ML13063A572
| ML13063A572 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 03/04/2013 |
| From: | Ayres R Ayres Law Group, Friends of the Earth |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24195, 50-261-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01 | |
| Download: ML13063A572 (8) | |
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) ) March 4, 2013
)
MOTION BY FRIENDS OF THE EARTH TO BAR SOUTHERN CALIFORNIA EDISON COMPANYS SUBMISSIONS AFTER THE CLOSE OF BRIEFING I. INTRODUCTION Friends of the Earth (FoE) moves to bar from this proceeding Southern California Edison Companys (SCE) Responses to Staff Requests for Additional Information (RAIs) submitted to the Atomic Safety and Licensing Board (Board) after the close of briefing in this proceeding on February 13, 2013.1 To date this includes SCEs February 25, 2013 Third Notification of Responses to RAIs2 and February 26, 2013 Fourth Notification of Responses to RAIs,3 but this motion encompasses any forthcoming responses as well. In the interests of fairness, FoE requests that the Board exclude SCEs post-briefing responses from the record or from consideration in this proceeding.4 In the alternative, FoE must be given the opportunity to respond to any such submissions.
1 The argument could be made that SCEs last opportunity to submit additional responses without receiving leave to do so from the Board was at the close of SCEs briefing on January 30, 2013, and that anything beyond this date would have unfairly truncated FoEs time to respond. For the purposes of this Motion, however, FoE asks the Board to exclude only SCEs responses submitted after the close of FoEs briefing on February 13, 2013.
2 SCE, Third Notification of Responses to RAIs (Feb. 25, 2013).
3 SCE, Fourth Notification of Responses to RAIs (Feb. 26, 2013).
4 Counsel for FoE certifies under 10 C.F.R. § 2.323(b) that it has contacted representatives of SCE and the NRC Staff and made a sincere effort to resolve the issues set forth in this Motion, and that the efforts to resolve the issues have been unsuccessful. Counsel for SCE stated that SCE opposes the Motion. Counsel for the NRC Staff stated
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II. BACKGROUND On June 18, 2012, FoE filed a Petition to Intervene and Application for a Stay. On November 8, 2012, the Commission referred a portion of FoEs Petition to the Board concerning whether the process initiated by the March 27, 2012 Confirmatory Action Letter (CAL) is a de facto license amendment proceeding.5 FoE filed its Opening Brief on January 11, 2013.6 Natural Resources Defense Council (NRDC) filed an amicus brief supporting Petitioner on January 18, 2013.7 On January 30, 2013, SCE and NRC Staff filed Answering Briefs,8 and the Nuclear Energy Institute, amicus for Respondents, filed an amicus brief.9 Briefing closed on February 13, 2013 when FoE filed its Reply Brief.10 SCE then offered its third and fourth RAI responses on February 25 and 26, 2013, respectively.
III. MATERIAL SUPPLEMENTING SCES BRIEF OR OFFERING NEW FACTUAL MATERIAL AFTER THE CLOSE OF BRIEFING MAY NOT BE PLACED BEFORE THE BOARD SINCE THE BOARD HAS NOT GRANTED LEAVE TO SUPPLEMENT SCEs third and fourth RAI responses submitted to the Board through the e-filing system on February 25 and 26, 2013, respectively, constitute supplementary briefing, supplementary information, or both.11 Pursuant to the Boards Order of February 1, 2013, briefing concluded that Staff takes no position on FoEs Motion at this time but reserves its right to respond to the actual contents of the Motion.
5 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).
6 Opening Brief of Petitioner Friends of the Earth (Jan. 11, 2013).
7 Natural Resources Defense Councils Amicus Response in Support of Friends of the Earth (Jan. 18, 2013).
8 Southern California Edison Companys Brief on Issues Referred by the Commission (Jan. 30, 2013); NRC Staffs Answering Brief in the San Onofre Nuclear Generating Station CAL Proceeding (Jan. 30, 2013).
9 Nuclear Energy Institute, Inc.s Amicus Curiae Brief In Response to the NRC Atomic Safety and Licensing Boards Briefing Orders (Jan. 30, 2013).
10 Reply Brief of Petitioner Friends of the Earth (Feb. 13, 2013).
11 Setting aside the timing, SCEs submittal of its RAI responses to the Board evidences that SCE indeed regards their content to be relevant to the issues before the Board. Given that the RAIs address SCEs Restart Plan, SCEs act of submitting them to the Board belies the position SCE has taken throughout this proceeding, namely, that the Restart Plan is not relevant to the Boards determination of the issues before it.
