ML12355A452

Order (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension)

ML12355A452
Person / Time
Site:	San Onofre
Issue date:	12/20/2012
From:	Hawkens E Atomic Safety and Licensing Board Panel
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23918, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01
Download: ML12355A452 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Anthony J. Baratta Dr. Gary S. Arnold In the Matter of Docket Nos. 50-361-CAL, 50-362-CAL SOUTHERN CALIFORNIA EDISON CO.

ASLBP No. 13-924-01-CAL-BD01 (San Onofre Nuclear Generating Station, Units 2 and 3)

December 20, 2012 ORDER (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension)

I. BACKGROUND On November 8, 2012, the Commission in CLI-12-20 referred to the Atomic Safety and Licensing Board Panel a portion of the June 18, 2012 intervention petition filed by Friends of the Earth (Petitioner) challenging a Confirmatory Action Letter (CAL) issued by the NRC to Southern California Edison Company (SCE) on March 27, 2012. See CLI-12-20, slip op. at 5.1 On December 3, 2012, this Licensing Board held a conference call to discuss the procedural path forward in this matter.2 On December 7, 2012, we issued an Order that summarized the conference call, directed further briefing, and provided directives relating to briefing.3 The Order included a proposed briefing schedule, but it directed the parties to file a 1

The issues referred by the Commission were (1) whether the CAL issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity, and (2) whether Petitioners hearing request meets the agencys standing and contention admissibility requirements. See CLI-12-20, slip op. at 5.

2 See Licensing Board Order (Scheduling Conference Call) (Nov. 26, 2012) (unpublished).

3 See Licensing Board Order (Conference Call Summary and Directives Relating to Briefing)

(Dec. 7, 2012) (unpublished) [hereinafter Licensing Board December 7 Order].

2 joint motion proposing a revised schedule, if necessary.4 Additionally, we directed SCE, in coordination with Petitioner, to prepare and execute a Joint Non-Disclosure Agreement and a proposed Protective Order regarding certain proprietary documents that appear to be relevant to the issue of whether the CAL constitutes a de facto license amendment.5 On December 10, 2012, the Board granted Petitioners and SCEs joint motion for entry of a Protective Order and Non-Disclosure Agreement.6 On December 11, 2012, Petitioner filed a motion requesting that the Board (1) clarify the scope of the documents that are subject to disclosure, and (2) extend the proposed briefing schedule.7 Regarding its clarification request, Petitioner asserted that, in addition to disclosing unredacted versions of the documents specified in the Boards December 7 Order, SCE and the NRC Staff should be ordered to disclose unredacted versions of numerous other documents identified by Petitioner in two attachments to its motion, arguing that those documents are relevant to the issue of whether the CAL constitutes a de facto license amendment.8 Regarding its extension request, Petitioner asserted that it needed five additional weeks to submit its opening brief to ensure adequate time to review and analyze all newly disclosed information and to brief the issues.9 4

See id. at 5. Pursuant to the Boards proposal, briefing would commence on December 21, 2012 and end on January 14, 2013. See id.

5 See id. at 4.

6 See Licensing Board Order (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement) (Dec. 10, 2012) (unpublished).

7 See Petitioners Motion to Amend the Proposed Scheduling Order and Clarify Scope of Disclosure (Dec. 11, 2012) [hereinafter Petitioners Motion to Amend].

8 See id. at 3-5 and Att. 1 (Documents Directly Associated With, Quoted, Redacted, or Referred to in Support of the Conclusions of the SCE Response to the CAL and Restart Plan at 1-11) and Att. 2 (Relevant SCE Proprietary Documents Referred to in Augmented Inspection Team Report at 12-18).

9 See id. at 6.

3 SCE filed its Answer on December 13, 2012, arguing that Petitioners motion should be denied in its entirety.10 SCE states that on December 12 it made available to Petitioner unredacted versions of the proprietary documents specified in the Boards December 7 Order.11 SCE argues that Petitioners request for additional proprietary documents should be denied because (1) the request is effectively an improper discovery request, and (2) Petitioner has not demonstrated a need for the additional documents in any event.12 Regarding Petitioners request for a five-week extension to file its opening brief, SCE contends that such an extension is unnecessary and could result in significant harm to SCE.13 The NRC Staff filed its Answer on December 14, 2012.14 The Staff does not oppose SCEs request that the Board clarify which documents SCE must produce pursuant to the Boards December 7 Order, but it opposes the request to the extent Petitioner seeks discovery from the Staff and documents outside the scope of this proceeding.15 Although it believes Petitioners request for a five-week briefing extension is not justified, the Staff does not oppose a three-week extension, which would make Petitioners opening brief due on January 11, 2013.16 10 See [SCEs] Answer Opposing Petitioners Motion to Amend the Boards December 7, 2012 Order (Dec. 13, 2012) [hereinafter SCEs Answer].

