facto license amendments and in so doing have 

broadened our line of cases on what does—and does not—constitute a de facto license 

amendment. See St. Lucie, CLI-14-11, 80 NRC 167; Fort Calhoun, CLI-15-5, 81 NRC __. But 

ordinarily threshold hearing issues are decided by our Boards in the first instance. Southern 

California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-9, 78 

NRC 551, 560 & n.36 (2013) (“Licensing boards are the appropriate finders of fact in most 

circumstances; referral of a matter for a fact-specific dispute occurs in the ordinary course of 

business.”). 
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granted within 140 days of the date of this decision.28

B. Adjudicatory Hearing on Ability to Shut Down Safely 

Throughout its petition, Friends of the Earth raises questions about the operational 

safety of Diablo Canyon in connection with the potential effects of earthquakes that could occur 

along nearby faults. As noted above, Friends of the Earth specifically challenges the NRC’s 

confirmatory assessment in 2012 that the Shoreline Fault scenario should be considered as a 

lesser included case under the Hosgri evaluation. In this vein, Friends of the Earth requests 

that we empanel a Licensing Board to a conduct a public adjudicatory hearing on whether 

Diablo Canyon can shut down safely in the event of nearby earthquakes that would affect the 

plant.29

We deny the request for a hearing on operational safety and safe-shutdown but refer 

Friends of the Earth’s concerns to the Executive Director for Operations to address as a request 

for enforcement action pursuant to 10 C.F.R. § 2.206.30 Friends of the Earth objects in advance 

to any such referral,31 but a request for a hearing on safety concerns and for a safe operation 

 

28 This timeline is informed by our model milestones. See 10 C.F.R. pt. 2, app. B, II. “Model 

Milestones for Hearings Conducted Under 10 CFR Part 2, Subpart L” (providing for a decision 

by the presiding officer on intervention petitions and admission of contentions within 140 days of 

publication of the notice of opportunity for hearing in the Federal Register). 

29 Hearing Request at 7. 

30 We recognize that the Executive Director for Operations has considered at length and 

rejected the Differing Professional Opinion (DPO) from which Friends of the Earth draws 

support. See DPO Case File, Document 8, DPO Appeal Decision (Sept. 9, 2014). But the 

hearing request and the DPO are not identical, and seismic reevaluation is ongoing. 

31 See, e.g., Friends of the Earth Reply at 24-26. Friends of the Earth acknowledges that the 

section 2.206 process is designed to initiate a proceeding to amend, revoke, or suspend a 

license but asserts that the process is not sufficient to respond to a challenge to a de facto

license amendment proceeding that has already been initiated. Id. Yet, Friends of the Earth 

infuses its hearing request with assertions that challenge whether Diablo Canyon can be shut 

down safely in light of seismic issues and whether continued operation should be allowed. 

Moreover, we are referring the asserted de facto license amendment, as limited above, for 

(continued . . .) 
- 10 - 

determination falls squarely within the purposes of a request for enforcement action.32

C. Suspension of Operations Pending Hearing and Safety Determination 

We turn now to Friends of the Earth’s request that the NRC order PG&E to suspend 

operations pending a determination, following a public hearing, that Diablo Canyon can be 

safely operated under its amended licenses.33 Although the agency has on occasion 

suspended final licensing decisions,34 these and other cases establish that a decision to do so is 

highly dependent upon the facts and requires a judgment that the significance of the matter 

raised is so substantial as to warrant suspension.35 In the instant case, Friends of the Earth has 

made no showing of an imminent health and safety threat.36 Moreover, the seismic design 

issues at Diablo Canyon have been the subject of extensive licensee and Staff review, as 

illustrated by the evaluations already completed, the close consideration given to the DPO by 

NRC Staff, and the ongoing analysis and review pursuant to the Section 50.54(f) Request, the 

purpose of which is “to enable the Commission to determine whether or not the license should 

 

(. . . continued) 

consideration by a Licensing Board. 

32 We have previously rejected an assertion by Friends of the Earth that the section 2.206 

process does not provide a viable forum for relief. See Southern California Edison Co. (San 

Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC 437, 439-40 (2012); 

accord St. Lucie, CLI-14-11, 80 NRC at 179. 

33 Hearing Request at 26-27. 

34 See Calvert Cliffs 3 Nuclear Project LLC, and UniStar Nuclear Operating Services, LLC

(Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 67 & n.7 (2012). 

35 See, e.g., Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC

(Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71 (2014); Union Electric Co. 

d/b/a/ Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 152-57, 161-65 (2011). 

