ML12299A513
| ML12299A513 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 10/25/2012 |
| From: | Roth D NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| Confirmatory Action Letter, RAS 23666, 50-361-CAL, 50-362-CAL | |
| Download: ML12299A513 (9) | |
Text
October 25, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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SOUTHERN CALIFORNIA EDISON COMPANY ) Docket Nos. 50-361-CAL/50-362-CAL
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(San Onofre Nuclear Generating Station
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Units 2 and 3)
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NRC STAFFS RESPONSE TO REQUEST THAT THE NRC DECIDE PETITION TO INTERVENE AND APPLICATION TO STAY RESTART DECISION INTRODUCTION The staff of the Nuclear Regulatory Commission (Staff) responds to the Request that the NRC Decide Petition to Intervene and Application by Friends of the Earth [(FOE)] to Stay Any Decision to Restart Units 2 or 3 at the San Onofre Nuclear Generation Station (Request).1 The Request not only asks the Commission to rule on FOEs pending stay application and petition to intervene but also attempts to provide new arguments to support those filings.2 As the Staff previously explained, neither the petition to intervene nor the stay application is procedurally supported under Commission precedent because there is currently no proceeding to intervene in or to stay.3 1 The Request was submitted via letter style dated October 16, 2012 by counsels for FOE. (Oct.
16, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12290A049). The Staff is responding within 10 days of the Request because the Request effectively constitutes a motion for a stay or a motion to amend the previous stay application as well as a motion to amend a pending contention. NRC regulations provide a 10 day response period for motions and stay requests and a 25 day response period for petitions to intervene. 10 C.F.R. §§ 2.309(i), 2.323(c),
2.342(c).
The new arguments in the Request do not contest this point.
2 Request at 2-4.
3 NRC Staffs Answer to Friends of the Earths Application to Stay Any Decision to Start Unit 2 or 3 at the San Onofre Nuclear Generating Station Pending Conclusion of the Proceedings Regarding Consideration of the Safety of Replacement Steam Generators, 6-7 (June 28, 2012) (ADAMS Accession Moreover, even if such a proceeding were ongoing, the new arguments in the Request do not establish that FOE is entitled to the relief sought. Therefore, the Commission should deny FOEs pending stay request and petition to intervene.4 Nonetheless, existing NRC regulations provide FOE with a variety of options to protect its interests in the safe operations of San Onofre Nuclear Generating Station (SONGS),
including raising its concerns with the agency through a 10 C.F.R. § 2.206 petition 5 or a petition for rulemaking.6 I.
DISCUSSION Initially, FOE applied to the NRC pursuant to 10 C.F.R. § 2.342, for a stay of any authorization for restart of Units 2 or 3 at the San Onofre Nuclear Generating Station pending the conclusion of a license amendment proceeding pursuant to 10 C.F.R. § 2.309.
The Request Does Not Provide Sufficient Support for the Stay Application 7
No. ML12180A624) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-12, 59 NRC 237, 237-38 (2004)) (Staff Answer to FOE Application for a Stay); NRC Staffs Answer to Petition to Intervene and Request for Hearing by Friends of the Earth on the Restart of the San Onofre Reactors, 13-16 (July 13, 2012) (ADAMS Accession No. ML12195A330) (same) (Staff Answer to FOE Petition to Intervene).
In response to the stay application, the Staff noted that by its own terms § 2.342 did not apply because there is no proceeding, but even if it did, the balance of factors in that provision did not 4 Although FOE styles the Request as a letter to the Commission, this does not excuse FOE from complying with the Commissions regulations. The Staff notes that the Request does not comply with 10 C.F.R. § 2.305(c)(4) because FOE did not also file a certificate of service. Moreover, contrary to 10 C.F.R. § 2.323(b), the Request contains no certification that the movant, FOE, attempted to resolve its concerns with the other parties to this adjudication before filing. Finally, as discussed below, FOE makes no attempt to address the Commissions rules for amending a contention.
5 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 101 n.7 (1994) (holding that a "member of the public may challenge an action taken under 10 C.F.R. § 50.59 only by means of a petition under 10 C.F.R. § 2.206.").
