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 Docket Nos. 50-275, 

 50-323 

(Diablo Canyon Nuclear Power Plant, 

Units 1 and 2) 

 

CLI-16-09 

MEMORANDUM AND ORDER 

In May 2015 we referred to the Atomic Safety and Licensing Board Friends of the Earth’s 

claim that the NRC has informally, or “de facto,” amended the operating licenses of Diablo 

Canyon Nuclear Power Plant, Units 1 and 2.1 In LBP-15-27 the Board held that Friends of the 

Earth had not identified a de facto license amendment proceeding and denied its hearing 

request.2 Friends of the Earth now appeals.3 As discussed below, we affirm the Board’s 

decision. 

 

1 CLI-15-14, 81 NRC 729, 730 (2015); see Petition to Intervene and Request for Hearing by 

Friends of the Earth (Aug. 26, 2014) (Hearing Request). 

2 LBP-15-27, 82 NRC 184 (2015). 

3 Friends of the Earth’s Notice of Appeal of LBP-15-27 (Oct. 23, 2015); Brief of Friends of the 

Earth in Support of Appeal of LBP-15-27 (Oct. 23, 2015) (FOE Appeal). 
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 BACKGROUND 

A. Jurisprudence Associated with Asserted De Facto License Amendments 

Friends of the Earth argues that a series of actions by Pacific Gas & Electric Company 

(PG&E) and the NRC Staff, taken in response to the discovery of the Shoreline Fault near 

Diablo Canyon, have changed the plant’s licensing basis and thereby effected a “de facto

license amendment.”4 The Staff and PG&E both argue that none of the challenged activities, 

consisting of evaluations, related correspondence, and a revision to PG&E’s updated final 

safety analysis report (UFSAR), has either granted PG&E greater operating authority or altered 

the terms of the operating licenses for Diablo Canyon.5

Section 189a. of the Atomic Energy Act of 1954, as amended, provides for the 

opportunity to request a hearing in any proceeding “for the granting, suspending, revoking, or 

amending of any license.”6 An agency action that has the effect of amending a license, whether 

or not formally designated a “license amendment,” carries with it the opportunity to request a 

hearing.7 Our case law acknowledges that an agency action not formally labeled a license 

amendment could constitute a de facto license amendment and trigger hearing rights under 

 

4 See, e.g., FOE Appeal at 2. 

5 See NRC Staff Answer to Petition to Intervene and Request for Hearing by Friends of the 

Earth (Oct. 6, 2014), at 22-38 (Staff Answer); Pacific Gas and Electric Company’s Answer to 

Friends of the Earth Hearing Request (Oct. 6, 2014), at 17-23 (PG&E Answer); see also NRC 

Staff Brief in Opposition to Friends of the Earth Appeal of LBP-15-27 (Nov. 17, 2015) (Staff 

Appeal Brief); Pacific Gas & Electric Company’s Response to Friends of the Earth’s Appeal of 

LBP-15-27 (Nov. 17, 2015) (PG&E Appeal Brief). 

6 Atomic Energy Act of 1954, § 189a., 42 U.S.C. § 2239a. 

7 See Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 295 (1st Cir. 1995). 
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Atomic Energy Act section 189a. if that action “(1) granted the licensee any greater authority or 

(2) otherwise altered the original terms of the license.”8

We have recently clarified and expanded upon our jurisprudence relating to asserted de 

facto license amendments. In Fort Calhoun we observed that regulatory oversight activities 

such as “inspection results, administrative and enforcement actions, informational meetings, 

and technical reports and memoranda” supported “ongoing Staff oversight activities performed 

to ensure compliance” with requirements and a plant’s current licensing basis.9 Therefore, 

ongoing oversight—including oversight that may eventually result in a licensee requesting to 

amend an operating license—does not constitute a license amendment “proceeding” that 

triggers hearing rights.10 Moreover, the prospect of a future license amendment does not create 

a present hearing opportunity.11 Instead, concerns involving such ongoing oversight activities 

are appropriately raised via a request for enforcement action under 10 C.F.R. § 2.206.12

And in St. Lucie, we rejected a petitioner’s argument that a series of NRC staff oversight 

activities constituted an ongoing de facto license amendment proceeding. In that case, the 

petitioner relied on a series of communications (associated with replacement of a steam 

 

8 Omaha Public Power District (Fort Calhoun Station, Unit 1), CLI-15-5, 81 NRC 329, 334 

(2015); see also Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), 

CLI-96-13, 44 NRC 315, 326 (1996) (recognizing that courts have found a Section 189a. 

hearing right where the NRC action “grant[ed] the licensee ‘greater operating authority’ or 

otherwise ‘altered the original terms of a license’” (internal citations omitted)). 

9 Fort Calhoun, CLI-15-5, 81 NRC at 338; see also Florida Power & Light Co. (St. Lucie Nuclear 

Power Plant), CLI-14-11, 80 NRC 167, 174 (2014). 

10 Fort Calhoun, CLI-15-5, 81 NRC at 334. 

11 Id. at 338. 

12 Id. at 336. 
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generator) that pertained to the NRC’s oversight of the facility.13 At bottom, we declined to 

accept the premise that each cited item was an element of a single licensing action. Rather, the 

communications pertained to ongoing oversight activities and did not approve or authorize any 

change to the license.14 Although our ruling in St. Lucie was grounded in timeliness,15 we 

emphasized that the proper avenue to challenge licensee actions (in that case, made under 

10 C.F.R. § 50.59) is likewise through a petition under 10 C.F.R. § 2.206.16 These decisions 

inform our analysis here. 

B. Events Leading to Friends of the Earth’s Hearing Request 

Friends of the Earth raises challenges associated with recent ongoing activities related 

to the seismic qualification of Diablo Canyon. We briefly described Diablo Canyon’s complex 

history with respect to its seismic design basis in CLI-15-14.17 As relevant here, the 

construction permits for Diablo Canyon were issued in 1968 and 1970 and therefore predated 

the current NRC regulations governing seismic design in 10 C.F.R. Part 100, Appendix A.18 

 

13 St. Lucie, CLI-14-11, 80 NRC at 174-75. 

14 Id. at 175. 

15 We rejected the hearing request in St. Lucie because it was not filed within sixty days of a 

licensing action that provided an opportunity to request a hearing. Id. at 172-75. 

16 Id. at 175; see CLI-15-14, 81 NRC at 734-35 (emphasizing in the context of this referral “that 

claims regarding inadequacies in a licensee’s technical evaluation or non-compliance with its 

license, standing alone, do not suffice to identify an activity that may constitute a license 

amendment”). 

17 CLI-15-14, 81 NRC at 731-32. 

18 See Office of Nuclear Reactor Regulation, NRC, Safety Evaluation of the Diablo Canyon 

Nuclear Power Stations Units 1 and 2 (Supp. 7 May 1978), at 1-2 (ADAMS accession no. 

