ML13030A496

NRC Staff'S Answering Brief in the San Onofre Nuclear Generating Station CAL Proceeding

ML13030A496
Person / Time
Site:	San Onofre
Issue date:	01/30/2013
From:	Catherine Kanatas, Roth D, Matthew Smith NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML13030A494	List: ML13030A495 ML13030A496 ML13030A498 ML13030A501
References
RAS 24063, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01
Download: ML13030A496 (79)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(San Onofre Nuclear Generating Station )

Units 2 and 3) )

)

NRC STAFFS ANSWERING BRIEF IN THE SAN ONOFRE NUCLEAR GENERATING STATION CAL PROCEEDING David E. Roth Catherine E. Kanatas Maxwell C. Smith Counsel for NRC Staff January 30, 2013

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 LEGAL STANDARDS ................................................................................................................... 6 I. Statutory and Regulatory Authority for License Amendments .......................................... 6 A. Provisions of the Atomic Energy Act Related to License Amendments ...................... 6 B. License Amendment Regulations................................................................................ 8 II. De facto License Amendments ....................................................................................... 10 STAFFS ARGUMENT ................................................................................................................ 14 I. Response to Issue i.: FOE Has the Burden of Persuasion In Resolving the Question of Whether the Staffs March 27, 2012 CAL Issued to SCE Constitutes a De Facto License Amendment.................................................................................................. 14 A. FOE is the Proponent of an Order Under 10 C.F.R. § 2.325 and Therefore Has the Burden of Persuasion ................................................................................................ 15 B. FOE Also Has the Threshold Burden of Production on its CAL Claims and Has Not Met that Burden ......................................................................................................... 18 C. FOE Has the Burden to Provide Clear Evidence that Staffs Issuance of the CAL to SCE Was Improper ................................................................................................... 20 D. Even if the Staff Had the Burden of Persuasion on the Issue, the Staffs Filings Show By a Preponderance of the Evidence That the CAL Issued to SCE Is Not a De Facto License Amendment.................................................................................................. 22 II. Response to Issue ix.: Staffs Views of the Meaning of the March 27, 2012 CAL Issued to SCE Given the NRC Enforcement Manuals Description of CALs ............. 23 A. History of Confirmatory Action Letters as Part of NRCs Enforcement Process ....... 24

1. Atomic Energy Commissions Enforcement Procedures ..................................... 25

2. The NRC's Enforcement Policy Describes CALs as Confirming Steps Licensees Plan to Take to Ensure Compliance with an Existing License ................................................................................................................ 26

-ii-

3. The Commission's 1989 Enforcement Rulemaking Continued to Describe CALs as Confirming Licensees Intended Actions to Ensure Compliance With Existing Licenses .............................................................................................................. 28

4. The Commission's 1995 Decision to Remove the Enforcement Policy from the Code of Federal Regulations Did Not Affect the Meaning or Purpose of CALs ................................................................................................. 29

5. The Commissions Perry Decision....................................................................... 30

6. The NRC's Current Enforcement Manual Describes CALs as Enforcing Existing Licenses ................................................................................................. 31 B. The Actions Presented in SCEs March 23, 2012 Return to Service Plan and Memorialized in the March 27, 2012 CAL Are Within the Current Licensing Basis ... 32 C. SCEs October 3, 2012 Return to Service Plan Does Not Suggest that the March 27, 2012 CAL is a De Facto License Amendment and is Not Itself a De Facto License Amendment .................................................................................................... 34 III. Response to Issue ii.: The NRCs Decision Under 10 C.F.R. § 2.206 Should Have No Impact on Whether the March 27, 2012 CAL is a De Facto License Amendment .... 36 IV. Response to issue iii.: The Extent to Which 10 C.F.R. § 50.59(c)(1) and (c)(2) Apply in Determining Whether the CAL Constitutes a De Facto License Amendment ....... 38 A. Background of 10 C.F.R. § 50.59 .............................................................................. 39 B. Operation of 10 C.F.R. § 50.59 ................................................................................ 41 C. Applicability of 10 C.F.R. § 50.59 to this Proceeding ............................................... 43 D. FOE Has Not Shown That the CAL Authorizes Any Changes that Would Require a License Amendment Under 10 C.F.R. § 50.59 ......................................................... 47

1. FOE Has Not Shown That the CAL Itself Would Require a License Amendment Under 10 C.F.R. § 50.59 ........................................................................................... 48

2. FOE Has Not Shown that the October 3, 2012 Return to Service Plan Would Require a License Amendment Under 10 C.F.R. § 50.59 ..................................................... 49 V. Response to Issue iv.: The Final Safety Analysis Report (FSAR) Analyzes a Steam Generator Tube Failure Event Assuming One Ruptured Tube and an Assumed Primary-to-Secondary Leak Rate, Which Is an Analysis Supporting the Staffs Reasonable Assurance Determination ...................................................................... 53 VI. Response to Issues v. - viii.: SCEs Tube-to-Tube Report ....................................... 56

-iii-A. The Details of the Tube-to-Tube Report are Not Relevant to Whether the March 27, 2012 CAL Issued to SCE Constitutes a De Facto License Amendment .................. 57 B. Because the Staff Has Not Yet Reached a Position on Whether to Approve SCEs October 3, 2012 Return to Service Plan, the Staff Cannot Take a Position on Several of the Issues Before the Board ................................................................................. 60 C. The Board Need Not Resolve Issues v. Through viii. to Answer the Narrow Questions Before It.................................................................................................... 63 VII. FOEs Petition to Intervene, Even as Supplemented By FOEs Opening Brief, Does Not Meet 10 C.F.R. § 2.309 ...................................................................................... 64 A. The Boards Resolution of the First Question Referred by the Commission Will Necessarily Resolve the Second ............................................................................. 65 B. FOE Has Not Provided Adequate Support for Its Contention Under § 2.309(f)(1) .. 66 C. FOEs Attempt to Amend Its Contention is Untimely ............................................... 69 D. FOE Has Not Established Standing Under 10 C.F.R. § 2.309(d) ............................ 70 CONCLUSION ............................................................................................................................ 73

January 30, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(San Onofre Nuclear Generating Station )

Units 2 and 3) )

)

NRC STAFFS ANSWERING BRIEF IN THE SAN ONOFRE NUCLEAR GENERATING STATION CAL PROCEEDING INTRODUCTION Pursuant to the Atomic Safety and Licensing Boards (Board) December 7, 2012, December 20, 2012, and December 21, 2012 orders,1 the staff of the Nuclear Regulatory Commission (Staff) files its brief regarding the Confirmatory Action Letter (CAL) proceeding for San Onofre Nuclear Generating Station (SONGS), Units 2 and 3.2 The CAL proceeding relates to two issues referred by the Commission to the Board in Southern California Edison (San Onofre Nuclear Generating Station Units 2 and 3), CLI-12-20, 76 NRC __ (2012) (slip op.) (CLI-12-20). Those issues are: whether: (1) the [March 27, 2012 CAL] issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under [s]ection 189a [of the Atomic Energy Act]; and, if so, (2) 1 Order (Conference Call Summary and Directives Relating to Briefing) (Dec. 7, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12342A328 (Dec. 7, 2012 Briefing Order); Order (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension) (Dec.

20, 2012) (ADAMS Accession No. ML12355A452); Order (Directing Parties to Brief Additional Issue (Dec. 21, 2012) (ADAMS Accession No. ML12356A241) (Dec. 21, 2012 Briefing Order).

2 Dec. 7, 2012 Briefing Order at 5-7 (requesting briefs on the two questions referred by the Commission to the Board).

whether [Friends of the Earths (FOE) Petition to Intervene] meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309.3 The Boards December 7, 2012 Briefing Order required the parties to brief eight questions and topical areas it considered related to the two issues referred by the Commission in CLI-12-20.4 The Boards December 21, 2012 Briefing Order provided an additional topic area for the parties to address.5 Before addressing those issues, the Staff briefly discusses the statutory and regulatory provisions associated with license amendments and Commission case law on de facto license amendments. The Staff then explains why the March 27, 2012 CAL was not a de facto license amendment because it did not expand the operating authority in the operating licenses for SONGS Units 2 and 3. In so doing, the Staff addresses the nine issues outlined by the Boards Briefing Orders. Finally the Staff discusses why FOEs Petition to Intervene is moot and, in any event, does not meet 10 C.F.R. § 2.309s standing and contention admissibility requirements.6 BACKGROUND On January 9, 2012, Southern California Edison (SCE or Licensee) shut down SONGS Unit 2 for a scheduled refueling outage.7 On January 31, 2012, in response to radiation alarms in the secondary plant systems, SONGS Unit 3 operators diagnosed a steam generator tube leak of about 82 gallons per day and, as directed by plant procedures, shut down Unit 3.8 On March 23, 2012, SCE sent to the NRC its "Steam Generator Return-to-Service Action Plan" (March 23, 2012 Return to 3

San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

4 See Dec. 7, 2012 Briefing Order at 5-7 (noting that the parties shall include discussions in their briefs that address eight questions and topical areas).

5 See Dec. 21, 2012 Briefing Order at 1-2.

6 See San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

7 NRC Integrated Inspection Report 05000361/2012002 and 05000362/2012002, Enclosure at 5 (May 8, 2012) (ADAMS Accession No. ML12129A562).

8 Id. Enclosure at 34.

Service Plan) and committed to execute the plan prior to returning Units 2 and 3 to power operation.9 On March 26, 2012, the NRC confirmed its understanding of the actions the licensee planned by phone. And, on March 27, 2012, the NRC memorialized this understanding in a CAL which confirmed the actions to be taken prior to restarting either unit.10 Specifically, the CAL confirmed that 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 completed its review of the actions from the March 23, 2012 Return to Service Plan.11 On June 18, 2012, FOE submitted an intervention petition challenging, among other things, the CAL issued by the NRC to SCE on March 27, 2012.12 FOE argued that the Commission should either recognize that the CAL process is a de facto license amendment proceeding requiring an adjudicatory hearing or, in the alternative, exercise its inherent supervisory authority to convene a hearing.13 FOE also claimed that SCEs replacement of the steam generators at SONGS in 2010 and 2011 required a license amendment with an attendant opportunity to request a hearing.14 The Staff 9

Letter from Peter T. Dietrich, Senior Vice President & Chief Nuclear Officer, Southern California Edison Company to Elmo E. Collins, Regional Administrator, Region IV, USNRC, subject: Docket Nos. 50-361 and 50-362, Steam Generator Return-to-Service Action Plan, San Onofre Nuclear Generating Station (Mar. 23, 2012) (ADAMS Accession No. ML12086A182) (March 23, 2012 Return to Service Plan).

10 Letter from Elmo E. Collins, Regional Administrator, Region IV, USNRC, to Peter T. Dietrich, Senior Vice President and Chief Nuclear Officer, Southern California Edison Company, subject: Confirmatory Action Letter - San Onofre Nuclear Generating Station, Units 2 and 3, Commitments to Address Steam Generator Tube Degradation, at 2 (Mar. 27, 2012) (ADAMS Accession No. ML12087A323) (March 27, 2012 CAL).

11 Id. The CAL noted that the permission to resume power operations would be formally communicated to SCE in written correspondence. Id. at 2.

12 "Petition to Intervene and Request for Hearing by Friends of the Earth" (June 18, 2012) (Petition to Intervene). The Petition to Intervene was supported by several declarations. The documents are in a single file at ADAMS Accession No. ML12171A409. FOE also submitted an application to stay on June 18, 2012. See "Application to Stay Any Decision to Restart Units 2 or 3 at the San Onofre Nuclear Generating Station Pending Conclusion of the Proceedings Regarding Consideration of the Safety of the Replacement Steam Generators,"

(June 18, 2012).

13 Petition to Intervene at 2.

14 Id.

answered and opposed FOE's Petition to Intervene on July, 13, 2012.15 On October 3, 2012, SCE submitted its Unit 2 Return to Service Plan (October 3, 2012 Return to Service Plan).16 FOE referenced this plan in an October 16, 2012 letter to the Commission.17 On November 8, the Commission referred to the Board the questions of whether: (1) the [March 27, 2012 CAL] issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under

[s]ection 189a [of the Atomic Energy Act]; and, if so, (2) whether [FOEs Petition to Intervene] meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309.18 The Commission separately referred FOEs claims regarding the 2010 and 2011 steam generator replacements to the Staff for appropriate action under 10 C.F.R. § 2.206.19 The Commission denied FOEs stay and discretionary hearing requests.20 The Board held a conference call to discuss administrative matters in the CAL proceeding on December 3, 2012,21 and issued a Briefing Order on December 7, 2012. The Boards December 7, 2012 Briefing Order (1) summarized the December 3, 2012 conference call, (2) directed further briefing and provided a proposed briefing schedule, (3) provided directives related to briefing, (4) 15 NRC Staffs Answer to Petition to Intervene and Request for Hearing by Friends of the Earth on the Resart of the San Onofre Reactors, (July 13, 2012) (ADAMS Accession No. ML12195A330) (Staffs Answer to Petition to Intervene). The Staff also opposed FOEs stay request. See "NRC Staffs Answer To Friends off the Earth's Application To Stay Any Decision To Restart Unit 2 or 3 at the San Onofre Nuclear Generating Station Pending Conclusion of the Proceedings Regarding Consideration of the Safety of the Replacement Steam Generators." (June 28, 2012) (ADAMS Accession No. ML12180A624).

16 See Peter T. Dietrich, Senior Vice President & Chief Nuclear Officer, SCE, Letter to Elmo E. Collins, Regional Administrator, Region IV, US NRC, Docket No. 50-361, [CAL] - Actions to Address Steam Generator Tube Degradation [SONGS], Unit 2 (Oct. 3, 2012) (the entire return to service plan is available in a package at ADAMS Accession No. ML122850320) (October 3, 2012 Return to Service Plan). SCEs October 3, 2012 submittal also included two enclosures that contain redacted proprietary information: (1) Enclosure 1, List of Commitments, and (2) Enclosure 2, Unit 2 Return to Service Plan.

17 Letter Requesting that the NRC Decide Petition to Intervene and Application to Stay any Decision to Restart (Oct. 16, 2012) (ADAMS Accession No. ML12290A049) at 1 n. 2.

18 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

19 Id. at 4.

20 Id. at 5-6.

21 Transcript of Southern California Edison Company, San Onofre Station, Units 2 and 3, December 3, 2012, Pages 1-39 (Dec. 3, 2012) (ADAMS Accession No. ML12342A154) (Transcript).

directed the parties to develop a Non-Disclosure Agreement to govern the disclosure of certain proprietary documents,22 and (5) listed questions that parties should address in their briefs.23 In response to the December 7, 2012 Briefing Order, SCE filed a joint motion for a non-disclosure agreement,24 which the Board granted on December 10, 2012.25 Additionally, on December 11, 2012, FOE filed a motion asking the Board to (1) clarify the scope of the documents that are subject to disclosure in this case and (2) amend the proposed briefing schedule,26 which the Staff and SCE timely answered.27 On December 20, 2012, the Board issued an order granting in part and denying in part FOEs motion for clarification and extension.28 The Boards December 20, 2012 order set the briefing schedule on the issues referred to it by the Commission in CLI-12-20 as follows:

(1) January 11, 2013 - submission of FOEs opening brief, (2) January 18, 2013 - submission of Natural Resources Defense Council (NRDC) amicus curae brief, (3) January 30, 2013 - submission of SCE and NRC Staffs answers, (4) February 6, 2013 - submission of FOEs and NRDCs replies.29 22 The Board directed SCE to prepare and execute a Joint Non-Disclosure Agreement regarding (1) the proprietary versions of the documents in SCEs response to the CAL, [and] (2) the proprietary versions of the other documents SCE generated pursuant to the CAL that are located in SCEs [October 3, 2012 Return to Service] Plan. Dec. 7, 2012 Briefing Order at 4 (internal citations omitted).

23 Dec. 7, 2012 Briefing Order at 6-7.

24 Joint Motion for Entry of a Protective Order (Dec. 7, 2012) (ADAMS Accession No. ML12342A455).

25 See Order (Granting Joint Motion for Entry of a Protective Order and Non-Disclosure Agreement)

(Dec. 10, 2012) (ADAMS Accession No. ML12345A372).

26 Petitioners Motion to Amend the Proposed Scheduling Order and Clarify Scope of Disclosure (Dec.

11, 2012) (ADAMS Accession No. ML12346A484). Specifically, the purposes of FOEs Motion were to (1) identify the proprietary documents the Board has ordered Respondent [SCE] to provide the Board and the other parties; and (2) give a modest amount of time prior to briefing to allow counsel and their expert to review and evaluate the documents to be made available under the Boards Order. Id. at 1.

27 Dec. 12, 2012 Board Order at 2 (providing deadline for filing answer). See NRC Staff Answer (Dec.

14, 2012) (opposing FOE seeking discovery from Staff and documents outside scope of proceeding but not opposing clarification or reasonable extension); SCE Answer Opposing FOEs Motion (Dec. 13, 2012).

28 Order (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension) (Dec.

20, 2012) (ADAMS Accession No. ML12355A452) (granting request for clarification; denying request that SCE be directed to disclose unredacted versions of proprietary documents other than those specified in Dec. 7, 2012 Briefing Order; denying request that Staff be directed to disclose documents; granting in part FOEs request for an extension of the briefing schedule).

29 Id. at 5.

The Board issued an order on December 21, 2012 requiring the parties to brief an additional issue related to the description of CALs in the NRCs enforcement manual.30 FOE filed its opening brief on January 11, 2013 (FOEs Opening Brief)31 and NRDC filed its amicus brief on January 18, 2013 (NRDCs Amicus Brief).32 The Staff hereby files its answering brief.

LEGAL STANDARDS I. Statutory and Regulatory Authority for License Amendments A. Provisions of the Atomic Energy Act Related to License Amendments Section 101 of the Atomic Energy Act of 1954, as amended (AEA), provides that it is unlawful for any person within the United States to use any utilization or production facility except under and in accordance with a license issued by the Commission pursuant to section 103 or section 104.33 Thus, it is important that the parameters of a licensees operating authority be clear and unambiguous.

Section 182a. of the AEA addresses what must be included in a reactor operating license, including technical specifications. Section 182a. provides the Commission authority to issue 30 Dec. 21, 2012 Briefing Order at 2.

31 Opening Brief of Petitioner Friends of the Earth (Non-Proprietary) (Jan. 11, 2013) (ADAMS Accession No. ML13011A308) (FOEs Opening Brief). FOEs Opening Brief included 4 attachments: Affidavit of John Large (Redacted) (Large Affidavit); Curriculum Vitae and Affidavit of Arnold Gundersen (ML13011A306)

(Gundersen Affidavit); Hirsch Report (ML13011A305) (Hirsch Report); and FOEs June 18, 2012 Petition to Intervene (ADAMS Accession No. ML13011A307) (Petition to Intervene). The January 11, 2013 version of the redacted Large Affidavit contained proprietary information. FOE submitted a corrected redacted Large Affidavit on January 23, 2013, which is what is cited to herein and is available at ADAMS Accession No. ML13023A137.

32 Natural Resources Defense Councils Amicus Response in Support of Friends of the Earth (Jan. 18, 2013) (ADAMS Accession No. ML13018A445) (NRDCs Amicus Brief). On January 18, 2013, FOE notified the Board that it had identified proprietary material in the redacted version of the Large affidavit. On January 22, 2013, SCE filed a motion for sanctions. See Southern California Edison Companys Motion for Sanctions Against Friends of the Earth for Violating the Protective Order (Jan 22, 2013) (ADAMS Accession No.

ML13022A378). The Staff and FOE filed timely answers to the motion pursuant to the Boards Jan. 23, 2012 Order. See Friends of the Earths Answer to Southern California Edison Companys Motion for Sanctions Against Friends of the Earth (Jan. 25, 2013)(ADAMS Accession No. ML13025A197); NRC Staffs Answer to SCEs Motion for Sanctions (Jan. 28, 2013).

