ML13183A540

NRC Staff'S Answer to Motion to Submit Brief Amici Curiae

ML13183A540
Person / Time
Site:	San Onofre
Issue date:	07/02/2013
From:	Catherine Kanatas NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01, RAS 24773
Download: ML13183A540 (9)

Text

July 2, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

) 50-362-CAL (San Onofre Nuclear Generating Station, )

Units 2 and 3) )

)

NRC STAFFS ANSWER TO MOTION TO SUBMIT BRIEF AMICI CURIAE INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby answers the State of New York and State of Vermont [(the States)] Motion for Leave to File Brief Amici Curiae In Support of Petitioner [Friends of the Earth (FOE)] and In Opposition to NRC Staffs Motion to Vacate the Atomic Safety and Licensing Boards Full Initial Decision, LBP-13-07 (States Motion). 1 For the reasons set forth below, the Staff respectfully submits that the Commission should not admit the States Amici Brief under 10 C.F.R.

§ 2.315(d) because it does not add value to the Commissions decision-making on the Staffs Motion to Vacate LBP-13-07 (Staffs Motion to Vacate). 2 Accordingly, the Commission should deny the States Motion and not accept the States Amici Brief.

1 The States Motion is available at Agencywide Documents Access and Management System (ADAMS) Accession No. ML13176A210. Attached to the States Motion is the State of New York and State of Vermont Brief Amici Curiae In Support of Petitioner and In Opposition to NRC Staffs Motion to Vacate the Atomic Safety and Licensing Boards Full Initial Decision, LBP-13-07 (June 24, 2013)

(ADAMS Accession No. ML13176A295) (States Amici Brief).

2 NRC Staffs Motion to Vacate the Licensing Boards Full Initial Decision, LBP-13-07 (June 14, 2013) (ADAMS Accession No. ML13165A329) (Staffs Motion to Vacate).

DISCUSSION I. The States Motion and Amici Brief Do Not Add Value to the Commissions Decision-Making On the Staffs Motion to Vacate Under certain circumstances, the Commissions regulations permit the filing of an amicus curiae brief, at the Commissions discretion. Specifically, section 2.315(d) provides that:

(d) If a matter is taken up by the Commission under § 2.341 or sua sponte, a person who is not a party may, in the discretion of the Commission, be permitted to file a brief "amicus curiae." Such a person shall submit the amicus brief together with a motion for leave to do so which identifies the interest of the person and states the reasons why a brief is desirable. Unless the Commission provides otherwise, the brief must be filed within the time allowed to the party whose position the brief will support. A motion of a person who is not a party to participate in oral argument before the Commission will be granted at the discretion of the Commission.

Typically, the Commission only accepts amicus briefs after the Commission grants a petition for review and does not provide for amicus briefs supporting or opposing petitions for review. 3 In determining whether to exercise its discretion to admit amicus briefs, the Commissions decision ultimately depend[s] upon the value afforded to the decision-making process by consideration of the amicus briefs. 4 The primary value of an amicus brief is to provide the independent perspective and analysis of the non-party. 5 3

Louisiana Energy Services (Claiborne Enrichment Center), CLI-97-7, 45 NRC 437, 438-39 (1997). In CLI-10-17, the Commission accepted amicus briefs supporting and opposing the Staffs petition for review when granting Staffs petition for review and considering arguments in the Staffs petition. Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 4 n.16 (2010).

4 See Responses to Comments Not Addressed in the Statement of Considerations for Changes to the Adjudicatory Process: Final Rule (Dec. 17, 2003) at 19 (ADAMS Accession No. ML033510327).

This value is balanced against the potential delay attributable to consideration and ultimate resolution of matters raised in the amicus briefs. Id. The Commission may also consider whether there are extraordinary circumstances making acceptance of an amicus brief imperative as a matter of fairness or sound decision-making. U.S. Dept of Energy (High Level Waste Repository: Pre-Application Matters),

CLI-08-22, 68 NRC 355, 359 (2008).

5 Responses to Comments Not Addressed in the Statement of Considerations for Changes to the Adjudicatory Process: Final Rule (Dec. 17, 2003) at 19 (ADAMS Accession No. ML033510327). See U.S. Dept of Energy (High-Level Waste Repository), LBP-10-11, 71 NRC 609, 642 n.138 (2010) (noting that amicus curiae participation does not provide the same rights of participation as party status and cannot be considered a substitute means to protect a petitioner's interest or to preserve a petitioner's appellate rights).

