ML12349A023

NRC Staff'S Answer to Petitioner'S Motion to Amend the Proposed Scheduling Order and Clarify Scope of Disclosure

ML12349A023
Person / Time
Site:	San Onofre
Issue date:	12/14/2012
From:	Catherine Kanatas NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23886, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01
Download: ML12349A023 (11)

Text

December 14, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 )

Units 2 and 3) )

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NRC STAFFS ANSWER TO PETITIONERS MOTION TO AMEND THE PROPOSED SCHEDULING ORDER AND CLARIFY SCOPE OF DISCLOSURE INTRODUCTION Pursuant to the Atomic Safety and Licensing Board Panels (Board) December 12, 2012 order1 and 10 C.F.R. § 2.323(c), the staff of the Nuclear Regulatory Commission (Staff) files its answer to the Friends of the Earths (FOE's) December 11, 2012 Motion to Amend the Proposed Scheduling Order and Clarify Scope of Disclosure (Motion)2 concerning the Confirmatory Action Letter (CAL) proceeding at San Onofre Nuclear Generating Station (SONGS), Units 2 and 3.

As discussed below, the Staff does not oppose FOEs request for clarification on which documents Southern California Edison (SCE) must produce under the Boards December 7, 2012 order (Scheduling Order)3 or FOEs request for a reasonable extension of time to file its initial brief.

However, the Staff opposes FOEs Motion to the extent it requests discovery from the Staff and documents outside the scope of this proceeding.

1 Order (Directing SCE and NRC Staff to File Expedited Answers to Petitioners Extension and Clarification Request) (Dec. 12, 2012) (December 12, 2012 Order).

2 Petitioners Motion to Amend the Proposed Scheduling Order and Clarify Scope of Disclosure, (Dec.

11, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12346A484) (Motion).

3 Order (Conference Call Summary and Directives Relating to Briefing) (Dec. 7, 2012)(Scheduling Order).

BACKGROUND On June 18, 2012, FOE submitted an intervention petition challenging, among other things, a CAL issued by the NRC to SCE on March 27, 2012.4 FOE argued that the Commission should either recognize that the CAL process is a de facto license amendment proceeding requiring an adjudicatory hearing or, in the alternative, exercise its inherent supervisory authority to convene a hearing.5 The Staff answered and opposed FOE's Petition to Intervene on July, 13, 2012.6 On November 8, the Commission referred to the Board the questions of 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. § 2.309.7 The Board held a conference call to discuss administrative matters in the CAL proceeding on December 3, 2012,8 and issued a Scheduling Order on December 7, 2012. The Boards Scheduling Order (1) summarized the December 3, 2012 conference call, (2) directed further briefing and provided a proposed briefing schedule, (3) provided directives related to briefing, (4) directed the parties to develop a Non-Disclosure Agreement to govern the disclosure of certain proprietary 4

See "Petition to Intervene and Request for Hearing by Friends of the Earth" (June 18, 2012) (Petition to Intervene). The Petition to Intervene was supported by several declarations. The documents are in a single file at ADAMS Accession No. ML12171A409. FOE also submitted an application to stay on June 18, 2012. See "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,"

(June 18, 2012).

5 Petition to Intervene at 2.

6 NRC Staffs Answer to Petition to Intervene and Request for Hearing by Friends of the Earth on the Resart of the San Onofre Reactors, (July 13, 2012) (ADAMS Accession No. ML12195A330) (Staffs Answer).

The Staff also opposed FOEs stay request. See "NRC Staffs Answer To Friends off the Earth's Application To Stay Any Decision To Restart Unit 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." (June 28, 2012) (ADAMS Accession No. ML12180A624).

7 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC __ (slip op. at 5).

8 See Transcript of Southern California Edison Company, San Onofre Station, Units 2 and 3, December 3, 2012, Pages 1-39 (Dec. 3, 2012) (ADAMS Accession No. ML12342A154) (Transcript).

documents, and (5) listed questions that parties should address in their briefs.9 The Boards Scheduling Order provided that FOEs initial brief was due on or before December 21, 2012.10 In response to the Scheduling Order, FOE filed the instant Motion asking the Board to (1) clarify the scope of the documents that are subject to disclosure in this case and (2) amend the proposed briefing schedule.11 On December 12, 2012, the Board issued an order directing SCE and the Staff to answer FOEs Motion no later than 3:00 PM Eastern Standard Time, December 14, 2012.12 DISCUSSION I. Legal Standards for Discovery in Subpart L Proceedings In Subpart L proceedings, the Commission has observed that mandatory disclosures replace traditional discovery.13 Instead of traditional discovery, all parties are subject to a tiered discovery process, including the mandatory disclosure provisions in 10 C.F.R. Part 2, Subpart C, and the hearing file requirement in Subpart L.14 NRC regulations expressly provide that these mandatory disclosure provisions are the only forms of discovery permitted in Subpart L proceedings unless the Commission provides otherwise.15 9

See Scheduling Order.