ML14279A129) (SSER 7); Atomic Energy Commission, Part 50—Licensing of Production and 

Utilization Facilities, Part 100—Reactor Site Criteria Seismic and Geologic Siting Criteria, 38 

Fed. Reg. 31,279 (Nov. 13, 1973), as amended at 38 Fed. Reg. 32,575 (Nov. 27, 1973). 
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Diablo Canyon was originally designed to withstand both a “design earthquake,” which was 

thought to be the largest earthquake expected to occur during the life of the facility, and a 

“double design earthquake,” which doubled the expected ground motions of the design 

earthquake to add a safety margin.19 After construction began, the Hosgri Fault was discovered 

a few miles off the coast of the Diablo Canyon site, which necessitated plant modifications and 

reanalysis before NRC could approve the operating licenses.20 The NRC determined that the 

plant should be re-evaluated assuming a magnitude 7.5 earthquake along the Hosgri Fault.21 

Litigation during the operating license phase confirmed that the plant would survive the seismic 

loads associated with such an event.22 As a result, Diablo Canyon has three design basis 

earthquakes: the original Design Earthquake, the Double Design Earthquake, and the Hosgri 

Earthquake.23

 

19 SSER 7 at 1-2, 2-3 to 2-4. 

20 Id. at 1-2 to 1-4, ch. 3. 

21 Id. at 1-3; see also “Safety Evaluation Report Related to the Operation of Diablo Canyon 

Nuclear Power Plant,” NUREG-0675, Supplement 34 (June 1991), § 1.1, at 1-2 (ML14279A130) 

(SSER 34). 

22 See LBP-79-26, 10 NRC 453, 485, 507 (1979), aff’d, ALAB-644, 13 NRC 903 (1981); id. at 

485 (concluding, among other things, that “the requirement imposed by the Staff that a 7.5 

magnitude earthquake be used by [PG&E] in its seismic analysis is reasonable and meets 

regulatory requirements”). The Appeal Board’s decision both affirmed the Board’s decision and 

ruled on evidence taken after the record was reopened following the 1979 Imperial Valley 

earthquake (approximately 250 miles southeast of the Diablo Canyon site). ALAB-644, 13 NRC 

at 923-89. 

23 See SSER 7 at 2-3. In SSER 7, the Staff explained that it considered the “Hosgri event” 

(Hosgri Earthquake) as Diablo Canyon’s safe shutdown earthquake “or its equivalent,” while 

PG&E considered the Double Design Earthquake as the equivalent of the safe shutdown 

earthquake. Id. at 2-3 to 2-4. The Staff observed, “[t]his disagreement over which event is the 

safe shutdown earthquake has no bearing on plant safety since, whatever name is assigned to 
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A license condition required PG&E to develop and implement a program to reevaluate 

the seismic design bases used for Diablo Canyon.24 PG&E developed a program, called the 

Long-Term Seismic Program, or LTSP, and it reported its results to the NRC in 1988.25 The 

Staff’s 1991 Supplemental Safety Evaluation Report found that, subject to a confirmatory item, 

PG&E had satisfied the license condition, that the plant’s seismic qualification basis would 

continue to be the “original design basis plus the Hosgri evaluation basis,” and that future plant 

modifications would be reviewed in light of the higher LTSP spectra.26 PG&E also committed to 

continue to study seismic issues around Diablo Canyon.27

In 2008, a previously unknown fault, now designated the Shoreline Fault, was 

discovered near the Diablo Canyon plant as a result of PG&E’s ongoing activities under the 

LTSP.28 PG&E’s analysis concluded that the postulated peak ground motions from the 

Shoreline fault would not exceed the ground motions already evaluated.29 The NRC Staff then 

 

the event, we require that the plant design be shown to be adequate for the Hosgri event and 

the applicant is proceeding with the work necessary to demonstrate this.” Id. at 2-4. 

24 See “Pacific Gas and Electric Company, Diablo Canyon Nuclear Power Plant, Unit 1, Docket 

No. 50-275,” Facility Operating License, at 7 (ML053140349). 

25 See SSER 34, § 1.2, at 1-4. 

26 SSER 34, § 1.4, at 1-7. The Staff required PG&E to perform confirmatory analyses to assure 

that the seismic margins were acceptable to accommodate the Staff’s higher estimates for 84th

percentile vertical ground motions over the 1 to 10 Hz frequency range. Id. at 1-5 to 1-7. 

27 See SSER 34, § 2.5.2.4, at 2-49. Specifically, PG&E committed to continue to maintain a 

“strong geosciences and engineering staff” and to continue to operate a strong-motion 

accelerometer array in support of its studies. 

28 PG&E, “Report on the Analysis of the Shoreline Fault Zone, Central Coastal California: Report 

to the U.S. Nuclear Regulatory Commission (Jan. 2011), at ES-1 (ML110140431 (package)) 

(PG&E Shoreline Fault Report); see PG&E Appeal Brief at 3. 

29 See PG&E Shoreline Fault Report at ES-1 to ES-2, A2-18. 
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performed a confirmatory analysis of PG&E’s new data to determine whether a safety concern 

existed as a result of the identification of the Shoreline Fault.30 The Staff’s confirmatory 

evaluation, set forth in Research Information Letter 12-01, found that “potential ground motions 

from the Shoreline fault are bounded by the ground motions for which [Diablo Canyon] has been 

previously analyzed and shown to have an adequate safety margin.”31 In particular, the Staff 

concluded that the deterministic seismic-loading levels predicted for the analyzed Shoreline 

Fault earthquake scenarios are at or below those levels for the previously-evaluated Hosgri 

earthquake and LTSP ground motions.32

In March 2012—independent of its review of PG&E’s Shoreline Fault Report—the NRC 

Staff issued a request for information to all reactor licensees, including PG&E, calling for 

(among other things) seismic hazard reevaluations in response to recommendations of the 

NRC’s Near-Term Task Force review of the accident at Fukushima Dai-ichi.33 This request, 

issued pursuant to 10 C.F.R. § 50.54(f), detailed a two-phase approach for all licensees to 

reevaluate seismic hazards at their facilities. 

 

30 “Confirmatory Analysis of Seismic Hazard at the Diablo Canyon Power Plant from the 

Shoreline Fault Zone,” Research Information Letter 12-01 (Sept. 2012) (ML121230035) 

(Research Information Letter 12-01). 

31 Id. at 95. 

32 See id. at 60. 

33 See Letter from NRC to All Power Reactor Licensees and Holders of Construction Permits in 

Active or Deferred Status (Mar. 12, 2012) (ML12053A340) (requesting information pursuant to 

10 C.F.R. § 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) (Section 50.54(f) Request); Staff 

Requirements—SECY-11-0124—Recommended Actions to be Taken Without Delay from the 

Near-Term Task Force Report (Oct. 18, 2011) (ML112911571). 
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In an October 12, 2012, letter to PG&E, the Staff explained how it expected PG&E to 

proceed in analyzing new seismic data.34 The letter summarized the results of the Staff’s 

analysis, documented in Research Information Letter 12-01, that the Shoreline Fault should be 

considered a “lesser included case” under the Hosgri Earthquake evaluation and advised PG&E 

to update its FSAR to include the Shoreline scenario “in accordance with the requirements of 

10 CFR 50.71(e).”35 With respect to the Section 50.54(f) Request, the Staff stated that PG&E 

should use the Double Design Earthquake in preparing its response.36

While the activities discussed above were ongoing, PG&E filed, and then withdrew, a 

license amendment request related to seismic issues. In 2011—during the period that the Staff 

was conducting its analysis of the Shoreline Fault—PG&E requested a license amendment that 

would: 

(1) clearly define an evaluation process for newly identified 

seismic information and incorporate ongoing commitments 

associated with the Long Term Seismic Program (LTSP) into the 

[Updated Final Safety Analysis Report]; and (2) clarify, consistent 

with the NRC Supplemental Safety Evaluation Report 7, that the 

1977 Hosgri earthquake is the equivalent of [Diablo Canyon’s] 

safe shutdown earthquake, as defined in 10 CFR 100, Appendix 

 

34 Letter from Joseph Sebrosky, NRC, to Edward Halpin, PG&E (Oct. 12, 2012) (ML120730106) 

(regarding Diablo Canyon Power Plant, Unit Nos. 1 and 2 – NRC Review of Shoreline Fault) 

(October 12, 2012, Letter). 

