ML12342A328
| ML12342A328 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 12/07/2012 |
| From: | Hawkens E Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 23860, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01 | |
| Download: ML12342A328 (9) | |
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 7, 2012 ORDER (Conference Call Summary and Directives Relating to Briefing)
On November 8, 2012, the Commission in CLI-12-20 referred to the Atomic Licensing Board Panel a portion of Friends of the Earths June 18, 2012 intervention petition challenging a Confirmatory Action Letter (CAL) issued by the NRC to Southern California Edison Company (SCE) on March 27, 2012. In particular, the Commission directed a duly constituted Licensing Board to consider whether: (1) the [CAL] issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under [s]ection 189a [of the Atomic Energy Act]; and, if so, (2) whether the petition meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309. CLI-12-20, slip op. at 5.
On December 3, 2012, this Board held a conference call with the participants to discuss the adjudicative path forward in this case.1 This Order summarizes the significant aspects of that call, directs further briefing, provides directives relating to briefing (including the necessity of 1 The participants in the conference call were (1) counsel for petitioner, Friends of the Earth, (2) counsel for amicus curiae supporting petitioner, National Resources Defense Council, (3) counsel for respondent, SCE, and (4) counsel for the NRC Staff.
a Non-Disclosure Agreement), and includes a list of questions and topic areas that should be addressed in the briefs.
I.
SUMMARY
OF CONFERENCE CALL During the conference call, counsel for the participants (see infra note 1) and the Board discussed procedures and administrative matters relating to adjudication of the questions referred by the Commission. The following discussion summarizes significant aspects of the conference call.
A. Recusal Motion Deadline Judge Gary Arnold brought to the participants attention a fact that already is available on the Atomic Safety and Licensing Board Panels website;2 namely, from 1981 to 1983, he was employed by SCE as a startup engineer during fuel load, initial criticality, physics testing, and power ascension testing at San Onofre Nuclear Generating Station (SONGS), Unit 2. In 1983, he left SCE to pursue educational opportunities. Since then, he has not returned to SONGS or maintained any contacts with SCE financially, professionally, or otherwise. Judge Arnold stated that if any party wishes to file a recusal motion, it must do so by December 10, 2012.
B. The Need For A Non-Disclosure Agreement Pursuant to CLI-12-20, this Board must determine, inter alia, whether the CAL issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under section 189a of the Atomic Energy Act (AEA).
Section 189a of the AEA (42 U.S.C. § 2239(a)) requires the Commission to afford interested parties notice of, and an opportunity for a hearing on, the amending of any license.
Resolving whether NRC action effectively constitutes a license amendment implicates factual issues as well as legal issues.
2 Atomic Safety and Licensing Board Panel, Panel Members Qualifications Page, http://www.nrc.gov/about-nrc/organization/panel-members.html#Arnold (last visited December 4, 2012).
Here, for example, issues we must consider include whether the CAL granted SCE any greater operating authority and whether the activities authorized in the CAL extended beyond the ambit of the prescriptive authority granted under the license. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 327 (1996). To resolve these issues, we must look beyond the four corners of the CAL.3 More precisely, determining whether the assessments and tests authorized in the CAL, and the results of these assessments and tests, including any new or temporary operational limits for Units 2 and 3, constitute a de facto license amendment will require consideration of documents and data that have been created incident to, and subsequent to, the CAL. This information will inform the Boards understanding of the CAL and its effect, and thereby materially assist the Board in resolving the issue referred by the Commission.4 3 In a pleading recently submitted to a Licensing Board in a different adjudicative proceeding, the NRC Staff described 10 C.F.R. § 50.59 as requir[ing] all licensees to evaluate changes to plant procedures in licensee-controlled documents and to seek a license amendment under
[section 50.90] for any change that results in a substantial change from previous analyses or results in more than a minimal increase in risk. Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), Docket Nos. 50-361-LA/50-362-LA, NRC Staffs Answer to Petition to Intervene and Request for Hearing By Citizens Oversight at 20 (Nov. 9, 2012). Assuming arguendo that the Staffs description of section 50.59 applies here, the CAL would constitute a de facto license amendment if the assessments and tests authorized by the CAL have resulted in a change in plant procedures in SCE-controlled documents that either (1) results in a substantial change from previous analyses, or (2) results in more than a minimal increase in risk. Applying either of these standards would require looking at SCE-controlled documents that were created pursuant to the CAL.
