ML13030A441

Southern California Edison Company'S Brief on Issues Referred by the Commission

ML13030A441
Person / Time
Site:	San Onofre
Issue date:	01/30/2013
From:	Burdick S J, Frantz S P, Porter D Morgan, Morgan, Lewis & Bockius, LLP, Southern California Edison Co
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML130310300	List: ML13030A441 ML13030A451 ML13030A456 ML13030A462 ML13030A467
References
RAS 24057, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01
Download: ML13030A441 (126)

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 COMPANY )

)

(San Onofre Nuclear Generating Station, ) January 30, 2013 Units 2 and 3) )

)

______________________________________________________________________________

SOUTHERN CALIFORNIA EDISON COMPANY'S BRIEF ON ISSUES REFERRED BY THE COMMISSION

______________________________________________________________________________

Steven P. Frantz

Stephen J. Burdick

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004 Phone: 202-739-5460 E-mail: sfrantz@morganlewis.com

Douglas Porter

Director and Managing Attorney

Generation Policy and Resources Law Department Southern California Edison Company 2244 Walnut Grove Avenue

GO1, Q3B, 335C Rosemead, CA 91770

Phone: 626-302-3964 E-mail: Douglas.Porter@sce.com

Counsel for Southern California Edison Company

TABLE OF CONTENTS Page -i- I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ...............................................................................................................

3 A. SONGS Units 2 and 3 Replacement Steam Generators......................................... 3 B. Procedural History ............................................................................................... 11 III. THE CAL IS NOT A DE FACTO LICENSE AMENDMENT ...................................... 15 A. Background on the Nature of a CAL ................................................................... 15 B. Scope of Issues Relevant to Whether a CAL Constitutes a License Amendment .......................................................................................................... 18 1. Commission Directions Regarding Scope of This Proceeding ................ 18 2. Additional Considerations Regarding Scope of This Proceeding ............ 20 C. The SONGS CAL Does Not Constitute a De Facto License Amendment .......... 23 1. Legal Standards ........................................................................................ 23

2. Analysis of the March 27 CAL for SONGS ............................................ 25 D. Restart Actions ..................................................................................................... 30 E. FOE's Brief Raises Inappropriate Arguments ..................................................... 36 1. FOE Misapplies the Standards for a License Amendment ...................... 37

2. FOE Has Mischaracterized the SONGS Licensing Basis ........................ 38

3. FOE Arguments Regarding the Safety of Operation at 70% Power Mischaracterize the Restart Report and Are Outside the Scope of this Proceeding ......................................................................................... 39 4. FOE's Arguments Regarding Non-TTW Mechanisms Mischaracterize the Restart Report .......................................................... 42 5. FOE's Brief Makes a Number of Other Baseless Arguments ................. 44 6. FOE Raises a Number of Irrelevant Arguments ...................................... 46

7. FOE and NRDC Arguments Rega rding Technical Specification 5.5.2.11..................................................................................................... 49 8. FOE Inappropriately Argues that SCE Should Be Taking Additional Actions ................................................................................... 50 9. FOE's Allegations Related to Compliance with 10 C.F.R. § 50.59 ........ 51

10. Summary .................................................................................................. 51 F. Conclusions .......................................................................................................... 52 IV. FOE'S PETITION DOES NOT SATISFY 10 C.F.R. § 2.309 ........................................ 52 TABLE OF CONTENTS (continued)

Page -ii- A. FOE's New Arguments and Informa tion Are Contrary to the Board's Order and Should Be Rejected ............................................................................. 54 B. FOE's Petition Is Untimely and Does Not Satisfy the Untimely Filing Requirements ....................................................................................................... 55 1. FOE's Petition Was Late ......................................................................... 55 2. FOE's Petition Does Not Satisfy the Untimely Filing Requirements ...... 56 C. FOE Has Not Demonstrated that It Has Standing on the CAL ............................ 59 1. FOE's Petition Does Not Meet the Requirements for Standing in an Enforcement Action Proceeding ......................................................... 60 2. FOE's Petition Does Not Meet the Requirements for Standing in a License Amendment Proceeding ............................................................. 62 D. FOE Has Not Submitted an Admissible Contention on the CAL ........................ 67 1. Legal Standards ........................................................................................ 67

2. FOE's Arguments Are Outside the Scope of This Proceeding ................ 69

3. The Proposed Contention Does Not Satisfy Other Contention Admissibility Requirements..................................................................... 72 V. ADDITIONAL BRIEFING ISSUES RAISED BY THE BOARD ................................. 74 A. Inspections, Assessments, and Operational Limits .............................................. 74 B. Question (i) - Burden of Persuasion .................................................................... 78 C. Question (ii) - The 2.206 Proceeding Is Not Material ......................................... 80 D. Question (iii) - Applicability of 10 C.F.R. § 50.59 ............................................. 81 E. Question (iv) - Steam Generator Tube Rupture .................................................. 84 F. Question (v) - Comparisons with Other Plants ................................................... 86 G. Question (vi) - Conservatism of Operation at 70% Power .................................. 90 H. Question (vii) - Stability Ratio of 0.75 ................................................................ 94 I. Question (viii) - Operational Assessment ........................................................... 99 J. Question (ix) - Meaning of a CAL .................................................................... 101 VI. CONCLUSIONS............................................................................................................ 106

1 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 COMPANY )

)

(San Onofre Nuclear Generating Station, ) January 30, 2013 Units 2 and 3) )

) SOUTHERN CALIFORNIA EDISON COMPANY'S BRIEF ON ISSUES REFERRED BY THE COMMISSION I. INTRODUCTION Friends of the Earth ("FOE") submitted a "Petition to Intervene and Request for Hearing" ("Petition") to the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") on June 18, 2012. On November 8, 2012, the Commission issu ed decision CLI-12-20 referring to the Atomic Safety and Licensing Board ("Board") a portion of the Petition related to a March 27, 2012 Confirmatory Action Letter ("CAL") issued by the NRC to Southern California Edison Company ("SCE") for San Onofre Nuclear Generating Station ("SONGS") Units 2 and 3.

1 Specifically, the Commission directed the Board to consider whether (1) the CAL constitutes a de facto license amendment that would be subject to a hearing opportunity under Section 189a of the Atomic Energy Act of 1954, as amended ("AE A"); and, if so, (2) whether the Petition satisfies the requirements of 10 C.F.R. § 2.309.

2 1 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC __, slip op. at 4-5 (Nov. 8, 2012).

2 Id. at 5.

2 Pursuant to the Board's December 7, 2012 Order, 3 SCE submits this brief on the two issues referred by the Commission and additional questions posed by the Board.

• Section II below provides background information regarding the SONGS replacement steam generators and this proceeding.

• Section III explains why the CAL 4 does not constitute a de facto license amendment.

• Section IV demonstrates that FOE's request for hearing on the CAL was untimely and does not satisfy the other 10 C.F.R. § 2.309 requirements for a petition to intervene, including failing to demonstrate FOE's stan ding to intervene on the CAL or proffer an admissible contention regarding the CAL.

• Finally,Section V addresses the specific questions identified by the Board in its December 7 Order, as supplemented by the Board's Order of December 21, 2012.

5 In accordance with the December 7 Order, the factual statements in this brief are supported by the attached Affidavit of Richard Brabec, who is SCE's Project Manager for the SONGS Steam Generator Recovery Project ("Brabec Affidavit"), 6 and the attached Affidavit of Vickram Nazareth, who is a Manager in the SONGS Nuclear Fuels group ("Nazareth Affidavit").

7 The Brabec Affidavit also attests to the accuracy of SCE's Restart Report, 8 which is cited extensively throughout this brief. All of the attachments to this brief are identified in Appendix C.

3 Order (Conference Call Summary and Directives Relating to Briefing) (Dec. 7, 2012) ("December 7 Order") (unpublished).

4 See Letter from E. Collins, NRC, to P. Dietrich, SCE, Confirmatory Action Letter - San Onofre Nuclear Generating Station, Units 2 and 3, Commitments to Address Steam Generator Tube Degradation, CAL 4-12-001, at 3 (Mar. 27, 2012) ("CAL"), available at ADAMS Accession No. ML12087A323 (SCE Attachment 3).

5 Order (Directing Parties to Brief Additional Issue) (Dec. 21, 2012) ("December 21 Order") (unpublished).

6 The Brabec Affidavit is provided as SCE Attachment 1.

7 The Nazareth Affidavit is provided as SCE Attachment 2.

8 SCE uses the phrase "Restart Report" to refer to SCE's October 3, 2012 response to the NRC regarding SONGS Unit 2 and the fulfillment of the corresponding actions identified in the March 27 CAL, including all of the enclosures and attachments. These documents are provided in ADAMS Package No. ML122850320.

3 For the reasons demonstrated in this brief, the CAL does not constitute a de facto license amendment, and FOE's Petition does not sati sfy 10 C.F.R. § 2.309. Accordingly, the Board should dismiss FOE's Petition and should terminate this proceeding.

II. BACKGROUND A. SONGS Units 2 and 3 Replacement Steam Generators SONGS is located near San Clemente, California. SONGS Unit 1 ceased operation in 1992 and has since been decommissioned. SONGS Un its 2 and 3 are pressu rized water reactors using a Combustion Engineering ("CE") design with two steam generators ("SGs") per unit.

SCE is the operator of SONGS Units 2 and 3.

9 SCE put replacement steam generators ("RSGs")

into service at SONGS Units 2 and 3 in 2010 and 2011, respectively. The RSGs were in tended to resolve corrosion and other degradation issues present in the original steam generators for the units. The RSGs were designed and manufactured by Mitsubishi Heavy I ndustries ("MHI"). The RSGs are vertical cylindrical U-tube heat exchangers, in which primary coolant is circulated inside the tubes and heat from the primary-side coolant is transferred to the second ary-side coolant outside of the tubes. The heat transfer convert s the secondary-side coolant into saturated steam that is used to drive a turbine-generator to create electricity.

10 Each RSG has 9727 tubes, organized in 142 rows and 177 columns, in a triangular pitch arrangement. In the straight-leg portion of the tubes, the tubes are supported by a series of tube support plates ("TSPs") through which the tubes penetrate. The U-bend region is located at the

This includes a "CAL Response Letter" describing completion of the CAL actions.

See Letter from P. Dietrich, SCE, to E. Collins, NRC, Confirmatory Action Letter - Actions to Address Steam Generator Tube Degradation (Oct. 3, 2012) (SCE Attachment 4).

9 Brabec Affidavit ¶ 7.

10 Brabec Affidavit ¶ 8.

4 top of the tube bundle and is s upported by an anti-vibration bar ("

AVB") structure consisting of six sets of V-shaped AVBs between each adjacent set of columns of tubes. Each AVB is welded to a retaining bar, which in turn is attached to a bridge structure over the top of the U-bend region. The retaining bars with AVBs attached ar e also supported by 24 retainer bars that are just inside the tube bundle (the retainer bars in the RSGs have two different diameters). The configuration of the RSGs is depicted in Figure 1 below.

11 11 Brabec Affidavit ¶¶ 9-12.

5 Figure 1 - Configuration of Replacement Steam Generators 12

12 Figure 1 is slightly modified from a figure in MHI Document L5-04GA564, Tube Wear of Unit-3 RSG Technical Evaluation Report, at 12 (Rev. 9, Oct. 1, 2012) ("Technical Evaluation Report") (provided as Restart Report, Enclosure 2, Attachment 4) (SCE Attachment 5). Additional details on the RSG design are provided in Chapter 2 of the Technical Evaluation Report.

AVBs Retaining Ba rRetainer Ba r Tubes Bridge TSP U-Bend Region Straight Leg Region 6 SCE requested and obtained a license amendmen t in 2009 for certain issues related to the SONGS Units 2 and 3 steam generator replacement (e.g., changes to certain SONGS Technical Specifications related to steam generator tube integrity).

13 On January 31, 2012, SCE identified a leak in a tube in one of the SONGS Unit 3 RSGs.14 This leak was well below allowable limits in the Technical Specifications, and presented no hazard to the public health and safety.

15 Pursuant to established procedures, SCE shut down Unit 3.

16 At the time, SONGS Unit 2 already was shutdown and undergoing a refueling outage.

17 Additionally, SCE identified unexpected tube wear adjacent to small diameter retainer bars in the RSGs for Units 2 and 3.

18 SCE initiated an investigation into the cause of the leakage at Unit 3 and the unexpected wear of tubes adjacent to the retainer bars.

19 SCE also identified other types of tube wear in Units 2 and 3, su ch as wear caused by vibration of tubes against AVBs and TSPs. Those types of t ube wear had been previously identified in the steam generators of other plants and were expe cted for the RSGs (although the extent was higher than the industry average).

20 On March 23, 2012, SCE sent a letter to the NRC committing to take certain actions to determine and address the causes of the leak and identified instances of tube wear prior to restart

13 Brabec Affidavit ¶ 13; Letter from J. Hall, NRC, to R. Ridenoure, SCE, San Onofre Nuclear Generating Station, Units 2 and 3 - Issuance of Amendments Re: Technical Specification Changes in Support of Steam Generator Replacement (TAC Nos. MD9160 and MD 9161), at 1 (June 25, 2009), available at ADAMS Accession No. ML091670298 (SCE Attachment 6).

14 Letter from P. Dietrich, SCE, to E. Collins, NRC, Steam Generator Return-to-Service Action Plan, San Onofre Nuclear Generating Station, at 1 (Mar. 23, 2012) ("March 23 Return to Service Action Plan"), available at ADAMS Accession No. ML12086A182 (SCE Attachment 7).

15 Id. 16 Id. 17 Id. 18 CAL at 1 (SCE Attachment 3).

19 Brabec Affidavit ¶¶ 21-22.

20 Brabec Affidavit ¶ 28.

7 of the SONGS units.

21 The NRC memorialized its understa nding of the actions planned by SCE in the March 27 CAL, which confirmed the commitments made by SCE for actions to be taken prior to restarting either unit.

22 The CAL identified the following actions related to the restart of Unit 2: 1. Southern California Edison Company (SCE) will determine the causes of the tube-to-tube interactions that resulted in steam generator tube wear in Unit 3, and will implement actions to prevent loss of integrity due to these causes in the Unit 2 steam generator tubes. SCE will establish a protocol of inspections and/or operational limits for Unit 2, including plans for a mid-cycle shutdown for further inspections.

2. Prior to entry of Unit 2 into Mode 2, SCE will submit to the

NRC in writing the results of your assessment of Unit 2 steam generators, the protocol of inspections and/or operational limits, including schedule dates for a mi d-cycle shutdown for further inspections, and the basis for SCE's conclusion that there is reasonable assurance, as required by NRC regulations, that the unit will operate safely.

23 The CAL identified the following actions related to the restart of Unit 3: 3. SCE will complete in-situ pressure testing of tubes with potentially significant wear indications in accordance with the Electric Power Research Institute (EPRI) Steam Generator In-situ Pressure Test Guidelines and will plug tubes in accordance with those guidelines.

4. SCE will plug all tubes with wear indications in excess of your Steam Generator Program Requirements (SGPR) and EPRI guidelines as well as perform pr eventive plugging or take other corrective actions to address retainer bar-related tube wear in Unit

3.

5. SCE will determine the causes of tube-to-tube interaction and implement actions to prevent recurrence of loss of integrity in the Unit 3 steam generator tu bes while operating.

21 March 23 Return to Service Action Plan at 2-3 (SCE Attachment 7); id., Attachment 1.

22 Brabec Affidavit ¶ 20; see also CAL at 2-3 (SCE Attachment 3). The CAL also stated that permission for the SONGS units to resume power operations would be provided by the NRC in writing. CAL at 2.

23 CAL at 2.

8 6. SCE will establish a protocol of inspections and/or operational limits for Unit 3, including plans for a mid-cycle shutdown for inspections. The protocol is intended to minimize the progression of tube wear, and ensure that t ube wear will not progress to the point of degradation that could cause tubes not to meet leakage and structural strength test criteria.

7. Prior to entry of Unit 3 into Mode 4, SCE will submit to the

NRC in writing the results of your assessment of Unit 3 steam generators, the protocol of inspections and/or operational limits, including schedule dates for a mi d-cycle shutdown for further inspections, and the basis for SC E's conclusion that there is a reasonable assurance, as required by NRC regulations, that the unit will operate safely.

24 SCE assembled a team of experts to addr ess the tube leak and its causes, including experts in thermal-hydraulics and steam generator design, manufacture, operation, and maintenance.

25 The team performed extensive investigatio ns into the causes of the tube leak and developed remedial actions.

26 On October 3, 2012, SCE submitted its CAL response, including the Restart Report, to the NRC for SONGS Unit 2.

27 The Restart Report describes the results of extensive inspections and analyses SCE performed on the steam generators.

28 The NRC Staff has issued requests for additional information ("RAIs") to SCE regardin g the Restart Report, and SCE has responded to many of those RAIs.

29 24 Id. at 2-3. 25 San Onofre Nuclear Generating Station Unit 2 Return to Service Report, at 10 (Oct. 3, 2012) ("Return to Service Report") (provided as Restart Report, Enclosure 2) (SCE Attachment 8 (without attachments)).

26 Id.; Brabec Affidavit ¶ 21.

27 See Brabec Affidavit ¶ 4.

28 See CAL Response Letter at 2 (SCE Attachment 4); Return to Service Report at 21 (SCE Attachment 8).

29 SCE provided its responses to some of the RAIs to the Board on January 28, 2013.

See Letter from S. Burdick, SCE Counsel, to Board, Notification of Responses to RAIs (Jan. 28, 2013).

9 SCE has determined that the Unit 3 RSG tube leak was the result of tube-to-tube wear ("TTW") that was caused by in-plane fluid elastic instability ("FEI") from the combination of localized high steam velocity, high steam void fr action, and insufficient contact forces between the tubes and the AVBs.

30 FEI is a phenomenon in which th e tubes vibrate with increasingly larger amplitudes due to the flow velocity exceeding the critical velocity for a tube, given its supporting conditions and thermal-hydraulic environment. FEI occurs when the amount of energy imparted on the tube by the fluid is greater than the amount of energy that the tube can dissipate back to the fluid and to the supports.

31 During in-plane FEI, tubes within the same column are excited by the fluid and move within the plane of the colum n, resulting in tube-to-tube contact and wear of the tubes.

32 SCE also determined the cause of the retainer bar vibration-turbulent flow caused th e relatively long and narrow re tainer bars to vibrate and contact the tubes.

33 In Unit 3, more than 150 tubes of the 9727 tubes in each RSG experienced TTW, including more than 100 tubes in each RSG with wear equal to or greater than 35% of the width of the tube wall (which is the criter ion in SONGS Technical Specification 5.5.2.11 34 for removal of the tube from service by plugging of the tube).

35 In contrast to the extensive TTW in Unit 3, TTW existed in only a single pair of tubes (one contact location) in one of the two Unit 2 RSGs.

36 The TTW in Unit 2 was so minor that it

30 CAL Response Letter at 2 (SCE Attachment 4); Return to Service Report at 30-31 (SCE Attachment 8).

31 Technical Evaluation Report at 70 (SCE Attachment 5).

32 Brabec Affidavit ¶ 23.

33 Technical Evaluation Report at 73 (SCE Attachment 5); Brabec Affidavit ¶ 24.

34 SONGS Unit 2 Technical Specification 5.5.2.11 (SCE Attachment 9); Brabec Affidavit ¶ 25.

35 Return to Service Report at 29 (SCE Attachment 8); Brabec Affidavit ¶ 25.

36 CAL Response Letter at 2 (SCE Attachment 4); Return to Service Report at 36 (SCE Attachment 8).

10 was not detectable using normal eddy current testing methods.

37 As discussed in Subsection V.G below, one of SCE's contractors, Westinghouse, has concluded that the TTW in Unit 2 was not due to FEI, but instead to proximity of the tubes in question and random vibration of those tubes.38 However, some of SCE's analyses (such as the Intertek Operational Assessment 39 and the AREVA operational assessment for TTW

40) conservatively assumed that FEI could occur in Unit 2 at 100% power.

41 TTW due to in-plane FEI had not been previously experienced in U-tube steam generators.

42 As discussed in Subsection V.G below, the difference in TTW between Units 2 and 3 is attributed to manufacturing differences in the RSGs of Units 2 and 3.

43 SCE has taken the following actions for Unit 2 and imposed the following limits to

prevent loss of integrity due to TTW in the Unit 2 RSGs:

• SCE will administratively limit Unit 2 to 70% reactor power prior to a mid-cycle inspection outage. As discussed in Subsection V.A below, this administrative limit is temporary and may change based upon the resu lts of inspections, further analyses and long-term corrective actions.

37 Return to Service Report at 11 (SCE Attachment 8).

38 Operational Assessment of Wear Indications in the U-bend Region of San Onofre Nuclear Generating Station Unit 2 Replacement Steam Generators at 4 (Rev. 3, Oct. 2012) ("Westinghouse Operational Assessment") (provided as Restart Report, Enclosure 2, Attachment 6, Appendix D) (SCE Attachment 10).

39 San Onofre Nuclear Generating Station Unit 2 Return to Service Report - Operational Assessment for SONGS Unit 2 SG for Upper Bundle Tube-to-Tube Wear Degradation at End of Cycle 16 (Oct. 3, 2012) ("Intertek Operational Assessment") (provided as Restart Report Attachment 6, Appendix C) (SCE Attachment 11).

40 San Onofre Nuclear Generating Station Unit 2 Return to Service Report - SONGS U2C17 Steam Generator Operational Assessment Tube-to-Tube Wear (Oct. 3, 2012) ("Tube-to-Tube Report") (provided as Restart Report Attachment 6, Appendix B) (SCE Attachment 12).

41 Brabec Affidavit ¶ 26.

42 Brabec Affidavit ¶ 27; Technical Evaluation Report at 71 (SCE Attachment 5).

43 Brabec Affidavit ¶ 27; CAL Response Letter at 3 (SCE Attachment 4).

11

• SCE has plugged the tubes adjacent to the retainer bars, plugged the two tubes with TTW in Unit 2, plugged tubes with wear that exceeds the 35% through-wall criterion in SONGS Technical Specifications, and preventively plugged additional tubes in Unit 2 based on wear characteristics in Unit 3 tubes and actual wear patterns in Unit 2 (those tubes are in approximately the same regi on that experienced FE I in Unit 3 at 100%

power). As discussed in Subsection III.D belo w, about 3% of the to tal number of tubes in each of the RSGs in Unit 2 have been plugged.

• SCE will shut down Unit 2 for a mid-cycle steam generator tube inspection outage within 150 cumulative days of operation at or above 15% power.

44 The CAL states that NRC must provide its approval before SC E can restart either SONGS unit.

45 The NRC is currently review ing the Restart Report for SONGS Unit 2. SCE has not yet submitted any response to the CAL with respect to SONGS Unit 3.

46 B. Procedural History FOE submitted its Petition to the NRC on June 18, 2012 seeking a hearing related to the restart of SONGS Units 2 and 3.

47 FOE also submitted a declaration from Arnold Gundersen.

48 FOE generally argues that SCE should have obtained an additional license amendment for the

44 Brabec Affidavit ¶ 33; CAL Response Letter at 3 (SCE Attachment 4); Return to Service Report at 37 (SCE Attachment 8).

45 CAL at 2 (SCE Attachment 3).

46 Brabec Affidavit ¶ 38.

47 See Petition to Intervene and Request for a Hearing by Friends of the Earth, at 2 (June 18, 2012) ("Petition").

48 Declaration of Arnold Gundersen Supporting the Petition to Intervene by Friends of the Earth Regarding the Ongoing Failure of the Steam Generators at the San Onofre Nuclear Generating Station (May 31, 2012) ("Gundersen Declaration").

12 RSGs, and therefore violated 10 C.F.R. § 50.59.

49 FOE also made passing reference to the March 27 CAL.

50 The Petition included one proposed contention:

Petitioner contends that San Onofre cannot be allowed to restart without a license amendment a nd attendant adjudicatory public hearing as required by 10 C.F.R.

§ 2.309, in which Petitioner and other members of the public may participate.

51 The Natural Resources Defense Council ("NRDC") submitted a response supporting the Petition.52 SCE filed an answer opp osing the Petition, arguing inter alia that the Petition was untimely, FOE lacked standing to file the Petiti on, and FOE's proposed contention did not satisfy the 10 C.F.R. § 2.309(f)(1) admissibility requirements.

53 The NRC Staff made similar arguments in opposing the Petition.

54 On November 8, 2012, the Commission issu ed decision CLI-12-20, which rejected FOE's request for hearing on whether the RSGs required a license amendment under 10 C.F.R. § 50.59, and referred to the Atomic Safety and Li censing Board Panel that portion of the Petition related to the CAL.

55 The Commission stated: [W]e direct the Board to consider whether: (1) the Confirmatory Action Letter issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under

49 See, e.g., Petition at 2.

50 See id. 51 Id. at 16. 52 Natural Resources Defense Council's (NRDC) Response in Support of Friends of the Earth Petition to Intervene and NRDC's Notice of Intent to Participate (June 27, 2011).

53 See Southern California Edison Company's Answer Opposing Friends of the Earth's Hearing Request and the Natural Resources Defense Council Response Regarding San Onofre Nuclear Generating Station Units 2 and 3 (July 13, 2012).

54 See NRC Staff's Answer to Petition to Intervene and Request for Hearing by Friends of the Earth on the Restart of the San Onofre Reactors (July 13, 2012).

55 San Onofre, CLI-12-20, slip op. at 4-5. As part of CLI-12-20, the Commission referred issues related to the need for a license amendment for the RSGs to the NRC Staff for consideration as a petition under 10 C.F.R. § 2.206. Id. at 3-4. That issue, therefore, is outside the scope of this proceeding before the Board.

13 Section 189a; and, if so, (2) whether the petition meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309.56 On December 7, 2012, the Board issued an order for the briefing of the two issues referred by the Commission.

57 The Board also directed the participants to address eight additional questions as part of their briefs.

58 On December 20, 2012, the Board issued another order clarifying the schedule and document disclosure requirements of the participants.

59 Subsequently, the Board's December 21 Order directed the participants to brief an additional issue regarding CALs.

60 FOE filed its opening brief on January 11, 2013.

61 The FOE Brief was accompanied by two affidavits. The first is the January 10, 2013 affi davit of John H. Large, a U.K. engineer with Large & Associates.

62 The second is the January 9, 2013 a ffidavit of Arnold Gundersen, a U.S. engineer with Fairewinds Associates, Inc.

63 As discussed below, these affidavits incorrectly state and evaluate the standard for when a license amendment is needed for a power reactor, and therefore their statements on such an evaluation should be rejected. Additionally, these affidavits raise numerous issues that are outside the scope of th is proceeding. For example, almost all of the Gundersen Affidavit pertains to the design of the RSGs.

64 This is the subject of

56 Id. at 5. 57 See December 7 Order at 5.

58 Id. at 6-7. 59 Order (Granting in Part and Denying in Part Petitioner's Motion for Clarification and Extension) (Dec. 20, 2012) ("December 20 Order") (unpublished).