35 Id. at 2; see also Research Information Letter 12-01 at xii-xiii. 

36 October 12, 2012, Letter at 3-4 (citing “Diablo Canyon Power Plant Units 1 and 2, Final Safety 

Analysis Report Update,” rev. 20 (Nov. 2011) (ML15009A024) (UFSAR Revision 20)) (“The 

NRC staff expects that [PG&E’s] response to the [Section 50.54(f) Request] will compare the 

updated probabilistic ground motion . . . with the ground motion in the plant’s current licensing 

basis that is stated as the equivalent of the [safe shutdown earthquake]. Consistent with [FSAR 

Revision 20] the [Double Design Earthquake] is the equivalent of the [safe shutdown 

earthquake] at [Diablo Canyon].”). 
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A,37 and (3) use the square-root-of-the-sum-of-squares (SRSS) 

method for the evaluations of load combinations.38

In October 2012, PG&E withdrew this license amendment request.39 PG&E stated that the 

Staff’s Section 50.54(f) Request established “an evaluation process” for new seismic 

information, which eliminated the need for the plant-specific evaluation process it had sought 

with the license amendment request.40 PG&E further stated that it would update the UFSAR as 

necessary to reflect the Staff’s conclusion “that the Shoreline scenario should be considered as 

a lesser included case under the [Hosgri Earthquake evaluation] . . . in accordance with the 

requirements of 10 CFR 50.71(e).”41 And with respect to the request for approval to use the 

SRSS method for evaluating seismic load combinations, PG&E stated that it was continuing to 

review whether a license amendment was necessary and that it might submit a new license 

amendment request in the future.42

 

37 See supra note 23; SSER 7 at 2-3 to 2-4. 

38 Letter DCL-11-097 from James Becker, PG&E to NRC Document Control Desk, (Oct. 20, 

2011) (ML11312A166), encl., “Evaluation of the Proposed Change” (regarding License 

Amendment Request 11-05, “Evaluation Process for New Seismic Information and Clarifying the 

Diablo Canyon Power Plant Safe Shutdown Earthquake”)) (License Amendment Request 11-

05). 

39 Letter DCL-12-108 from Barry Allen, PG&E, to NRC Document Control Desk (Oct. 25, 2012) 

(ML12300A105) (regarding withdrawal of License Amendment Request 11-05) (License 

Amendment Request Withdrawal). 

40 Id. at 2. 

41 Id.; see id., encl., “List of Regulatory Commitments,” at 1 (Commitment 1). 

42 License Amendment Request Withdrawal at 2-3. 
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PG&E submitted the twenty-first update to its FSAR in September 2013.43 The revision 

included changes to the geology and seismology discussion in Chapter 2 and the seismic 

design section of Chapter 3 that clarified the plant’s licensing history with respect to the Hosgri 

evaluation and the LTSP, and it summarized the evaluations of the Shoreline fault.44 A June 

2014 internal NRC staff memorandum—referred to in this proceeding as the “Bamford Memo”—

confirmed that UFSAR Revision 21 included the information required by regulation to be 

included in FSAR updates.45

C. Procedural Background 

In August 2014, Friends of the Earth requested a hearing and proposed two 

contentions.46 In Contention 1, Friends of the Earth argued that because the NRC was 

“conducting a de facto license amendment proceeding that has significant safety implications,” 

Friends of the Earth was entitled to a public hearing under section 189a. of the Atomic Energy 

 

43 “Diablo Canyon Power Plant Units 1 and 2 Final Safety Analysis Report Update,” rev. 21 

(Sept. 2013) (ML14269A007) (UFSAR Revision 21). 

44 Compare UFSAR Revision 21, § 2.5, at 2.5-1, 2.5-61 to -66, with UFSAR Revision 20, § 2.5, 

at 2.5-57 to -64, 2.5-73. UFSAR Revision 21 also reflected thirteen changes incorporated into 

the FSAR as a result of evaluations performed under 10 C.F.R. § 50.59 and four changes 

incorporated into the FSAR as a result of license amendments. UFSAR Revision 21, encl. 1 

(listing section 50.59 evaluations), encl. 2 (listing changes incorporated as a result of license 

amendments). Chapter 2 contains descriptions of the plant’s site characteristics and Chapter 3 

concerns the design of structures, systems, equipment, and components.

45 See Memorandum from Peter Bamford, NRC, to Michael Markley, NRC, “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). 

46 Friends of the Earth also requested that we empanel a Licensing Board to conduct an 

adjudicatory hearing regarding the ability of Diablo Canyon to be safely shut down in the event 

of an earthquake and that we order PG&E to suspend operations at Diablo Canyon pending a 

determination, following a hearing, that the plant can be safely operated. FOE Appeal at 4; 

Hearing Request at 7. 
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Act.47 In Contention 2, Friends of the Earth argued: “[the] NRC Staff’s determination that the 

new seismic information, including the Shoreline 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 

[ensure] that Diablo Canyon is operating safely with an adequate margin of safety.”48

Friends of the Earth cited four documents as evidence that the Staff has effectively 

allowed PG&E to alter the terms of its licenses. Its hearing request cited (1) the Section 50.54(f) 

Request; (2) Research Information Letter 12-01; and (3) the October 12, 2012, Letter.49 And in 

its reply to the Staff and PG&E’s answers, Friends of the Earth argued for the first time that the 

Bamford Memo constituted Staff “approval” of the changes reflected in UFSAR Revision 21.50

We referred Friends of the Earth’s request to the Board in part for a determination as 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” with respect to the seismic qualification 

of Diablo Canyon.51 We also denied portions of Friends of the Earth’s request, and we referred 

portions of the request to the Executive Director for Operations for consideration of Friends of 

the Earth’s arguments under 10 C.F.R. § 2.206.52

 

47 Hearing Request at 29. 

48 Id. at 47. 

49 These three documents were discussed in the Hearing Request at 14-18, 21-22, 42, 49-53. 

50 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. 

51 CLI-15-14, 81 NRC at 734. We directed that PG&E and the Staff be given the opportunity to 

address the claim regarding UFSAR Revision 21. Id. at 735. 