36 Indeed, in the DPO upon which Friends of the Earth relies, Dr. Peck agreed that the “issues 

raised in the DPO did not result in a significant or immediate safety concern.” DPO Case File, 

Document 5, DPO Appeal Submission at 7. 
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be modified, suspended, or revoked.”37

For these reasons, we also deny the suspension request but refer Friends of the Earth’s 

underlying concerns to the Executive Director for Operations for consideration under section 

2.206 as a request to institute a proceeding to “modify, suspend or revoke a license.”38

D. Friends of the Earth’s Request for a Discretionary Hearing 

Friends of the Earth argues that, should we determine that a hearing is not required in 

this matter, we should nonetheless grant a discretionary hearing to “insure that the seismic 

analysis of the Shoreline Fault complies with the Atomic Energy Act,” to “assure the public that 

the plant is safe to operate,” and to effectuate “the Commission’s policy of transparency.”39 The 

Staff argues that Friends of the Earth has not shown that a discretionary hearing is warranted.40

We find no reason to bypass our normal process by ordering a discretionary adjudicatory 

hearing when it has not been determined that one is required under Section 189a. of the Atomic 

Energy Act. If the Licensing Board determines that a hearing in this matter should be granted, 

then there will be no need to consider whether to grant a discretionary hearing. Alternatively, 

commencing an adjudicatory hearing now when one is not otherwise required could disrupt the 

ongoing seismic analysis and review for Diablo Canyon and could undermine the established 

process for challenges to Staff oversight and requests for amendment or revocation of a license. 

 

37 10 C.F.R. § 50.54(f). 

38 Id. § 2.206. Although we refer to the Executive Director for Operations the safety-related and 

oversight-related assertions that most clearly fall within the scope of the Staff’s ongoing 

oversight and enforcement responsibilities, we do not prejudge whether the portions of the 

Hearing Request referred to the Panel warrant a licensing hearing apart from the Staff’s ongoing 

oversight and consideration of any need for related licensing or enforcement action. Our threejudge Licensing Boards have the necessary tools to more fully address these portions of the 

Hearing Request. 

39 Hearing Request at 70. 

40 NRC Staff Answer at 53-54. 
- 12 - 

For these reasons, we deny the request for a discretionary hearing, but this denial is 

without prejudice to the renewal of such a request.41

III. CONCLUSION 

For the reasons discussed above, we (1) refer the request for hearing on the asserted 

de facto amendment to the Panel for consideration under AEA section 189a. (42 U.S.C. 

§ 2239(a)) and 10 C.F.R. § 2.309, (2) deny the request for an adjudicatory hearing on 

operational safety and safe-shutdown but refer the concerns underlying that request, including 

asserted violations of the plant’s licensing basis and asserted lack of demonstrated capability for 

safe shutdown to the Executive Director for Operations for consideration under 10 C.F.R. 

§ 2.206, and (3) deny the request to suspend plant operations but refer the concerns underlying 

that request to the Executive Director for Operations, also for consideration under 10 C.F.R. 

§ 2.206. We deny without prejudice Friends of the Earth’s request for a discretionary hearing. 

IT IS SO ORDERED. 

 For the Commission 

NRC Seal 

 /RA/ 

 ____________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 21st day of May, 2015.

 

41 We note, however, that to the extent that Friends of the Earth seeks discretionary intervention 

under 10 C.F.R. § 2.309(e), intervention as a matter of discretion is permitted only where at 

least one petitioner has established standing and at least one admissible contention has been 

admitted, and a petitioner is required to address six factors in its initial petition. See St. Lucie, 

CLI-14-11, 80 NRC at 179 n.60. 
Additional Views of Chairman Burns 

With regard to the issues raised in Commissioner Svinicki’s dissent, I have confidence in 

the Atomic Safety and Licensing Board’s ability to effectively and efficiently adjudicate this case. 

While it is necessary and prudent for the Commission to provide clarity and direction to the 

Board where needed, the Commission has done just that in the recent St. Lucie and Fort 

Calhoun decisions. Judicial economy is served by referring this matter in the first instance to 

the Board for resolution.
Additional Views of Commissioner Ostendorff 

While I share Commissioner Svinicki’s concerns about the scope of the review 

undertaken by the Board in the San Onofre case, the Board’s decision in San Onofre has not 

affected the Commission’s standard for analyzing de facto license amendment hearing 

requests. Rather, the majority opinion and the recent St. Lucie and Fort Calhoun Commission 

decisions affirm that the Commission’s standard has not been relaxed. I expect that these 

recent Commission decisions remove any uncertainty as to the standard that the Board should 

use when it reviews de facto license amendment hearing requests. With that in mind, the 

majority opinion places this hearing request where it can most efficiently be handled—with the 

Board.
Commissioner Svinicki, Concurring in Part and Dissenting in Part 

I respectfully dissent with regard to the majority’s decision to refer the Friends of the 

Earth’s hearing request to a Licensing Board for a determination of whether Staff activities have 

effected a de facto license amendment with respect to Diablo Canyon’s seismic licensing basis.1

 

In my view, there is no need to do so because the Commission already has sufficient 

information to rule on the request as stated.2

 Moreover, similar referrals have led to Board 

rulings that created considerable regulatory uncertainty. Referring this question to the Board 

has the potential to yield a similar result. Last, I find that the scope of the referral needlessly 

invites further challenges in other proceedings. 

A. Friends of the Earth Has Not Identified Any De Facto License Amendment 

As the majority notes, in some cases, the Commission has observed that agency actions 

not formally labelled as license amendments nevertheless can constitute de facto license 

amendments and accordingly trigger hearing rights for the public under section 189a. of the 

AEA.3

 We have articulated two key factors to consider when determining whether agency 

action constitutes a de facto license amendment: whether the agency action (1) granted the 

licensee any greater authority or (2) otherwise altered the original terms of the license.4

 “A 

 

1

 Although a majority of Commissioners has not subscribed to my position, the majority has 

emphasized that it takes no position on the underlying dispute between the litigants at this point 

in the proceeding. See supra p. 14, note 38. 