10 Id. at 5. The Scheduling Order provided proposed dates for submission of briefs from NRDC in support of FOE (December 28, 2012), submission of answering briefs by SCE and NRC Staff (January 7, 2012),

and submission of a reply brief by FOE and NRDC (January 14, 2012). Id.

11 Motion. Specifically, the purposes of FOEs motion were to (1) identify the proprietary documents the Board has ordered Respondent Southern California Edison Company (SCE) to provide the Board and the other parties; and (2) give a modest amount of time prior to briefing to allow counsel and their expert to review and evaluate the documents to be made available under the Boards Order. Id. at 1.

12 December 12, 2012 Order at 2.

13 Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235, 278 (2009).

14 U.S. Army (Jefferson Proving Ground Site), CLI-05-23, 62 NRC 546, 549 (2006).

15 10 C.F.R. § 2.336(g) (The disclosures required by this section constitute the sole discovery permitted for NRC proceedings under this part unless there is further provision for discovery under the specific subpart under which the hearing will be conducted or unless the Commission provides otherwise in a specific proceeding.); 10 C.F.R. § 2.1203(d) (Except as otherwise permitted by subpart C of this part, a party may not

In so limiting discovery, the Commission noted that public access to NRC documents afforded by § 2.390, mandatory disclosures [and the hearing file] will be sufficient in most proceedings to provide a party with adequate information to prepare its position.16 Moreover, the Commission found, Reducing the burden of discovery may enhance the participation of ordinary citizens in the discovery process, since they often do not have the resources to engage in protracted litigation over discovery.17 Given this regulatory framework, the Commission has held that petitioners are not entitled to discovery to assist them in framing contentions.18 II. Staffs Position On FOEs Motion As discussed below, the Staff supports in part and opposes in part FOEs Motion.

A. Staff Does Not Oppose FOEs Request for Clarification or a Reasonable Extension The Boards Scheduling Order discussed its view of the scope of the documents that are subject to disclosure in this proceeding. Specifically, the Board stated that it believed that access to the proprietary versions of the documents referred to in SCEs response to the CAL [the October 3, 2012 Unit 2 Restart Plan] and the proprietary versions of the documents generated pursuant to the CAL in SCEs Restart Plan are necessary for the Board to determinewhether the CAL itself is a de facto license amendment 19 The Board directed SCE to prepare and execute a Joint Non-Disclosure Agreement regarding (1) the proprietary versions of the documents in SCEs response to seek discovery from any other party or the NRC or its personnel, whether by document production, deposition, interrogatories or otherwise.).

16 Changes to Adjudicatory Process, Final Rule, 69 Fed. Reg. 2,182, 2,195 (Jan. 14, 2004).

17 Id. at 2,194.

18 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) CLI-08-28, 68 NRC 658, 676 & n.73, (2008).

19 Scheduling Order at 4. The Staffs position is that the Restart Plan is not relevant to the narrow issue before the Board. See Transcript at 13, 25, 35-36, 39. However, the Staff will comply with the Boards Scheduling Order, and will fully brief the issues outlined in that order.

the CAL, [and] 20 (2) the proprietary versions of the other documents SCE generated pursuant to the CAL that are located in SCEs Restart Plan.21 FOEs Motion seeks to clarify exactly which documents are subject to disclosure.22 The Staff does not oppose FOEs Motion to the extent it requests that the Board identify exactly which proprietary documents SCE should provide pursuant to the Boards Scheduling Order. While the Staff is not subject to the Non-Disclosure agreement between SCE and FOE or required to disclose any documents, the Staff believes a clear understanding of which documents must be released will result in a more efficient and fair proceeding.23 The Staff also does not oppose FOEs Motion to the extent it requests a modest amount of time prior to briefing to allow counsel and their expert to review and evaluate the documents to be made available under the Boards Order.24 However, FOEs Motion does not provide adequate justification for a 6 week extension of time in which to file its initial brief.25 Instead, the Staffs position is that a reasonable extension would require FOE to file its initial brief on or before January 4, 2012.26 This would provide FOE a 3 week extension of time in which to file its initial brief,27 which should provide the modest time requested in which to review and evaluate documents and prepare a brief.

20 The Scheduling Order cited SCEs October 3, 2012 Restart Plan for Unit 2, including enclosures 1 and 2, available at ADAMS Accession No. ML12285A263.

21 The Scheduling Order stated that What [the Board refers] 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.).

22 Motion at 1.

23 For example, as discussed below, certain documents related to the Augmented Inspection Team Report may be relevant to the issues before the Board, while others are clearly not as they relate to the § 2.206 matter referred by the Commission to the Staff. See San Onofre, CLI-12-20, 76 NRC __ (slip op. at 3-4).