60 See December 21 Order at 1-2.

61 Opening Brief of Petitioner Friends of the Earth (Jan. 11, 2013) ("FOE Brief").

62 Response to Atomic Safety and Licensing Board's Factual Issues, 1st Affidavit of John H. Large (Jan. 10, 2013) ("Large Affidavit") (provided as FOE Brief, Attachment 1).

63 Gundersen Affidavit (Jan. 9, 2013) ("Gundersen Affidavit") (provided as FOE Brief, Attachment 2).

64 See id. at 3-10.

14 a separate 2.206 proceeding that is outside the scope of this proceeding, and therefore should not be considered by the Board.

The FOE Brief also attaches a report pr epared by Daniel Hirsch and Dorah Shuey ("Hirsch Report"), dated September 12, 2012, which compares the SONGS RSGs with other steam generators in the United States.

65 The Board's December 7 Order stated that if "a party's brief addresses factual matters on the first issue referred by the Commission, that party should provide an affidavit, if appropriate, in support of its factual assertions."

66 FOE did not provide an affidavit to support the factual assertions in the Hirsch Report, which are relied upon throughout the FOE Brief.

67 Because these factual statements are not supported by the required affidavit, they should not be considered by the Board.

NRDC filed its opening amicus brief on January 18, 2013.

68 The NRDC Brief supports the FOE Brief, and argues that a license amendment is needed because SCE's compensatory measures are inconsistent with the SONGS Tec hnical Specifications and the Board should not allow the NRC to use the enforcement process for the compensatory measures.

69 The FOE Brief, the accompanying affidavits, and the NRDC Brief include numerous mischaracterizations. Although SCE has not attempted to discuss every factually incorrect statement in those documents, Appendix A to this brief identifies examples of those statements, and provides the correct information.

65 Far Outside the Norm: The San Onofre Nuclear Plant's Steam Generator Problems in the Context of the National Experience with Replacement Steam Generators (Sept. 12, 2012) ("Hirsch Report") (provided as FOE Brief, Attachment 3).

66 December 7 Order at 6.

67 See FOE Brief at 14-15, 21, 30-33.

68 Natural Resources Defense Council's Amicus Response in Support of Friends of the Earth (Jan. 18, 2013) ("NRDC Brief").

69 Id. at 1-4.

15 III. THE CAL IS NOT A DE FACTO LICENSE AMENDMENT This Section is organized as follows:

• Subsection A discusses the regula tory nature and status of a CAL, showing that a CAL is in the nature of an enforcement action and does not authorize a licensee to take any actions beyond the scope of its license.

• Subsection B discusses the scope of this proceeding based upon the Commission's directions in CLI-12-20, and demonstrates that SCE restart actions are not within the scope of this proceeding.

• Subsection C discusses the CAL issued to SONGS and demonstrates that the CAL does not authorize SCE to take any actions beyond its existing licenses, and therefore does not constitute a de facto license amendment under the governing standards in the Perry and Seabrook decisions referenced in CLI-12-20.

• Subsection D discusses SCE's re start actions for Unit 2 and demonstrates that they do not support a conclusion that the CAL constitutes a de facto license amendment.

• Subsection E discusses various arguments by FOE, and demonstrates that none of them supports a conclusion that the CAL constitutes a de facto license amendment.

A. Background on the Nature of a CAL The Commission referred the question of wh ether the March 27 CAL issued by the NRC to SCE "constitutes a de facto license amendment that would be subject to a hear ing opportunity under Section 189a."

70 To make this determination, it is important to first understand the nature and purpose of a CAL.

70 San Onofre, CLI-12-20, slip op. at 5.

16 The NRC's Enforcement Policy provides general principles for the NRC's enforcement program and the Commission's expectations regarding assessment of compliance with NRC requirements.

71 The Enforcement Policy defines a CAL as "a letter confirming a licensee's or contractor's agreement to take certain actions to remove signifi cant concerns regarding health and safety, safeguards, or the environment."

72 Section 2.3.7 of the Enforcement Policy further explains: The NRC also uses administrative actions, such as confirmatory action letters, notices of deviation, and notices of nonconformance, to supplement its enforcement program. These administrative actions are explained in the Enforcement Manual and defined in the glossary of this Policy. Th e NRC expects licensees and other persons subject to the Commission's jurisdiction to adhere to any obligations and commitments resulting from administrative actions and will consider issuing additional Orders, as needed, to ensure compliance.

73 CALs are discussed in more detail in the NRC's Enforcement Manual, which provides guidance regarding agency policy and procedures for implementing the NRC's enforcement program.74 Enforcement Manual Section 3.5 provides a definition of a CAL consistent with the Enforcement Policy, and discusses when CALs should be issued and the nature of CALs.

75 The Enforcement Manual explains: "T he level of significance of the issues addressed in a CAL should be such that if a licensee did not agree to meet the commitments in the CAL, the Staff

71 NRC Enforcement Policy, at 3 (June 7, 2012) (SCE Attachment 13).

72 Id. at 68. 73 Id. at 23. 74 Nuclear Regulatory Commission Enforcement Manual, at 1 (Rev. 7, Oct. 1, 2010) (SCE Attachment 14).

75 Id. at 3-29 to 3-36.

17 would likely proceed to issue an order."

76 The Enforcement Manual further explains that "CALs do not establish legally binding commitments."

77 Additionally, the Enforcement Manual states: "T he issuance of an order, in lieu of a CAL, should be considered whenever there is a n eed to ensure that a legally binding requirement is in place."

78 Enforcement orders should be used if it is apparent that the licensee will not agree to take certain actions necessary to protect public health and safety, when there is an integrity issue, when there is some likelihood that a licensee may not comply with a CAL commitment, or when the Staff concludes that a CAL will not achieve the desired outcome.

79 CALs are a routine regulatory tool used by the NRC Staff. CALs simply record a licensee's commitments to take certain actions with in the scope of its exis ting license. As the Appeal Board ruled in the Seabrook proceeding, a CAL is an enforcement action, and is separate from licensing actions taken by the Staff.

80 Thus, CALs do not modify a license, and do not authorize a licensee to take a ny action beyond its existing license.

As a result, CALs do not implicate the license amendment process. In that regard, a licensee has flexibility unde r its license and NRC re gulations to select among a wide range of actions. In general, its selection of one action rather than another action is within the licensee's discretion. A CAL is not needed and is not issued to authorize a licensee to take a particular action within this range of permissible actions. To the contrary, a licensee could implement the actions specified in a CAL, even if the CAL had never been issued. The purpose of a CAL is to document a licensee's commitments to the NRC Staff to take a particular

76 Id. at 3-29.

77 Id. at 3-31. CALs impose legally binding notification requirements. See id. 78 Id. 79 Id. 80 See Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-940, 32 NRC 225, 237 (1990).

18 action within the range of permi ssible actions, and to notify the St aff if the action is not taken.

Typically, the NRC Staff and licensee negotiate the terms of a CAL before the CAL issued, and the licensee then documents its commitments in a letter to the NRC Staff and the Staff then issues the CAL. If the licensee does not take the action specified in the CAL or desired by the NRC Staff, the Staff has other enforcement tools (such as orders) to compel the licensee to take the Staff's desired action.

In summary, CALs are enforcement actions; they are not licensing actions. CALs do not grant licensees any additional authority beyond the existing license, but instead document a licensee's commitments to take specific actions within the scope of the li censee's authority under the existing license.

B. Scope of Issues Relevant to Whether a CAL Constitutes a License Amendment

1. Commission Directions Regarding Scope of This Proceeding The Commission in CLI-12-20 directed the Board to consider whether "the Confirmatory Action Letter issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under Section 189a."

81 In contrast, FOE would have this Board conduct a broad ranging inquiry into SCE's operational assessments, SCE's hi storical licensing actions, the safety of restart, and SCE's restart actions.

82 The Commission, however , did not direct the Board to consider whether the plant is safe to restart, or whether SCE's Restart Report is acceptable. As the Board recognized in its December 7 Order: [It is] necessary for the Board to determine, not whether the restart plan is adequate or appropriate , but whether the CA L itself is a de facto license amendment that woul d be subject to a hearing opportunity under section 189a of the AEA.

83 81 San Onofre, CLI-12-20, slip op. at 5.

82 See generally FOE Brief at 1-37, 41-43; Large Affidavit at 2-6, 9-56; Gundersen Affidavit at 3-12.

83 December 7 Order at 4.

19 Similarly, in its December 20 Order, the Board characterized the scope of this proceeding as "narrow" and agreed that this proceeding "need not determine whether the restart plan is adequate or appropriate, only wh ether the CAL granted SCE any greater operating authority and whether activities authorized in the CAL extended beyond those gran ted under the current operating licenses."

84 To determine whether the CAL constitutes a de facto license amendment, the provisions in CLI-12-20 indicate that the Board does not need to, and should not, consider whether SCE's restart actions require a license amendment pursuant to 10 C.F.R. § 50.59:

• The portion of CLI-12-20 that refers the CAL issue to the Board does not mention the October 3 CAL response or the restart actions, and does not ask the Board to make any findings related to compliance with 10 C.F.R. § 50.59. The absence of any mention of the October 3 CAL response or th e restart actions in the direc tions to the Board is a clear indication that the Commission did not intend for the Board to address issues related to the CAL response or restart actions. In contra st, the restart actions for Unit 2 and SCE's CAL response of October 3 are discussed on page 6 of CLI-12-20 (which dealt with FOE's request for stay). Thus, the Commission was clearly aware of SCE's restart actions and CAL response, and decided not to mention them in connection with the referral of this proceeding to the Board or to make them part of this proceeding.

84 December 20 Order at 4.

20

• In its direction to the Board in CLI 20, the Commission included footnote 15, which references the decisions in the Seabrook 85 and Perry 86 cases. Neither of those decisions considered whether a licensee's actions pursuant to the CAL (or pursuant to an NRC approval in the case of Perry) were safe or required a license amendment pursuant to 10 C.F.R. § 50.59. Instead, the sole consideration was whether the NRC's action (e.g., the CAL) granted the licensee additional license au thority. Thus, the Board in the December 7 Order explicitly and correctly stated that the "issues we must consider include whether the CAL granted SCE any 'greater operating authority' and whether the activities authorized in the CAL extended 'beyond the am bit of the prescriptiv e authority granted under the license.'"

87 As discussed in Subsection III.C below, that determination can be made based upon the provisions in the CAL itself, without recourse to SCE's CAL response or its restart actions. In summary, in the case of SONGS, it is clear that the Commission intends for the Board to consider whether the CAL itself gr ants SCE additional li cense authority, not wh ether the plant is safe or SCE's planned restart actions require a license amendment pursuant to 10 C.F.R. § 50.59.

2. Additional Considerations Regardi ng Scope of This Proceeding At the time of issuance of the CAL, SCE had not yet developed its restart actions for Unit 2 and had not yet submitted its CAL response that describes those restart actions. Thus, the specifics of the restart actions are not discussed in the CAL.

88 Additionally, the October 3 CAL

85 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-89-28, 30 NRC 271 (1989), aff'd, ALAB-940, 32 NRC 225 (1990).

86 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant), LBP-95-17, 42 NRC 137 (1995), rev'd and vacated, CLI-96-13, 44 NRC 315 (1996).

87 December 7 Order at 3.

88 As discussed in Subsection III.C below, the Board can conclude that the CAL does not constitute a de facto license amendment without considering SCE's restart actions or the CAL response.

21 response only addresses Unit 2, whereas the Commission's decision in CLI-12-20 addresses both Units 2 and 3. SCE has not submitted a CAL response for Unit 3, and such a CAL response is not imminent. Moreover, when SCE issues its CAL response and restart actions for Unit 3, they may be quite different than those for Unit 2 because the TTW in Unit 3 is far more extensive and severe than in Unit 2. The Commission's de cision in CLI-12-20 pr ovides no direction or indication that the Board should hold this proceeding open indefinitely pending issuance of the CAL response for Unit 3, or that the Board shoul d issue two decisions (one for Unit 2 and one for Unit 3). Instead, CLI-12-20 contemplates a singl e decision. This provides another reason for limiting CLI-12-20 to its express terms - - namely, whether the CAL itself is a de facto license amendment, which is a question that can be answered now for both of the SONGS units based upon the terms of the CAL itself.

Policy reasons also militate against FOE's request for a broad-ranging inquiry into the safety of restart and whether the restart actions require a license amendment pursuant to 10 C.F.R. § 50.59. There is a l ong line of cases, including the Bellotti case by the U.S. Court of Appeals, holding that members of the public are not entitled to hearings on confirmatory orders that impose new or more stringent requirement s on a licensee.

89 As the Commission has stated: The only issue in an NRC enforcement proceeding is whether the order should be sustained. Boards are not to consider whether such orders need strengthening. As the court said in Bellotti , allowing NRC hearings on claims for stronger enforcement remedies risks turning focused regulatory proceedings into amorphous public

extravaganzas. . . . The rationale underlying Bellotti is that, when a licensee agrees to make positive changes or does not contest an order requiring remedial changes, it should not be at risk of being subjected to a wide-ranging hear ing and further investigation.

90 89 See, e.g., Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1982); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-04-23, 60 NRC 154 (2004); Alaska Dep't of Transp. & Pub. Facilities (Confirmatory Order Modifying License), CLI-04-26, 60 NRC 399 ("ADOT"), reconsideration denied, CLI-04-38, 60 NRC 652 (2004).

90 ADOT, CLI-04-26, 60 NRC at 404-05.

22 As discussed above, unlike confirmatory or ders, CALs do not esta blish legally binding commitments. FOE would have the Board provide even more hearing rights for CALs than exist for confirmatory orders. The Board should not treat CALs as having more hearing rights than confirmatory orders for the purposes of determining whether a member of the public is entitled to a hearing. In fact, the Seabrook decision, which is referenced in CLI-12-20 referring this proceeding to the licensing board, concluded that even if a CAL is treated as a "de facto suspension," the hearing rights would be those under 10 C.F.R. § 2.202 for enforcement orders.

91 If the NRC Staff had taken the provisions in the SONGS CAL and issued those same provisions in a confirmatory order to SONGS, FOE would not be entitled to a hearing. If the Board accepts the position of FOE and were to treat a CAL as having more hearing rights than a confirmatory order, the Board would be discouraging licensees in the future from agreeing to a CAL. Licensees will not want to agree to a CAL if they know that they can be subject to a hearing on their actions to implement the CAL. Additionally, it is tr aditionally the respons ibility of the NRC Staff (not the licensing boards) to determine whether a plant is safe to restart, whether the licensee is complying with relevant requirements (including the steam ge nerator performance criteria in the Technical Specifications), and whether a licensee's actions warrant a license amendment under 10 C.F.R. § 50.59.92 If a member of the public believes that a licensee is violating 10 C.F.R. § 50.59, or that

91 Seabrook, LBP-89-28, 30 NRC at 276-77.

92 See, e.g., NRC Inspection Manual Chapter 0351, Implementation of the Reactor Oversight Process at Reactor Facilities in an Extended Shutdown Condition for Reasons Other than Significant Performance Problems (Apr.

5, 2011) (SCE Attachment 15); 10 C.F.R. § 50.59(d)(2), which requires licensees to submit a periodic summary of their 50.59 evaluations to the NRC Staff for its review; NRC Inspection Procedure 71111.17, Evaluations of Changes, Tests, or Experiments and Permanent Plant Modifications (Oct. 31, 2008) (SCE 6), which requires periodic NRC inspections of a licensee's evaluations performed in accordance with 10 C.F.R. § 50.59.

23 its restart actions are unsafe, th e appropriate course of action is to file a 2.206 petition, not a hearing request.

In summary, both the langua ge of CLI-12-20 and policy considerations indicate that the focus of this proceeding should be on whether the terms of the CAL constitute a de facto license amendment, not whether the plant is safe to restart or whether the restart actions require a license amendment under 10 C.F.R. § 50.59.

Nevertheless, in light of the Board's December 7 Order and December 21 Order, Subsection III.D below addresses SCE's restart actions and demonstrates that they do not support a conclusion that the CAL is a de facto license amendment, and Section V below addresses various questions posed by the Board re garding the safety of restart.

C. The SONGS CAL Does Not Constitute a De Facto License Amendment The SONGS CAL does not constitute a de facto license amendment. A license amendment is needed for an NRC action only if the NRC authorizes a licensee to take action that goes beyond existing license authority. As the Board explained in the December 7 Order, this proceeding must consider "whether the CAL granted SCE any 'greater operating authority' and whether the activities au thorized in the CAL extended 'beyond the ambit of the prescriptive authority granted under the license.'"

93 Because the March 27 CAL does not grant any greater operating authority to SCE and does not authorize activities beyond the ambit of the prescriptive authority granted under th e license, it is not a de facto license amendment.

1. Legal Standards AEA Section 189a(1)(A) addresses NRC adj udicatory proceedings and hearings. It states:

93 December 7 Order at 3 (quoting Perry, CLI-96-13, 44 NRC at 327).

24 In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.

94 The Commission has explained that Congress wished to provide he aring rights for only "certain classes of agency action," not all of them, and "[i]f a form of Commi ssion action does not fall within the limited categories enumerated in section 189a, the Commission need not grant a hearing."95 Therefore, the AEA only requires an oppor tunity for a hearing for specific actions, including the "amending of any license." The Commission has evaluated what ac tions by the NRC Staff require license amendments. In Perry, the Commission reversed and vacated a licensing board decision that concluded that NRC Staff appr oval of a change to the reactor vessel material specimen withdrawal schedule must be treated as a license amendment.

96 In doing so, the Commission explained: In evaluating whether challenged NRC authorizations effected license amendments within the meaning of section 189a, courts

repeatedly have considered the same key factors: did the challenged approval grant the licensee any "greater operating authority," or otherwise "alter the original terms of a license"? If so, hearing rights likely were implicated.

97 The Commission rejected a claim that any time the NRC Staff grants prior approval, the Staff is permitting actions that will exceed existing licensing authority, and a license amendment is required.98 94 See 42 U.S.C. § 2239(a)(1)(A) (2011).

95 Perry, CLI-96-13, 44 NRC at 326.

96 Id. at 327, 330.

97 Id. at 326 (citations omitted).

98 See id. at 327.

25 As part of its analysis in Perry, the Commission discussed precedents in which a license amendment was determined to be needed and not be needed. Examples in which a license amendment was determined to be needed included permission to dismantle major structural components and extension of the duration of a low-power license.

99 Examples of approvals that did not require an amendment or trigger Secti on 189a hearing rights included NRC authorization of restart following the Staff's review of or dered modifications and the lifting of license suspensions.

100 Thus, NRC granting of restart approval does not per se trigger any hearing rights. 2. Analysis of the March 27 CAL for SONGS As demonstrated below, the March 27 CAL does not grant an y greater operating authority to SCE and does not authorize activities beyond the am bit of the authority granted under the license. Therefore, consistent with the above Commission case law, the CAL does not require a license amendment and does not ha ve hearing rights associated with it. First, NRC case law has held that a CAL does not require a license amendment. In Seabrook , a licensing board evaluated whether a CAL issued for the Seabrook plant provided hearing rights under AEA Section 189a.

101 Similar to the March 27 CAL issued for the SONGS plant, the Seabrook CAL stated that the operator would obtain approval from the NRC before restart and after reviewing the underlying operational event.

102 The licensing board rejected an argument that the CAL was a suspension under AEA Section 189a, concluding that it "accept[s] the Confirmatory Action Letter at face value; it is not a suspension within the meaning of the Act

99 See id. 100 See id. 101 See, e.g., Seabrook, LBP-89-28, 30 NRC at 275-76.

102 Id. at 271-72.

26 and no hearing rights ensure from it."

103 The licensing board stated that if anything, the NRC approval would be a "lifting of a suspension,"

which is not covered by AEA Section 189a.

104 The Appeal Board upheld the licensing board's decision in Seabrook to reject the argument that a CAL has hearing rights associated with it.

105 The Appeal Board concluded: Like their first argument, this one also confuses plant licensure with plant operation and erroneously attempts to make the two

distinct regulatory concepts synonymous. Here, the staff's issuance of a CAL immediately after the natural circulation test incident was an enforcement action directly linked to the applicants' low-power license-the only operating authority extant at the time of the staff's license compliance action. The staff's action was taken to ensure that the applicants complied with all agency regulations and the terms and conditions of the low-power

license before they could restar t the facility unde r that license authority. As previously explai ned, pursuant to the Commission's regulatory scheme the staff's enforcement action was independent

of, and immaterial to, any subsequent Commission licensing determination that the applicants met all regulatory requirements for a full-power license.

106 Thus, the issuance of a CAL itself is not a licen sing action with hearing rights, but rather an enforcement action. The Seabrook proceeding is particularly relevant here because the Seabrook CAL is very similar to the SONGS CAL. Both of these CALs include provisions for completing a review of the underlying event, establishing corrective actions to be completed prior to restart, sharing the results of the CAL activities with the NRC, and obtaining NRC approval prior to restart.107 Therefore, the conclusion in Seabrook that the CAL does not provide hearing rights under AEA Section 189a also applies to the SONGS CAL.

103 Id. at 275-76.

104 See id. 105 See Seabrook, ALAB-940, 32 NRC at 237-38.

106 Id. at 237. 107 See CAL at 2-3 (SCE Attachment 3); Letter from W. Russell, NRC, E. Brown, Public Service of New Hampshire, Confirmatory Action Letter (CAL) 89-11 (June 23, 1989) (SCE Attachment 17).

27 Second, the CAL does not authorize any activities; instead, it repeats commitments by SCE. The December 7 Order refers to "assessments and tests authorized in the CAL."

108 However, the CAL does not "authorize" any assessments or tests. Instead, the CAL repeats SCE's commitments to perform those assessments and tests.

109 SCE had the authority to conduct those assessments and tests prior to issuance of the CAL, in accordance with the existing SONGS licenses and NRC regulations. Th e CAL does not expand that authority.

110 In particular:

• The CAL states that SCE "will determine the causes of the tube-to-tube interactions that resulted in steam generator tube wear in Unit 3, and will implement actions to prevent loss of integrity due to these causes in the Unit 2 steam generator tubes."

111 Such an action was already required by Criterion XVI (Corrective Ac tion) of Appendix B to 10 C.F.R. Part 50. Criterion XVI states that "[m]easures shall be established to assure that conditions adverse to quality, such as failures, malfunctions, defi ciencies, deviations, defective material and equipment, and nonconformances are promptly identified and corrected. In the case of signifi cant conditions adverse to quality, the measures shall assure that the cause of the condition is determined and correc tive action taken to preclude repetition." (Emphasis added). Therefore, the provision in the CAL for identification of the cause of the TTW a nd prevention of recurrence of TTW does not give SONGS any additional licen se authority. Instead, it reflects an existing requirement.

108 December 7 Order at 3.

109 Compare March 23 Return to Service Action Plan (SCE Attachment 7) with CAL (SCE Attachment 3).

110 The activities and requirements in the CAL are consistent with examples of types of actions that may be included in CALs according to the Enforcement Manual. For example, the Enforcement Manual at 3-30 (SCE Attachment 14) states that a CAL may be issued to confirm actions related to "Equipment operation and safety verification" and a "Licensee's agreement to NRC approval prior to resumption of licensed activities."

111 See CAL at 2 (SCE Attachment 3).

28

• The CAL states that steam generator tube inspections and testing will be performed.

112 These inspections and tests are already authorized by the Steam Generator Program in Section 5.5.2.11 of the T echnical Specifications.

113 For example, the Steam Generator Program includes provisions for condition monitoring assessments, steam generator tube inspections, and an assessment of steam genera tor tube degradation to ensure that tube integrity is maintained until the next steam generator inspection.

114 Therefore, the inspection and testing provisi on in the CAL does not give SONGS any additional license authority.

• The CAL states that SCE will implement actions to prevent loss of tube integrity.

115 Such actions are required by the Steam Generator Program, which provides performance criteria for steam generator tube integrit y, including: (1) a structural integrity performance criterion; (2) an accident induced leakage performance criterion; and (3) an operational leakage performance criterion.

116 Therefore, this pr ovision in the CAL does not give SONGS any additional license authority.

• The CAL states that tube plugging will be performed.

117 Tube plugging is authorized by the Technical Specifications and is required under certain circumstances.

118 Additionally, tube plugging up to 8% is explicitly acceptable under the existing SONGS Updated Final

112 See id. 113 Relevant parts of the SONGS Technical Specifications are provided as SCE Attachment 9.

114 SONGS Unit 2 Technical Specification 5.5.2.11 (SCE Attachment 9).

115 See CAL at 2 (SCE Attachment 3).

116 SONGS Unit 2 Technical Specification 5.5.2.11 (SCE Attachment 9).

117 See CAL at 2 (SCE Attachment 3).

118 SONGS Unit 2 Technical Specifications at 3.4-51 (LCO 3.4.17 requires: "All SG tubes satisfying the tube repair criteria shall be plugged in accordance with the Steam Generator Program.") (SCE Attachment 9).

29 Safety Analysis Report ("UFSAR").

119 The amount of tubes plugged in the RSGs is far less than 8%, and therefore does not represent a change in the licensing basis. Therefore, this provision in the CAL does not give SONGS any additional license authority.

• The CAL states that SCE will identify any additional operating limits and a protocol of inspections.

120 SCE has decided to operate Unit 2 at a power no greater than 70% of the maximum licensed power.

121 Under the license and Tec hnical Specifications, SCE has the authority to operate the units at any power level up to the maximum power level.

122 Imposition of more restrictive operating limits and additiona l inspections does not give SCE any additional licensed authority and therefore does not involve any license amendment for the Technical Specifications or license. The CAL also states that SCE will obtain restart approval from the NRC Staff. The CAL states: "This Confirmatory Action Letter (CAL) confirms th at SONGS Unit 2 will not enter Mode 2, and SONGS Unit 3 will not enter Mode 4 (as defined in the Technical Specifications), until the NRC has completed its review of your actions."

123 This provision is an additional restriction on SCE. The CAL provision on restar t does not grant any grea ter operating authority to SCE and does not authorize activities beyond the ambit of the pr escriptive authority granted under the license. It therefore does not satisfy the standard for a license amendment. In that

119 See SONGS UFSAR Tables 15.10.6.3.3-6 and 15.10.6.3.3-7 (SCE Attachment 18), which assume 779 tubes are plugged, which is about 8% of the total number of tubes in each RSG. Relevant sections of the UFSAR are provided as SCE Attachment 18, including UFSAR change requests related to information referenced in this brief. 120 See CAL at 2 (SCE Attachment 3).

121 See CAL Response Letter at 3 (SCE Attachment 4).

122 See SONGS Unit 2 Facility Operating License § 2.C ("Southern California Edison Company (SCE) is authorized to operate the facility at reactor core power levels not in excess of full power (3438 megawatts thermal)") (SCE Attachment 19); SONGS Unit 2 Technical Specification 1.1 ("[Rated Thermal Power] shall be a total reactor core heat transfer rate to the reactor coolant of 3438 MWt.") (SCE Attachment 9).

