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 AND ELECTRIC COMPANY 

(Diablo Canyon Nuclear Power Plant, Units 1 and 2) 

Docket Nos. 50-275-LR, 

 50-323-LR 

CLI-15-21

MEMORANDUM AND ORDER

Friends of the Earth has appealed the Atomic Safety and Licensing Board’s ruling in 

LBP-15-6, in which the Board denied Friends of the Earth’s petition to intervene and its related 

request to waive certain regulations that govern the scope of this license renewal proceeding.1 

For the reasons set forth below, we affirm the Board’s ruling. 

I. BACKGROUND 

In November 2009, Pacific Gas and Electric Company (PG&E) applied to renew the 

operating licenses for Diablo Canyon Units 1 and 2 for an additional twenty years.2 The NRC 

 

1 Friends of the Earth’s Notice of Appeal of LBP-15-6 (Mar. 9, 2015); Brief of Friends of the 

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

(2015). 

2 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for 

Facility Operating License Nos. DPR-80 and DPR-82 for an Additional 20-Year Period; Pacific 
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Staff docketed the application and provided an opportunity for interested persons to request an 

adjudicatory hearing.3 At that time, one petitioner, the San Luis Obispo Mothers for Peace, filed 

a request for hearing and proposed five contentions challenging the application.4 The Board 

admitted three of them.5 We reversed in part and affirmed in part the Board’s ruling, leaving one 

admitted contention pending in the proceeding.6 In that contention, Mothers for Peace asserted 

that PG&E’s Environmental Report, specifically PG&E’s severe accident mitigation alternatives 

analysis, failed to consider the Shoreline Fault, a recently discovered fault near the Diablo 

Canyon facility.7

Since the discovery of the Shoreline Fault, PG&E has undertaken a series of studies to 

gain a better understanding of the seismic landscape near Diablo Canyon.8 Among these 

efforts, at the request of the State of California, PG&E launched a major seismic imaging 

 

Gas & Electric Company, Diablo Canyon Nuclear Power Plant, Units 1 and 2; and Order 

Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information (SUNSI) 

for Contention Preparation, 75 Fed. Reg. 3493, 3493 (Jan. 21, 2010). 

3 Id.

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

2010). 

5 LBP-10-15, 72 NRC 257, 345-46 (2010). The Board also found that Mothers for Peace had 

demonstrated a prima facie case for waiver to support the admission of a fourth contention; the 

Board conditionally admitted that contention and certified the wavier petition to us for review. Id.

at 345. We denied the waiver request and thus found the contention inadmissible. CLI-11-11, 

74 NRC 427, 452 (2011). 

6 CLI-11-11, 74 NRC at 444. 

7 Id. at 438; see infra note 10. 

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

Report to the U.S. Nuclear Regulatory Commission (Jan. 2011), at ES-1 (ADAMS accession no. 

ML110140425). 
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project, which culminated in a final report that PG&E provided to the NRC in September 2014.9 

PG&E also incorporated the information it obtained from the seismic imaging project into its 

March 2015 response to the Staff’s request for updated seismic hazard information from all 

licensees as part of the agency’s response to the March 2011 nuclear accident at the 

Fukushima Dai-ichi Nuclear Power Plant in Japan.10 Over the course of this ongoing process, 

the Staff will review PG&E’s updated seismic hazard information to determine what impacts, if 

any, it will have on current operations at Diablo Canyon, including whether any changes to 

Diablo Canyon’s current licensing basis are necessary.11 

 

9 See Central Coastal California Seismic Imaging Project (Sept. 10, 2014) (ML14260A106 

(package)). 

10 See Allen, Barry S., PG&E, letter to U.S. NRC Document Control Desk (Mar. 11, 2015), at 1-

2, Enclosure 1 (ML15071A046 (package)); see also Tr. at 770-71. See generally Request for 

Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding 

Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the 

Fukushima Dai-ichi Accident (Mar. 12, 2012) (ML12053A340) (50.54(f) Letter); Final 

Determination of Licensee Seismic Probabilistic Risk Assessments Under the Request for 

Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding 

Recommendation 2.1 “Seismic” of the Near-Term Task Force Review of Insights from the 

Fukushima Dai-ichi Accident (Oct. 27, 2015) (ML15194A015). PG&E’s updated seismic hazard 

analysis also will be considered in certain limited respects to inform the Staff’s environmental 

review of PG&E’s license renewal application, specifically with regard to the severe accident 

mitigation alternatives analysis and Mothers for Peace’s admitted contention. See Lindell, 

Joseph A., counsel for NRC Staff, letter to Licensing Board (July 16, 2015), at 1 

(ML15197A195); Tr. at 784. Relatedly, PG&E sought summary disposition of Mothers for 

Peace’s admitted contention, arguing that because PG&E has now considered the Shoreline 

Fault in its severe accident mitigation alternatives analysis, the contention should be dismissed. 

