ML13045A418
| ML13045A418 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 02/14/2013 |
| From: | Hawkens E Atomic Safety and Licensing Board Panel |
| To: | Nuclear Energy Institute |
| SECY RAS | |
| References | |
| RAS 24126, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01 | |
| Download: ML13045A418 (5) | |
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 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)
February 14, 2013 ORDER (Granting Nuclear Energy Institutes Motion for Leave to File Amicus Curiae Brief)
On November 8, 2012, the Commission in CLI-12-20 referred to the Atomic Safety and Licensing Board Panel (ASLBP) a portion of the June 18, 2012 intervention petition filed by Friends of the Earth (Petitioner) challenging a Confirmatory Action Letter (CAL) issued by the NRC to Southern California Edison Company (SCE) on March 27, 2012.1 Pursuant to the briefing schedule in this Boards December 20, 2012 Order:2 (1) Petitioner filed its opening brief with attachments on January 11, 2013;3 (2) amicus curiae in support of Petitioner, Natural Resources Defense Council (NRDC), filed its amicus brief on 1
See Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC __, slip op. at 5 (Nov. 8, 2012). The Commission referred the following two issues to the ASLBP: (1) whether the CAL issued to SCE constitutes a de facto license amendment that is subject to a hearing opportunity; and (2) whether Petitioners hearing request meets the agencys standing and contention admissibility requirements. See id.
2 See Licensing Board Order (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension) (Dec. 20, 2012) (unpublished).
3 See Opening Brief of Petitioner Friends of the Earth (Jan. 11, 2012).
2 January 18, 2013;4 (3) SCE and the NRC Staff each filed an answering brief with attachments on January 30, 2013;5 and (4) Petitioner filed its reply brief on February 13, 2013.6 Additionally, on January 30, 2013, the Board received a motion from Nuclear Energy Institute (NEI) requesting permission to file an amicus brief accompanying its motion.7 NEI is the Washington-based policy organization that is responsible, inter alia, for representing the commercial nuclear energy industry on generic regulatory, legal, and technical issues.8 NEI represents that its amicus brief complements the parties filing in response to the Boards request for briefs on the . . . issues presented in this case, and would assist the Board in determining whether the [CAL] issued to [SCE] constitutes a de facto license amendment.9 On February 5, 2013, Petitioner filed an opposition to NEIs motion, arguing that (1) NEIs motion is untimely, and (2) NEIs amicus brief does not contribute additional information to the proceeding.10 Pursuant to longstanding NRC case law, a Licensing Board has discretion to permit a non-party to file an amicus brief.11 The filing of such briefs should be accomplished in a manner 4
See [NRDCs] Amicus Response in Support of Friends of the Earth (Jan. 18, 2013).
5 See [SCEs] Brief on Issues Referred by the Commission (Jan. 30, 2013); NRC Staffs Answering Briefing in the San Onofre Nuclear Generating Station CAL Proceeding (Jan. 30, 2013).
6 See Reply Brief of Petitioner Friends of the Earth (Feb. 13, 2013).
7 See [NEI] Motion for Leave to File Amicus Curiae Brief (Jan. 30, 2013) [hereinafter NEI Motion]; Amicus Curiae Brief of [NEI] in Response to the NRC [ASLBPs] Briefing Orders (Jan.
30, 2013).
8 NEI Motion at 2.
9 Id. at 1. NEI represents that (1) SCE does not oppose NEIs motion, and (2) the NRC Staff takes no position on the motion. See id.
10 See [Petitioners] Answer Opposing Motion by [NEI] for Leave to File Amicus Curiae Brief at 2 (Feb. 5, 2013) [hereinafter Petitioners Answer].
11 See, e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-862, 25 NRC 144, 150 (1987).
3 that avoid[s] undue delay in a proceeding and ensure[s] fairness to the parties.12 NEIs amicus brief satisfies both criteria. First, NEI avoided undue delay by timely filing its brief on January 30, 2013, which was the same deadline as the briefs of the parties whose side NEI supports (i.e., SCE and the NRC Staff).13 Second, the filing of NEIs brief does not work an unfairness on the parties, because it neither inject[s] new issues into [the] proceeding nor alter[s] the content of the record.14 Rather, NEIs brief addresses the issues presented in this proceeding, and its discussion will assist this Board in its understanding and resolution of the issues.