123 CAL at 2 (SCE Attachment 3).

30 regard, in Perry , the Commission rejected a claim that, any time the NRC Staff grants approval for restart, the Staff is permitting actions that will exceed existing licensing authority.

124 Third, in any event, the above commitment s in the CAL are not legally binding. The NRC Enforcement Manual explains that "CALs do not establish legally binding commitments."

125 Therefore, by its very nature, a CAL has no effect on a licensee's authority. Finally, the FOE Brief, the Large Affidavit, and the Gundersen Affidavit do not address whether the express terms of the March 27 CAL constitute a de facto license amendment. Similarly, NRDC does not address this issue in the NRDC Brief. Instead, these documents discuss and evaluate whether SCE's actions and evaluations in response to the CAL require a license amendment.

126 Therefore, if the Board agrees with SCE's conclusions regarding the scope of this proceeding, then it need not consider the arguments of FOE or NRDC and should conclude this proceeding in favor of SCE.

In summary, the terms of the March 27 CAL simply repeat SCE's commitments made under its existing license authority or requireme nts, or represent addi tional restrictions on SONGS Units 2 and 3, and the CAL does not prov ide SCE with any new license authority. Accordingly, the terms of the CAL do not constitute a license amendment.

D. Restart Actions As discussed in Subsections III.B and III.C above, the Board can determine that the CAL does not constitute a de facto license amendment, without eval uating SCE's restart actions as described in SCE's October 3 CAL response. Neve rtheless, even if the Board were to consider

124 See Perry, CLI-96-13, 44 NRC at 327.

125 Enforcement Manual at 3-31 (SCE Attachment 14).

126 See, e.g., FOE Brief at 1-2, 6-9.

31 SCE's restart actions set forth in the Restar t Report, such actions would not change the conclusion that the CAL is not a de facto license amendment. A licensee's actions require a license amendment only if the actions satisfy the criteria in 10 C.F.R. § 50.59. As provided in 10 C.F.R. § 50.59(c)(1), a license amendment is needed for a change in the facility or procedures as described in the UFSAR (or for a test or experiment not described in the UFSAR), if the change requires a change to the Technical Specifications or if the change meets any of the eight criteria in 10 C.F.R. § 50.59(c)(2). Under that section, a proposed change, test, or experiment requires a license amendment if it would: (i) Result in more than a minima l increase in the frequency of occurrence of an accident previously evaluated in the final safety analysis report (as updated);

(ii) Result in more than a minimal increase in the likelihood of occurrence of a malfunction of a structure, system, or component (SSC) important to safety previously evaluated in the final safety analysis report (as updated);

(iii) Result in more than a minima l increase in the consequences of an accident previously evaluated in the final safety analysis report (as updated);

(iv) Result in more than a minima l increase in the consequences of a malfunction of an SSC important to safety previously evaluated in the final safety analysis report (as updated);

(v) Create a possibility for an accident of a different type than any previously evaluated in the final safety analysis report (as updated);

(vi) Create a possibility for a malfunction of an SSC important to safety with a different result than any previously evaluated in the final safety analysis report (as updated);

(vii) Result in a design basis limit for a fission product barrier as

described in the FSAR (as updated) being exceeded or altered; or

32 (viii) Result in a departure from a method of evaluation described in the FSAR (as updated) used in establishing the design bases or in the safety analyses.

As provided in 10 C.F.R. § 50.59(a)(1), a "change" is defined as "a modification or addition to, or removal from, the facility or procedures that affects a design function, method of performing or controlling the function, or an evaluation that demonstrates that intended functions will be accomplished." Thus, for example, if a design change does not adversely affect a design function or a method of performing or controlling a design function, Section 50.59 does not apply to that change. This concept is further explained in NEI 96-07, Guidelines for 10 CFR 50.59 Evaluations (Rev. 1, Nov. 2000), 127 which is endorsed by NRC Regulatory Guide 1.187, Guidance for Implementation of 10 CFR 50.59, Changes, Tests, and Experiments (Nov. 2000).

As discussed in Section 4.2 of NEI 96-07, a prop osed change is subject to a "screening" to determine whether there is a need for a full 50.59 evaluation against th e eight criteria in 10 C.F.R. § 50.59(c)(2). If a desi gn change does not adversely affect a design function or a method of performing or controlling a design function, it may be screened out per Section 4.2.1 of NEI 96-07 without further evaluation of the change against the eight cr iteria in 10 C.F.R. § 50.59(c)(2). In that regard, if a design change does not adversely affect a design function or a method of performing or controlling a design function, the change by its very nature will not meet any of the eight crit eria in Section 50.59(c)(2) (e.g., the change will not adversely affect the frequency or consequences of an accident evaluated in the UFSAR).

As described in the SONGS UFSAR, the desi gn functions of the steam generator tubes are to transfer heat from the primary to secondary side and act as part of the reactor coolant

127 Relevant portions of NEI 96-07 and Regulatory Guide 1.187 are provided as SCE Attachments 20 and 21. NEI 96-07 is also available at ADAMS Accession No. ML003771157.

33 pressure boundary without exceeding code allowable stress limits.

128 As discussed in Section 8 of the SONGS Return to Service Report, 129 the primary restart actions to address tube wear in Unit 2 are (1) plugging of 207 tubes in Steam Generator 2E-088, and 308 tubes in Steam Generator 2E-089 (or about 3% of the total number of tubes in each steam generator); (2) placing stabilizers inside many of the plugged tubes; (3) limiting operati on to 70% of full power pending a mid-cycle outage; and (4) c onducting additional inspections of steam generator tubes during the mid-cycle outage. These restart actions are discussed below.

• Tube Plugging - - As discussed in Section 8.2 of the Return to Service Report for Unit 2, 130 SCE has plugged each end of those tubes that had wear exceeding 35% of the tube wall, that are adjacent to the retainer bars, or that are in approximately the same region that experienced TTW in Unit 3. Plugging rem oves the affected tubes from service.

Thus, even if the plugged tubes were to develop a through-wall leak or to burst, such occurrence would not result in release of primary coolant to the secondary system.

131 Tube plugging is authorized (and, in some cas es, required) by Technical Specifications 3.4.17 and 5.5.2.11 132 and UFSAR Section 5.4.2.3.5.

133 Tube plugging up to 779 tubes per steam generator is explicitly accounted for by UFSAR Section 15.10.6.3.3.

134 The amount of tubes plugged in Unit 2 is far less than this amount, and therefore does not

128 SONGS UFSAR, Section 5.4.2.1 (SCE Attachment 18). See also Technical Specification Bases B.3.4.17 (SCE Attachment 32).

129 SCE Attachment 8.

130 SCE Attachment 8.

131 Brabec Affidavit ¶ 30.

132 SCE Attachment 9.

133 SCE Attachment 18.

134 See SONGS UFSAR Tables 15.10.6.3.3-6 and 15.10.6.3.3-7 (SCE Attachment 18).

34 represent a change in the li censing basis and does not advers ely affect a design function as described in the UFSAR.

• Tube Stabilizers - - Stabilizing involves the insertion of cables in to plugged tubes, which provides additional reinforcement against full severance of a tube. Because only plugged tubes are stabilized and because stabilizers provide additional protection against tube severance, stabilizers do not adversely affect any design function and therefore do not require a license amendment.

135

• Limiting Power to 70% - - As a temporary measure pending a mid-cycle outage for a steam generator tube inspection, the power level of Unit 2 will be administratively limited to 70% of the maximum power specified in the license and Technical Specifications. Reducing power to 70% eliminates the type of thermal-hydraulic conditions that caused FEI and the associated TTW in SONGS Unit 3.

136 Because the Technical Specifications and license specify a maximum power level and do not require the plant to operate at that power level, operation at a level lower than the maximum power level does not necessarily require a license amendment.

In that regard, it is not unusual for nuclear power plants to operate at less than 100% power , without needing a license amendment. For example, after the licenses for Quad Cities Units 1 and 2 were amended in 2002 to increase their power level from 2511 MWt to 2957 MWt, damage occurred in their steam dryers.

137 While the licensee evaluated the cause of the damage and took corrective action, the licensee shut down several times and then operated Quad Cities at pre-uprate levels (approximately 85% of its maximum licensed power) for a

135 Brabec Affidavit ¶ 31.

136 CAL Response Letter at 4 (SCE Attachment 4); Brabec Affidavit ¶ 32.

137 See Exelon Nuclear Slides, Quad Cities Extended Power Uprate (EPU) Meeting, Introduction (Mar. 22, 2007), available at ADAMS Accession No. ML070820012 (SCE Attachment 22).

35 period of about one and a half years for Quad Cities Unit 1 and one year for Quad Cities Unit 2.138 More recently, as indicated in NRC's power reactor status reports, the Seabrook plant operated at approximately 85% of full power from the middle of December 2011 until it shut down for refueling in September 2012 because of problems with generator stator cooling.

139 Thus, operation at reduced power levels for sustained periods due to equipment problems does not require a license amendment. Furthermore, contrary to NRDC's arguments, 140 operation of Unit 2 at 70%

power would not establish a new precedent, given the previous precedents involving operation of Quad Cities and Seabrook at reduced power due to equipment problems, as discussed above. Subsection III.E.7 below provides additional discussion regarding RAI 32 and whether SCE's operational assessments need to be performed at 100% power in order to comply with Technical Specification 5.5.2.11.

• Mid-Cycle Outage for Steam Generator Tube Inspections - - Shutting down Unit 2 for a mid-cycle outage and conducting steam genera tor tube inspections does not require a license amendment under 10 C.F.R. § 50.59.

SONGS Technical Specification 5.5.2.11 requires periodic steam generator tube inspections.

141 The specific nature of the inspections is not specified in the Technical Specifications. There is nothing inconsistent with the Technical Specifications or the UFSAR with conducting more frequent

138 See id.; see also Power Reactor Status Reports, http://www.nrc.gov/reading-rm/doc-collections/event-status/reactor-status/. Examples of the applicable reports for Quad Cities are provided in SCE Attachment 23. Even FOE has recognized this fact regarding Quad Cities.

See Gundersen Declaration ¶ 53.1.

139 See Power Reactor Status Reports, http://www.nrc.gov/reading-rm/doc-collections/event-sta tus/reactor-status/. Examples of the applicable reports for Seabrook are provided in SCE Attachment 24.

140 NRDC Brief at 3.

141 SCE Attachment 9.

36 inspections. Furthermore, conducting more frequent inspections does not adversely affect any design function, and therefore does not require a license amendment.

142 In addition to the actions described above, Section 9 of the SONGS Return to Service Report identifies defense-in-depth actions.

143 These actions consist of injection of Argon into the Reactor Coolant System ("RCS") to facilitate detection of steam generator tube leakage into the secondary system, installation of a Nitrogen (N

-16) radiation detection system on the Main Steam Lines also to facilitate detection of tube leakage, reduction of the administrative limit for RCS activity level to reduce impacts of tube le akage or a tube burst, and enhanced operator response to early indication of t ube leakage. Those actions provi de additional protection in the event of a tube leak or tube burst, and do not adversely affect any safety function.

144 Therefore, those defense-in-depth actions do not require a license amendment per 10 C.F.R. § 50.59. Additionally, these actions do not constitute actions to prevent loss of integrity due to the causes

of tube wear in the Unit 2 steam generator tubes, 145 and therefore do not fall within the scope of the CAL, which requires actions to prevent loss of integrity in the Unit 2 steam generator tubes.

E. FOE's Brief Raises In appropriate Arguments The FOE Brief raises a number of legally incorrect or inappropriate arguments. The following sections address each of them.

142 Brabec Affidavit ¶ 33.

143 Section 11 of the SONGS Return to Service Report (SCE Attachment 8) also describes "additional actions" that SCE will be taking for Unit 2, including improving the sensitivity of vibration monitoring equipment and using an analytic tool that will aid in diagnosis of equipment conditions. Neither of these actions adversely affects any design function, and therefore neither requires a license amendment. Brabec Affidavit ¶ 36. Moreover, the additional actions are intended to help in analysis of historical data, and do not constitute actions to prevent loss of integrity due to these causes in the Unit 2 steam generator tubes. Brabec Affidavit ¶ 36. Therefore, such actions do not come within the scope of the CAL, which requires actions to prevent loss of integrity in the Unit 2 steam generator tubes.

144 Brabec Affidavit ¶ 34.

145 Brabec Affidavit ¶ 34.

37 1. FOE Misapplies the Standards for a License Amendment Although the FOE Brief cites the st andards in 10 C.F.R. § 50.59 and Perry , FOE misapplies those standards.

For example, Subsection IV.C of the FOE Brief argues that SCE's proposal "seeks new and greater authority than permitted under the current license and therefore requires a license amendment."

146 This argument fundamentally misconstrues the nature of the CAL and SCE's Restart Report. SCE is not requesting the NRC to grant it any additiona l licensing authority. Instead, SCE's Restart Report identifies the actions that SCE is planning to take under its existing license authority. Under the CAL, the NRC Staff is reviewing those planned actions to confirm that it is safe to restart. NRC's a pproval to restart the plant will not give SCE any additional authority; it will simply allow SCE to proceed with restart based upon its existing license authority.

Additionally, FOE makes arguments that are completely irrelevant to the standards in 10 C.F.R. § 50.59 and Perry. For example, the FOE Brief appears to argue that a license amendment is needed because "SCE's proposal to re start Unit 2 involves safe ty issues that differ significantly from those that were previously analyzed and approved during San Onofre's licensing"; and that "SCE's restart plan raises significant new issues not covered by San Onofre's current license."

147 However, a new safety issue, in and of itself, does not require a license amendment pursuant to 10 C.F.R. § 50.5

9. The NRC routinely identifies new safety issues in its generic communications with licensees, such as Information Notices, Bulletins, Generic Letters, and Regulatory Issue Summaries. Licensees are neither expected nor required to submit license amendments to deal with such new safety issues. Instead, pursuant to 10

146 FOE Brief at 24; see also id. at 6, 8.

147 Id. at 1-2.

38 C.F.R. § 50.59, a license amendment is needed only if 1) the licensee pro poses a change in its Technical Specifications or proposes to make a cha nge in the facility or procedures as described in the UFSAR, or to conduct a test or experiment not described in the UFSAR, and 2) that change, test, or experiment meets one of the eight criteria in Section 50.59(c). Similarly, the Large Affidavit implies that a license amendment is needed because SCE is proposing a "great deal of change, test and experiment

," including "changes of conditions and procedures that are outside the re ference bounds of the present FSAR."

148 However, 10 C.F.R. § 50.59 explicitly allows a licensee to make changes in the UFSAR and conduct tests and experiments not discussed in the UFSAR, provided that the changes, te sts, and experiments do not meet any of the ei ght criteria in § 50.59(c). In summary, FOE has not properly applied the provisions in 10 C.F.R. § 50.59.

2. FOE Has Mischaracterized the SONGS Licensing Basis FOE argues that operation of Unit 2 with damaged steam generator tubes is inconsistent with the licensing basis.

149 That argument mischaracterizes the SONGS licensing basis. Contrary to FOE's arguments, the licensing basis for SONGS explicitly accounts for operation with degraded steam generator tubes.

In particular, Te chnical Specification 5.5.2.11, entitled "Steam Generator (SG) Program," require s periodic inspections of the steam generator tubes to identify flaws, cracks, and other types of degradation.

150 The SG Program requires an operational assessment of such degradation to determine whether the tube performance criteria in Technical Specification 5.5.2.11 will be satisfied until the next tube inspection. As provided in Technical Specification 5.5.2.11.c, tube s containing flaws equal to or greater than 35% of the

148 Large Affidavit at 5-6, 56.

149 See, e.g., FOE Brief at 7, 10-13, 19, 24-26.

150 SCE Attachment 9.

39 nominal tube wall thickness must be plugged. Thus, the SG Program explicitly provides for operation with degraded steam generator tubes, provided that degradati on of in-service tubes does not reach the levels specifi ed in Technical Specification 5.5.2.11. Similarly, UFSAR Section 5.4.2.3.1.3 provides an analysis of the amount of tube wall

thinning and degradation that is acceptable, and provides th e basis for the 35% criterion.

151 UFSAR Section 5.4.2.3.5 also discusses that periodi c inspections of steam generator tubes may result in certain tubes that exceed the established criterion, and that such tubes shall be plugged.152 In fact, for purposes of the accident an alysis, the UFSAR assumes that 779 tubes are plugged, which is about 8% of the total number of tubes in each RSG.

153 Thus, FOE has mischaracterized the SONG S licensing basis in arguing that operation with degraded steam generator tubes represents a change. Both the Technical Specifications and UFSAR for SONGS contemplate that the plant will operate with degraded in-service tubes and other degraded tubes that are plugged. As a result, such argume nts do not provide an adequate basis for FOE's position that SCE's restart actions require a license amendment.

3. FOE Arguments Regarding the Safety of Operation at 70% Power Mischaracterize the Restart Report and Are Outside the Scope of this Proceeding FOE argues that SCE has not demonstrated the safety of operation at 70% power, alleging inter alia that SCE has not demonstrated that it meets the steam generator performance criteria at 70% power.

154 That argument mischaracterizes the Restart Report and, in any event, is outside the scope of this proceeding.

151 SCE Attachment 18.

152 SCE Attachment 18.

153 SONGS UFSAR Tables 15.10.6.3.3-6 and 15.10.6.3.3-7 (SCE Attachment 18).

154 See, e.g., FOE Brief at 6, 8, 15-17, 20, 22-23, 24, 29.

40 To the extent that FOE is claiming that SCE has not provided information demonstrating the safety of operation at 70% or demonstrating compliance with the steam generator performance criteria, that allegation mischaract erizes SCE's Restart Report. The operational assessments in the Restart Report provide information demonstrating that Unit 2 can be safely operated at 70% power (and some of the operational assessments show that Unit 2 can be safely operated at 100% power) for at least 150 days. Furthermore, all of those operational assessments (i.e., SCE's operational assessment, the operational assessment by an SCE contractor for non-TTW wear mechanisms, and the three operational assessments by SCE's contractors for TTW) explicitly use the steam generator tube performance criteria at 70% power, including both the structural integrity performance criteria ("SIPC") and the accident induced leakage performance criteria ("AILPC").

155 Thus, FOE mischaracterizes the Restart Report when it argues to the contrary.

At its heart, FOE's argument is not that SCE has failed to make a showing that operation at 70% power is safe and meets the tube performance criteria - -

instead, FOE's primary argument is that it disagrees with SCE's showing.

However, in contrast to SCE's very detailed operational assessments extending over hundred s of pages, FOE has not provided any calculations or analyses to support its position. Instead, its arguments (including the affidavits attached to the FOE Brief) are based upon not hing but speculation, assertions, and bare conclusions. In any event, even if FOE's ar guments were properly s upported, they would be outside the scope of this proceeding.

155 See, e.g., SONGS U2C17 Steam Generator Operational Assessment, Section 3.0 at 12-13 (Rev. 0, Oct. 3, 2012) ("SCE Operational Assessment") (provided as Restart Report, Enclosure 2, Attachment 6) (SCE 5); SONGS U2C17 Outage - Steam Generator Operational Assessment, Section 4.0 (Rev. 0, Oct. 1, 2012) ("Non-TTW Operational Assessment") (provided as Restart Report, Enclosure 2, Attachment 6, Appendix A) (SCE Attachment 26); Tube-to-Tube Report, Section 3.0 (SCE Attachment 12); Intertek Operational Assessment, Section 2.2 (SCE Attachment 11); Westinghouse Operational Assessment, Section 3 (SCE Attachment 10).

41 As discussed in Subsection III.B above, assu ring that Unit 2 is operated safely and complies with the tube performance criteria is encompassed within the inspection and enforcement functions of the NRC Staff, and the Commission's decision in CLI-12-20 did not designate that issue for litigation in this proceeding.

As provided by the Commission in CLI-12-20, the purpose of this proceeding is to determine whether the CAL "constitutes a de facto license amendment." At most, 156 the Board has been tasked with determining whether SCE's restart actions require a license amendment. Issues related to the safety or acceptability of SCE's restart actions pertain to the merits of any needed license amendment, not to the threshol d question of whether a license amendment is needed. The Board has not been tasked with as sessing whether SCE's restar t actions are safe or comply with Technical Specification 5.5.2.11, or wh ether SCE should be pr oposing different or alternative actions. As this Board has stated, it need not determine whether the restart plan is adequate or appropriate, only whether the CAL granted SCE any greater operating authority and whether activities authorized in the CAL extended beyond those granted under the current operating licenses.157 In summary, FOE mischaracterizes the Restart Report in arguing that SCE has not made a demonstration of the safety of operation at 70% power. Furthermore, to the extent that FOE disagrees with SCE's determination of complian ce with the tube performance criteria, FOE's arguments are a compliance issue that is not within the scope of this proceeding.

156 As indicated above, SCE believes that the scope of this proceeding is limited to the terms of the CAL and does not encompass SCE's restart actions.

157 December 20 Order at 4.

42 4. FOE's Arguments Regarding Non-TTW Mechanisms Mischaracterize the Restart Report At several places in its Brief, FOE alleges or implies that SCE's Restart Report does not address wear mechanisms other than TTW, such as wear from contact with retainer bars, AVBs, and TSPs.158 For example, FOE repeatedly claims that SCE "ignores" those other mechanisms.

159 That allegation mischaracterizes the Restart Report. One of the operational assessments (performed by AREVA) attached to SCE's Restart Report for Unit 2 is entirely devoted to wear mechanisms other than TTW.

160 As stated in that operational assessment: This report documents the OA performed during the SONGS Unit 2 C17 Refueling Outage. This OA addresses the detected tube degradation OTHER THAN tube-to-tube wear (TTW). TTW will be addressed in a separate OA

[15]. This OA concludes that operation at full power for a fu ll cycle of 1.577 Effective Full Power Years (EFPY) is justified based on detected tube degradation other than TTW.

161 Furthermore, SCE's own operational assessment ha s an entire section (Section 3.1) devoted to wear mechanisms other than TTW.

162 SCE's operational assessment concludes: The OA demonstrates there is reasonable assurance that the SIPC and AILPC for non-TTW will be satisfied for 18 months at 100%

power.163 Additionally, Section 7.1 of SCE's Return to Service Report discusses tube wear from causes other than TTW and the correctiv e actions for such tube wear.

164 158 See, e.g., FOE Brief at 5, 8, 16, 17, 22, 23, 29, and 32.

159 Id. at 17, 23, and 32.

160 See Non-TTW Operational Assessment (SCE Attachment 26).

161 Id. at 7. 162 SCE Operational Assessment (SCE Attachment 25).

163 Id. at 15. 164 SCE Attachment 8.

43 With respect to retainer bar to tube wear, FOE further claims that plugging of the affected tubes is not a satisfactory solution because the retainer bars will continue to vibrate and contact the plugged tubes, which could cause the plugged tubes to become loose and damage unplugged tubes.165 FOE claims that SCE has "failed to analyze the potential safety effects" of such an occurrence.

166 Similar to its other arguments related to non-TTW wear mechanisms, FOE mischaracterizes the Restart Report. SCE has inserted stabilizers in plugged tubes adjacent to the retainer bars to address the very issue raised by FOE. As stat ed in SCE's operational assessment: Because of the potential for continued retainer bar wear of Unit 2, tubes adjacent to retainer bars have been removed from service.

Tubes with retainer bar wear indi cations were stabilized with U-bend cable stabilizers. The tubes on either side of all retainer bars, at each end of the retainer bars, and at the center of the retainer bars, were also stabilized with U-bend cable stabilizers. These corrective actions provide reasonable assurance that retainer bar wear will not challenge the structural and leakage integrity performance criteria during the remaining life of the SGs. In addition, the stabilization of these tubes provides reasonable assurance that a tube severance event will not occur as a result of retainer bar wear.

167 In addition, as indicated in SCE's response to NRC RAI 15, "[t]he integrity of the non-stabilized, preventively-plugged tubes is ensured by the limited vibration amplitude of the tubes and retainer bars, along with the number and arrangeme nt of stabilized, preven tively-plugged tubes at each retainer bar."

168 165 FOE Brief at 16-17, 21; Large Affidavit at 18, 49.

166 FOE Brief at 21.

167 SCE Operational Assessment at 14 (SCE Attachment 25).

168 Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 15) Regarding Confirmatory Action Letter Response, Enclosure 3, at 4 (Jan. 9, 2013), available at ADAMS Accession No. ML13014A249 (SCE Attachment 27).

44 In summary, FOE's allegations that SCE did not address tube wear other than TTW, and failed to address loose parts due to retainer bar wear, are baseless and misc haracterize the Restart Report. As a result, such allegations do not provide an adequate basis for FOE's argument that SCE's restart actions require a license amendment.

5. FOE's Brief Makes a Number of Other Baseless Arguments At several places in its brief, FOE makes a number of other baseless arguments. For example:

• Elimination of FEI at 70% Power

- FOE argues that it is not known whether operation at 70% will reduce or eliminate FEI.

169 That argument overlooks the Tube-to-Tube Report, which demonstrates that FEI will not occur at 70% power even if it were assumed that none of the AVBs is effective.

170 It also ignores the Westinghouse operational assessment, which demonstrates that FEI did not occur at Unit 2 at 100% power.

171

• Reactor Shutdown in the Event of Leakage - FOE claims that SCE's plans to shut down the reactor in the event of tube leakage represents a "change" and that SCE has not evaluated the impacts of this change on other systems and components.

172 However, as discussed in Section 9.4.1 of the Return to Service Report, 173 plant procedures and Technical Specifications already require plant shutdown if tube leakage reaches certain levels. The only procedural revision involves a reduction in the level of leakage that triggers a shutdown. Such a reduction is a conservative change, and therefore does not

169 FOE Brief at 15-16.

170 Tube-to-Tube Report, Section 5 (SCE Attachment 12).

171 Brabec Affidavit ¶ 50; Westinghouse Operational Assessment at 4 (SCE Attachment 10).

172 Large Affidavit at 54.

173 SCE Attachment 8.

45 adversely affect any safety function.

174 Absent an adverse impact on a safety function, there is no "change" as that term is defined in 10 C.F.R. § 50.59(a)(1

), and the procedure revision does not require a license amendment.

• Impact on LOCA Analysis and Other Safety Analyses

- FOE argues that SCE has not evaluated the potential effects of failure of the RSGs to perform adequately (e.g., due to tube plugging) in the event of a loss of coolant accident

("LOCA"), and that SCE needs to re-evaluate its safety case for operation at reduced power.