In this case, there is no petition for review, as no party or interested state or government filed a petition for review of LBP-13-07. Instead, the States Motion and Amici Brief oppose the Staffs Motion to Vacate LBP-13-07. 6 The States argue that their Amici Brief should be accepted because it provides the States independent viewpoint on how the Commissions vacatur practice negatively affects intervenors in NRC proceedings 7 and will assist the Commission in its decision-making on the Staffs Motion to Vacate. 8 However, the States Motion and Amici Brief will not add value to the Commissions decision-making on the Staffs Motion to Vacate because, as outlined below, they contain incorrect information regarding Commission case law on vacatur and the Staffs Motion to Vacate. Therefore, the States Motion should be denied and the States Amici Brief should not be accepted. 9 A. The States Amici Brief Contains Incorrect Information on the Commissions Vacatur Case Law and the Contents of the Staffs Motion to Vacate First, the States Amici Brief contains incorrect statements about Commission case law on vacatur and the contents of the Staffs Motion to Vacate. For example, the Brief claims that controversy is not an appropriate ground for vacatur and that no caselaw Staff cites [in its Motion to Vacate LBP-13-07] uses the term controversial. 10 These assertions are unfounded.

Commission case law cited by the Staff in its Motion to Vacate explicitly provides that 6

States Motion; States Amici Brief at 1. During consultation on the States Motion, Staff counsel relayed to counsel for New York that the Commissions regulations do not contemplate amicus briefs on motions to vacate. See U.S. Dept of Energy (High Level Waste Repository: Pre-Application Matters), CLI-08-22, 68 NRC 355, 359 (2008) (noting that § 2.315(d) does not apply to appeals filed under 10 C.F.R. § 2.1015, but only to petitions for review under § 2.341 or matters taken up sua sponte by the Commission).

7 See States Motion at 3.

8 Id. at 3 (claiming that consideration of the Amici Brief is desirable because it supplies a perspective that will aid the Commission in determining whether to grant Staffs motion to vacate LBP 07). Id. at 4 (stating that Amici Brief should be considered in the Commissions evaluation of the Staffs Motion to Vacate LBP-13-07).

9 See States Motion at 1 (requesting that the Amici Brief be accepted under 10 C.F.R. § 2.315(d) or under the Commissions inherent authority).

10 States Amici Brief at 5.

controversial Board decisions should be vacated if appellate review is no longer available. 11 And this cited case law does indeed use the term controversial. 12 Specifically, Kerr-McGee states, in relevant part, that:

because these unreviewed Board decisions involve complex questions and vigorously disputed interpretations of agency provisions for disposal of byproduct material, the Commission as a policy matter chooses to vacate and thereby eliminate as precedent all three underlying decisions in this proceeding. This will permit any similar questions that may come up to be considered anew, without the binding influence of an apparently controversial Appeal Board decision that the Commission has not had the occasion to review.

CLI-92-02, 43 NRC at 14 (emphasis added). Therefore, the apparent controversial nature of an unreviewed Board decision is applicable to the Commissions consideration of a motion to vacate. It is also appropriate for the Commission to consider the possible confusion or future effects stemming from unreviewed Board decisions. 13 The States instant Motion and Amici Brief is another example of the confusion and future effects stemming from LBP-13-07. 14 Given these incorrect assertions, the States Amici Brief will not add value to the Commissions decision-making on the Staffs Motion to Vacate LBP-13-07.

B. The States Amici Motion and Brief Misstate the Effect of Staffs Motion to Vacate and the Commissions Vacatur Practice The States Amici Brief will also not add value to the Commissions decision-making on the Staffs Motion to Vacate because it misstates the effect of the Staffs Motion to Vacate and 11 See Kerr-McGee Chem. Corp. (West Chicago Rare Earths Facility), CLI-92-02, 43 NRC 13 (1996); Staffs Motion to Vacate at 5 n.22, n.24-25 (citing Kerr-McGee), 6 n.29, 7 n.35.

12 Kerr-McGee, CLI-92-02, 43 NRC at 14.

13 See Private Fuel Storage, LLC, (Independent Spent Fuel Storage Installation), CLI-05-22, 62 NRC 542, 543 (2005) (stating that it is the Commissions customary course of action to vacate unreviewed Board orders when their appellate review becomes unavailable because of mootness to eliminate any confusion or future effects stemming from these decisions); Staffs Motion to Vacate at 5.

