ML13039A193

NRC Staff Answer to Citizens Oversight Appeal

ML13039A193
Person / Time
Site:	San Onofre
Issue date:	02/08/2013
From:	David Cylkowski, Matthew Smith NRC/OGC
To:	NRC/OCM
SECY RAS
References
RAS 24109, 50-361-LA, 50-362-LA, ASLBP 12-923-01-LA-BD01
Download: ML13039A193 (27)

Text

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

)

SOUTHERN CALIFORNIA EDISON COMPANY ) Docket Nos. 50-361-LA/50-362-LA

)

(San Onofre Nuclear Generating Station )

Units 2 and 3) )

NRC STAFF ANSWER TO CITIZENS OVERSIGHT APPEAL Maxwell C. Smith David M. Cylkowski Counsel for NRC Staff February 8, 2013

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ........................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 I. Procedural History ................................................................................................. 2 II. SCEs License Amendment Request .................................................................... 3 LEGAL STANDARDS ................................................................................................................... 6 ARGUMENT ................................................................................................................................. 7 I. Citizens Oversights References to Industry Endorsement, NRC Policy, and Common Use Do Not Demonstrate Legal Error or Abuse of Discretion................ 7 II. Citizens Oversight Has Not Demonstrated that the Boards Interpretation of Millstone Was Legally Incorrect or an Abuse of Discretion ................................... 8 III. Citizens Oversight Has Not Established that Removing Surveillance Frequencies from the Technical Specifications is Illegal .......................................................... 11 IV. Citizens Oversight Did Not Provide an Adequate Factual Basis for Contention 1 ......................................................................................... 16 CONCLUSION ............................................................................................................................ 21

ii TABLE OF AUTHORITIES Page U.S. SUPREME COURT DECISIONS Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) .............................. 13 ADMINISTRATIVE DECISIONS Commission Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399 (2007) ....... 17 Curators of the Univ. of Missouri, CLI-95-8, 41 NRC 386 (1995) ................................................. 4 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349 (2001) ............................................................................................passim Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-08-17, 68 NRC 231 (2008) ................................................................................................................. 7, 16 Louisiana Energy Services, LP (National Enrichment Facility), CLI-04-35, 60 NRC 619 (2004) ..................................................................................................................... 17 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __ (2012) ...... 17 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727(2006) ........................................................................................................................ 7 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-01, 61 NRC 129 (2005) ............................................................................................................... 17, 20 Atomic Safety and Licensing Board Southern California Edison Co., (San Onofre Nuclear Generating Station, Units 2 and 3),

LBP-12-25, 76 NRC __ (2012) .............................................................................................passim STATUTES 42 U.S.C. § 2232 .................................................................................................................. 12, 13 REGULATIONS 10 C.F.R. § 2.309(c)(1) ................................................................................................................. 7 10 C.F.R. § 2.309(f)(1) .........................................................................................................passim 10 C.F.R. § 2.311.......................................................................................................................... 6 10 C.F.R. § 2.311(b) ..................................................................................................................... 1

iii 10 C.F.R. § 2.341.......................................................................................................................... 6 10 C.F.R. § 2.341(c) ..................................................................................................................... 1 10 C.F.R. § 50.36.................................................................................................................passim 10 C.F.R. § 50.36(c)(3) ........................................................................................................... 4, 12 10 C.F.R. § 50.59........................................................................................................................ 20 10 C.F.R. § 50.65........................................................................................................................ 20 10 C.F.R. § 50.90........................................................................................................................ 20 MISCELLANEOUS Asher Koriat et al, Reasons for Confidence, 6 JOURNAL OF EXPERIMENTAL PSYCHOLOGY: HUMAN LEARNING AND MEMORY 107 (1980) ....................................................................................... 18, 19 Baruch Fischoff et al, Fault Trees: Sensitivity to Estimated Failure Probabilities to Problem Representation, 4 JOURNAL OF EXPERIMENTAL PSYCHOLOGY: HUMAN PERCEPTION AND PERFORMANCE 330 (1978) ................................................................................................... 18, 19 Docket No. 50-361, SONGS Unit 2 Facility Operating License No. NPF-10 (Oct. 16, 2012)

(ADAMS Accession No. ML053130316) ..................................................................................... 16 Docket No. 50-362, SONGS Unit 3 Facility Operating License No. NPF-15 (Oct. 16, 2012)

(ADAMS Accession No. ML053140357) ..................................................................................... 16 Final Policy Statement on Technical Specifications Improvements for Nuclear Power Reactors, 58 Fed. Reg. 39,132 (Jul. 22, 1993) ............................................................................... 12, 14, 15 Final Policy Statement: Use of Probabilistic Risk Assessments in Nuclear Regulatory Activities, 60 Fed. Reg. 42,622 (Aug. 16, 1995) ......................................................................................... 13 Final Safety Evaluation for Nuclear Energy Institute (NEI) Topical Report (TR) 04-10, Revision 1, Risk Informed Technical Specification Initiative 5B, Risk-Informed Method for Control of Surveillance Frequencies (TAC No. MD6111) (Sep. 19, 2007)

(ADAMS Accession No. ML072570267) ................................................................................... 4, 6 Institute of Nuclear Power Operations, An Analysis of Root Causes in 1983 Significant Event Reports, INPO 84-027 (1984) ..................................................................................................... 18 Institute of Nuclear Power Operations, A Maintenance Analysis of Safety Significant Events (1985).......................................................................................................................................... 18 JAMES REASON, HUMAN ERROR (1991) ........................................................................................ 18

iv Letter to NRC, from TSTF-A Joint Owners Group, Transmittal of TSTF-425, Revision 3, Relocate Surveillance Frequencies to Licensee Control-RITSTF Initiative 5b (March 18, 2009)