4 For example, the Boards ability to resolve the referred issue will be materially informed if it has an understanding of, e.g., the protocol[s] of inspections and/or operational limits for Unit 2
[and Unit 3] that SCE will establish, as well as SCEs assessment of Unit 2 [and Unit 3] steam generators... and the basis for SCEs conclusion that there is reasonable assurance, as required by NRC regulations, that the unit[s] will operate safely. See Elmo E. Collins, Regional Administrator, Region IV, US NRC, Letter to Peter T. Dietrich, Senior Vice President and Chief Nuclear Officer, SCE, [CAL] - [SONGS], Units 2 and 3, Commitments to Address Steam Generator Tube Degradation (Mar. 27, 2012 at 2) [hereinafter CAL]. This factual information --
which goes beyond the four corners of the CAL -- may be relevant to whether the activities authorized in the CAL extend beyond the ambit of the prescriptive authority granted under the license. Perry Nuclear Power Plant, Unit 1, CLI-96-13, 44 NRC at 327.
The Board and Friends of the Earth currently have access to the CAL, a non-proprietary version of SCEs response to the CAL,5 and non-proprietary versions of other documents SCE generated pursuant to the CAL that are located in SCEs Restart Plan.6 We believe that access to the proprietary versions of the documents referred to in SCEs response to the CAL and the proprietary versions of the documents generated pursuant to the CAL in SCEs Restart Plan are necessary for the Board to determine, not whether the restart plan is adequate or appropriate, but whether the CAL itself is a de facto license amendment that would be subject to a hearing opportunity under section 189a of the AEA.
Counsel for SCE is therefore directed, in coordination with counsel for Friends of the Earth, to effect the preparation and execution of a Joint Non-Disclosure Agreement regarding (1) the proprietary versions of the documents in SCEs response to the CAL (supra note 5), and (2) the proprietary versions of the other documents SCE generated pursuant to the CAL that are located in SCEs Restart Plan (supra note 6).7 Counsel for SCE shall endeavor to submit this document, along with a protective order, for the Boards approval by December 7, 2012, or as soon thereafter as possible.
5 See Peter T. Dietrich, Senior Vice President & Chief Nuclear Officer, SCE, Letter to Elmo E.
Collins, Regional Administrator, Region IV, US NRC, Docket No. 50-361, [CAL] - Actions to Address Steam Generator Tube Degradation [SONGS], Unit 2 (Oct. 3, 2012) (ML12285A263).
SCEs response to the CAL includes the following two enclosures that contain redacted proprietary information: (1) Enclosure 1, List of Commitments, and (2) Enclosure 2, Unit 2 Return to Service Report.
6 What we refer to as SCEs Restart Plan consists of documents (including SCEs response to the CAL) generated by SCE pursuant to the CAL. The redacted versions of these documents are located in a package in ADAMS at ML122850320.
7 As indicated during the conference call, NRDC -- as an amicus curiae -- is not entitled to be included in the Non-Disclosure Agreement as a recipient of proprietary information.
C. Proposed Scheduling Order The Board agreed with the parties that this case should proceed with dispatch. To that end, the Board suggested the following briefing schedule:
December 21, 2012: Submission of opening brief by Friends of the Earth.
December 28, 2012: Submission of brief by NRDC in support of Friends of the Earth.
January 7, 2012:
Submission of answering brief by SCE and the NRC Staff.
January 14, 2012:
Submission of reply brief by Friends of the Earth and NRDC.
The Board recognized, however, that (1) the issues underlying the questions referred by the Commission are several and complex, and (2) there are numerous proprietary documents that Friends of the Earth has not yet seen that, when released by SCE, will require time by counsel and their expert to review and evaluate. The Board also observed that this case will proceed with greater dispatch if the participants provide the Board with thoughtful, well-analyzed, and well-written briefs.