6 10 C.F.R. § 2.802.
7 Application to Stay Any Decision to Restart Units 2 or 3 at the San Onofre Nuclear Generating Station Pending Conclusion of the Proceedings Regarding Consideration of the Safety of the Replacement Steam Generators, at 1 (June 18, 2012) (ADAMS Accession No. ML12171A409). SONGS Units 2 and 3 have been shut down since January 2012. They have remained shut down while the licensee and NRC have evaluated a steam generator leak in Unit 3. Staff Answer to FOE Petition to Intervene at 6.
support granting a stay.8 In its Request, FOE argues that Southern California Edisons (SCE's) October 3, 2012 submission of its response to NRCs Confirmatory Action Letter and Unit 2 return to service plan9 renders the need for a stay to preserve the status quo [to protect FOEs asserted right to a hearing] all the more obvious.10 Simply stated, the restart plan does not create an opportunity for a new adjudicatory proceeding.
11 Thus, § 2.342 is as inapplicable now as it was before SCE submitted the October 3, 2012 restart plan.12 Moreover, the restart plan does not provide any further support for the factors in § 2.342 governing the consideration of applications for a stay.13 The restart plan does not show that FOE will be irreparably injured should the Commission deny the stay application and permit restart of Unit 2 before holding a public hearing. Rather, even if a license amendment were required to restart Unit 2, the Atomic Energy Act clearly specifies that the NRC may grant license amendments before holding a public hearing.14 8 Staff Answer to FOE Application for a Stay, at 6-7. 7-9.
Consequently, denying the stay application will not abridge FOEs hearing rights. Finally, a petitioner must file a stay application under § 2.342 or a general motion to amend such an application under § 2.323 9 See San Onofre Nuclear Generating Station, Unit 2 - Confirmatory Action Letter - Actions to Address Steam Generator Tube Degradation (Oct. 3, 2012) (ADAMS Accession No. ML12285A263)
(restart plan) (including enclosures 1 and 2, listing commitments and SCEs Unit 2 return to service report, respectively). Additional documents included in the restart plan are in a "package" in ADAMS at ML122850320.
10 Request at 3.
11 42 U.S.C. § 2239a.(1)(A) (requiring the NRC to provide the opportunity for hearing in any proceeding... for the granting, suspending, revoking or amending of a license).
12 Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, __
(Sept. 9, 2011) (slip op. at 18-19 n.63) (noting that NRC regulations only provide for stays when a party to an adjudicatory proceeding seeks to appeal a decision to the Commission).
13 10 C.F.R. § 2.342(e).
14 42 U.S.C. § 2239a.(2)(A); 10 C.F.R. § 50.92. The Commissions stay regulation and precedent comport with judicial case law. Alabama Power Co. (Joseph M. Farley Nuclear Plant Units 1 and 2),
CLI-81-27 14 NRC 795, 796 (1981). Thus, even if the Commission were to consider FOEs stay application outside the context of § 2.342, the same considerations would weigh against the sought relief.
within 10 days of the event that gives rise to the filing.15 To supplement its stay arguments, FOE cites to an October 4, 2012 press release from SCE announcing the restart plan.16 But FOE filed the Request on October 16, 2012.17 Because FOE filed the Request more than 10 days after the availability of the press release, the Request is untimely with respect to the stay application.18 II.
A.
The Request Does Not Provide Sufficient Support for FOEs Petition to Intervene The Request references several other documents to support FOEs petition to intervene, including SCEs October 3, 2012 restart plan and a license amendment supporting Palo Verde Unit 2s steam generator replacement. Under NRC precedent, New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets thecriteria set forth in 10 C.F.R. § 2.309[(c)(1)].
The Request Constitutes an Improper Attempt to Amend FOEs Petition to Intervene 19 The additional information must also meet the normal contention admissibility requirements.20 15 10 C.F.R. §§ 2.323(a), 2.342(a).
These stringent standards serve an important policy purpose. As the Commission has observed, There simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not 16 Request at 2 n. 4, 3 (citing Southern California Edison Submits Response to Confirmatory Action Letter and Unit 2 Restart Plans to Nuclear Regulatory Commission (Posted Oct. 4, 2012) available at www.songscommunity.com/newsroom.asp).