2

 While I find that Friends of the Earth’s hearing request lacks sufficient information to show a de 

facto license amendment, I recognize that the majority’s referral will provide Friends of the Earth 

with a chance to develop its position further. Thus, should the Commission be called upon to 

provide another ruling in this proceeding, the issue we consider then will be different than the 

one before us today. At that time, I will consider, afresh, the record as it exists, including the 

additional arguments and potential factual positions that will be developed as a result of this 

referral. 

3 See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 

NRC 315, 326 (1996). 

4 Id. 
- 2 - 

licensee cannot amend the terms of its license unilaterally”; it must request and obtain agency 

approval.5

 Thus licensee action, as opposed to agency action, is insufficient to trigger a de 

facto license amendment proceeding.6

 Moreover, we have declined “to interpret the AEA to 

require hearings based on the possibility that a licensee may request an amendment to make 

unspecified modifications at some uncertain time in the future.”7

The majority refers a number of agency communications to the board for consideration, 

including: (1) the NRC Staff’s March 2012 request for information to all power plant licensees 

pursuant to 10 C.F.R. § 50.54(f); (2) Research Information Letter 12-01, which documented the 

staff’s assessment of the new Shoreline Fault information; (3) the NRC Staff’s October 2012 

letter to PG&E that summarized the results of the 2012 assessment and placed the Staff’s 

further review of new information in the context of the NRC’s section 50.54(f) request for seismic 

reevaluations by all power reactor licensees; and (4) the NRC Staff’s acceptance of PG&E’s 

updated final safety analysis report (UFSAR) revision 21.8

 I have considered each in turn, in 

light of the foregoing precedent, and find that Friends of the Earth has not shown how any of 

 

5 Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-11, 80 NRC 167, 173 (2014); see 

10 C.F.R. § 50.90 (“Whenever a holder of a license . . . desires to amend the license . . . 

application for an amendment must be filed with the Commission . . . .”). 

6

 St. Lucie, CLI-14-11, 80 NRC at 173 & n.31. 

7 Omaha Public Power District (Fort Calhoun Station, Unit 1), CLI-15-5, 81 NRC __ (Mar. 9, 

2015) (slip op. at 13). 

8

 Hearing Request at 14-18, 21-22, 32-33, 48-49; Friends of the Earth Reply at 9, 12-19. “The 

application for an operating license includes the final safety analysis report (FSAR) which is to 

contain: a description of the facility; the design bases and limits on operation; and the safety 

analysis for the structures, systems, and components (SSC) and of the facility as a whole.” 

Changes, Tests, and Experiments: Proposed Rule, 63 Fed. Reg. 56,098, 56,099 (Oct. 21, 

1998). A licensee must operate its facility “in accordance with the license and as described in 

its final safety analysis report.” NUREG-1650, Rev. 3, The United States of America Fifth 

National Report for the Convention on Nuclear Safety, Rev. 3, at 112 (Sept. 2010) 

(ML102810031). Thus, if a licensee wishes to change a component of the FSAR, it must follow 

the process in 10 C.F.R. § 50.59 or obtain a license amendment pursuant to 

10 C.F.R. § 50.90. Additionally, licensees must periodically provide updated FSARs under 

10 C.F.R. § 50.71(e). 
- 3 - 

these regulatory instruments expands PG&E’s operating authority or otherwise alters the terms 

of the Diablo Canyon operating licenses.9

1. The March 12, 2012, Section 50.54(f) Request 

First, Friends of the Earth argues that because the March 12, 2012, § 50.54(f) Request 

directs PG&E to use “specific methodologies and assumptions to analyze new seismic data,” it 

effectively amends the terms of the Diablo Canyon licenses.10 But this argument fundamentally 

misapprehends the purpose of the Section 50.54(f) Request. Friends of the Earth suggests that 

because the 50.54(f) Request will effectively amend the analyses relied on to demonstrate plant 

safety in the FSAR and the license, a license amendment is required.11 On its face, however, 

the Section 50.54(f) Request does not propose to change the analysis in any operating plant’s 

existing licensing basis. Rather, it asks licensees, in light of the Fukushima accident, to 

evaluate plant seismic and flooding design bases using updated analytical methods and to 

provide information to determine whether any changes to the plants’ design bases are 

warranted.12 Indeed, the letter explicitly notes that the “evaluations associated with the 

requested information in this letter do not revise the design basis of the plant.”13 The letter 

acknowledges that the contents of the licensees’ responses may lead to additional regulatory 

actions to update plants’ licensing bases, such as orders, license amendments, or rulemakings, 

 

9

 The majority also notes that the hearing request extensively relies on a Differing Professional 

Opinion from Dr. Michael Peck, the former Senior Resident Inspector at the plant. See supra p. 

5, note 11. Because a differing professional opinion does not constitute an agency action, it 

cannot constitute a de facto license amendment in and of itself. Nevertheless, I have 

considered its contents as support for Friends of the Earth’s claims that other agency actions 

constituted de facto license amendments. 

