The Nuclear Regulatory Commission has vacated the decision of the Atomic Safety and Licensing Board, which held that a Confirmatory Action Letter (CAL) issued to the San Onofre Nuclear Generating Station regarding the plant’s restart constituted a de facto license amendment subject to a hearing opportunity. 

The Board decision was issued on May 13, 2013, at a time when Southern California Edison was still seeking to restart SONGS Unit 2 under the CAL addressing steam generator issues. The Board decision added a huge layer of uncertainty onto the company’s restart plans. Shortly thereafter, and just as the period to seek Commission review of the Board decision was expiring, Edison announced that instead of continuing to pursue its restart plans through the NRC process, it would permanently cease operations. The matter became moot. However, the NRC Staff moved to vacate the Board’s un-reviewed decision.

In its decision issued on December 5, the Commission agreed with the mootness argument and granted the Staff’s motion to vacate. This action is consistent with NRC and judicial precedent that vacatur is appropriate when appellate review of a decision is cut short by mootness. The Commission took no position on the merits of the Board’s decision. Going forward, the Board’s SONGS decision will carry no precedential weight; future Commissions or Licensing Boards faced with similar hearing requests will be required to examine whether a CAL constitutes a de facto license amendment based on the facts of the particular case at hand.

Of note, Chairman MacFarlane offered separate “Additional Views,” in which she expressed concern that granting vacatur could be wrongly perceived as rejecting the merits of the Board’s decision, since the Staff’s motion criticized the Board’s ruling rather than elaborating on its vacatur argument. Chairman MacFarlane questioned the Commission’s practice of vacating moot Board decisions when the moving party has not provided a “robust discussion for its argument that vacatur is warranted.”