11 See id. at 6.

12 See id. at 6-11.

13 See id. at 11-13.

14 See NRC Staffs Answer to Petitioners Motion to Amend the Proposed Scheduling Order and Clarify Scope and Disclosure (Dec. 14, 2012) [hereinafter Staffs Answer].

15 See id. at 6-8.

16 In its Answer (see id. at 5), the Staff mistakenly states that a three-week extension would make Petitioners opening brief due on January 4, 2013. In fact, a three-week extension from the date suggested in our December 7 Order -- which was December 21, 2012 -- would make Petitioners opening brief due on January 11, 2013.

4 II. BOARDS DECISION A. Clarification Request The documents to be disclosed in this case (which we refer to as SCEs Restart Plan) are specified in our December 7 Order.17 Over a week ago, on December 12, SCE made the Restart Plan available to Petitioner. Contrary to Petitioners arguments, SCEs disclosure obligation does not extend to the material referenced in SCEs Restart Plan.

As relevant to Petitioners clarification request, the scope of this proceeding -- and the purpose for which we ordered SCE to disclose the Restart Plan -- is narrow. The Commission directed the Board to consider whether the CAL issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity (CLI-12-20, slip op. at 5). In our view, the Restart Plan provides sufficient information for the parties to brief this issue and for the Board to resolve it.18 As SCE correctly observes (SCEs Answer at 8), for purposes of briefing this issue, Petitioner need not determine whether the restart plan is adequate or appropriate, only whether the CAL granted SCE any greater operating authority and whether activities authorized in the CAL extended beyond those granted under the current operating licenses.

[Petitioner] need not evaluate every document remotely connected to the Restart Plan to do this.19 Insofar as Petitioner requests the Board to order the disclosure of documents by the NRC Staff (see Petitioners Motion to Amend at 5), such disclosure was not contemplated in the Boards December 7 Order. Nor, in our view, is such disclosure necessary for resolving the issues referred by the Commission. Moreover, to the extent that Petitioners request is viewed 17 See Licensing Board December 7 Order at 4 & nn.5-6.

18 We have reviewed the non-redacted version of SCEs Restart Plan, and our conclusion about the sufficiency of that material is informed by that review.

19 We note that, although not required to do so by our December 7 Order, SCE voluntarily complied with Petitioners request to provide access to that portion of the Final Safety Analysis Report that is relevant to Board Question (iv) relating to a steam generator tube rupture. See SCEs Answer at 8 & Att. 1.

5 as seeking discovery against the Staff, such a request must be denied for the reasons discussed in the NRC Staffs Answer. See Staffs Answer at 6-8.

B. Extension Request In our December 7 Order, we suggested that Petitioner might be able to file its opening brief on or before December 21. See Licensing Board December 7 Order at 5. Although we do not believe that the five-week extension requested by Petitioner is reasonable, we are persuaded -- for the reasons advanced by Petitioner (see Petitioners Motion to Amend at 5-6) --

that a modest extension of time is justified. In our judgment, the three-week extension suggested by the NRC Staff (Staff Answer at 5) will, taking into account holidays as well as the complexity of the issues, provide Petitioner with adequate time for its experts to review and analyze the relevant documents and for its counsel to finalize and file a thoughtful, well-analyzed, and well-written brief.20 The participants to this proceeding are therefore directed to adhere to the following briefing schedule:

January 11, 2013: Submission of opening brief by Friends of the Earth.

January 18, 2013: Submission of brief by amicus curiae, Natural Resources Defense Council (NRDC), in support of Friends of the Earth.

January 30, 2013: Submission of answering brief by SCE and the NRC Staff.

February 6, 2013: Submission of reply brief by Friends of the Earth and NRDC.

20 The five-week extension sought by Petitioner seems to have been based in large part on its expectation that SCE would be required to disclose numerous additional proprietary documents that were not specified in our December 7 Order, and that these documents would require several weeks to review and analyze. As previously mentioned, over a week ago, on December 12, SCE disclosed unredacted versions of the proprietary documents (i.e., the Restart Plan) specified in our December 7 Order. Moreover, SCE represents that more than 80% of the . . .

Restart Plan was unredacted and available to the public prior to December 12. See SCEs Answer at 13. These circumstances fortify our conclusion that a three-week extension is adequate.

In opposing Petitioners extension request, SCE asserts that it cannot predict what other pretense [Petitioner] may raise to delay this proceeding, and that [a]ny delay in this proceeding could result in significant harm to SCE. See SCEs Answer at 13. SCEs assertion can fairly be characterized as ungrounded speculation wrapped in hyperbole.