14 See also Staffs Motion to Vacate (citing FOEs Motion to Convene and Consolidate and the Davis-Besse petition citing LBP-13-07 as examples of the confusion stemming from LBP-13-07). The States Motion and Amici Brief add confusion because they are not authorized by § 2.315(d). The Staff intended to file a petition for review of LBP13-07. However, SCEs intervening decision to permanently retire SONGS, announced on the morning petitions for review of LBP-13-07 were due, mooted the underlying controversy.

the Commissions vacatur practice. 15 For example, the States Amici Brief argues that the Staffs Motion to Vacate interferes with the Commissions practice of referring matters to the Board, as provided for in the AEA. 16 But the Staffs Motion to Vacate has no such effect on the Commissions ability to refer issues to a Board. Instead, the Staffs Motion to Vacate only asks the Commission to follow its practice of vacating unreviewed Board decisions where appellate review became unavailable because of mootness. 17 Doing so ensures that when similar questions arise in other proceedings, they may be considered anew, without the binding influence of an apparently controversial [Board] 18 decision that the Commission has not had the occasion to review. 19 The States desire to have LBP-13-07 stand so that the public may examine and rely upon its reasoning 20 is therefore contrary to Commission policy and precedent.

Moreover, despite the States claims, the Staffs Motion to Vacate and the Commissions vacatur practice do not interfere with the Commissions commitment to transparency and meaningful public participation in decision-making and adjudicatory proceedings. 21 The SONGS CAL process illustrates the Commissions commitment to transparency by providing a variety of opportunities for interested members of the public and stakeholders to observe or 15 States Amici Brief at 1. The States Amici Brief broadly claims that if the Commission granted vacatur in this case, it would: run counter to the AEA, the Administrative Procedure Act, Congressional intent, and the Commissions regulations; frustrate informed public participation in other proceedings; and skew the development of Commission administrative law. Id.

16 Id. at 6 (arguing that the Staffs Motion to Vacate interferes with the incremental development of administrative common law before [the] Commission.).

17 Staffs Motion to Vacate at 1-2, 9. As the Staff noted in its Motion to Vacate, the Commissions decision to vacate an unreviewed Board decision does not reflect on the soundness of the Boards decision. Id. at 5 n.24.

18 See id. at 3-4 and 4 n.15 (explaining why LBP-13-07 is controversial).

19 Kerr-McGee, CLI-92-02, 43 NRC at 14.

20 See States Amici Brief at 4.

21 See id. at 1-3, 5. Id. at 6 (stating that the Commission must be mindful of not harming public participation in NRC decision-making). See also States Motion at 3 (In particular, the States can provide insights on how [the Commissions vacatur] practice negatively affects intervenors in NRC proceedings.).

comment on the NRCs review of the SONGS steam generator tube degradation issue. This provided a broad range of viewpoints, which were considered by the Staff during its review.

Among other things, during the SONGS CAL process, the Commission or the Staff (1) established a public website and blog dedicated to SONGS steam generator issues; (2) provided eight public meetings, a Commission meeting, and multiple Congressional briefings, (3) established an electronic hearing docket with publicly available filings; (4) issued multiple press releases; (5) responded to numerous letters and questions from interested entities and stakeholders; 22 and (6) published an individual Federal Register notice providing for an opportunity to comment on the Staffs proposed determination on no significant hazards consideration and an opportunity for hearing on Southern California Edisons (SCE) April 5, 2013 license amendment request (LAR). 23 The public and interested stakeholders were also afforded the opportunity to petition for enforcement actions under the Commissions 10 C.F.R. § 2.206 process. 24 Nothing in the Staffs Motion to Vacate or the Commissions vacatur practice affects this transparency or the Commissions commitment to transparency and meaningful public involvement in the future. Nor does the Staffs Motion to Vacate or the Commissions vacatur practice eliminate any of the many opportunities to consider and address public health and safety concerns.

22 These stakeholders included Congress, state and local officials, the public, and the industry.

23 78 Fed. Reg. 22576 (Apr.16, 2013). This LAR was submitted in response to Staffs identification of a Technical Specification compliance issue during the SONGS CAL review. The States Amici Brief did not acknowledge or identify these as opportunities for public participation. But these were opportunities for public participation during the SONGS CAL process. Sec. 189 of the AEA and 10 C.F.R. Part 2 separately provided for adjudicatory hearing rights, which were triggered by SCEs April 5, 2013 LAR.