175 That argument mischaracterizes SCE's licensing basis. Fo r example, the UFSAR analyses of LOCAs were performed assuming that 8% of the tubes are plugged 176 (which is far higher than the current plugging level of approximately 3%). Furthermore, as discussed in SCE's responses to NRC RAIs 11 and 13, SCE has performed a comprehensive evaluation of the impact of operation at 70% power on the plant's safety analyses (including performance of the emergency core cooling system ("ECCS")), and has shown that the results of the safety analyses continue to meet established acceptance criteria and that the radiological dose consequences remain bounded by the dose consequences reported in the UFSAR.177

• Risks from Tube Wear

- FOE argues that indications of tube wear "represent an increased risk" and "creates a substantial increase in the likelihood of a malfunction in

174 Brabec Affidavit ¶ 34.

175 FOE Brief at 21; Large Affidavit at 52, 54.

176 See SONGS UFSAR Tables 15.10.6.3.3-6 and 15.10.6.3.3-7, which assume 779 tubes are plugged (about 8% of the total number of tubes in each RSG) (SCE Attachment 18).

177 See Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 11) Regarding Confirmatory Action Letter Response, Enclosure 1, at 2 (Jan. 21, 2013), available at ADAMS Accession No. ML13022A411 (SCE Attachment 28); Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 13) Regarding Confirmatory Action Letter Response, Enclosure 1 (Jan. 18, 2013) (SCE Attachment 29).

46 the steam generators."

178 FOE provides no basis or s upport for those statements. Furthermore, such arguments are inconsistent with SCE's analyses. As discussed in Subsections III.E.2 and III.E.3 above, the licensing basis for SONGS explicitly accounts for operation with degraded steam generator tubes, and SCE has evaluated the tube degradation mechanisms at SONGS Unit 2 and has shown that the tube performance criteria continue to be met for the in-ser vice (unplugged) tube s at 70% power.

• Multiple Tube Failures - FOE asserts that there is now a potential for multiple tube failures, given the degradation of the steam generator tubes.

179 However, FOE provides no basis for the argument. As discusse d in Subsection II.A above, SCE has plugged those tubes that experienced tube wear in excess of the limits specified in the Technical Specifications, and has preventa tively plugged tubes that are in approximately the same region that experienced FEI in Unit 3 at 100% power. Furthermore, as discussed in Subsection III.E.3 above, SCE has demonstrated that the in-service tubes for Unit 2 satisfy the structural performa nce criteria. In light of these facts, there is reasonable assurance that a single tube failure will not occur, let alone multiple tube failures. In summary, the FOE Brief makes a number of baseless allegations and mischaracterizes the Restart Report and SONGS' lic ensing basis. Such allegations do not provide an adequate basis for FOE's argument that SCE's restart actions require a license amendment.

6. FOE Raises a Number of Irrelevant Arguments The FOE Brief makes a number of allegations that, even if assumed arguendo to be true, are irrelevant to whether a license amendment is needed. For example:

178 FOE Brief at 15, 21.

179 Id. at 7, 20; see also Large Affidavit at 48, 50-51.

47

• Tube Wear at Other Plants - FOE alleges that the SONG S RSGs have more extensive tube wear than the replacement st eam generators at other plants.

180 In that regard, FOE claims (incorrectly) 181 that "San Onofre has suffered thousands of times more indications of wear than any unit with a replacement steam generator over one operation cycle (other than San Onofre Unit 3)."

182 Those allegations, even if th ey were true, have no bearing on whether a license amendment is needed.

There is nothing in 10 C.F.R. § 50.59 that requires a license amendment for the plant that has more tube degradation than other plants.

• Root Cause Analysis - FOE repeatedly alleges that SCE has not determined the cause of the FEI in Unit 3.

183 NRDC makes similar allegations.

184 That allegation mischaracterizes the Restart Report. SCE has determined that the cause of the FEI is localized high steam velocity, high void fract ion, and insufficient AVB contact with the tubes.185 Furthermore, with respect to the high steam velocity and high void fraction, MHI's FIT-III thermal-hydraulic code used during the design of the RSGs was defective and under-predicted the velocitie s and void fractions and led MHI to believe that there was margin to FEI.

186 In any event, even if FOE's a llegations were true, they would be

180 See, e.g., FOE Brief at 21, 32-33; Hirsch Report.

181 Hirsch Report at 13-14, shows that this claim is wildly inaccurate. For example, the Hirsch Report shows that St. Lucie 2 had more indications of tube wear and more damaged tubes than SONGS Unit 2.

182 FOE Brief at 21.

183 See, e.g., FOE Brief at 3-5, 7, 10, 13-14, 16, 19-20, 21-22, 28.

184 NRDC Brief at 9-10.

185 Return to Service Report at 30 (SCE Attachment 8).

186 As stated in NRC's AIT Report: "The FIT-III code predicted non-conservative low velocity and low void fraction results which were used as inputs to the vibration code FIVATS. These non-conservative thermal-hydraulic results lead Mitsubishi to conclude that margins to instability were significantly larger than they actually were." Inspection Report 05000361/2012007 and 05000362/2012007, NRC Augmented Inspection Team Report for SONGS, at 47 (July 18, 2012) ("AIT Report"), available at ADAMS Accession No. ML12188A748 (SCE Attachment 31).

48 irrelevant to this proceeding. Such an allegation relates to compliance with the CAL (which would be an issue for the NRC Staff to enforce), not whether the CAL (or SCE's restart actions) "constitutes a de facto license amendment."

187

• Comparison to Unit 3 - FOE claims that Unit 2 po ses the same risk as Unit 3.

188 That claim is baseless, given the substantially lower TTW in Unit 2 than Unit 3 and the manufacturing differences between the units.

189 Nevertheless, even if the claim were true, it would be irrelevant to this proceeding. The issue in this proceeding is whether the CAL "constitutes a de facto license amendment," not whether Unit 2 poses the same risk as Unit 3.

• Enforceability of SCE's Commitment to 70% Power

- FOE argues that the NRC does not have a method for enforcing SCE's commitment to operate Unit 2 at 70% until the next steam generator tube inspection.

190 That argument is invalid. SCE will need to inform the NRC Staff of any change in that commitment, and the Staff could issue an order requiring Unit 2 to remain at 70% if there was not reasonable assu rance of safety of operation above 70% power. In any event, the argument is irrelevant. The enforceability (or lack of enforceability) of a licensee's commitment is not a criterion for determining whether a license amendment is needed under 10 C.F.R. § 50.59 or Perry.

187 It appears to be FOE's position that SCE cannot determine that the restart actions will prevent FEI unless it knows which physical features caused the FEI. That argument is without basis. FEI is dependent upon fluid velocity, void fraction, and tube support. As discussed in the Tube-to-Tube Report, Section 5 (SCE Attachment 12), the reduction in power reduces the fluid velocity and void fraction, such that FEI will not occur even if none of the AVBs is effective.

188 See, e.g., FOE Brief at 9, 15, 26-32.

189 Brabec Affidavit ¶ 27.

190 See, e.g., FOE Brief at 11, 25.

49

• Vibration and Loose Parts Monitoring System ("VLPMS")

- FOE argues that SCE has not stated how it will act on alarms from SCE's upgrades to the VLPMS.

191 As discussed in Section 11 of SCE's Return to Service Report, 192 the upgrades to the VLPMS are an "additional action," above and beyond the correc tive actions and defens e-in-depth actions for the degraded steam generators. As such, they do not fall within the scope of the CAL, which is limited to "actions to prevent loss of integrity" of the steam generator tubes. In any event, SCE has described how it intends to use the upgraded VLPMS and respond to alarms in the response to RAI 18.

193 In summary, the FOE Brief makes a number of allegations and arguments that are irrelevant to whether the CAL "constitutes a de facto license amendment." Such allegations do not provide an adequate basis for FOE's argument that SCE's restart actions require a license amendment.

7. FOE and NRDC Arguments Regardin g Technical Specification 5.5.2.11 FOE and NRDC argue that operation of Unit 2 at 70% does not satisfy Technical Specification 5.5.2.11, because it requires that the t ubes retain structural integrity over the full range of normal operating conditions (which, according to FOE, means 100% power).

194 In particular, NRDC argues that its position is supported by RAI 32. That RAI states in part:

Therefore, it appears that SCE has not provided an operational assessment that addresses compliance with TS 5.5.2.11.b. for tube-

to-tube wear, without reliance on compensatory measures (e.g., limiting reactor power to 70% RTP [rated thermal power]).

191 Large Affidavit at 54-55.

192 SCE Attachment 8.

193 Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 18) Regarding Confirmatory Action Letter Response, Enclosure 1 (Jan. 24, 2013) (SCE Attachment 33).

194 FOE Brief at 8, 23-24; Large Affidavit at 35-36; see generally NRDC Brief.

50 Please clarify how the information submitted by SCE demonstrates that the structural integrity performance criterion in TS 5.5.2.11.b.1 is met for operation within current licensed limits up

to the licensed RTP, or provide an operational assessment that includes an evaluation of steam generator TTW for operation up to the RTP.195 By its nature, an RAI requests information. An RAI does not represent a formal position by the NRC Staff. As the Commission has stated: RAIs generally indicate[ ] nothing more than that the Staff requested further information and analysis from the Licensee.

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 147 (1993). The NRC's issuance of RAIs does not alone establish deficiencies in the application, or that the NRC Staff will go on to find any of the

Applicant's clarificatio ns, justifications, or other responses to be unsatisfactory.

196 SCE has not yet decided how it will respond to the RAI. SCE will inform the Board and the parties of its position once it submits a response to RAI 32. In any event, this is a compliance issue.

As discussed in Section III.B.2 above, the determination of whether SCE is complying with its Technical Specifications is an enforcement function of the NRC Staff. The Commission's d ecision in CLI-12-20 did not direct the Board to assess whether SCE is complying with the Technical Specifications. Therefore, matters related to RAI 32 are outside the scope of this proceeding.

8. FOE Inappropriately Argues that SCE Should Be Taking Additional Actions FOE argues that SCE should be taking other actions, such as performing additional assessments, including use of benchmarking studies and mockups.

197 That argument is outside

195 Letter from J. Hall, NRC, to P. Dietrich, SCE, San Onofre Nuclear Generating Station, Unit 2 - Request for Additional Information Regarding Response to Confirmatory Action Letter (TAC No. ME9727), Enclosure, at 8 (Dec. 26, 2012), available at ADAMS Accession No. ML12361A065 (SCE Attachment 34).

196 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 336 (1999)).

197 Large Affidavit at 39; Gundersen Affidavit at 11.

51 the scope of this proceeding. Per the Board's December 7 Order and December 20 Order, this proceeding is not for the purpose of determining the adequacy or appropriateness of SCE's restart plans, but instead whether the CAL constitutes a de facto license amendment.

198 To the extent that FOE is claiming that SCE should be taking other actions, the appropriate vehicle for raising such a claim is a petition under 10 C.F.R. § 2.206.

9. FOE's Allegations Related to Compliance with 10 C.F.R. § 50.59 Based on the inappropriate positions discussed above, FOE argues in a portion of its brief that SCE's restart actions require a license amendment pursu ant to 10 C.F.R. § 50.59. FOE's arguments regarding the need for a license amendment per § 50.59 are difficult to discern, because the arguments discussed in th e summary on pages 7-8 of the FOE Brief are largely different than the arguments discussed on pages 19-23 of the FOE Brief, which in turn are largely different than the arguments discu ssed on pages 48-55 of the Large Affidavit. Rather than attempting to determine FOE's in tent, the table in Appe ndix B to this brief summarizes each of the major arguments in the FOE Brief and the Large Affidavit related to 10 C.F.R. § 50.59, and demonstrates that each is invalid.

10. Summary As indicated above, FOE in general does not seek to litigate whether the CAL constitutes a de facto license amendment or even whether SCE's restart actions require a license amendment. Instead, it is apparent that FOE disagrees with SCE's restart actions and is advocating that SCE take other actions. In particular, it is evident that FOE disagrees with SCE's analyses that demonstrate that the in-service tubes will retain thei r structural integrity during operation at 70% power for 150 days.

198 December 7 Order at 4; December 20 Order at 4.

52 FOE's Brief and supporting affi davits have provided nothing, other than bald assertions, to support FOE's claims. In any event, FOE's arguments regarding the e fficacy of SCE's actions are not within the scope of the issues referred by the Commission for litigation. As the Board has recognized, this proceeding "is narrow,"

199 and issues related to "whether the restart plan is adequate or appropriate" are not within the scope of this proceeding.

200 Thus, FOE's attempts to raise safety issues and compliance issues are not material to the findings that the Board must make in this proc eeding. If FOE desires to raise safety or compliance issues, it may do so by submitting a petition pursuant to 10 C.F.R. § 2.206.

Even NRDC agrees that the Board should not re solve technical disputes that FOE and NRDC have with respect to SCE's operational assessments.

201 In summary, FOE has not demonstrated that the CAL requires a license amendment. Accordingly, its petition should be denied and this proceeding should be dismissed.

F. Conclusions As demonstrated above, the CAL does not constitute a de facto license amendment. FOE's arguments do not demonstrate otherwis

e. Accordingly, FOE's Petition should be dismissed.

IV. FOE'S PETITION DOES NOT SATISFY 10 C.F.R. § 2.309 As discussed above, the CAL does not constitute a de facto license amendment. Therefore, the CAL does not create a proceeding in which to request a hearing, and FOE's

199 December 20 Order at 4.

200 December 7 Order at 4.

201 NRDC Brief at 9 n.8 ("It should be noted that FOE and NRDC do not agree with SCE's technical claims in this regard, but resolution of any technical disputes regarding whether the OAs satisfy the legal requirements to demonstrate safety should be addressed in a public adjudicatory hearing.").

53 Petition should be rejected as unauthorized.

202 However, even if it were assumed that the CAL is a de facto license amendment, FOE's Petition does not satisfy 10 C.F.R. § 2.309 and therefore should be rejected.

The Petition, particularly the portion within the scope of this proceeding, suffers from a multitude of independent, fatal deficiencies. First, the Petition was untimely because it was filed

months after the CAL was issued, and does not satisfy the requirements in 10 C.F.R. § 2.309(c)(1), including good cause, for untimely filings. Second, FOE lacks standing to file the Petition, because it has not demonstrated that th e CAL would adversely affect its interests. Finally, FOE has not submitted a proposed conten tion related to the CA L that satisfies the admissibility requirements set forth in 10 C.F.R.

§ 2.309(f)(1). Accord ingly, the Petition should be dismissed, and this proceeding should be terminated for any or all of these reasons. Moreover, the new arguments raised by FOE in the FOE Brief are contrary to the Board's requirement that FOE not expand the Petition, and therefore should be rej ected. Nonetheless, these new arguments do not cure the defects in the Petition. The following discussion includes an eval uation of whether the Petition should be granted under the standards for a hearing on an enforcement action. A CAL itself is not accompanied by any hearing rights. However, if the Board were to conclude that somehow the

202 See New Jersey (Dep't of Law & Pub. Safety's Requests Dated October 8, 1993), CLI-93-25, 38 NRC 289, 292 (1993); see also Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 677-78 (2008) (rejecting a request to hold a hearing and concluding "the AEA's guarantee of a hearing on material issues is not without limitation" and the "hearing right provided in section 189(a) is not automatic"). NRC regulations further explain that "[a] proceeding commences when a notice of hearing or a notice of proposed action under § 2.105 is issued." 10 C.F.R. § 2.318(a). Citing these regulations, the Commission explained in Millstone that "issuance of a 'notice of hearing' or a 'notice of proposed action' is a prerequisite to the initiation of a 'proceeding.'" See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-12, 59 NRC 237, 240 (2004). There has been no notice of hearing or notice of proposed action related to the CAL. Moreover, the Commission has clearly ruled that "a person cannot intervene in a proceeding before the proceeding actually exists." Id. at 239. The D.C. Circuit has further explained that there is no "automatic right of intervention upon anyone." BPI v. AEC, 502 F.2d 424, 428 (D.C. Cir. 1974).

54 CAL does have hearing rights, such as the he aring rights for an enfo rcement order under 10 C.F.R. § 2.202, then the Petition still should be rejected because it does not satisfy the relevant standard.

A. FOE's New Arguments and Information Are Contrary to the Board's Order and Should Be Rejected In the FOE Brief, FOE reproduces many of the same arguments on standing, timeliness, and admissibility that it had first provided in the Petition.

203 FOE, however, modifies many of these earlier arguments and provides new arguments and support in the FOE Brief. For example, FOE now references the new Section IV of the FOE Brief for support for its proposed contention.

204 These changes and new information are contrary to the Board's December 7 Order, which clearly states: "Arguments adva nced by Friends of the Earth on standing and contention admissibility shall not go beyond the scope of the arguments they presented to the Commission."

205 FOE also has not satisfied the 10 C.

F.R. § 2.309 requirements for this late information. FOE acknowledges the Board's Order as "direct[ing] Petitioner not to go beyond the scope of its previously filed Standing and Contention arguments,"

but nevertheless adds further information "[i]n an abundance of caution."

206 FOE's only explanation is that "[t]he arguments in Section IV fall within the scope of FoE's original Petition because they too address whether SCE has shown that the replacement steam generators can be safely operated within the parameters of the existing license."

207 This does not remedy FOE's failure to follow the Board's

203 See FOE Brief at 44-59.

204 See id. at 54, 58.

205 December 7 Order at 6 n.10.

206 FOE Brief at 50.

207 Id. at 50 n.57.

55 Order. It also does not explain the numerous additional changes made to the Petition arguments. Additionally, the new information and arguments in Section IV of the FOE Brief (including the referenced Large Affidavit and Gundersen Affida vit) focuses on SCE's planned restart actions identified on October 3, 2012. This informati on post-dates the Petition, which was filed many months earlier.

For these reasons, all of the new arguments and information provided in the FOE Brief regarding standing, timeliness, and contention admissibility should be rejected as contrary to the Board's December 7 Order and the timeliness requirements in 10 C.F.R. § 2.309. Nonetheless, even if this information and arguments were co nsidered, they do not cure the defects in the Petition.

B. FOE's Petition Is Untimely and Does Not Satisfy the Untimely Filing Requirements

1. FOE's Petition Was Late The issue referred by the Commission in this proceeding is whether the CAL was a de facto license amendment.

208 The NRC issued the CAL on March 27, 2012.

209 The Petition is dated June 18, 2012.

210 Assuming arguendo that there was a proceeding generated by the CAL, the longest timeliness period specified in the regulations for filing petitions to intervene is 60 days.211 FOE submitted its Petition 83 days after the CAL. Therefore, the Petition was late under any timeliness standard.

208 San Onofre, CLI-12-20, slip op. at 4-5.

209 See CAL at 1 (SCE Attachment 3).

210 See Petition at 1.

211 See 10 C.F.R. § 2.309(b). For example, Section 2.309(b)(4) states that for proceedings with no Federal Register notice, a petition to intervene is due 60 days after publication of "notice on the NRC Web site" or 60 days "after the requestor receives actual notice of a pending application."

56 2. FOE's Petition Does Not Satisfy the Untimely Filing Requirements Because the Petition was filed late, FOE was required to seek an extension of the deadline or justify the untimely filing in accordance with the NRC regulations. FOE did not seek an extension.

Nontimely filings are govern ed by 10 C.F.R. § 2.309(c).

212 At the time FOE filed its Petition, Section 2.309(c) set forth an eight-factor balancing test for nontimely filings.

213 The burden is on a petitioner to demonstrate "that a balancing of these factor s weighs in favor of granting the petition."

214 The eight factors in Section 2.309(c

)(1) are not of equal importance.

The first factor, whether "good cause" exists for the failure to file on time, is entitled to the most weight.215 212 The NRC recently revised 10 C.F.R. Part 2, effective September 4, 2012, including revisions to the requirements for untimely filings. See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,571 (Aug. 3, 2012).Section II of the final rule, however, states that "the new or amended requirements will be effective and govern all obligations and disputes that arise after the effective date of the final rule." Id. at 46,562. Because the Petition was filed before the September 4, 2012 effective date of the final rule, SCE concludes that it involves a dispute arising before the effective date, and evaluation of the Petition's timeliness should be in accordance with the old Part 2 untimely filing provisions. Therefore, this section of the brief refers to the regulations in effect prior to the Part 2 revisions. Nonetheless, because the new Part 2 rules would still require the Board to evaluate whether FOE has demonstrated good cause for filing the Petition late, the evaluation would be similar to that under the old Part 2 untimely filing provisions. See id. at 46,591; 10 C.F.R. § 2.307(a). For the same reasons demonstrated herein, FOE has not shown good cause for the untimely Petition under the Part 2 revisions.

213 These factors are: (i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record. 214 Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-88-12, 28 NRC 605, 609 (1988). 215 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __, slip op. at 25 n.96 (June 7, 2012) ("The standard for new or amended contentions involves a balancing of eight factors set forth in 10 C.F.R. § 2.309. The factor given the most weight is whether there is 'good cause' for the failure to file on time."); see also Dominion Nuclear Conn., Inc. (Millstone Power Station, Unit 3), CLI-09-5, 69 NRC 115, 125-26 (2009).

57 FOE appears to concede that the Petition was late, because the Petition and the FOE Brief attempt to address the factors in Section 2.309(c)(1) regarding untimely filings.

216 FOE has not, however, satisfied its burden of successfully addressing these "stringent" late-filing standards.

217 FOE has not satisfied the most important fact or (factor one) in S ection 2.309(c)(1)(i) to provide good cause for its failure to file on time. The Commission has expl ained that "[i]t would be a rare case where [the Commission] would excuse a non-timely petition absent good cause."218 Importantly, FOE does not provide a single reason why it filed th e Petition 83 days after the CAL, well after any conceivable fi ling deadline. Although FOE addresses the good cause requirement in the Petition, it simply clai ms that it has "good cause to become a party to the current San Onofre license amendment proceeding."

219 FOE repeats this statement in the FOE Brief, and also claims that Mr. Large provides additional expertise.

220 FOE addresses the wrong standard. The good cause standard requires a petitioner to demonstrate why it has good cause for filing late , not why it has good cause to participate in the proceeding. Thus, FOE has not demonstrated good cause for the late Petition. Absent a showing of good cause for the failure to file on time, an untimely hearing request will only be entertained if the petitioner makes "a compelling showing on the remaining factors."221 FOE does not satisfy this standard. For example, the fifth factor relates to the availability of other means for the petitioner to represent its interests. FOE could have submitted

216 Petition at 9-15; FOE Brief at 50-54.

217 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

218 Tenn. Valley Auth. (Watts Bar Nuclear Plant, Unit 2), CLI-10-12, 71 NRC 319, 323 (2010).

219 Petition at 9.

220 FOE Brief at 50.

221 Pilgrim, CLI-12-15, slip op. at 26 n.96; see also Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 244 (1986).

58 a 10 C.F.R. § 2.206 petition related to the CA L, but expressly decided not to do so.

222 Additionally, FOE includes new arguments in the FOE Brief claimi ng that the ongoing 2.206 process convened at the Commi ssion's direction and the recent public meetings related to the CAL do not protect its interest related to the CAL.

223 These arguments should be rejected as impermissible new arguments raised for the first time in the FOE Brief, as discussed above. Additionally, they do not explain why FOE could not have submitted a 2.206 petition regarding the CAL.

Additionally, the late Pet ition would broaden the scope of and delay the current proceeding (factor seven), because FOE is the only petitioner in this proceeding and this proceeding only exists in response to FOE's Petition; therefore, any litigation related to the Petition directly delays the proceeding. FOE also raises a new argument in the FOE Brief that it will neither unduly broaden the issues nor delay the proceeding because the "issues have now been defined by the Commission's re ferral and the Board's order."

224 This argument should be rejected as an impermissible new argument raised for the first time in the FOE Brief. Moreover, FOE provides no indication in its Petition that its participation on these technical issues would contribute to the development of a so und record (factor eight). FOE raises new arguments in the FOE Brief regardi ng the contribution of Mr. Large to developing a sound record.

225 These arguments should be rejected as impermissible new arguments raised for the first time in the FOE Brief, as discussed above. Additionally, as discussed in Subsection III.E above, the Large Affidavit does not evaluate the correct standard for license amendments

222 See Petition at 13 n.11.

223 FOE Brief at 52.

224 Id. at 53. 225 Id. at 53-54.

59 and raises issues outside the scope of this proceeding. Therefore, the Large Affidavit should not be considered as a contribution to the development of a sound record for this proceeding.

Accordingly, a balancing of the factors under 10 C.F.R. § 2.309(c)(1) demands rejection of the late Petition.

226 For these reasons, FOE has not justified the late Petition, and the Petition should be rejected for this reason alone.

C. FOE Has Not Demonstrated that It Has Standing on the CAL FOE's Petition does not demonstrate (or even discuss) whether the interests of FOE or its members are adversely affected by the CAL.

The Petition should be rejected for this independent reason.

FOE argues for the first time in the FOE Brief that "[a]ssuming the Board decides the initial question [that the CAL is a de facto license amendment] in Petitioner's favor, FoE has standing to participate in such a license amendment proceeding."

227 This should be rejected as an impermissible new argument raised for the first time in the FOE Brief. Additionally, FOE appears to be arguing that it ha s standing by virtue of the referral of the Commission. To the contrary, the Commission specifically asked the Board to determine "whether the petition meets the standing . . . requirements of 10 C.F.R. § 2.309."

228 Therefore, the Commission did not

226 The other factors in 10 C.F.R. § 2.309(c)(1) are less important and do not outweigh FOE's failure to demonstrate good cause or meet factors seven and eight. See, e.g., Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-1, 67 NRC 1, 8 (2008); Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Unit 2), CLI-93-4, 37 NRC 156, 165 (1993). Factors two through four speak towards standing. As discussed below, FOE has not demonstrated standing to intervene; therefore, these factors weigh against FOE. Factors five (availability of other means) and six (interests represented by other parties) are entitled to the least weight. See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-00-8, 51 NRC 146, 154 (2000) (citing Braidwood, CLI-86-8, 23 NRC at 244-45).

227 FOE Brief at 44.

228 San Onofre, CLI-12-20, slip op. at 5.

60 bestow standing on FOE, and FOE is required to show standing.

As demonstrated below, it has not done so.

1. FOE's Petition Does Not Meet the Requirements for Standing in an Enforcement Action Proceeding Under long-standing NRC case law, a member of the public has standing to intervene on an enforcement action only in very limited circumstances. FOE has not demonstrated its standing under such circumstances.

In its 1983 decision in Bellotti v. NRC , the D.C. Circuit discussed the rights of members of the public to participate in NRC enforcement proceedings. The court in Bellotti ruled that a member of the public is not affected by an enforcement proceeding, when the enforcement action serves "to require additional or better safety measures," and that a petitioner who "wishes to litigate the need for still more safety measures, perhaps including th e closing of the facility, will be remitted to section 2.206's petition procedures."

229 In St. Lucie, a licensing board summarized the st atus of the Commission case law on standing in enforcement proceedings as follows: In the context of an enforcement proceeding, Commission precedent teaches that the scope of the proceeding is directly

related to the issue of standi ng, in that an individual or organization requesting a hearing must show that the petitioner would be adversely affected by the enforcement order as it exists, rather than being adversely affected by the existing order as it might be compared to a hypotheti cal order that the petitioner asserts would be an improvement.