24 Motion at 1.

25 Compare Motion at 5-6 with Scheduling Order at 5.

26 See Email from Catherine E. Kanatas, Counsel for NRC Staff, to Jessica L. Olson, Counsel for FOE, Re: Request for Position on Petitioner's Motion in San Onofre Matter, (Dec. 11, 2012) (Attachment A) (Staffs E-mail).

27 See Scheduling Order at 5 (providing for FOEs initial brief to be filed by December 21, 2012).

A 3 week extension is reasonable in this case because (1) many of the documents related to the Restart Plan are publicly available and have been since October 4, 201228 (2) the question of whether the CAL issued to SCE is a de facto license amendment is a narrow and familiar issue to all of the parties.29 B. Staff Opposes FOEs Discovery Requests Directed at the Staff While the Staff does not oppose FOEs request for clarification or a reasonable extension, the Staff opposes FOEs Motion to the extent it requests disclosure from the NRC Staff.30 Commission case law is clear that discovery from the Staff is not proper at this stage in the proceeding.31 The regulations also clearly state that mandatory disclosures are the only discovery in subpart L proceedings, unless the Commission directs otherwise.32 The Staff is not subject to the Non-Disclosure agreement between SCE and FOE.33 Therefore, any disclosure request should be directed at SCE, not NRC staff. For all of these reasons, the Board should not direct the Staff to produce any documents at this stage in the proceeding.

C. Staff Opposes FOEs Requests for Documents Irrelevant to the Questions Before the Board The Staff also opposes FOEs Motion to the extent it requests disclosure of documents that are not relevant to the narrow issues before the Board: whether the March 27, 2012 CAL issued to 28 See 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.

29 See, e.g., Petition to Intervene (raising the issue); Staffs Answer (addressing the issue).

30 See Motion at 5 (FoE therefore requests the Board to direct SCE and NRC Staff to disclose to FoE the propriety documents listed in the attachments. (Emphasis added)).

31 See Oyster Creek, CLI-08-28, 68 NRC at 676 & 73.

32 10 C.F.R. §§ 2.336(g); 2.1203(d),

33 See Order (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement) at 2

¶ 3 (Dec. 10, 2012) (The terms of this Protective Order do not apply to the NRC Staff, NRC contractors, or NRC legal counsel. The NRC Staffs use of Protected Information is governed by NRC regulations and policies as well as other applicable law.).

SCE constitutes a de facto license amendment, and if so, whether FOEs Petition meets the Commissions contention admissibility requirements.34 While FOEs motion suggests that the Staff only opposed disclosure of documents related to the Augmented Inspection Team Report (AIT Report),35 the Staff indicated to FOE that the AIT Report documents were just an example of documents the Staff considered outside the scope of this proceeding.36 As discussed in the Staffs previous filings and on the December 3, 2012 conference call with the Board and parties, the Staffs position is that the October 3, 2012 Restart Plan is not relevant to deciding the issue before the board, i.e., whether the CAL issued to SCE is a de facto license amendment.37 In short, while the CAL confirms that the licensee will not restart until the NRC is satisfied with the steps taken under the licensee's "Steam Generator Return-to-Service Action Plan,"38 the CAL itself does not provide SCE with greater authority than it has in its current license.39 The Staff is separately reviewing whether the licensees Restart Plan, if adopted, would result in a proceeding for the granting, suspending, revoking, or amending of any license.

34 San Onofre, CLI-12-20, 76 NRC __ (slip op. at 5).

35 Motion at 1-2 (Counsel for NRC Staff do not oppose the Board ordering SCE to provide the documents requested in this motion, except with respect to the documents related to the Augmented Inspection Team report).

36 See Staffs Email (Attachment A).

37 See, e.g., NRC Staffs Response to Request that the NRC Decide Petition to Intervene and Application to Stay Restart Decision, (Oct. 25, 2012) at 3, 5; Transcript at 13, 25, 35-36, 39. Given the expedited briefing schedule for Staffs answer to the instant Motion, Staff did not review each of the documents listed in the Motions attachments to determine the relevance of each document.

38 SCE submitted its Steam Generator Return-to-Service Action Plan on March 23, 2012, committing to execute the plan prior to returning Units 2 and 3 to power operation. See Letter from Peter T. Dietrich, Senior Vice President & Chief Nuclear Officer, Southern California Edison Company to Elmo E. Collins, Regional Administrator, Region IV, USNRC, subject: Docket Nos. 50-361 and 50-362, Steam Generator Return-to-Service Action Plan, San Onofre Nuclear Generating Station (Mar. 23, 2012) (ADAMS Accession No. ML12086A182). On March 26, 2012, the NRC confirmed its understanding of SCEs planned actions by phone, and on March 27, 2012, NRC memorialized this understanding in the CAL, which confirmed the actions to be taken prior to restarting either unit.