10 Hearing Request at 34. 

11 Id. at 35-47. 

12 Section 50.54(f) Request at 4. 

13 Id. 
- 4 - 

for which the public would have participation rights.14 Therefore, with respect to the March 12, 

2012, 50.54(f) Request, Friends of the Earth appears to make the same error as the petitioner in 

Fort Calhoun—seeking a hearing on speculative changes to a plant’s licensing basis that may 

or may not occur.15 Having previously rejected such claims, the Commission can cite to that 

finding and reach a similar holding here that the March 12, 2012, 50.54(f) Request does not 

constitute a de facto license amendment. 

2. Research Information Letter 12-01

With regard to Research Information Letter 12-01, Friends of the Earth contends that the 

Staff’s analysis, which concludes that Diablo Canyon can operate safely despite the Shoreline 

Fault, effectively amends the Diablo Canyon licensing basis to include the prior evaluation of the 

Hosgri Earthquake as part of the plant’s seismic licensing basis.16 A careful reading of 

Research Information Letter 12-01, however, does not reveal any instance where the Staff 

altered the terms of the Diablo Canyon operating licenses or provided PG&E with greater 

operating authority. Indeed, Research Information Letter 12-01 does not reach any conclusions 

regarding the Diablo Canyon operating licenses.17 Rather, it is focused on determining whether 

the plant can operate safely in light of the risk posed by the Shoreline Fault.18 The focus here 

on overall plant safety is not unique in the NRC’s regulatory process, and Friends of the Earth 

has not demonstrated that the Staff’s comparison of the Shoreline Fault to the Hosgri Fault, to 

determine whether Diablo Canyon was operating safely, amounted to a tacit, or de facto, 

amendment to the operating licenses. 

 

14 Id. at 1; see, e.g., 10 C.F.R. §§ 2.309, 2.805. 

15 Fort Calhoun, CLI-15-5, 81 NRC at __ (slip op. at 13). 

16 Hearing Request at 47-70. 

17 2012 Assessment at 95. 

18 Id. 
- 5 - 

Regardless, even assuming the Staff’s analysis in Research Information Letter 12-01 

has some linkage to the plant’s licensing basis, Friends of the Earth still has not shown that the 

letter expands the licensee’s authority or alters the terms of the licenses. Friends of the Earth 

concedes that the Diablo Canyon UFSAR specifically addressed whether the plant was 

seismically qualified for the Hosgri Earthquake.19 Moreover, as PG&E and the Staff noted, the 

plant’s capacity to withstand the Hosgri Earthquake was extensively litigated at the time of initial 

licensing.20 As a result of that litigation, the Atomic Safety and Licensing Board and the Atomic 

Safety and Licensing Appeal Board (whose opinions constitute binding precedent at the NRC), 

both acting on authority delegated from the Commission, found the plant seismically qualified to 

withstand that earthquake.21 Of note in the Appeal Board’s order are repeated references to the 

Hosgri Earthquake as the plant’s “Safe Shutdown Earthquake,” a term that Friends of the Earth 

acknowledges is normally associated with a plant’s seismic licensing basis.22 Friends of the 

Earth further agrees that these orders are also part of the plant’s licensing basis.23 Thus, 

Friends of the Earth has not shown that the Staff’s conclusion in Research Information Letter 

12-01 expanded PG&E’s operating authority or otherwise altered the terms of the licenses. 

Because Friends of the Earth concedes that the plant’s licensing basis already permits the plant 

to operate in light of the seismic hazard posed by the Hosgri Fault and the Staff found that the 

seismic hazard from the Shoreline Fault is bounded by that from the Hosgri Fault, the hearing 

 

19 Friends of the Earth Reply at 6, 9 (citing 10 C.F.R. § 54.3(a) (defining the scope of a reactor’s 

licensing basis) and PG&E, Diablo Canyon Power Plant, Units 1 and 2, Final Safety Analysis 

Report Update, Rev. 12 (Sept. 1998), at 2.5-58 (discussing the Hosgri Earthquake)). 

20 Staff Answer at 3-4, 30-31 (citing Diablo Canyon, LBP-79-26, 10 NRC at 453; Diablo Canyon, 

ALAB-644, 13 NRC at 903); PG&E Answer at 6-7 (same). 

21 Id. 

22 Diablo Canyon, ALAB-644, 13 NRC at 910-11, 913, 923, 941, 990; Hearing Request at 47. 

23 Friends of the Earth Reply at 6. 
- 6 - 

request fails to demonstrate that either the licensee’s authority to operate the plant or the terms 

of the licenses have changed. 

Friends of the Earth also asserts that the “the Hosgri Evaluation and the [Long Term 

Seismic Program] were . . . intended to be a one-time exception” from the plant’s licensing 

basis,24 contending that the analysis of the Hosgri Earthquake “did not change the seismic 

design basis” but was rather a “response to a request by NRC to conduct certain additional 

analysis.”25 However, Friends of the Earth has not substantiated this claim. The statement 

Friends of the Earth relies on to support this inference pertains to the Long-Term Seismic 

Program, not the evaluation of the Hosgri Earthquake.26 Friends of the Earth also generally 

cites to the initial Licensing Board decision on the Hosgri Evaluation to support this claim.27 But 

this general reference, lacking more, is insufficient to support Friends of the Earth’s position. If 

anything, the extensive record pertaining to the Hosgri Evaluation described in the cited opinion 

tends to support the opposite inference—that the Hosgri Evaluation is a part of the Diablo 