33 42 U.S.C. § 2131. Sec. 103 of the AEA provides for commercial licenses and Sec. 104 provides for medical therapy and research and development licenses. Under the Administrative Procedure Act, 5 U.S.C. § 551, et seq., a license is a particular type of Order, which is used to grant some form of permission. 5 U.S.C. § 551(6), (8).

regulations governing technical specificationsand other such information necessary to determine whether potential licensees activities will be in accord with the common defense and provide adequate protection to public health and safety. These technical specifications are part of any operating license issued, and [t]he Commission may at any time after the filing of the original application, and before the expiration of the license, require further written statements in order to enable the Commission to determine whether the application should be granted or denied or whether a license should be modified or revoked.34 Pursuant to its Sec. 182a. authority, the NRC issued 10 C.F.R. § 50.36, which governs technical specifications. Technical specifications (TS) include those plant conditions most important to safety.35 Because TSs are specific license requirements, a licensee must obtain a license amendment to depart from the TS.36 In addition, the Commissions regulations also provide for a change mechanism for licensees to make changes to the facility that do not involve a change to a TS, assuming other parameters are met.37 See 10 C.F.R. § 50.59.

Section 183 of the AEA outlines the terms of licenses, and notes that [e]ach license shall be in such form and contain such terms and conditions as the Commission may, by rule or regulation, prescribe to effectuate the provisions of [the AEA]. Sec. 189a. of the AEA provides that [i]n any proceeding under the [AEA], for the granting, suspending, revoking, or amending of any license or construction permit, the Commission shall grant a hearing upon the request of any person whose 34 42 U.S.C. § 2232. In addition, all applications and statements shall be signed by the applicant or licensee and that applications for, and statements made in connection with, licenses under sections 103 and 104 shall be made under oath or affirmation. Id.

35 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 352 (2001).

36 See 10 C.F.R. §§ 50.90 - 50.92 (governing license amendments).

37 10 C.F.R. § 50.59; see infra Staffs Argument,Section IV.

interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.38 While a licensee must comply with its license and NRC regulations, the Commission recognizes that plants will not operate trouble-free.39 Thus, Criterion XVI, Appendix B to Part 50, Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants, states:

[m]easures shall be established to assure that conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances are promptly identified and corrected. The appropriate response to an identified deficiency can and should vary, depending on the safety significance of the deficiency.40 B. License Amendment Regulations The regulations in 10 C.F.R. §§ 50.90-50.92 provide the standard applicable to license amendments. Section 50.90 authorizes applications to amend existing operating licenses or construction permits for production or utilization facilities.41 Section 50.91 provides for notice and comment and state consultation regarding license amendment applications, while § 50.92 provides the standard for issuing an amendment. As one board has explained, under § 50.92(a):

38 42 U.S.C. § 2239. See 10 C.F.R. § 2.309 (outlining the Commissions standing and contention admissibility requirements which a petitioner must meet before being granted a § 189a. hearing).

39 Indiana Michigan Power Co. (Donald C. Cook Nuclear Plant, Units 1 & 2), DD-99-3, 49 NRC 161, 168 (1999). See also Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,945 (Dec. 13, 1991) (The Commission cannot conclude that . . . all plants have been and at all times in the future will operate in perfect compliance with all NRC requirements.).

40 Cook, DD-99-3, 49 NRC at 168. Courts have repeatedly held that the NRCs regulatory scheme is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720, 727-28 (3d Cir. 1985) (citing Westinghouse Electric Corp. v. NRC, 598 F.2d 759, 771 (3d Cir.1979) (quoting Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir.1968))). See also Carstens v. NRC, 742 F.2d 1546, 1551 (D.C.Cir.1984).

41 Consumers Energy Co., Nuclear Mgmt. Co., LLC, Entergy Nuclear Palisades, LLC, & Entergy Nuclear Ops., Inc. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 405 n. 3 (2007). See also 10 C.F.R. § 50.90 (providing that [w]henever a holder of a license, including a construction permit and operating license under this part, desires to amend the license or permit, application for an amendment must be filed with the Commission, as specified in [10 CFR 50.4], fully describing the changes desired, and following as far as applicable, the form prescribed for original applications.).

determinations on whether to grant an applied-for license amendment are to be guided by the considerations that govern the issuance of initial licenses or construction permits to the extent applicable and appropriate. Both the common standards for licenses and construction permits in section 50.40(a), and those specifically for issuance of operating licenses in section 50.57(a)(3), provide that there must be reasonable assurance that the activities at issue will not endanger the health and safety of the public.42 Thus, licensees must submit a license amendment request if they seek to amend their license,43 a condition in their license, or a technical specification.44 Licensees must also submit a license amendment request if a change they are making under

§ 50.59 requires staff approval in the form of a license amendment.45 Specifically, under § 50.59(c)(1):

A licensee may make changes in the facility as described in the final safety analysis report (as updated), make changes in the procedures as described in the final safety analysis report (as updated), and conduct tests or experiments not described in the final safety analysis report (as updated) without obtaining a license amendment pursuant to § 50.90 only if:

(i) A change to the technical specifications incorporated in the license is not required, and (ii) The change, test, or experiment does not meet any of the criteria in paragraph (c)(2) of this section.

In short, a license amendment requirement can be triggered by a § 50.59 analysis if a change to the facility as described in the updated final safety analysis report (UFSAR) meets any of the criteria of 42 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), LBP-05-10, 61 NRC 241, 262 (2005).

43 See Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-08-17, 68 NRC 231, 233 (2008) (noting request for power uprate requires amendment to facility's operating license, and therefore must meet NRC's regulatory requirements for issuance of license amendment).

44 See 42 U.S.C. § 2232 (providing that TSs are conditions of licenses). See Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), Cleveland Elec. Illuminating Co. and Toledo Edison Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), LBP-91-38, 34 NRC 229, 238-39 (1991), aff'd in part and appeal denied, CLI-92-11, 36 NRC 47, 53-54 (1992) (holding that licensee request to suspend the antitrust conditions in its operating license is a license amendment within meaning of § 189a.(1) of AEA).

45 For a complete discussion of the requirements in § 50.59(c)(2), see infra Staffs Argument,Section IV.

10 C.F.R. § 50.59(c)(2) indicating that the change would result in the likelihood of an increase in the frequency or consequences of an accident or certain malfunctions.

In any case, the NRC will grant an amendment only if it meets all applicable regulatory requirements and acceptance criteria anddoes not otherwise harm the public health and safety or the common defense and security.46 Typically, the Staff reviews the request and issues a safety evaluation which grants (or denies) the license amendment. Alternatively, the Commission can issue an order amending any license as it deems necessary.47 II. De facto License Amendments Commission actions not formally labeled license amendments can also be de facto license amendments that trigger section 189a. hearing rights. Specifically, courts have found that Commission actions that change a licensees authority under its license without formally amending the license are effectively license amendments.48 Whether or not something is a de facto license amendment is a highly fact specific question, but centers on whether or not the action allows the licensee to engage in activities beyond the ambit of their original licenses.49 If so, the reviewing court is likely to find that the action is a license amendment.50 But in a 1996 decision, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), the Commission made clear that not all agency approvals granted to licensees outside the section 50.90 license amendment process 46 See Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant Unit 1), LBP-02-14, 56 NRC 15, 35 (2002).

47 See, e.g., 42 U.S.C. § 2201. Contrary to NRDCs view, the NRC does not attempt to avoid the trouble and expense of a license amendment proceeding. NRDCs Amicus Brief at 13.

48 See, e.g., Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 294-95 (1st Cir. 1995).

49 Id. at 295. In CAN, the D.C. Circuit held that a Commission policy change was equivalent to a license amendment because it undeniably supplemented the operating authority of extant licenseswhich might henceforth engage in major forms of component dissembly beyond the ambit of their original licenses. Id.

50 See, e.g., Sholly v. NRC, 651 F.2d 780, 791 (D.C. Cir. 1980) (per curiam), vacated on other grounds, 459 U.S. 1194 (1983) (holding that Commission order permitting venting of radioactive gas from TMI-2 granted the licensee authority to do something that it otherwise could not have done under the existing license authority and so was license amendment under Section 189 of AEA).

constitute de facto license amendments.51 Under Perry, if the NRC approval does not permit the licensee to operate in any greater capacity than originally prescribed and all relevant safety regulations and license terms remain applicable, the NRC approval does not amend the license.52 Notably, the Perry case cites several restart decisions as examples of NRC approvals that did not trigger section 189a. hearing rights.53 For example, Perry notes that there was no license amendment in Three Mile Island Alert, Inc., in which the Third Circuit Court of Appeals considered whether the Commissions order lifting a license suspension and authorizing restart of Three Mile Island Unit 1 was a license amendment.54 In TMI Alert, Petitioners claimed that the order, which contained 155 conditions for restart, was a license amendment. NRC staff argued that the order was an enforcement action, not a license amendment.55 The court held that the order, which stated that TMI-1 could be safely restarted under certain stipulated conditions,56 was not a license amendment because it did not grant additional authority to the licensee. Instead, it allowed the licensee to utilize its existing authority during the pendency of an ongoing Commission proceeding.57 Notably, the court said that ultimately, there may need to be amendments to TMI-1s operating license, but the 51 See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 327 (1996).

52 Id.

53 Id.

54 TMI Alert, 771 F.2d at 729-30. The order at issue was lifting an immediately effective order requiring that TMI-1 remain shut down until the Commission, after a public hearing, determined that there was reasonable assurance that the licensee could restart and operate the unit without endangering the health and safety of the public. Id. at 722 (citing 44 Fed. Reg. 40,461 (July 10, 1979)). There were 155 stipulated conditions, id. at 727, which included Licensee commitments, NRC Staff requirements and [Atomic Safety and Licensing Board]

imposed requirements. Id. at 725. See also id. at 727 (outlining additional conditions imposed on the licensee regarding personnel).

55 Id. at 728-29. Under 10 CFR 2.200-206 (1985) the Commission is authorized to institute enforcement proceedings to impose requirements by order, or to modify, suspend, or revoke a license, or to take other action as may be proper. Id. (citing 10 C.F.R. § 2.200 (1985) and describing the implications of an immediately effective order).

56 Id. at 722.

57 Id. at 729.

May 29, 1985 order did not purport to impose such amendments.58 Instead, the court explained that:

The sole effect of [the May 29, 1985 Order] is to lift the 1979 shutdown orders; the licensee has no greater operating authority by virtue of the May 29, 1985 order than it had on July 1, 1979. It is true that the Commission, as a condition of lifting its shutdown order, has imposed numerous restrictions on the way in which the licensee may exercise its existing authority, but petitioners have pointed us to nothing in this record which indicates that the Commission has purported to effect amendments to the license or that license amendments are necessary to permit the licensee to operate in accordance with the restrictions which have been imposed.59 Likewise, Perry notes that the First Circuit Court of Appeals found that there was no license amendment in Massachusetts v. NRC, 878 F.2d 1516 (1st Cir. 1989), which concerned the NRCs authorization of plant restart for Pilgrim, following Staffs review of 47 ordered modifications.60 In Massachusetts v. NRC, the licensee, Edison, had voluntarily shut down the Pilgrim plant due to problems. Before it would allow restart, the NRC required Edison to satisfy it that certain improvements had been made.61 After reviewing Edisons progress in making the modifications, the Commission voted unanimously to allow restart by a staged power ascension plan under NRC staff oversight.62 Petitioners sought review of the NRCs decision allowing restart and argued that the 47 modifications required prior to restart amended the license, entitling Petitioners to a hearing pursuant 58 TMI Alert, 771 F.2d 720 at 729.

59 Id.

60 Perry, CLI-96-13, 44 NRC at 327.

61 Massachusetts v. NRC, 878 F.2d 1516, 1518 (1st Cir. 1989) (noting that the improvements covered 47 items involving operations, maintenance, security and consideration of matters raised by FEMA regarding emergency preparedness).

62 Id. See SRM-SECY-88-346, Request for Commission Approval for the Restart of the Pilgrim Nuclear Power station, at 3 (Dec. 23, 1988) (ADAMS Accession No, ML010940312) (noting Commission, by a 5-0 vote, endorsed the staff's proposal to permit the licensee to restart the Pilgrim Nuclear Power station provided the staff is satisfied that the licensee is ready to proceed with the power ascension program.). See also Massachusetts, 878 F.2d at 1522 n.8.

to section 189a. of the AEA.63 The First Circuit rejected this argument, and held that the imposition of 47 requirements on Edison prior to restart was not a license amendment.64 In so holding, the First Circuit followed the reasoning of the Third Circuit in TMI Alert., Inc. Thus, the First Circuit found that the decision to allow restart, which the court called a reinstatement of the license,65 did not give the licensee greater operating authority and that license amendments were not necessary to permit the licensee to operate in accordance with the restrictions which were imposed.66 Instead, the court found that [t]he substance of the NRC's action was that Edison could not operate Pilgrim pursuant to its license until the NRC allowed it to do so. The decision allowing this was a reinstatement of the right to operate Pilgrim pursuant to the license that had been in effect prior to the shut-down.67 The Massachusetts v. NRC court also compared the reinstatement at issue to the lifting of a license suspension. Specifically, the court stated that:

[there is] no principled reason to distinguish between the lifting of a license suspension and the reinstatement of a license for purposes of [section 189(a) of the AEA]. The effects are the same: the licensee may now operate again under its original license; the terms of the license have not been altered. Because reinstatement is not listed as a specific action giving rise to a hearing, no hearing right is created by [section 189(a) of the AEA].68 Thus, the holdings in TMI Alert Inc. and Massachusetts v. NRC, along with other restart cases, are consistent on several points: (1) it is Staff action, not licensee plans, that trigger the de facto license amendment analysis, and (2) NRC orders or actions lifting license suspensions or authorizing restart are not typically considered license amendments.69 63 Massachusetts, 878 F.2d at 1519-20. Petitioners also argued that an exemption from emergency drills issued by the NRC entitled them to a § 189a. hearing.

64 Id. at 1521. The court also held that the exemption did not trigger section 189a. hearing rights.

65 Id.

66 While the First Circuit did not explicitly say this, these were the reasons outlined by the TMI Alert. Inc.

court, and expressly adopted by the First Circuit.

67 Id. at 1521-1522 (emphasis added).

68 Id. at 1522.

69 See, e.g., Southern California Edison Co. (San Onofre Nuclear Generating Station, Unit 1), CLI 10, 21 NRC 1569, 1575 n.7 (1985); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and

STAFFS ARGUMENT In light of the foregoing precedents, the Staffs March 27, 2012 CAL does not constitute a de facto license amendment. As explained below, the CAL cannot be a de facto license amendment because it does not provide any authorization to SCE beyond its current operating authority and no other document or activity in the CAL process at this point in time reflects such agency action. Many of the Boards questions illuminate the points supporting the Staffs position on this issue. Thus, the Staffs response to the nine questions and topical areas70 outlined in the Boards December 7, 2012 and December 21, 2012 Briefing Orders demonstrates that the Staffs CAL is not in fact a license amendment necessitating a section 189 hearing under the AEA.

Because the AEA does not require an opportunity for a hearing on this issue, the Board need not reach the second question of whether FOEs Petition to Intervene provided adequate grounds to intervene in such a proceeding. Nonetheless, the Staff will briefly address that second question after it has fully explored the threshold question.

I. Response to Issue i.: FOE Has the Burden of Persuasion In Resolving the Question of Whether the Staffs March 27, 2012 CAL Issued to SCE Constitutes a De Facto License Amendment In issue i., the Board asked which party has the burden of persuasion in resolving the question of whether the Staffs March 27, 2012 CAL issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity.71 FOE raised this claim in its June 18, 2012 Petition to Intervene.72 Specifically, FOE asked that the Commission recognize that the March 27, 2012 CAL 2), CLI-84-5, 19 NRC 953 (1984), aff'd, San Luis Obispo Mothers for Peace, 751 F.2d at 1314, aff'd on reh'q en banc, 789 F.2d 26 (1986).

70 Dec. 7, 2012 Briefing Order at 6.

71 Id.; see San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5) (outlining first issue referred to Board).

72 Petition to Intervene at 2.

issued to SCE is in fact a license amendment proceeding under 10 C.F.R. § 2.309 and 42 U.S.C. § 2239 and that a hearing be instituted based on this de facto amendment.73 As explained in detail below, under 10 C.F.R. § 2.325, FOE has the burden of persuasion on the first issue referred to this Board by the Commission as it is the proponent of an order. 74 Additionally, FOE has a (1) threshold burden of production on its claims and (2) burden to produce clear evidence that the Staff acted improperly in issuing the CAL.75 FOE has not met its threshold burden of production, or shown clear evidence that the Staff acted improperly in issuing the CAL. As a result, the Board need not reach the question of which party has the burden of persuasion, which NRC regulations explicitly place on FOE.76 However, even if the Board found that FOE met its burden of production and placed the burden of persuasion on the Staff, the Staffs filings show by a preponderance of the evidence that the March 27, 2012 CAL is not a de facto license amendment because the actions enumerated in the CAL are controlled by the existing SONGS Unit 2 and 3 licenses and technical specifications.77 A. FOE is the Proponent of an Order Under 10 C.F.R. § 2.325 and Therefore Has the Burden of Persuasion Generally, there is no bright line rule for which party bears the burden of persuasion as to a claim or defense at issue.78 However, in most civil cases, the plaintiff bears the burden of persuasion 73 See Petition to Intervene at 2. Importantly, while FOEs Petition asked the Commission to recognize the Staffs CAL process as a de facto license amendment, the Commission, in referring the issue to the Board, asked the Board to only consider whether the March 27, 2012 CAL issued to SCE constituted a de facto license amendment. San Onofre, CLI-12-20, 76 NRC __, __ (slip op. at 4-5) (emphasis added).

74 The Staff notes that under the NRCs Part 2 rules, the Board has the discretion to allocate the burden differently. See 10 C.F.R. § 2.325 (Unless the presiding officer otherwise orders, the applicant or the proponent of an order has the burden of proof.) (emphasis added). As to the first issue referred to this Board, FOE is the proponent of an order as FOE asks the presiding officer to institute a § 2.309 hearing based on the CAL. See Petition to Intervene at 2, 13, 15; FOEs Opening Brief at 50.

75 See U.S. DOE (High-Level Waste Repository), CLI-08-11, 67 NRC 379, 384 (2008).

76 10 C.F.R. § 2.325.

77 See Affidavit of Mr. Kenneth J. Karwoski Concerning FOEs Claims Regarding Staffs March 27, 2012 CAL Issued to SCE at ¶ 8, 9 (Jan. 30, 2013) (attached) (Karwoski Affidavit).

78 See Alaska Dept. of Envt Conservation v. EPA, 540 U.S. 461, 494 n. 17 (2004).

as to the claims it raises.79 This burden tends not to shift.80 The NRCs Part 2 rules follow this general rule,81 which is also found in the Administrative Procedure Act (APA). The APA provides that [e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof.82 The Supreme Court has concluded that [b]urden of proof, as used in this section of the APA, means burden of persuasion, not merely burden of production.83 The APA applies to adjudications under the AEA84 and the AEA does not otherwise provide for a different allocation of the burden of persuasion. Instead, the NRC rules mirror the APAs allocation of the burden of persuasion and also incorporate the definitions of the APA.85 Specifically, 10 C.F.R.

§ 2.325 places the burden of persuasion on the applicant or the proponent of an order.86 The APA defines order as the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.87 79 See Schaffer v. Weast, 546 U.S. 49, 58 (2005); Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 428 (2d Cir. 1999).

80 The placement of the burden of proof reflects social policy more than law, and tends to remain fixed despite procedural adjustments along the way. Bruner v. Office of Pers. Mgmt., 996 F.2d 290, 292 (Fed. Cir.

1993). See generally Old Ben Coal Corp. v. Interior Board of Mine Operations Appeals, United States Department of Interior, 523 F.2d 25, 36 (7th Cir.1975).

