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ASLB rules adjudicated hearing on SONGS can happen, but doesn’t order one

By Jim Shilander
A federal panel on Monday ruled the public can petition for an extended hearing process before a panel of judges regarding plans to restart the San Onofre Nuclear Generating Station, but stopped short of setting such a process in motion.

The Atomic Safety Licensing Board—a panel of legal and technical judges employed by the Nuclear Regulatory Commission that rules on adjudicatory and licensing issues—said the environmental group Friends of the Earth had proven that the NRC’s investigation into whether to restart the plant safely essentially amounted to a change in the way Southern California Edison intends to operate the plant—a license amendment. As such, the public is allowed to ask for an adjudicated (presided over by judges) public review of the utility’s proposal to restart the plant.

However, the board did not go any further, which closes out that particular hearing, according to NRC spokesman Scott Burnell. Southern California Edison submitted its response to the NRC’s Confirmatory Action Letter, which outlines what steps need to be taken to resume operations at the plant safely, last October.

Opponents of re-starting SONGS have advocated strongly for an adjudicated hearing, which they hope would allow for third-party examination of Edison officials and engineers as to the state of the steam generators.

The two other SONGS related cases in front of the Nuclear Regulatory Commission are unaffected by the ruling, Burnell said. Staff is still reviewing Southern California Edison’s restart petition, Burnell said, as is the utility’s the license amendment to operate at 70 percent power for five months.

Burnell analogized the situation to having three separate “bins” of cases going before the NRC related to SONGS. The Friends of the Earth petition, he said, was closed out by the ruling (bin one). The decision also did not affect the NRC’s review of Edison’s proposals for how to restart the plant (bin two). The ruling could affect the review of the license amendment to operate at 70 percent power submitted by Edison last month (bin three), since the public still had time to ask for a public review. Burnell said such a request would have to have its legal and technical standing determined by a different panel of judges before it could go forward. If no request was made, however, Burnell said that case would also be unaffected by the ruling.

Sen. Barbara Boxer (D—Calif.) issued a statement praising the decision.

“I want to thank the Atomic Safety and Licensing Board judges for their sound ruling setting a legal framework for a full public hearing before any final decision on the restart of the San Onofre nuclear power plant is made by the NRC. It is a comfort to me that the safety board stood up for what is right. Given that the NRC Commissioners asked the Board to undertake this review and given that these judges were appointed by the NRC, I expect the Commissioners to follow their lead. Over 8 million people live within 50 miles of the San Onofre plant and they deserve to be protected.”

NRC Chair Allison Macfarlane clarified the effect of the ruling Friday in a statement issued by the NRC.

“If a party, including the NRC staff, Southern California Edison, or Friends of the Earth, wishes to file an appeal of the ASLB’s decision with the Commission, it must do so within 25 days (by June 7),” Macfarlane wrote. “Under NRC’s regulations, the commission itself may also opt to review the decision. Until the time for appeal or commission review expires, the commission serves in an adjudicatory capacity, similar to a court of appeals, and must remain neutral to preserve the fairness and transparency of the adjudicatory process. For this reason, my commission colleagues and I are restricted in our ability to comment on this decision.”

Macfarlane added that the NRC would provide more information on the decision after further review and after the appeal period ended.

Burnell also noted that a local public hearing on the status of the NRC’s investigation into the utility’s restart petition would be coming “in the not too distant future.”

SONGS has been idled since January 2012 following a small leak in a steam generator tube in Unit 3 as a result of tube-to-tube wear. Similar wear was discovered, upon inspection, in Unit 2, which was idled at the time, though not to the same extent as in Unit 3.

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