230 In this regard, FOE's Petition does not demonstrate that the CAL adversely affects FOE's interests. As discussed in Subsection III.C above, the CAL identifies additional commitments

229 Bellotti v. NRC, 725 F.2d 1380, 1381-83 (D.C. Cir. 1983).

230 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 & 2), LBP-08-14, 68 NRC 279, 287 (2008) (citing ADOT, CLI-04-26, 60 NRC at 406).

61 and restrictions for SONGS; it does not give SONGS any additional license authority. By definition, the additional commitments and restricti ons do not adversely affect the public, and the public cannot use a proceeding on a CAL as a forum for requesting different or more stringent restrictions. If FOE wants more stringent restrictions than imposed by the CAL, the appropriate mechanism is to submit a 2.206 petition.

In Maine Yankee, the Commission evaluated, under the Bellotti doctrine, the standing of a petitioner challenging an enforcement order by asking three questions: (1) Would the petitioner be better off if the enforcement action were vacated? (2) Would the petitioner's concerns be alleviated if the enforcement action were vacated? and (3) Does the petitioner in reality seek additional measures beyond those set out in the enforcement action?

231 Consistent with Bellotti, if the answers to the first two questions are "no" and the answer to the last question is "yes," then there is no standing.

232 Based on these questions, FOE does not have standing to challenge the CAL. Regarding the first and second questions, FOE has not alleged its members would be better off or that its concerns would be alleviated if the CAL were vacated. In fact, FOE does not request elimination of any of the provisi ons in the CAL, but rather seeks additional requirements to be imposed on the restart of the SONGS units. The Commission has stated that a "petitioner . . . simply is not adversely affected by [an enforcement action] that improves the

safety situation over what it was in the absence of the order."

233 Regarding the third question, FOE clearly seeks additional measures beyond those set out in the CAL. For these reasons, FOE fails to demonstrate standing under the Commission's te st employed in Maine Yankee.

231 See Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), CLI-04-5, 59 NRC 52, 60 (2004). 232 Id. at 60-61.

233 ADOT, CLI-04-26, 60 NRC at 406.

62 For all of these reasons, under the Bellotti doctrine and subsequent Commission precedent, FOE has not demonstrated standing to intervene with respect to the CAL if the CAL is considered an enforcement action with hearing rights. This result is consistent with the Commission's conclusion that "it is unlikely that petitioners will often obtain hearings on . . . enforcement orders."

234 2. FOE's Petition Does Not Meet the Requirements for Standing in a License Amendment Proceeding FOE also has not demonstrated standing assuming the CAL is a de facto license amendment.

AEA Section 189a states that "the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding."

235 The Commission's regulations implementing this requirement are in 10 C.F.R. § 2.309(d)(1). In order to demonstrate standing, Section 2.309(d)(1) requires, among other things, a petitioner provi de: (1) the nature of the petitioner's right under the AEA to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any decision or order that may be issued in the proceedi ng on the petitioner's interest. In assessing these factors, the NRC applies "contemporaneous judicial concepts of standing."

236 Thus, to demonstrate standing, a petitioner must show: (1) an actual or threatened, concrete and particularized injury that is (2) fairly traceable to the challenged action and (3)

234 Id. at 406 n.28.

235 42 U.S.C. § 2239(a)(1)(A).

236 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 914-16 (2009) (internal citation omitted); see also Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), CLI-06-6, 63 NRC 161, 163 (2006).

63 likely to be redressed by a favorable decision.

237 These three criteria are referred to as injury-in-fact, causation, and redressabi lity, respectively. An organization that wishes to intervene in a proceeding may do so either in its own right (by demonstrating injury to its organizational in terests), or in a repres entative capacity (by demonstrating harm to the interests of its members).

238 To establish representational standing, as FOE seeks to do in the Petition, an organization mus t: (1) show that at least one of its members has standing in his or her own right; (2) identify that member; and (3) show, "preferably by affidavit," that the organization is authorized by that member to request a hearing on behalf of the member.

239 Under some circumstances, standing is presumed based on the petitioner's geographical proximity to the nuclear power plant.

240 In proceedings involving power reactors, "proximity" standing has been found for petitioners who reside within 40 to 50 miles of the facility in question.241 The Commission has explained, however, that this proximity presumption only applies to certain types of proceedings, including those for a "construction permit, operating licenses, or significant amendments thereto such as the expansion of the capacity of a spent fuel pool."242 The presumption applies because "those cas es involved the cons truction or operation of the reactor itself, with clear implications for the offsite environment, or major alterations to

237 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996).

238 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (citing Ga. Inst. of Tech. (Ga. Tech Research Reactor), CLI-95-12, 42 NRC 111, 115 (1995)).

239 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 408-10 (2007); see also N. States Power Co. (Monticello Nuclear Generating Plant; Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie Island Indep. Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, 47 (2000); GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202 (2000).

240 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 146 (2001), aff'd on other grounds, CLI-01-17, 54 NRC 3 (2001).

241 See, e.g., Calvert Cliffs, CLI-09-20, 70 NRC at 916.

242 Fla. Power & Light Co. (St. Lucie, Units 1 & 2), CLI-89-21, 30 NRC 325, 329 (1989) (citing Va. Elec. Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-522, 9 NRC 54 (1979)).

64 the facility with a clear potential for offsite consequences."

243 Thus, in license amendment proceedings, absent an "obvious potential for offsite consequences," a petitioner must satisfy the traditional standing requirements.

244 FOE does not have standing based on geographic proximity, because the proximity presumption is not applicable with respect to the CAL. Assuming that the CAL is a de facto license amendment, there is nothing in the CAL th at would have an obviou s potential for offsite consequences. The CAL commits SCE to take certain actions, such as determining the cause of TTW, submitting results of assessments to the NRC, pressure testing certain tubes, plugging tubes, and identifying protocols of inspections and/or operational limits.

245 These actions do not present an obvious potential for offsite consequences, and FOE has not argued nor demonstrated otherwise. Furthermore, the CAL does not approve any new physical alterations to the facility; as discussed in Subsection III.C above, the actions in the CAL already were authorized by the

operating licenses, Technical Specifications, or the NRC regulations. Finally, the provision for obtaining NRC Staff approval of restart does not present any potential for offsite impacts, because such a provision represents an additiona l restriction. Thus, the CAL does not identify a clear potential for offsite consequences, which is necessary for application of the proximity presumption.

246 Because there is no proximity presumption, FOE must demonstrate standing using traditional standing rules. FOE relies on Ms. Lyn Harris Hicks to demonstrate representational

243 Id. 244 Id. at 329-30; see also Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-04, 49 NRC 185, 191 (1999); Fla. Power & Light Co. (Turkey Point Nuclear Plant, Units 3 & 4), LBP-08-18, 68 NRC 533, 539 (2008).

245 See CAL at 2-3 (SCE Attachment 3).

246 See St. Lucie, CLI-89-21, 30 NRC at 329-30; Zion, CLI-99-04, 49 NRC at 191.

65 standing, 247 and therefore it must show that Ms. Hicks has standing under the traditional standing rules.248 Under traditional rules of standing, FOE must demonstrat e injury-in-fact, causation, and redressability. It has not done so.

FOE has not demonstrated injury-in-fact fo r Ms. Hicks. As discussed above, FOE has identified no injury stemming from the CAL. A petitioner's injury-in-fact showing "requires more than an injury to a cognizable interest."

249 The Commission has explained that "a petitioner seeking to intervene in a license amendment proceeding must assert an injury-in-fact associated with the challenged license amendment, not simply a general objection to the facility."

250 FOE has not satisfied these standards with respect to Ms. Hicks, but instead makes generalized claims that "she will suffer a concrete and particularized risk of injuries from the operation of San Onofre Units 2 and 3 with defective steam generators."

251 FOE, however, identifies no harm stemming from the CAL itself. A petition that does not identify an injury connected to the license amendm ent does not demonstrate standing.

252 Additionally, allegations of safety concerns regarding the facility in general cannot support standing in a license amendment proceeding.

253 247 See Petition at 6; see also FOE Brief at 46.

248 Aside from its claim of representational standing, FOE also makes some generalized statements about its purposes and interests.

See Petition at 5; FOE Brief at 45. These general environmental or public policy interests are insufficient to confer organizational standing. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 739-41 (1972).

249 Sierra Club, 405 U.S. at 734-35.

250 Zion, CLI-99-04, 49 NRC at 188.

251 Petition at 7; see also FOE Brief at 47.

252 Zion, CLI-99-04, 49 NRC at 188.

253 See Int'l Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 251 (2001) (requiring a petitioner to "show that the amendment will cause a 'distinct new harm or threat' apart from the activities already licensed. . . . Conclusory allegations about potential radiological harm from the facility in general, which are not tied to the specific amendment at issue, are insufficient to establish standing.").

66 FOE raises a couple of new standing arguments in its brief, claiming that Ms. Hicks will be injured if SONGS Unit 2 "is allowed to restart on an experimental basis at reduced power for five months" because SCE has not demonstrated that this is safe and a hearing would allow FOE's experts to testify about "the potential safety implications should . . . the restart plan be approved."

254 These new arguments should be rejected as being raised for the first time in the FOE Brief, as discussed above. Additionally, these arguments relate to the safety of restart, which is not part of this proceeding. As the Board has stated, this proceeding "need not determine whether the restart pl an is adequate or appropriate , only whether the CAL granted SCE any greater operating authority and whether activities au thorized in the CAL extended beyond those granted under the current operating licenses."

255 FOE's new arguments are outside this scope of the proceedi ng, and therefore do not support standing. The Commission has explained that "a petitioner seeking to intervene in a license amendment proceeding must assert an injury-in-fact associated with the challenged license amendment, not simply a general objection to the facility."

256 Moreover, Ms. Hicks' general concerns about the safety of SONGS due to the steam generators do not support the causation prong of standing, because th ese concerns are not "traceable to the proposed action,"

257 which is the CAL. The CAL commits SCE to take certain actions, such as determining the cause of TTW, submitting results of assessments to the NRC, pressure testing certain tubes, plugging tubes, identifying protocols of inspections and/or

254 FOE Brief at 48.

255 December 20 Order at 4.

256 Zion, CLI-99-04, 49 NRC at 188.

257 Sequoyah Fuels, CLI-94-12, 40 NRC at 75.

67 operational limits, and obtaining NRC Staff approval for restart.

258 FOE has not shown nor alleged any harm to Ms. Hicks from those activities.

Finally, Ms. Hicks' concerns about the safety of SONGS due to the steam generators cannot be redressed in a license amendment proceeding on the CAL, because such a proceeding would not address those concerns. The CAL iden tifies various restrictions on SCE. Retraction of the CAL or removal of one or more of the CAL restrictions would not resolve any concerns identified by FOE.

In summary, Ms. Hicks does not have standing based on geographical proximity to SONGS or traditional standing in her own right. Furthermore, those portions of FOE's Petition that pertain to standing do not even discuss the CAL.

259 As a result, FOE has not demonstrated representational standing to participate in a CAL proceeding. Therefore, the Petition should be rejected for lack of standing.

D. FOE Has Not Submitted an Admi ssible Contention on the CAL FOE's Petition does not satisfy the standa rds in 10 C.F.R. § 2.309(f)(1) governing contentions. The Petition should be re jected for this independent reason.

1. Legal Standards In addition to demonstrating standing, a hear ing request also must include an admissible contention. The contention admissibility requirement s are set forth in 10 C.F.R. § 2.309(f)(1).

Specifically, under Section 2.309(f)(1), a petitioner "must set forth with particularity the contentions sought to be raised." The regulation specifies that each contention must:

(1) provide a specific statement of the legal or factual issue sought to be raised;

(2) provide a brief explanation of the basis for the contention;

258 See CAL at 2-3 (SCE Attachment 3).

259 See Petition at 5-9; see also FOE Brief at 45-49.

68 (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the ac tion that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioner's position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.

260 As the Commission has explained, failure to comply with any one of the six admissibility criteria is grounds for rejection.

261 The Commission further explai ned that its "strict contention rule is designed to avoid res ource-intensive hearings where petitioners have not provided sufficient support for their technical claims, and do not demonstrate a potential to meaningfully participate and inform a hearing."

262 As the Commission has stated: Nor does our practice permit "notice pleading," with details to be filled in later. Instead, we require parties to come forward at the outset with sufficiently detailed grievances to allow the adjudicator

to conclude that genuine disputes exist justifying a commitment of adjudicatory resources to resolve them.

263 The NRC specifically revised the admissibility rules in 1989 "to prevent the admission of 'poorly defined or supported contentions,' or those 'based on little more than speculation.'"

264 260 10 C.F.R. § 2.309(f)(1)(i)-(vi).

261 See, e.g.

, FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC __, slip op. at 3 (Mar. 27, 2012) (stating that proposed contentions "must satisfy all six of the [admissibility] requirements"); see also Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004).

262 Davis-Besse, CLI-12-08, slip op. at 31; Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001) (explaining that the Commission's rules on contention admissibility are "strict by design").

263 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 219 (1999).

264 Davis-Besse, CLI-12-08, slip op. at 3-4 (citations omitted) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

69 The requirement in 10 C.F.R. § 2.309(f)(1)(iii) that contentions raise issues within the scope of the proceeding is particularly important. Contentions are necessarily limited to issues that are germane to the specific application pending before the licensing board.

265 The Commission has explained that "the scope of any hearing sh ould include the proposed license amendments, and any health, safety or environmental issues fairly raised by them."

266 Any contention that falls outside the specified scope of the proceeding must be rejected.

267 2. FOE's Arguments Are Outside the Scope of This Proceeding As discussed below, whether the contention identified in the Petition is evaluated under the standards for an enforcement action or a license amendment, the proposed contention is outside the scope of this proceeding (i.e., the issues referred by the Commission).

a. Scope of an Enforcement Action Proceeding The scope of an enforcement action proceeding is limited. The analysis of the scope of an enforcement action proceeding for the purpose of contention admissibility is similar to that used to determine standing in an enforcement action proceeding. The Commission has stated that the threshold question for both standing and admissibility of contentions is whether the hearing request is within the scope of the enforcement action.

268 FOE fails to raise issues within the scope of any enforcement action proceeding because the Petition seeks to impose requirements more stringent than those specified in the CAL. As discussed above, the CAL

265 See Yankee

, CLI-98-21, 48 NRC at 204.

266 Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 624 (1981); see also Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-88, 16 NRC 1335, 1342 (1982) (holding that it is not "appropriate to permit an intervenor to question the original design of the reactor or the systems not directly involved in [the license amendment] application").

267 See Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979) (affirming the board's rejection of issues raised by intervenors that fell outside the scope of issue identified in the notice of hearing).

268 ADOT, CLI-04-26, 60 NRC at 405.

70 prevents SCE from restarting SONGS Units 2 and 3 until it takes cert ain actions, such as identifying the causes of TTW in the steam generators, conducting additional tests and inspections, plugging of tubes, and obtaining NRC Staff approval for restart.

269 FOE would prohibit restart until additional actions are taken.

270 Therefore, for the same reasons discussed in Subsection IV.C.1 above regarding standing, the proposed contention al so is outside the scope of this proceeding, and should be rejected for this reason.

271 b. Scope of a License Amendment Proceeding Even if the CAL is assumed arguendo to be a license amendment, the arguments raised by FOE are outside the scope of this proceeding. The Commission referred the question of whether the March 27 CAL issued by the NRC to SCE "constitutes a de facto license amendment that would be subject to a hear ing opportunity un der Section 189a."

272 Therefore, the scope of this proceeding relates to whether the CAL is a de facto license amendment. FOE's Petition raises issues unrelated to the CAL whatsoever. For example, most of the arguments made by FOE relate to whether the RSGs were properly designed or whether SCE should have obtained an additional license amendment for the RSGs in the 2009-2010

269 See CAL at 2 (SCE Attachment 3).

270 See, e.g., Petition at 2.

271 See also Pub. Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 441 (1980) ("The scope of a hearing . . . would not include consideration of enforcement remedies beyond those already granted by the order.");

ADOT, CLI-04-26, 60 NRC at 404 ("The only issue in an NRC enforcement proceeding is whether the order should be sustained. Boards are not to consider whether such orders need strengthening."). The policy justification for preventing a petitioner from seeking stricter enforcement than that sought by the NRC is that if a petitioner, rather than the Commission, were permitted to define the scope of the enforcement proceeding, it would render the proceeding "virtually interminable."

Bellotti, 725 F.2d at 1381. Furthermore, the Commission wishes to "encourage[] licensees to consent to, rather than contest, enforcement actions." Marble Hill, CLI-80-10, 11 NRC at 441. The goal of such a policy is to avoid "a major diversion of agency resources from project inspections and engineering investigations to the conduct of hearings." Id. at 441-42.

272 San Onofre, CLI-12-20, slip op. at 5.

71 timeframe. Furthermore, the entire "Bases for Contention" 273 addresses whether the 2009 design changes in the RSGs required a license amendment. Similarly, mo st of the Gundersen Declaration addresses the 2009 design changes in the RSGs. Issues related to th e design of the RSGs and the need for a historical license amendment are outside the scope of this proceeding, and are being addressed under 10 C.F.R. § 2.206 per the Commission's di rections in CLI 20.274 In fact, that portion of FO E's Petition that discusses FO E's proposed contention does not mention the CAL even once.

275 Similarly, the supporting G undersen Declaration does not mention the CAL at all. Thus, it is apparent that the Petition does not raise an admissible contention related to the CAL.

For these reasons, the Petition raises issues th at are outside the scope of this proceeding regarding the CAL, contrary to 10 C.F.R.

§ 2.309(f)(1)(iii). Acco rdingly, the proposed contention should be rejected. FOE addresses whether the proposed contention is within the scope of the proceeding for the first time in its brief, claiming that the propos ed contention "goes to th e heart" of the question of whether or not a license amendment is required to restart.

276 This argument should be rejected because it was raised for the first time in the FOE Brief contrary to the Board's Order, as discussed above. Additionally, FO E is factually wrong in stati ng that the proposed contention goes to the heart of the question of whether a license amendment is needed for restart. The proposed contention in the Petition di d not address whether the CAL is a de facto license 273 Petition at 16-18.

274 See San Onofre, CLI-12-20, at 3-4.

275 See Petition at 16-23.

276 FOE Brief at 58.

72 amendment, or even whether the restart activities require a license amendment, but instead focused on whether a license amendment was needed to install the RSGs years ago.

277 Thus, the proposed contention focuses on issues out side the scope of this proceeding.

3. The Proposed Contention Does Not Satisfy Other Contention Admissibility Requirements The proposed contention does not satisfy other contention admissibility requirements. In particular, the Petition fails to provide the base s for the proposed contention on the CAL, raise a material issue on the CAL, provide sufficient sup port for overturning the CAL, or raise a genuine dispute on a material issue of fact or law regarding the CAL, contrary to 10 C.F.R. § 2.309(f)(1)(ii), (iv), (v), and (vi).

As discussed above, the proposed contention itself and the Gunders en Declaration do not address the CAL in any manner. Similarly, most of the "Supporting Evidence" identified by FOE addresses the 2009 design changes in th e RSGs, not the activities under the CAL.

278 The only exceptions are FOE's passing reference to a root cause anal ysis and reference to tube plugging, 279 without identifying any defici encies in either the root cause analysis or tube plugging.280 The Petition's failure to directly address the issues in this proceeding warrants dismissal of its contention. The Petition does not satisfy 10 C.F.R. § 2.309(f)(1)(ii) because it has not identified any bases related to the CAL. The Petition does not satisfy 10 C.F.R. § 2.309(f)(1)(iv)

277 See Petition at 16-23.

278 Id. 279 Id. at 21-22.

280 For example, the Petition at 21 states that a "root cause analysis is necessary to determine the cause of the tubal degradation and failure." In fact, SCE has performed such an analysis and has determined the root causes of the tube degradation and failure. Brabec Affidavit ¶ 22. The Petition does not identify any defect with that root cause analysis. Additionally, the Petition at 22 argues that tube plugging will not address the root cause of the tube vibration. However, SCE has never claimed that tube plugging will address the root cause of the vibration. Instead, SCE is proposing to operate at 70% power as the means of preventing FEI and the associated tube vibration. Brabec Affidavit ¶ 32.

73 because it has not raised issues material to the findings the NRC must make regarding the CAL.281 The Petition does not satisfy 10 C.F.R. § 2.309(f)(1)(v) because its alleged support, including the "Supporting Evidence" and the Gunde rsen Declaration, does not directly address the CAL. Finally, the Petition does not satisfy 10 C.F.R. § 2.309(f)(1)(vi) because it has not directly challenged the CAL.

282 Accordingly, FOE's proposed contention does not satisfy the contention admissibility requirements and should be rejected.

In its brief, FOE attempts to bootstrap new arguments regarding the CAL and restart activities onto its proposed contention. Specifically, FOE attempts to include new bases from Section IV of the FOE Brief, makes new arguments about why the proposed contention is material, identifies new information from the FOE Brief as support for the proposed contention, and makes new arguments about why ther e is a genuine disp ute about the CAL.

283 These new arguments are contrary to the Co mmission's direction that the Board consider whether the June 18 Petition met the requirements of 10 C.F.R. § 2.309, not a new or revised contention submitted in the FOE Brief.

284 Similarly, these new arguments are c ontrary to the Board's direction that FOE not expand the scope of its arguments on contention admissibility in the Petition.

285 281 As the Commission has observed, "[t]he dispute at issue is 'material' if its resolution would 'make a difference in the outcome of the licensing proceeding.'" Oconee, CLI-99-11, 49 NRC at 333-34 (citing Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989)).

282 To raise a genuine dispute admissible under Section 2.309(f)(1)(vi), a petitioner must "read the pertinent portions of the license application, . . . state the applicant's position and the petitioner's opposing view," and explain why it disagrees with the applicant. Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170; see also Millstone, CLI-01-24, 54 NRC at 358. 283 See FOE Brief at 54-59.

284 See San Onofre, CLI-12-20, slip op. at 5.

285 See December 7 Order at 6 n.10.

74 Therefore, these new arguments provided in the FOE Brief for the first time are impermissible and should be rejected.

286 V. ADDITIONAL BRIEFING ISSUES RAISED BY THE BOARD In the December 7 Order, the Board raised one question re garding inspections, assessments, and operational limits for the SONGS units, and posed eight a dditional questions to be addressed as part of the briefing. Additionally, the December 21 Order identified an additional question for briefing. This section res ponds to all of these questions. These responses support SCE's conclusion that the CAL is not a de facto license amendment, and FOE's Petition should be rejected.

A. Inspections, Assessments, and Operational Limits In the December 7 Order, the Board requested information on the "protocol[s] of inspections and/or operational limits for Unit 2 [and Unit 3]" that SCE will establish, as well as SCE's "assessment of Unit 2 [and Unit 3] steam generators . . . and the

basis for SCE's conclusion that there is reasonable assurance, as required by NRC regulations, that the unit[s] will operate safely."287 The following information provide s a response to that request. The operational assessments and the basis for SCE's reasonable assu rance conclusion are summarized in Subsection V.G below.

286 FOE refers to the Practice and Procedure Digest to support its position that "if an intervenor becomes aware of information after filing a contention, such information would be relevant if it falls within the 'envelope,' 'reach,' or 'focus' of the contention when 'read with the original bases offered for it." See FOE Brief at 57 & n.64. FOE's position represents a fundamental misunderstanding of NRC case law. This principle articulated in the Digest applies when a contention is already admitted, and an intervenor is determining whether evidence for a hearing falls within the ambit of the admitted contention. It does not apply to a proposed contention that has not yet been admitted, such as in the situation here. If FOE seeks to expand the arguments for its proposed contention, then it must satisfy the requirements to amend a proposed contention set forth in 10 C.F.R. § 2.309.

287 December 7 Order at 3 n.4.

75 The operational limits that SCE will be imposing for Unit 2 are described on page 37 of the Return to Service Report.

288 In summary, following startup, Unit 2 will be administratively limited to operation at 70% of the licensed maximum power level. At or before Unit 2 has operated for 150 cumulative days at or above 15% power, Unit 2 will be shut down for a mid-

cycle outage and inspection of its steam generator tubes.

289 Section 8.3 of the Return to Service Report de scribes the steam genera tor inspections that SCE will be conducting for Unit 2 during the mid-cycle outage.

290 The purpose of the inspections is to confirm the effectiveness of the remedial actions taken to address TTW in the Unit 2 steam generators. In summary, SCE will be performing the following inspections of the steam generator tubes:

291

• Eddy Current Bobbin Coil Examinations ("ECT") of the full length of all in-service tubes.

• Rotating Coil Examinations of th e following areas of the tubes:

o Tubes in the U-bend region (the inspection scope will repeat the pattern used during the current outage (approximately 1300 tubes per steam generator will be inspected)); and o Tube areas with current w ear indications of greater than 20% due to contact with the TSPs or AVBs.

• Visual inspection of small diameter retainer bars and welds.

292 288 SCE Attachment 8.

289 Brabec Affidavit ¶ 33.

290 SCE Attachment 8.

291 Brabec Affidavit ¶ 33.

292 Return to Service Report at 48 (SCE Attachment 8).

76 As discussed in Sections 6.1 and 7.1 of the Return to Service Report, these are the same types of inspections that have been conducted during the current outa ges of SONGS Units 2 and 3.

293 These types of inspections are also commonly used in the industry.

294 Furthermore, while SONGS Technical Specification 5.5.2.11.d requires steam generator tube inspections, 295 it does not specify the type of inspecti on. Therefore, use of the inspec tion techniques discussed above is not inconsistent with the license for SONGS and does not require a license amendment. As is also discussed in Section 8.3 of the Re turn to Service Report, plugged tubes will be inspected to determine if the remedial actions (plugging and operating at reduced power) have been effective.

296 The following inspections and evaluations are planned:

• Visual inspections will be performed on all installed tube plugs.

• 12 tubes in each steam generator will be unplugged and the stabil izer(s) removed, and ECT will be performed to assess the effectiveness of the TTW remedial actions.

Following these ECT inspections, all t ubes will be re-pl ugged and stabilizers installed. The tubes will be selected as follows:

o The 2 tubes with previous TTW indications; o 5 tubes adjacent to tubes with TTW wear; and o 5 tubes selected from representative lo cations that were preventively plugged as part of the remedial actions for TTW.

293 See id. at 21, 32-33.

294 See, e.g., EPRI 1019038, Steam Generator Management Program: Steam Generator Integrity Assessment Guidelines, at 9-3 and 10-5 (Rev. 3, Oct. 2008) (SCE Attachment 35); Brabec Affidavit ¶ 33.

295 SCE Attachment 9.

296 See Return to Service Report at 48-49 (SCE Attachment 8).

77

• Any new TTW and indications of wear at TSPs will be assessed to determine if they are the result of FEI duri ng the prior operating period or are cases of previously undetected wear.

• Any new TTW or increases in TTW indication size beyond ECT uncertainty will be reviewed to assess the effectiveness of the corrective actions implemented during the current inspection.