81 10 C.F.R. § 2.325.

82 5 U.S.C. § 556(d); See Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 271-276 (1994).

83 Greenwich Collieries, 512 U.S. at 276 (interpreting burden of proof, which is not defined in the APA, to mean burden of persuasion based on the meaning of the term in 1946, the year the APA was enacted). In Greenwich Collieries, the Court recognized that they had previously asserted the contrary conclusion as to the meaning of burden of proof in section 7(c) of the APA. Id. (citing NLRB v. Transportation Mgmt. Corp., 462 U.S.

393 (1983)). In NLRB, the Court stated in a footnote that 7(c) of the APA only determined the burden of going forward, not the burden of persuasion. In Greenwich Collieries, the Court stated that we do not think our cursory conclusion in the Transportation Management footnote withstands scrutiny. Id. at 277. See also Steadman v. SEC, 450 U.S. 91 (1981), which the Court calls its principal decision interpreting the meaning of § 7(c). Greenwich Collieries, 512 U.S. at 277.

84 See 42 U.S.C.§ 2231 (The provisions of subchapter II of chapter 5, and chapter 7, of Title 5 [of the Administrative Procedure Act] shall apply to all agency action taken under this chapter); Siegel v. AEC, 400 F. 2d 778, 785 (D.C. Cir. 1968) (noting that APA applies to all agency action taken under the AEA).

85 See 42 U.S.C. § 2231.

86 See 10 C.F.R. § 2.325.

87 5 U.S.C. § 551(6).

In this case, FOE is the proponent of an order under 10 C.F.R. § 2.325 on the issue of whether the CAL is a de facto license amendment. Specifically, FOE claims that the CAL triggers a license amendment proceeding88 and the Commission or the Board should order such a proceeding.89 Therefore, FOE is the proponent of an order from the presiding officer that the CAL issued to SCE is a licensing action governed by Part 2. Under NRC rules, which are consistent with federal rules of evidence and case law, FOE has the burden of persuasion on the issue.90 Notably, FOE does not answer the Boards question of which party has the burden of persuasion as to the first issue (i.e., whether the CAL issued to SCE is a de facto license amendment). Instead, FOE claims that SCE, as an applicant under § 2.325, has the burden of persuasion on the issue of whether SONGS Unit 2 can safely operate under the October 3, 2012 Return to Service Plan.91 But, FOEs argument presupposes that the Board has determined that the CAL was a de facto license amendment and ordered a hearing under AEA section 189, at which point SCE would certainly have the burden of persuasion.92 At this stage, there is no license amendment and therefore no hearing on whether such a license amendment meets the requirements in the NRCs regulations. Thus, FOEs arguments on this issue are irrelevant and incorrect.

88 See Petition to Intervene at 2.

89 See id. (requesting the Commission convene a § 2.309 proceeding). In its Opening Brief, FOE requests that this Board direct the Staff to convene a license amendment proceeding, with an adjudicatory public hearing. FOEs Opening Brief at 59.

90 See 10 C.F.R. § 2.325. Similarly, petitioners requesting a stay have the burden of persuasion, as they are the movant. See, e.g., Alabama Power Co. (Joseph M. Farley Nuclear Plant Units 1 and 2), CLI-81-27, 14 NRC 795, 797 (1981).

91 See FOEs Opening Brief at 19 (As the proponent of the request to operate damaged and unrepaired steam generators at 70% of power, the licensee bears the burden of demonstrating that what it seeks will not result in a more than minimal increase in the frequency of occurrence or consequences of an accident.). See id. at 38 (The ultimate burden is on the utility to show that it is operating within its operating licensewhich SCE has not done here.).

92 See, e.g., Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), LBP-04-32, 60 NRC 713, 715 (2004) (noting that license amendment applicant has burden of persuasion with regard to all contested issues raised and must show by a preponderance of the evidence with regard to these issues that there is reasonable assurance that operation of the plant with the license amended will not endanger the health and safety of the public).

B. FOE Also Has the Threshold Burden of Production on its CAL Claims and Has Not Met that Burden In addition to the burden of persuasion, under well-established Federal and NRC precedent, FOE also has a threshold burden of production on the issue of whether the March 27, 2012 CAL constitutes a de facto license amendment.93 This threshold burden must be met to trigger the burden of persuasion.94 While not directly applicable to the first question before the board, NRCs regulations in 10 C.F.R. § 2.309 discuss a petitioners burden of production in typical agency adjudications.95 As a general matter, these regulations require a petitioner to provide information beyond vague assertions and speculation to support its claims.96 In the Statements of Consideration for the final rule governing its contention admissibility procedures, the Commission stated that its normal standards governing the burden of production were consistent with court cases that have emphasized that:

a protestant does not become entitled to an evidentiary hearing merely on request, or on a bald or conclusory allegation that such a dispute exists. The protestant must make a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth' is appropriate.97 93 This is also referred to as the burden of going forward. See Bruner, 996 F.2d at 293. FOE acknowledges that it has a burden of production. See FOEs Opening Brief at 38-40. Placing this burden on FOE makes sense, because the burden of production is the initial focus and the party that seeks to benefit from the asserted contention bears the burden of production, in NRC and general civil practice. See Moore v. Kulicke

& Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003); Samuel v. Ford Motor Co., 112 F. Supp. 2d 460, 467 (D.

Md. 2000), affd, 95 F. Appx 520 (4th Cir. 2004). See also Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).

94 See In re Elmira Litho, Inc., 174 B.R. 892, 900 (Bankr.S.D.N.Y.1994) ([A] party can bear the initial burden of going forward even if it does not bear the ultimate burden of persuasion. If it fails to carry its initial burden, the Court will dismiss its application without requiring the party that bears the ultimate burden of persuasion to offer any evidence.). See also McCann v. Newman Irrevocable Trust, 458 F.3d 281, 287 (3d Cir.

2006); In re Britt, 199 B.R. 1000, 1008 (Bank. N.D. Ala. 1996) (discussing how burden of persuasion or production are separate elements of the burden of proof).

95 See 10 C.F.R. § 2.309 (outlining what a petitioner must show in order to be granted a hearing under section 189 of the AEA). See also Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,168 (Aug. 11, 1989) (final rule). These rules are not directly applicable because they presume a license application has been submitted that triggers a section 189 hearing.

In this case, there is no such license application.

96 Palisades, CLI-07-18, 65 NRC at 414.

97 54 Fed. Reg at 33,171 (citing Connecticut Bankers Ass'n v. Board of Governors, 627 F.2d 245 (D.C.

Cir. 1980)).

Therefore, FOE has the burden of production on its claim that the March 27, 2012 CAL constitutes a de facto license amendment.

FOE, the petitioner in this case, has not met its threshold burden of production on the issue of whether the CAL is a de facto license amendment. As discussed in more detail in Section II of the Staffs Argument, FOE offers only bare assertions to support its claim that the March 27, 2012 CAL constitutes a de facto license amendment. Such bare assertions are not enough to meet the burden of production normally required in NRC adjudications, as exemplified by 10 C.F.R. § 2.309.

Therefore, the ultimate burden of persuasion has not been triggered regarding whether the CAL is a de facto license amendment.

FOE argues that the Board should not place a threshold burden of production on it in this case. In short, FOE contends that the information necessary to make the relevant assessment is readily accessible and comprehensible to SCE and the Staff but not to FOE.98 But, the documents FOE claims it lacks relate to whether the October 3, 2012 Return to Service Plan requires a license amendment, not whether the Staffs March 27, 2012 CAL was a de facto license amendment.99 While SCE prepared this document in response to the CAL, the CAL itself specifies that the terms of the plan are not effective unless authorized by the Staff.100 Consequently, the terms of the October 3, 2012 Return to Service Plan cannot constitute a de facto license amendment because they are not Staff action, and are therefore irrelevant to the first question before the Board.101 The Staff is still 98 FOEs Opening Brief at 39 (citing York Comm. for a Safe Envt v. NRC, 527 F.2d 812, 815 n.12 (D.C.

Cir. 1975)).

99 As discussed in more detail below, the terms of the October 3, 2012 Return to Service Plan are not relevant to the determination this Board must make, regarding the March 27, 2012 CAL. See infra, Staffs Argument,Section II.

100 March, 27, 2012 CAL at 2.

101 FOE itself seems to recognize this, as it argues that it would be NRCs approval of the October 3, 2012 Return to Service Plan that would grant SCE more authority than exists under its license. FOEs Opening Brief at 8. But this is not the question before the Board. The Staff is reviewing the October 3, 2012 Return to Service Plan and has not made a decision on the plan, or issued orders or taken any other licensing action in relation to the plan. The Staffs review is not at issue in this proceeding. See Amergen Energy Co., LLC

reviewing the adequacy of the October 3, 2012, Return to Service Plan.102 Thus, FOE had access to the information needed to make the relevant determination, both when filing its June 18, 2012 Petition and its Opening Brief. In fact, the Commission pointed FOE and this Board to Commission case law addressing the exact issue before the Board.103 FOE chose not to address the relevant issue, but had the burden to do so.104 Because FOE has not met its burden, the Board need not determine which party has the burden of persuasion and, moreover, must dismiss the claim.

C. FOE Has the Burden to Provide Clear Evidence that Staffs Issuance of the CAL to SCE Was Improper In addition to a burden of production under § 2.309, FOE also has the burden to provide clear evidence that Staffs issuance of the March 27, 2012 CAL to SCE was improper. This burden arises from longstanding Commission and federal case law, which provides that actions of government agents are entitled to a presumption of regularity. This presumption means that absent clear (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 (2008). The Staff is also separately reviewing, as an enforcement and oversight matter, the adequacy of the § 50.59 screenings and evaluations related to the October 3, 2012 Return to Service Plan.

102 SCE has not yet submitted a detailed plan for NRCs consideration regarding the restart of Unit 3.

103 See San Onofre, 76 NRC __ at __ n. 15 (slip op. at 5 n. 15) (citing Seabrook, ALAB-940, 32 NRC at 225 and Perry, CLI-96-13, 44 NRC at 315.

104 Notably, many of FOEs responses are either not responsive to the Boards questions or directly contravene the Boards Briefing Orders. See December 7 and December 21, 2012 Briefing Orders. First, the Board stated that the issue before the Board was not whether the [October 3, 2012 Return to Service Plan] is adequate or appropriate, but whether the CAL itself is a de facto license amendment that would be subject to a hearing opportunity under section 189a of the AEA. Dec. 7, 2012 Order at 4. Contrary to this direction, FOEs Opening Brief repeatedly claims that the October 3, 2012 Return to Service Plan is incorrect, insufficient, etc.

See, e.g., FOEs Opening Brief at 5, 8, Large Affidavit. Second, the Board directed that FOE should not advance arguments on standing and contention admissibility that go beyond the scope of the arguments presented to the Commission. Dec. 7, 2012 Briefing Order at 6 n.10. While noting this direction, FOE provides additional arguments, in particular that the October 3, 2012 Return to Service Plan should be considered a license amendment. See FOEs Opening Brief at 50 (In an abundance of caution, FoE offers the arguments made in its June 18, 2012 petition, along with those in section IV of this brief as additional bases and evidence for its contention.). Moreover, FOE uses its Opening Brief as an avenue to raise arguments that SCE needed a license amendment to replace the SONGS steam generators. See, e.g., id. at 3. This issue is outside the scope of this proceeding, and is being separately reviewed by Staff. See San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 4).

evidence to the contrary, reviewing courts must presume that public officers will properly discharg[e]

their official duties.105 The issuance of the March 27, 2012 CAL is a Staff action which is entitled to this presumption of regularity. Therefore, FOE has the burden of providing clear evidence that the Staffs issuance of the CAL was improper (i.e., the Staff should have issued or required a license amendment instead).

Otherwise, the Board must presume that Staff members properly discharged their official duties106 when issuing the March 27, 2012 CAL to SCE. FOE has not provided clear evidence that Staffs issuance of the CAL was improper. As the Staff has already stated, the issuance of the CAL was not a licensing action or order amending or otherwise affecting the license.107 To the contrary, the March 27, 2012 CAL was an administrative regulatory tool used to document and confirm activities SCE planned to take108 under the authority of its existing license before either unit returned to service.109 FOE has not provided any evidence, much less clear evidence to the contrary, that the Staffs characterization of the CAL is wrong, or that its action in issuing the CAL was improper.

In fact, the only evidence FOE provided indicates that the Staffs issuance of the CAL was consistent with the NRCs Enforcement Manual and not a de facto license amendment. As the NRCs 105 U.S. DOE, CLI-08-11, 67 NRC at 384. See also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001)

(citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) and noting that a presumption of regularity attaches to the actions of Government agencies). Under this presumption of regularity, adjudicatory bodies presume, absent clear evidence to the contrary, public officers will properly discharge their official duties.

U.S. v. Chem. Found., Inc. 272 U.S. at 14-15. See generally National Archives & Records Administration v.

Favish, 541 U.S. 157, 174 (2004); Withrow v. Larkin, 421 U.S. 35, 55 (1975). See also All Operating Boiling Water Reactor Licensees with Mark I and Mark II Containments (Docket Nos. EA-12-050 and EA-12-051), LBP-12-14, 76 NRC __, __ (July 10, 2012) (slip op. at 9 n. 36) (quoting United States Dep't of State v. Ray, 502 U.S.

164, 179 (1991)) (noting that Staff's performance and official conduct is to be accorded a presumption of legitimacy).

106 Chem. Found., Inc., 272 U.S. at 14-15. Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-04, 29 NRC 62, 62 (1989).

107 See NRC Staff Answer to Petition to Intervene.

108 SCE outlined these actions in its March 23, 2012 Return to Service Plan.

109 The NRC Enforcement Manual also describes other tools the staff can use, including confirmatory orders, enforcement actions, notices of violation, and civil penalties. NRC Enforcement Manual, Rev. 7, at 1-7 (Oct. 1, 2010) (ADAMS Accession No. ML102630150) (NRC Enforcement Manual). See infra at Staffs Argument Section II.

Enforcement Manual explains, a CAL is just one way the Staff can take action to remove significant concerns about health and safety, safeguards, or the environment.110 In this case, the significant concern was the restart of either unit given the unexpected tube wear discovered at Unit 2 and the tube leak which forced Unit 3s shutdown. In response to that event, SCE submitted its March 23, 2012 Return to Service Plan, which outlined the steps it planned to take in accordance with its existing licenses before either unit would return to service. In turn, the NRC Staff memorialized these commitments in the March 27, 2012 CAL, after having follow-up discussions with SCE. FOE recognized that this is what the CAL purported to do and did do.111 In FOEs own words:

Foremost, the CAL merely restates SCEs description of the steam generator problems and the commitments SCE made as of March 23, 2012 to rectify the issues at Units 2 and 3.112 Thus, FOE appears to recognize that the CAL did not impact SCEs operating authority.

D. Even if the Staff Had the Burden of Persuasion on the Issue, the Staffs Filings Show By a Preponderance of the Evidence That the CAL Issued to SCE Is Not a De Facto License Amendment Because FOE has not met its threshold burden of production on the first issue, the Board need not decide which party has the burden of persuasion. Under NRC rules, the burden of persuasion would be placed on FOE, unless the Board otherwise provided. Importantly, even if the Board chose to place the burden of persuasion on the Staff, the Staffs filings show by a preponderance of the evidence that the CAL is not a de facto license amendment.

As discussed in detail below in the Staffs response to issue ix., the March 27, 2012 CAL (1) is consistent with the use of CALs outlined in the NRCs Enforcement Manual, and (2) did not grant SCE greater operating authority or authorize activities beyond the ambit of the prescriptive authority 110 See NRC Enforcement Manual Section 3.5 at 3-30 (citing NRCs Enforcement Policy).

111 See Petition to Intervene at 12 (noting that the March 27, 2012 CAL is a mere restatement of the licensees conclusion about what actions are necessary.); id. at 14 (noting that the March 27, 2012 CAL was devoid of any directive originated from the expert government agency). See also FOEs Opening Brief at 2-3 (On March 23, 2012, SCE submitted a description of the steam generator problems and its commitments to address the issues at Units 2 and 3, which were formalized in the NRCs CAL.).

112 Petition to Intervene at 11.

granted under the existing license.113 Consequently, although FOE bears the burdens of production and persuasion in this case and has not met either, even if the Board found the burden of production met and placed the burden of persuasion on the Staff, the Staff has produced sufficient evidence to meet that burden. As a result, the Board should deny FOEs Petition to Intervene and its request to institute a § 2.309 hearing.

II. Response to Issue ix.: Staffs Views of the Meaning of the March 27, 2012 CAL Issued to SCE Given the NRC Enforcement Manuals Description of CALs In issue ix., the Board refers to the NRC Enforcement Manuals description of the CAL process, and asks the parties to give their view of the meaning of the March 27, 2012 CAL as relevant to the two issues referred by the Commission in this case.114 As noted above, the two issues referred by the Commission are (1) whether the CAL issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under Section 189a of the Atomic Energy Act; and, if so, (2) whether FOE's petition meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309.115 As relevant to the questions before the Board, the Staff views the March 27, 2012 CAL as an administrative enforcement tool confirming SCEs proposed actions under its existing licenses to ensure compliance with its licenses before restarting either unit. Specifically, the March 27, 2012 CAL confirms SCEs commitment to not restart SONGS Units 2 or 3 while it takes certain actions within its current licenses to remove significant safety concerns.116 SCEs proposed actions, submitted on March 23, 2012 and confirmed in the March 27, 2012 CAL, are within the existing provisions of 113 See infra Staffs Argument Section II; See also Karwoski Affidavit at ¶¶ 8, 9. 10.

114 See Dec. 21, 2012 Briefing Order at 2 (outlining issue ix.).

115 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

116 See NRC Enforcement Policy, at 68 (June 7, 2012) (ADAMS Accession No. ML12132A394) (defining CAL).

SONGS TS 117 as well as NRC regulations, including 10 C.F.R. Part 50, Appendix B, "Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants," Criterion XVI (Corrective Action) and 10 C.F.R. § 50.73.118 Therefore, the March 27, 2012 CAL does not constitute a de facto license amendment.

In support of its view of the meaning of the March 27, 2012 CAL, the Staff describes the history of CALs followed by a detailed analysis of the March 27, 2012 CAL. Specifically, the Staff describes how each CAL action is within the licensees existing operating authority. Thus, the terms of the CAL did not augment or otherwise affect SCEs licensing authority and therefore did not constitute a de facto license amendment. The Staff then briefly addresses SCEs October 3, 2012 Return to Service Plan, discussing why this plan cannot be a de facto license amendment.

A. History of Confirmatory Action Letters as Part of NRCs Enforcement Process As discussed in detail below, both the Atomic Energy Commission and the NRC have used CALs, or their functional equivalent, as part of the enforcement process. CALs are used as a way to confirm voluntary actions and commitments addressing significant concerns about health and safety, safeguards, or the environment, including commitments not to restart a plant until the appropriate corrective actions are completed. Importantly, by definition, the recipient of a CAL is not subject to 117 See generally Docket No. 50-361, SONGS Unit 2 Facility Operating License No. NPF-10, (Oct. 16, 2012) (ADAMS Accession No. ML053130316) (SONGS TS); Docket No. 50-362, SONGS Unit 3 Facility Operating License No. NPF-15, (Oct. 16, 2012) (ADAMS Accession No. ML053140357). Because the two licenses are substantially similar for purposes of the issues before the Board, the Staff will simply refer to sections of the Unit 2 license in the remainder of this brief. See also NEI-97-06, Steam Generator Program Guidelines, Rev. 2 (May 2005) (ADAMS Accession No. ML052710007).

118 Karwoski Affidavit. With respect to requirements associated with steam generators, the SONGS Unit 2 TS and Unit 3 TS are essentially the same and are both modeled after Technical Specification Task Force Traveler TSTF-449, Revision 4, "Steam Generator Tube Integrity" (Apr. 14, 2005) (ADAMS Accession No.