See Pacific Gas and Electric Company’s Motion for Summary Disposition on Contention EC-1

(July 31, 2015), at 1-2. The Board recently granted summary disposition and has terminated 

the proceeding. LBP-15-29, 82 NRC __ (Oct. 21, 2015) (slip op.). 

11 See Tr. at 764-65, 791-93; see also 50.54(f) Letter at 1 (“The review will enable the staff to 

determine whether the nuclear plant licenses . . . should be modified, suspended, or revoked.”). 
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One month after PG&E submitted the seismic imaging project report to the NRC, Friends 

of the Earth filed a petition to intervene with three proposed contentions.12 In general, Friends 

of the Earth asserted that the operating licenses for Diablo Canyon Units 1 and 2 may not be 

renewed until the agency explores, in an evidentiary hearing, the impact of the new seismic 

information on the safe operation of the plant.13 Although Friends of the Earth argued that its 

contentions were within the scope of the Diablo Canyon license renewal proceeding, as a 

precaution it also requested a waiver of three regulations in 10 C.F.R. Part 54 that pertain to the 

scope of the agency’s license renewal review:14 10 C.F.R. § 54.4, which defines the scope of 

 

12 Friends of the Earth’s Request for a Hearing and Petition to Intervene (Oct. 10, 2014), at 1 

(Petition); Affidavit and Curriculum Vitae of Dr. Gerhard Jentzsch (Oct. 8, 2014); Gundersen 

Affidavit Supporting Friends of the Earth’s Petition to Intervene (Oct. 10, 2014). Friends of the 

Earth filed a separate hearing request, a portion of which we referred to the Atomic Safety and 

Licensing Board to determine whether, as Friends of the Earth asserts, there is an ongoing de 

facto license amendment proceeding involving PG&E’s updated seismic hazard evaluation, for 

which the NRC is required to provide an opportunity to request a hearing under the Atomic 

Energy Act of 1954, as amended (AEA). See Pacific Gas and Electric Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 and 2), CLI-15-14, 81 NRC 729, 730, 734-35 (2015); Petition to 

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

(ML14254A223 (package)); see also infra note 69 (discussing the referral of a portion of this 

hearing request to the Staff for resolution under section 2.206). The Board recently denied 

Friends of the Earth’s request for hearing on the ground that “the NRC has neither granted 

PG&E greater authority than that provided by its license nor otherwise altered the terms of those 

licenses,” and therefore, Friends of the Earth had not demonstrated the existence of a licensing 

action subject to hearing rights under Section 189a. of the Atomic Energy Act. Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-15-27, 82 NRC __, __ 

(Sept. 28, 2015) (slip op. at 1-2). Friends of the Earth has appealed the Board’s decision. 

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) (ML15296A550). 

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

14 See id. at 20-21, 30; Friends of the Earth’s Petition for Waiver of 10 C.F.R. §§ 54.4, 54.21, 

and 54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding (Oct. 10, 2014) 

(Waiver Request); Declaration of Richard Ayres, Counsel for Friends of the Earth, Regarding 

Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) as Applied to the Diablo Canyon License 

Renewal Proceeding (Oct. 10, 2014). 
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license renewal; 10 C.F.R. § 54.21, which sets forth the contents of a license renewal 

application; and 10 C.F.R. § 54.29, which sets forth the findings that the agency must make for 

the issuance of a renewed license.15 In response to questioning from the Board at oral 

argument, Friends of the Earth requested waiver of 10 C.F.R. § 54.30 to the extent it also 

precluded the litigation of Friends of the Earth’s proposed contentions.16 That section states 

that matters relating to reasonable assurance of safety during the current license term are to be 

addressed under the current license and are outside the scope of a license renewal review.17 

Mothers for Peace filed an answer in support of Friends of the Earth’s petition to intervene and 

waiver request.18

PG&E and the Staff opposed Friends of the Earth’s intervention on several grounds. 