The Board therefore stated that if a party determines the above suggested schedule does not provide adequate time to prepare thorough, high-quality briefs, that party should inform the other parties, and all participants should then work in a cooperative effort toward preparation of a joint motion proposing a revised schedule.
D. Stand-Alone Briefs The Board instructed the parties to prepare stand-alone briefs that address all relevant issues and that do not incorporate any arguments by reference.8 Additionally, when they file their briefs, the parties shall submit an indexed appendix that contains each document (or relevant portions of each document) that provides material support for their arguments.9 To the 8 Our admonition against incorporating arguments by reference does not apply to NRDC to the extent it supports arguments that have been fully developed in the brief submitted by Friends of the Earth. In the interest of litigative and adjudicative efficiency, NRDC shall refrain from repeating arguments that are adequately addressed by Friends of the Earth.
9 This requirement does not extend to reported adjudicative decisions.
extent a partys brief addresses factual matters on the first issue referred by the Commission, that party should provide an affidavit, if appropriate, in support of its factual assertions.10 II.
ISSUES TO BE BRIEFED In their briefing of the two issues referred by the Commission, the parties shall include discussions that address the following questions and topical areas:
- i.
In resolving the first issue referred to this Board by the Commission, which party has the burden of persuasion?
ii.
What impact, if any, will the decision of the NRCs Executive Director of Operations, under 10 C.F.R. § 2.206, as to Friends of the Earths petition, have on the first issue referred to this Board by the Commission? See CLI-12-20, slip op. at 3-4.
iii.
To what extent do the standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) apply in determining whether the CAL constitutes a de facto licensing amendment? Cf.
supra note 3.
iv.
Does the Final Safety Analysis Report (FSAR) analyze a steam generator (S/G) tube failure event? If it does, how many tubes are assumed in the analysis and what is the primary-to-secondary leak rate? What is a conservative rate? Please provide a copy of this section of the FSAR.
- v.
Figure 4-3 in the report entitled Operational Envelope for Large U-bend Steam Generators, SONGS U2C17 Steam Generator Operational Assessment for Tube-to-Tube Wear [hereinafter Tube-to-Tube Report] compares the bulk velocity ratio and void fraction ratio to several successfully operating large S/Gs, and it notes that [a]t 100% power, the thermal-hydraulic conditions in the u-bend region of the SONGS replacement [S/Gs] exceed the past successful operational 10 Arguments advanced by Friends of the Earth on standing and contention admissibility shall not go beyond the scope of the arguments they presented to the Commission.
envelope for U-bend nuclear [S/Gs] based on presently available data. Tube-to-Tube Report at 17. How similar to the SONGS S/Gs are these other S/Gs? Do the other steam generators, for example, use alloy 670 tubes and have similar spacing, similar support structures, etc.?
vi.
Figure 5-1 in the Tube-to-Tube Report compares the same parameters as in Figure 4-3, but for operation at 70% power. It appears from Figure 5-1 that the bulk fluid velocity for SONGS is at the high end of the experiential range. Given the likely differences between the SONGS generators and those cited in the discussion, can one conclude that operation at 70% power is conservative?
vii.
Section 8.0 in the Tube-to-Tube Report states that [t]he desired margin is a projected maximum stability ratio of 0.75 with 0.95 probability at 50% confidence over the next inspection interval of 5 months. Tube-to-Tube Report at 104.
Does a confidence level of 50% meet the reasonable assurance requirement in the regulations?
viii.
Throughout the Tube-to-Tube Report, the term operational assessment is used. How is the term operational assessment different than or the same as the terms test and experiment used in 10 C.F.R. § 50.59?
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Issued at Rockville, Maryland this 7th day of December 2012.
/RA/
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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SOUTHERN CALIFORNIA EDISON CO.
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Docket Nos. 50-361-CAL (San Onofre Nuclear Generating Station - ) 50-362-CAL Units 2 and 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Conference Call Summary and Directives Relating to Briefing) 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 (Conference Call Summary and Directives Relating to Briefing) 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.
Email: edward.williamson@nrc.gov david.roth@nrc.gov catherine.kanatas@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 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 7th day of December, 2012