ML051090200). See Letter dated September 19, 2006 from N. Kalyanam, Project Manager, NRC, to R.

Rosenblum, CNO, SCE,

Subject:

San Onofre Nuclear Generating Station, Units 2 and 3 - Issuance of Amendments Re: Technical Specification Improvement Regarding Steam Generator Tube Integrity Based on Technical Specification Task Force (TSTF) Standard Technical Specification Change Traveler, TSTF-449, Steam Generator Tube Integrity (TAC NOS. MC9236 AND MC9237) with enclosures 1) Amendment No. 204 to NPS-10, 2) Amendment No. 196 to NPF-15, and 3) Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No. 204 to Facility Operating License No. NPF-10 and Amendment No. 196 To Facility Operating License No. NPF-15 Southern California Edison Company San Diego Gas And Electric Company The City Of Riverside, California The City Of Anaheim, California San Onofre Nuclear Generating Station, Units 2 and 3 Docket Nos. 50-361 And 50-362 (Sept. 19, 2006).

any new legally-binding changes to its license. Thus, the administrative use of CALs as an enforcement tool stands in stark contrast to the use of an Order whereby the Commission modifies, suspends, or revokes a license or takes other action against a licensee or other person subject to the Commissions jurisdiction.

1. Atomic Energy Commissions Enforcement Procedures In 1972, the Atomic Energy Commission (AEC) formalized its enforcement procedures and issued criteria for determining which enforcement actions should be taken.119 The enforcement actions available to the AEC included administrative actions in the form of written notices of violation, civil monetary penalties, and Orders to cease and desist or for modification, suspension, or revocation of a license.120 The AEC observed that judgment must be exercised in selecting the enforcement action most appropriate for the situation.121 Shortly thereafter, the AEC modified its enforcement program in part to recognize two classes of administrative actions -- one generic, and the second site-specific.122 The newly-recognized generic actions were Regulatory Operations Bulletins sent to classes of licensees, and the site-specific action was an Immediate Action Letter (IAL), defined as an administrative action to confirm a licensee's commitment to certain actions involving situations at the licensee's facility which are not generic. Also, used to document those cases where the licensee agrees voluntarily to cease operations until the situation is properly evaluated and corrected.123 Thus, by 1975, the AEC recognized that site-specific concerns could arise at a site and that the Staff could determine that the most appropriate enforcement action to take would be sending an 119 Notice of Issuance of Enforcement Criteria, Criteria for Determining Enforcement Action, 37 Fed.

Reg. 21,962 (Oct. 17, 1972).

120 Id.

121 Id.

122 Notice of Issuance, Criteria for Determining Enforcement Action and Categories of Noncompliance, 40 Fed. Reg. 820 (Jan 3, 1975).

123 Id. (emphasis added).

IAL to a licensee to confirm that the licensee would voluntarily refrain from starting-up pending appropriate evaluations and corrective action.124 When in the exercise of its judgment the AEC concluded it was appropriate, the AEC would not issue an order modifying the license because the licensees promised corrective actions, evaluations, and commitment not to run its plant were sufficient.125 Importantly, the administrative effect of an IAL did not include modification, suspension, or revocation of a license.126

2. The NRC's Enforcement Policy Describes CALs as Confirming Steps Licensees Plan to Take to Ensure Compliance with an Existing License In 1974, the Energy Reorganization Act of 1974 created the NRC, and abolished the AEC.127 In 1980, the NRC published for comment a comprehensive statement of enforcement policy.128 Those proposed procedures would be followed by the U.S. Nuclear Regulatory Commission and its staff in initiating enforcement actions and by presiding officers, the Atomic Safety and Licensing Appeal Boards, and the Commission in reviewing these actions.129 The proposal continued using IALs to confirm a licensees agreement to take certain actions to remove concerns about health and safety, safeguards, or the environment.130 Notably, in contrast with license modification orders,131 IALs were 124 Id.

125 Id.

126 Id.

127 42 U.S.C. §§ 5801, 5814. See U.S. Enrichment Corp. (Paducah, Kentucky), CLI-01-23, 54 NRC 267, 278 (2001) (noting that very purpose of establishing NRC was to separate the promotional and development functions of the [AEC] from the oversight and licensing functions.).

128 Proposed General Statement of Policy, Proposed General Statement of Policy and Procedure for Enforcement Actions, 45 Fed. Reg. 66,754 (Oct. 7, 1980) (proposed to be codified at App. C to 10 C.F.R. Part 2).

129 Id. at 66,754.

130 Id. at 66,757.

131 Id. ((1) License Modification Orders are issued when some change in the conduct of a licensed activity is necessary. These orders are made effective immediately, without prior opportunity for hearing, whenever it is determined that the public health, interest, or safety so requires, or when the order is responding to a violation involving willfulness. Otherwise, a prior opportunity for a hearing on the modification is afforded.

not meant to effect a change in the conduct of licensed activity. Therefore, NRC's proposed enforcement policy made a clear distinction between actions (i.e., orders) which changed the license and informal steps such as an IAL to confirm a licensees actions.132 In 1982, the NRC considered public comments plus experience to revise and finalize its enforcement policy.133 The NRC accepted a public comment to rename IALs as Confirmatory Action Letters (CALs).134 Importantly, while the name changed, the CAL retained the same characteristics as an IAL. Specifically, CALs were part of the related administrative mechanisms such as bulletins and confirmatory action letters [which] are used to supplement the enforcement program.135 A CAL remained a letter confirming a licensees agreement to take certain actions to remove significant concerns about health and safety, safeguards, or the environment.136 Notably, CALs remained separate and distinct from License Modification Orders and Suspension Orders, which effected some change in the licensees operating authority.137 Thus, while CALs and orders may address issues related to the health and safety, safeguards, or the environment, the CAL merely confirms what a licensee intends to do about a concern whereas orders remove a threat or modify a license.

For cases in which the NRC believes a basis could reasonably exist for not modifying the license as proposed, the licensee will ordinarily be afforded an opportunity to show cause why the license should not be modified in the proposed manner. (italics in original)).

132 See id.

133 General Statement of Policy and Procedure for Enforcement Actions, 47 Fed. Reg. 9,987 (Mar. 9, 1982) (codified in App. C to 10 C.F.R. part 2).

134 Id. at 9,989.

135 Id.

136 Id. at 9,993.

137 Id. at 9,992 (noting that license modification orders are issued when some change in licensee equipment, procedures, or management controls is necessary). Id. (noting that suspension orders are issued to remove a threat to the public health and safety, common defense and security, or the environment).

3. The Commission's 1989 Enforcement Rulemaking Continued to Describe CALs as Confirming Licensees Intended Actions to Ensure Compliance With Existing Licenses In a 1989 rulemaking, the NRC re-emphasized that CALs were not licensing actions, but instead were used as part of the supervision of licensed activities. Specifically, the NRC stated that CALs were excluded from the requirements of the National Environmental Policy Act of 1969 (NEPA), as amended.138 Directly addressing CALs, the Commission wrote:

Licensee actions undertaken voluntarily, as documented in a confirmatory action letter, are generally directed to restoring compliance with NRC regulations, thereby enabling the licensee to resume licensed activities. Consequently, the only environmental effects of the licensee's voluntary actions to reestablish that licensed activities will be undertaken in accordance with the license are those evaluated at the time the facility or activity was licensed and assessed in the NRC Environmental Impact Statement prepared in connection with the initial issuance of the license and in subsequent environmental evaluations in connection with license amendments. The environmental effects of NRC activities associated with the supervision of such licensee actions, including NRC approval and supervision of the licensee's subsequent resumption of licensed activities are the same and do not require additional environmental review.139 The same rulemaking addressed restarting a plant after the evaluations and corrective actions associated with enforcement actions (e.g., a CAL) are complete, saying:

[W]hen licensee actions to remediate the matters underlying the enforcement action have been completed to the satisfaction of the Commission, the conditions of operation previously reviewed in an environmental context will be restored. Accordingly, when the NRC authorizes licensed activities to resume, no additional environmental review pursuant to NEPA or the Commissions regulations is needed.140 Last, the Commission explained what happens if an amendment to a license is needed:

If it should be necessary for the licensee to obtain a license amendment to restore compliance with the Commissions safety requirements in order to satisfy the concerns underlying the enforcement action, any environmental effects associated with issuance of the license amendment would either be addressed in an Environmental 138 Final Rule, Clarifying Amendment Relating to Enforcement Activities, 54 Fed. Reg. 43,576, 43, 576-77 (Oct. 26, 1989) (revising 10 C.F.R. § 51.10(d)).

139 Id. at 43,577.

140 Id. at 43,577-78 (emphasis added).

Assessment or encompassed by a categorical exclusion under 10 CFR 51.22(c). In this way, appropriate consideration of any environmental impact would be assured.141 Around this time, the Appeal Board also recognized that CALs do not act to suspend a license, and are not licensing actions, writing:

[T]he intervenors are incorrect in describing the staff's enforcement action [i.e. a CAL concerning restarting under a low power license] as a license suspension. The NRCs formal enforcement sanctions include notices of violations, civil penalties, and various orders such as license revocation or suspension orders. See 10 C.F.R. Part 2, Appendix C, § II.

Each of these formal enforcement sanctions requires prescribed notice and hearing procedures. See id., §§ 2.201-.205. In this instance, none of these formal regulatory requirements was followed, so the staff's action could not be a suspension within the meaning of the regulations.

In contrast to formal enforcement actions, the agency also employs less formal administrative mechanisms, such as the confirmatory action letter issued by the staff here, to supplement its enforcement program. See id., Part 2, Appendix C, § V.H. Specifically, confirmatory action letters are letters confirming a licensee's or a vendors agreement to take certain actions to remove significant concerns about health and safety, safeguards, or the environment. Id., § V.H(3).142 Thus, NRCs interpretation of its regulations and enforcement policy plainly establishes that the NRCs use of a CAL does not necessarily constitute an enforcement order or other action modifying a licensees operating authority.

4. The Commission's 1995 Decision to Remove the Enforcement Policy from the Code of Federal Regulations Did Not Affect the Meaning or Purpose of CALs In 1995, the Commission removed its enforcement policy from the Code of Federal Regulations.143 The Enforcement Policy was then published as NUREG-1600, General Statement of Policy and Procedure for NRC Enforcement Actions, and revisions thereto were published in the 141 Id. at 43,578.

142 Seabrook, ALAB-940, 32 NRC at 237 n.33.

143 Policy Statement, Policy and Procedure for Enforcement Actions; Removal, 60 Fed. Reg. 34,380, 34,380 (June 30, 1995).

Federal Register.144 Later, after the Internet came into wide use, the Commission discontinued publication of NUREG-1600, and moved the enforcement policy to the NRCs public website and ADAMS, with revisions still published in the Federal Register.145 Significantly, removing the Enforcement Policy from the Code of Federal Regulations did not materially affect the meaning or purpose of CALs. A CAL is still an administrative action146 that is used to confirm a licensees agreement to take certain actions to remove significant concerns regarding health and safety, safeguards, or the environment.147

5. The Commissions Perry Decision In 1996, the Commission recognized that confirming compliance with an existing license, as is done in the March 27, 2012 CAL, is not licensing and does not change a license. In Perry, the Commission wrote:

The Administrative Procedure Act's broad definition of license under 5 U.S.C. §§ 551(8),(9), does not encompass reviews that serve merely to confirm compliance with existing license requirements.148 Thus, merely assuring that actions taken under a CAL will meet required technical standards does not alter the terms of the license, and does not grant the licensee greater operating authority; instead the Staff's review enforces existing license requirements.149 144 Id.

145 Policy Statement, NRC Enforcement Policy, 70 Fed. Reg. 12,908, 12,909 (Mar. 16, 2005) (noting that the website is widely known as the NRC Enforcement Policy).

146 NRC Enforcement Policy (June 7, 2012) at 23 (The NRC also uses administrative actions, such as confirmatory action letters, notices of deviation, and notices of nonconformance, to supplement its enforcement program.).

147 Id. at 68. The definition of CALs was expanded to include contractors. Compare id. with 47 Fed.

Reg. at 9,993 (mentioning only licensees and not contractor).

148 Perry, CLI-96-13, 44 NRC at 325 n.37 (1996) (citing American Cylinder Mfrs. Comm. v. Dept of Transp., 578 F.2d 24, 27 (2d Cir.1978)).

149 Id. at 325.

6. The NRC's Current Enforcement Manual Describes CALs as Enforcing Existing Licenses The current NRC Enforcement Manual contains guidance and processes for implementing the NRC Enforcement Policy.150 Section 3.5 of the Enforcement Manual explicitly discusses CALs. It follows the Enforcement Policy on CALs, stating that a CAL must meet the threshold of removing significant concerns about health and safety, safeguards, or the environment.151 A CAL may be used to confirm that a licensee will adhere to existing provisions.152 Thus, the essence of a CAL is that it merely documents voluntary commitments; a CAL does not change any requirements within a license. As the Enforcement Manual explains, CALs do not establish legally binding requirements153 except for certain reporting requirements not at issue here.

And a CAL is not an order; the NRC Enforcement Manual provides separate sections describing the processes for orders modifying, suspending, or revoking licenses, as well as other types of orders.154 As the Board notes, the Enforcement Manual discusses a CAL process, not just the Staffs action of issuing a CAL.155 In short, this process involves: the Staff issuing the CAL, a licensee responding with some action and/or information, and when the circumstances which prompted the NRC to issue a CAL have been addressed, the closing out of the CAL. The Enforcement Manual lays out the process for closing out a CAL as follows:

3.5.8 Closing Out CALs A. A CAL may or may not require follow-up inspection to verify completion of the specified licensee actions. Whether the staff believes that an inspection is necessary to close a CAL will be determined on a case-by-case basis and will depend on the circumstances of the case.

150 NRC Enforcement Manual at 1.

151 Id. at 3-30.

152 Id.

153 Id. at 3.31 (discussing when orders should be used as opposed to CALs).

154 See Id. §§ 4.7 - 4.8 (4 4-78).

155 See Dec. 21, 2012 Briefing Order.

B. The issuing office (i.e., region, NRR, NMSS, FSME, NRO or NSIR) will issue documentation formally closing out the CAL.

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.156 Thus, while the closeout of a CAL will be fact-dependent, and may be based upon inspections to verify actions taken under the licensees existing license, a CAL close-out does not involve issuing an amendment.157 Instead, closing out a CAL would permit plant restart or resumption of affected licensee activities.158 B. The Actions Presented in SCEs March 23, 2012 Return to Service Plan and Memorialized in the March 27, 2012 CAL Are Within the Current Licensing Basis The March 27, 2012 CAL is consistent with the historic purpose and use of CALs in that it merely confirms the actions SCE proposed to take in its March 23, 2012 Return to Service Plan.159 Each step in SCE's March 23, 2012 Return to Service Plan is permissible under, and contemplated by, the existing licensing bases for each unit and NRC regulations. Because the steps in SCE's March 23, 2012 Return to Service Plan, which SCE presented on a unit-by-unit basis, do not require SCE to amend its licenses, the CAL, which merely confirmed these actions, does not augment or otherwise affect the license and therefore does not constitute a de facto license amendment. While FOE vaguely asserts that the CAL is a de facto license amendment, FOE does not provide any specific example or indication of how the CAL augments or otherwise impacts SCEs authority.

A close look at the CAL actions illustrates that the March 27, 2012 CAL does not constitute a de facto license amendment. SCEs March 23, 2012 Return to Service Plan documented nine (9) 156 NRC Enforcement Manual at 3-36.

157 There are no set prescribed regulatory findings which must be made to closeout a CAL. See id. In contrast, the Staff must make particular findings when issuing a license amendment. See 10 C.F.R. 50.92. If the licensee or staff determined a license amendment was required, that would be done separately from the CAL close out process.

158 NRC Enforcement Manual at 3-36.

159 See March 23, 2012 Return to Service Plan.

actions (e.g., RTS Plan Action 1), which are confirmed in the Staff's March 27, 2012 CAL (e.g., CAL Action 1). As described in detail in Attachment 1, each action is authorized under the current licensing basis.160 Thus, each action outlined in the March 23, 2012 SCE Return to Service Plan was taken or planned under the authority granted in the existing license. Therefore, the March 27, 2012 CAL, which merely confirmed these actions or planned actions, did not grant additional authority and is therefore not a de facto license amendment.

On this topic, the Staff is providing the Affidavit of Mr. Kenneth J. Karwoski, an expert in steam generators and the associated technical specifications.161 Mr. Karwoski is familiar with the technical specifications governing steam generators, including the requirements at SONGS Units 2 and 3 as well as industry guidelines.162 Mr. Karwoski verifies that the actions listed in the Staffs March 27, 2012 CAL, which confirmed the information in the SCEs March 23, 2012 Return to Service Plan, may all be performed as part of the existing steam generator program.163 Per Mr. Karwoski, no change to the technical specifications is needed to perform the steps outlined in the CAL.164 And nothing in the CAL changed the requirements at SONGS Units 2 and 3; SONGS Units 2 and 3 must continue to meet the technical specifications notwithstanding anything SCE proposes.165 Although FOE may disagree about the causes of the tube wear, the corrective actions taken, and how to preclude repetition, FOE has presented no arguments showing that the March 27, 2012 CAL provided SCE additional authority or that SCE must obtain a license amendment to do what is required under the regulations. Likewise, while FOE disputes that SCE has determined the causes of 160 See Attachment 1 of Karwoski Affidavit (showing where March 23, 2012 Return to Service Actions are confirmed in the CAL and the existing authority for these actions in the existing license). Inasmuch as the CAL reflects the March 23, 2012 Return to Service Plan, the sections in the attached table correspond to the March 23, 2012 Return to Service Plan numbering scheme. See also Attachment 2 of Karwoski Affidavit (providing list and brief description of relevant TSs).

161 Karwoski Affidavit.

162 Id. at ¶¶ 3-4.

163 Id. at ¶¶ 5-9.

164 Id. at ¶ 9.

165 Id. at ¶ 10.

the tube-to-tube interactions that resulted in steam generator tube wear in Unit 3,166 FOE does not (1) dispute that SCE may engage in root cause investigations under its existing license or (2) claim that a license amendment is needed to address any aspect of the CAL actions. Therefore, FOE has not indicated how the March 27, 2012 CAL constitutes a de facto license amendment.

C. SCEs October 3, 2012 Return to Service Plan Does Not Suggest that the March 27, 2012 CAL is a De Facto License Amendment and is Not Itself a De Facto License Amendment FOEs main concern appears to be the plan to limit Unit 2 to 70% power contained in the October 3, 2012 Return to Service Plan. However, regardless of any protocol of inspections and/or operational limits167 established by SCE, the CAL makes clear that the TS must be satisfied, notwithstanding any response by SCE.168 Thus, the Staff's CAL did not change any portion of any TS, including TS 5.5.2.11, or alter any other element of the license. Moreover, SCEs plan cannot constitute a de facto license amendment, as it is not Staff action. And as FOE appeared to recognize, the October 3, 2012 Return to Service Plan was not submitted as a license amendment application, nor is it currently being considered by the Staff as a license amendment application.169 The NRC maintains an aggressive and ongoing program to oversee plant operation as part of its ongoing responsibility to oversee the safety of nuclear power plants, and compliance with the TS is required and verified through the inspections.170 The Commission's oversight programs help to ensure compliance with the current licensing basis.171 These programs are not waived or diminished 166 FOEs Opening Brief at 3 ("None of the investigations conducted to date have determined the root cause of the premature and extensive tube degradation in the replacement steam generators. Lacking such understanding, SCE has not proposed any action to permanently fix the problems of either Unit 2 or 3.").

167 March 27, 2012 CAL at 2. See also Dec. 7, 2012 Briefing Order at 3 n. 4.

168 March 27, 2012 CAL at 2.

169 See October 16, 2012 Letter. Despite this apparent understanding, FOE now argues that the October 3, 2012 Return to Service Plan should be considered a license amendment application. See FOEs Opening Brief at 6.