297 As discussed above, the ECT and visual insp ections do not require a license amendment. Additionally, the administrative limits that restrict operation to 70% power and the commitments to perform a mid-cycle inspection within 150 cumu lative days of operation are interim actions. SCE will reevaluate these actions during the mid-cycle inspection using data obtained during the inspections. This administrative limit and the inspection frequency may be changed in the future based upon the results of the inspections in the mi d-cycle outage and subsequent inspections. In addition, SCE has established a project team to develop and implement a long-term plan for repairing the steam generators. As indicated in the Return to Service Report, SCE will keep the NRC Staff informed of any findings or developments in the future.

298 In accordance with Section 4.4 of NEI 96-07, 299 any long-term corrective actions for Unit 2 will be subject to a separate 50.59 evaluation to determine whether such actions require a license amendment.

300 Additionally, SCE has not yet developed a return to service plan or CAL response for Unit 3. As discussed in Subsection I II.B above, the Board does not need to consider either the long-term corrective actions for Unit 2 or the return to service plan for Unit 3 in order

297 Id. 298 Id. at 37. 299 SCE Attachment 20.

300 Brabec Affidavit ¶ 37.

78 to determine that the CAL does not constitute a de facto license amendment. The NRC Staff will perform its traditional inspection and enforcement activities with respect to the longer term actions and the restart of Unit 3.

B. Question (i) - Burden of Persuasion Question (i) raised by the Board in the December 7 Order states: In resolving the first issue referred to this Board by the Commission, which party has th e burden of persuasion?

301 The following information provide s a response to that question. FOE has the burden of persuasion on all of the issues referred to this Board by the Commission. All of these issues , including whether the CAL is a de facto license amendment, relate to FOE's Petition. Indeed, the question as to whether the CAL is a license amendment was raised by FOE in its Petition.

302 At the petition stage, the pe titioner always has the burden of demonstrating that its petition satisfies 10 C.F.R. § 2.309. Long-standing Commission precedent establishes that "the initial burden of showing whether the contention meets our admissibility standards" lies with the petitioner.

303 FOE acknowledges this bu rden by quoting that the "proponent of the contenti on has the initial burden."

304 This burden remains with FOE at this time because the Board has not yet ruled on FOE's Petition and the proposed contention.

305 301 December 7 Order at 6.

302 Petition at 2.

303 Progress Energy Carolinas, Inc. (Shearon Harris, Units 2 & 3), CLI-09-08, 69 NRC 317, 325 (2009) (citing Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 155 (1991)); see also Policy on Conduct of Adjudicatory Proceedings, 63 Fed. Reg. 41,872, 41,874 (Aug. 5, 1998) ("the burden of coming forward with admissible contentions is on their proponent").

304 FOE Brief at 38 (quoting Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit No. 3), CLI-01-03, 53 NRC 22, 27 (2001)).

305 This conclusion is consistent with the briefing schedule set forth in the December 7 Order, in which FOE has the right to reply to SCE's and the Staff's briefs. December 7 Order at 5. Such a right to reply generally only exists for the participant who has the burden.

79 FOE claims that it has met the "burden of going forward with evidence . . ., shifting the burden of proof to SCE" and argues that "[t]he burden is now on SCE to prove that its restart proposal is within the scope of its current operating license."

306 FOE jumps ahead of the Board's question. The Board's question is about the burden at the current, pre-admitted contention stage of this proceeding, not whether FOE has satisfied the burden. Issues related to FOE's burden of going forward and SCE's burden of proof would only arise in this proceeding if the Board admits FOE's proposed contention.

307 If the Board were to conclude that the CAL constitutes a de facto license amendment, the NRC Staff would have the ultimate burden as the proponent of the CAL (which is an enforcement action). It has long been held that the NRC Staff has the ultimate burden of proof in an enforcement proceeding.

308 If a license amendment were needed for SCE's restart actions, SCE as the applicant would have the ultimate burden of demonstrating the license amendment is safe and complies with the regulations.

309 The NRC regulations, 10 C.F.R. § 2.325, state that "[u]nless the presiding officer otherwise orders , the applicant or the proponent of an order has the burden of

306 FOE Brief at 40.

307 FOE also raises arguments about the burden of going forward.

See FOE Brief at 39 (citing York Comm. for a Safe Env't v. NRC, 527 F.2d 812, 815 n.12 (D.C. Cir. 1975); Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978)). These arguments are inapposite here, because they do not address who has the burden, but argue about the magnitude of the burden and how to satisfy the burden. FOE's reference to York Comm. does not support its position because the burden discussed therein did not relate to the admissibility of a contention. See York Comm., 527 F.2d at 815 n.12. Similarly, FOE's reference to Vt. Yankee Nuclear Power Corp. does not support its position about the burden of going forward because the case does not discuss the "burden of going forward." See Vt. Yankee Nuclear Power Corp., 435 U.S. at 554. Furthermore, to the extent FOE complains about whether it has sufficient information to address its current burden, the Board has already rejected this argument, stating that "the Restart Plan provides sufficient information for the parties to brief this issue [whether the CAL is a de facto license amendment] and for the Board to resolve it." December 20 Order at 4. 308 See, e.g., Eastern Testing and Inspection, Inc., LBP-96-9, 43 NRC 211, 215-16 (1996); Aharon Ben-Haim, Ph.D. (Upper Montclair, New Jersey), LBP-97-15, 46 NRC 60, 63 (1997).

309 See, e.g., La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983).

80 proof." However, a license amendment proceeding for SCE's restart actions would be a separate proceeding.

310 If a license amendment were needed under 10 C.F.R. § 50.59 for SCE's restart actions, SCE would be required to submit a license amendment request, wh ich would be noticed in the Federal Register with a separate notice of opportunity to request a hearing. The Board has not been provided with any authority to preside over any license amendment proceeding for SCE's restart actions; it only has authority to determine whether the CAL constitutes a de facto license amendment and whether the Petition satisfies the requirements of 10 C.F.R. § 2.309.

311 C. Question (ii) - The 2.206 Proceeding Is Not Material Question (ii) raised by the Board in the December 7 Order states: What impact, if any, will the decision of the NRC's Executive Director of Operations, under 10 C.

F.R. § 2.206, as to Friends of the Earth's petition, have on the first issue referred to this Board by the Commission?

312 The following information provide s a response to that question. The NRC's decision on the 2.206 petition relates to whether SCE should have obtained an additional license amendment in the past fo r the design changes in the RSGs. The issues being evaluated under the 2.206 petiti on are completely separate from the issues being evaluated in this proceeding. The 2.206 petition is an evaluation of action taken in the past, while this proceeding is looking at actions in the present (i.e., whether the present CAL is a de facto license amendment).

Even if the Staff were to require SCE to take some action in response to the 2.206 petition, such an action would not necessarily impact this proceeding, because the question in

310 FOE argues that "[t]he ultimate burden is on the utility to show that it is operating within its operating license." FOE Brief at 38. FOE incorrectly seeks to shift its burden onto SCE. As discussed above, the petitioner always has the burden at the petition stage. This proceeding has not progressed beyond that stage.

311 See San Onofre, CLI-12-20, slip op. at 4-5.

312 December 7 Order at 6.

81 this proceeding is whether the CAL constitutes a de facto license amendment, which involves different issues than those raised in the 2.206 petition. For example, as a basis for FOE's claim that the RSGs required a license amendment in th e past, FOE's Petition points to the change in thickness of the tubesheet.

313 Assuming arguendo that the NRC requires SCE to take some action with respect to the change in thickness, such an action would have absolutely no impact on this proceeding because the thickness of th e tubesheet has no bear ing on the tube wear experienced by SONGS.

314 Additionally, FOE concluded in the FOE Brief "that the 2.206 proceeding will have little, if any, impact on the ASLB proceeding."

315 This conclusion appears to be consistent with SCE's position on this question from the Board.

In summary, the issues in the 2.206 petiti on are different than the issues in this proceeding. Even if it were assumed arguendo that the NRC Staff decides in favor of FOE in that 2.206 proceeding, such a decision would not necessarily have any impact on this proceeding.

D. Question (iii) - Applicability of 10 C.F.R. § 50.59 Question (iii) raised by the Board in the December 7 Order states:

To what extent do the standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) apply in determining whether the CAL constitutes a de facto licensing amendment?

316 The following information provide s a response to that question. As indicated in the first lines of 10 C.F.R.

§ 50.59(c)(1) and (2), S ection 50.59 applies to "a licensee" to the extent that the licensee desires to make a change in the facility or procedures

313 See Petition at 17.

314 See Brabec Affidavit ¶ 22; see also AIT Report at i (indicating that the cause of the tube wear is the combination of unpredicted, adverse thermal hydraulic conditions and insufficient contact forces in the upper tube bundle) (SCE Attachment 31).

315 FOE Brief at 40.

316 December 7 Order at 6.

82 as described in the UFSAR, or to conduct tests or experiments not described in the UFSAR. Thus, by its terms, 10 C.F.R. § 50.59 applies to actions by the licensee.

It does not apply to actions by the NRC, such as issuance of a CAL.

Actions by the NRC, such as issuance of a CAL, are subject to the standard in Perry , as discussed in the Board's December 7 Order.

317 As the Order indicates, an action by the NRC constitutes a license amendment under AEA Secti on 189a if the action provi des the licensee with "greater operating authority."

318 Thus, for example, in this proceeding the CAL issued to SONGS on March 27, 2012 is

subject to the standard in Perry. In contrast, SCE's remedial ac tions to support restart of Unit 2 are subject to 10 C.F.R. § 50.59.

The Board's December 7 Order includes a discussion of 10 C.F.R. § 50.59.

319 SCE would like to elaborate on several aspects of that discussion.

• A change in plant procedures alone does not necessarily require a full 50.59 evaluation.

Instead, 10 C.F.R. § 50.59 only applies to "changes in the procedures as described in the final safety analysis report (as updated)" (emphasis added). As indicated in 10 C.F.R.

§ 50.59(a)(5), Section 50.59 only ap plies to "those procedures that contain information described in the FSAR (as updated) such as how structures, systems, and components are operated and controlled (including assumed operator actions and response times)." As indicated in Section 4.2.1.2 of NEI 96-07, 320 if a change in a procedure does not adversely affect a design function or the method of performing or controlling a design

317 Id. at 3. 318 Id. 319 Id. at 3 n.3.

320 SCE Attachment 20.

83 function as described in the UFSAR, the change may be screened out from a 50.59 evaluation.

• A substantial change in an analysis does not per se require a license amendment under 10 C.F.R. § 50.59. Instead, Section 50.59 only applies to a "departure from a method of evaluation described in the FSAR (as updated)" (emphasis added). If the analytical method is not described in the UFSAR, a change to that method does not require a 50.59 evaluation and may be screened out. Furthermore, only changes to the "method of evaluation" are covered by 10 C.F.R. § 50.59(c)(2)(viii). Changes to inputs to methods of evaluation are not covered by this provision. These concep ts are further discussed in Sections 3.8 and 4.2.1.3 of NEI 96-07.

321

• As stated in 10 C.F.R. § 50.59(c)(2)(i) and (iii), Section 50.59 requires a license amendment if there is more than a minimal in crease in likelihood or consequences of an accident evaluated in the UFSAR. That section does not discuss or pertain to "risk" per se. FOE states in its brief that its answer to Question (iii) is found on pages 10-23 of the FOE Brief.322 FOE concludes: "In this case, § 50.59 applies because SCE proposes a change, test, or experiment that triggers the amendment process under § 50.59(c)(2). SCE a pparently agrees that section 50.59 applies since they publicly admitted to performing such an analysis."

323 FOE does not answer the Board's question about how "the standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) apply in determining whether the CAL constitutes a de facto licensing amendment" (emphasis added). Instead, FOE attempts to answer the separate question of whether the restart activities

321 SCE Attachment 20.

322 FOE Brief at 38.

323 Id. at 10.

84 require a license amendment under Section 50.59. As discussed above, Section 50.59 does not apply to NRC actions (such as issuance of th e CAL) but only to a licensee's actions.

E. Question (iv) - Steam Generator Tube Rupture Question (iv) raised by the Board in the December 7 Order states: Does the Final Safety Analysis Report (FSAR) analyze a steam generator (S/G) tube failure event? If it does, how many tubes are assumed in the analysis and what is the primary-to-secondary leak rate? What is a conservative rate

? Please provide a copy of this section of the FSAR.

324 The following information provide s a response to that question. The UFSAR analyzes a steam generator tube failure event. Specifically, the SONGS UFSAR provides the accident analysis for a Steam Generator Tube Rupture ("SGTR") in Section 15.10.6.3.2, utilizing the dose models described in Appendix 15.10B.

325 The SGTR event assumes the break of one steam generator tube (UFSAR Section 15.10.6.3.2), which is standard practice per NRC Standard Review Plan Section 15.6.3.

326 For purposes of the UFSAR, the integrated flow through a broken tube was calculated to be 70,563 lbm (0 to 30 minutes).

327 This rate is conservative in that it assumes a 45% double ended guillotine break.

328 This limiting break size was determined by performing a parametric study for break size up to and including a 100% double ended guillotine break. The 45% double ended guillotine break resulted in prolonging the period in which the Main Steam Safety Valves

324 December 7 Order at 6.

325 This analysis is an updated accident analysis incorporating 10 C.F.R. § 50.59 changes from the SGTR analyzed in Section 15.6.3.2, and utilizing the dose models described in Appendix 15B (SCE Attachment 18).

326 NUREG-0800, Standard Review Plan § 15.6.3 (Rev. 2, July 1981) (SCE Attachment 36).

327 See UFSAR Table 15.10.6.3.2-3 (SCE Attachment 18).

328 UFSAR Table 15.10.6.3.2-1 (SCE Attachment 18).

85 ("MSSVs") remain open; thereby maximizing radioactivity releases to the atmosphere and thus the dose consequences.

329 The radiological consequence analysis for the SGTR event includes the following additional conservatisms:

• The event is assumed to occur when the primary coolant is at the maximum activity concentration limits identified in Technical Specification 3.4.

16, including a case with a pre-existing iodine spike, a nd a case with an accident induced iodine spike of 500 times greater than the primary coolant system iodine releas e rate corresponding to the Technical Specifications limit.

330

• The event is assumed to initiate with the secondary coolant activity concentration at the maximum limits specified in Technical Specification 3.7.19.

331

• The event assumes very adverse (95th percentile) atmospheric dispersion factors.

332

• The analysis conservatively assumes that operator action to isolate the affected steam generator is delayed until 30 minutes after initiation of the event.

333 In reality, operators should recognize fairly quickly th at a SGTR is in progress and isolate the affected steam generator. The break would be detected almost immediately due to the increase in radiation in the secondary system (similar to what happened during the steam generator tube leak at SONGS Unit 3 on January 31, 2012).

334 329 Nazareth Affidavit ¶ 5; see UFSAR Section 15.6.3.2.3.B (SCE Attachment 18).

330 See UFSAR Table 15.10.6.3.2-3 (SCE Attachment 18).

331 See id.; Nazareth Affidavit ¶ 6.

332 Nazareth Affidavit ¶ 6; UFSAR Table 15B-4 (SCE Attachment 18).

333 Nazareth Affidavit ¶ 6; see also UFSAR Section 15.10.6.3.2 (SCE Attachment 18).

334 Nazareth Affidavit ¶ 6.

86

• The event assumes a loss of normal AC power at the time of reactor trip. This results in the loss of condenser vacuum and lifting of the MSSVs to relieve secondary pressure, increasing the release to the atmosphere.

335

• The MSSVs are assumed to open at the lowest possible pressure setpoint (including uncertainties), increasing the release to the atmosphere.

336 A copy of UFSAR Section 15.10.6.3.2, which addresses an SGTR event, is attached to this brief.337 SCE also attaches UFSAR Section 15.6.3.

2 and Appendices 15B and 15.10B to provide additional information on SGTR events.

338 In any event, as discussed in Subsection III.B above, issues related to the safety of the plant are outside the scope of this proceeding. Instead, it is the responsibili ty of the NRC Staff, as part of its inspection and enforcement function, to assure that the plant is safe to restart. As the Commission and the Board has stated, the purpose of this proceeding is to determine whether the CAL constitutes a de facto license amendment. In this regard, FOE's arguments regarding Question (iv) do not pertain to the CAL or the Restart Report, but instead focus on Mr. Large's evaluation of the safety and design of the SONGS units.

339 Therefore, FOE's arguments are outside the scope of this proceeding.

F. Question (v) - Comparisons with Other Plants Question (v) raised by the Board in the December 7 Order states:

Figure 4-3 in the report entitled "Operational Envelope for Large U-bend Steam Generators, S ONGS U2C17 Steam Generator Operational Assessment for Tube-to-Tube Wear" [hereinafter

335 Nazareth Affidavit ¶ 6; UFSAR Section 15.10.6.3.2 (SCE Attachment 18).

336 Nazareth Affidavit ¶ 6; UFSAR Table 15.10.6.3.2-1 (SCE Attachment 18).

337 See SCE Attachment 18.

338 See SCE Attachment 18.

339 See FOE Brief at 41-43.

87 Tube-to-Tube Report] compares th e bulk velocity ratio and void fraction ratio to several successf ully operating large S/Gs, and it notes that "[a]t 100% power, the thermal-hydraulic conditions in the u-bend region of the SONGS replacement [S/Gs] exceed the past successful operational enve lope for U-bend nuclear [S/Gs]

based on presently available data." Tube-to-Tube Report at 17. How similar to the SONGS S/Gs are these other S/Gs? Do the other steam generators, for example, use alloy [690] tubes and have similar spacing, simila r support structures, etc.?

340 The following information provide s a response to that question. The SONGS RSGs are designed for a higher power level than the steam generators that are the subject of Figures 4-3 a nd 5-1 of the Tube-to-Tube Report. As a result, the RSGs have more tubes than the steam generators of those plants. By limiting operation of SONGS Unit 2 to 70% power, the power level of the SONGS RSGs will be less than the power level of one of the other plants and somewhat higher than the remainder, as shown in the following table.

341 Other than the difference in design power level, there is not a significant difference in the design of SONGS RSGs and the steam generators of the other plants in terms of factors such as tube material, tube size, tube pitch (i.e., the distance between the cente rs of two adjacent tubes), tube configuration, TSPs, and AVBs. The following table provides information comparing the design of the SONGS RSGs with the design of the steam generators for the comparison plants discussed in the Tube-to-Tube Wear Report:

342 340 December 7 Order at 6-7.

341 Brabec Affidavit ¶ 14.

342 Brabec Affidavit ¶ 15.

88 Plant SONGS A B C D E Tube material 690TT 690TT690TT690TT690TT 690TT Tube outside diameter (inches) 0.750 0.7500.7500.7500.750 0.750Tube wall thickness (inches) 0.043 0.0430.0430.0430.043 0.043 Tube pitch (inches) 1.000 1.0001.0431.0311.080 1.080 Tube configuration 343 Triangular Triangular Square Triangular Triangular Triangular Tube support plates Broached Broached BroachedBroached Broached Broached Max AVBs per Tube 12 8 10 6 6 8 Stay Cylinder 344 (Yes/No) No No No No No No MWt per SG 1210 at 70% power 1355 825 895 868 1000 As this table demonstrates, the design of the tubes and tube supports for the SONGS RSGs is very similar to the design of the steam generators of the comparison plants. The most significant difference is the design of the AVBs. As indicated in the table, the SONGS RSGs have more AVBs per tube than the steam generators in the comparison plants.

345 343 Tube configuration refers to the arrangement of the tubes when viewed along the axis of the tubes. Thus, in a triangular configuration, each tube is equidistant from its adjacent tubes, forming an equilateral triangle arrangement; in a square configuration, the tubes in columns and rows are fully aligned, forming a square pattern. Brabec Affidavit ¶ 9.

344 A stay cylinder is a central structural column in the channel head of some steam generators. Brabec Affidavit ¶ 10. 345 Brabec Affidavit ¶ 16. As discussed in Subsection III.B above, issues related to the safety of the plant are outside the scope of this proceeding. Instead, it is the responsibility of the NRC Staff, as part of its inspection and enforcement function, to assure that the plant is safe to restart.

89 FOE states in its brief that its answer to Question (v) is found on pages 33-36 of the FOE Brief.346 FOE concludes: "Petitione r's experts have found that San Onofre's replacement steam generators are substantially different in design than any other steam generators in the country."

347 This conclusion is based on speculation of the desi gn of steam generators at other plants, and is controverted by the table provided above that shows the similarities between the RSGs and the steam generators at the other plants. For example, the table shows that the other plants are similar with respect to broached tube supports, tube configuration, tube diameter and pitch, use of AVBs, and no stay cylinder. In the case of Plant A, the original steam generators had stay cylinders, but the replacement steam generators did not. Additionally, several CE plants besides SONGS have installed replacement steam generators without stay cylinders.

348 Additionally, Mr. Large appears to take the position that the comparison of the SONGS RSGs with the steam generators at other plants is not valid given that th e other plants have not experienced FEI.

349 This argument does not support FOE's position. The purpose of the comparison is to show that the thermal-hydraulic conditions that can lead to FEI will not exist in the SONGS RSGs at 70% power, and that the comparison shows that the thermal hydraulic conditions in the RSGs at 70% power will be sim ilar to the conditions in other plants that have not experienced FEI.

350 Finally, FOE alleges that AREVA's analyses of the similar steam generators are invalid because AREVA has not completed or performed a thermal-hydraulic anal ysis of all of the

346 FOE Brief at 38.

347 Id. at 34. 348 Brabec Affidavit ¶ 16.

349 See Large Affidavit at 43-44.

350 Brabec Affidavit ¶ 17.

90 comparison steam generators.

351 FOE's allegations are baseless.

In fact, as indicated in the Tube-to-Tube Report, the information used in the analyses is based upon "publicly available" information.

352 G. Question (vi) - Conservatism of Operation at 70% Power Question (vi) raised by the Board in the December 7 Order states: Figure 5-1 in the Tube-to-Tube Report compares the same parameters as in Figure 4-3, but for operation at 70% power. It

appears from Figure 5-1 that the bu lk fluid velocity for SONGS is at the high end of the experi ential range. Given the likely differences between the SONGS gene rators and those cited in the discussion, can one conclude that operation at 70% power is conservative?

353 The following information provide s a response to that question. As discussed in Subsection V.F, there is no significant difference between the design of the tubes and tube supports in the SONGS RSGs and those in the steam generators of the comparison plants, except that the RSGs have more AVBs per tube than the comparison plants. Therefore, the comparison with the other plants is valid. Figure 5-1 in the Tube-to-Tube Report depicts two parameters: bulk velocity ratio and mean void fraction ratio. For each of these parameters, SONGS operating at 70% power is bounded by at least one other plant, thereby demonstrating that FEI should not occur at SONGS because it is not occurring at the other plants. Furthermore, with respect to the mean void fraction ratio, SONGS at 70% power is the lowest of the six plants.

354 Void fraction is a critical factor in the determination of whether FEI will exist. Void fraction is equal to the volume of steam in the fluid divided by the total volume of the

351 FOE Brief at 36; Large Affidavit at 41-42.

352 Tube-to-Tube Report at 17 (SCE Attachment 12).

353 December 7 Order at 7.

354 Brabec Affidavit ¶ 46.

91 steam/water mixture. A high void fraction indicates less water in the fluid, which in turn results in lower damping and thus less resistance to fluid elastic instability.

355 As shown on Figure 8-2 of the Return to Service Report, all of the tubes with TTW occurred in a region where the void fraction exceeded 0.993.

356 In contrast, at 70% power, the maximum void fraction in the SONGS Unit 2 RSGs will be 0.9258, as discussed in detail in Section 8.1 of the Return to Service Report.

357 Thus, by limiting power to 70%, SCE will be reducing the void fractions to levels well below those associated with TTW in the SONGS RSGs.

358 In any event, SCE does not rely solely on the comparison with other plants. It also relies upon the following:

• Differences in TTW between Units 2 and 3 - - As discussed above, the RSGs for SONGS Unit 3 experienced extensive TTW. More th an 300 tubes in the two RSGs in Unit 3 experienced TTW, including TTW resulting in a leaking tube, after only 11 months of operation. In contrast, the Unit 2 RSGs had 21 months of operation and only one instance of TTW (involving two tubes), and that TTW was so minor that it was not detected using normal eddy current testing techniques. This difference in operating experience indicates that the e xperience of the Unit 3 RSGs is not applicable to Unit 2. Furthermore, since Unit 2 experienced only one instance of TTW in 21 months of full power operation, operation at 70% power for 150 days will incur even less likelihood of any TTW.359 355 Brabec Affidavit ¶ 47.

356 Return to Service Report at 41 (SCE Attachment 8).

357 Id. at 40. 358 Brabec Affidavit ¶ 47.

359 See Return to Service Report at 36 (SCE Attachment 8); Brabec Affidavit ¶ 48.

92

• Manufacturing Differences between Units 2 and 3 - - The design and operation of the RSGs for both units was essentially identical. The difference in TTW operating experience between Units 2 and 3 is attributable to manufacturing differences between Units 2 and 3. For the Unit 2 RSGs, there was more of a dispersion in the placement of the AVBs relative to the tubes, resulting in some AVBs with relatively high contact forces against the tubes (which helps preven t tube vibration) and other AVBs with little or no contact force. Since a tube only n eeds a few AVBs with relatively high contact forces to prevent FEI, the greater dispersion of the AVBs for the Unit 2 RSGs in

retrospect was beneficial in preventing FEI.

360 This was not recognized at the time of design and manufacturing of the RSGs.

361

• Absence of FEI in Unit 2 - - Westinghouse has performed an operational assessment for Unit 2, which demonstrates that there was no FEI at 100% power in Unit 2 and that the TTW in Unit 2 was not caused by FEI but inst ead due to the close proximity of the two tubes and random vibration.

362

• Traditional Operational Assessment - - In a traditional operational assessment for a steam generator, the historic tube wear is extrapolated for the next operating period to verify that the tubes, at the end of that period, will satisfy the performance criteria. For Unit 2, one of SCE's contractors, Intertek, has performed a "traditional" industry operational assessment, based upon the TTW wear rates experienced in Unit 3 (i.e., it assumes that FEI and the TTW experience is applicable to Unit 2, even though the information discussed above demonstrates that it is not). This operational assessment demonstrates

360 Brabec Affidavit ¶ 49.

361 See Return to Service Report at 36 (SCE Attachment 8).

362 Brabec Affidavit ¶ 50; Westinghouse Operational Assessment at 4 (SCE Attachment 10).

93 that there is reasonable assurance that the performance criteria will be satisfied for 16 months at 70% power level.

363

• Deterministic Evaluation of the Potential for FEI - - One of SCE's contractors, AREVA, has performed a deterministic evaluation of the potential for FEI in Unit 2 operating at 70% power, assuming that none of the AVBs is effective.

364 That evaluation demonstrates that FEI will not occur for the duration of this assessment (18 months).

365

• Plugging of Tubes in the Affected Region - - The local thermal-hydraulic conditions in the secondary side of steam generators va ry greatly, depending upon the location within the tube bundle. The TTW in Unit 3 occurred in the region of the tube bundle with the highest flow velocity and void fractions. As a preventive measure, SCE has plugged the tubes in Unit 2 that are in approximately the same region. Therefore, the tubes in Unit 2 that might potentially be subject to TTW ba sed upon the experience in Unit 3 have been plugged and removed from service.

