PG&E response to Diablo Canyon opponents demonstrates strong legal precedent

March 13, 2023, 12:03PMNuclear News

Proponents of Diablo Canyon nuclear power plant received the heartening news on March 2 that the Nuclear Regulatory Commission had granted a “timely renewal” exemption to allow the plant to continue operating while its new license renewal application was under review. The exemption came after the NRC denied in January plant owner Pacific Gas & Electric’s request for the agency to resume review of its original license renewal application.

The NRC’s “Effect of timely renewal application” rule (10 CFR 2.109[b]), requires license renewal applications to be submitted at least five years prior to a reactor’s closing date. Because of the exemption, PG&E now has until December 31 this year to submit the application to extend the plant’s two units past their current closure dates of 2024 and 2025.

Long-standing opposition: PG&E submitted its original license renewal application in 2009. Environmental groups Friends of the Earth and San Luis Obispo Mothers for Peace petitioned to intervene in the NRC’s review of the application but were denied. PG&E withdrew the application in 2018 and began preparing for the decommissioning of the plant. The passage of SB 846 by the California state legislature this past September, which would allow Diablo Canyon’s two reactors to keep running beyond their original closure dates of 2024 and 2025, directed PG&E to seek renewal of the plant’s licenses.

One battle down, more to go: After the victory on the floor of the state legislature, Diablo Canyon faced the hurdle of license renewal so that the reactors could stay operable for five years beyond the scheduled closure dates in accordance with SB 846—as well as continued opposition from some groups. In November and December 2022, the NRC received two unsolicited letters that asserted that PG&E’s license renewal resumption and exemption requests were “unlawful.” The letters' writers, which included San Luis Obispo Mothers for Peace, Friends of the Earth, and the Environmental Working Group, requested that the commissioners exercise their “supervisory authority” and deny both requests.

In rebuttal, PG&E released a response last month that demonstrated clear legal precedent for the NRC to grant an exemption to Diablo Canyon. According to the statement by PG&E’s legal team, the filing by opposition groups was “procedurally improper” and identified “no legitimate basis [for the NRC] to deny the exemption request” in the petition, noting that the “supervisory authority” of the NRC to intervene typically applies to cases involving an imminent safety or security concern, which is not the case at Diablo Canyon.

PG&E’s rebuttal further identified several cases demonstrating precedent for the exemption, including the exemption granted to Dresden-2 and -3, in Illinois, on three occasions. In this case, the NRC approved a request by Exelon, at the time the license holder for the Dresden nuclear power plant, to be permitted to submit license renewal applications no later than three years prior to the reactors’ expiration dates. PG&E cited four other cases involving reactors—at Constellation's Clinton, Ginna, and Nine Mile Point, and Energy Harbor's Perry power plants—that have been granted exemptions.

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