Canyon seismic licensing basis.28

 

24 Hearing Request at 20. 

25 Friends of the Earth Reply at 9 (emphasis removed). Friends of the Earth consistently 

conflates the Hosgri Earthquake Evaluation and the Long Term Seismic Program. E.g., Hearing 

Request at 48 (“The methodologies and assumptions that PG&E employed in the [Long Term 

Seismic Program] and the associated Hosgri Evaluation were not as conservative as those 

required by the [safe shutdown earthquake.]”). But as explained in Research Information Letter 

12-01, the two are distinct. 2012 Assessment at 5. Moreover, Research Information Letter 12-

01 concluded that the seismic hazard posed by the Shoreline Fault was bounded by or equal to 

the hazard analyzed in both the Long Term Seismic Program and the Hosgri Evaluation. Id. at 

58. 

26 Hearing Request at 20 n. 51 (claiming that the Diablo Canyon UFSAR states that the Long 

Term Seismic Program “does not alter the design bases for” Diablo Canyon). 

27 Id. at 49-50 (citing Diablo Canyon, LBP-79-26, 10 NRC at 453). 

28 Diablo Canyon, ALAB-644, 13 NRC at 903. 
- 7 - 

In support of its petition, Friends of the Earth critiques the adequacy of the agency’s 

approval of the plant’s seismic qualification to the Hosgri Earthquake in the Diablo Canyon 

licenses.29 Friends of the Earth claims “the LTSP/Hosgri Evaluation is a drastically less 

comprehensive method and less conservative analytical method than the Standard Method 

approved by the Commission.”30 But the Hosgri Earthquake has been an established part of the 

Diablo Canyon licensing basis since the facility began operation. Consequently, the opportunity 

to challenge the adequacy of the Hosgri Earthquake evaluation as an original matter occurred 

decades ago.31 Indeed, the agency extensively considered challenges to the evaluation at that 

time and concluded that the Hosgri Earthquake evaluation was adequate.32

Likewise, Friends of the Earth argues that the NRC’s evaluations have understated the 

risk posed by the Shoreline Fault.33 But again, rather than indicating some alteration to the 

licenses, these claims go to the accuracy of the Staff’s analyses in its ongoing oversight of 

Diablo Canyon, which is not an appropriate issue for NRC adjudicatory hearings. As the 

Commission recently observed, “[I]f a hearing could be invoked each time the NRC engaged in 

oversight over or inquiry into plant conditions, the NRC’s administrative process could be 

brought to a virtual standstill.”34

 

 

29 Hearing Request at 54-59. 

30 Id. at 58. 

31 10 C.F.R. § 2.309(c). 

32 Diablo Canyon, ALAB-644, 13 NRC at 910-11, 996. 

33 Hearing Request at 59-64. 

34 St. Lucie, CLI-14-11, 80 NRC at 175. 
- 8 - 

3. The October 2012 Letter to PG&E 

Friends of the Earth points to the October 2012 letter as another instance where Staff 

action has amounted to a de facto license amendment.35 This letter simply summarized the 

conclusions of the Research Information Letter and requested that PG&E use the process in the 

50.54(f) Request to evaluate seismic risk at the site going forward.36 As discussed previously, 

Friends of the Earth has not shown that either of these two letters constituted de facto 

amendments. For those same reasons, therefore, the hearing request does not demonstrate 

that the October 2012 letter grants or constitutes expansion of PG&E’s operating authority or 

otherwise alters the terms of the Diablo Canyon operating licenses.37

4. PG&E’s UFSAR Update 21 

In its reply brief, Friends of the Earth claims that the NRC Staff’s acceptance of PG&E’s 

UFSAR update 21 constitutes a de facto license amendment to the plant’s seismic licensing 

basis. Specifically, Friends of the Earth contends that UFSAR update 21 inappropriately moves 

the Hosgri Earthquake into the plant’s established seismic design basis.38 Again, these 

arguments appear to misconstrue our regulatory process. Under 10 C.F.R. § 50.71(e), 

licensees must periodically submit an updated FSAR to the agency. However, the agency does 

 

35 Hearing Request at 34. 

36 October 12, 2012 Letter at 1. 

37 The letter notes that PG&E should update the UFSAR “as necessary, to include the Shoreline 

scenario in accordance with the requirements of 10 C.F.R. §50.71(e).” Id. at 2. As discussed in 

the next section, updates to the UFSAR under § 50.71 are controlled by the requirements of 

10 C.F.R. §§ 50.90 and 50.59. 10 C.F.R. § 50.71(e). Updates under § 50.90 require a license 

amendment, with a corresponding opportunity for a public hearing. The Commission has 

repeatedly held that changes to a UFSAR under § 50.59 do not trigger opportunities for a public 

hearing. Interpreted within this framework, the phrase “as necessary” within the letter would 

suggest simply that PG&E should update the UFSAR within the confines of the existing 

regulatory structure and would not, as Friends of the Earth would have it, constitute a request to 

circumvent the process for updating the UFSAR. 