24 Two separate § 2.206 petitions for review related to the SONGS CAL process were filed. See Letter from Richard E. Ayres to Commissioners, Request that NRC Open a Docket for the Ongoing Proceeding to Address Major Safety Issues with the Replacement Steam Generators at San Onofre Units 2 and 3 (June 18, 2012) (ADAMS Accession No. ML12171A409); 10 C.F.R. § 2.206 Request Letter from Tom Gurdziel (Apr. 5 2013) (ADAMS Accession No. ML13102A248). See also Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI-10-12, 71 NRC 319, 327 n.50) (identifying the § 2.206 process as a means for petitioners to protect their interests).

C. The States Amici Brief Incorrectly Describes the Commissions Vacatur Practice and the Basis of the Staffs Motion to Vacate Finally, the States Amici Brief will not add value to the Commissions decision-making on the Staffs Motion to Vacate because it incorrectly describes the Commissions vacatur practice and the basis of the Staffs Motion. The Staffs Motion to Vacate is based on the Commissions vacatur practice, as outlined in Commission and Federal Court case law. 25 The States Amici Brief asserts that the Commissions vacatur practice is based on outdated and inapplicable law, 26 because the Commission has not revisited its vacatur practice in light of more recent Federal Court precedent. 27 But the Commission has revisited its vacatur practice in light of the Munsingwear line of cases, including U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 28 and the Staffs Motion to Vacate is consistent with this current Commission practice.

The States Amici Brief also suggests that the Staff filed its Motion to Vacate because the Staff disagreed with the Board and did not like the ruling. 29 However, this suggestion is unsupported; the Staff filed its motion to vacate because appellate review of LBP-13-07 was unavailable because of mootness. 30 Moreover, the Commissions vacatur practice is not based on the merits of an unreviewed Board decision. As stated in the Staffs Motion to Vacate, vacatur does not reflect on the soundness of the Boards decision. 31 Thus, the Commission 25 See Staffs Motion to Vacate at 5-6.

26 States Amici Brief at 4.

27 Id. at 4.

28 513 US 18 (1994). Specifically, in Kerr-McGee, the Commission considered and declined to follow Bancorp. CLI-92-02, 43 NRC at 14.

29 States Amici Brief at 6 (The fact that the Staffs position was not accepted by the San Onofre Board or that the Staff may not like the Boards ruling is no reason to vacate and expunge the ruling.).

30 See Staffs Motion to Vacate at 1-2 (describing the basis for the motion to vacate).

31 Id. at 5 n.24 (citing Kerr-McGee, CLI-92-2, 43 NRC 13 (1996)).

should not accept the States Amici Brief or consider it in the Commissions evaluation of the Staffs Motion to Vacate. 32 CONCLUSION For the reasons outlined above, the Staff respectfully requests that the Commission deny the States Motion and not accept the States Amici Brief.

Respectfully submitted,

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.kanatas@nrc.gov Date of signature: July 2, 2013 32 States Motion at 4 (requesting such consideration).

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

)

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

) 50-362-CAL (San Onofre Nuclear Generating Station, )

Units 2 and 3) )

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO MOTION TO SUBMIT BRIEF AMICI CURIAE dated July 2, 2013 have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 2nd day of July, 2013. Additionally, I hereby certify that copies of the NRC STAFFS ANSWER TO MOTION TO SUBMIT BRIEF AMICI CURIAE dated July 2, 2013 have been served on the below individuals this 2nd day of July, 2013 via electronic mail.

Janice A. Dean John J. Sipos Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General for the State of New York for the State of New York 120 Broadway 120 Broadway New York, New York 10271 New York, New York 10271 E-mail: Janice.Dean@ag.ny.gov E-mail: John.Sipos@ag.ny.gov Kyle H. Landis-Marinello Teresa Manzi Assistant Attorney General Legal Assistant Office of the Attorney General Office of the Attorney General for the State of Vermont for the State of New York 109 State Street 120 Broadway Montpelier, Vermont 05609 New York, New York 10271 E-mail: kylelm@atg.state.vt.us E-mail: Teresa.Manzi@ag.ny.gov

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Date of Signature: July 2, 1013