17 Id. at 1.
18 10 C.F.R. §§ 2.323(a), 2.342(a).
19 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 261 (2009) (internal citations omitted). The Staff notes that the Commission recently moved the standards for contentions filed after the initial deadline from 10 C.F.R. § 2.309(f)(2) to 10 C.F.R. § 2.309(c)(1). Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg.
46,562, 46,591 (Aug. 3, 2012). This amendment did not change the substance of the good cause provision.
20 See Oyster Creek, CLI-09-7, 69 NRC 235, 261 (2009) (noting that new and amended contentions must also meet the normal contention admissibility requirements under 10 C.F.R. § 2.309(f)(1)).
occur to [them] at the outset.21 The Request does not attempt to address these standards, which can be sufficient grounds by themselves for dismissing a new or amended contention under Commission precedent.22 Moreover, as discussed below, even if FOE addressed the Commissions standards for new or amended contentions, the Request does not contain sufficient information to meet them, as it does not (1) demonstrate how any of the information cited is new and materially different than information previously available23 I. SCEs October 3, 2012 Restart Plan or (2) meet the Commissions contention admissibility standards.
FOE appears to claim that SCEs October 3, 2012 restart plan is new information related to its stay application and petition to intervene.24 While the October 3, 2012 restart plan is new, FOE does not indicate how the information in the restart plan is new and materially different than information previously available regarding the steam generator replacement or the restart.
For example, FOE does not indicate how the information in the October 3, 2012 restart plan demonstrates that a license amendment was needed for the steam generator replacement25 II. Palo Verde Unit 2 License Amendment or is needed for the restart of either unit. Additionally, FOE does not indicate how the restart plan meets any of the contention admissibility standards outlined in 10 C.F.R. § 2.309(f)(1).
FOE also points to an unidentified Palo Verde Unit 2 license amendment as supporting its petition to intervene and stay application.26 21 Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004).
Specifically, FOEs Request asserts that the 22 See Florida Power & Light Co., (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-06-21, 64 NRC 30, 33 (2006).
23 See 10 C.F.R. § 2.309(c)(1).
24 See Request at 3.
25 Beyond the amendment that was submitted by SCE in 2008 and granted by the NRC in 2009.
26 FOE did not identify the license amendment to which it was referring, so the Staffs analysis in this answer discusses an amendment associated with Palo Verde Unit 2s steam generator replacement.
failure, to date, of the Commission to grant an adjudicatory hearing in this matter contrasts starkly with the process in an almost identical situation at the Palo Verde Nuclear Generating Stationwhere the utility in 2002 replaced two steam generators at Unit 2 that were of similar design to San Onofre.27 FOE claims that at Palo Verde Unit 2, there was a license amendment associated with the steam generator replacement, while at SONGS there was no such license amendment.28 First, FOEs claim that there was no license amendment related to the SONGS steam generator replacement is not accurate. As discussed in Staffs Answer to FOEs Petition to Intervene, there was a license amendment associated with the SONGS steam generator replacement, and along with it, an opportunity to request a hearing.
29 Second, the Staff did not, as FOE claims, enforce its rules differently in the case of Palo Verde Unit 2s steam generator replacement.30 Instead, for both SONGS Units 2 and 3 and for Palo Verde Unit 2, aspects of the steam generator replacement were done through the § 50.59 process.31 And at both Palo Verde Unit 2 and SONGS, a license amendment request was submitted in support of the steam generator replacement that requested changes to technical specifications.32 27 Request at 2.
Therefore, the 28 Id. at 2-3 At Palo Verde, the utility, as required, applied for a license amendment and went through the public license amendment and hearing process that [FOE] seeks in this case. The NRC correctly requires that when utilities replace major equipment with a revised design that affects the units safe operation, the licensee must obtain a license amendment. Palo Verde didSan Onofre has not.).