52 Id. at 737. We denied Friends of the Earth’s request for a hearing on operational safety and 

safe-shutdown, and we declined its request to suspend operations. The concerns underlying 
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Following the referral, Friends of the Earth supplemented its hearing request, arguing 

that the Staff’s actions pursuant to the Near-Term Task Force recommendations were part of a 

proceeding to informally amend the licenses.53 In support, Friends of the Earth cited PG&E’s 

March 2015 Seismic Hazard Report (responding to the Staff’s Section 50.54(f) Request) and the 

Staff’s response to licensees regarding the section 50.54(f) evaluations (referred to as the 

“Screen-In Letter”).54 Friends of the Earth argued that the Seismic Hazard Report showed that 

Diablo Canyon “could not comply with its seismic design basis” and that the Staff’s Screen-In 

Letter had modified the license by authorizing the plants’ “continued operation” for two years 

while PG&E performs additional evaluations.55 Similarly, Friends of the Earth claimed that a 

December 2014 inspection report “approved” a PG&E operability determination, thereby 

 

these requests were likewise referred to the Executive Director for Operations for consideration 

under section 2.206. Id. at 736; see also Letter from Richard Ayres, Friends of the Earth, to 

Margaret Watford and Lisa Regner, Petition Managers, NRC (Feb. 8, 2016) (ML16040A221) 

(providing additional information in support of section 2.206 petition). The review of this petition 

is ongoing. 

53 Petitioner Friends of the Earth’s Motion to Allow Supplemental Briefing (June 5, 2015), 

Petitioner Friends of the Earth’s Supplemental Brief (June 19, 2015) (FOE Supplemental Brief);

see also Pacific Gas & Electric Company’s Response to FOE’s Supplemental Brief (June 26, 

2015) (PG&E Response to FOE Supplemental Brief), NRC Staff’s Response to Friends of the 

Earth’s Supplemental Brief (June 26, 2015).

54 FOE Supplemental Brief (citing Letter DCL-15-035 from Barry Allen, PG&E, to NRC 

Document Control Desk (Mar. 11, 2015) (ML15070A607) (March 2015 Seismic Hazard Report) 

(transmitting encl. 1, “Seismic Hazard and Screening Report”)); see Letter from William Dean, 

NRC, to Mark Reddeman, Energy Northwest, Edward Halpin, PG&E, and Randall Edington, 

Arizona Public Service Co. (May 13, 2015) (ML15113B344) (Screen-In Letter). 

55 FOE Supplemental Brief at 6-8. 
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modifying the licenses by allowing the plant to continue operating when, in Friends of the 

Earth’s view, it should have been shut down.56

After taking supplemental briefs and hearing oral argument, the Board found that Friends 

of the Earth had not shown any de facto amendment of PG&E’s licenses.57 The Board 

considered each of the documents that Friends of the Earth cited in support of its claims and 

concluded that none had expanded PG&E’s operating authority or altered the terms of the 

licenses. Because the Board found that no license amendment had been approved by the 

NRC, and therefore that Friends of the Earth had not established a right to request a hearing, it 

did not reach the question of the admissibility of Contention 2.58 Friends of the Earth’s appeal 

followed.59 

 

56 Id. at 18-20; see Letter from Wayne Walker, NRC, to Edward Halpin, PG&E (Dec. 15, 2014) 

(ML14349A485) (December 2014 Inspection Report). 

57 LBP-15-27, 82 NRC at 190, 192-98; see also NRC Staff Answer to Friends of the Earth’s De 

Facto License Amendment Claims Related to PG&E’s Updated Final Safety Analysis Report, 

Revision 21 (June 15, 2015); Pacific Gas & Electric Company’s Supplemental Brief Regarding 

UFSAR Revision 21 (June 15, 2015). 

58 LBP-15-27, 82 NRC at 190-91. Nor did the Board reach the question of Friends of the Earth’s 

standing. Id. at 189. Because we affirm the Board’s decision on Friends of the Earth’s 

Contention 1, we likewise reach neither issue. 

59 After briefing on its appeal was completed, Friends of the Earth submitted a letter arguing that 

a November 2015 inspection report (issued subsequent to the Board’s ruling) provides 

additional support for its claims. Letter from Richard Ayres, Friends of the Earth, to 

Commissioners, NRC (Jan. 14, 2016) (regarding “Recent NRC Staff Inspection Report Relevant 

to Diablo Canyon Power Plant De Facto License Amendment Proceeding, Docket Nos. 50-275 

and 50-323”) (FOE Supplement to Appeal). Friends of the Earth’s letter did not address the 

good cause factors for supplementing a hearing request found in 10 C.F.R. 

§ 2.309(c). The particular inspection finding that Friends of the Earth points to relates to 

PG&E’s continued assessment of the SRSS method for evaluating load combinations. See

Letter from Richard Smith, NRC to Edward Halpin, PG&E (Nov. 13, 2015), encl. at 11 

(ML15317A216) (November 2015 Inspection Report). Although it is improper for Friends of the 

Earth to supplement its petition or otherwise raise new issues on appeal, we have considered 

Friends of the Earth’s letter, as well as PG&E’s response to it, as a matter of discretion. See
- 14 - 

 DISCUSSION 

A. Standard of Review 

Friends of the Earth appeals the denial of its hearing request under 10 C.F.R. 

§ 2.311(c).60 Absent error of law or abuse of discretion, we give “substantial deference” to the 

Board’s rulings on threshold procedural matters such as standing and contention admissibility.61 

We referred this matter to the Board with a clear description of the applicable law.62 As 

explained below, the Board’s conclusions reflect no error of law or abuse of discretion, and we 

affirm its decision. 

B. The Board’s Decision 

The Board found that none of the communications and other documents Friends of the 

Earth cited in its hearing request or supplemental brief had the effect of granting PG&E greater 

operating authority or otherwise altering the terms of the licenses and therefore determined that 

Friends of the Earth was not entitled to an opportunity to request a hearing under Atomic Energy 

Act section 189a.63 The Board began its analysis by recognizing that hearing rights may be 

triggered when “the substance of an NRC action, while not formally labeled a license 

 

Letter from David Repka, Winston & Strawn, to the Commission (Feb. 9, 2016) (Response to 

Friends of the Earth letter dated January 14, 2016). For further discussion of the inspection 

report, see section II.C.5, infra.

60 Section 2.311(c) provides, as relevant here, that an order denying a request for hearing is 

appealable as to the question whether the hearing request should have been granted. 

61 See, e.g., AmerGen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 

64 NRC 111, 121 (2006). 

62 CLI-15-14, 81 NRC at 734-35. 

63 LBP-15-27, 82 NRC at 198. 
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amendment, in effect accomplishes the same thing.”64 The Board recognized that a petitioner 

cannot create the opportunity for a hearing simply by claiming that a licensee is operating in 

violation of its license: “[s]uch claims are appropriately raised in a petition to initiate an 

enforcement proceeding under 10 C.F.R. § 2.206.”65 The Board also held that a change must 

have the Staff’s approval in order to constitute a de facto license amendment, but not every 

Staff approval constitutes a license amendment.66

The Board then examined each of the documents Friends of the Earth cited in its 

hearing request and concluded that none of the documents effected or evidenced a change in 

the operating authority or terms of PG&E’s licenses. With respect to the Staff’s Section 50.54(f) 

Request, the Board observed that the stated purpose of the request was to “provide additional 

information to enable the NRC to determine whether future changes to any of the plants’ design 

bases might be warranted,” and the letter explicitly stated that the evaluations provided in 

response would “not revise the design basis of the plant.”67 Noting that our case law does not 

provide for an adjudicatory hearing based on “speculative changes to a plant’s licensing basis,” 

the Board found no de facto amendment from the Section 50.54(f) Request.68 The Board next 

found that neither Research Information Letter 12-01 nor the October 12, 2012, Letter altered 

the Diablo Canyon licenses. The Board found that these documents were part of the Staff’s 

 

64 Id. at 191. 

65 Id. at 192. 

66 Id. at 191 & n.41 (citing Perry, CLI-96-13, 44 NRC at 328). 

67 Id. at 193. 

68 Id. (citing Fort Calhoun, CLI-15-5, 81 NRC at 338). 
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regulatory oversight activities and did not give rise to a hearing opportunity.69 Moreover, it found 

that the “Hosgri Earthquake has been an established part of the Diablo Canyon design basis 

since the facility began operation.”70 Further, the Board rejected the argument that the Staff 

approved a change in the licenses by accepting, via the Bamford Memo, UFSAR Revision 21. 

