Today, the Nuclear Regulatory Commission (NRC) referred a request by Friends of the Earth (FOE) to hold an adjudicatory hearing on the steam generator replacement at the San Onofre Nuclear Generating Station (SONGS) to the Executive Director for Operations (EDO) and the Atomic Safety and Licensing Board (ASLB).

In 2010 and 2011, SONGS replaced the steam generators without a license amendment – as is typical – through the 10 C.F.R. § 50.59 process. But in January 2012, SONGS shut down due to indications of a steam generator tube leak caused by unexpected wear. The NRC responded with an Augmented Inspection and on March 27, 2012, issued a Confirmatory Action Letter (CAL) requiring that SONGS take certain actions before restarting the plant.

FOE challenged whether the licensee could operate with the steam generator replacements without a formal license amendment, and requested an adjudicatory hearing, arguing in part that (1) there was a violation of Section 50.59 and a license amendment is necessary; and (2) the CAL process itself constituted a license amendment accompanied by hearing rights.

Section 50.59 analyses are matters for NRC Staff oversight and not ordinarily matters for ASLB review. Perhaps not surprisingly, the Commission referred the portion of FOE's argument regarding the licensee's § 50.59 evaluation to the EDO for consideration as a § 2.206 petition seeking enforcement action. Of course, if the EDO determines that a license amendment was required, a hearing opportunity on the amendment would be given.

But what about the Commission declining to answer whether the CAL was effectively a license amendment, and instead leaving that issue to the ASLB? The Commission's only explanation was that boards have previously considered such issues, citing two cases. This approach could be said to be in line with the Commission's practice of allowing the ASLB to review issues in the first instance. On the other hand, especially considering the time the request remained pending before the Commission, this referral (and deferral) could be viewed as an inefficient and untimely approach to resolving the legal issue.

Ultimately, in the two prior cases cited by the Commission in which similar issues were considered, it was decided that there were no hearing rights. A deviation from the precedent could be a significant development. In the meantime, will the industry be faced with more hearing requests on CALs, and possibly, delayed decisions on actions associated with CALs?