Both PG&E and the Staff asserted that Friends of the Earth’s proposed contentions were not 

timely filed because, in PG&E’s view, Friends of the Earth could have filed them in 2011, when 

PG&E submitted an earlier report on the Shoreline Fault to the agency, or, in the Staff’s view, no 

later than 2012, when the Staff completed a confirmatory analysis of that report.19 In addition, 

 

15 10 C.F.R. §§ 54.4, 54.21, 54.29. 

16 Appeal at 1-2 n.3; Tr. at 740-41. Because we find that Friends of the Earth has not met the 

standard for a waiver of our rules, we need not address the timeliness of this additional request. 

17 10 C.F.R. § 54.30. 

18 San Luis Obispo Mothers for Peace’s Response to Friends of the Earth’s Request for a 

Hearing and Petition to Intervene and Petition for Waiver of 10 C.F.R. §§ 54.4, 54.21, and 

54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding (Nov. 4, 2014), at 1. 

19 See Pacific Gas and Electric Company’s Answer Opposing the Friends of the Earth Hearing 

Request and Petition for Waiver (Nov. 4, 2014), at 23-25 (PG&E Answer); NRC Staff’s Answer 

to Friends of the Earth’s Request for a Hearing and Petition to Intervene and Waiver Petition

(Nov. 4, 2014), at 20 (Staff Answer). See generally Report on the Analysis of the Shoreline 

Fault Zone, Central Coastal California (Jan. 7, 2011) (ML110140431 (package)); Research 

Information Letter 12-01, Confirmatory Analysis of Seismic Hazard at Diablo Canyon Power 
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PG&E and the Staff argued that the proposed contentions were outside the scope of the 

proceeding because they raised current operating issues rather than the safety issues 

designated for review in a license renewal proceeding—specifically, those relating to the aging 

management of certain structures, systems, and components during the period of extended 

operation.20 PG&E and the Staff also asserted that Friends of the Earth’s waiver request should 

not be granted because Friends of the Earth had not demonstrated special circumstances that 

would prevent the challenged license renewal regulations from serving their intended purpose.21 

The Board “decline[d] to reject [Friends of the Earth’s] petition as untimely,” but 

ultimately found that Friends of the Earth’s contentions did not meet our admissibility 

requirements and that its waiver request did not demonstrate a prima facie case for waiver.22 

The Board therefore denied both the petition to intervene and the waiver request, and Friends of 

the Earth filed the instant appeal.23 Friends of the Earth’s appeal qualifies as an appeal as of 

right under 10 C.F.R. § 2.311(c).24 Our standard of review is highly deferential; we will not 

 

Plant from the Shoreline Fault Zone (Sept. 2012) (ML121230035). Friends of the Earth filed a 

reply to PG&E’s and the Staff’s answers. Friends of the Earth’s Reply to NRC Staff’s and 

Pacific Gas & Electric Company’s Answers to Petition to Intervene and Request for Hearing

(Nov. 12, 2014). 

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

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

22 LBP-15-6, 81 NRC at 320, 325. 

23 Id. at 327. PG&E and the Staff oppose Friends of the Earth’s Appeal. See Pacific Gas and 

Electric Company’s Opposition to Friends of the Earth Appeal from LBP-15-6 (Apr. 3, 2015), at 

1; NRC Staff’s Answer to Friends of the Earth’s Appeal of Memorandum and Order LBP-15-6 

(Denying Petition to Intervene and Petition for Waiver) (Apr. 2, 2015), at 2. 

24 See 10 C.F.R. § 2.311(c) (providing an appeal as of right on the question whether a request 

for hearing or petition to intervene should have been granted). 
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overturn a licensing board’s ruling on threshold issues like intervention absent error of law or 

abuse of discretion.25 

II. DISCUSSION 

For a successful intervention petition or request for hearing, a petitioner must, in addition 

to demonstrating standing, propose at least one contention that: 

(1) provides a specific statement of the issue of law or fact to be raised or 

controverted; 

(2) provides a brief explanation of its basis; 

(3) demonstrates that the issue raised is within the scope of the proceeding; 

(4) demonstrates that the issue raised is material to the findings the NRC 

must make to support the action that is involved in the proceeding; 