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with FoEs Reply Brief on February 13, 2013.12 SCE has not sought leave from the Board to supplement its brief, filed on January 30, 2013, or to otherwise supplement the record in this proceeding. SCE instead uses the tactic of terming its responses Notifications in an attempt to avoid having to petition the Board for leave to supplement its brief. Were the Board to permit this maneuver by SCE, the result would be to deny FoE and the Staff the opportunity to respond to a properly filed motion by SCE and deny the Board the opportunity to hear all sides of the argument.
Far from being a courtesy notification of tangentially related material, SCEs third and fourth RAI responses contain new arguments and/or information that directly supplement the briefing it provided to the Board. These submissions thus flout the briefing schedule established by the Board and will, if accepted, deprive the other parties to this proceeding of an opportunity to respond.
For example, in the third notification of RAI responses, SCE introduces for the first time its argument that normal steady state full power is 70% of the full Rated Thermal Power for the proposed interim operating period [a]s a result of SCEs formal commitment established in the CAL response.13 As FoE expressly argued in its Reply Brief at Part C.III, SCE forfeited the opportunity to provide a response on this question (how it can show compliance with Technical Specification 5.5.2.11.b. of its current license while operating at 70% power) by failing to respond to this issue in its brief, which was raised by both Petitioner in its Opening Brief14 and NRDC in its Amicus Brief.15 As Petitioner argued at length in its Reply Brief, SCE may not subsequently cure this deficiency by submitting a response in this case after FoE has filed its 12 Atomic Safety and Licensing Board, Order Granting Petitioners Motion for Extension of Time (Feb. 1, 2012).
13 SCE, Third Notification of Responses to RAIs (Feb. 25, 2013) p. 6 of 7.
14 FoE Opening Brief at 8, 23-24.
15 NRDC Amicus Brief at 6-12.
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Reply Brief and thereby deprive FoE of the opportunity to respond to its substantive argument precisely as SCE attempts to do here.
SCEs fourth RAI notification, dated February 26, 2013, attempts improperly to supplement the factual information before the Board. For example, SCEs response to RAI 4 supplements its explanation on the predictions of tube-to-tube wear initiation and wear rates, including whether SCEs approach to these projections is conservative.16 This material is directly relevant to the questions the Board asked the parties to brief and to the information SCE provided regarding the assumptions and modeling underlying its proposed Restart Plan in the context of whether the proposal exceeds the authority granted in its current operating license.17 SCEs fourth notification also inserts new factual conclusions into the ASLB proceeding after the close of briefing. After listing a series of assumptions made in its wear rate model, for example, SCE offers the conclusory statement that the Unit 2 growth rate model for 70%
power operation was determined to be reasonable and conservative.18 In sum, these Notifications amount to an attempt by SCE to introduce new arguments and material into the case after briefing has concluded in contravention of the briefing schedule established by the Board and fairness to other parties. SCE may not augment its brief with the third and fourth RAI responses, or with any forthcoming responses, without obtaining the permission of the Board to supplement. Since SCE has made no such motion, the Board should bar this material from the record or from any further consideration in this proceeding.
16 SCE, Fourth Notification of Responses to RAIs (Feb. 26, 2013) p. 12 of 18.
17 See, e.g., questions vi and vii of the Boards December 7, 2012 Order and SCEs Brief at 90-99.
18 SCE, Fourth Notification of Responses to RAIs (Feb. 26, 2013) p. 3 of 18.
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IV. IF THE BOARD DECIDES TO RECEIVE SCES RESPONSES, FOE MUST BE GIVEN THE OPPORTUNITY TO RESPOND A. NRC Regulations and Fundamental Fairness Require that FoE and Its Experts be Given an Opportunity to Respond to SCEs New Legal and Factual Arguments
If, contrary to the position urged above, the Board decides after the close of briefing to receive into this proceeding the RAI responses filed with the Board by SCE, 10 C.F.R. § 2.323(c) and fundamental notions of fairness require that FoE and its experts be given an opportunity to review and respond to the points raised in these post-briefing submissions.