170 Florida Power & Light Co. (Turkey Point Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8 (2001).

171 Id. at 9.

by the March 27, 2012 CAL. Thus, as discussed above and outlined in Attachment 1, the Staffs March 27, 2012 CAL is not a de facto license amendment. And SCEs October 3, 2012 Return to Service Plan for Unit 2, including its plan to limit Unit 2 to 70% power as a basis for restart, is being carefully scrutinized by the Staff outside of this proceeding for overall regulatory compliance.172 But this Staff review is separate from the narrow question before the Board of whether the March 27, 2012 CAL constitutes a de facto license amendment.

In summary, the Staffs March 27, 2012 CAL does not change SCEs license. Instead, it is an administrative enforcement tool confirming SCEs proposed actions under its existing license to ensure compliance with its license before restarting either unit. This is consistent with historic use of CALs, the NRCs Enforcement Manual, and Commission case law, which has consistently recognized that the enforcement purpose of a CAL is separate and distinct from a license amendment.

FOE claims that a CAL is issued typically where a licensee is operating outside the licensing basis and voluntarily agrees to bring the plant back into compliance.173 This claim is not reflective of the circumstances of the March 27, 2012 CAL, where neither SONGS Unit was operating at-power when the CAL was issued nor was SCE aware of the tube degradation during operation.174 Placing the unit in a safe shutdown condition, as SCE had already done for Unit 3, is required by the TSs when SG tube integrity is not maintained.175 Additionally, the March 27, 2012 CAL contains no direct or implied approval of voluntary steps to address an ongoing violation at either Unit 2 or Unit 3. Thus, the CAL is not confirming steps taken to address an ongoing non-compliance. As FOE recognized, CALs are designed to enforce the terms of an existing license.176 As described above and in 172 See e.g., San Onofre Nuclear Generating Station, Unit 2 - Request for Additional Information Regarding Response to Confirmatory Action Letter (TAC No. ME9727), (Dec. 26, 2012) (ADAMS Accession No.

ML12361A065) (RAI 32).

173 FOEs Opening Brief at 44.

174 March 27, 2012 CAL at 1.

175 See Karwoski Affidavit, Attachment 2.

176 FOEs Opening Brief at 44.

Attachment 1, this is what the March 27, 2012 CAL purported to do and did do. FOE's leap in logic from recognizing that a CAL enforces an existing license to claiming that SCEs actions in response to the CAL are a license amendment177 simply does not withstand scrutiny; there is nothing in the CAL that modified SCEs licenses. As discussed above, de facto license amendments occur when the Staff authorizes licensee action that expands the licensees operating authority. The only Staff action that has occurred is the issuance of the March 27, 2012 CAL. FOE fails to explain how the information requested in the CAL constitutes any changed operating authority for Unit 2 or Unit 3.

The Staff has not yet authorized SCEs proposed basis to operate at 70% power or any other feature of the October 3, 2012 Return to Service Plan. Moreover, SCE has not applied for a license amendment under 10 C.F.R. § 50.90, and the NRC has issued no amendment under 10 C.F.R. § 50.92.

III. Response to Issue ii.: The NRCs Decision Under 10 C.F.R. § 2.206 Should Have No Impact on Whether the March 27, 2012 CAL is a De Facto License Amendment In issue ii., the Board asked what impact, if any, the NRCs decision under 10 C.F.R. § 2.206, as to FOEs Petition, would have on the first issue referred to this Board by the Commission.178 The NRCs decision should have no impact on the determination of whether the March 27, 2012 CAL constitutes a de facto license amendment. FOE's § 2.206 arguments, referred by the Commission to the Executive Director of Operations (EDO), concern whether SCEs § 50.59 evaluation associated with the replacement of the steam generators (SG) was flawed (i.e., the replacement should have required a license amendment under § 50.90).179 In contrast, FOEs claim regarding the March 27, 177 Id.

178 See Dec. 7, 2012 Briefing Order at 6 (outlining second issue Board requested briefed). The Boards Briefing Order indicated that the NRCs Executive Director of Operations would make the decision as to FOEs § 2.206 claims. Id. However, the decision will be made by the Director of the Office of Nuclear Reactor Regulation (NRR), as NRR is the NRC office with responsibility for the subject matter of FOEs request. See 10 C.F.R. § 2.206(a) and (b).

179 See Petition to Intervene; FOEs Opening Brief. See San Onofre, CLI-12-20, 76 NRC at __ (slip op.

at 4 (referring FOEs § 2.206 arguments to EDO).

2012 CAL is that the CAL triggered a license amendment proceeding related to the restart of Units 2 and/or 3. Specifically, FOE argues that:

the NRCs CAL process constitutes a de facto proceeding to amend the operating license for San Onofre. Upon reaching that conclusion, the Board should direct the NRC Staff to convene a license amendment proceeding, with an adjudicatory public hearing, to consider whether or not San Onofres license for Unit 2 should be amended to allow operation as proposed by SCE in the restart plan. The Board should also prohibit SCE from restarting Unit 2 or 3 until SCE applies for and receives an amendment to the license.180 FOEs § 2.206 claims are therefore based on a different (1) concern, (2) point in time, (3) SCE analysis, and (4) Staff action than FOEs CAL claims. FOE recognizes its § 2.206 claims and CAL claims are separate and distinct.181 This is the only possible conclusion, as FOEs CAL claims are based on a process that was not occurring when SCE replaced the SGs (i.e., the March 27, 2012 CAL). Because FOE's § 2.206 claims do not relate to whether the March 27, 2012 CAL granted SCE additional authority, the Director of NRRs decision under § 2.206 as to those claims should have no impact on whether the March 27, 2012 is a de facto license amendment. Additionally, as discussed further below, challenges to a § 50.59 analysis are outside the scope of non-§ 2.206 proceedings, such as this one.182 Moreover, if the Director of NRR grants FOE the relief it requests as to its § 2.206 claims and issues an order amending SCEs license, that would not grant FOE the relief sought in its June 18, 2012 Petition to Intervene and Opening Brief.183 Those documents question whether the March 27, 180 FOEs Opening Brief at 59.

181 See id. at 40-41. Specifically, FOE states that SCEs restart proposal requires a license amendment regardless of whether a license amendment was sought in 2006 because SCEs restart plan would, if approved, violate NRCs regulations in Section 50.59 and award SCE greater operating authority than its current license allows. Thus, the basis for seeking a license amendment for the issues presently before the Board is unaffected by a decision either way from the Petition Review Board. Id. at 41. The Commission also treated FOEs claims separately, as it referred FOEs § 2.206 claims to the EDO, and referred FOEs CAL claims to this Board. See San Onofre, CLI-12-20, 76 NRC __, __ (slip op. at 4-5).

182 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 101 n. 7 (1994).

183 See FOEs Petition to Intervene at 2; FOEs Opening Brief at 59.

2012 CAL constituted a de facto license amendment requiring a hearing, not whether the SG replacement required a license amendment.184 IV. Response to issue iii.: The Extent to Which 10 C.F.R. § 50.59(c)(1) and (c)(2) Apply in Determining Whether the CAL Constitutes a De Facto License Amendment Issue iii. asks, 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?185 As discussed above, agency action may constitute a de facto license amendment when it allows a licensee to operate in a greater capacity than originally prescribed.186 The standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) do not directly apply in determining whether the issuance of the March 27, 2012 CAL constitutes a de facto amendment because (1) the standards address a different question and (2) do not describe or involve agency action.

As discussed in detail below, the standards in § 50.59(c)(1) and (c)(2) provide licensees a regulatory framework for determining whether proposed changes to the Updated Final Safety Analysis Report (UFSAR), which is a part of the facilitys current licensing basis, require a license amendment prior to implementation. Thus, these standards allow licensees to make certain changes without first obtaining NRC approval via a license amendment.187 The criteria in § 50.59(c) do not answer the question of whether an agency action allows a licensee to operate in a greater capacity.188 Rather 184 However, if the Director of NRR issued an order indicating that the March 27, 2012 CAL did in fact expand SCEs operating authority and the license(s) needed to be amended to reflect that augmented authority, then it is conceivable that the Directors decision could impact the first question before the Board. Similarly, the Director of NRR could also issue an order capturing the commitments outlined in the CAL. In that case, FOE and others would have hearing rights on the order, and the issue before the Board would be rendered moot.

185 Dec. 7, 2012 Briefing Order at 6 (citing Cf. note 3 of the Dec. 7, 2012 Briefing Order).

186 Perry, CLI-96-13, 44 NRC at 327 (internal quotations omitted). Other cases phrase the test in terms of whether the agency action allows the licensee to engage in activities beyond the ambit of their original licenses. CAN, 59 F.3d at 295. Because the actual terms of the operating license are only one of many sources of regulatory requirements on an NRC licensee, see 10 C.F.R. § 54.3(a), the better approach to the test focuses on the entirety of a licensees operating authority as opposed to only the operating license.

187 10 C.F.R. § 50.59(c)(1), (c)(2).

188 Perry, CLI-96-13, 44 NRC at 327 (internal quotations omitted).

they filter proposed changes to the terms of the UFSAR and exempt some from the normal license amendment requirements if the criteria are met.

A. Background of 10 C.F.R. § 50.59 The Commission has stated that an understanding of the overall requirements undergirding licensing and oversight of nuclear reactors is helpful to understanding § 50.59.189 The application for an operating license includes the final safety analysis report (FSAR) which is to contain: a description of the facility; the design bases and limits on operation; and the safety analysis for the structures, systems, and components (SSC) and of the facility as a whole.190 The results of the UFSAR analyses reflect performance of equipment under the conditions specified by NRC regulations or requirements.191 When a plant is licensed, the NRC states in its Safety Evaluation Report (SER) why it found each FSAR analysis acceptable.192 Thus, the licensee must operate its facility in accordance with the license and as described in its final safety analysis report.193 In the licensing process, Design basis events play a central role in plant design.194 These events include normal operating conditions, anticipated operational occurrences, and design basis accidents for which the plant has been designed to ensure the integrity of the pressure boundary, the capability to shutdown safely, and the capability to prevent or mitigate the consequences of the 189 Changes, Tests, and Experiments: Proposed Rule, 63 Fed. Reg. 56,098, 56, 099 (Oct. 21, 1998).

Nuclear Energy Institute Topical Report 96-07, Guidelines for 10 CFR 50.59 Implementation, Rev. 1 (Nov. 2000)

(NEI 96-07) echoes this sentiment, In order to perform 10 C.F.R. § 50.59 screenings and evaluations, an understanding of the design and licensing basis of the plant and of the specific requirements of the regulations is necessary. NEI 96-07 at 6 (ADAMS Accession No. ML003771157). The NRC Staff approved NEI 96-07 in Regulatory Guide 1.187, Guidance for Implementation of 10 C.F.R. 50.59, Changes, Tests, and Experiments, at 1.187-2 (Nov. 2000) (ADAMS Accession No. ML003759710) (Reg. Guide 1.187).

190 63 Fed. Reg. at 56,099.

191 NEI 96-07 at 9. Licensees must periodically update their FSARs to reflect changes to the facility so that the safety analysis report (as updated) remains a complete and accurate description and analysis of the facility. 63 Fed. Reg. at 56,100.

192 63 Fed. Reg. at 56,099.

193 NUREG-1650, Rev. 3, The United States of America Fifth National Report for the Convention on Nuclear Safety, Rev. 3, at 112 (Sep. 2010) (ADAMS Accession No. ML102810031) (NUREG-1650).

194 63 Fed. Reg. at 56,099.

accidents.195 To adequately address these events, licensees must provide extensive accident analyses to define the correct relationship among nominal operating conditions, limiting conditions for operations and limiting safety systems settings to prevent safety limits from being exceeded.196 The AEC promulgated § 50.59 in 1962 to allow licensees to make changes that affect systems, structures, components, or procedures described in the [F]SAR without prior approval provided certain conditions are met.197 The regulation also permits licensees to conduct tests or experiments not described in the safety analysis report, upon meeting those conditions.198 Changes to the UFSAR, which is part of the current licensing basis, may result from promulgation of new rules, plant-specific license amendments and other analyses and reviews that may be conducted, such as in response to NRC bulletins and generic letters.199 Changes to plant design and operation and conduct of new tests and experiments have the potential to affect the probability and consequences of accidents, to create new accidents and to impact the integrity of fission product barriers.200 Thus, the Commission has stated that the purpose of § 50.59 is to identify possible changes that might affect the basis for licensing the facility so that any changes that might pose a safety concern are reviewed by NRC to confirm their safety before implementation.201 Importantly, the rule provides a threshold for regulatory review, not the final determination of safety, for proposed activities.202 195 Id.

196 NEI 96-07 at 9.

197 63 Fed. Reg. at 56,100; Part 50 - Licensing of Production and Utilization Facilities, 27 Fed. Reg.

5,491, 5,491 (June 9, 1962).

198 63 Fed. Reg. at 56,098.

199 Id. at 56,100.

200 NEI 96-07 at 9.

201 Changes, Tests, and Experiments: Final Rule, 64 Fed. Reg. 53,582, 53,584 (Oct. 4, 1999).

202 NUREG-1650, Rev. 3, at 112.

B. Operation of 10 C.F.R. § 50.59 In its current form, 10 C.F.R. § 50.59 authorizes licensees to make changes to the facility and procedures as described in the UFSAR or conduct tests or experiments not described in the UFSAR if two conditions are met.203 These conditions are provided in 10 C.F.R. § 50.59(c)(1)(i) and (ii). First, the change, test, or experiment must not require a corresponding change to the technical specifications, incorporated into the operating license.204 Second, the change, test, or experiment must not meet any of the criteria in paragraph (c)(2) of § 50.59.205 There are eight criteria in § 50.59(c)(2), which reflect the UFSARs initial focus on defense-in-depth and accident prevention and mitigation.206 These eight criteria require a license amendment if the proposed change, test, or experiment would:

(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);

(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 minimal increase in the consequences of an accident previously evaluated in the final safety analysis report (as updated);

(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);

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

203 10 C.F.R. § 50.59(c)(1). Subsection (a) of § 50.59 provides definitions and (b) describes the applicability of the subsection.

204 10 C.F.R. § 50.59(c)(1)(i); see also 10 C.F.R. § 50.36 (describing required elements of technical specifications in each operating license).

205 10 C.F.R. § 50.59(c)(1)(ii).

206 10 C.F.R. § 50.59(c)(2).

(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 (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.207 In addition, 10 C.F.R. § 50.59(a)(4) specifies that if another regulation provides more specific criteria for changes to the facility or procedures, that regulation applies.208 Last, 10 C.F.R. § 50.59(d)(1) requires the licensee to maintain records of changes justified under § 50.59, and §50.59(d)(2) requires the licensee to submit periodic reports describing those changes. Moreover, the final safety analysis report is periodically updated to reflect such changes.209 NRC-approved industry guidance, NEI-96-07, instructs licensees to perform § 50.59 reviews in three steps.210 First, licensees determine whether § 50.59 applies to the activity.211 This step recognizes that § 50.59 does not apply to certain maintenance activities, editorial changes to the UFSAR, changes in managerial and administrative procedures, and most fire protection programs.212 Second, if § 50.59 applies to the proposed activity, licensees perform a screening test to see if the activity requires a § 50.59 evaluation.213 In this step, licensees examine whether the activity is a 207 Id.; see 64 Fed. Reg. at 53,589 - 53,598 (providing guidance on the eight criteria in § 50.59(c)(2));

NEI 96-07 at 41-64 (same).

208 See NEI-96-07 at 23 (To reduce duplication of effort, 10 CFR 50.59(c)(4) specifically excludes from the scope of 10 CFR 50.59 changes to the facility or procedures that are controlled by other more specific requirements and criteria established by regulation.).

209 56 Fed. Reg. 64,943.

210 Reg. Guide 1.187 at 1.187-2 (stating that NEI 96-07 provides methods that are acceptable to the Staff for complying with § 50.59); NEI 96-07 (outlining three step process of applicability, screening, and evaluation).

211 NEI 96-07 at 23.

212 Id. at 23-29.

213 Id. at 29.

test or experiment not described in the UFSAR or a change that directly or indirectly affects a design function of an SSC, a method of performing or controlling design functions, or an evaluation that demonstrates intended design functions will be accomplished.214 If the activity meets these requirements, then the licensee must undertake a § 50.59 evaluation.215 A § 50.59 evaluation involves applying the evaluation criteria of 10 CFR § 50.59(c)2) to determine if a license amendment must be obtained from the NRC.216 As NEI-96-07 explains, [t]here are two possible conclusions to a 10 CFR 50.59 evaluation: (1) The proposed activity may be implemented without prior NRC approval [or] (2) The proposed activity requires prior NRC approval

[via license amendment].217 Importantly, [a]n activity is considered implemented when it provides its intended function, that is, when it is placed in service and declared operable. Thus, a licensee may design, plan, install and test a modification prior to receiving the license amendment to the extent that these preliminary activities do not themselves require prior NRC approval under 10 CFR 50.59.218 C. Applicability of § 50.59 to This Proceeding Issue iii. asks, 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 license amendment?219 At first glance, § 50.59(c) may appear to resolve the question of whether a given action constitutes a de facto license amendment; after all, both the § 50.59(c) and de facto license amendment inquiries examine whether a license amendment is needed in a given instance.

214 Id. at 29, 30 (A given activity may have both direct and indirect effects that the screening review must consider.).

215 Id. at 41.

216 NEI-96-07 at 4. See also id. at 10 (defining § 50.59 evaluation).

217 Id. at 72.

218 Id. (discussing three possible options for proposed activities that are determined to require prior NRC approval).

219 Dec. 7, 2012 Briefing Order at 6.

But, the preceding sections, discussing the background and application of § 50.59, indicate that the standards in § 50.59(c)(1) and (c)(2) do not resolve the issue before the Board. Whether an action constitutes a de facto license amendment depends on whether an agency action expands the licensees operating authority or otherwise alters the original terms of a license.220 The standards in § 50.59(c)(1) and (c)(2) answer a different question. Those standards consider whether a licensee may change the analyses and assumptions in the UFSAR without first obtaining a license amendment from the NRC.221 As discussed above, licensees screen out activities which do not change the analysis in the UFSAR before considering those activities under the standards in § 50.59(c)(1) and (c)(2).222 Consequently, the analysis of an activity under the standards in § 50.59(c)(1) and (c)(2) already presupposes that the activity constitutes a change to the licensees operating authority as described in the UFSAR. 223 Therefore, the standards in § 50.59(c)(1) and (c)(2) do not address the threshold question of whether a given activity constitutes a change in operating authority.

Furthermore, in determining whether an activity constitutes a de facto license amendment, the Board should look to whether NRC approval of an activity allowed a licensee to operate in any greater capacity than originally prescribed.224 But, the standards in § 50.59(c)(1) and (c)(2) do not apply to NRC approvals of any activities - rather they govern the licensees determination of whether a proposed change to the UFSAR, which is a component of the facilitys licensing basis, requires agency approval under 10 C.F.R. § 50.90.225 As a result, the criteria in § 50.59(c) simply do not apply 220 Perry, CLI-96-13, 44 NRC at 327 (internal quotations omitted).

221 10 C.F.R. § 50.59.

222 NEI 96-07 at 29, 30.

223 The UFSAR constitutes part of the licensing basis, with which the licensee must comply when operating the facility. See 10 C.F.R. § 54.3 (noting that the current licensing basis is the set of NRC requirements applicable to a specific plant and includes parts of the UFSAR). Although the definition in 10 C.F.R. § 54.3 applies to Part 54 license renewal, it reflects the Commissions understanding of the normal requirements governing plant operation outside the license renewal context. Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,949 (Dec. 13, 1991).