366 As discussed in the cover letter for SCE's CAL response, there is reasonable assurance that Unit 2 can operate safely at 70% power for 150 days, based upon the following:

SCE has evaluated the causes of TTW in the Unit 3 SGs and . . . has completed corrective and compensatory actions in Unit 2 to prevent loss of tube integrity due to these causes. Tubes within regions of the Unit 2 SGs that mi ght be susceptible to FEI have been plugged. In addition, . . .

SCE has established operational limits that eliminate the therma l-hydraulic conditions associated with FEI from the SONGS Unit 2 SG

s. Specifically, operation of Unit 2 will be administratively limited to 70% power. Within 150

363 Brabec Affidavit ¶ 51; see also Intertek Operational Assessment (SCE Attachment 11).

364 Tube-to-Tube Report, Section 5 (SCE Attachment 12). In this regard, effective tube supports are defined based upon tube-to-AVB contact forces. Even if an AVB is not effective in providing contact force on a tube, the AVB is still needed to provide out-of-plane tube-to-AVB support and damping contribution to the calculation of in-plane and out-of-plane stability ratios. Brabec Affidavit ¶ 18.

365 Brabec Affidavit ¶ 52; Tube-to-Tube Report, Section 5 (SCE Attachment 12).

366 Brabec Affidavit ¶ 53.

94 cumulative days of operation at or above 15% power, Unit 2 will be shut down for inspection to confirm the condition of the SG tubes. The analyses and OAs performed by SCE and independent industry experts demonstrate that under these conditions, tube integrity will be maintained. On this basis, SCE concludes that Unit 2 will operate safely.

367 In any event, as discussed in Subsection III.B above, issues related to the safety of the plant are outside the scope of this proceeding. Instead, it is the responsibili ty of the NRC Staff, as part of its inspection and enforcement function, to assure that the plant is safe to restart. As the Commission and the Board has stated, the purpose of this proceeding is to determine whether the CAL constitutes a de facto license amendment. FOE states in its brief that its answer to Question (vi) is found on pages 36-37 of the FOE Brief.368 FOE's response to Question (vi) reiterates many of its same arguments that it made for Question (v) that the comparison steam generators are different and the ev aluation is not helpful because the comparison steam generators have not experienced FEI.

369 For the same reasons discussed above in Subsection V.F, these arguments do not support FOE's position.

H. Question (vii) - Stab ility Ratio of 0.75 Question (vii) raised by the Board in the December 7 Order states:

Section 8.0 in the Tube-to-Tube Re port states that "[t]he desired margin is a projected maximum stability ratio of 0.75 with 0.95 probability at 50% confidence over the next inspection interval of 5 months." Tube-to-Tube Report at 104. Does a confidence level of 50% meet the reasonable assurance requirement in the regulations?

370 The following information provide s a response to that question.

367 CAL Response Letter at 4 (SCE Attachment 4); Brabec Affidavit ¶ 54.

368 FOE Brief at 38.

369 See id. at 36-37; Large Affidavit at 43-44.

370 December 7 Order at 7.

95 The evaluation of the tubes against the criterion of a maximu m stability ratio of 0.75 with 0.95 probability at 50% confidence level was performed to determine the margin to instability, not to provide reasonable assurance.

371 In any event, the criterion of 0.95 probability at 50%

confidence is based upon industry guidance. This is discussed further below.

372 As stated in the Tube-to-Tube Report:

Stability ratio is defined as the ra tio of the effective flow velocity to which the tube is subjected to the critical velocity. Critical velocity is the velocity at which the tube, with specific geometry and support conditions, becomes un stable. Stabili ty ratios less than 1.0 represent a stable conditi on where the actual velocity is less than the critical velocity; stabil ity ratios greater than 1.0 represent an unstable condition where the actual velocity exceeds the critical velocity.

373 The stability ratio is used to determine whether FE I exists. If the stabil ity ratio is less than 1.0, FEI does not exist. Thus, if th e stability ratio is less than 1.0, the type of TTW experienced in the RSGs of SONGS Unit 3 will not exist.

374 The flow velocity varies throughout the steam generators, based upon local conditions such as void fraction. As a resu lt, the stability ratio varies from tube to tube in the steam generators. The criterion of 0.95 probability at 50% confidence is applied to ensure that no tube in the steam generators exceeds the target stability ratio; i.e., this criterion is applied to the worst case tube.

375 Thus, if the tube with the highest stability ratio does not exceed the target stability

371 The Commission has stated: "'Reasonable assurance' is not quantified as equivalent to a 95% (or any other percent) confidence level, but is based on sound technical judgment of the particulars of a case and on compliance with our regulations." Oyster Creek, CLI-09-7, 69 NRC at 263. Therefore, no generic threshold exists for confidence level for purposes of reasonable assurance.

372 Brabec Affidavit ¶ 42.

373 Tube-to-Tube Report at 16 n.1 (SCE Attachment 12); Brabec Affidavit ¶ 40.

374 Brabec Affidavit ¶ 40.

375 The 50% confidence level simply means that a point estimate for probability is used. For example, for a simulation involving 10,000 trials, the 0.95/50 acceptance criterion simply requires there be at least 9500 successful trials out of 10,000. Brabec Affidavit ¶ 41.

96 ratio, the other tubes will have a stability ratio that is equal to or less than the highest stability ratio, and those tubes will also satisfy the target (with added margin for the most part).

376 The criterion that steam generator tubes maintain structural integrity with a 0.95 probability at 50% confidence level is based upon provisions in guidelines developed by the Electric Power Research Institute ("EPRI"), entitled Steam Generator Management Program: Steam Generator Integrity Assessment Guidelines , at 8-1: 377 The fundamental objective of an OA is to ensure that structural and leakage performance criteria will be met over the length of the upcoming inspection interval. It shall be demonstrated that the degradation detection sensitivity and/or NDE [non-destructive examination] sizing uncertainty combined with degradation growth rates leads to the expectation that structural and leakage integrity criteria will be met at the end of the next inspection interval. In terms of structural integrity, the fundamental OA requirement is that the projected worst case degraded tube for each existing degradation mechanism shall meet the limiting structural performance parameter with a 0.95 probability at 50% confidence.

This EPRI Guideline is referenced in NEI 97-06, 378 which in turn is referenced in SONGS Technical Specification Bases B3.4.17.

379 Therefore, the criterion identified in the Board's question is already part of the SONGS licensing basis and is an industry-accepted measure for steam generator tube integrity. Thus, the criterion is an acceptable measure of reasonable assurance.

380 376 Brabec Affidavit ¶ 41.

377 EPRI 1012987, Steam Generator Management Program: Steam Generator Integrity Assessment Guidelines (Rev. 2, July 2006) (SCE Attachment 37).

378 NEI 97-06, Steam Generator Program Guidelines (Rev. 3, Jan. 2011), available at ADAMS Accession No. ML111310708 (SCE Attachment 30).

379 SCE Attachment 32.

380 Brabec Affidavit ¶ 42.

97 Furthermore, the Tube-to-Tube Report has applied that criterion in an extremely conservative manner. Some of the conservatisms include the following:

381

• The Report applies that criter ion to a stability ratio of 0.75, which is significantly less than 1.0 and therefore is signifi cantly below the level at which FEI would occur. As the Report indicates, the calculation performed at a stability ratio of 0.75 was performed to "demonstrate margin," not to determine reasonable assurance.

• In demonstrating this criterion is met at a stability ratio of 0.75, it was assumed that only 4 of the 12 AVBs were effective. In contrast, wear indications in Unit 2 indicate that at least 7 AVBs per tube were effective.

• The same section of the Report also applie s the 0.95 probability and 50% confidence criterion to a stability ratio 1.0 at 70% power.

The Report demonstrates that the criterion is met assuming that all of the 12 AVBs are ineffective

.382 In summary, the Tube-to-Tube Report shows that FEI and TTW will not occur (i.e., the stability ratios are less than 1.0) at 70% power, even assuming that all of the AVBs are ineffective.

383 Furthermore, the Report demonstrates that there is a 0.95 probability at 50% confidence that the stability ratio will not exceed 0.75, which is well below the level that results in FEI. That result indicates that there will be substantial margin to the onset of TTW in Unit 2. Thus, there is reasonable assurance that TTW will not occur at 70% power.

384 381 See Tube-to-Tube Report at 104 (SCE Attachment 12); Brabec Affidavit ¶ 43.

382 Tube-to-Tube Report, Section 5 (SCE Attachment 12). In this regard, effective tube supports are defined based upon tube-to-AVB contact forces. Even if an AVB is not effective in providing contact force on a tube, the AVB is still needed to provide out-of-plane tube-to-AVB support and damping contribution to the calculation of in-plane and out-of-plane stability ratios. Brabec Affidavit ¶ 18.

383 This conclusion is also consistent with the Westinghouse Operational Assessment, which demonstrated that FEI did not occur at Unit 2 at 100% power. Westinghouse Operational Assessment at 4 (SCE Attachment 10).

384 Brabec Affidavit ¶ 44. Furthermore, as discussed in Subsection III.B above, issues related to the safety of the plant are outside the scope of this proceeding. Instead, it is the responsibility of the NRC Staff, as part of its inspection and enforcement function, to assure that the plant is safe to restart.

98 In response to Question (vii), FOE claims: "However, the Tube-to-Tube Report acknowledges that ABV [sic] wear in Unit 2 w ill continue to advan ce in the preventively plugged zones as the in-service period progresses. This phenomenon of continuing wear affects the predicted 2.5-month in-service, pressurized tube-to-burst time-which is shorter than the proposed inspection interval of 5 months."

385 This allegation mischaracterizes the Tube-to-Tube Report.

FOE ignores the purpose and information in th e challenged section in the Tube-to-Tube Report, which considers TTW wear rates assuming FEI exists in Unit 2 during operation at 70%

power. First, the challenged evaluation is provided as part of defense-in-depth measures discussed in the Tube-to-Tube Report.

386 As stated therein, the measures go beyond the technical case for restart of Unit 2 at 70% power, and "add to the assurance that structural and leakage integrity requirements will be maintained throughout the next inspection interval."

387 The Tube-to-Tube Report demonstrates that operation at 70% will prevent FEI, but the defense-in-depth measures nevertheless evaluate TTW wear rates assuming FEI occurs.

388 Second, the FOE Brief is incomplete in referring to the 2.5 months estimate for wear time, because the Tube-to-Tube Report estimates between 2.5 months and 11 m onths for the tube wear.

389 This estimate is for worst case wear.

390 Third, FOE's statements quoted above ignore the time required for instability zone expansion (i.e., time for an in-service pressurized tube to be driven to instability with consequent development of TTW), which the Tube-to-Tube Report estimates to be 3.5

385 FOE Brief at 43; Large Affidavit at 3, 29-32.

386 Tube-to-Tube Report at 113-14 (SCE Attachment 12); Brabec Affidavit ¶ 35.

387 Tube-to-Tube Report at 113 (SCE Attachment 12); Brabec Affidavit ¶ 35.

388 Tube-to-Tube Report at 113 (SCE Attachment 12); Brabec Affidavit ¶ 35.

389 Tube-to-Tube Report at 114 (SCE Attachment 12); Brabec Affidavit ¶ 35.

390 Tube-to-Tube Report at 114 (SCE Attachment 12); Brabec Affidavit ¶ 35.

99 months.391 This 3.5 months estimate also is conservative because it is half of the 7 months estimated for instability zone expansion in Unit 3.

392 When the instability zone expansion time is added to the tube wear time, then the value is 6 months, which is gr eater than the proposed operation period of 150 days.

393 Thus, FOE's arguments misc haracterize the Tube-to-Tube Report and should be rejected.

I. Question (viii) - Opera tional Assessment Question (viii) raised by the Board in the December 7 Order states:

Throughout the Tube-to-Tube Report, the term "operational assessment" is used. How is the term "operational assessment" different than or the same as the terms "test" and "experiment" used in 10 C.F.R. § 50.59?

394 The following information provide s a response to that question. Section 50.59 provides the following definition:

Tests or experiments not describe d in the final safety analysis report (as updated) means any activity where any structure, system, or component is utilized or controlled in a manner which is either: (i) Outside the reference bounds of the design bases as described in the final safety analysis report (as updated) or (ii) Inconsistent with the analyses or descriptions in the final safety analysis report (as updated).

395 NEI 96-07 provides a discussion of various definitions used with 10 C.F.R. § 50.59, including a discussion of the definition of "tests or experiments not described in the FSAR (as updated)."

396 NEI 96-07 states:

391 Tube-to-Tube Report at 113 (SCE Attachment 12); Brabec Affidavit ¶ 35.

392 Tube-to-Tube Report at 113 (SCE Attachment 12); Brabec Affidavit ¶ 35.

393 Brabec Affidavit ¶ 35.

394 December 7 Order at 7.

395 10 C.F.R. § 50.59(a)(6).

396 NEI 96-07 at 22-23 (SCE Attachment 20).

100 10 CFR 50.59 is applied to tests or experiments not described in the UFSAR. The intent of the definition is to ensure that tests or experiments that put the facility in a situation that has not previously been evaluated (e.g., unanalyzed system alignments) or that could affect the capability of SSCs to perform their intended

design functions (e.g., high flow rates, high temperatures) are evaluated before they are conducted to determine if prior NRC approval is required.

397 Based on this discussion, it is clear that the "tests" or "experiments" covered by 10 C.F.R. § 50.59 refer to a physical activity conducted in the plant using structures, systems, and components.

An "operational assessment," on the other hand, refers to an evaluation conducted on paper based upon the results of tube inspections conducted in the plant.

Industry guidance in NEI 97-06, which is utilized in the SONGS Tec hnical Specification Base s, states that an "Operational Assessment" is "[a] forward-looking assessment which demonstrates that the tube integrity performance criteria will be me t throughout the next inspection interval.

398 Additionally, the Return to Service Report explains: "As required by the SONGS technical specifications (TSs), the SONGS Steam Generator Program (SGP), and industry guidelines, an Operational Assessment (OA) must be performed to ensure that SG tubing will meet established performance criteria for structural and leakage integrity during the operating period prior to the next planned inspection."

399 Therefore, an operational asse ssment is forward looking, it is performed on paper, and it does not come within the definition of test or experiment as used in 10 C.F.R. § 50.59.

In summary, the operational assessments comp leted as part of the Restart Report are not an activity where a structure, system, or component is utilized in a manner outside the reference

397 Id. 398 NEI 97-06 at 11 (SCE Attachment 30).

399 Return to Service Report at 10 (SCE Attachment 8).

101 bounds of the design bases or inconsistent with th e analyses or descriptions in the UFSAR. Similarly, the operational assessments are not a physical activity in the plant. Therefore, the operational assessments do not meet the definition of "tests" or "experiments" in Section 50.59. FOE takes the position that restart of SO NGS Unit 2 is a test or experiment under 10 C.F.R. § 50.59.

400 FOE states that it is "confident th at the design bases of the FSAR did not contemplate operating the steam generators with thousands of indications of premature wear, including the risks accompanying a reactor limited to no more than 70% of power because of destructive vibration of the virtually new steam generators."

401 FOE's "confidence" is misplaced. As discussed in Subsection III.

E.2 above, SONGS licensing basis in fact contemplates operation with degraded steam generator tubes.

J. Question (ix) - Meaning of a CAL Question (ix) raised by the Board in the December 21 Order states: Section 3.5 of the Enforcement Manual (ML102630150) describes CALs as "letters issued to licen sees or, if appropriate, to non-licensees subject to the [NRC's] jurisdiction to emphasize and confirm a licensee's or vendor's agreement to take certain actions in response to specific issues." This section of the Enforcement Manual continues to describe the process for "tracking" a CAL (see section 3.5.3) and "clo sing out" a CAL (see section 3.5.8). These cited sections suggest that a CAL is not a discrete event occurring in a snapshot of time or consisting of a single piece of correspondence. Rather, these sect ions suggest that a CAL is a dynamic, ongoing process consisting of actions taken by a licensee that are, in turn, reviewed by the NRC Staff. Here, such actions include SCE determining the causes of tube-to-tube interactions and implementing actions to prevent recurrence, establishing a protocol of inspections and/or operational limits for Units 2 and 3 to minimize tube degradation, a nd providing the NRC Staff with an assessment of Units 2 and 3 that includes an explanation for SCE's conclusion that there is reasonable assurance that these units will operate safely. See CAL at 2-3. Further, it appears that the

400 See, e.g., FOE Brief at 1, 7, 13-14, 26; Large Affidavit at 5, 50, 55; Gundersen Affidavit at 12.

401 FOE Brief at 13.

102 CAL process will continue until the NRC Staff has (1) reviewed SCE's actions and the results of its evaluations, and (2) advised SCE in writing that the NRC Staff has concluded that Units 2 and 3 can be operated without undue risk to public health and safety, and the environment. See id. at 3.

In light of the aforementioned sections of the Enforcement Manual, please provide your views of the m eaning of the CAL as relevant to the issues in this case, citing case law where appropriate.

402 The following information provide s a response to that question. Subsection III.A above discusses the nature of a CAL and explains that CALs are enforcement actions, not license actions. CALs do not grant licensees any additional authority beyond the existing license, but instead document a licensee's commitments to take specific actions within the scope of the licensee's aut hority under the existing license. Although the Enforcement Manua l discusses the tracking and closing out of CALs, this does not change the nature of the CAL.

403 Consistent with the de finition of CALs in the Enforcement Manual, a CAL itself is the letter issued by the NRC to a licensee to "confirm a licensee's . . . agreement to take certain actions in response to specific issues."

404 Additional topics in the Enforcement Manual, such as tracking and closing out CALs, are necessary administrative activities to ensure that the CAL is properly trac ked by the NRC and that the NRC is able to ensure that the activities identified in the CAL are completed.

405 These administrative activities do not convert an enfo rcement action, such as a CAL, into a licensing action. Question ix states that "these sections s uggest that a CAL is a dynamic, ongoing process consisting of actions taken by a licensee that are, in turn, reviewed by the NRC Staff."

402 December 21 Order at 2.

403 See Enforcement Manual at 3-34 to 3-36 (SCE Attachment 14).

404 Id. at 3-29.

405 See id. at 3-35 to 3-36.

103 Consistent with a CAL being an enforcement action, the NRC Staff tracks the progress of a licensee's actions to implement a CAL after it is issued, just as the NRC Staff tracks and closes a licensee's remedial actions for a notice of violation.

406 Tracking and closing a licensee's remedial actions for an enforcement action, however, are separate from the question referred by the Commission of whether the SONGS CAL is a de facto license amendment. The Commission's referral addressed the CAL itself, not other Staff activities related to the tracking and closure of SCE's actions to implement the CAL.

407 Subsection III.B above discusses the scope of the issues relevant to the question in this proceeding of whether the SONGS CAL is a license amendment. That subsection explains that the Commission did not direct the Board to consider whether the plant is safe to restart, or whether SCE's Restart Report is acceptable, but instead only whether the CAL granted SCE any greater operating authority and whether activities authorized in the CAL extended beyond those granted under the current operating licenses. The administrative activities discussed in the Enforcement Manual, and the NRC Staff's review of SCE's activities identified in the CAL, do not change this scope.

The scope of this CAL proceeding is indicated by a number of factors. First, the portion of CLI-12-20 that refers the CAL issue to the Board does not mention the October 3 CAL response or the restart actions, and does not ask the Board to make any findings related to compliance with 10 C.F.R. § 50.59. Additionally, the Commission pointed the Board and the participants to the decisions in the Seabrook and Perry cases.408 Neither of those decisions considered whether a licensee's actions pursuant to the CAL (or pursu ant to an NRC approval in

406 See, e.g., NRC Enforcement Manual Section 2.11 and Section 4.5.4.E (SCE Attachment 14).

407 See San Onofre, CLI-12-20, slip op. at 4-5.

408 Id. at 5 n.15.

104 the case of Perry) were safe or required a license amendment pursuant to 10 C.F.R. § 50.59.

Instead, the sole consideration was whether the NRC's action (e.g., the CAL) granted the licensee additional license authority.

Moreover, the Commission has clearly held that the NRC's review and approval of an issue does not necessarily indicate that the approval constitutes a license amendment. Subsection III.C above addresses the Commission's Perry decision and explains that the Commission rejected a claim that any time the NRC Staff grants prior approval, the Staff is permitting actions that will exceed existing licensing authority, and a license amendment is required.

409 Therefore, the fact that the NRC Staff, as indicated in Qu estion (ix), will (1) review SCE's actions and the results of its evaluations, and (2) advise SCE in writing that the Staff has concluded that Units 2 and 3 can be operated without undue risk to public health and safety, and the environment, does not convert the CAL into a de facto license amendment. This c onclusion is consistent with Seabrook , in which the licensing board and Appeal Board agreed that the Seabrook CAL, which includes provisions similar to the SONGS CAL, did not provide he aring rights under AEA Section 189a.

410 Finally, if tracking and closure of a CAL were deemed to be within the scope of the first issue referred by the Commission, the Board would be unable to rule on that issue until after the NRC Staff had closed the CAL; i.e., after the NRC Staff had issued its restart approval and SONGS had restarted.

411 There is no indication that the Commission intended for the Board to

409 Perry, CLI-96-13, 44 NRC at 327.

410 See Seabrook, LBP-89-28, 30 NRC at 275-77; Seabrook, ALAB-940, 32 NRC at 237-38.

411 See, e.g., NRC Enforcement Manual Section 3.5.8.C ("Correspondence closing out a CAL should be sent to the same person/address as the CAL; however, verbal notification, in advance of written correspondence, may be sufficient to permit plant restart or resumption of affected licensee activities.") (SCE Attachment 14).

105 hold this proceeding in abeyance pending restart of the plant.

412 Furthermore, since SONGS Unit 3 currently has no restart plan and no sche dule for a restart plan, the Board would be compelled to hold this proceeding open indefinitely with respect to Unit 3 if tracking and closure were deemed to be within the scope of the first issue referred by the Commission. There is no indication that the Commission intended such a result. To the contrary, in the Seabrook decision cited by the Commission in CLI 20, the licensing board ruled that the CAL did not confer any hearing rights despite the fact that the NRC St aff had not yet issued its restart approval in accordance with the CAL; i.e., had not yet closed the CAL.

413 Similarly, in this proceeding, the Board can and should rule that the SONGS CAL does not constitute a de facto license amendment, despite the fact that the Staff has not closed th e CAL and may not do so for an extended period of time on Unit 3.

414 In summary, the activities of the NRC Staff to track and close the SONGS CAL are not within the scope of the issues referred by th e Commission, and there is no indication that the Commission intended for the Board to defer a ru ling pending closure of th e CAL and restart of the plant. The SONGS CAL is an enforcement action, not a license amendment, and the CAL does not provide SCE with any additional license authority. Therefore, the CAL does not constitute a de facto license amendment, and FOE's Petiti on should be rejected even though the CAL has not been closed by the NRC Staff. Such a result would be fully consistent with the approach taken by the licensing board in Seabrook, as referenced by the Commission in CLI 20.

412 In any event, as discussed in Section IV above, the Licensing Board could dismiss the Petition now on the grounds that it does not satisfy the timeliness, standing, or contention requirements in 10 C.F.R. § 2.309.

413 Seabrook, LBP-89-28, 30 NRC at 275 (cited by the Commission in CLI-12-20 at 5 n.15).

414 The CAL itself is not a dynamic process. Instead, as indicated in the SONGS CAL, the CAL is complete and effective upon issuance.

106 VI. CONCLUSIONS As demonstrated above, the CAL issued to SCE is not a de facto license amendment. On that basis alone, the Petiti on should be rejected. Independent of that conclusion, FOE's Petition was untimely and does not satisfy the requirements for standing and contention admissi bility set forth in 10 C.F.R. § 2.309. FOE's Petition should also be rejected for any or all of those three reasons. Accordingly, FOE's Petition should be dismissed and this proceeding should be terminated.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Steven P. Frantz Stephen J. Burdick

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Phone: 202-739-5460 E-mail: sfrantz@morganlewis.com Douglas Porter

Director and Managing Attorney

Generation Policy and Resources Law Department Southern California Edison Company 2244 Walnut Grove Avenue

GO1, Q3B, 335C Rosemead, CA 91770

Phone: 626-302-3964 E-mail: Douglas.Porter@sce.com

Counsel for Southern California Edison Company Dated in Washington, D.C.

this 30th day of January 2013

107 Appendix A Examples of Mischaracterizations in th e FOE Brief, Affidavits, and NRDC Brief Statement in FOE Brief or Affidavits Comment None of the investigat ions conducted to date have determined the root cause of the premature and extensive tube degradation in the replacement steam generators. (FOE Brief at 3; similar statements at 4, 5, 7, 10, 13-14 16, 19-20, 21-22, 28; Large Affidavit at 12) This mischaracterizes the Restart Report, as discussed above in Subsection III.E.6. The cause is FEI, due to high thermal-hydraulic

("T/H") conditions and inadequate AVB support. Furthermore, the high T/H conditions are due to a defect in the FIT-III code, that under-predicted the T/H conditions.

415 12% of the tubes in Unit 2 have greater than 10% through-wall wear indications. (FOE Brief at 4; Large Affidavit at 10) 12% is incorrect. The data in Table 6-1 of the October 3, 2012 Return to Service Report makes it clear that approximately 5% of the

Unit 2 tubes had greater than 10% through-

wall wear indications. These assessments, which are included in SCE's response to the CAL, suffer from important omissions. They focus on tube-to-

tube wear to tube rupture, incorrectly assuming that this mode of wear will outpace all other wear modes. Thus, they do not analyze the

potential safety effects of further degradation

of the tubes that are vibrating against the retainer bars and tube restraint structures.

(FOE Brief at 5; similar statements at 8, 16, 17, 22, 23, 29, 32; Large Affidavit at 12)

As discussed in Subsection III.E.4 above, non-TTW is evaluated in a number of reports, including the Non-TTW Operational Assessment and SCE Operational Assessment

Section 3.1. SCE has not demonstrated that the degraded steam generator tubes in Unit 2 would be able to meet the accident leakage performance criteria in the event of a design basis accident.

(FOE Brief at 8; similar statements at 22-23)

As discussed in Subsection III.E.3 above, this mischaracterizes the Restart Report. The purpose of the operational assessments is to demonstrate that the performance criteria are

satisfied, including the accident leakage performance criterion.

Throughout SCE's Steam Generator Operational Assessment, SCE refers to the Songs Steam Generator Program, which has been withheld from FoE and its experts. (FOE Brief at 12) The requirements for this program are described in Technical Specification 5.5.2.11.

This Technical Specif ication is publicly available and is cited in the FOE Brief at 23

n.21.

415 AIT Report at 47 (SCE Attachment 31).

108 Statement in FOE Brief or Affidavits Comment In fact, Edison has used the word "research" to describe its examination of the vibrations

expected during the 150 days of operation.