(5) provides a concise statement of the alleged facts or expert opinions that 

support the petitioner’s position on the issue and on which the petitioner 

intends to rely at hearing, together with references to the specific sources 

and documents on which the petitioner intends to rely to support its 

position on the issue; and 

(6) provides sufficient information to show that a genuine dispute exists with 

the applicant/licensee on a material issue of law or fact, with references to 

specific portions of the application (including the applicant’s 

environmental report and safety report) that the petitioner disputes and 

the supporting reasons for each dispute, or if the petitioner believes that 

the application fails to contain information on a relevant matter as 

required by law, the contention must identify each failure and the 

supporting reasons for the petitioner’s belief.26

 

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

26 10 C.F.R. § 2.309(a), (f)(1)(i)-(vi). The Board found that Friends of the Earth had 

demonstrated standing through the authorized representation of members who live within fifty 

miles of the Diablo Canyon Nuclear Power Plant site. See LBP-15-6, 81 NRC at 317-18 & n. 

22. The Board’s ruling on Friends of the Earth’s standing is not before us on appeal. 
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Our contention admissibility requirements are strict by design; only focused, well supported 

issues will be admitted for hearing.27 

Our rules of practice also place limits on the types of issues a petitioner may raise. As 

relevant here, 10 C.F.R. § 2.335(a) prohibits challenges to an agency rule or regulation in an 

adjudicatory proceeding without a waiver of that rule or regulation. And because our rules were 

promulgated with the expectation that they will apply generically, rather than on a case-by-case 

basis, we set a high bar for waivers: a waiver request must demonstrate that “special 

circumstances with respect to the subject matter of the particular proceeding are such that the 

application of the rule or regulation (or a provision of it) would not serve the purposes for which 

. . . [it] was adopted.”28 To determine whether this standard has been met, we apply a fourfactor test.29 The petitioner must demonstrate that: 

(i) the rule’s strict application would not serve the purposes for which it was 

adopted; 

(ii) special circumstances exist that were not considered, either explicitly or by 

necessary implication, in the rulemaking proceeding leading to the rule sought to 

be waived; 

(iii) those circumstances are unique to the facility rather than common to a large 

class of facilities; and 

 

27 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), 

CLI-01-24, 54 NRC 349, 358 (2001). 

28 10 C.F.R. § 2.335(b); see also Exelon Generation Co., LLC (Limerick Generating Station, 

Units 1 and 2), CLI-13-7, 78 NRC 199, 206-07 (2013). 

29 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), 

CLI-05-24, 62 NRC 551, 559-60 (2005). 
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(iv) waiver of the regulation is necessary to reach a significant safety or 

environmental problem.30

Contentions that challenge an agency rule or regulation without a waiver, in addition to being 

expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.31

On appeal, Friends of the Earth asks us to reverse the Board’s ruling in LBP-15-6, grant 

its waiver request, and admit Contentions 1 and 3 for hearing.32 In the alternative, Friends of 

the Earth asks us to grant the waiver request and remand the proceeding to the Board “to 

consider anew the admissibility of Contentions 1 and 3.”33 We find that the Board appropriately 

denied Friends of the Earth’s petition to intervene and waiver request. Therefore, we decline to 

remand the contention admissibility issue for the Board to address a second time. 

A. Friends of the Earth’s Contentions 1 and 3 

In Contention 1, Friends of the Earth argued that the information in the seismic imaging 

report demonstrates that the potential energy from seismic activity near Diablo Canyon “is far 

greater than previously known.”34 Friends of the Earth asserted that PG&E’s imaging study 

revealed that the Shoreline Fault is longer than previously known, that it may rupture with the 

Hosgri Fault (a nearby fault that was used in the calculation of the seismic design and licensing 

basis for Diablo Canyon during the initial operating license proceeding), and that the Hosgri and 

 

30 Id.; Limerick, CLI-13-7, 78 NRC 199, 207-09 (2013). 

31 See 10 C.F.R. § 2.309(f)(1)(iii). We also discussed the relationship between sections 

2.335(a) and 2.309(f)(iii) earlier in this proceeding. See CLI-11-11, 74 NRC at 452. 

32 Appeal at 2. Friends of the Earth does not challenge the Board’s ruling on Contention 2, 

which pertained to aging management of certain switches and snubbers. Id. at 2 n.6; Petition at 

21. 

