ML12355A452
| ML12355A452 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 12/20/2012 |
| From: | Hawkens E R 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 SOUTHERN CALIFORNIA EDISON CO.
(San Onofre Nuclear Generating Station, Units 2 and 3)
Docket Nos. 50-361-CAL, 50-362-CAL
ASLBP No. 13-924-01-CAL-BD01
December 20, 2012 ORDER (Granting in Part and Denying in Part Petitioner's 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 Petitioner's hearing request meets the agency's 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2 See Licensing Board Order (Scheduling Conference Call) (Nov. 26, 2012) (unpublished).
3 See Licensing Board Order (Conference Call Summary and Directives Relating to Briefing) (Dec. 7, 2012) (unpublished) [hereinafter Licensing Board December 7 Order].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 Petitioner's and SCE's 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 Board's 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 Board's 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 Petitioner's Motion to Amend the Proposed Scheduling Order and Clarify Scope of Disclosure (Dec. 11, 2012) [hereinafter Petitioner's 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 Petitioner's 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 Board's December 7 Order.
11 SCE argues that Petitioner's 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 Petitioner's 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 SCE's request that the Board clarify which documents SCE must produce pursuant to the Board's 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 Petitioner's request for a five-week briefing extension is not justified, the Staff does not oppose a three-week extension, which would make Petitioner's opening brief due on January 11, 2013.16 10 See [SCE's] Answer Opposing Petitioner's Motion to Amend the Board's December 7, 2012 Order (Dec. 13, 2012) [hereinafter SCE's Answer].
11 See id. at 6. 12 See id. at 6-11.
13 See id. at 11-13.
14 See NRC Staff's Answer to Petitioner's Motion to Amend the Proposed Scheduling Order and Clarify Scope and Disclosure (Dec. 14, 2012) [hereinafter Staff's 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 Petitioner's 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 Petitioner's opening brief due on January 11, 2013.
4 II. BOARD'S DECISION A. Clarification Request The documents to be disclosed in this case (which we refer to as SCE's 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 Petitioner's arguments, SCE's disclosure obligation does not extend to the material referenced in SCE's Restart Plan. As relevant to Petitioner's 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 (SCE's 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 Petitioner's Motion to Amend at 5), such disclosure was not contemplated in the Board's December 7 Order. Nor, in our view, is such disclosure necessary for resolving the issues referred by the Commission. Moreover, to the extent that Petitioner's request is viewed
17 See Licensing Board December 7 Order at 4 & nn.5-6.
18 We have reviewed the non-redacted version of SCE's 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 Petitioner's 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 SCE's 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 Staff's Answer. See Staff's 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 Petitioner's 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 SCE's Answer at 13. These circumstances fortify our conclusion that a three-week extension is adequate.
In opposing Petitioner's 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 SCE's Answer at 13. SCE's assertion can fairly be characterized as ungrounded speculation wrapped in hyperbole.
6 III. CONCLUSION For the foregoing reasons, Petitioner's motion is granted in part and denied in part. Specifically, Petitioner's request for clarification is granted. Petitioner's 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. Petitioner's request that the Staff be directed to disclose documents is denied. Petitioner's request for an extension of the briefing schedule is granted in part
.21 It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
_________________________________ 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 Petitioner's 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 Petitioner's Reply would be appropriate. We nevertheless reviewed the Reply, and we conclude that it provides no basis to alter this Order. Our treatment of Petitioner's Reply renders moot the motion to strike filed by SCE on December 20, 2012.
See [SCE's] Motion to Strike Petitioner's Reply Regarding the Motion to Amend the Board's 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 Petitioner's 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 Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
E-mail: ocaamail@nrc.gov
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555-0001
E. Roy Hawkens Chief Administrative Judge E-mail: roy.hawkens@nrc.gov
Anthony J. Baratta
Administrative Judge
Email: anthony.baratta@nrc.gov Gary S. Arnold
Administrative Judge
Email: gary.arnold@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 Southern California Edison Company Douglas Porter, Esq.*
Director and Managing Attorney
Generation Policy and Resources Law Department 2244 Walnut Grove Ave., GO1, Q3B, 335C
Rosemead, CA 91770 Email: douglas.porter@sce.com
Counsel for Licensee
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania, Ave. N.W. Washington, D.C. 20004 Paul M. Bessette, Esq.
Kathryn M. Sutton, Esq.
Stephen J. Burdick, Esq.
Steven P. Frantz, Esq.
William E. Baer, Jr.* Mary Freeze, Legal Secretary Lena M. Long, Legal Secretary
E-mail: pbessette@morganlewis.com sburdick@morganlewis.com ksutton@morganlewis.com
wbaer@morganlewis.com sfrantz@morganlewis.com
mfreeze@morganlewis.com llong@morganlewis.com
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 Petitioner's Motion for Clarification and Extension) 2 U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15 D21 Washington, DC 20555-0001 Edward Williamson, Esq. David Roth, Esq. Catherine Kanatas, Esq.
David Cylkowski, Esq.
Email: edward.williamson@nrc.gov david.roth@nrc.gov catherine.kanatas@nrc.gov
david.cylkowski@nrc.gov
OGG Mail Center: ogcmailcenter@nrc.gov
Friends of the Earth Ayres Law Group
1707 L St., NW
Suite 850 Washington, D.C. 20036 Richard E. Ayres, Esq. Jessica L. Olson, Esq.
Kristin L. Hines, Esq.
Email: ayresr@ayreslawgroup.com olsonj@ayreslawgroup.com hinesk@ayreslawgroup.com
Natural Resources Defense Council Geoffrey H. Fettus, Esq.
1152 15 th 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 20 th day of December, 2012