Denominating these attempts to supplement after the close of briefing as Notifications is merely a tactic designed to deny Petitioner the right to respond, and to prevent the Board from hearing Petitioners response. In other circumstances, SCE itself has condemned filings that prevent a response (the tactic deprives the other parties of an opportunity to respond directly to the substantive arguments in the reply brief as well as the Board and Commission of those responses19).
As noted above, SCEs post-briefing Notifications to the Board, enclosing the companys responses to the RAIs posed by the NRC Staff, seek to inform the Board of facts not in the record in this matter and to supplement the legal arguments in SCEs Answering Brief. As noted above, SCEs February 25, 2013 Third Notification of Responses to RAIs makes the entirely new legal argument that Unit 2 complies with the technical specifications of its license because, in light of SCEs commitment to operate at 70% of Rated Thermal Power, SCE proposes to abruptly redefine the term full power operation in the technical specifications to mean 70% power.20 This remarkable argument is entirely invented since the filing of SCEs 19 Southern California Edison Companys Motion to Strike Portions of Declaration of John Large (February 22, 2013) at 3.
20 SCE, Third Notification of Responses to RAIs (Feb. 25, 2013) p. 6 of 7.
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brief to the Board; if the Board is prepared to consider it, then Petitioner must be given an opportunity to respond to it.
Denominating as a Notification an attempt to submit supplemental briefing and factual material after the close of briefing is merely a tactic designed to deny Petitioner the right to respond, and to prevent the Board from hearing Petitioners response. SCE itself has condemned filings that prevent a response. Regardless of the label SCE has chosen to attach to its post-briefing submissions, the tender of these documents to the Board after the close of briefing is an attempt to supplement the record and the arguments in SCEs Brief. If the Board wishes to consider allowing such supplementation, then the other parties must be given an opportunity to respond under NRC regulation 10 C.F.R. § 2.323(c).
B. The Boards Acceptance of SCEs Submissions Could Result in Delaying the Restart of Unit 2 SCE has already said it will submit another response to RAI 32 on March 15 regarding a substantive point SCE declined to answer in its brief on January 30, 2013 and in its answer to RAI 32. It is not unlikely that, as part of the ongoing response to the CAL, the Staff would issue further RAIs to which SCE will be asked to respond. Assuming SCE continues to share its answers with the Board, the Commissions regulations and basic fairness require that FoE be given an opportunity to respond to the legal and technical points in SCEs answers.
If the Board permits SCE to continue to lodge supplements to its brief as well as new technical submissions, and provides the opportunity for response required by 10 C.F.R. § 2.323(c), this proceeding will inevitably be lengthened. For example, further briefing on SCEs third and fourth submissions could make it difficult to hold oral argument on March 22.
From the beginning of this proceeding, SCE has protested vehemently against granting Petitioner any additional time on the grounds that it might delay the restart of San Onofre Unit
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221; yet now SCE seems so intent upon throwing a few punches after the bell that it is willing to risk substantial delay in the plants restart.
V. CONCLUSION For the reasons presented above, FoE urges the Board to exclude SCEs responses to Requests for Additional Information or other materials that further extend or elucidate legal arguments made by SCE to the Board; or that introduce new legal arguments; or that supplement the administrative and technical record before the Board, unless authorized by the Board pursuant to a Motion to Supplement. In the alternative, FoE urges that if such submissions are accepted by the Board, Petitioner be accorded an opportunity to respond pursuant to 10 C.F.R. § 2.323(c).
Respectfully submitted,
/Signed (electronically) by/
Richard 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 4th day of March 2013 21 See, e.g., SCEs Answer Opposing Petitioners Motion to Amend the Boards December 7, 2012 Order at 2, 10, 13 (Dec. 13, 2012); and SCEs Answer Opposing Petitioners Extension Request at 4-5 (Dec. 20, 2012).
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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) ) March 4, 2013
)
CERTIFICATE OF SERVICE I hereby certify that, on this date, the Motion by Friends of the Earth to Bar Southern California Edison Companys Submissions After the Close of Briefing was filed through the E-Filing system.
Signed (electronically) by Richard Ayres Richard E. Ayres Kristin Hines Gladd Jessica L. Olson Ayres Law Group 1707 L St., N.W., Suite 850 Washington, D.C. 20036 Phone: 202-452-9200 E-mail: ayresr@ayreslawgroup.com; gladdk@ayreslawgroup.com; olsonj@ayreslawgroup.com; Counsel for Friends of the Earth
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