Wednesday, July 4, 2012


(Directing Staff to Amend Filing on 10 C.F.R. § 2.206) In a May 17, 2012 Order, this Board directed the NRC Staff to submit “a list of those occasions since January 1975 on which the NRC official to whom a [10 C.F.R. § 2.206] petition was submitted granted the substantive relief sought.”1 In response, the Staff identified 142 Director’s Decisions that either granted the petition in whole or in part or, although denying the 1 Licensing Board Memorandum and Order (Requesting Filing on Petitions under 10 C.F.R. § 2.206) at 1-2 (May 17, 2012) (unpublished) (emphasis in original); see also Licensing Board Memorandum and Order (Regarding Motion to Extend Time for Filing and to Reschedule Oral Argument) at 2 (May 24, 2012) (unpublished) (granting approximately a two week extension for Section 2.206 filing). - 2 - petition, either prompted action by the Staff or reflected action already taken by the Staff.2 For each of these decisions, in accordance with the Board’s request the Staff summarized the relief granted. Upon reviewing the filing, it is plain that the Staff did not comply with the Board’s directive. Rather than, as instructed, identifying solely those petitions in which substantive relief was provided to the petitioner, the Staff elected to supply the Board with each and every petition in response to which some action was taken by it. The most cursory examination of the Staff response reveals that in many, if not the majority, of the instances that action was patently not substantive in character. To cite but one example, of the 387 Director’s Decisions reviewed by the Staff only 2 petitions were granted in whole, one of which was that submitted in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), DD-90-3, 31 NRC 595 (1990). On an examination of the relief provided in that instance, it is obvious the relief could not possibly be characterized as substantive in nature. There, in response to allegations in a Section 2.206 petition that Pacific Gas & Electric Company (PG&E) violated certain antitrust license conditions in the Diablo Canyon operating licenses, the Director of the Office of Nuclear Reactor Regulation withheld a decision on the petition until completion of a ruling by the United States District Court for the Northern District of California on related issues and thereafter directed PG&E simply to submit a report regarding the steps it had taken and planned to take to comply with the District Court ruling.3 It is difficult to believe that the Staff is not conversant with the difference for present purposes between calling upon a licensee to file a report and what is being sought in the matters now before the Board, the augmentation of reliable hardened containment venting and 2 NRC Staff Response to the Board Order Regarding Petitions Under 10 C.F.R. § 2.206 at 2 (June 15, 2012). 3 Diablo Canyon, DD-90-3, 31 NRC at 595-96. - 3 - spent fuel storage. In the circumstances, we must conclude that in presenting the Board with all 142 instances where some affirmative action was taken with regard to a petition, the Staff chose simply to ignore the manifest distinction between substantive and procedural relief. The Staff is directed to file, no later than noon (EDT) on Tuesday, June 26, 2012, an amended response to this Board’s May 17, 2012 Order. That response shall identify those of the 142 Director’s Decisions listed in the June 15, 2012 response that, in fact, provided substantive relief to the petitioner. To accommodate the filing of responsive comments, provided for by the Board’s June 15, 2012 Order,4 those responsive comments shall now be filed no later than noon (EDT) on Tuesday, July 3, 2012. It is so ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD

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