224 Perry, CLI-96-13, 44 NRC at 327.

225 10 C.F.R. § 50.59(c).

to the question before the Board - whether agency action authorized a licensee to go beyond its existing operating authority without following the normal license amendment process specified in the AEA.226 The Commission has previously found in the Yankee proceeding, A member of the public may challenge an action taken under 10 C.F.R. § 50.59 only by means of a petition under 10 C.F.R. § 2.206.227 Thus, licensee action improperly expanding its operating authority, under the 10 C.F.R. § 50.59 process for example, is not a de facto license amendment but rather a violation of NRC regulations subject to the agencys normal enforcement process.228 Therefore, while a licensee may erroneously apply § 50.59 in a given instance, the NRC responds to such an infraction like it responds to all violations of its regulations, through its normal enforcement and oversight process.229 Consequently, to the extent that the Boards December 7, 2012 Briefing Order invites the parties to challenge existing § 50.59 analyses performed by the licensee, including SCEs § 50.59 analysis for the October 3, 2012 Return to Service Plan, it contravenes well-established Commission precedent.

In support of issue iii., the Board referred the parties to a recent Staff filing in another proceeding, also related to SONGS.230 In that pleading, the Staff stated that section 50.59 requires all licensees to evaluate changes to plant procedures in licensee-controlled documents and to seek a license amendment under 10 C.F.R. § 50.90 for any change that results in a substantial change from 226 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

227 Yankee, CLI-94-3, 39 NRC at 101 n. 7. 10 C.F.R. § 2.206 governs requests for enforcement actions.

Thus, to the extent FOEs Opening brief challenges SCEs prior § 50.59 analyses for replacing the SGs, it would also be outside the scope of this proceeding, which does not relate to § 2.206. San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 3-4).

228 A contrary understanding would mean that every cited license violation by the NRC could potentially amount to a de facto license amendment, with attendant section 189a. hearing opportunities. Such a result would place an untenable burden on the agency and severely impede the agencys enforcement discretion.

229 E.g. San Onofre, CLI-12-20, 76 NRC at __ (slip op at 3-4) (referring FOEs § 50.59 claims to the Staff for review under 10 C.F.R. § 2.206); NRC Enforcement Manual at 7-13 to 7-18.

230 Dec. 7, 2012 Briefing Order at 3 n.3 (citing Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), Docket Nos. 50-361-LA/50-362-LA, NRC Staffs Answer to Petition to Intervene and Request for Hearing By Citizens Oversight at 20 (Nov. 9, 2012) (ADAMS Accession No.

ML12314A361) (Staff Answer to Citizens Oversight)).

previous analyses or results in a more than minimal increase in risk.231 But, the Boards December 7, 2012 Briefing Order borrows this quote from a different context. The issue in the other SONGS case was not whether an NRC authorization constituted a de facto license amendment. Rather, the issue was whether a proposed license amendment to move surveillance frequencies from the technical specifications to a licensee controlled document would allow the licensee free reign to change those frequencies.232 While the Staffs description of § 50.59 was a simplification, it demonstrates why § 50.59 does not answer the question before the Board. As the Staffs description indicated, § 50.59 considers whether licensees must submit license amendments for certain activities that depart from the UFSAR, which is part of the licensing basis, but § 50.59(c) does not examine the threshold question of whether those activities constitute changes in the first place.

Additionally, the Board has stated that an understanding of the operational limits SCE established in the October 3, 2012 Return to Service Plan will assist the Board in determining whether the effects of the March 27, 2012 CAL expanded SCEs operating authority.233 But, under the very terms of the March 27, 2012 CAL, the October 3, 2012 Return to Service Plan, including the operational limits, does not expand SCEs operating authority in any way because the Staff has not 231 Staff Answer to Citizens Oversight at 20.

232 Id. The Staff noted that under § 50.59 this claim was unfounded. Id. While the new surveillance frequencies were not in the UFSAR, as discussed above, the licensee would still need to evaluate any changes to the surveillance frequencies to ensure that they did not impact the safety conclusions in the UFSAR. NEI 96-07 at 29, 30. In that proceeding, the question was complicated because the new surveillance frequency program, which was part of the operating license, contained potentially more restrictive requirements for changing surveillance frequencies than those found in § 50.59. Compare NEI 04-10, Rev. 1, "Risk-Informed Technical Specifications Initiative 5b; Risk Informed Method for Control of Surveillance Frequencies: (April 2007) (ADAMS Accession No. ML071360456) with 10 C.F.R. § 50.59(c)(2). Thus, any change to the surveillance frequencies that would violate § 50.59 might also require a change to the surveillance frequency program, which in turn would require a license amendment. 10 C.F.R. § 50.59. Nonetheless, because § 50.59 at least provided an outside check on the licensees ability to change the surveillance program, the petitioners argument that the applicant could legally change the surveillance frequencies without any restraint was baseless and contrary to the Commissions regulations. Staff Answer to Citizens Oversight at 20-21. Ultimately, the Board agreed that § 50.59 could apply in that instance. Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-12-25, 76 NRC __, __ (Dec. 21, 2012) (slip op. at 14 n.23)

(noting that § 50.59 should apply if the substance of the change brings that revision within the confines of section 50.59).

233 Dec. 7, 2012 Briefing Order at 3 n.4; Perry, CLI-96-13, 44 NRC at 327.

yet fully reviewed and approved it.234 As explained above, under the NRCs normal CAL procedure, the Staff will not authorize a return to service plan for Unit 2 until it determines that the October 3, 2012 Return to Service Plan will adequately protect safety.235 Moreover, the CAL process does not negate, and is not a substitute for, any requirements in 10 C.F.R. §§ 50.59 and 50.90. The CAL process does not permit the NRC to approve SCE operation of SONGS in a manner that would otherwise require a license amendment. Rather the licensee must determine whether the operational limits necessitate any changes to plant procedures, as described in the UFSAR, and decide whether such procedure changes require a license amendment pursuant to

§§ 50.59 and 50.90 prior to implementation. The Staff is reviewing SCEs § 50.59 evaluation for the October 3, 2012 Return to Service Plan, including the operational limits contained in that plan. But, as already established, the Staffs review of a § 50.59 analysis is not an appropriate subject of this proceeding.236 Consequently, the operational limits in the October 3, 2012 Return to Service Plan are not relevant to the determination the Board must make in this proceeding, and an inquiry into whether the licensee correctly determined that the operational limits did not require an amendment under § 50.59 is not within this proceedings scope.

D. FOE Has Not Shown That the CAL Authorizes Any Changes that Would Require a License Amendment Under 10 C.F.R. § 50.59 Even if the standards in § 50.59(c)(1) and (c)(2) applied to the question of whether NRC actions constitutes a de facto license amendment, FOE has not shown that the terms of the CAL would require a license amendment under § 50.59(c)(1) and (c)(2). Therefore, § 50.59(c)(1) and (c)(2) do not assist the Board in resolving the first issue before it.

234 March 27, 2012 CAL at 2.

235 See supra at Staffs Argument Section II.C.

236 Yankee, CLI-94-3, 39 NRC at 101 n. 7; San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 3-4).

1. FOE Has Not Shown that the CAL Itself Would Require a License Amendment Under 10 C.F.R. § 50.59 In both its Petition to Intervene and Opening Brief, FOE entirely ignores the language of the CAL, and makes only passing references that the CAL should be considered a de facto license amendment.237 Instead of discussing the terms of the CAL, FOEs Opening Brief focuses on whether SCEs October 3, Return to Service Plan would require a license amendment under § 50.59.238 Because the CAL is the only action taken so far by the agency, it is the only document that could constitute a de facto license amendment.239 Nowhere does FOE address the terms of the CAL, or how those terms could be a license amendment under § 50.59 or under the Commissions de facto license amendment case law.240 While the Board has suggested that the terms of the October 3, 2012 Return to Service Plan may be helpful in understanding the effects of the CAL,241 as discussed above, the CAL states that any response to the CAL will only be effective upon NRC approval.242 Consequently, the terms of the October 3, 2012 Return to Service Plan do not constitute agency action because the NRC Staff has yet to approve them. Therefore, the October 3, 2012 Return to Service Report is not relevant to the narrow question before the Board, whether the CAL augments the operating authority in the SONGS Unit 2 operating license.243 237 See Petition to Intervene at 2; FOEs Opening Brief at 6. Notably, FOEs summary of the argument highlights that it is the October 3, 2012 Return to Service Plan that FOE is actually claiming is the de facto license amendment, not the March 27, 2012 CAL. See id. (providing FOEs outline of reasons why there is a de facto amendment).

238 FOEs Opening Brief at 9-23.

239 Perry, CLI-96-13, 44 NRC at 327.

240 In its June 18, 2012 Petition to Intervene, FOEs only mention of the CAL was that it should be considered by the Commission to be a de facto license amendment. See Petition to Intervene at 2.

241 Dec. 7, 2012 Briefing Order at 3 and id. at n.4.

242 CAL at 2; see supra at Staffs Argument Section II.C.

243 San Onofre, CLI-12-20, 76 NRC at __ (slip op at 5). Contrary to NRDCs position, the issue before the Board is not what must be done to afford adequate protection to the public before restart is authorized. See NRDCs Amicus Brief at 13.

Moreover, FOEs analysis of whether the terms of the October 3, 2012 Return to Service Plan constitute a license amendment under § 50.59 contravenes the Commissions prohibition against challenging § 50.59 analyses in Yankee.244 FOE acknowledges that SCE has already completed a § 50.59 analysis for the October 3, 2012 Return to Service Plan and determined that a license amendment is not needed to support its terms.245 Thus, FOEs arguments that the October 3, 2012 Return to Service Plan requires a license amendment under § 50.59 constitutes precisely the type of challenge to licensee activities that the Commission has reserved for enforcement space.246 Indeed, the Commission referred a similar challenge to a completed § 50.59 evaluation in this proceeding to the Staff for consideration under § 2.206.247

2. FOE Has Not Shown That the October 3, 2012 Return to Service Plan Would Require a License Amendment Under 10 C.F.R. § 50.59 Even if the Board considered FOEs argument that the October 3, 2012 Return to Service Plan requires a license amendment under § 50.59(c), FOE has not provided sufficient evidence to support its claim. As discussed above, as the proponent of an order in this proceeding, FOE bears the burdens of production and persuasion to establish its claims.248 But, FOE has not provided sufficient information to prevail on its claim.249 First, FOE argues that SCE must seek a license amendment for the October 3, 2012 Return to Service Plan under § 50.59(c)(2)(i) and (c)(2)(iii) because operating unrepaired steam generators at 70% of power will result in more than a minimal increase in the frequency of occurrence of an accident previously evaluated in the UFSAR and in more than a minimal increase in the 244 Yankee, CLI-94-3, 39 NRC at 101 n. 7.

245 FOEs Opening Brief at 5.

246 Yankee, CLI-94-3, 39 NRC at 101 n. 7.

247 San Onofre, CLI-12-20, 76 NRC at __, __ (slip op. at 3-4).

248 See supra at Staffs Argument Section I.

249 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 471 (2006) (finding that an expert opinion that merely states a conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation for that conclusion is inadequate to establish a material dispute).

consequences of an accident previously evaluated in the UFSAR.250 But FOEs experts do not establish that any increase in accident frequency or consequences will be more than minimal.251 Instead, the Large Affidavit only claims that it remains doubtful that there is not an increased frequency of accident involving a single or multiple tube failure.252 Likewise, the Gundersen Affidavit observes that a steam line break accident at SONGS Unit 2 would result in a more severe accident than previously analyzed.253 Thus, neither affidavit even alleges that any increase in accident frequency or consequences at SONGS would be more than minimal. Consequently, FOE has not shown that the October 3, 2012 Return to Service Plan would require a license amendment under § 50.59(c)(2)(i) and (c)(2)(iii).

Second, FOE contends that because the October 3, 2012 Return to Service Plan creates a possibility for an accident of a different type than any previously evaluated in the UFSAR, SCE must seek a license amendment under § 50.59(c)(2)(v). Specifically, FOE alleges that a scenario of multiple tube rupture at Unit 2 is now credible though it may not have been considered credible enough to include in the UFSAR previously.254 NEI 96-07 indicates that § 50.59(c)(2)(v) is triggered when the licensee identifies a credible accident scenario that is as likely to happen as those previously evaluated in the UFSAR.255 But, FOE does not provide any evidence to establish that a multiple tube rupture event is as likely as other accidents discussed in the UFSAR. Rather, FOE assumes that tests from the SG in Unit 3, combined with the wear in the SG for Unit 2, suffice to show that a multiple tube rupture event is credible.256 However, FOE does not provide any evidence that 250 FOEs Opening Brief at 19-20.

251 Id. at 20.

252 Large Affidavit at ¶ 11.19.1.

253 Gundersen Affidavit at ¶ 38.

254 FOEs Opening Brief at 20.

255 NEI 96-07 at 53.

256 FOEs Opening Brief at 19-20.

the testing at Unit 3 is similar to Unit 2 operating conditions and acknowledges that indications of wear and tube thinning are not the same as tube rupture.257 More importantly, FOEs arguments ignore the requirements of TS 5.5.2.11.b.1, which already requires all tubes to have sufficient margin to failure during design basis accidents.258 Consequently, FOE has not produced sufficient evidence to meet its burden regarding § 50.59(c)(2)(v).

Third, FOE claims that the October 3, 2012 Return to Service Plan requires a license amendment under § 50.59(c)(2)(ii) because operating Unit 2 without repair or replacement of the degraded tubes creates a substantial increase in the likelihood of a malfunction in the steam generators, components critical to safety.259 In support of this claim FOE relies on the Large Affidavit to claim that tube wear will continue under the October 3, 2012 Return to Service Plan and that free-debris will be generated and swept into . . . the [reactor steam generator] bundle.260 But, FOE does not provide any support to link ongoing tube wear and debris with a more than a minimal increase in the likelihood of occurrence of a malfunction of the SGs. Thus, FOE has also not demonstrated that the October 3, 2012 Return to Service Plan would require a license amendment under § 50.59(c)(2)(ii).261 Fourth, FOE alleges that SCE must seek a license amendment under § 50.59(c)(2)(vi) for its October 3, 2012 Return to Service Plan.262 That section of 50.59(c) requires a license amendment when a change, test, or experiment would [c]reate a possibility for a malfunction of an SSC important 257 Id. at 15.

258 SONGS TS at § 5.5.2.11.b.1.

259 FOEs Opening Brief at 21.

260 Id. (quoting Large Affidavit at ¶ 11.21).

261 NRDC asserts that information from the Hirsch Report also supports this claim. NRDCs Amicus Brief at 11. However, like FOE, NRDC has not provided a sufficient link to establish a more than minimal increase in the likelihood of a malfunction. See 10 C.F.R. § 50.59 (c)(2)(ii).

262 FOEs Opening Brief at 22.

to safety with a different result than any previously evaluated in the UFSAR. 263 NRC-approved guidance describes a malfunction with a different result as a malfunction that involves an initiator or failure whose effects are not bounded by those explicitly described in the UFSAR.264 In support of its claim, FOE argues that the October 3, 2012 Return to Service Plan is inadequate because it does not adequately account for all of the potential sources of vibration in the SGs.265 But, these arguments appear to focus on forces, such as vibration, that could create a greater likelihood that an SG may fail.

FOE does not provide any suggestion that these sources of vibration could lead to greater or different results from an SG failure than previously understood. Consequently, FOE has not provided sufficient evidence to establish that SCE must seek a license amendment for the October 3, 2012 Return to Service Plan under § 50.59(c)(2)(vi).

Fifth, and finally, FOE argues that under § 50.59(c)(2)(vii) SCE must seek a license amendment for the October 3, 2012 Return to Service Plan because SCE cannot show that the degraded SSCs would be able to meet the design basis limit for a fission product barrier as described in the [UFSAR]266 In support of this claim, FOE asserts that AREVA found that a number of tube wear modes (not just Tube to Tube Wear) on Unit 3 . . . failed the accident leakage performance criteria and asserts that this finding also applies to Unit 2.267 But, none of the citations provided by FOE to the Large or Gundersen Affidavits support its claim that AREVAs finding regarding the accident leakage performance criteria for Unit 3 also applies to Unit 2.268 Thus, FOE provides no basis for its assertion that AREVAs finding regarding the leakage performance criteria on Unit 3 would also apply to Unit 2.

263 10 C.F.R. § 50.59(c)(2)(vi).

264 NEI 96-07 at 54.

265 FOEs Opening Brief at 22.

266 10 C.F.R. § 50.59(c)(2)(vii). FOEs Opening Brief at 22-23.

267 FOEs Opening Brief at 23.

268 Id. (citing Large Affidavit at ¶¶ 5.9, 7.11-15, 11.31.1, Gundersen Affidavit at ¶ 38).

As a result, even if the Board were to consider whether the October 3, 2012 Return to Service Plan constituted a de facto license amendment under § 50.59(c)(2), FOE has not provided sufficient evidence to prevail on that issue.

V. Response to Issue iv.: The Final Safety Analysis Report (FSAR) Analyzes a Steam Generator Tube Failure Event Assuming One Ruptured Tube and an Assumed Primary-to-Secondary Leak Rate, Which Is an Analysis Supporting the Staffs Reasonable Assurance Determination In issue iv., the Board asked the parties the following: 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.269 SCEs FSAR analyzes a SG tube failure event. Specifically, SCEs FSAR § 15.10.6.3.2 Steam Generator Tube Rupture with Concurrent Loss of AC Power, Rev. 44270 provides, A Steam Generator Tube Rupture (SGTR) event is a penetration of the barrier between the Reactor Coolant System (RCS) and the main steam system via the double-ended break of a U-tube. This causes highly radioactive RCS fluid to contaminate the secondary side. The radioactivity is released via the condenser air ejectors, the Main Steam Safety Valves (MSSVs), and the Atmospheric Dump Valves (ADVs).

This event is analyzed with a concurrent loss of AC power, which increases the radiological release to the environment.271 The analysis assumes one "double-ended break of a U-tube" and that operator action to isolate the affected steam generator is delayed until 30 minutes after initiation of the event.272 269 Dec. 7 2012 Briefing Order at 6.

270 SCE provided this portion of the FSAR to the parties on December 13, 2012. See Southern California Edison Company's Answer Opposing Petitioner's Motion to Amend the Board's December 7, 2012 Order at 9 and Attachment 1 (Dec. 13, 2012) (ADAMS Accession No. ML12348A507).

271 FSAR § 15.10.6.3.2, Rev. 44, at page 15.10-177.

272 Id.

With respect to the Board's inquiry about the primary-to-secondary leak rate, the FSAR tabulates a normal primary to secondary leak rate into each SG as 0.5 gallons per minute, and a total integrated mass transfer of 70,563 pounds of reactor coolant from the primary to the secondary side via the ruptured tube during the assumed 1,800 seconds (30 minutes).273 Last, in response to the Board's inquiry about what is a conservative primary-to-secondary leak rate to assume in a SG tube failure event analysis, the FSAR states that the 30 minute delay assumed for the operator to isolate the affected steam generator is conservative.274 Additionally, the FSAR states that total leakage past one or more of the affected steam generators Main Steam Safety Valves (MSSV) or Atmospheric Dump Valves (ADV) is conservatively modeled as the flow capacity of an MSSV.275 While NRC regulations do not define a conservative leak rate, the procedure governing the Staffs review of an initial operating license application, NUREG-0800, Standard Review Plan (SRP),

includes the following guidance regarding leakage in unaffected steam generators and steam generators with a failed tube:

8. Determination of the primary to secondary system leakage in the unaffected steam generators. The operating primary-to-secondary leakage is assumed to exist in the unaffected steam generators at the maximum rate allowed by the standard technical specifications ....

9. Determination of the coolant flow through the failed tube. ... the flow rates through the two ends of the failed tube are calculated using a suitable flow model, taking credit for critical flow where appropriate.276 The standards for issuing new licenses (i.e., NUREG-0800) are used when reviewing license amendment requests because, in determining whether to amend a license, the Commission is guided 273 Id. at Table 15.10.6.3.2-3, "Principal Assumptions and Inputs for Steam Generator Tube Rupture Dose Analysis" page 15.10-184.