In light of the foregoing considerations, NEIs motion for leave to file an amicus brief is granted.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Issued at Rockville, Maryland this 14th day of February 2013.
12 Id. at 151.
13 Cf. 10 C.F.R. § 2.315(d) (amicus briefs filed in a Commission proceeding must be filed within the time allowed to the party whose position the brief will support, unless the Commission provides otherwise).
14 Seabrook, 25 NRC at 150. Notably, Petitioner itself concedes that NEIs amicus brief does not inject new issues into the proceeding. See Petitioners Answer at 2. We disagree with Petitioners assertion that NEIs brief contains only arguments that are duplicative (id.) of those presented by SCE and the NRC Staff.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
SOUTHERN CALIFORNIA EDISON CO. )
)
) Docket Nos. 50-361-CAL (San Onofre Nuclear Generating Station - ) 50-362-CAL Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Granting Nuclear Energy Institutes Motion for Leave to File Amicus Curiae Brief) have been served upon the following persons by Electronic Information Exchange and by electronic mail as indicated by an asterisk*.
Office of Commission Appellate Southern California Edison Company Adjudication Douglas Porter, Esq.*
U.S. Nuclear Regulatory Commission Director and Managing Attorney Washington, DC 20555-0001 Generation Policy and Resources E-mail: ocaamail@nrc.gov Law Department 2244 Walnut Grove Ave., GO1, Q3B, 335C Atomic Safety and Licensing Board Panel Rosemead, CA 91770 U.S. Nuclear Regulatory Commission Email: douglas.porter@sce.com Mail Stop - T-3 F23 Washington, DC 20555-0001 Counsel for Licensee Morgan, Lewis & Bockius, LLP E. Roy Hawkens 1111 Pennsylvania, Ave. N.W.
Chief Administrative Judge Washington, D.C. 20004 E-mail: roy.hawkens@nrc.gov Paul M. Bessette, Esq.
Kathryn M. Sutton, Esq.
Anthony J. Baratta Stephen J. Burdick, Esq.
Administrative Judge Steven P. Frantz, Esq.
Email: anthony.baratta@nrc.gov William E. Baer, Jr.*
Mary Freeze, Legal Secretary Gary S. Arnold Lena M. Long, Legal Secretary Administrative Judge E-mail: pbessette@morganlewis.com Email: gary.arnold@nrc.gov sburdick@morganlewis.com ksutton@morganlewis.com U.S. Nuclear Regulatory Commission wbaer@morganlewis.com Office of the Secretary of the Commission sfrantz@morganlewis.com Mail Stop O-16C1 mfreeze@morganlewis.com Washington, DC 20555-0001 llong@morganlewis.com Hearing Docket E-mail: hearingdocket@nrc.gov
San Onofre Nuclear Generating Station, Units 2 and 3, Docket Nos. 50-361 and 50-362-CAL ORDER (Granting Nuclear Energy Institutes Motion for Leave to File Amicus Curiae Brief)
U.S. Nuclear Regulatory Commission Friends of the Earth Office of the General Counsel Ayres Law Group Mail Stop - O-15 D21 1707 L St., NW Washington, DC 20555-0001 Suite 850 Edward Williamson, Esq. Washington, D.C. 20036 David Roth, Esq. Richard E. Ayres, Esq.
Catherine Kanatas, Esq. Jessica L. Olson, Esq.
David Cylkowski, Esq. Kristin L. Hines, Esq.
Email: edward.williamson@nrc.gov Email: ayresr@ayreslawgroup.com david.roth@nrc.gov olsonj@ayreslawgroup.com catherine.kanatas@nrc.gov hinesk@ayreslawgroup.com david.cylkowski@nrc.gov Natural Resources Defense Council OGG Mail Center: ogcmailcenter@nrc.gov 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 14th day of February, 2013 2