The Board explained that an FSAR update is a “reporting requirement,” which the Staff reviews 

for completeness and timeliness, not for substance.71 Any unauthorized substantive changes in 

the FSAR “would be a matter for NRC oversight, not for adjudication.”72

The Board also found the claims in Friends of the Earth’s supplemental brief to be 

unpersuasive.73 The Board found that PG&E’s Seismic Hazards Report, standing alone, could 

not be a license amendment because a licensee cannot grant itself a license amendment.74 

Moreover, the Staff’s Screen-In Letter—which was addressed to a group of power reactor 

licensees—had not approved a change in any of the licenses; rather, it described the next steps 

in an ongoing oversight process relating to the agency’s post-Fukushima activities.75 The Board 

observed that the Screen-In Letter acknowledges that the evaluations might eventually require 

amendments to affected licenses but that the “mere possibility of a future license amendment 

 

69 Id. at 193-95. 

70 Id. at 194. 

71 Id. at 195-96. 

72 Id. at 196. 

73 The Board noted that there was a “substantial question” whether any of the matters in the 

supplemental brief were within the scope of the referral. Because it found the arguments 

substantively unpersuasive, however, it did not address this question. Id. at 196 n.71. 

74 Id. at 197-98. 

75 Id. 
- 17 - 

. . . does not trigger a hearing opportunity today.”76 And finally, the Board rejected Friends of 

the Earth’s arguments with respect to the Staff’s December 2014 inspection report because 

Staff oversight activities “ensure compliance with existing requirements” and are distinct from 

processes that could authorize such a change.77

C. Friends of the Earth’s Appeal 

This dispute centers around Friends of the Earth’s argument that, since the discovery of 

the Shoreline Fault, PG&E and the Staff have engaged in a series of actions that have revised 

the Diablo Canyon licenses to allow continued plant operation despite “potentially more powerful 

faulting” offshore from the plant.78 More specifically, Friends of the Earth argues that PG&E and 

the Staff have improperly “added” the Hosgri Earthquake evaluation to the Diablo Canyon 

licensing basis by virtue of several asserted actions memorialized in a series of documents 

presented to the Board. Central to Friends of the Earth’s claims is that the Hosgri Earthquake 

evaluation involved less conservative methods for evaluating seismic risk than have previously 

been used. 

To resolve this dispute, the Board closely parsed these documents; we consider the 

Board’s assessment below. We conclude that the Board did not err in its assessment. No 

license amendment has taken place—the Hosgri evaluation has been part of the plant’s seismic 

design and licensing bases for many years—well prior to the Shoreline Fault analyses that have 

 

76 Id. at 198; see Screen-In Letter at 1 (“The purpose of [the Section 50.54(f) Request] was to 

gather information concerning seismic hazards at operating reactor sites and to enable the NRC 

staff to determine whether licenses should be modified, suspended, or revoked.”). 

77 LBP-15-27, 82 NRC at 196-97. 

78 FOE Appeal at 2. 
- 18 - 

been performed since 2008 and well prior to the Staff’s current efforts related to seismic hazard 

reevaluation at all operating plant sites. 

1. The Board Considered Whether There Was 

A “Proceeding” to Amend the Diablo Canyon Licenses 

Friends of the Earth views its de facto license amendment claim as positing a series of 

events that, taken together, have the effect of amending the Diablo Canyon operating licenses. 

Thus, it claims that the Board “failed to consider whether the Staff has engaged in a 

‘proceeding’ to de facto amend Diablo Canyon’s licenses.”79 In this vein, Friends of the Earth 

argues that the Board erroneously looked at each activity singly, rather than consider the total 

effect of the activities. 

We disagree. The record reflects that the Board considered the total effect of the 

communications and activities to support its determination that “none involve[d] the NRC’s 

granting to PG&E greater authority than that provided by its existing licenses or otherwise 

altering their terms.”80 The Board—consistent with our precedent—went on to discuss 

individually each document and Staff action that Friends of the Earth cited in its hearing request 

and supplemental filings and explained why each document neither accomplished a change in 

the license nor granted PG&E greater operating authority. The Board’s thoroughness in 

addressing each individual item does not undermine its broader conclusion that there has been 

no amendment to PG&E’s existing licenses. In fact, it serves to strengthen the Board’s 

conclusion. 

Nor do we interpret the Board’s ruling to hold that a series of Staff actions, taken 

together, could not alter the terms of a license and constitute a de facto license amendment. 

 

79 FOE Appeal at 10, 29. 

80 LBP-15-27, 82 NRC at 192. 
- 19 - 

But to support such a claim, a Staff action increasing the licensee’s operating authority or 

changing the terms of a license must be complete or have taken effect. Friends of the Earth’s 

argument that a change is under way would effectively require us to hold hearings on a host of 

ongoing Staff oversight activities that might, at some unspecified future time, lead to a license 

amendment. But as we have held, “NRC oversight activities gathering information about and 

evaluating plant performance” do not amend a license and therefore “cannot form the basis for 

the right to request a hearing.”81 We find that the Board appropriately distinguished between the 

Staff’s oversight activities and the license amendment process. Friends of the Earth cannot 

erase this distinction by recasting oversight activities as a “process” for amending a license 

informally. To gain an adjudicatory hearing on a claim of a de facto license amendment, 

Friends of the Earth must show that an alteration in the license has taken place. It has not 

shown that the Board erred in its assessment of this issue. 

2. The Staff Did Not “Approve” Changes to Diablo Canyon’s Licenses 

By “Accepting” UFSAR Revision 21 

Friends of the Earth argues that the Board erred when it found that the Staff had not 

approved changes contained in UFSAR Revision 21.82 By way of background, the FSAR is part 

of the application for an operating license and must “include information that describes the 

facility, presents the design bases and the limits on its operation, and presents a safety analysis 

of the structures, systems, and components and of the facility as a whole.”83 Each operating 

 

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

82 FOE Appeal at 10-14. 

83 10 C.F.R. § 50.34(b); see id. §§ 50.34(b)(1)-(12) (setting forth contents of the FSAR); 

 50.4(b)(6) (requirements for submission of FSAR updates), 50.59(a)(4) (defining FSAR, as 

updated, as “the Final Safety Analysis Report . . . submitted in accordance with § 50.34, as 
- 20 - 

license holder must periodically update its FSAR, pursuant to 10 C.F.R. § 50.71(e), “to assure 

that the information included in the [FSAR] contains the latest information developed.”84 Section 

50.71(e) is a reporting requirement, intended “to insure that an updated FSAR will be 

available.”85 At the time of section 50.71(e)’s implementation, the NRC made clear that 

“[s]ubmittal of updated FSAR pages does not constitute a licensing action but is only intended to 

provide information.”86 And as the Staff observed before the Board, the Staff reviews FSAR 

updates submitted pursuant to section 50.71(e) only “as part of its oversight to ensure 

compliance with existing requirements.”87

The Board observed that section 50.71(e) does not provide for Staff “approval” of the 

revisions.88 The Board concluded, in short, that the Staff’s acceptance of Revision 21 did not 

constitute a de facto license amendment because section 50.71(e) is only a reporting 

 

amended and supplemented, and as updated per the requirements of § 50.71(e) or § 50.71(f), 

as applicable”). 