(ADAMS Accession No. ML090850642) ....................................................................................... 3 Notice of Availability of Technical Specification Improvement to Relocate Surveillance Frequencies to Licensee Control - Risk Informed Technical Specification Task Force (RITSF)

Initiative 5b, Technical Specification Task Force - 425, Revision 3, 74 Fed. Reg. 31,996 (July 6, 2009) ...................................................................................................................... 3, 4, 13 Nuclear Energy Institute Topical Report 04-10, Revision 1, Risk Informed Technical Specifications Initiative 5B, Risk-Informed Method for Control of Surveillance Frequencies (Apr. 2007) (ADAMS Accession No. ML071360456) ...........................................................passim Nuclear Energy Institute Topical Report 96-07, Guidelines for 10 CFR 50.59 Implementation, Rev. 1 (Nov. 2000) (ADAMS Accession No. ML003771157) ...................................................... 20 NUREG-1432, Standard Technical Specifications, Combustion Engineering Plants, Vol. 1, Rev. 3 (Jun. 2004) (ADAMS Accession No. ML041830597) ............................................. 3 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, Confirmatory Action Letter -

Actions to Address Steam Generator Tube Degradation [SONGS], Unit 2 (Oct. 3, 2012)

(ADAMS Accession No. ML122850320) ....................................................................................... 3 Regulatory Guide 1.174, Rev. 1, An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis, (Nov. 2002)

(ADAMS Accession No. ML023240437) ................................................................................... 4, 6 Regulatory Guide 1.177, Rev. 0, An Approach for Plant-Specific Risk-Informed Decision-making: Technical Specifications, (Aug. 1998) (ADAMS Accession No. ML003740176) ............ 4 Southern California Edison License Amendment Request for San Onofre Nuclear Generating Station (Units 2 and 3) (ADAMS Accession No. ML112510214) .........................................passim Southern California Edison, San Onofre Nuclear Generating Station, Units 2 and 3; Application and Amendment to Facility Operating License Involving Proposed No Significant Hazards, 77 Fed. Reg. 49,463 (Aug. 16, 2012) ....................................................................................... 3, 4

February 8, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

SOUTHERN CALIFORNIA EDISON COMPANY ) Docket Nos. 50-361-LA/50-362-LA

)

(San Onofre Nuclear Generating Station )

Units 2 and 3) )

NRC STAFF ANSWER TO CITIZENS OVERSIGHT APPEAL INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b) and § 2.341(c), the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer opposing Citizens Oversights appeal of the Atomic Safety and Licensing Boards (Board) December 21, 2012 order (Order) denying Citizens Oversights Petition to Intervene and Request for Hearing (Petition). 1 In its appeal, Citizens Oversight asserts that the Boards denial of [the] petition was inappropriate and requests reversal of the Boards decision.2 For the reasons set forth below, Citizens Oversights appeal should be denied because it has not identified any error of law or abuse of discretion in the Boards Order.

The Petition alleged that a proposed license amendment, which would relocate surveillance frequencies from the license to a licensee-controlled document, would deprive 1

Citizens Oversight Petition for Review of LBP-12-25 (Jan. 14, 2013) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML13015A000) (Appeal); Petition to Intervene and Request for Hearing by Citizens Oversight (Oct. 17, 2012) (ADAMS Accession No. ML12291B227)

(Petition).

2 Appeal at 4-5.

Citizens Oversight of hearing rights on future changes to those surveillance frequencies.3 But, Citizens Oversight did not show how the license amendment would increase the risk to public health and safety.4 Thus, the Board correctly applied controlling Commission precedent to determine that the Petition did not set forth an admissible contention.5 BACKGROUND I. Procedural History This proceeding concerns Southern California Edison Companys (SCE or Licensee)

July 29, 2011 license amendment request (LAR) for San Onofre Nuclear Generating Station (SONGS) Units 2 and 3.6 On October 17, 2012, Citizens Oversight filed a petition to intervene and a request for hearing containing three contentions.7 The Staff and SCE filed answers on November 9, 2012, and November 13, 2012, respectively.8 The Board held an oral argument on the Petition in Rockville, Maryland on December 5, 2012.9 On December 21, 2012, the Board issued an order holding all three contentions inadmissible and denying the Petition..10 On January 14, 2013, Citizens Oversight filed the instant appeal of the Boards order. In the appeal, Citizens Oversight argues that the Board erred in denying admission of the Petitions 3

Petition at 5-8.

4 Southern California Edison Co., (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-12-25, 76 NRC __, __ (2012) (slip op. at 12-13).

5 Id. at 13-14 (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359-60 (2001)).

6 The 19 electronic documents composing the license amendment request are in an electronic package at ADAMS Accession No. ML112510214 (LAR).

7 Petition at 1.

8 NRC Staffs Answer to Petition to Intervene and Request for Hearing by Citizens Oversight, (Nov. 9, 2012) (ADAMS Accession No. ML12314A361) (NRC Staff Answer); Southern California Edison Companys Answer Opposing Petition to Intervene and Request for Hearing by Citizens Oversight (Nov.

13, 2012) (ADAMS Accession No. ML12318A322).

