ML041110943

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Objections to Confirmatory Order Modifying Davis-Besse License, Submitted by Intervenors
ML041110943
Person / Time
Site: Davis Besse Cleveland Electric icon.png
Issue date: 03/29/2004
From: Lodge T
- No Known Affiliation
To:
NRC/SECY/RAS
Julian E
References
+adjud/rulemjr200506, 50-346-CO, ASLBP 04-825-01-CO, EA-03-214, RAS 7621
Download: ML041110943 (12)
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Text

DOCKETED USNRC March 30,2004 (10:OOAM)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION I n t h e Matter of

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Docket No. 50-346 License No. NPF-3 FirstEnergy Nuclear Operating EA-0 3-2 1 4 Company (Davis-Besse Nuclear Power OBJECTIONS TO CONFIRMATORY ORDER MODIFYING LICENSE Station, Unit 1) 1 Terry J. Lodge (0029271) 316 N. Michigan S t.

Toledo, Ohio 43624-1627 S u i t e 520 1

(419) 255-7552 Fax: ( 4 1 9 ) 255-8582 Counsel f o r Intervenors 1

Now come Michael Keegan, Joanne DiRando, Paul Gunter, and Donna Lueke, Intervenors herein, and state the following as and f o r t h e i r objections t o the "Confirmatory Order Modifying License" issued by t h e U. S. Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, on March 5, 2004:

1. Intervenor Michael Keegan (hereinafter "Intervenor Keegan")

r e s i d e s a t 811 W. Harrison Street, Monroe, M I, approximately 30 s t r a i g h t - l i n e m i l e s from t h e Davis-Besse Nuclear Power s t a t i o n (hereinafter "Davis-Besse"). Intervenor Keegan i s concerned f o r h i s personal health and safety, and t h e public's h e a l t h and safety, and t h e l i v i n g environment as a consequence of t h e operation of t h e Davis-B e s s e Nuclear Power Station. A s such, Intervenor Keegan has t h e 1

RAS 7621

r e q u i s i t e i n t e r e s t and standing t o request a hearing i n t h i s proceeding and t o p a r t i c i p a t e therein.

2 - Intervenor Joanne DiRando (hereinafter Intervenor DiRando" )

resides a t 6747 Garden Road, Maumee, Ohio 43537, which is approximate-l y 28 s t r a i g h t - l i n e m i l e s from Davis-Besse. Intervenor DiRando is concerned f o r her personal health and safety, and the public's h e a l t h and safety, and the l i v i n g environment as a consequence of t h e operation of t h e Davis-Besse Nuclear Power Station. As such, Intervenor DiRando has t h e r e q u i s i t e i n t e r e s t and standing t o request a hearing i n t h i s proceeding and t o p a r t i c i p a t e therein.

3. Intervenor Paul Gunter (hereinafter "Intervenor Gunter") is Director of t h e Reactor Watchdog Project of t h e Nuclear Information and Resource Service ( " N I R S " ).

N I R S is a longtime grassroots organization dedicated t o t h e development of safe a l t e r n a t i v e s t o t h e use of commercial nuclear power f o r generation of e l e c t r i c i t y and i s located a t 1 4 2 4 16th S t., N.W.,

S t e. 404, Washington, D.C. 20036.

Intervenor Keegan is a member of NIRS. Intervenor Gunter is concerned f o r t h e public's h e a l t h and safety, and t h e l i v i n g environment of t h e G r e a t Lakes as a consequence of t h e operation of the D a v i s - B e s s e Nuclear Power Station. A s a representative of N I R S and of Intervenor Keegan, Intervenor Gunter possesses t h e r e q u i s i t e i n t e r e s t and standing t o request a hearing i n t h i s proceeding and t o p a r t i c i p a t e therein.

4. Intervenor Donna Lueke (hereinafter "Intervenor Lueke")

r e s i d e s a t 909 E l l i o t t S t., Marblehead, OH 43440-2108, which is approximately 18 s t r a i g h t - l i n e m i l e s from Davis-Besse. Intervenor Lueke is concerned f o r her personal h e a l t h and safety, and t h e 2

public's health and safety, and the living environment as a consequence of the operation of the Davis-Besse Nuclear Power Station.

As such, Intervenor Lueke has the requisite interest and standing to request a hearing in this proceeding and to participate therein.