33 Appeal at 2. 

34 Petition at 10. 
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San Simeon faults are assumed to be connected.35 Friends of the Earth asserts that this new 

information demonstrates “that previous seismic studies by PG&E significantly underestimated 

the potential seismic energy that could be released near Diablo Canyon.”36

Based on its interpretation of the new information, Friends of the Earth questioned 

PG&E’s conclusion that the updated ground motion calculations are bounded by Diablo 

Canyon’s existing seismic design and licensing bases.37 Friends of the Earth also questioned 

PG&E’s calculation methodology, arguing that the equations used in the seismic imaging report 

were not peer-reviewed and have not been approved by the NRC.38 Ultimately, Friends of the 

Earth argued that the Board should not renew the operating licenses for Diablo Canyon until 

PG&E can demonstrate that “the plant can be safely shut down following an earthquake on one 

or more of [the nearby] faults.”39 

The Board rejected Friends of the Earth’s Contention 1 because it did not meet three of 

the requirements for an admissible contention.40 The Board noted that Friends of the Earth did 

not dispute that safe shutdown of the plant “is a current operating issue” that is not dependent 

 

35 Id. at 11-12. 

36 Id. at 12. 

37 See id. at 15. 

38 See id. at 13-15. 

39 Id. at 10; see also id. at 8 (Contention 1: “PG&E’s operating license for Diablo Canyon should 

not be renewed unless and until PG&E establishes that the plant can withstand and be safely 

shut down following an earthquake on the Hosgri-San Simeon, Shoreline, Los Osos, or San 

Luis Bay Faults.”). 

40 LBP-15-6, 81 NRC at 321-22. All six requirements must be met for a contention to be 

admitted. 10 C.F.R. § 2.309(f)(1). 
- 11 -

upon “whether PG&E’s licenses . . . should be renewed.”41 The Board found this concern to be 

outside the narrow scope of the license renewal proceeding, which, for safety-related issues, “is 

limited to ‘plant structures and components that will require an aging management review for the 

period of extended operation [under the renewed license] and the plant’s systems, structures, 

and components that are subject to an evaluation of time-limited aging analyses.’”42 Similarly, 

the Board found that Friends of the Earth did not raise an issue material to the findings the NRC 

must make to support the licensing action, which, as noted above, is narrowly focused.43 

Finally, the Board found that Friends of the Earth had not raised a genuine dispute with PG&E 

because its concerns “do not actually challenge any specific part” of PG&E’s license renewal 

application.44

We agree with the Board’s finding that Contention 1 is outside the scope of this license 

renewal proceeding. Contention 1 asserts that, to obtain a renewed license, PG&E must 

adequately demonstrate that Diablo Canyon “can withstand and be safely shut down following 

an earthquake on the Hosgri-San Simeon, Shoreline, Los Osos, or San Luis Bay faults.”45 As 

the Board properly recognized, this contention raises “a current operating issue” that “is not 

unique to whether PG&E’s licenses—which do not expire until nearly a decade from now—

 

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

42 Id. at 321 (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba 

Nuclear Station, Units 1 and 2), CLI-01-20, 54 NRC 211, 212 (2001)). 

43 Id. at 321-22. 

44 Id. at 322. 

45 Petition at 8. 
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should be renewed.”46 A central principle of our license renewal regulations is that such issues 

must be addressed as they arise.47 Accordingly, our regulations rely on the regulatory 

processes applicable to all currently operating reactors to address most safety and security 

issues, limiting license renewal proceedings to consideration of only certain issues related 

specifically to plant aging.48 Contention 1 does not address the particular aging-related matters 

within the scope of license renewal proceedings under our 10 C.F.R. Part 54 regulations. Thus, 

the contention is outside the scope of this license renewal proceeding. 

A contention outside the scope of a proceeding is not admissible for hearing in that 

proceeding.49 To remedy that deficiency, Friends of the Earth must persuade us to grant its 

waiver petition, in which it asks us to set aside, for purposes of this specific proceeding, the 

foundational regulations in 10 C.F.R. Part 54 that define the scope of our license renewal 

proceedings. As discussed in Part II.B., infra, Friends of the Earth has not demonstrated that a 

 

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

47 Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,463-

64 (May 8, 1995) (License Renewal Rule) (reaffirming the regulatory philosophy that, “[g]iven 

the Commission’s ongoing obligation to oversee the safety and security of operating reactors, 

issues that are relevant to current plant operation will be addressed by the existing regulatory 

process within the present license term rather than deferred until the time of license renewal”); 

see also Millstone, CLI-05-24, 62 NRC at 560-61 (“[I]t makes no sense to spend the parties’ and 

our own valuable resources litigating allegations of current deficiencies in a proceeding that is 

directed to future-oriented issues of aging.” (emphasis in original)). This concept is the first 

principle of license renewal, which is that the “regulatory process is adequate to ensure that the 

licensing bases of all currently operating plants provides and maintains an acceptable level of 

safety so that operation will not be inimical to public health and safety or common defense and 

security.” License Renewal Rule, 60 Fed. Reg. at 22,464.