9 San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 3-4).

10 Id. at 21.

first contention (Contention 1), which challenged the proposed removal of certain surveillance frequencies from the technical specifications in the SONGS operating licenses to SCEs Surveillance Frequency Control Program (SFCP), a licensee-controlled document. Citizens Oversight does not challenge the Boards ruling that the remaining two contentions were inadmissible.11 II. SCEs License Amendment Request Generally, SCEs license amendment request proposed to adopt an updated version of the standard technical specifications applicable to SONGS. 12 SCE also proposed to implement some licensing changes described in several recent Technical Specification Task Force (TSTF) travelers, documents which propose and justify generic licensing changes individual facilities may adopt with NRC approval.13 One of those TSTF travelers was TSTF-425, Revision 3, Relocate Surveillance Frequencies to Licensee Control RITSTF Initiative 5b (TSTF-425).14 The NRC approved TSTF-425, which allows licensees to relocate surveillance frequencies associated with the surveillance requirements in a plants technical specifications to a licensee-controlled document.15 NRC regulations state, Surveillance requirements are requirements 11 Appeal at 5. The second contention claimed that the LAR contained a variety of safety problems and clerical errors and the third contention challenged SCEs proposed return to service plan for SONGS Unit 2. Petition at 9, 16; see also 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, Confirmatory Action Letter - Actions to Address Steam Generator Tube Degradation [SONGS], Unit 2 (Oct. 3, 2012) (the entire return to service plan is available in an electronic package at ADAMS Accession No. ML122850320).

12 Southern California Edison, San Onofre Nuclear Generating Station, Units 2 and 3; Application and Amendment to Facility Operating License Involving Proposed No Significant Hazards, 77 Fed. Reg.

49,463, 49,464 (Aug. 16, 2012). Specifically, SONGS sought to adopt the standard technical specifications the NRC approved in NUREG-1432, Standard Technical Specifications, Combustion Engineering Plants, Vol. 1, Rev. 3, (Jun. 2004) (ADAMS Accession No. ML041830597).

13 77 Fed. Reg. at 49,464.

14 LAR, Enclosure 3, at 2; Letter to NRC, from TSTF-A Joint Owners Group, Transmittal of TSTF-425, Revision 3, Relocate Surveillance Frequencies to Licensee Control-RITSTF Initiative 5b (March 18, 2009) (ADAMS Accession No. ML090850627).

15 Notice of Availability of Technical Specification Improvement to Relocate Surveillance

relating to test, calibration, or inspection to assure that the necessary quality of systems and components is maintained, that facility operation will be within safety limits, and that the limiting conditions for operation will be met.16 Surveillance frequencies specify the intervals at which the licensee must meet the surveillance requirements, but NRC regulations do not require surveillance frequencies to be in the technical specifications.17 Licensees that adopt TSTF-425 must amend their technical specifications to include a provision that controls future changes to the surveillance frequencies.18 Under that provision the licensee may only modify the relocated surveillance frequencies in accordance with Nuclear Energy Institute (NEI) Topical Report 04-10, Revision 1, Risk Informed Technical Specifications Initiative 5B, Risk-Informed Method for Control of Surveillance Frequencies (NEI 04-10).19 The NRC separately approved NEI 04-10 via letter in 2007.20 In its LAR, SCE proposed to relocate numerous surveillance frequencies to SCEs SFCP, a licensee-controlled document.21 Frequencies to Licensee Control - Risk Informed Technical Specification Task Force (RITSF) Initiative 5b, Technical Specification Task Force - 425, Revision 3, 74 Fed. Reg. 31,996, 31,996 (July 6, 2009). A licensee is free either to rely on NUREGs and Regulatory Guides or to take alternative approaches to meet legal requirements (as long as those approaches have the approval of the Commission or NRC Staff). Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 397 (1995).

16 10 C.F.R. §50.36(c)(3).

17 Id.

18 74 Fed. Reg. at 32,001.

19 Id at 32,001-02; (citing Nuclear Energy Institute (NEI) Topical Report 04-10, Revision 1, Risk Informed Technical Specifications Initiative 5B, Risk-Informed Method for Control of Surveillance Frequencies (April 2007) (ADAMS Accession No. ML071360456) (NEI 04-10)).

20 Final Safety Evaluation for Nuclear Energy Institute (NEI) Topical Report (TR) 04-10, Revision 1, Risk Informed Technical Specification Initiative 5B, Risk-Informed Method for Control of Surveillance Frequencies (TAC No, MD6111) (Sep. 19, 2007) (ADAMS Accession No. ML072570267) (Safety Evaluation of NEI 04-10). NEI 04-10 is consistent with Regulatory Guide 1.174, Rev. 1, An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis, (Nov. 2002) (ADAMS Accession No. ML023240437) (Reg. Guide 1.174) and Regulatory Guide 1.177, Rev. 0, An Approach for Plant-Specific Risk-Informed Decisionmaking: Technical Specifications, (Aug. 1998) (ADAMS Accession No. ML003740176).

21 77 Fed. Reg. at 49,465.

Under SCEs proposed amendment, Changes to the Frequencies listed in the [SFCP]

shall be made in accordance with NEI-04-10.22 NEI 04-10, Rev. 1, provides five key safety principles for consideration when changing surveillance frequencies:

1) The proposed change meets the current regulations unless it is explicitly related to a requested exemption or rule change;

2) The proposed change is consistent with the defense-in-depth philosophy;

3) The proposed change maintains sufficient safety margins;

4) When proposed changes result in an increase in core damage frequency or risk, the increases should be small and consistent with the intent of the Commissions Safety Goal Policy Statement; and

5) The impact of the proposed change should be monitored using performance measurement strategies.23 In general, NEI 04-10 requires licensees who adopt TSTF-425 to conduct a rigorous probabilistic risk assessment (PRA) to ensure that any surveillance frequency changes will meet these safety principles.24 The PRA must comply with NRC guidance, withstand peer review, and include sensitivity studies to account for uncertainties.25 In addition, the licensee must document the results of its analysis, which are subject to NRC inspection.26 Under NEI 04-10, an Independent Decisionmaking Panel must approve all proposed changes to the surveillance frequencies.27 Changes to the surveillance frequencies must 22 LAR, Attachment 1, Vol. 14, at 83.