274 Id. at 15.10-177.

275 Id. at 15.10-179.

276 SRP § 15.6.3, "Radiological Consequences of Steam Generator Tube Failure (PWR)," Rev. 2, July 1981 at 15.6.3-4.

by the considerations which govern the issuance of initial licenses to the extent applicable and appropriate.277 These standards are not at issue here, because SCE has made no application for an amendment related to the SGs.

Notably, FOEs response to question iv. is not based on SCEs FSAR or any part of the existing SONGS license. Instead, FOE refers to proposed bases278 from a pending license amendment request.279 The proposed bases are irrelevant to the Boards questions, which refer to the existing SONGS FSAR. Thus, the Board should not rely on FOEs statements about these proposed bases when making its decision on the matters referred to it by the Commission.

Moreover, FOEs response appears to misstate the requirements in SCEs TSs. Specifically, in the Large Affidavit, Mr. Large proffers certain accident-induced leakage rates. Mr. Large claims, "For accident induced events ... the leakage is not to exceed 0.5 gallon per minute per RSG and 1 gpm through both RSGs."280 Mr. Large appears to misstate TS LCO 3.4.13., which in part limits RCS operational leakage to 1 gpm of identified leakage, and 150 gallons per day primary-to-secondary leakage through any one SG. Subsequently, Mr. Large recognizes the actual leakage limits from the technical specifications.281 Thus, the Board should disregard Large Affidavit at ¶ 7.11 and the corresponding statement in FOEs Opening Brief at page 42.

Finally, FOE does not indicate how any of the information provided in response to question iv.

suggests that the March 27, 2012 CAL is a de facto license amendment. If anything, FOEs response highlights that the CAL only requested information and action within the existing license. Specifically, the Large Affidavit speculates about what SCE must do to show that SCE meets the current 277 10 C.F.R. § 50.92(a).

278 A summary statement of the bases or reasons technical specifications, other than those covering administrative controls, are included in the license amendment request, but the bases are not part of the technical specifications, even if the LAR is approved. See 10 C.F.R. §§ 50.36(a)(1) and 50.90.

279 Large Affidavit at ¶ 7.7.9 ("The RSG accident induced leak performance expectation of the FSAR is most probably that stated in the Improved Technical Specification Conversion [fn41] for SONGs.").

280 Id. at ¶ 7.21 (referencing ¶ 7.11).

281 Id. at page 38 n. 44.

requirements in TS 5.5.2.11.b.1 to evaluate loading conditions associated with the design basis accidents, or combination of accidents in accordance with the design and licensing basis.282 This is the same request outlined in CAL Action 2 for Unit 2. But requesting a licensee to demonstrate that it meets current requirements of an existing license is not a Staff action that augments the authority of the licensee.283 Therefore, FOE has not demonstrated that the Staff's CAL is a de facto license amendment. Rather, FOEs submitted testimony on issue iv. suggests that FOE agrees with the Staff that the CAL only asked SCE to demonstrate compliance with its existing license.

VI. Response to Issues v. - viii.: SCEs Tube-to-Tube Report Issues v. through viii. relate to Attachment 6 - Appendix B of the SONGS Unit 2 Return to Service Report, SONGS U2C17 Steam Generator Operational Assessment for Tube-to-Tube Wear (Tube-to-Tube Report).284 The Tube-to-Tube Report documents SCEs operational assessment for tube-to-tube wear, which was done [i]n accordance with the SONGS Steam Generator Program and EPRI Steam Generator Integrity Assessment Guidelines.285 Specifically, the Tube-to-Tube Report determines the operating power level and associated inspection interval that provides the required margin relative to the onset of in-plane fluid-elastic instability to prevent tube-to-tube wear.286 Issue v. asks the parties whether the SGs from other reactors in Figure 4-3 of the Tube-to-Tube Report, which compares the bulk velocity ratio and void fraction ratio to several successfully 282 See e.g. Large Affidavit at ¶ 7.11; CAL Action 2, requesting the results of the assessment of the Unit 2 steam generators, along with the basis for concluding that the requirements and regulations are met. See also Large Affidavit at ¶¶ 7.11 - 7.15 (discussing safe shutdown earthquake).

283 See Perry, CLI-96-13, 44 NRC at 325 n.37.

284 Dec. 7, 2012 Briefing Order at 6-7 (citing Attachment 6 - Appendix B of the SONGS Unit 2 Return to Service Report, SONGS U2C17 Steam Generator Operational Assessment for Tube-to-Tube Wear (Oct. 3, 2012)) (ADAMS Accession No. ML12285A268).

285 Tube-to-Tube Report at 12 (internal citations omitted). SONGS TS 5.5.2.11 outlines the Steam Generator (SG) Program. The purpose of the program is to ensure that SG tube integrity is maintained.

SONGS TS 5.5.2.11. See also SONGS TS 3.4.17 Steam Generator (SG) Tube Integrity (outlining required actions and surveillance done in accordance with the Steam Generator Program).

286 Tube-to-Tube Report at 12.

operating large [SGs],287 are similar to SONGS SGs.288 Issue vi. questions the conservatism in SCEs plan to operate Unit 2 at 70% power in light of Figure 5-1 of the Tube-to-Tube Report, which indicates that the bulk fluid velocity for SONGS is at the high end of the experimental range.289 Issue vii. notes that the Tube-to-Tube Report rests on a conclusion at a 50% confidence level and inquires if a 50% confidence level suffices to provide reasonable assurance.290 Last, issue viii. asks how the term operational assessment, as used in the Tube-to-Tube Report, differs from the terms test and experiment, as used in 10 C.F.R. § 50.59.291 A. The Details of the Tube-to-Tube Report are Not Relevant to Whether the March 27, 2012 CAL Issued to SCE Constitutes a De Facto License Amendment As a preliminary matter, the details in the Tube-to-Tube Report, which support SCEs response to the CAL, are not relevant to the first question before the Board.292 As the Board has recognized, the Commission referred a narrow question to the Board: whether the [March 27, 2012]

CAL issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity.293 In so doing, the Commission relied on previous NRC precedents,294 which recognize 287 Dec. 7, 2012 Briefing Order at 6. See also Tube-to-Tube Report at 25 (displaying Figure 4-3: Spider Diagram of the Operational Envelope for Large U-bend Steam Generators).

288 Dec. 7, 2012 Briefing Order at 6. The Boards clerk emailed the parties on December 19, 2012 to notify them of a minor correction to the wording of issue v in the Boards Dec. 7, 2012 Briefing Order. On page 7 of the Order, Question v of the Issues to be Briefed section should read alloy 690 and not alloy 670. E-mail from Onika Williams, Law Clerk, Atomic Safety and Licensing Board (Dec. 19, 2012).

289 Dec. 7, 2012 Briefing Order at 7.

290 Id.

291 Id.

292 The Staff has frequently made this point to the Board in other contexts. See Transcript at 13, 25, 35-36, 39; NRC Staffs Answer to Petitioners Motion to Amend the Proposed Scheduling Order and Clarify Scope of Disclosure, at 7 (Dec. 14, 2012) (ADAMS Accession No. ML12349A023).

293 Order at 4 (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension)

(Dec. 20, 2012) (ADAMS Accession No. ML12355A452) (citing San Onofre, CLI-12-20, 76 NRC at __ (slip op.

at 5)).

294 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5 n. 15) (citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-28, 30 NRC 271 (1989) affd, ALAB-940, 32 NRC 225 (1990); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant), LBP-95-17, 42 NRC 137 (1995), revd and vacated, CLI-96-13, 44 NRC 315 (1996)).

that any agency action permitting a licensee to go beyond existing license authority is a license amendment within the meaning of the Atomic Energy Act.295 The agency action here is the Staffs issuance of the March 27, 2012 CAL to SCE. Thus, the terms of the CAL are the appropriate focus for this Boards consideration of the first issue because the CAL represents agency action which may constitute a de facto license amendment if it somehow expanded SCEs operating authority.296 In contrast, SCEs October 3, 2012 Return to Service Plan, and accompanying Tube-to-Tube Report, do not constitute agency action. They cannot authorize SCE to go beyond the terms of its existing license or to undertake any other action for that matter.297 Rather, these documents are the licensees proposed analyses to satisfy the conditions specified in the CAL.298 As a result, the terms of the October 3, 2012 Return to Service Plan and the Tube-to-Tube Report are irrelevant to the narrow question before the Board: whether the CAL issued to SCE expanded its operating authority in any way.

The Board suggests that it must consider documents SCE created incident to, and subsequent to, the CAL in order to understand whether the CALs effect expanded SCEs operating authority for SONGS Unit 2.299 However, as the Board later noted, under the Staffs normal CAL procedure, the Staff must ultimately determine the acceptability of the licensees response to the CAL 295 Perry, CLI-96-13, 44 NRC at 327 (emphasis added).

296 Id. Although the CAL prohibited SCE from restarting Units 2 or 3 until its terms were met, such a prohibition does not constitute a de facto license amendment under well established NRC precedent. See Perry, CLI-96-13, 44 NRC at 327 (discussing federal cases that found no de facto license amendment when plants could not restart until meeting certain requirements). Rather, because SONGS Unit 2 and 3 cannot restart until SCE demonstrate compliance with those units current licenses, such a restriction is not a change to SCEs existing operating authority. See supra Staffs Argument Section II.

297 Id.

298 See October 3, 2012 Return to Service Plan at 2-3 (describing plan to meet CAL Actions 1 and 2 in order to return SONGS Unit 2 to service).

299 Dec. 7, 2012 Briefing Order at 3 (Here, for example, 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 ambit of the prescriptive authority granted under the license.).

separately.300 Indeed, the CAL itself specifically states that SCE may not return SONGS Units 2 or 3 to service until the NRC reviews SCEs response to the CAL and grants permission to resume power operations in writing.301 As a result, the October 3, 2012 Return to Service Plan and Tube-to-Tube Report do not provide any further indication of how the CAL will affect SCEs operating authority.

Rather, the plans in those documents will only affect SCEs operating authority if they meet with Staff approval.302 Thus, at this stage of the Staffs review, the details of the October 3, 2012 Return to Service Plan, including the Tube-to-Tube Report, are not relevant to the question of whether the March 27, 2012 CAL issued to SCE constitutes a de facto license amendment.

Moreover, Actions 1 and 2 for Unit 2 outlined in the CAL303 provide that SCE will, among other things, implement actions to prevent loss of tube integrity, establish a protocol of inspections and/or operational limits for Unit 2 and provide the basis for SCEs conclusion that there is reasonable assurance, as required by NRC regulations, that [Unit 2] will operate safely.304 These actions are within the ambit of authority in SCEs existing license, as the TSs require tube integrity and compliance with NRC regulations so that there is reasonable assurance that the unit will operate safely.305 Therefore, the issuance of the CAL is not a Staff action that augmented SCEs existing authority.

300 Dec. 21, 2012 Briefing Order at 2.

301 March 27, 2012 CAL at 2. As explained above, an inquiry into whether the licensee has appropriately utilized the § 50.59 process is inappropriate outside of the enforcement context. Yankee, CLI 3, 39 NRC at 101 n. 7.

302 Of course, the Staffs response to the October 3, 2012 Return to Service Plan may constitute agency action, and the details of the October 3, 2012 Return to Service Plan and the Tube-to-Tube Report may be relevant in determining if it does.

303 These actions for Unit 2 came from SCEs March 23, 2012 Return to Service Plan, which describes the actions it committed to take prior to returning Units 2 and 3 to power operation. See CAL at 2 (referencing SCEs March 23, 2012 Return to Service Plan).

304 March 27, 2012 CAL.

305 See supra at Staffs Argument Section II.

Just as importantly, the CAL issued to SCE did not dictate a specific response from SCE.

Instead, SCE could have taken a variety of approaches to establishing the requested actions, protocols, inspections, and operational limits, some of which may have been acceptable to the Staff and some of which may have required a license amendment.306 But the specific terms of the licensees plan in response to the March 27, 2012 CAL are not generated by the Staff and not preordained by the terms of the CAL.307 As a result, the October 3, 2012 Return to Service Plan and Tube-to-Tube Report do not constitute a legal effect of the CAL in any meaningful sense. Rather, they are only one approach, adopted by the licensee, to meeting the actions outlined in the CAL, which the Staff may or may not approve at a later time. Consequently the October 3, 2012 Return to Service Plan and underlying Tube-to-Tube Report do not help answer the question of whether the March 27, 2012 CAL constituted a de facto license amendment.

The Boards questions v.-viii. are also not relevant to the second question before the Board, whether FOEs petition meets the standing and contention admissibility requirements,308 because FOE did not raise those questions and concerns in its pleadings. The Boards Briefing Order specifically states that FOE may not offer standing and contention admissibility arguments not already made to the Commission in its brief.309 B. Because the Staff Has Not Yet Reached a Position on Whether to Approve SCEs October 3, 2012 Return to Service Plan, the Staff Cannot Take a Position on Several of the Issues Before the Board As discussed above, the NRC Staff is reviewing SCEs October 3, 2012 Return to Service Plan outside of this proceeding. As part of that review, the Staff will examine whether SCEs October 3, 2012 Return to Service Plan requires a license amendment and whether it provides a reasonable 306 For example, the licensee could have chosen to limit SONGS Unit 2 operation to 75% power or it could have proposed major design modifications to the SGs.

307 The October 3, 2012 Return to Service Plan only discussed Unit 2. In contrast, the CAL issued to SCE discusses actions for both Unit 2 and Unit 3.

308 See Dec. 7, 2012 Briefing Order at 1; San Onofre, CLI-12-20, 76 NRC __, __ (slip op. at 5).

309 See Dec. 7, 2012 Briefing Order at 6 n.10.

assurance that SONGS Unit 2 will operate safely after restart.310 Many of the issues for briefing related to the Tube-to-Tube Report would require the Staff to adopt a final position on its ongoing review. Consequently, the Staff cannot provide definitive responses to the questions raised by issues vi. and vii.311 Issue vi. asks whether SCEs plan to operate SONGS Unit 2 at 70% power is conservative, which is integrally tied to the question of whether SCEs return to service plan provides an adequate margin of safety. Likewise, issue vii.s inquiry into whether the Tube-to-Tube Reports conclusions at a 50% confidence level provide sufficient reasonable assurance to meet the NRCs regulations goes directly to the question of whether the October 3, 2012 Return to Service Plan itself complies with the NRCs regulatory requirements.312 When the Staff determines the acceptability of the October 3, 2012 Return to Service Plan, it will inform the Board and other parties of its decision.313 With regard to issue v., the Staff does not presently know the identity of the plants compared to SONGS in Figure 4-3; therefore, the Staff cannot provide an assessment of the similarity of the tube material, tube spacing, and support structures. The Staff's ongoing review is, of course, considering similarities and differences between SONGS and other pressurized water reactors.

With respect to issue viii., the term Operational Assessment as used in the Tube-to-Tube Report refers to an analysis that is performed to determine the condition of the steam generator tubes at the time of the next scheduled inspection outage.314 The analysis is performed to ensure that the tubes will continue to meet the performance criteria (acceptance limits) specified in the plants 310 E.g. San Onofre Nuclear Generating Station, Unit 2 - Request for Additional Information Regarding Response to Confirmatory Action Letter (TAC No. ME9727), (Dec. 26, 2012) (ADAMS Accession No.

ML12361A065) (RAI 32).

311 Duke Energy Corporation (Catawba Nuclear Station, Units 1 & 2), CLI-04-06 59 NRC 62, 74 (2004)

(stating that licensing boards do not sit . . . to supervise or direct NRC Staff regulatory reviews).

312 The Staff notes that the regulations do not contain a preset confidence level for determining reasonable assurance.

313 Likewise, if any restart plan for Unit 3 is received, the NRC will evaluate it outside of this proceeding, and will inform the Board and other parties of its decision.

314 NEI 96-07, at 11, B-1; see T.S. 5.5.2.11 (requiring the plant to adopt a Steam Generator Program).

technical specifications. In contrast, § 50.59 defines the terms test and experiment to mean any activity where any structure, system, or component is utilized or controlled in a manner not contemplated by the UFSAR.315 Consequently, the term Operational Assessment, as used in the Tube-to-Tube Report is not the same as the terms test or experiment used in 10 C.F.R. § 50.59, because the Operational Assessment does not propose to utilize or control any SSC in a manner that is inconsistent with the UFSAR. Rather, the Operational Assessment is intended to demonstrate that the SGs satisfy the tube integrity performance criteria. Additionally, the Operational Assessment is intended to show that the SGs will be utilized and controlled in a manner that is within the reference bounds of the design bases as described in the final safety analysis report UFSAR and is consistent with the analyses or descriptions in the final safety analysis report UFSAR.316 FOE argues that the Operational Assessment is a test or experiment because it is an exercise aimed at predicting whether a plant will perform within the technical specifications required by the license.317 But this conclusion ignores the plain text of § 50.59(a)(6), which does not define tests or experiments as exercises in prediction but as activities that control or utilize SSCs in new ways.318 Additionally, FOE extensively argues that other aspects of the return to service plan will constitute tests or experiments within the meaning of § 50.59 and therefore require a license amendment under that section.319 But, as the Staff has pointed out, these arguments are expressly barred by the Commissions holding in Yankee, which limits review of licensees § 50.59 determinations to § 2.206 enforcement proceedings.320 Moreover, even if these arguments were permissible, FOE has not provided adequate support for any of its claims.

315 10 C.F.R. § 50.59(a)(6); see supra at Staffs Argument Section IV.; NEI 96-07 at 22-23.

316 NEI 96-07 at 11.

317 FOEs Opening Brief at 12.

318 10 C.F.R. § 50.59(a)(6).

319 FOEs Opening Brief at 12-14.

320 See supra at Staffs Argument Section IV.C.

C. The Board Need Not Resolve Issues v. Through viii. to Answer the Narrow Questions Before It As discussed above, the October 3, 2012 Return to Service Plan and accompanying Tube-to-Tube Report do not constitute agency action and consequently do not provide authorization of any kind to SCE. Therefore, these documents are irrelevant to answering the first question before the Board, i.e., whether the March 27, 2012 CAL issued to SCE constitutes a de facto license amendment.321 Moreover, even assuming the Tube-to-Tube Report described the effects of the CAL, issues v.

through viii. would not help resolve the issue of whether the CAL constituted a de facto license amendment. To resolve that issue, the Board must determine whether the actions described in the CAL expanded SCEs operating authority beyond that described in the existing license. But the focus of issues v. through vii. is not whether the actions described in the Tube-to-Tube Report permit SCE to operate beyond the terms of the current operating license for SONGS Unit 2. Instead, issue v. asks whether Figure 4-3 of the Tube-to-Tube Report describes SGs that are similar to those at SONGS.322 Issue vi. asks if operation at 70% power is conservative.323 And issue vii. questions whether a confidence level of 50% meets the reasonable assurance requirement in the regulations.324 Thus, these questions consider the adequacy of the underlying analysis on which SCE relies to justify its October 3, 2012 Return to Service Plan. They do not examine whether the proposed actions under the plan, i.e., operating at 70% power, require authority beyond that granted by the SONGS Unit 2 license. While these questions are closely tied to the ultimate acceptability of SCEs restart plan, they do not relate to the separate question of whether the return to service plan contemplates action beyond that in the existing license.