84 10 C.F.R. § 50.71(e). Each FSAR update must include changes made via license 

amendment and changes made pursuant to 10 C.F.R. § 50.59. Id. § 50.71(e)(2). And it must 

contain certain changes to the quality assurance program description. Id. § 50.54(a)(3). The 

rule’s stated purpose is “to provide an updated reference document to be used in recurring 

safety analyses performed by the licensee, the Commission, and other interested parties. Final 

Rule, Periodic Updating of Final Safety Analysis Reports, 45 Fed. Reg. 30,614, 30,614 (May 9, 

1980) (FSAR Update Final Rule). 

85 FSAR Update Final Rule, 45 Fed. Reg. at 30,615. 

86 Id. Further, the update “is not intended for the purpose of re-reviewing plants.” Id.

87 Staff Brief on UFSAR Revision 21, at 4 (citing FSAR Update Final Rule, 45 Fed. Reg. at 

30,615 (“The material submitted [under section 50.71(e)] may be reviewed by the NRC staff but 

will not be formally approved.”)). 

88 LBP-15-27, 82 NRC at 195 (citing 10 C.F.R. § 50.71(e)). 
- 21 - 

requirement that does not require Staff “approval.”89 By the plain language of the regulation, an 

FSAR update must reflect both license amendments (which will have already undergone a 

formal approval process) and changes that fall under 10 C.F.R. § 50.59, which applies to those 

matters that do not require NRC Staff preapproval. Moreover, the Board observed that if the 

revision included any changes “without proper authorization or analysis, that would be a matter 

for NRC oversight, not for adjudication.”90

Friends of the Earth asserts that while it may normally be the case that the Staff does 

not review or approve FSAR updates, the Board disregarded the particular facts in this case.91 

We disagree. As an initial matter, as the Board observed, the Staff’s review of a UFSAR 

revision under section 50.71(e), standing alone, cannot constitute a de facto license 

amendment. And the Board’s ruling that the Staff does not “approve” FSAR updates accurately 

reflects the operative regulation. Moreover, we are not persuaded by Friends of the Earth’s 

assertion that, despite the Staff’s normal practice of not “approving” FSAR updates, in this 

particular case the Staff endorsed the changes. The Bamford Memo is an internal Staff 

memorandum—not addressed to PG&E—that summarizes the update’s contents.92 The 

Bamford Memo does no more than confirm that UFSAR Revision 21 was timely submitted and 

 

89 Id. 

90 Id. at 196. 

91 FOE Appeal at 11-12. 

92 See Bamford Memo at 1. The Bamford Memo is roughly akin to a short checklist, in that it 

simply memorializes the license amendments, inspection reports, and licensee event reports 

that affected the UFSAR during the update period. 
- 22 - 

appropriately discussed license amendments, inspection reports, and Licensee Event Reports, 

as required by section 50.71(e). 

Friends of the Earth additionally points to a PG&E document—a “UFSAR change 

request”—and attaches significance to remarks in that request referring to NRC 

correspondence.93 The request, which appears to be an internal PG&E form that is not 

submitted to the NRC (and thereby is not relevant to the agency’s decision-making process), 

does not support Friends of the Earth’s claim. References to NRC documents and 

correspondence in an internal PG&E document cannot, and do not, transform Revision 21 into a 

request for NRC approval, nor do they represent alterations to the license in and of 

themselves.94 In short, nothing in the record reflects that PG&E requested, or the Staff 

 

93 FOE Appeal at 13; see FOE Supplemental Brief, Exhibit 1, DCPP Form 69-20108 UFSAR 

Change Request (June 9, 2013), at 102 (unnumbered) (ML15170A452) (UFSAR Change 

Request). The request notes that the proposed revisions to Revision 21 “involve changes to the 

UFSAR that explicitly identify the licensing basis design requirements and their bases submitted 

to, and approved by, the NRC in docketed correspondence,” and that the changes “are derived 

from correspondence with the NRC, NRC regulatory documentation, and specific UFSAR text.” 

Id. at 102. And a different page of the “change request” states that changes “explicitly identify 

the licensing basis design requirements” and “provide clarification.” Id. at 101. 

94 See St. Lucie, CLI-14-11, 80 NRC at 173 (observing that “[a] licensee cannot amend the 

terms of its license unilaterally”). Friends of the Earth makes much of the comment in the 

change request that the update identifies licensing basis documents “submitted to, and 

approved by, the NRC in docketed correspondence.” But section 50.71(e) requires this very 

information—the update must contain “all the changes necessary to reflect information and 

analyses submitted to the Commission by the . . . licensee or prepared by . . . the licensee 

pursuant to a Commission requirement since the submittal of the original FSAR, or as 

appropriate, the last update to the FSAR under this section,” including evaluations performed by 

the licensee in support of “approved license amendments.” To the extent that Revision 21 

contained information “approved by” the NRC, we understand this reference to pertain to 

information that was previously approved via license amendments and not to approval of a 

revised seismic analysis, as Friends of the Earth suggests. 
- 23 - 

approved, changes to the Diablo Canyon operating licenses in conjunction with UFSAR 

Revision 21. 

3. The Board Did Not Err in Finding that the Hosgri is a Design Basis Earthquake 

Friends of the Earth next argues that, prior to UFSAR Revision 21, the Hosgri 

Earthquake evaluation “was not the plant’s safe shutdown earthquake and, therefore, was not 

part of its seismic design basis.”95 Friends of the Earth therefore contends that the Board erred 

when it found that the Hosgri Earthquake has been part of the design basis “since the facility 

began operation.”96 Friends of the Earth contends that nuclear power plants have only two 

design basis earthquakes—the operating basis earthquake and the safe shutdown 

earthquake.97 It argues that the Hosgri Earthquake is neither of these and, prior to UFSAR 

Revision 21, the Hosgri Earthquake evaluation played a “lesser role,” such that it was not part of 

the plant’s design basis.98

The Board did not err in its determination that the Hosgri Earthquake has long been part 

of Diablo Canyon’s seismic design basis and was not “added” by UFSAR Revision 21 or any of 

the Staff’s and PG&E’s actions at issue here. Friends of the Earth misconstrues the changes 

made by UFSAR Revision 21. The Board’s conclusions regarding the Hosgri Earthquake are 

well supported by the record, including the extensive litigation over the plant’s capability to 

 