23 NEI 04-10, at 5-7.

24 Id. at 8-27.

25 Id. at 10, 25-26.

26 E.g., id. at 27, 28, 30, Appendix A.

27 Id. at 27. The panel includes the site Maintenance Rule Expert Panel, a Surveillance Test Coordinator, and a Subject Matter Expert. Id. The qualifications for [Independent Decisionmaking Panel] members who are Maintenance Rule Expert Panel members are the same as the Maintenance Rule Expert Panel qualifications. The [Surveillance Test Coordinator] is a specialist with experience in

comply with the Commissions safety goals described in Reg. Guide 1.174, An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant Specific Changes to the Licensing Basis.28 Thus, any change to a given surveillance frequency may not increase core damage frequency by more than 1x10-6 per year or large early release frequency by more than 1x10-7 per year.29 In addition, the cumulative increase in core damage frequency and large early release frequency from all surveillance frequency changes may not exceed 1x10-5 per year and 1x10-6 per year, respectively.30 Finally, NEI 04-10 requires licensees to monitor surveillance frequency changes, periodically reassess those changes, and revise them as needed.31 In approving NEI 04-10, the NRC explicitly noted that the process for amending surveillance frequencies in NEI 04-10 includes peer review, use of industry standards, and sensitivity and uncertainty analyses.32 LEGAL STANDARDS Although Citizens Oversight submits its appeal [p]ursuant to 10 C.F.R. § 2.341,33 10 C.F.R. § 2.311 provides the correct standard for review because the subject of this appeal is an initial intervention petition.34 An appeal under § 2.311 will be denied unless the petitioner demonstrates legal error or abuse of discretion in the order below.35 surveillance tests, and the [Subject Matter Expert] is a specialist with experience in system or component reliability, e.g., a cognizant system manager or component engineer. Id.

28 Id. at 24 (citing Reg. Guide 1.174).

29 Id. A frequency expressed in terms of 1x10-6 per year indicates that a given event would likely occur once every million years; a frequency of 1x10-7 per year indicates that a given event would likely occur once every ten million years.

30 Id. A frequency of 1x10-5 per year indicates that a given event would likely occur once every one hundred thousand years.

31 Id. at 28-30.

32 Safety Evaluation of NEI 04-10, at 4-7.

33 Appeal at 1.

34 San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 22).

ARGUMENT Citizens Oversight argues that the appeal should be granted because (1) the LAR is not automatically appropriate and lawful just because it is being done already [at other facilities] or endorsed by the industry or NRC staff; (2) the Board improperly applied the holding of Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001) (Millstone) to Contention 1; and (3) relocating certain surveillance frequencies from the technical specifications is illegal.36 Because none of these conclusory arguments demonstrate legal error or abuse of discretion in the Boards Order, the appeal should be denied.37 I. Citizens Oversights References to Industry Endorsement, NRC Policy, and Common Use Do Not Demonstrate Legal Error or Abuse of Discretion Citizens Oversight argues first that the proposed surveillance frequency relocation is not automatically appropriate and lawful just because it is being done already or endorsed by the industry or NRC staff.38 In support of this argument, Citizens Oversight quotes the Boards statement that it reject[s] the suggestions by SCE and the NRC Staff that the relocation of these surveillance frequency requirements is necessarily legal because (a) the nuclear industry endorses this practice, (b) NRC policy endorses it, or (c) everybody else is doing it. 39 35 E.g., Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

36 Appeal at 8.

37 Citizens Oversight also argues that in neglect[ing] to include legal arguments from Citizens Oversight as presented [at oral argument] on Dec. 5, 2012 in its Order, the Board committed error rendering denial of [the] petition . . . inappropriate. Appeal at 4-5. However, to the extent the Board declined to consider additional bases for Contention 1 advanced for the first time at oral argument, the Board followed well-established Commission precedent. E.g., Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (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 the late-filing criteria set forth in 10 C.F.R. § 2.309(c)[1].) (emphasis added).

38 Appeal at 8.

39 Id. at 8 (quoting San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 14 n.23)).

This argument does not demonstrate legal error or abuse of discretion. As an initial clarification, the Staff did not claim that industry endorsement, NRC policy, or common use render the proposed surveillance frequency relocation necessarily legal.40 More importantly, the Board explicitly stated that its ruling on the admissibility of Contention 1 was not based on industry endorsement, NRC policy, or common use.41 Instead, the Board found Contention 1 inadmissible in light of the factors outlined in § 2.309(f)(1), as interpreted by Millstone.42 Therefore, Citizens Oversights arguments on industry endorsement, NRC policy, and common use do not demonstrate legal error or abuse of discretion. Rather, Citizens Oversight appears to agree with the Board on this issue.

II. Citizens Oversight Has Not Demonstrated that the Boards Interpretation of Millstone Was Legally Incorrect or an Abuse of Discretion Citizens Oversight argues that the Board incorrectly found that Contention 1 did not raise a material issue as required by 10 C.F.R. § 2.309(f)(1)(iv).43 Specifically, Citizens Oversight challenges the Boards reasoning that the Commissions decision in Millstone compelled that finding.44 However, Citizens Oversights appeal does not point to any error or abuse of discretion in the Order. The Board appropriately reasoned that the key issue raised by Contention 1 was whether relocating the surveillance frequency requirements from the license to a licensee-controlled document is improper because it will deprive the public of any opportunity to 40 See generally NRC Staff Answer at 15-23 (responding to Contention 1).