6 III. CONCLUSION For the foregoing reasons, Petitioners motion is granted in part and denied in part.

Specifically, Petitioners request for clarification is granted. Petitioners request that SCE be directed to disclose unredacted versions of proprietary documents other than those we specified in our December 7 Order (i.e., the Restart Plan) is denied. Petitioners request that the Staff be directed to disclose documents is denied. Petitioners request for an extension of the briefing schedule is granted in part.21 It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Issued at Rockville, Maryland this 20th day of December 2012.

21 On December 19, 2012, Petitioner filed a Reply. See Petitioners Reply to Answers of NRC Staff and SCE to Motion to Amend the Proposed Scheduling Order and Clarify the Scope of Disclosure (Dec. 19, 2012). This Reply was filed in derogation of 10 C.F.R. § 2.323(c), which provides that a moving party has no right to reply, except as permitted by the Licensing Board and only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which is seeks leave to reply. Here, Petitioner failed to seek leave to file its Reply, and it also made no effort to demonstrate the existence of compelling circumstances as required by section 2.323(c). Under these circumstances, summary dismissal of Petitioners Reply would be appropriate. We nevertheless reviewed the Reply, and we conclude that it provides no basis to alter this Order. Our treatment of Petitioners Reply renders moot the motion to strike filed by SCE on December 20, 2012.

See [SCEs] Motion to Strike Petitioners Reply Regarding the Motion to Amend the Boards December 7, 2012 Order (Dec. 20, 2012).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

SOUTHERN CALIFORNIA EDISON CO. )

)

) Docket Nos. 50-361-CAL (San Onofre Nuclear Generating Station - ) 50-362-CAL Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension) have been served upon the following persons by Electronic Information Exchange and by electronic mail as indicated by an asterisk*.

Office of Commission Appellate Southern California Edison Company Adjudication Douglas Porter, Esq.*

U.S. Nuclear Regulatory Commission Director and Managing Attorney Washington, DC 20555-0001 Generation Policy and Resources E-mail: ocaamail@nrc.gov Law Department 2244 Walnut Grove Ave., GO1, Q3B, 335C Atomic Safety and Licensing Board Panel Rosemead, CA 91770 U.S. Nuclear Regulatory Commission Email: douglas.porter@sce.com Mail Stop - T-3 F23 Washington, DC 20555-0001 Counsel for Licensee Morgan, Lewis & Bockius, LLP E. Roy Hawkens 1111 Pennsylvania, Ave. N.W.

Chief Administrative Judge Washington, D.C. 20004 E-mail: roy.hawkens@nrc.gov Paul M. Bessette, Esq.

Kathryn M. Sutton, Esq.

Anthony J. Baratta Stephen J. Burdick, Esq.

Administrative Judge Steven P. Frantz, Esq.

Email: anthony.baratta@nrc.gov William E. Baer, Jr.*

Mary Freeze, Legal Secretary Gary S. Arnold Lena M. Long, Legal Secretary Administrative Judge E-mail: pbessette@morganlewis.com Email: gary.arnold@nrc.gov sburdick@morganlewis.com ksutton@morganlewis.com U.S. Nuclear Regulatory Commission wbaer@morganlewis.com Office of the Secretary of the Commission sfrantz@morganlewis.com Mail Stop O-16C1 mfreeze@morganlewis.com Washington, DC 20555-0001 llong@morganlewis.com Hearing Docket E-mail: hearingdocket@nrc.gov

San Onofre Nuclear Generating Station, Units 2 and 3, Docket Nos. 50-361 and 50-362-CAL ORDER (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension)

U.S. Nuclear Regulatory Commission Friends of the Earth Office of the General Counsel Ayres Law Group Mail Stop - O-15 D21 1707 L St., NW Washington, DC 20555-0001 Suite 850 Edward Williamson, Esq. Washington, D.C. 20036 David Roth, Esq. Richard E. Ayres, Esq.

Catherine Kanatas, Esq. Jessica L. Olson, Esq.

David Cylkowski, Esq. Kristin L. Hines, Esq.

Email: edward.williamson@nrc.gov Email: ayresr@ayreslawgroup.com david.roth@nrc.gov olsonj@ayreslawgroup.com catherine.kanatas@nrc.gov hinesk@ayreslawgroup.com david.cylkowski@nrc.gov Natural Resources Defense Council OGG Mail Center: ogcmailcenter@nrc.gov Geoffrey H. Fettus, Esq.

1152 15th Street, NW Suite 300 Washington, DC 20005 Email: gfettus@nrdc.org

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 20th day of December, 2012 2