38 Friends of the Earth Reply at 12-14. 
- 9 - 

not review the submittals for accuracy or otherwise approve the analyses therein.39 As clearly 

stated in its promulgation, this regulation “is only a reporting requirement”; “Submittal of updated 

FSAR pages does not constitute a licensing action but is only intended to provide information”; 

and “approvals of license amendments and technical specification changes are independent of 

the FSAR updating process.”40

Indeed, the updates must reflect changes to the FSAR that the licensee has made, 

either through a license amendment request under 10 C.F.R. § 50.90, with a corresponding 

opportunity to request a hearing, or through the 10 C.F.R. § 50.59 process. As the Commission 

has consistently emphasized, licensee actions under 10 C.F.R. § 50.59 do not give rise to 

hearing rights under the AEA.41 Rather, such activities are appropriately monitored through staff 

inspection and oversight. Consequently, with regard to UFSAR update 21, our regulatory 

process does not call for agency action that would “approve” the changes to the seismic 

analysis as part of the section 50.71(e) update, and therefore under our established precedent, 

UFSAR update 21 cannot constitute a de facto license amendment with regard to the Diablo 

Canyon seismic licensing basis. If, as Friends of the Earth would have it, PG&E has 

inappropriately made changes to the UFSAR without seeking a license amendment or 

 

39 While the Staff did perform a review to determine if the submittal met the administrative 

requirements of section 50.71(e) for timeliness and content, the Staff did not review the 

technical adequacy of all of the changes in the update, particularly PG&E’s changes to the 

seismic analysis. Diablo Canyon Power Plant, Units 1 and 2 – Review of Final Safety Analysis 

Report Update, Revision 21 (TAC Nos. MF2945 and MF2946) (June 23, 2014) (ML14022A120). 

40 Periodic Updating of Final Safety Analysis Reports, Final Rule, 45 Fed. Reg. 30,614, 30, 615 

(May 9, 1980). 

41 Fort Calhoun, 81 NRC __ (slip op. at 11) (noting that “hearing rights do not attach to licensee 

changes made under Section 50.59 because those changes do not require NRC approval but 

are instead subject to normal NRC oversight through the inspection process”). 
- 10 - 

performing a suitable section 50.59 analysis, then that is an issue appropriate for NRC 

inspection and oversight, not adjudication.42

Furthermore, accepting the interpretation of § 50.71(e) advanced by Friends of the Earth 

would create absurd results within our regulatory process.43 Under section 50.71(e), licensees 

must update their UFSARs every two years.44 Thus, if Friends of the Earth’s understanding of 

the regulation were correct, every two years the agency would effectively approve all section 

50.59 changes at a facility and the public would have an opportunity to request hearings on 

those approvals. A central purpose of section 50.59, however, is to permit licensees to make 

certain limited changes to their facilities without Commission approval.45 Thus, Friends of the 

Earth’s interpretation would nullify our long-standing rule that a “member of the public may 

challenge an action taken under 10 C.F.R. §50.59 only by means of a petition under 10 C.F.R. 

§ 2.206.”46 Additionally, since the UFSAR updated under § 50.71(e) also includes changes the 

agency approved by the license amendment process under § 50.90, this interpretation would 

have the agency effectively “approve” these changes for a second time, without apparent 

purpose or effect. These results counsel against adopting Friends of the Earth’s proffered 

interpretation.47 Consequently, Friends of the Earth has not made a sufficient showing to 

demonstrate that the agency’s acceptance of UFSAR Update 21 constituted a de facto license 

amendment to the Diablo Canyon operating licenses. 

 

 

42 Id.

43 Friends of the Earth Reply at 12-14. 

44 10 C.F.R. § 50.71(e)(4). 

45 Changes, Tests, and Experiments, 64 Fed. Reg. 53,582, 53,584 (Oct. 4, 1999). 

46 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 101 n.7 

(1994). 

47 United States v. Turkette, 452 U.S. 576, 580 (1981). 
- 11 - 

5. Conclusion

In light of the foregoing, and applying the Commission’s precedents in Perry, St. Lucie, 

and Fort Calhoun, Friends of the Earth has not shown the existence of a de facto license 

amendment proceeding; it fails to call forth any present staff action that could plausibly be 

viewed as expanding PG&E’s operating authority or otherwise altering the terms of the Diablo 

Canyon licenses. 

Friends of the Earth also claims that the Staff and PG&E have engaged in back room 

negotiations to amend the Diablo Canyon operating licenses but does not cite to any evidence 

of this alleged improper behavior.48 Rather, the record reflects actions by PG&E to monitor the 

seismic environment around Diablo Canyon and update its analyses accordingly and actions by 

the Staff to evaluate these analyses, as described in Regulatory Information Letter 12-01. 