48 See 10 C.F.R. §§ 54.4 (defining the scope of our license renewal regulations), 54.21 

(specifying license renewal application requirements), 54.29(a) (indicating the safety findings we 

must make before issuing renewed licenses). 

49 10 C.F.R. § 2.309(f)(1)(iii); see also 10 C.F.R. § 2.335(a). 
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waiver of our basic rules governing license renewal proceedings is warranted here. Therefore, 

we uphold the Board’s ruling that Contention 1 is inadmissible because it is outside the scope of 

the proceeding.50 

In Contention 3, Friends of the Earth asserted that PG&E’s integrated plant assessment, 

under which PG&E must identify the structures, systems, and components subject to an aging 

management review, is faulty because it “rests on seismic data that has been shown to be 

obsolete and inaccurate.”51 Friends of the Earth argued that PG&E must demonstrate that the 

structures, systems, and components identified in the integrated plant assessment can continue 

to perform their intended functions during the period of extended operation in light of the “newly 

understood seismic circumstances of the plant.”52 

The Board likewise found this contention inadmissible, observing that Friends of the 

Earth “d[id] not explain how its claims . . . would affect the Staff’s ability to make the findings 

required for license renewal.”53 The Board noted that Friends of the Earth did not cite any 

specific portion of the license renewal application that it found deficient, nor did Friends of the 

Earth explain how its generalized concerns about aging components relate to the updated 

 

50 Because Contention 1 is outside the scope of this license renewal proceeding and 

inadmissible on that basis alone, we need not reach the Board’s findings regarding other 

contention admissibility requirements. 

51 Petition at 30-31 (Contention 3: “PG&E has failed to establish in its aging management plan 

that the effects of aging on Diablo Canyon will be adequately managed for the period of 

extended operation, in violation of 10 C.F.R. § 54.21(a)(3).”). 

52 Id. at 31. 

53 LBP-15-6, 81 NRC at 324. 
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seismic information in the seismic imaging report.54 The Board thus dismissed the contention 

for failure to raise an issue that is material to the findings the NRC must make to support the 

proposed licensing action.55 The Board also found that because Friends of the Earth did not 

provide any specific references to the license renewal application, Friends of the Earth had 

failed to demonstrate the existence of a genuine dispute with PG&E on a material issue of fact 

or law.56 We agree that Friends of the Earth’s intervention petition does not identify any specific 

portion of the application that it seeks to challenge and therefore lacks the specificity that our 

contention admissibility rules require. The Board properly found Contention 3 inadmissible.57

B. Friends of the Earth’s Waiver Request 

On appeal, Friends of the Earth reasserts that it is entitled to a waiver to litigate 

Contentions 1 and 3.58 The Board denied Friends of the Earth’s waiver request for failure to 

meet two of the four waiver factors.59 First, the Board found that Friends of the Earth had not 

shown that application of the regulations in this proceeding would not serve the purposes for 

which they were adopted. The Board found that our license renewal regulations would serve 

 

54 Id. at 324-25; see also 10 C.F.R. § 2.309(f)(1)(vi). 

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

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

57 The Board also found that Friends of the Earth would have needed to obtain a rule waiver in 

order to obtain a hearing on Contention 3. Id. Because we find that Contention 3 is 

inadmissible due to lack of specificity, we need not reach the question of whether Contention 3 

is an out-of-scope contention requiring a rule waiver. 

58 Appeal at 7-8. 

59 LBP-15-6, 81 NRC at 326-27. 
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exactly their intended purpose by focusing the proceeding on future-oriented aging issues.60 

Second, the Board found that Friends of the Earth had not shown that a waiver is necessary to 

reach a significant safety issue.61 Although the Board observed that “potential seismic risks to 

the Diablo Canyon facility are important issues—most certainly ‘significant’ ones,” the Board 

concluded that Friends of the Earth could raise its concerns through other, more appropriate 

avenues.62

Having agreed with the Board’s finding that Contention 1 is outside the scope of this 

license renewal proceeding and, therefore, may not be litigated absent a rule waiver,63 we turn 

to the Board’s denial of Friends of the Earth’s waiver petition.64 We agree with the Board that 