95 FOE Appeal at 15. 

96 Id. at 15-21 (citing LBP-15-27, 82 NRC at 194, 197). 

97 Id. at 17, 18. 

98 Id. at 18. 
- 24 - 

withstand a Hosgri Earthquake at the operating license stage and the Staff’s safety evaluations 

dating back to 1978.99

By definition, a plant’s “design bases” are those “values chosen for controlling 

parameters as reference bounds for design” and “requirements derived from analysis . . . of the 

effects of a postulated accident for which a structure, system, or component must meet its 

functional goals.”100 Diablo Canyon was modified and qualified to withstand the higher ground 

acceleration produced by the Hosgri Earthquake, making such analyses and modifications by 

definition part of the plant’s design basis. Even prior to the clarification in UFSAR Revision 21, 

the FSAR described the Hosgri as the earthquake potentially producing the maximum ground 

motions at the site.101 Therefore, the Board did not err in concluding that Revision 21 did not 

“add” the Hosgri Earthquake to the plant’s seismic design basis.102

Nor does Friends of the Earth identify any change in UFSAR Revision 21 that revises 

the design basis of the plant. For example, Friends of the Earth points to changes in UFSAR 

section 2.5, “Geology and Seismology,” in support of its arguments that Revision 21 “inserts” the 

 

99 See LBP-15-27, 82 NRC at 194 (citing LBP-79-26, 10 NRC at 499, ALAB-644, 13 NRC at 

923); id. at 194 n.56 (citing SSER 7 at 2-4; SSER 34 at 1-7). 

100 See 10 C.F.R. § 50.2. 

101 See, e.g., UFSAR Revision 20 at 2.5-58, 2.5-73, 3.7-1 to 3.7-2. Although these sections are 

included in Revision 20, some had not been changed throughout many FSAR updates. See, 

e.g., id. at 3.2-1 to 3.2-2 (footers indicate that the pages appeared in Revision 15, 2003). 

102 In support of this argument Friends of the Earth also argues that the Board erred in relying on 

SSER 7 to find that the Hosgri Earthquake was part of the plant’s licensing basis, because that 

report was published prior to issuance of the operating licenses. FOE Appeal at 19. But the 

fact that the Staff considered the Hosgri Earthquake prior to issuing the licenses supports, 

rather than undermines, the claim that the Hosgri Earthquake has long been a part of Diablo 

Canyon’s design and licensing basis. See LBP-15-27, 82 NRC at 194 n.56 (citing SSER 7). 
- 25 - 

Hosgri Earthquake and the LTSP into the plant’s design basis.103 But these changes simply 

described and clarified the history of the seismic investigations at Diablo Canyon.104 On their 

face, these descriptions do not change the design basis of the plant. Moreover, Friends of the 

Earth acknowledges that UFSAR Revision 21 did not change FSAR statements that the “safe 

shutdown earthquake” of Appendix A is the equivalent of the Double Design Earthquake.105 And 

with respect to the LTSP—which PG&E acknowledges is not part of the plant’s design basis—

the discussion added in Revision 21 expressly states that the analysis did not “replace or 

modify” the Design, Double Design, and Hosgri Earthquakes (that is, the original design basis 

earthquakes).106 In short, Friends of the Earth does not show that UFSAR Revision 21 

changed—or purported to change—the seismic design basis of Diablo Canyon. 

4. Diablo Canyon’s Seismic Evaluations Have Not Amended the Licenses 

Friends of the Earth also claims that the Staff granted PG&E greater operating authority 

by permitting PG&E to assess new seismic information against the Hosgri Earthquake and the 

ground motions analyzed in the LTSP.107 Friends of the Earth argues that prior to UFSAR 

Revision 21, the Double Design Earthquake was clearly Diablo Canyon’s “maximum 

 

103 FOE Appeal at 22-23. 

104 Compare UFSAR Revision 21, § 2.5, at 2.5-1, 2.5-61 to -66, with UFSAR Revision 20, 

§ 2.5.2.9, at 2.5-57 to -64, 2.5-73. 

105 See FOE Appeal at 23 n.72 (citing FSAR Revision 21 at 3.2-1). The relevant section, which 

has not been revised since the fifteenth revision in 2003, explains that plant features important 

to safety have been analyzed against the Hosgri, Design, and Double Design earthquakes. 

Compare UFSAR Revision 21, § 3.2.1, with UFSAR Revision 20, § 3.2.1. 

106 UFSAR Revision 21, § 2.5.3.10.4, at 2.5-67. 

107 FOE Appeal at 21-24. 
- 26 - 

earthquake.”108 Therefore, it argues, PG&E must compare new seismic information to the 

Double Design Earthquake and that comparing the Shoreline Fault risk to the Hosgri 

Earthquake or the 1991 LTSP evaluation reduces the safety margins and thereby alters the 

licensing basis of the plant.109

Here, Friends of the Earth conflates regulatory oversight with a licensing action. The 

Board found that the Staff’s investigations of new seismic information, both in connection with its 

post-Fukushima activities and with the Diablo Canyon-specific analyses, were performed in the 

course of its regulatory oversight duties and did not affect the plant’s licenses.110 The Board 

correctly explained that the Staff’s analysis documented in Research Information Letter 12-01 

was performed to determine whether the plant could continue to operate safely and made “no 

conclusions whatsoever regarding the Diablo Canyon operating licenses.”111 The analyses 

comparing the potential hazard from the Shoreline Fault to the Hosgri evaluation did no more 

than confirm that Diablo Canyon is operating within its existing design and licensing bases. 

Similarly, the Board did not err in finding that the Section 50.54(f) Request was 

undertaken as an exercise of the Staff’s regulatory oversight.112 Friends of the Earth has not 

demonstrated that gathering new information or reanalyzing existing information changes the 

 

108 Id. at 21. 

109 Id. at 23-24. 

110 LBP-15-27, 82 NRC at 193-95 (concerning Research Information Letter 12-01 and the 

October 12, 2012, Letter). 

111 Id. at 193-94. 

112 Id. at 192 (characterizing section 50.54(f) requests issued to all power reactors as “requests 

for information to allow the NRC to determine whether, as to each facility, it should or should not 

require additional action”). 
- 27 - 

operating authority of Diablo Canyon. Although the Section 50.54(f) Request directed licensees 

to conduct seismic hazard reevaluations using new information and updated methodologies, the 

request itself expressly stated that it did not alter the facilities’ licensing bases.113 The request 

explained that the purpose of gathering the information was to determine whether further 

regulatory action (which could include license modifications) would be needed.114 In sum, the 

Board did not err in finding that the Staff did not amend the Diablo Canyon operating licenses 

when it directed PG&E to perform the seismic hazard reevaluation under Section 50.54(f). 