Although these reviews did result, at one point in time, in plans to clarify the Diablo Canyon 

seismic licensing basis through a license amendment, these plans were subsequently overtaken 

by the NRC’s generic regulatory response to the events at Fukushima. When the NRC 

requested that every operating plant, including Diablo Canyon, reevaluate its seismic licensing 

basis, the Staff and PG&E determined to encompass the review of the Diablo Canyon seismic 

licensing basis in that reevaluation instead of continuing with a separate process. Diablo 

Canyon was not unique in this regard. We also folded several ongoing seismic reevaluations of 

operating plants, being conducted under Generic Issue-199, Implications of Updated 

Probabilistic Seismic Hazard Estimates in Central and Eastern U.S. on Existing Plants, into our 

post-Fukushima activities.49

 

48 Hearing Request at 4-5. 

49 Generic Issue Management Control System Report for Fiscal Year 2015 1st Quarter (Dec. 23, 

2014) (ML14351A014), at 13-16 (“The agency incorporated GI-199 into the work done by the 

Japan Lessons-Learned Project Directorate in response to the March 2011 Japan nuclear 

event. GI-199 activities in NRR are being addressed in the 50.54(f) letters on items 2.1 and 2.3 

of the Japanese [Near-Term Task Force] recommendations.”). 
- 12 - 

B. Referral to Board Needlessly Creates Regulatory Uncertainty 

Over two years ago, the Commission considered another request to find that Staff 

oversight activities with regard to the San Onofre Nuclear Generating Station constituted a de 

facto license amendment proceeding.50 The request asserted that a Confirmatory Action Letter 

from the Staff to the licensee, as well as “the process for resolving the issues raised in the 

Letter,” constituted a de facto license amendment.51 In response, we referred the request to the 

Atomic Safety and Licensing Board, specifically directing the Board to consider whether “the 

Confirmatory Action Letter issued to [Southern California Edison] constitutes a de facto license 

amendment.”52 In my view, we had referred a narrow question to the Board, regarding whether 

the letter itself constituted a de facto license amendment. The Board did not agree. 

Despite the Commission’s plain direction to consider the “Confirmatory Action Letter,” 

the Board found that “common sense” could not support such a cramped interpretation of the 

referral because the Commission could have evaluated the letter on its own “without difficulty.”53 

Thus, the Board proceeded to examine whether any aspect of the larger Confirmatory Action 

Letter process, including hundreds of pages of unapproved restart proposals from the licensee, 

supported by thousands of pages of technical analyses, constituted a de facto license 

amendment.54 As we noted in St. Lucie, in so doing the Board departed from decades of 

established de facto license amendment precedent, from both the Circuit Courts and the 

Commission, which had only considered whether agency action could constitute a de facto 

 

50 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 1 and 2), 

CLI-12-20, 76 NRC 437, 440 (2012). 

51 Id. 

52 Id. 

53 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 1 and 2), 

LBP-13-7, 77 NRC 307, 327, vacated as moot, CLI-13-9, 78 NRC 551 (2013). 

54 Id.
- 13 - 

license amendment.55 While common sense might suggest that the Commission would have 

clearly instructed the Board if it had intended to depart so dramatically from past practice, the 

Board was undeterred. 

The Board’s errant conclusion, that unapproved licensee proposals could also amount to 

de facto license amendments, led the Board to request hundreds of pages of briefings and 

evidence from the litigants. Moreover, the Board’s legal error cascaded into a number of other 

faulty conclusions, such as its determination that licensing boards could review unilateral, 

unapproved, licensee actions under section 50.59(c)(2) to determine whether they also 

constituted de facto license amendments.56 In the wake of the Board’s ruling, the Commission 

received a number of similar requests for hearings on asserted de facto amendments that relied 

to various degrees on the Board’s errors.57 Thus, the Commission’s simple referral—limited to a 

focused inquiry on its plain terms—interjected considerable and historic regulatory uncertainty 

into the agency’s oversight of San Onofre.58 Moreover, this uncertainty also spread to our 

oversight of other reactors through a series of similar petitions that seized on the Board’s San 

Onofre order as a harbinger of a new, relaxed de facto license amendment jurisprudence at the 

Commission. In recent months, we have spent considerable time and effort dispelling these 

claims.59

 

55 St. Lucie, CLI-14-11, 80 NRC at 174 n.33. 

56 San Onofre, LBP-13-7, 77 NRC at 333-34. 

57 St. Lucie, CLI-14-11, 80 NRC at 174 n.33; Fort Calhoun, CLI-15-5, 81 NRC at __ (slip op. at 

8). Indeed, Friends of the Earth restates many of those errors in its own pleading. E.g., 

Hearing Request at 32 & n.88. 

58 Of note, the plant closed shortly after the Board’s decision. Southern California Edison Co. 

(San Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-9, 78 NRC 551, 553 (2013). 

59 St. Lucie, CLI-14-11, 80 NRC at 174 n.33; Fort Calhoun, CLI-15-5, 81 NRC at __ (slip op. at 

8). 
- 14 - 

While I believe that the Commission can successfully resolve Friends of the Earth’s 

request with the information before it, the majority correctly notes that the “seismic design basis 

of Diablo Canyon is complex.”60 In light of the lack of necessity to refer the matter, however, I 

fear, perhaps needlessly, that this complexity could provide ample thickets for a well-meaning 

licensing board to roam far-afield, in search of some hidden meaning behind the majority’s 

referral of a matter so straightforward and of such limited-scope; a matter the Commission could 

have decided on its own, “without difficulty.” History reveals that even plainly stated 

instructions, such as those provided by the majority here, provide no guarantee that the Board 

will hew to the Commission’s narrow intent.61 Because the Commission can dispose of this 

question on its own, there is no need to entertain this peril or to invite such uncertainties into our 

oversight process once again.62

C. The Scope of the Commission’s Referral Creates Regulatory Uncertainty for Every 

 Operating Reactor 

The Commission’s referral is also problematic in its scope, as it invites similar challenges 

related to every operating power reactor in the country. As mentioned above, the majority 

refers the March 2012, section 50.54(f) Request to the licensing board to consider whether it 

 

60 See supra p. 2, note 2 and accompanying text. 

61 For this reason, I would strongly encourage the Board to refer any questions it has regarding 

the scope of this referral to the Commission under 10 C.F.R. § 2.341(f)(1) without hesitation and 

any party to this proceeding who believes that the Board has departed from the scope of the 

Commission’s referral to file a petition for interlocutory review under 10 C.F.R. § 2.341(f)(2). 