41 San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 14 n.23).

42 Id. at 13 (citing Millstone, CLI-01-24, 54 NRC at 359-60).

43 Appeal at 9-16.

44 See San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 13).

scrutinize or challenge further changes to the surveillance frequencies.45 In light of that conclusion, the Board appropriately applied Millstone and 10 C.F.R. § 2.309(f)(1)(iv) to find Contention 1 inadmissible.46 In Millstone, the petitioners submitted a contention challenging a license amendment request seeking to relocate certain low-level effluent monitoring details from the technical specifications to a licensee-controlled document.47 In affirming the Boards denial of the petition to intervene, the Commission noted the petitioners rel[iance] . . . on their loss of future opportunities to challenge - by adjudicatory intervention - licensee-initiated changes in the low-level effluent monitoring details.48 In responding to the claim, the Commission stated that

[t]echnical specifications that do not meet any of the criteria [in 10 C.F.R. § 50.36] may be transferred to licensee-controlled documents.49 Consequently, the Commission held that the petitioners contention must be based on more than a loss of future hearing opportunities.

Rather, to prevail on such a claim, petitioners must submit a specific explanation, factual or legal, for why the [safety] consequences they fear will occur if these particular technical specifications are transferred to the licensee-controlled document.50 As noted by the Board below, Citizens Oversight has not demonstrated why the surveillance frequencies at issue in the LAR must be retained in the technical specifications or otherwise meet the criteria of 10 C.F.R. § 50.36.51 Likewise, Citizens Oversight has not 45 Id. at 10-11.

46 Id.

47 Millstone, CLI-01-24, 54 NRC at 350-52.

48 Id. at 359.

49 Id. at 352.

50 Id. at 359.

51 San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 13); see infra Argument Section III.

demonstrated that some particular aspect of the other conditions in the SONGS licenses or some alleged deficiencies in the SCE surveillance program would require SCE to include the surveillance frequencies in the technical specifications under Millstone.52 Rather, in light of Millstone, Contention 1 was not material under 10 C.F.R. § 2.309(f)(1)(iv) and was therefore inadmissible.53 Citizens Oversight argues that because the surveillance frequencies at issue in the LAR have a greater safety significance than the effluent monitoring details at issue in Millstone, Millstone is inapplicable here. Specifically, Citizens Oversight argues that Millstone is substantially different from this case because in Millstone, they were concerned with radioactive effluent from the plant.54 In contrast, the surveillance frequencies proposed by SCE at

[SONGS] are inside the containment building and largely deal with the minute-by-minute operation of the nuclear reactor, cooling, and safety systems, and are related to [limiting]

conditions of operation.55 However, Citizens Oversight does not demonstrate that the Board committed legal error or an abuse of discretion in holding that the Commissions reasoning in Millstone compels rejection of Contention 1. Millstone was not grounded solely in the safety significance of the subject of a monitoring detail or surveillance frequency. To the contrary, the Commission specifically rejected the petitioners submission of a speculative chain of events leading to potential injury, including speculation that relocating the monitoring details would result in lax monitoring and an increased risk of avoidable radiation releases.56 The petitioners erred in 52 San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 13); see infra Argument Section IV.

53 See id. at 14.

54 Appeal at 12.

55 Id.

56 Millstone, CLI-01-24, 54 NRC at 359.

Millstone by failing to submit the necessary minimal factual or legal basis for believing that removal of the technical specifications at issue here would significantly increase the public health and safety risk.57 The instant Petition suffers from the same flaw as the petition in Millstone. Citizens Oversight has not submitted the necessary basis for concluding that relocating certain surveillance frequencies to the Surveillance Frequency Control Program (SFCP) will result in improper frequency determinations, lax monitoring, or errors that would significantly increase the public health and safety risk.58 Instead, Citizens Oversight speculates that because some of the surveillance frequencies relate to important safety systems, the LAR must pose an increased risk to public health and safety.59 As discussed below, Citizens Oversight has neglected to challenge any specific component of the SFCP, which will provide extensive controls for any future changes to surveillance frequencies at SONGS.60 Moreover, Citizens Oversight has provided no convincing explanation of why the holding in Millstone should be limited to effluent monitoring. As such, Citizens Oversight has not demonstrated that the Board committed legal error or an abuse of discretion in holding that Millstone compels finding Contention 1 inadmissible.

III. Citizens Oversight Has Not Established that Removing Surveillance Frequencies from the Technical Specifications is Illegal Next, Citizens Oversight contends that because removal of the surveillance frequencies from the technical specifications . . . is illegal, the Board erred in finding Contention 1 immaterial.61 Specifically, Citizens Oversight maintains that deletion of surveillance 57 Id. (emphasis in original).

58 Id.

59 Appeal at 9-16.

60 See infra Argument Section IV.

61 Appeal at 17-18.

frequencies from the technical specifications is in direct conflict with NRC regulations and Commission policy statements.62 As discussed above, NRC regulations require technical specifications to include surveillance requirements. The regulations define surveillance requirements as requirements relating to test, calibration, or inspection to assure that the necessary quality of systems and components is maintained, that facility operation will be within safety limits, and that the limiting conditions for operation will be met.63 Notably, this definition does not mention surveillance frequencies. Moreover, the plain language of the Atomic Energy Act of 1954 (AEA), as amended, does not require inclusion of surveillance frequencies in technical specifications.64 Likewise, Citizens Oversight citation to the Commissions policy statement on technical specifications does not establish its claim and, if anything, indicates that the NRC may approve removal of surveillance frequencies from technical specifications.65 Section 182a. of the AEA states that a reactor operating license application must include technical specifications that become part of any operating license the Commission issues.66 These technical specifications must describe the amount, kind, and source of special nuclear material required, the place of use, [and] the specific characteristics of the facility.67 The technical specifications may also include information needed to find that the utilization or production of special nuclear material will be in accord with the common defense and security 62 Id. at 16.