39 Instead, the CAL confirmed that SONGS Unit 2 will not enter Mode 2, and SONGS Unit 3 will not enter Mode 4 (as defined in the technical specifications), until the NRC has completed its review of the actions from the March 23, 2012 Return to Service Plan. See CAL. This position is consistent with the position the Staff has taken in responding to each of FOEs filings. See, e.g., Staffs Answer at 2. The Staffs brief in response to the Boards Scheduling Order will expand on that position.

FOEs Motion requests disclosure of proprietary documents referred to in the [AIT Report].40 FOE argues that its experts have identifiedspecific documents listed [in the AIT Report] as relevant and probative with respect to the questions put by the Board, and the two issues referred by the Commission.41 But FOE does not indicate how the documents it identifies from the AIT Report are related to the question of whether the CAL is a de facto license amendment or whether FOEs petition meets the Commissions contention admissibility standards. The AIT Report makes findings related to SCEs 10 C.F.R. § 50.59 evaluation in support of the steam generator replacement. 42 Specifically, the team determined that SCE provided the NRC with all the information required under existing regulations about proposed design changes to its steam generators prior to replacing them in 2010 and 2011.43 The Commission has made clear that FOEs § 50.59 claims regarding the steam generator replacement are outside the scope of the CAL issue referred to the Board.44 Instead, that claim was referred to the Staff for its consideration in a 10 C.F.R. § 2.206 proceeding. The AIT report referenced in FOEs Motion relates to those § 50.59 claims.45 Therefore, FOEs request to obtain documents related to this report is outside the scope of this proceeding and the Board should not order the NRC Staff to disclose those documents.

40 Motion at 5. See San Onofre Nuclear Generating Station - NRC Augmented Inspection Team Report 05000361/2012007 and 05000362/2012007 (July 18, 2012) (ADAMS Accession No. ML12188A748) (AIT Report).

41 Motion at 5.

42 NRC Press Release No. IV-12-028, NRC Issues Augmented Inspection Team Report on San Onofre Nuclear Generating Station Steam Generators, (July 19, 2012) at 1.

43 Id.

44 San Onofre, CLI-12-20, 76 NRC __ (slip op. at 3-4).

45 See NRC Press Release No. IV-12-028 at 1 (describing purposes of investigation and report).

CONCLUSION For the reasons discussed above, the Staff supports in part and opposes in part FOEs Motion.

Respectfully submitted,

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov

Attachment A Kanatas, Catherine From: Kanatas, Catherine Sent: Tuesday, December 11, 2012 4:10 PM To: 'Jessica L. Olson' Cc: Roth(OGC), David; Richard Ayres; Kristin Hines Gladd

Subject:

RE: Request for Position on Petitioner's Motion in San Onofre Matter

Jes, The Staff does not oppose FOEs attempt to identify the documents referenced in the Boards December 7, 2012 order. However, the Staff opposes FOEs motion to the extent it (1) requests discovery against the Staff as that is impermissible under Commission precedent at this stage in the proceeding and (2) requests documents (e.g., the AIT report) that are outside the scope of this proceeding. The Staff does not oppose providing FOE a reasonable extension of time (e.g., until January 4, 2012) to file its initial brief. The Staff reserves its right to reply to the motion once filed.

Best regards, Cathy NOTICE: This email and any attachments may contain confidential Attorney-Client or Attorney Work-Product material. Do not disclose outside NRC without Commission approval.

From: Jessica L. Olson [1]

Sent: Tuesday, December 11, 2012 2:12 PM To: Kanatas, Catherine Cc: Roth(OGC), David; Richard Ayres; Kristin Hines Gladd

Subject:

Re: Request for Position on Petitioner's Motion in San Onofre Matter Catherine-Attached is a draft of our motion. Please understand that given the short timetable for briefing currently in place, we would like to file this motion by 5pm today and would like very much to be able to state the staff's position on it. Thank you in advance for your prompt review and response to the document.

Regards, Jes 1

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

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SOUTHERN CALIFORNIA EDISON CO. ) Docket Nos. 50-361-CAL/ 50-362-CAL

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(San Onofre Nuclear Generating Station) )

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CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER TO PETITIONERS MOTION TO AMEND THE PROPOSED SCHEDULING ORDER AND CLARIFY SCOPE OF DISCLOSURE AND ATTACHMENT A in the above-captioned matter have been served on the following by Electronic Information Exchange this 14th day of December, 2012.

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Dated at Rockville, Maryland this 14th day of December, 2012