Friends of the Earth has not met the standards for a waiver of our rules, but we reach this 

conclusion on different grounds. We find that Friends of the Earth has not shown that special 

 

60 Id. at 326 (citing Millstone, CLI-05-24, 62 NRC at 561). In its waiver request, Friends of the 

Earth pointed broadly to the safety-related purpose of our license renewal regulations. See

Waiver Request at 6-7. Although it is true that our license renewal regulations are designed 

with safety as their goal, they were drawn specifically to ensure that current safety issues are 

prioritized (and are addressed as part of the NRC’s ongoing oversight activities) over those that 

are unique to the period of extended operation—that is, to ensure that safety issues are 

addressed at their appropriate time. See License Renewal Rule, 60 Fed. Reg. at 22,463-64; 

Millstone, CLI-05-24, 62 NRC at 560-61 (rejecting a similarly broad interpretation of the purpose 

of the license renewal regulations). 

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

62 Id.

63 See supra Section II.A. 

64 As already discussed, we do not reach the question here of whether a waiver would be 

necessary to permit litigation of Contention 3. See supra note 57. Accordingly, although both 

Friends of the Earth’s waiver petition and the Board’s decision contemplate that a waiver would 

be necessary for both Contention 1 and Contention 3, our waiver analysis here assumes, 

without deciding, that Contention 1 is the only contention requiring a waiver. 
- 16 -

circumstances exist that were not considered, either explicitly or by necessary implication, when 

we adopted our license renewal regulations—the second factor in our waiver test.65 At bottom, 

Friends of the Earth argues that a safety issue relating to the current operation of Diablo 

Canyon requires attention as part of this license renewal proceeding. But we contemplated 

precisely this type of circumstance when we devised the licensing structure of Part 54. We 

were aware, when adopting the rule, that issues “relevant to current plant operation” could arise 

while a license renewal application was under review, and, based on our confidence in the 

NRC’s regulatory process, we reaffirmed our view that those issues are best addressed as part 

of our regular oversight activities, outside of license renewal.66 We see no reason to revisit that 

rationale in this case. 

As the Board correctly observed, our rules provide other mechanisms for Friends of the 

Earth to raise its concerns that would not require us to redefine the scope of this proceeding.67 

In particular, Friends of the Earth “may file a request to institute a proceeding . . . to modify, 

suspend, or revoke a license, or for any other action that may be proper,” if it believes that 

 

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

66 License Renewal Rule, 60 Fed. Reg. at 22,463-64. Friends of the Earth does argue, when 

addressing this second waiver-test factor, that “[t]he license renewal rule was based on the 

implicit assumption that a plant’s seismic design basis would be static, so that there was no 

need to revisit the seismic assumptions to determine whether alterations to the plant’s current 

licensing basis were necessary when considering a license renewal.” Appeal at 10; see also id.

at 14-15. Yet, when issuing our license renewal regulations, we explained plant licensing bases 

as follows: “The [current licensing basis] represents the evolving set of requirements and 

commitments for a specific plant that are modified as necessary over the life of a plant to ensure 

continuation of an adequate level of safety.” License Renewal Rule, 60 Fed. Reg. at 22,473 

(emphasis added). Modifications to a plant’s licensing basis made outside of license renewal 

could include, for instance, changes addressing newly discovered seismic risks.

67 See LBP-15-6, 81 NRC at 327. 
- 17 -

PG&E’s seismic design and licensing basis is now invalid and that safe operation of the plant 

can no longer be assured.68 Friends of the Earth also may file a petition for rulemaking to 

expand the scope of our license renewal regulations.69 We decline to set aside our license 

renewal regulations to conduct what would be an entirely different proceeding when there are 

more appropriate avenues available for Friends of the Earth to seek relief. 

That said, we consider seriously concerns regarding the safe operation of the current 

nuclear fleet. Today we conclude only that Friends of the Earth has not demonstrated that its 

seismic concerns are appropriately addressed as part of this license renewal adjudication, 

which, under our regulations, is limited in scope. Outside of this proceeding, the agency is 

 

68 10 C.F.R. § 2.206(a). 