63 10 C.F.R. § 50.36(c)(3).

64 42 U.S.C. §2232; 10 C.F.R. § 50.36.

65 Appeal at 17 (citing Final Policy Statement on Technical Specifications Improvements for Nuclear Power Reactors, 58 Fed. Reg. 39,132, 39,137 (July 22, 1993)).

66 42 U.S.C. § 2232 (requiring applicants for reactor operating licenses to include technical specifications that shall be a part of any license issued).

67 Id.

and will provide adequate protection to the health and safety of the public.68 The Commission has noted that the AEA leaves it up to the Commission to determine . . . what additional information should be included in technical specifications to ensure public health and safety.69 Consequently, the plain language of the AEA contains no requirement that technical specifications include surveillance frequencies.

When a statute does not explicitly address an issue, reviewing courts defer to a reasonable interpretation of the statute from the agency tasked with administering it.70 In this case, the NRC has generically approved removing surveillance frequencies from the technical specifications because under the SFCP, the surveillances are conducted at a frequency to assure that the necessary quality of systems and components is maintained.71 Moreover, the NRC noted that moving the surveillance frequencies to the SFCP comports with the Commissions policy to encourage the use of PRA and to expand the scope of PRA applications in all nuclear regulatory matters to the extent supported by the state-of-the-art in terms of method and data.72 Resultantly, the NRCs position is legal because the AEA does not state that surveillance frequencies must be in the technical specifications and the agency has provided a sufficient rationale for moving surveillance frequencies to a licensee-controlled document.73 Likewise, the NRCs regulations also do not list surveillance frequencies as items that must be in the technical specifications. Under 10 C.F.R. § 50.36, technical specifications must 68 Id.

69 Millstone, CLI-01-24, 54 NRC at 351.

70 Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984).

71 74 Fed. Reg. at 32,002.

72 Id. (quoting Final Policy Statement: Use of Probabilistic Risk Assessments in Nuclear Regulatory Activities, 60 Fed. Reg. 42,622, 42,629 (Aug. 16, 1995) (internal quotations omitted)).

73 42 U.S.C. §2232; Chevron, 467 U.S. at 842-44; 74 Fed. Reg. at 32,002.

include (1) safety limits, limiting safety system settings, and limiting control settings; (2) limiting conditions for operation (LCO); (3) surveillance requirements; (4) design features; (5) administrative controls; (6) special requirements for decommissioned facilities; and (7) initial notification requirements. With regard to surveillance requirements, § 50.36 states, Surveillance requirements are requirements relating to test, calibration, or inspection to assure that the necessary quality of systems and components is maintained, that facility operation will be within safety limits, and that the limiting conditions for operation will be met. Accordingly, the definition of surveillance requirements in § 50.36 does not require surveillance frequencies to be in the technical specifications.

Although the AEA and NRC regulations do not support Citizens Oversights claims, Citizens Oversight nonetheless contends that a Commission policy statement on technical specifications supports its position that the technical specifications must include surveillance frequencies.74 In its appeal, Citizens Oversight notes, It is the Commission policy that licensees retain in their Technical Specifications LCOs, action statements and Surveillance Requirements for the following systems (as applicable), which operating experience and [probabilistic safety assessments] have generally shown to be significant to public health and safety and any other structures, systems, or components that meet this criterion:

- Reactor Core Isolation Cooling/Isolation Condenser,

- Residual Heat Removal,

- Standby Liquid Control, and

- Recirculation Pump Trip.75 Notably, the section of the policy statement cited by Citizens Oversight does not include surveillance frequencies in the list of items that must be included in a plants technical specifications.76 Consequently, on its face, this document does not support Citizens Oversights 74 Appeal at 17 (citing 58 Fed. Reg. 39,132).

75 58 Fed. Reg. at 39,137.

76 Id.

assertion that the technical specifications must contain surveillance frequencies. Moreover, the policy statements only reference to surveillance frequencies indicates that they must be discussed and justified in the supporting bases for the technical specifications, not included in the technical specifications themselves.77 Because the SFCP relies on an extensive PRA to justify changes to the surveillance frequencies, the license amendment request meets the intent of the Commissions policy statement to discuss and justify the bases for surveillance frequencies. Therefore, this document does not support Citizens Oversights claim and, if anything, supports the reasonableness of the agencys position.

Citizens Oversight argues that because some of the surveillance frequency requirements subject to SCEs license amendment request relate to reactor core isolation and cooling functions, the policy statement requires inclusion of those surveillance frequencies in the technical specifications.78 This argument misapplies the policy statement. The policy statement required inclusion of LCOs, action statements and Surveillance Requirements in the technical specification for the identified systems, including the reactor core isolation cooling system.79 As noted above, this passage is silent with respect to surveillance frequencies.

Consequently, the simple fact that SCEs license amendment request relates to reactor core isolation and cooling functions does not establish that the surveillance frequencies concerning those functions must be in the technical specifications.

Citizens Oversight also claims that removing surveillance frequencies from the technical 77 Id. at 39,138. The Commission stated that the supporting bases should address [w]hat are the Bases for each Surveillance Requirement and Surveillance Frequency; i.e., what specific functional requirement is the surveillance designed to verify? Why is this surveillance necessary at the specified frequency to assure that the system or component function is maintained, the facility operation will be within the Safety Limits, and that the LCO will be met? Id.

78 Appeal at 17-18. At SONGS Units 2 and 3, which are pressurized water reactors, the Shutdown Cooling System and Auxiliary Feedwater System perform the functions that the Reactor Core Isolation Cooling System would perform at a boiling water reactor.

