ML13025A197
| ML13025A197 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 01/25/2013 |
| From: | Ayres R Ayres Law Group, Friends of the Earth |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24037, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01 | |
| Download: ML13025A197 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) ) January 25, 2012
)
FRIENDS OF THE EARTHS ANSWER TO SOUTHERN CALIFORNIA EDISON COMPANYS MOTION FOR SANCTIONS AGAINST FRIENDS OF THE EARTH I. INTRODUCTION Friends of the Earth (FoE) opposes Southern California Edison Companys (SCE)
January 22, 2013 Motion for Sanctions Against Friends of the Earth for Violating the Protective Order (Motion). SCEs Motion should be denied in its entirety given the unintentional and limited nature of the disclosures, FoEs subsequent immediate actions to correct the disclosures, and the absence of any claim of harm to SCE as a result of the disclosures.1 II. BACKGROUND On June 18, 2012, FoE filed with the Nuclear Regulatory Commission (NRC) a Petition to Intervene and Application for a Stay. On November 8, 2012, the Commission referred to the Atomic Safety and Licensing Board (Board) one issue raised by FoEs Petition, which is the subject of the present proceeding: whether the process convened by the March 27, 2012 1
SCE claims that its efforts to resolve the issues raised by its motion have been unsuccessful. See Motion at FN 5,
- p. 2. FoE has removed the offending document from the public view on both the NRC ADAMS database and the FoE website and replaced it with a corrected version. Further, unlike SCE, FoE did not highlight the errors and hence spotlight the accidental disclosures, in these corrected postings.
1
Confirmatory Action Letter (CAL) process is a de facto license amendment proceeding.2 The parties thereafter executed a Non-Disclosure Agreement,3 as ordered by the Board,4 providing for the exchange of proprietary versions of SCEs October 3, 2012 Restart Plan, which included several technical assessments as attachments. SCE then provided the proprietary documents to those persons who executed Non-Disclosure Affidavits, as required by the Protective Order.5 On January 11, 2013, Friends of the Earth filed an Opening Brief and four attachments, one of which is an affidavit from nuclear engineer John Large. The 62-page document includes an extremely technical review of the Restart Plan and its supporting attachments. FoE filed an unredacted version of the affidavit in the Non-Public Docket of the NRCs e-filing system as well as a redacted version in the Public Docket. The public non-proprietary version of the affidavit contained three redacted paragraphs (5.7.39, 5.7.41, and 5.7.43).
On January 18, 2013, FoEs counsel received a call from SCEs counsel to notify FoE that SCE had found, in the public version of the affidavit, three additional references to or descriptions of proprietary information that he said were not properly redacted.6 After consulting with Mr. Large, FoE concluded the disclosures were inadvertently made and should have been redacted. FoE notified SCE of this conclusion and the parties agreed to take immediate steps to remove the affidavit from the ADAMS data base and FoEs website, the only two places where the document was publicly available, as far as FoE is aware. Based on an agreement with FoEs counsel, SCEs counsel contacted NRC staff to have the document removed from ADAMS and FoE removed it from FoEs website that same day, January 18, 2013. FoE then notified the 2
Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC __, slip op.
at 4-5 (Nov. 8, 2012).
3 Joint Motion for Entry of Protective Order (Dec. 7, 2012).
4 See Order (Conference Call Summary and Directives Relating to Briefing), at 4 (Dec. 7, 2012) (unpublished).
5 Letter from S. Frantz, SCE Counsel, to Board, Transmittal of Proprietary Documents per Licensing Boards December 7, 2012 Order (Dec. 12, 2012).
6 On January 19, 2013, SCEs counsel contacted FoEs counsel to identify an additional inadvertent disclosure in the original Large affidavit.
2
Board of the situation via email.7 On January 23, 2013 FoE filed a correctly redacted affidavit in the Public Docket. FoE intentionally refrained from filing with the corrected document a description of the changes, since this might have drawn public attention to the accidentally disclosed information.
III. SANCTIONS AGAINST FOE ARE INAPPROPRIATE The Commissions guidance on sanctions states that:
In selecting a sanction, boards should consider the relative importance of the unmet obligation, its potential for [h]arm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances. Boards should attempt to tailor sanctions to mitigate the harm caused by the failure of a party to fulfill its obligations and bring about improved future compliance.8 The Board should thus consider (1) the relative insignificance of FoEs four isolated accidental disclosures, as demonstrated by SCEs willingness to publicize in its Motion to the Board, filed as a public submission, the exact proprietary information FoE inadvertently disclosed; (2) the unintentional nature of the disclosures; (3) FoEs immediate actions to remedy the situation; (4) the lack of harm to SCE as a result of the disclosures; and (5) the publics interest in the Boards ability to consider the parties arguments based on all relevant information in making a determination in this proceeding.
A. The Disclosures Were Minimal and Unintentional The four inadvertent disclosures were an isolated incident, made in a highly technical expert affidavit, a 62-page attachment to FoEs opening brief. No reference was made to them in the brief. The disclosures were as follows:
7 Letter from R. Ayres, FoE Counsel, to Board (Jan. 18, 2013).
8 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
3
- Reproduction of Figure 8-3 from AREVAs Operational Assessment (OA), which was redacted in the public version of the OA;9
- Reference to an MHI model described and partially redacted in the OA;10 and
- Two instances of paraphrasing AREVAs conclusions in the OA regarding the root cause of tube-to-tube wear.11 FoEs handling of the affidavit that contained these disclosures illustrates the accidental nature of the disclosures. FoE did nothing to broadcast these four pieces of proprietary information to the public. Larges affidavit was posted on FoEs website as part of the complete filing with the Board. As soon as FoE became aware of the accidental disclosures, it removed the affidavit from the website (within 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> of SCEs notification). FoE also readily agreed that the parties should contact the NRC ADAMS staff immediately to request removal of the affidavit. To FoEs knowledge, SCE counsel made this request and the document was removed from the public data base.