69 See 10 C.F.R. § 2.802. We are not persuaded by Friends of the Earth’s arguments that 

neither the section 2.206 process nor the opportunity to file a petition for rulemaking would 

address its claims. See Appeal at 17-19. First, contrary to Friends of the Earth’s view, see id.

at 18-19, the 2.206 process is designed for bringing just such a challenge regarding a licensee’s 

current operation under its existing license. By its plain terms, section 2.206 provides an 

opportunity for the modification, suspension, or revocation of a license, any of which actions 

might be appropriate as a remedy for Friends of the Earth’s concern that seismic considerations 

render operation of Diablo Canyon unsafe, if Friends of the Earth determines that its concerns 

differ from those already pending before the Staff. See Diablo Canyon, CLI-15-14, 81 NRC at 

736 n.32 (referring a portion of a similar hearing request filed by Friends of the Earth to the Staff 

as a request for enforcement action under section 2.206, with instructions to the Staff to 

consider Friends of the Earth’s concerns regarding the safe operation of Diablo Canyon). 

Second, although Friends of the Earth asserts that it does not wish to challenge our regulations 

in Part 54 as a general matter, see Appeal at 17, a petition for rulemaking to expand license 

renewal safety reviews, if successful, could be applied to this proceeding. See 10 C.F.R. 

§ 2.802. Third, Friends of the Earth’s insistence that its seismic concerns must be addressed 

“only in the course of a license renewal proceeding” because of their relation to safety during 

the period of extended operation,” Appeal at 19, does not account for the fact that the current 

licensing basis (including any adjustments that may have been made to it to deal with emergent 

safety issues) carries forward from the initial license term into the period of extended operation. 

Friends of the Earth’s concerns therefore appropriately could be addressed as part of the 

agency’s continuing oversight of Diablo Canyon irrespective of when, during the plant’s 

operating life, they may arise. 
- 18 -

conducting a comprehensive review of licensee seismic hazard reevaluations, including the 

information that PG&E provided in March of this year, which may lead to changes in the current 

licensing basis for Diablo Canyon, as well as for other operating plants.70 Therefore, although 

we decline to permit Friends of the Earth to litigate its concerns in this proceeding, the seismic 

information that has given rise to these concerns is under close and active consideration by the 

agency. 

III. CONCLUSION 

Friends of the Earth has not raised an admissible contention that is suitable for litigation 

in this license renewal proceeding, nor has it established that a waiver of our rules is warranted 

to address its concerns. We therefore affirm the Board’s denial, in LBP-15-6, of Friends of the 

Earth’s waiver petition and its petition to intervene. 

IT IS SO ORDERED. 

 For the Commission 

NRC SEAL 

 /RA/ . 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 9th day of November, 2015. 

 

70 Any amendment to an existing license as a result of this process would be subject to a 

hearing opportunity under the AEA. See AEA § 189a., 42 U.S.C. § 2239(a). 
 

UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

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

 ) 

(Diablo Canyon Nuclear Power Plant, ) 

 Units 1 and 2) ) 

 

 CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER CLI15-21 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 

Paul S. Ryerson, Chair 

Administrative Judge 

E-mail: paul.ryerson@nrc.gov 

Nicholas G. Trikouros 

Administrative Judge 

E-mail: nicholas.trikouros@nrc.gov

Gary S. Arnold 

Administrative Judge 

E-mail: gary.arnold@nrc.gov 

 

Alana Wase, Law Clerk 

E-mail: alana.wase@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 

Catherine Kanatas, Esq. 

E-mail: catherine.kanatas@nrc.gov 

Joseph Lindell, Esq. 

E-mail: joseph.lindell@nrc.gov 

Daniel Straus, Esq. 

E-mail: daniel.strauss@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-LR and 50-323-LR 

COMMISSION MEMORANDUM AND ORDER CLI-15-21

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

 

San Luis Obispo Mothers for Peace 

1123 Flora Road 

Arroyo Grande, CA 93420 

Jill ZamEk, Esq. 

jzk@charter.net

Counsel for San Luis Obispo Mothers 

 For Peace 

Harmon, Curran, Spielberg, and Eisenberg 

1726 M Street, N.W., Suite 600 

Washington, DC 20036 

Diane Curran, Esq. 

dcurran@harmoncurran.com 

Ayres Law Group, LLP 

1707 L Street NW, Suite 850 

Washington, DC 20036 

Richard E. Ayres, Esq. 

E-mail: ayresr@ayreslawgroup.com

John Bernetich, Esq. 

E-mail: bernetichj@ayreslawgroup.com

Jessica L. Olson, Esq. 

E-mail: olsonj@ayreslawgroup.com

 

[Original signed by Brian Newell] 

Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 9th day of November 2015