62 The majority reasons that referral is appropriate because “ordinarily threshold hearing issues 

are decided by our Boards in the first instance.” See supra p. 10, note 27. But Friends of the 

Earth’s claim asks us to find malfeasance or nonfeasance on the part of the Staff and convene a 

hearing where none existed before. Our rules of practice, which span almost 150 pages in the 

Code of Federal Regulations and provide for at least thirteen different hearing tracks, do not 

provide any guidance or standards for evaluating such requests. Therefore, I do not find the 

procedural posture of this proceeding to be ordinary. The majority further supports its reasoning 

by noting, “‘Licensing boards are the appropriate finders of fact in most instances.’” See id. 

(quoting San Onofre, CLI-13-9, 78 NRC at 560 & n.36). But again, if no additional fact finding is 

needed to rule on the hearing request, this argument is unavailing. 
- 15 - 

constitutes a de facto license amendment. As we have sent identical letters to every operating 

power reactor under our jurisdiction, however, the majority’s decision would seem to solicit 

similar filings asserting de facto license amendments related to other operating reactors, with a 

reasonable expectation of similar referral to the licensing board for further proceedings. While 

we may ultimately have an opportunity to clarify this issue by ruling on an appeal from this case 

or another,63 the far more efficient course would be to rule on this request today and avoid the 

possibility of expending limited agency and stakeholder resources on this question in redundant 

proceedings. 

In light of these concerns and for the reasons provided, I dissent from the majority’s 

proposed course of action in this proceeding. Although the majority has taken considerable 

steps to cabin the scope of its referral, we can decide the issues raised in Friends of the Earth’s 

hearing request today and should do so, both to embrace judicial economy and to avoid 

injecting needless uncertainty into our process. 

 

63 Of course, the Commission may not have a chance to squarely provide such guidance as 

parties may decline to appeal licensing board decisions for any number of reasons. See, e.g.,

San Onofre, CLI-13-9, 78 NRC at 553. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275 and 50-323 

 ) 

(Diablo Canyon Nuclear Power Plant, ) 

 Units 1 and 2) ) 

 

 CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

(CLI-15-14) have been served upon the following persons by the Electronic Information 

Exchange. 

U.S. Nuclear Regulatory Commission 

Atomic Safety and Licensing Board Panel 

Mail Stop: T-3F23 

Washington, DC 20555-0001 

Roy Hawkens 

Chief Administrative Judge 

E-mail: Roy.Hawkens@nrc.gov

 

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop: O-15D21 

Washington, DC 20555-0001 

Edward L. Williamson, Esq. 

E-mail: edward.williamson@nrc.gov 

Beth Mizuno, Esq. 

E-mail: beth.mizuno@nrc.gov 

David Roth, Esq. 

E-mail: david.roth@nrc.gov

Jeremy Wachutka, Esq. 

E-mail: jeremy.wachutka@nrc.gov 

Joseph Lindell, Esq. 

E-mail: joseph.lindell@nrc.gov

Mitzi Young 

E-mail: Mitzi.young@nr.gov

John Tibbetts, Paralegal 

E-mail: john.tibbetts@nrc.gov

OGC Mail Center 

E-mail: OGCMailCenter@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop: O-16C1 

Washington, DC 20555-0001 

OCAA Mail Center 

E-mail: ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop: O-16C1 

Washington, DC 20555-0001 

Hearing Docket 

E-mail: hearingdocket@nrc.gov
Diablo Canyon Nuclear Power Plant - Docket Nos. 50-275 and 50-323 

COMMISSION MEMORANDUM AND ORDER (CLI-15-14) 

2

Counsel for Pacific Gas and 

 Electric Company 

Winston & Strawn, LLP 

101 California Street 

San Francisco, CA 94111-5802 

David A. Repka, Esq. 

E-mail: drepka@winston.com

Tyson Smith, Esq. 

E-mail: trsmith@winston.com

Darani Reddick, Esq. 

dreddick@winston.com

Carlos Sisco, Senior Paralegal 

E-mail: csisco@winston.com

 

Counsel for Friends of the Earth 

Ayers Law Group LLP 

1707 L Street NW, Suite 850 

Washington, DC 20036 

Richard E. Ayres, Esq. 

E-mail: ayresr@ayreslawgroup.com

Jessica Olson, Esq. 

E-mail: olsonj@ayreslawgroup.com

John Bernetich, Esq. 

E-mail: bernetichj@ayreslawgroup.com

 

 [Original signed by Clara Sola] 

Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 21st day of May, 2015