321 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

322 Dec. 7, 2012 Briefing Order at 6.

323 Id. at 7.

324 Id.

Likewise, issue viii. does not directly relate to whether action undertaken in response to the CAL constitutes a de facto license amendment. Issue viii. asks, 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?325 As discussed above, under 10 C.F.R. § 50.59, licensees may alter components of their licensing bases that are in licensee-controlled documents without obtaining prior NRC approval if the alterations meet certain requirements.326 Thus, § 50.59 provides a mechanism by which licensees may forego the license amendment process to seek approval for such changes to the licensees authority. But it does not relate to the threshold question of whether a NRC-authorized action constitutes an expansion of operating authority in the first instance. As a result, issue viii. and § 50.59 are not immediately relevant to the question at hand, whether the CAL or its effects constitute a license amendment.327 VII. FOEs Petition to Intervene, Even as Supplemented By FOEs Opening Brief, Does Not Meet 10 C.F.R. § 2.309 The Commission referred a portion of FOEs contention to this Board and asked the Board to consider whether (1) the CAL constitutes a de facto license amendment and, if so, whether (2) FOEs Petition to Intervene, which asks the NRC to institute a license amendment proceeding on the CAL, meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309.328 As discussed below, the Board should not admit FOEs contention in this proceeding. The first question is a threshold question.329 If the Board determines the March 27, 2012 CAL is not a de facto license amendment, then there is no proceeding in which FOE can intervene. If the Board determines the 325 Id.

326 10 C.F.R. § 50.59.

327 A member of the public may challenge an action taken under 10 C.F.R. § 50.59 only be means of a petition under 10 C.F.R. § 2.206. Yankee, CLI-94-3, 39 NRC at 101 n. 7.

328 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

329 See Transcript at 24. See also San Onofre, CLI-12-20 76 NRC at __ (slip op. at 5) (recognizing that if the Board decided the March 27, 2012 CAL was a de facto license amendment, FOE and any other interested person would have the opportunity to submit a hearing request).

March 27, 2012 CAL is a de facto license amendment, than a proceeding will be instituted and FOE can submit a hearing request and/or petition to intervene. Thus, in resolving the first question referred by the Commission, FOEs Petition to Intervene will be mooted. In any event, FOEs Petition to Intervene does not meet 10 C.F.R. § 2.309s contention admissibility or standing requirements, and therefore must be denied.

A. The Boards Resolution of the First Question Referred by the Commission Will Necessarily Resolve the Second The Boards ruling on the first referred question, whether the March 27, 2012 CAL constituted a de facto license amendment, will necessarily moot the second question of whether FOEs petition meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309.330 FOEs contention almost exclusively challenged SCEs § 50.59 analysis supporting the 2010 and 2011 SG replacements at SONGS Units 2 and 3, respectively.331 But, the Commission referred FOEs challenge to SCEs § 50.59 analysis to the Staff for appropriate action under 10 C.F.R. § 2.206.332 After that referral, the only remaining portion of FOEs Petition to Intervene was its assertion that the current Confirmatory Action Letter (CAL) process is in fact a license amendment proceeding under 10 C.F.R. § 2.309.333 The Commission further narrowed FOEs challenge by only referring to this Board the question of whether the March 27, 2012 CAL constituted an amendment, as opposed to the CAL process generally.

If the Board agrees with the Staff that the March 27, 2012 CAL is not a de facto license amendment, then no license amendment proceeding exists and FOEs Petition to Intervene is 330 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

331 Petition to Intervene at 16-23.

332 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 3-4) (citing Yankee, CLI-94-03, 39 NRC at 101 n.7 (A member of the public may challenge an action taken under 10 C.F.R. § 50.59 only be means of a petition under 10 C.F.R. § 2.206.)).

333 Petition to Intervene at 2.

moot.334 Moreover, in that event, the Board will have already determined that the remaining claim in FOEs Petition to Intervene is incorrect as a matter of law. On the other hand, if the Board finds that the March 27, 2012 CAL is a de facto license amendment, then the Board will have already granted the relief FOEs contention seeks, also rendering it moot.335 Should the Board so rule, FOE will have an opportunity to submit a new petition to intervene on any license amendment request SCE would file to pursue a return to service of SONGS Units 2 and 3 in accord with the terms of the March 27, 2012 CAL.336 B. FOE Has Not Provided Adequate Support for Its Contention Under § 2.309(f)

FOEs contention that the March 27, 2012 CAL constitutes a de facto license amendment lacks an adequate basis and should be denied.337 Under Commission precedent, unsupported assertions do not provide a sufficient factual basis to support an admissible contention.338 But, the portions of the Petition to Intervene referred to this Board only contain such unsupported assertions, which contend without any support or analysis that the CAL is a de facto license amendment.339 Consequently, the Petition to Intervene does not provide an adequate basis for the proffered contention.

334 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-12, 59 NRC 237, 239 (2004) (It is axiomatic that a person cannot intervene in a proceeding before the proceeding actually exists.). See generally Staffs Answer to Petition to Intervene.

335 See, e.g., Virginia Electric and Power Company d/b/a Dominion Virginia Power and Old Dominion Electric Cooperative (Combined License Application for North Anna Unit 3), CLI-12-14, 75 NRC __, __ (2012)

(slip op. at 3) (noting that when the concerns raised by a contention are addressed, the contention becomes moot).

336 See 42 U.S.C. §189(a) (requiring the NRC to provide an opportunity for a hearing on every license amendment request). Waiting until SCE files a license amendment request is sounder policy than instituting a proceeding based on SCEs October 3, 2012 Return to Service Plan, because the terms of SCEs proposal may change.

337 10 C.F.R. § 2.309(f)(1)(v), (vi).

338 Palisades, CLI-07-18, 65 NRC at 414.

339 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5); e.g. Petition to Intervene at 2.

In its Opening Brief, FOE attempts to bolster its contention by reproducing the basis for its original contention regarding SCEs §50.59 analysis for the SG replacement.340 But, as explained above, the Commission explicitly referred this portion of FOEs Petition to Intervene to the Staff for consideration under the § 2.206 process, and the results of that process are not relevant to the question before the Board.341 Rather, SCEs § 50.59 evaluation for the SG replacement relates to an entirely different issue than whether the March 27, 2012 CAL expanded SCEs operating authority.342 The § 50.59 evaluation determined whether SCE needed a license amendment to authorize the SG replacement whereas the Boards review of the March 27, 2012 CAL concerns whether the Staffs March 27, 2012 CAL granted SCE any greater operating authority or authorized activities beyond the ambit of the prescriptive authority granted under the license.343 Moreover, the Commission has clearly stated that the public may only challenge § 50.59 determinations through the § 2.206 process.344 Thus, FOEs claims related to SCEs § 50.59 analysis for the SG replacement would be outside the scope of any licensing hearing the Board convened on FOEs Petition to Intervene. As a result, FOEs claims regarding SCEs § 50.59 analysis also do not support FOEs contention because they relate to a different issue and are not within the scope of this proceeding.345 Finally, although the Board cautioned FOE not to go beyond the scope of the arguments they presented to the Commission on standing and contention admissibility, FOE attempts to bolster its basis for the proffered contention.346 Specifically, FOE contends that SCE's response to the CAL and its restart plan, as discussed by FOE in Section IV of its Opening Brief, provide further bases for 340 FOEs Opening Brief at 54-57.

341 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 3-4); see supra Staffs Argument Section III.

342 Perry, CLI-96-13, 44 NRC at 327 (noting that Staff action will constitute a de facto license amendment if it expands a licensees operating authority).

343 See Boards Dec. 7, 2012 Briefing Order at 3 (citing Perry, CLI-96-13, 44 NRC at 327).

344 Yankee, CLI-94-03, 39 NRC at 101 n.7.

345 10 C.F.R. § 2.309(f)(1)(iii), (iv).

346 FOEs Opening Brief at 57-58.

FOEs contention.347 But, as discussed above, the terms of SCEs responses to the March 27, 2012 CAL (e.g., the October 3, 2012 Return to Service Plan) are irrelevant to FOEs claim that the March 27, 2012 CAL was a de facto license amendment.348 Because the discussion in Section IV of FOEs Opening Brief is not material to FOEs CAL claim in its Petition to Intervene,Section IV also does not provide sufficient support for the proposed contention.349 Moreover, the Commission has stated that a Board is not to permit incorporation by reference where the effect would be to circumvent NRC-prescribed specificity requirements.350 Instead, the Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point. The Commission cannot be faulted for not having searched for a needle that may be in a haystack.351 Section IV of FOEs Opening Brief is almost thirty pages long, and extensively discusses over a hundred pages of supporting affidavits and reports.352 FOE makes no effort to explain how this expansive discussion meets the specific contention admissibility requirements of § 2.309(f)(1) as to its CAL claim.353 Thus, FOEs attempt to incorporate Section IV of its brief into the bases for its contention invites the type of scavenger hunt the Commission has found inappropriate for NRC adjudications.354 347 Id. at 57.

348 See supra Staffs Argument Section II.

349 10 C.F.R. § 2.309(f)(1)(iv), (vi).

350 Consolidated Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-19, 54 NRC 109, 132-33 (2001).

351 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-03, 29 NRC 234, 241 (1989).

352 FOEs Opening Brief at 9-38 (citing Large Affidavit, Gundersen Affidavit, and Hirsch Report).

353 Id. at 57-58.

354 Seabrook, CLI-98-03, 29 NRC at 241.

C. FOEs Attempt to Amend Its Contention is Untimely In an attempt to support its bare assertions regarding the March 27, 2012 CAL, FOE proposes to supplement its Petition to Intervene with Section IV of its Opening Brief.355 However, this proposed amendment to the contention is not timely.356 Under NRC regulations, petitioners must bring new contentions or amendments to existing contentions in a timely fashion based on the discovery of new information.357 While the regulations do not define timely, most boards provide a thirty-day deadline for petitions based on new information.358 The Commission has frequently observed that a petitioner in an NRC proceeding has an iron-clad obligation to examine the publicly available documentary material . . . with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention.359 In this case, FOE attempts to amend its initial claims about the March 27, 2012 CAL with claims based on SCEs October 3, 2012 Return to Service Plan. However, these documents have been available for over three months, and FOE has not attempted to amend its contention to reflect that information until now, despite plainly being aware of the report since October.360 While FOE generally argues that it timely filed its initial Petition to Intervene, FOE has not even attempted to 355 FOEs Opening Brief at 50.

356 The Staff assumes that the Commission determined that FOE timely filed the initial Petition to Intervene because the Commissions regulations do not provide exact definitions regarding timeliness, Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),

LBP-06-14, 63 NRC 568, 574 (2008), and the Commissions Order in CLI-12-20 did not ask the Board to rule on that issue. San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

357 10 C.F.R. § 2.309(c). While FOE notes that it filed its initial Petition to Intervene before the NRC amended its rules on timeliness, FOE Opening Brief at 50 n.57, the NRCs previous regulations contained the same requirement, 10 C.F.R. § 2.309(f)(2) (2011).

358 E.g., Vermont Yankee, LBP-06-14, 63 NRC at 574.

359 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010) (internal quotations omitted, alteration in original).

360 See Request that the NRC Decide Petition to Intervene and Application by Friends of the Earth (FOE) to Stay Any Decision to Restart Units 2 or 3 at the San Onofre Nuclear Generation Station (Oct. 16, 2012) (ADAMS Accession No. ML12290A049) (discussing the October 3, 2012 Return to Service Plan).

demonstrate that this proposed amendment to its contention is timely.361 Thus, the Board should not allow FOE to amend the bases for its contention to include Section IV of its Opening Brief when the information upon which Section IV rests has been available for months.362 Of course, if the Board determines that the March 27, 2012 CAL was a de facto license amendment, FOE will have another opportunity to bring these claims.363 D. FOE Has Not Established Standing Under 10 C.F.R. § 2.309(d)

Because resolution of the first question will moot FOEs Petition to Intervene, the Board need not determine whether FOE has standing in this proceeding. Were the Board to reach this issue, the Board should find that FOE has not provided sufficient information to demonstrate standing. Under the general standing requirements set forth in 10 C.F.R. § 2.309(d)(1), a request for hearing or petition for leave to intervene must state:

(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestors/petitioners right under the [Atomic Energy] Act to be made a party to the proceeding; (iii) The nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors/petitioners interest.

361 FOEs Opening Brief at 50-54. FOE cites to the NRC Practice and Procedure Digest to support its reliance on Section IV. Id. at 57 and n.64. Specifically, FOE claims that the Practice and Procedure Digest establishes that information is relevant to a contention if it is in the reach, envelope, or focus of the contention. Id. First, the digest specifically observes that it may not be used as an authoritative citation in support of any positions before the Commission or any of its adjudicatory tribunals. NUREG-0386, NRC Practice and Procedure Digest, Note to Users (June 2011). Second, FOE cites to a portion of the digest that addresses when a petitioner may present new evidence at hearing, not when a petitioner may augment the basis of a pending contention. Id., Prehearing Matters at 97; see Louisiana Energy Services, LP (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004) (stating that allowing petitioners to provide additional support for contentions without meeting the normal timeliness rules for amending contentions would effectively bypass and eviscerate [the Commissions] rules governing timely filing.).

362 Florida Power & Light Co., (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-06-21, 64 NRC 30, 33 (2006).

363 San Onofre, CLI-12-20, 76 NRC at __ (slip op. at 5).

The Commission traditionally looks to judicial concepts of standing when determining whether a petitioner has established the necessary "interest," as required under § 2.309(d)(iv).364 An organization, such as FOE, may establish representational standing to intervene if it identifies a member of the organization by name and address who would qualify for standing, shows that the member has authorized the organization to represent his or her interests, and demonstrates that the interest the organization seeks to protect is germane to its own purposes.365 A petitioner cannot seek to obtain standing in a license amendment proceeding simply by enumerating the proposed license changes and alleging without substantiation that the changes will lead to offsite radiological consequences.366 The Commission has held that [t]he burden of setting forth a clear and coherent argument for standing and intervention is on the petitioner. It should not be necessary to speculate about what a pleading is supposed to mean.367 As tailored to NRC proceedings, judicial standing requires a showing of: (1) an actual or threatened, concrete and particularized injury [(injury-in-fact)], that (2) is fairly traceable to the challenged action, (3) falls among the general interests protected by the Atomic Energy Act , and (4) is likely to be redressed by a favorable decision.368 The Commission has held, The loss of the rights to notice, opportunity for a hearing, and opportunity for judicial review, constitutes a discrete and palpable - not hypothetical - injury.369 Thus, a petitioner may base standing on the alleged loss 364 See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318,322-23 (1999); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998).

365 Palisades, CLI-07-18, 65 NRC at 409.

366 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-04, 49 NRC 185, 192 (1999).

367 Zion, CLI-99-04, 49 NRC at 194 (citation and internal quotation marks omitted).

368 Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 250 (2001) (citing Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9, 13 (2001)); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998); Kelley v. Selin, 42 F.3d 1501, 1508 (6th Cir.

1995).

369 Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 93 (1993).

of a procedural right so long as the procedures in question are designed to protect some threatened concrete interest that is the ultimate basis of the individuals standing.370 FOE broadly asserts that it has standing to participate in any proceeding to amend SCEs license to operate San Onofre Units 2 or 3 as a result of the damaged steam generators.371 FOE identifies a member, Ms. Lyn Harris Hicks, who lives close to the SONGS station and who alleges that she will suffer a risk of injury if SONGS Unit 2 or 3 operate with defective steam generators.372 FOE asserts that she will suffer injury to her interests in "transparent government and corporate decisionmaking" should SCE avoid a required license amendment proceeding.373 However, a careful examination of the single declaration upon which FOE now asserts standing shows that it is insufficient to establish standing under § 2.309(d). Contrary to the present characterization by FOE, in her declaration of May 29, 2012, as supplemented on July 19, 2012, Ms.

Hicks expressed her general concern that her health and welfare are at risk from operation of SONGS and a variety of concerns about safe operation of the SONGS units.374 But, Ms. Hicks simply has not linked her general concerns for safe operation to any specified harm associated with the March 27, 2012 CAL or any licensing action, de facto or otherwise. Without citing to Ms. Hicks' declaration, FOE claims that Ms. Hicks suffers injury to her interests in transparent government and corporate decision making.375 These claims go beyond what Ms. Hicks alleged. Thus the Board should afford no weight to these statements.

370 Id. at 94 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 8 (1992)).

371 FOEs Opening Brief at 45.

372 Id. at 47.

373 Id. at 48.

374 Declaration of Lyn Harris Hicks at ¶¶ 8-12 (attached to FOEs Petition to Intervene); Supplemental Declaration of Lyn Harris Hicks (Jul. 20, 2012) (ADAMS Accession No. ML12202B211).

375 FOEs Opening Brief at 48.

Even assuming that Ms. Hicks harm is a loss of procedural rights associated with a de facto license amendment for which no hearing opportunity was offered, FOE still has not provided sufficient facts to establish standing.376 FOE has not indicated how the March 27, 2012 CAL changes SCEs operating authority in a manner that harms FOE or its members concrete interest.377 Indeed, FOE has not discussed how the March 27, 2012 CAL changes SCEs operating authority in any way.

While FOE has extensively argued that the October 3, 2012 Return to Service Plan and SCEs § 50.59 analysis for the SG replacement result in a concrete harm to FOE and its members,378 these documents are not the subject of this proceeding. Thus, FOE has not provided sufficient information to demonstrate standing in this proceeding.379 As discussed, should the Board determine that the CAL constitutes a de facto license amendment, FOE would have an opportunity to establish standing based on any terms of a license amendment request from SCE.

CONCLUSION This proceeding does not fall into the Part 2 regulations as there is not currently an application to amend a license or any other license application triggering an opportunity for a § 2.309 hearing.

Instead, FOE submitted a Petition to Intervene on June 18, 2012, requesting that the Commission recognize the March 27, 2012 CAL issued by the NRC to SCE as a de facto license amendment and institute a § 2.309 proceeding. The Commission directed this Board to consider (1) whether the March 27, 2012 CAL issued by the Staff to SCE constituted a de facto license amendment and if so, (2) whether FOEs June 18, 2012 Petition to Intervene meets § 2.309. For the reasons discussed 376 Petition to Intervene at 2.

377 See supra Staffs Argument Section II.

378 Petition to Intervene at 5-9, FOEs Opening Brief at 44-49.

379 NRDC notes that under Lujan, [P]rocedural rights are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. NRDCs Amicus Brief at 16 (quoting Lujan, 504 U.S. 572 n.7). However, as this quote suggests, nothing in Lujan indicates that a party may demonstrate standing without at least some concrete interest to protect. Rather, the Court elaborated that while a person who lives next to a proposed dam site may have standing without showing redressability and immediacy, a person who lives at the other end of the county from the dam does not. Lujan, 504 U.S. 572 n. 7.

above, the Board should deny FOEs request to hold a hearing on the March 27, 2012 CAL issued to SCE. FOE has not made a demonstration that the CAL issued to SCE is a de facto license amendment or raised any other genuine material dispute with the March 27, 2012 CAL. There has been no other Staff action to evaluate as a de facto license amendment, and no license amendment application submitted to support the restart of SONGS Unit 2 or 3.

Instead of focusing on the two issues referred to this Board by the Commission, FOEs Opening Brief challenges the October 3, 2012 Return to Service Plan, claiming that it is (1) insufficient, incomplete, and incorrect and (2) a license amendment application or request or should be treated as one. The October 3, 2012 Return to Service Plan is not a license amendment, de facto or otherwise, as it is not Staff action and the Staff has not approved it as a license amendment. The adequacy of SCEs October 3, 2012 Return to Service Plan and the question of whether a license amendment is required before Unit 2 can restart is not an issue before the Board and is currently under review by Staff.

Respectfully submitted,

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Executed in Accord with 10 CFR 2.304(d)

David E. Roth Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Maxwell C. Smith Counsel for NRC Staff

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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SOUTHERN CALIFORNIA EDISON CO. ) Docket Nos. 50-361-CAL/ 50-362-CAL

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(San Onofre Nuclear Generating Station) )

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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWERING BRIEF IN THE SAN ONOFRE NUCLEAR GENERATING STATION CAL PROCEEDING, KARWOSKI AFFIDAVIT WITH ATTACHMENTS, AND APPENDIX 1 dated January 30, 2013, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 30th day of January, 2013:

Dated at Rockville, Maryland this 30th day of January, 2013