29 Staffs Answer to FOEs Petition to Intervene at 3-5.
30 See Request at 3.
31 See, e.g., Palo Verde Nuclear Generating Station (PVNGS), Units 1, 2, & 3, Docket Nos. STN 50-528/529/530, 10 CFR 50.59 Report (January-December 2002) (Dec. 17, 2003) (ADAMS Accession No. ML033580629) (identifying several changes made under 10 C.F.R. § 50.59 to support the steam generator replacement at Palo Verde Unit 2).
32 See ADAMS Package ML013650426 (Palo Verde Unit 2 license amendment request supporting steam generator replacement); ML081830421 (SONGS license amendment request supporting steam generator replacement). Palo Verde Unit 2s license amendment request also included a power uprate request and associated changes, which was not the case at SONGS.
NRC has enforced its own rules in an even-handed manner33 and has provided interested individuals an opportunity to request a hearing regarding both the SONGS and Palo Verde Unit 2 steam generator replacements.34 In any event, FOE has not indicated how the Palo Verde Unit 2 license amendment is new and materially different than information previously available regarding the steam generator replacement or the restart. The license amendment request supporting Palo Verde Unit 2s steam generator replacement is not new information, as the request was submitted in 2001 and granted in 2003.
Furthermore, there is not currently a request from SONGS for a license amendment to support restart of either unit.
35 FOE could have discussed this publicly available information in its original stay application or petition to intervene. Both SONGS and Palo Verde Unit 2 involved an amendment associated with the steam generator replacement and an opportunity for persons interested in participating to submit a hearing request or petition to intervene.36 33 Request at 3 (Petitioner seeks only that this Commission enforce its own rules in an even-handed manner.)
Finally, FOE does not indicate how the Palo Verde Unit 2 amendment meets any of the contention admissibility standards outlined in 10 C.F.R. § 2.309(f)(1).
34 See Biweekly Notice (providing inter alia, an opportunity to request a hearing), 67 Fed. Reg.
7,410, 7,412 (Feb. 19, 2002) ("The amendment would revise the operating license and the Technical Specifications (TSs) [of Palo Verde Nuclear Generations Station Unit 2] to support replacement of the steam generators and the subsequent increased power to a level of 3990 MWt, a 2.94 percent increase."); Biweekly Notice, 73 Fed. Reg. 54,862, 54,867 (Sept. 23, 2008)("These proposed changes consist of Proposed Change Number 583 (PCN-583) and are in support of the replacement of the steam generators (SGs) at SONGS Units 2 and 3. The proposed changes reflect revised SG inspection and repair requirements, and revised peak containment post-accident pressure resulting from installation of the replacement SGs").
35 See Biweekly Notice: Applications and Amendments to Facility Operating Licenses Involving No Significant Hazards Considerations, 68 Fed. Reg. 59,212, 59,224 (Oct. 14, 2003) (noting date of application for technical specification amendment in support of steam generator replacement and amendments associated with power uprate as Dec. 21, 2001 and date of issuance as Sept. 29, 2003).
36 At that time, FOE did not submit a hearing request or petition to intervene.
CONCLUSION FOEs Request does not (1) meet the Commissions pleading requirements for motions or contentions, or (2) establish that FOE is entitled to either a stay or a hearing. The Commission should deny FOEs stay application and petition to intervene as there is currently no proceeding to intervene in or to stay. This does not leave FOE without a remedy to address the concerns raised in its Request, stay application, and petition to intervene. FOE could raise its concerns with the agency through a 10 C.F.R. § 2.206 petition or a petition for rulemaking.
Respectfully submitted,
/Signed (electronically) by/
David E. Roth Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2749 E-mail: David.Roth@nrc.gov
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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SOUTHERN CALIFORNIA EDISON CO.
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Docket Nos. 50-361-CAL/ 50-362-CAL
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(San Onofre Nuclear Generating Station)
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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO REQUEST THAT THE NRC DECIDE PETITION TO INTERVENE AND APPLICATION TO STAY RESTART DECISION dated October 16, 2012, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 25th day of October, 2012:
/Signed (electronically) by/
David E. Roth Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2749 E-mail: David.Roth@nrc.gov Dated at Rockville, Maryland this 25th day of October, 2012