Gundersen Affidavit ¶ 81. (FOE Brief at 14; similar statement at 26) This statement is based on a media report, not any statement in SCE's Restart Report. In any event, even if FOE's statement were true, it is irrelevant. The statement in question pertains to SCE's plans to enhance loose parts monitoring, not operation at 70%. As

discussed in Subsection III.E.6 above, loose parts monitoring is not within the scope of the CAL because it is not intended to address the causes of the tube wear. Unit 2 has suffered thousands of times more

indications of wear than any unit with a replacement steam generator over one operation cycle (other than San Onofre Unit 3). (FOE Brief at 21) This is incorrect. As indicated in Attachment 3 to FOE's Brief, St. Lucie 2 had 5,994

indications of wear af ter one operation cycle (SONGS Unit 2 had 4,723).

It should also be noted that Salem 2 had 1,567 indications of wear after one operation cycle. (Hirsch Report at A-6) In addition, other sources of vibration that are affecting the vibration of the tube bundles are

left unanalyzed in SCE's CAL response and restart plan:

Vortex Induced Vibrations (VIV) and Turbulence Induced Vibration (TIV) might be created if San Onofre Unit 2

were allowed to operate at reduced

power, and once again, the NRC and

Edison have neglected to review and

acknowledge thes e scenarios. (Gundersen Affidavit ¶ 71; FOE Brief at 22) This allegation mischaracterizes SCE's Restart Report. MHI's Technical Evaluation

Report 416 evaluates both of these phenomena. For example, Section 6 of the Technical

Evaluation Report evalua tes random vibration caused by turbulence an d concludes it was the cause of tube wear at the location of the AVBs, TSPs, and retainer bars. Furthermore, the operational assessments for Unit 2 account for

the wear rates experien ced to date at 100%

power, 417 thereby inherently accounting for random vibration. Section 6 of MHI's

Technical Evaluation Report also discussed

vortex shedding vibration, showing that it is

not the cause U-bend tube wear given the

relatively high void fractions in the U-bend

region.

[I]t is generally accepted that Unit 2 is following along the same path of deterioration as Unit 3 (AVB wear and loss of effectiveness The allegation is unsupported without any citations. In actuality, SCE and its contractors have conservatively assumed that the

416 SCE Attachment 5.

417 Non-TTW Operational Assessment, Section 6.2.1.1 (SCE Attachment 26).

109 Statement in FOE Brief or Affidavits Comment preceding TTW), although the reasons why it lags so much behind are not at all understood by SCE and, indeed, subject to disagreement

between the OA consultants. (Large Affidavit

at 3) experience at Unit 3 is applicable to Unit 2; they have not accepted that as true. To the

contrary, SCE has concluded that Unit 2 is

significantly different than Unit 3 with respect to manufacturing differences that result is

substantially higher AVB contact forces with the tubes in Unit 2.

418 [C]ertain of the wear pa tterns and tube thinning seem to be unique and have not, to my

knowledge, been experienced in operational SGs elsewhere, so the rate(s) of tube wall

thinning adopted by AREVA and the other

OAs are largely hypothetical. (Large Affidavit at 4) The wear rates in the AREVA Operational Assessment are based upon the wear rates in Unit 3, as discussed in Appendix A of the AREVA Operational Assessment. [I]t is most unlikely that AREVA has undertaken a comprehensive (ATHOS) simulation of each of the five nominated SGs.

(Large Affidavit at 4)

As indicated in the Tube-to-Tube Report, the information used in the analyses is based upon "publicly available" information.

419 SCE does not seem to have applied this U3 finding to setting a limitation on the acceptable

tube wall thickness wear for the U2 restart on

the basis of AILPC alone which, for TSP and TTW modes of wear, will equally apply in U2

during an MSLB design basis event. (Large

Affidavit at 33)

As discussed in Subsection III.E.3 above, the operational assessments do consider AILPC

and show that it is satisfied.

Again, I pause to reflect that in its reasoning

AREVA requires at least four effective AVB-to-tube contact (clampi ng) points to safeguard 120 tubes. (Large Affidavit at 45) Actually, the AREVA Operational Assessment shows that FEI will not occur even if all AVBs are ineffective.

420 [T]he accuracy and relia bility of the ATHOS software to do so for a) such extensive buffer zone plugging, b) the geometric design of the

SONGS RSGs, and c) at 70% RTP is

unproven. (Large Affidavit at 50) This statement is inconsistent with other statements in the Large Affidavit. As stated in

fn 48 of the Large Affidavit, "I have

insufficient experience of ATHOS to comment further on this detailed aspect."

418 Brabec Affidavit ¶ 49; CAL Response Letter at 3 (SCE Attachment 4).

419 Tube-to-Tube Report at 17 (SCE Attachment 12).

420 Id. Section 5.

110 Statement in FOE Brief or Affidavits Comment SCE does not detail the nature of the various

locations of tube wear. (Large Affidavit at 51)

The MHI Technical Evaluation Report, Figures 4.1-1 and 4.1-2, and 4.1.1-1 through 4.1.1-8, provide this information.

421 The rapid and extraordinarily severe wear that resulted in the 2012 failures of all of Edison's San Onofre Replacement Steam Generators

was the result of Edison's 2005 decision to radically change the RSG design and to claim

that the Part 50.59 licen sing process did not apply. These unlicensed unapproved design

changes to the containment boundary violated

General Design Criteria (GDC) 50 and therefore the FSAR must be amended to reflect Edison's significant modifications.

(Gundersen Affidavit at 3) GDC 50 applies to the containment. Steam generators are not part of the containment.

The degraded condition of the tubes in the RSGs at San Onofre make it clear that Edison

had violated GDC 16 and that Edison's modifications to the containment boundary must undergo the rigorous review of a formal FSAR license amendment process including

the requisite public hearings. (Gundersen

Affidavit at 3) GDC 16 applies to the containment. Steam generators are not part of the containment. Published reports indicate that the strategic decision made by Edison that the 50.59 process would not be applied to the RSGs was made by

corporate officials before any engineering personnel had actually performed the 50.59

engineering analysis. Consequently, Edison made a management decision to claim that the

50.59 process did not apply and therefore San

Onofre was not required to seek NRC approval

for the proposed changes at San Onofre Units 2

and 3. The Edison decision to ignore the 50.59 process for San Onofre's steam generators, enabled to avoid modification of its FSAR commitments as well as avoid analysis on This statement implies that SCE did not apply the 50.59 process to the RSGs. That is incorrect. SCE evaluated the RSGs in accordance with 10 C.F.R. § 50.59.

422 Indeed, this evaluation resulted in a decision by SCE to seek and obtain a license amendment of its Technical Specifications prior to installation of

the RSGs, which was approved by the NRC on

June 25, 2009.

423 421 SCE Attachment 5.

422 AIT Report at 33-36 (SCE Attachment 31).

423 SCE Attachment 6.

111 Statement in FOE Brief or Affidavits Comment steam generator performance and accidents.

(Gundersen Affidavit at 4)

And to date, the NRC has released no findings regarding the full impact of Edison's unreviewed and undocumented changes to its

FSAR as a result of such radical design and

fabrication changes to San Onofre's RSGs.

(Gundersen Affidavit at 4) The NRC reviewed the RSGs at the time of their installation and has performed many additional reviews in 2012 as part of the AIT

inspection and follow-up inspection. The NRC has issued inspection reports for all of these

inspections. The AIT Report at 33-36

concludes that the design changes for the RSGs did not require a license amendment under 10

C.F.R. § 50.59.

424 Edison is attempting to avoid the serious and

necessary scientific analysis that would determine which unplugged tubes have become

cracked from vibrations and yet are not deemed thin enough to require plugging.

(Gundersen Affidavit at 11)

During the outage, SCE inspected 100% of the steam generator tubes to detect cracks and

wear.425 CAL issued as a result of the steam generator

tube failures in 2011 and 2012. (NRDC Brief

at 9) There was no steam generator tube failure.

Instead, there was a tube leak in 2012. SCE has submitted a plan that recognizes that the damaged, defective steam generators

cannot safely operate at full power. (NRDC

Brief at 10)

This is incorrect. SCE has not stated that Unit 2 cannot be safely operate d at full power. SCE is conservatively planni ng to operate at 70% power pending the mid-cycle inspection results

and further corrective action. The Unit 3 experience demonstrates that such damage can rapidly and unpredictably lead to

the bursting of tubes; i.e., malfunction of the steam generators. (NRDC Brief at 12)

This is incorrect. Unit 3 did not experience a tube "burst." Unit 3 experienced a tube leak.

424 SCE Attachment 31.

425 Return to Service Report at 18 (SCE Attachment 8).

112 Appendix B FOE's Arguments Related to 10 C.F.R. § 50.59 Criteria in § 50.59(c)(2)

FOE Argument Analysis (i) Result in more than a minimal increase in the

frequency of occurrence of an accident previously evaluated in the final safety analysis report (as updated) Compared to operating with undamaged steam generators as permitted under the current

operating license, the proposed change to operate with degraded steam generator tubes would result in more than a minimal increase in the

frequency of occurrence and the consequences of an accident. (FOE Brief at 7)

As discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at

70% power. Therefore, there is reasonable assurance that tube rupture or leakage will not occur. Furthermore, as

discussed in Subsection III.E.2

above, the licensing basis for

SONGS already allows

operation with degraded tubes

and plugged tubes.

Because SCE has not determined what is causing the

variety of tube wear that has

occurred, it has not been able to demonstrate that operation at 70% power will reduce tube failure. (FOE Brief at 20)

This allegation mischaracterizes the Restart

Report on several accounts.

First, as discussed in

Subsections II.A and III.E.6 above, SCE has determined the cause of the TTW. SCE has also determined the cause

of the retainer bar vibration

and the other types of wear.

Additionally, as discussed in

Subsection III.E.3 above, SCE has demonstrated that the tube performance criteria are

satisfied for operation of Unit

2 at 70% power.

The individual Operational Assessments presented by

SCE have individually failed to demonstrate a clear and proven relationship between

reactor operational power

level, the rate(s) of TTW and The Large Affidavit provides no support for this conclusion.

In any event, this allegation mischaracterizes the Restart

Report. As discussed in

Subsection III.E.4 above, the operational assessments for 113 Criteria in § 50.59(c)(2)

FOE Argument Analysis TSP- and AVB-to-tube wear

and the in- and out-of-plane

fluid flow forces that promote tube and other component

motions that result in wear.

This renders the compliance with SIPC uncertain. (Large

Affidavit at 48) non-TTW wear mechanisms were conservatively performed assuming operation

at 100% power. SCE also demonstrated that FEI will not

occur at 70% power.

426 In that regard, Figure 8-2 of the Return to Service Report shows that all of the tubes with TTW occurred in a

region where the void fraction exceeded 0.993.

427 In contrast, at 70% power, the maximum void fraction in the

SONGS Unit 2 RSGs will be

0.9258, as discussed in detail

in Section 8.1 of the Return to Service Report, which is well below that associated with TTW.428 As discussed in Subsection III.E above, the operational assessments demonstrate that the SIPC is met at 70% power. (ii) Result in more than a minimal increase in the likelihood of occurrence of a malfunction of a structure, system, or component (SSC) important to safety previously evaluated in the final safety

analysis report (as updated) The anomalously high tube wear incidences in Unit 2, combined with SCE's failure

to address many of the sources

of vibrations resulting in

degradation of the SG tubes in the restart plan, indicates that

restarting Unit 2 without repair creates a substantial increase in the likelihood of a malfunction in the steam

generators beyond that contemplated in the FSAR As discussed in Subsections II.A and III.E.6 above, SCE has identified the causes of the

tube wear and has plugged the

tubes with excessive wear. As

discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at 70%

power. Therefore, there is

reasonable assurance that tube

426 Tube-to-Tube Report, Section 5 (SCE Attachment 12). See also Westinghouse Operational Assessment, Table 2-7, which identifies the significant changes in thermal-hydraulic conditions as power is changed (SCE Attachment 10).

427 Return to Service Report at 41 (SCE Attachment 8).

428 Id. at 40.

114 Criteria in § 50.59(c)(2)

FOE Argument Analysis which is important to safety.

(FOE Brief at 8) rupture or leakage will not occur. San Onofre Unit 2 has suffered thousands of times

more indications of wear than

any unit with a replacement steam generator over one operation cycle (other than San Onofre Unit 3). (FOE

Brief at 21)

As discussed in Subsection III.E.6 above, this allegation is

factually incorrect, as shown by one of the attachments to

FOE's Brief. In any event, it

is irrelevant to the likelihood of malfunction of a steam

generator tube in Unit 2. As

discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at 70%

power. Therefore, there is

reasonable assurance that tube rupture or leakage will not

occur.

SCE has not presented an

analysis of how the company

plans to stop further

degradation of the tubes adjacent to the retainer bars.

(FOE Brief at 21; Large

Affidavit at 49)

As discussed in Subsection III.E.4 above, this allegation mischaracterizes the Restart

Report. SCE has plugged the tubes adjacent to the retainer bars, thereby removing them from service. Furthermore, through the use of stabilizers

in plugged tubes adjacent to the retainer bars, SCE is

assuring that any further

degradation of the tubes adjacent to the retainer bars will not adversely impact in-

service tubes.

The protection of in-service tubes identified to be at risk of FEI is via the preventative

plugging of tubes to form

buffer zones - these buffer

zones are intended to delay (not necessarily halt) the This allegation mischaracterizes SCE's

position. As discussed in

Subsection III.E.5 above, SCE

has shown that FEI will not

occur at 70% power in Unit 2.

Furthermore, the 115 Criteria in § 50.59(c)(2)

FOE Argument Analysis advancing FEI. (Large

Affidavit at 49)

Westinghouse Operational Assessment demonstrates that

FEI did not occur at Unit 2 at

100% power.

429 (iii) Result in more than a minimal increase in the consequences of an accident

previously evaluated in the final safety analysis report (as

updated) Compared to operating with undamaged steam generators as permitted under the current

operating license, the

proposed change to operate with degraded steam generator tubes would result in more than a minimal increase in the

frequency of occurrence and the consequences of an accident. (FOE Brief at 7)

As discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at

70% power. Therefore, there is reasonable assurance that tube rupture or leakage will not occur. Furthermore, as

discussed in Subsection III.E.2

above, the licensing basis for

SONGS already allows

operation with degraded tubes

and plugged tubes.

Because SCE has not determined what is causing the

variety of tube wear that has

occurred, it has not been able to demonstrate that operation at 70% power will reduce tube failure. (FOE Brief at 20)

This allegation mischaracterizes the Restart

Report on several accounts.

First, as discussed in

Subsections II.A and III.E.6 above, SCE has determined the cause of the TTW. SCE has also determined the cause

of the retainer bar vibration

and the other types of wear.

Additionally, as discussed in

Subsection III.E above, SCE has demonstrated that the tube performance criteria are

satisfied for operation of Unit

2 at 70% power. A multiple tube failure event, as described would, for all

phases of the reactor in-core fuel cycle, result in a As discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator

429 Westinghouse Operational Assessment at 4 (SCE Attachment 10).

116 Criteria in § 50.59(c)(2)

FOE Argument Analysis significant increase in the

offsite radiological

consequences over the single

tube burst event currently

considered in the FSAR.

(Large Affidavit at 50) tubes will continue to meet the tube performance criteria at

70% power. Therefore, there is reasonable assurance that an event involving multiple tube

ruptures will not occur. (iv) Result in more than a minimal increase in the consequences of a malfunction of an SSC important to safety

previously evaluated in the final safety analysis report (as

updated) A multiple tube failure event, as described would, for all

phases of the reactor in-core fuel cycle, most likely result in

a significant increase in the

off-site radiological

consequences. (Large

Affidavit at 51)

As discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at

70% power. Therefore, there is reasonable assurance that an event involving multiple tube

ruptures will not occur. (v) Create a possibility for an accident of a different type

than any previously evaluated in the final safety analysis

report (as updated)

The unprecedented incidence and uniqueness of the tube

degradation at both units indicates a new potential for multiple tube failures at Unit

2, a different type of accident than was likely considered under the FSAR previously.

(FOE Brief at 7-8, 20-21;

Large Affidavit at 51)

As discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at

70% power. Therefore, there is reasonable assurance that an event involving multiple tube

ruptures will not occur. (vi) Create a possibility for a malfunction of an SSC important to safety with a

different result than any

previously evaluated in the final safety analysis report (as

updated) The anomalously high tube wear incidences in Unit 2, combined with SCE's failure

to address many of the sources

of vibrations resulting in

degradation of the SG tubes in the restart plan, indicates that

restarting Unit 2 without repair creates a substantial increase in the likelihood of a malfunction in the steam

generators beyond that contemplated in the FSAR which is important to safety.

(FOE Brief at 8)

This allegation mischaracterizes the Restart

Report. As discussed in

Subsection III.E.4 above, SCE

and its contractors have evaluated non-TTW mechanisms and have shown that the accident leakage performance criteria are satisfied for the in-service tubes for operation at Unit 2 at

100% power.

117 Criteria in § 50.59(c)(2)

FOE Argument Analysis SCE has failed to demonstrate

why reducing the operation to

70% power would reduce the risk to the UFSAR level.

(FOE Brief at 22)

This allegation mischaracterizes the Restart

Report. As discussed in

Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at 70% power. During normal operating conditions, or under design

basis accident conditions, it is

possible that fluid jets could produce damage in adjacent

tubes via both droplet impact

and cavitation erosion. (Large

Affidavit at 52)

As discussed in Subsection III.E above, SCE has demonstrated that the in-service Unit 2 steam generator tubes will continue to meet the tube performance criteria at

70% power. Therefore, there is reasonable assurance that a

tube will not burst or leak. Replacement of the original Combustion Engineering SGs with the MHI RSGs is likely

to have influenced the plant

response to a loss of coolant accident (LOCA). In this

respect, the potential effects of failure of the RSGs to perform adequately in the event of a

LOCA have not been demonstrated. (Large

Affidavit at 52)

As discussed in Subsection III.E.5 above, SCE has evaluated the LOCA analysis

for operation at 70% power

and has concluded that it meets established acceptance

criteria and that the

radiological dose consequences remain bounded

by the dose consequences in the UFSAR. (vii) Result in a design basis limit for a fission product

barrier as described in the

FSAR (as updated) being exceeded or altered SCE has not demonstrated that the degraded steam generator

tubes in Unit 2 would be able to meet accident leakage performance criteria in the

event of a design basis accident, such as a main steam line break. (FOE Brief at 8, 22-23; Large Affidavit at 52-

53) As discussed in Subsection III.E above, this allegation mischaracterizes the Restart

Report. The operational assessments demonstrate the accident leakage performance criteria are satisfied for

operation at Unit 2 at 70%

power.

118 Criteria in § 50.59(c)(2)

FOE Argument Analysis SCE's response to the CAL

ignores the findings of AREVA, which identified a number of tube wear modes (not just TTW) on Unit 3 that failed the accident leakage performance criteria. (FOE

Brief at 23)

As discussed in Subsection III.E.4 above, this allegation mischaracterizes the Restart

Report. SCE and its

contractors have evaluated non-TTW mechanisms and

have shown that the accident leakage performance criteria are satisfied for the in-service tubes for operation at Unit 2 at

100% power. (viii) Result in a departure from a method of evaluation

described in the FSAR (as

updated) used in establishing

the design bases or in the safety analyses A reduction in the continuous running output of the nuclear plant represents a considerable departure for current practice and, hence, will require a substantial reev aluation of the nuclear safety case, particularly the reactor coolant circuit flows, reactor nuclear kinematics, and so on. (Large

Affidavit at 54)

This allegation does not identify any departure from a method of evaluation in the UFSAR. A re-evaluation using the existing methods of

evaluation in the UFSAR does

not require a license amendment per 10 C.F.R. §

50.59(c)(2)(viii).

In any event, as discussed in Subsection III.E above, SCE has evaluated the safety

analysis for operation at 70%

power and has concluded that it meets established acceptance criteria and that the

radiological dose consequences remain bounded

by the dose consequences in the UFSAR. The plant operating

procedures have been changed to enable operators to commence a reactor shutdown at a leakage level less than that

allowed by the Technical

Specification, although there is no statement of any assessment undertake to determine potential impacts of

this revised procedure. In this This allegation does not identify any departure from a method of evaluation in the UFSAR. In any event, as discussed in Subsection III.E.5 above, the revision in the leakage

procedure is a conservative

change. It therefore does not

adversely affect any safety 119 Criteria in § 50.59(c)(2)

FOE Argument Analysis respect, the potential effects of this change on other systems and components does not seem to have been evaluated.

(Large Affidavit at 54) function and therefore does not require a license amendment.

SCE refers to upgrading the

VLPMS but it is not stated

how this is to be achieved and

how the transduced signal

output (alarm points) are to be

acted upon. (Large Affidavit

at 54-55)

This allegation does not identify any departure from a method of evaluation in the UFSAR. In any event, as discussed in Subsection III.E.6 above, this allegation is factually

incorrect and is outside the

scope of the CAL.

120 Appendix C SCE Attachment List

1. Affidavit of Richard Brabec (Jan. 30, 2013)

2. Affidavit of Vickram Nazareth (Jan. 30, 2013)

3. Letter from E. Collins, NRC, to P. Dietrich, SCE, Confirmatory Action Letter - San Onofre Nuclear Generating Station, Units 2 and 3, Commitments to Address Steam Generator Tube Degradation, CA L 4-12-001 (Mar. 27, 2012) ("CAL")

4. Letter from P. Dietrich, SCE, to E. Collins, NRC, Confirmatory Action Letter - Actions to Address Steam Generator Tube Degradation (Oct. 3, 2012) ("CAL Response Letter")

5. MHI Document L5-04GA564, Tube Wear of Unit-3 RSG Technical Evaluation Report (Rev. 9, Oct. 1, 2012) ("Technical Evaluati on Report") (provided as Restart Report, Enclosure 2, Attachment 4) (excerpts)

6. Letter from J. Hall, NRC, to R. Ridenoure, SCE, San Onofre Nuclear Generating Station, Units 2 and 3 - Issuance of Amendments Re:

Technical Specification Changes in Support of Steam Generator Replacement (TAC Nos. MD9160 and MD 9161) (June 25, 2009 (excerpts)

7. Letter from P. Dietrich, SCE, to E. Collins, NRC, Steam Generator Return-to-Service Action Plan, San Onofre Nuclear Generating Station (Mar. 23, 2012) ("March 23 Return to Service Action Plan")

8. San Onofre Nuclear Generating Station Unit 2 Return to Service Report (Oct. 3, 2012) ("Return to Service Report") (provi ded as Restart Report, Enclosure 2)

9. SONGS Unit 2 Technical Specifications (excerpts)

10. Operational Assessment of Wear Indicatio ns in the U-bend Region of San Onofre Nuclear Generating Station Unit 2 Replacement Steam Generators (Rev. 3, Oct. 2012) ("Westinghouse Operational Assessment") (pro vided as Restart Report, Enclosure 2, Attachment 6, Appendix D) (excerpts)

11. Operational Assessment for SONGS Unit 2 SG for Upper Bundle Tube-to-Tube Wear Degradation at End of Cycle 16 (Oct. 3, 2012) ("Intertek Operational Assessment") (provided as Restart Report Attach ment 6, Appendix C) (excerpts)

12. SONGS U2C17 Steam Generator Operational Assessment Tube-to-Tube Wear (Oct. 3, 2012) ("Tube-to-Tube Report") (provided as Restart Report Attachment 6, Appendix B) (excerpts)

13. NRC Enforcement Policy (June 7, 2012) (excerpts) 121 14. Nuclear Regulatory Commission Enforcemen t Manual (Rev. 7, Oct. 1, 2010) (excerpts)

15. NRC Inspection Manual Chapter 0351, Implementation of the Reactor Oversight Process at Reactor Facilities in an Extended Shutdown Condition for Reasons Other than Significant Performance Problems (Apr. 5, 2011)

16. NRC Inspection Procedure 71111.17, Evaluations of Changes, Tests, or Experiments and Permanent Plant Modifications (Oct. 31, 2008)

17. Letter from W. Russell, NRC, E. Brown, Public Service of New Hampshire, Confirmatory Action Letter (CAL) 89-11 (June 23, 1989)

18. SONGS UFSAR (excerpts)

19. SONGS Unit 2 Facility Operating License

20. NEI 96-07, Guidelines for 10 CFR 50.59 Eval uations (Rev. 1, Nov. 2000) (excerpts)

21. NRC Regulatory Guide 1.187, Guidance for Implementation of 10 CFR 50.59, Changes, Tests, and Experiments (Nov. 2000)

22. Exelon Nuclear Slides, Quad Cities Extended Power Uprate (EPU) Meeting, Introduction (Mar. 22, 2007)

23. Quad Cities Power Reactor Status Reports

24. Seabrook Power Reactor Status Reports

25. SONGS U2C17 Steam Generator Operational Assessment (Rev. 0, Oct. 3, 2012) ("SCE Operational Assessment") (provided as Restart Report, Enclosure 2, Attachment 6)

26. SONGS U2C17 Outage - Steam Generator Operational Assessment (Rev. 0, Oct. 1, 2012) ("Non-TTW Operational Assessment") (provided as Restart Report, Enclosure 2, Attachment 6, Appendix A) (excerpts)

27. Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 15) Regarding Confirmatory Action Letter Response (Jan. 9, 2013)

28. Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 11) Regarding Confirmatory Action Letter Response (Jan. 21, 2013)

29. Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 13) Regarding Confirmatory Action Letter Response (Jan. 18, 2013)

30. NEI 97-06, Steam Generator Program Guidelines (Rev. 3, Jan. 2011) (excerpts)

31. NRC Augmented Inspection Team Report for SONGS (July 18, 2012) ("AIT Report") (excerpts) 122 32. SONGS Unit 2 Technical Speci fication Bases (excerpts)

33. Letter from R. St. Onge, SCE, to NRC, Response to Request for Additional Information (RAI 18) Regarding Confirmatory Action Letter Response (Jan. 24, 2013)

34. Letter from J. Hall, NRC, to P. Dietrich, SCE, San Onofre Nucl ear Generating Station, Unit 2 - Request for Additional Information Regarding Response to Confirmatory Action

Letter (TAC No. ME9727) (Dec. 26, 2012)

35. EPRI 1019038, Steam Generator Management Program: Steam Generator Integrity Assessment Guidelines (Rev. 3, Oct. 2008) (excerpts)

36. NUREG-0800, Standard Review Plan § 15.6.3 (Rev. 2, July 1981)

37. EPRI 1012987, Steam Generator Management Program: Steam Generator Integrity Assessment Guidelines (Rev. 2, July 2006) (excerpts)

DB1/ 72844644 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 COMPANY )

)

(San Onofre Nuclear Generating Station, ) January 30, 2013 Units 2 and 3) )

) CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of "Southern California Edison Company's Brief on Issues Referred by the Commission" and all of the referenced attachments were filed through the E-Filing system.

Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Phone: 202-739-5059

Fax: 202-739-3001 E-mail: sburdick@morganlewis.com

Counsel for Southern California Edison Company