Likewise, Friends of the Earth argues that the Board erred in finding that the December 

2014 Inspection Report did not constitute a de facto license amendment because the Board 

incorrectly concluded that an inspection report could never constitute a de facto amendment.115 

But Friends of the Earth’s argument with respect to the December 2014 Inspection Report 

ultimately confuses oversight with licensing. PG&E’s operability determination does not purport 

to alter its design basis.116 Nor does the Staff’s finding of no violation constitute an approval of 

any change.117 Thus we find no error in the Board’s determination that December 2014 

Inspection Report did not constitute a de facto amendment.118

 

 

113 Section 50.54(f) Request at 4. 

114 Id. at 1, 3, 4; see also id., encl. 1 at 1. 

115 FOE Appeal at 29. 

116 December 2014 Inspection Report, encl. at 3. 

117 Id., encl. at 6. 

118 LBP-15-27, 82 NRC at 197. 
- 28 - 

5. The Board Did Not Err in Its Assessment of License Amendment Request 11-05 

Finally, Friends of the Earth argues that the Board erred in its treatment of PG&E’s filing 

and subsequent withdrawal of License Amendment Request 11-05. The Board stated that it 

attached “little if any significance” to the fact that PG&E applied for a license amendment and 

later withdrew the application.119 Friends of the Earth argues that PG&E’s “subjective belief” 

that a license amendment was needed to designate the Hosgri Earthquake as the plant’s safe 

shutdown earthquake “is probative to this matter.”120

We find no error in the Board’s treatment of this issue. The critical inquiry is not what 

might have motivated PG&E to withdraw its license amendment request, but rather whether any 

changes that were proposed to be made through the request and that required a license 

amendment have been accomplished by some other means. The record reflects that the 

changes that would have been sought through the license amendment request have not 

otherwise occurred. First, the request would have established the Hosgri Earthquake as the 

“equivalent” of Diablo Canyon’s safe shutdown earthquake as that term is defined in Part 100, 

Appendix A.121 But as discussed above, UFSAR Revision 21, like the previous iterations of the 

FSAR, continues to state that the Double Design Earthquake is the equivalent of the safe 

shutdown earthquake for Diablo Canyon; thus, the change that would have been sought via the 

license amendment request has not been made via any other mechanism.122

 

119 Id. at 191 n.39. 

120 FOE Appeal at 24-26. 

121 License Amendment Request 11-05, encl. at 2-3, 5, 16, 22. 

122 In accordance with its commitment in withdrawing the license amendment request, PG&E, in 

its response to the Staff’s Section 50.54(f) Request, used the Double Design Earthquake as its 
- 29 - 

Second, the request would have added to Diablo Canyon’s technical specifications a 

new program describing a process for evaluating new seismic information.123 In its withdrawal 

notice, PG&E represented that the license amendment request was no longer needed because 

the Staff’s Section 50.54(f) Request had defined a process for reevaluating the current licensing 

bases using new information and current methodologies.124 To be sure, the reevaluation itself 

may lead to further action—including amendments to Diablo Canyon’s licenses or licensing 

basis.125 If the reevaluations require a license amendment, as the Board observed, at that time 

the public—including Friends of the Earth—would have the opportunity to participate consistent 

with applicable rules.126

 

safe shutdown earthquake to determine that the plant “screens in” for further evaluation. See

March 2015 Seismic Hazards Report at 2-3. 

123 License Amendment Request 11-05, encl. at 11. 

124 See License Amendment Request Withdrawal at 2. See Section 50.54(f) Request, encl. 1 at 

4-5 (citing “A Performance-Based Approach to Define the Site-Specific Earthquake Ground 

Motion,” Regulatory Guide 1.208 (Mar. 2007) (ML070310619); “An Approach to the 

Quantification of Seismic Margins in Nuclear Power Plants,” NUREG/CR-4334 (Aug. 1985) 

(ML090500182)). Licensees were directed to “reevaluate the seismic hazard at their sites using 

updated seismic hazard information and present-day regulatory guidance and methodologies,” 

using a probabilistic approach or a seismic margins assessment. 

125 In this vein, Friends of Earth claims that “[l]eaving Diablo Canyon’s Technical Specifications 

unaltered in this case violates regulations requiring certain information, including an evaluation 

method for new seismic data, to be incorporated into the plant’s Technical Specifications.” FOE 

Appeal at 26; see License Amendment Request 11-05, attachs. 1 & 2. Because the 

amendment to incorporate a process for the evaluation of new seismic information was not 

made, no changes to the Technical Specifications were made. And the Section 50.54(f) 

Request did not amend the plant licenses such that a technical specification change was 

needed. 

126 See LBP-15-27, 81 NRC at 192. 
- 30 - 

The third change PG&E sought in the license amendment request, concerning a change 

in methods for combining calculated loads, is under consideration in the section 50.59 process, 

but it has not been made. Friends of the Earth's supplemental letter addresses this issue. 

Particularly, Friends of the Earth argues, referencing a November 2015 inspection report, that 

the Staff has effectively amended the Diablo Canyon licenses by allowing the plant to continue 

to operate despite the fact that the Staff determined that PG&E had not adequately documented 

its section 50.59 evaluation with respect to the change of methods to calculate the loads.127 The 

inspection report identified this performance deficiency as a Severity Level IV violation, which 

the Staff treated as a non-cited violation; the issue was entered into PG&E’s corrective action 

program and will be addressed by PG&E through a re-evaluation of the methodology change; 

any required actions will thereafter be implemented.128 Should PG&E determine that this 

change to the FSAR does not require an amendment, that determination may be challenged 

through a section 2.206 petition.129 If a license amendment is required, then a hearing 

opportunity will be available at that time—a possibility that PG&E itself acknowledged.130

This example illustrates the overarching flaw in Friends of the Earth’s reasoning in this 

case. If PG&E were to inappropriately make a change to its licensing basis without NRC 

approval, it has not amended its licenses. Rather, PG&E would be out of compliance with its 

 

127 FOE Supplement to Appeal at 2; see November 2015 Inspection Report at 11-12. 

128 November 2015 Inspection Report at 12, 13. 

129 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), 

CLI-12-20, 76 NRC 437, 439 n.10 (2012) (citing Yankee Atomic Electric Co. (Yankee Nuclear 

Power Station), CLI-94-3, 39 NRC 95, 101 n.7 (1994)). 

130 License Amendment Request Withdrawal at 3. 
- 31 - 

licenses and corrective action is appropriately imposed via the inspection and enforcement 

process. 

We find no error in the Board’s determination to ascribe little weight to PG&E’s actions 

with respect to License Amendment Request 11-05, particularly in view of the fact that the 

changes sought therein have not otherwise been made. 

 CONCLUSION 

For the foregoing reasons, we find that Friends of the Earth has not shown that the 

Board committed error of law or abused its discretion in determining that there has been no de 

facto amendment of the Diablo Canyon operating licenses and therefore that no opportunity to 

request a hearing has accrued to Friends of the Earth. We affirm the Board’s decision in 

LBP-15-27. 

IT IS SO ORDERED. 

 For the Commission 

NRC Seal 

 /RA/ 

 ___________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 2nd day of June, 2016. 
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-16-09) have been served upon the following persons by the Electronic Information 

Exchange and by electronic mail. 

U.S. Nuclear Regulatory Commission 

Atomic Safety and Licensing Board Panel 

Mail Stop: T-3F23 

Washington, DC 20555-0001 

Paul S. Ryerson, Chairman 

Administrative Judge 

E-mail: paul.ryerson@nrc.gov

Dr. Gary S. Arnold 

Administrative Judge 

E-mail: gary.arnold@nrc.gov

Nicholas G. Trikouros 

Administrative Judge 

E-mail: nicholas.trikouros@nrc.gov

Alana Wase, Law Clerk 

alana.wase@nrc,gov

 

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop: O-15D21 

Washington, DC 20555-0001 

Catherine Scott, Esq. 

Catherine.Scott@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, Esq. 

E-mail: mitzi.young@nr.gov

Catherine E. Kanatas, Esq. 

catherine.kanatas@nrc.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-16-09) 

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

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 2nd day of June, 2016