79 58 Fed. Reg. at 39,137.

specifications is illegal because the frequencies are an integral component of the Surveillance Requirement specification and there is really not much left of the Surveillance Requirement if it is removed.80 But, 10 C.F.R. § 50.36 contradicts this argument. That section notes that the surveillance requirements include elements relating to test, calibration, or inspection to assure that the necessary quality of systems and components is maintained.81 Plainly, surveillance requirements include more than just frequencies.82 Accordingly, Citizens Oversight has not shown that removing the surveillance frequencies from the technical specifications is illegal. As a result, this argument also does not demonstrate any legal error or abuse of discretion by the Board.83 IV. Citizens Oversight Did Not Provide an Adequate Factual Basis for Contention 1 Before the Board, the Staff argued that Contention 1 was inadmissible for lack of an adequate basis because Citizens Oversight did not provide any support for its claim that the licensee would unsafely alter surveillance frequencies.84 The Board expressly declined to rule on this argument because it found Contention 1 inadmissible for another reason - it was immaterial.85 Nonetheless, the Commission may affirm a Board decision on any ground finding 80 Appeal at 17.

81 10 C.F.R. § 50.36.

82 Indeed, surveillance requirement 3.4.13.2, challenged by Citizens Oversight in Contention 1, contains a requirement to [v]erify primary to secondary LEAKAGE is 150 gallons per day though any one steam generator and notes that this surveillance is [n]ot required to be performed until 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> after establishment of steady state operation. Docket No. 50-361, SONGS Unit 2 Facility Operating License No. NPF-10, at 3.4-38 (Oct. 16, 2012) (ADAMS Accession No. ML053130316); Docket No. 50-362, SONGS Unit 3 Facility Operating License No. NPF-15, at 3.4-38 (Oct. 16, 2012) (ADAMS Accession No. ML053140357).

83 Millstone, CLI-08-17, 68 NRC at 234. Citizens Oversight advances a number of alternatives to the license amendment but does not contend that these alternatives provide a basis for overturning LBP-12-25. Appeal at 18-22.

84 NRC Staff Answer at 20 (citing 10 C.F.R. § 2.309(f)(1)(v), (vi)).

85 San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 14 n.23).

support in the record, whether previously relied on or not.86 Accordingly, the Staff is obligated to address its previous argument that Contention 1 is inadmissible because Citizens Oversight did not provide the requisite support for the assertions underlying the contention.

Simply stated, the record reflects that Citizens Oversight did not provide an adequate factual basis for Contention 1. Under Commission precedent, although petitioners do not need to prove their case, or to provide an exhaustive list of possible bases at the contention admissibility phase, they must provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset.87 [T]he Commission will not accept the filing of a vague, unparticularized [contention], unsupported by alleged fact or expert opinion and documentary support.88 The Commission has explained that a contention does not rest on a sufficient factual basis if it simply refers to technical documents without indicating how they support the contentions claims.89 In this case, Citizens Oversights basis for Contention 1 largely consisted of unsupported assertions.90 For a few portions of its claim, Citizens Oversight cited to a number of scholarly works but never clearly explained how those documents supported Contention 1. Generally, Citizens Oversight alleged that these studies supported its concern that if the NRC granted the 86 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-01, 61 NRC 129, 166 (2005).

87 Louisiana Energy Services, LP (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004).

88 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 414 (2007)

(quotations omitted) (alteration in original).

89 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, __ (2012)

(slip op. at 10-18).

90 Petition at 6-8 (relying on unsupported assertion in several places, including paragraphs 6, 10, 11, 12, and 13). Citizens Oversight may not rely on additional bases for Contention 1 advanced in its reply brief or at oral argument without filing a timely motion to amend the contention. Louisiana Energy Services, CLI-04-35, 60 NRC at 623 (stating that allowing petitioners to provide additional support for contentions without meeting the normal timeliness rules for amending contentions would effectively bypass and eviscerate [the Commissions] rules governing timely filing).

amendment, SCE may decrease surveillance frequencies to an unsafe level under the SFCP.91 But, upon close examination, these cited works do not support such a claim. These authorities did not discuss surveillance frequencies in general or the particular merits of NEI 04-10, which would govern changes to the surveillance frequencies under SCEs proposal.

First, Citizens Oversight referred to several studies, including some from the Institute of Nuclear Power Operations (INPO), that indicated that in the early 1980s maintenance-related omissions accounted for a large percentage of the human errors in the nuclear industry.92 Citizens Oversight speculated that in light of the potential for error in maintenance-related activities, SCE could opt to decrease surveillance frequencies without considering whether human error may impair the efficacies of some surveillances.93 In addition, Citizens Oversight referred to two other articles, not specific to the nuclear industry, to generally challenge the SFCPs reliance on PRA. One article indicated that general test subjects, with no special knowledge or expertise, tended to overestimate the likelihood that they correctly answered questions.94 The other article, again primarily focused on general test subjects, found that the test subjects typically did not notice when fault trees describing potential sources of car problems omitted likely causes of the problem.95 These documents alone did not provide a sufficient basis for any specific challenge to the license amendment request or SCEs reliance on the SFCP. Instead, these documents 91 Id. at 6-7.

92 Id. at 6 (citing, e.g., Institute of Nuclear Power Operations, An Analysis of Root Causes in 1983 Significant Event Reports, INPO 84-027 (1984); Institute of Nuclear Power Operations, A Maintenance Analysis of Safety Significant Events (1985); JAMES REASON, HUMAN ERROR at 239 (1991)).

93 Id.

94 Id. at 7 (citing Asher Koriat et al, Reasons for Confidence, 6 JOURNAL OF EXPERIMENTAL PSYCHOLOGY: HUMAN LEARNING AND MEMORY 107 (1980) (Reasons for Confidence)).