B. SCE Has Not Stated That It Suffered Any Harm From the Accidental Disclosures As described above, the Commissions guidance requires Boards to tailor sanctions to mitigate the harm caused by the breach of a partys obligations.12 To FoEs knowledge, SCE has not alleged any harm as a result of the four accidental disclosures. SCE did not do so orally in phone conversations with FoEs counsel, nor in SCEs Motion to the Board. Furthermore, SCE has made the proprietary information inadvertently disclosed more available to the public by highlighting in its Motion exactly which proprietary information was disclosed in the January 9
Large Affidavit ¶ 5.8.18 (Jan. 11, 2013, public version), referring to AREVA OA (proprietary version) at 110.
10 Large Affidavit ¶ 5.7.46 (Jan. 11, 2013, public version), referring to AREVA OA (proprietary version) at 56.
11 Large Affidavit ¶¶ 5.7.38 and 5.7.42 (Jan. 11, 2013, public version), summarizing parts of AREVA OA (proprietary version) at 19 and 42, respectively.
12 Supra note 8.
4
11, 2013 public version of Larges affidavit. Absent SCEs description, much of the public may never have noticed the minor corrections to the properly redacted affidavit filed January 23, 2013. SCEs actions are clearly not those of a party harmed by the accidental disclosures. The lack of harm should weigh heavily in the Boards consideration of SCEs motion.
C. FoE Took Immediate Action to Correct Unintentional Disclosure Since becoming aware of the inadvertent disclosures on January 18, 2013, FoE has done everything in its power to remedy the situation. FoE removed Larges original public affidavit from the FoE website within hours of the notification from SCE. FoE readily assented to removing the document from the ADAMS data base. Also that same day, FoE notified the Board of the situation, as required by the December 10, 2012 Protective Order. On January 23, 2013, after careful review of Larges affidavit, FoE filed a properly redacted version in the public docket. These actions demonstrate the seriousness with which FoE views its obligations under the Protective Order. FoE assures the Board that FoE will take steps to ensure that such inadvertent disclosures will not happen in the future.
D. The Public Interest Lies in the Boards Access to All Relevant Information The public interest should not be cast aside because of an isolated mistake by FoE that has brought no harm to another party to this proceeding. What is at stake in this case is whether the health and safety risks to millions people will be fully vetted in a proper license amendment proceeding. FoE is a non-governmental organization representing the interest of those people; an interest best served by continuing to allow all relevant information to be used in arguments before the Board, including SCEs proprietary information. Such information could prove critical to determining whether the CAL process is tantamount to a license amendment proceeding.
5
IV. CONCLUSION For the above-stated reasons, FoEs four unintentional disclosures do not warrant the penalties sought by SCE. FoEs mistake was an isolated incident, which has not harmed SCE.
FoE has taken every step within in its power to correct its error. Given these circumstances, the sanctions SCE requests are simply not appropriate under the Commissions guidance. Thus, SCEs motion should be denied in its entirety.
Respectfully submitted,
/Signed (electronically) by/
Richard E. Ayres Counsel for Friends of the Earth Ayres Law Group 1707 L St, N.W., Suite 850 Washington, D.C. 20036 Telephone: (202) 452-9300 E-mail: ayresr@ayreslawgroup.com Dated in Washington, D.C.
this 25th day of January 2013 : Letter from John Large 6
ATTACHMENT 1 Letter from John Large
The Gatehouse 1-2 Repository Road Ha Ha Rd London SE18 4BQ 44[0]20 8317 2860 fax [0]20 8317 2859 44[0]7971 088086 largeassociates@largeassociates.com www.largeassociates.com To: Richard Ayres Ayres Law Group M3218-M1 From: John H Large 23 January 2013
Subject:
1ST AFFIDAVIT OF JOHN LARGE - NON-PROPRIETARY VERSION Further to our telephone conversation of 18 January 2013 and your e-mail of 23 January 2013, as agreed I have redacted the following from the non-proprietary version of my 1st Affidavit -
these are, seriatim:
Para 5.7.38-39 redacted in part-whole Para 5.7.42-43 redacted in whole-part Para 5.7.46 redacted in part Para 5.8.18 accompanying Figure 8-3 redacted in whole I apologise to the Court for any inconvenience that this quite unintentional error on my part may have caused.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) ) January 25, 2012
)
CERTIFICATE OF SERVICE I hereby certify that, on this date, the Friends of the Earths Answer to Southern California Edison Companys Motion for Sanctions Against Friends of the Earth and accompanying attachments were filed through the E-Filing system.
Signed (electronically) by Richard Ayres Richard E. Ayres Jessica L. Olson Kristin Hines Gladd Ayres Law Group 1707 L St., N.W., Suite 850 Washington, D.C. 20036 Phone: 202-452-9200 E-mail: ayresr@ayreslawgroup.com; olsonj@ayreslawgroup.com; gladdk@ayreslawgroup.com Counsel for Friends of the Earth 7