95 Id. (citing Baruch Fischoff et al, Fault Trees: Sensitivity to Estimated Failure Probabilities to Problem Representation, 4 JOURNAL OF EXPERIMENTAL PSYCHOLOGY: HUMAN PERCEPTION AND PERFORMANCE 330 (1978) (Fault Trees)).

simply establish the potential for human error inherent to every licensee action.96 With regard to the INPO studies, Citizens Oversight has not shown, or attempted to show, that the description of the nuclear industry in 1983 is still relevant today. Likewise, Citizens Oversight has not demonstrated what significance, if any, information pertaining to maintenance activities has to surveillance frequencies in general. Moreover, many features of the SFCP provide assurance that future changes to surveillance frequencies will not compromise safety.

Specifically, such changes must meet the Commissions safety goals, use PRA, and reflect industry standards.97 But, Citizens Oversight has not pointed to any portion of the INPO studies that challenge these specific features of the SFCP.

In a similar vein, Citizens Oversight did not provide any connection between the studies it cited regarding PRA and the actual terms of the SFCP. The studies on which Citizens Oversight relied did not explicitly deal with the nuclear industry in general or modern PRAs in particular.98 Rather, these studies considered test subjects who did not have any identified expertise in PRA.99 Moreover, the PRA studies dealt with very rudimentary approaches to problem solving that did not employ the extensive safeguards against error in NEI 04-10 such as sensitivity analyses, peer review, and the use of expert panels to approve decisions.100 Fundamentally, Citizens Oversight neglected to adequately support Contention 1 because it only speculated that SCE may change surveillance frequencies in an unsafe manner.

Moreover, the studies it relied on did not support its specific challenges to SCEs request to 96 NRC Staff Answer at 20.

97 LAR, Attachment 1, Vol. 14, at 83; NEI 04-10 at 11, 24-27.

98 See generally Fault Trees; Reasons for Confidence.

99 Reasons for Confidence at 109, 112; Fault Trees at 334, 336, 337, 340 (one experiment in Fault Trees considered an expert group of auto mechanics but did not indicate that any of these subjects had any formal training or expertise in the use of probabilistic risk assessment).

100 Compare NEI 04-10 at 10, 24-27 with Reasons for Confidence and Fault Trees.

relocate surveillance frequencies.101 Rather, these studies addressed other topics, such as early 1980s maintenance errors across the nuclear industry and general issues of human comprehension, which had no obvious link to the specific terms of the license amendment request. Citizens Oversight never supplied such a link. Consequently, Citizens Oversight did not provide an adequate factual basis for Contention 1 and the Commission can uphold the Board on that ground alone.102 101 The Board implied that if the Staff grants the license amendment request, the surveillance frequencies will constitute written commitments that are not requirements on the licensee. San Onofre, LBP-12-25, 76 NRC at __ (slip op. at 10 n. 21). The Staff disagrees with this assessment. Upon granting the license amendment, the surveillance frequencies will be moved to a licensee-controlled document, but under the amended licenses SCE will only be able to make changes to that document in accordance with NEI 04-10. LAR, Attachment 1, Vol. 14, at 83. Thus, any change to the surveillance frequencies that did not meet NEI 04-10s extensive requirements would constitute a violation of the license condition incorporating NEI 04-10. Moreover, licensees must document changes to the SFCP, NEI 04-10 at Appendix A, and the NRC may inspect such documents as part of its oversight process.

Additionally, any change to a surveillance frequency that changed an analysis or assumption in the UFSAR may also require a license amendment under 10 C.F.R. § 50.59. Staff Answer at 20-21; Nuclear Energy Institute Topical Report 96-07, Guidelines for 10 CFR 50.59 Implementation, Rev. 1, at 30 (Nov. 2000) (ADAMS Accession No. ML003771157) (A given activity may have both direct and indirect effects that the screening review must consider.). Likewise, any change to a surveillance frequency that did not meet the requirements of NEI 04-10 would also require a license amendment under 10 C.F.R. § 50.90. Finally, NEI 04-10 points out that other NRC regulations, such as the Maintenance Rule, 10 C.F.R. § 50.65, continue to control surveillance frequency for plants that adopt TSTF-425. NEI 04-10 at 4.

102 10 C.F.R. § 2.309(f)(1)(v), (vi); Private Fuel Storage, CLI-05-01, 61 NRC at 166. Moreover, this supports the Boards conclusion that Millstone compelled a finding that Contention 1 was immaterial because Citizens Oversight never supplied the necessary minimal factual or legal basis for believing that removal of the technical specifications at issue here would significantly increase the public health and safety risk. Millstone, CLI-01-24, 54 NRC at 359 (emphasis in original).

CONCLUSION For the foregoing reasons, the Citizens Oversights appeal has not demonstrated an error of law or abuse of discretion in the Boards Order. Accordingly, the Commission should decline to overturn the Boards Order and deny the appeal.

Respectfully submitted,

/Signed (electronically) by/

Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: maxwell.smith@nrc.gov Date of signature: February 8, 2013 Executed in Accord with 10 CFR 2.304(d)

David M. Cylkowski Counsel for NRC Staff U.S. Nuclear Regulatory Commission (301) 415-1631 david.cylkowski@nrc.gov

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

)

SOUTHERN CALIFORNIA EDISON COMPANY ) Docket Nos. 50-361-LA/50-362-LA

)

(San Onofre Nuclear Generating Station )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFF ANSWER TO CITIZENS OVERSIGHT APPEAL dated February 8, 2013, have been served over the Electronic Information Exchange, the NRCs E-Filing System, this 8th day of February, 2013.

/Signed (electronically) by/

Maxwell C. Smith Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1246 maxwell.smith@nrc.gov Date of Signature: February 8, 2013