A. Illegal Substitution of Operator M a n u a l Actions for Meaningful Fire Protection

5. On December 29, 2003, N I R S by letter requested the NRC 0350 Panel for the Davis-Besse nuclear power station to address several safety concerns regarding the compliance of FirstEnergy Nuclear Operating Company' s (hereinafter "FENOC" ) current fire protection requirements at Davis-Besse with the Administrative Procedure Act and prior orders issued by NRC. N I R S alleged that these matters have direct bearing on the public safety and the proposed restart of the reactor.
6. Specifically, N I R S produced documents which appear to show that FENOC had illegally substituted non-compliant operator actions for operable fire protection systems as required under 10 CFR 50 Appendix R 111. G. 2.
7. In the referenced June 23, 2003 ernail, the lead fire Three documents accompanied NIRS' letter: F O I A 2003-0358, Appendix N-19, A Memory Test and Possible Warning," Email exchange between Philip Qualls, US NRC, and Dennis Kubicki, US DOE, June 24 and 26, 2003; Safety Evaluation Report (SER) of fire protection measures at Davis-Besse from 1991 released to the public through the N I R S via FOIA 2003-0358, Appendix LL, Safety Evaluation of Fire Protection Measures at the Davis-Besse Nuclear Power Station, Unit 1, Per Appendix R to 10 CFR Part 50, May 30, 1991. The SER is referenced in the June 2003 email exchange between Mr. Qualls and Mr.

Kubicki; finally, the commitments embodied in an NRC Order issued in 1998 to restore functionality to fire protection systems required under the CFR to protect control room-operated electrical systems for power, control and instrumentation systems used to remotely shut down the reactor in the event of fire, "Confirmatory Order Modifying License," Davis-Besse Nuclear Power Station, Unit N o. 1 (TAC N o. M855421, June 22, 1998.

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protection engineer a t t h e NRC noted t h a t "A Region 111 inspection recently found a SER dated May 31, 1991 which approves some p r e t t y outrageous s t u f f.

Things l i k e going t o TAF [Top of A c t i v e Fuel] ( f o r a B&W u n i t ) due t o PORV [Pressure Operated Relief V a l v e ] opening (does anybody s t i l l remember TMI?), complete operator manual actions ( i n l i e u of barriers f o r I I I. G. 2 ),

and a v a r i e t y of f i r e protection i s s u e s

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.I' FOIA 2003-0358 Appendix N-19, e m a i l P. Qualls, June 24, 2003. N I R S alleged t h a t t h e r e w a s an agency-identified unresolved safety i s s u e regarding "complete manual actions" per 1 0 CFR 50 Appendix R Section I I I. G. 2.

P e r t h e Qualls e m a i l, t h e Davis-Besse operator has s u b s t i t u t e d "manual actionsrE2 f o r physical s a f e t y protections against f i r e i n t h e reactor complex. The Q u a l l s e m a i l substantiates t h a t t h e referenced manual actions were not properly granted as l i c e n s e amendments o r exemptions before FENOC substituted them f o r t h e required physical separation of electrical systems o r a l t e r n a t e l y protection with f i r e b a r r i e r s, suppression and detection equipment.

8. "Manual actions" are not approved a l t e r n a t i v e s f o r t h e protection of safe shutdown electrical systems as specified i n Section I I I. G. 2.

I n t h e v i e w of N I R S and t h e Intervenors, these 'manual actions" are therefore i l l e g a l and c o n s t i t u t e an unresolved public s a f e t y r i s k requiring resolution p r i o r t o t h e r e s t a r t of Davis-Besse.

9. NRC s a f e t y studies e s t a b l i s h t h a t fire a t a nuclear power

'Where the licensee, rather than providing the required protection to control room-operated electrical systems for the remote shutdown of the reactor in the event of fire, instead sacrifices the remote function in event of fire with an intention to dispatch licensed or non-licensed operators into the reactor complex, potentially to areas involved in a fire, to shutdown equipment manually by turning valves, pulling circuit breakers and flipping switches.

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s t a t i o n presents a s i g n i f i c a n t r i s k f o r events t h a t can lead t o damage of t h e reactor core and t h e p o t e n t i a l catastrophic release of radiation.

Such a near-catastrophic f i r e a t t h e Browns Ferry nuclear power s t a t i o n i n March of 1975 l e d t o t h e formulation of f i r e protection regulations requiring reactor operators t o protect e l e c t r i c a l cables, t o assure t h e remote shutdown of t h e reactor from t h e control room. 10 CFR 50 Appendix R "Fire Protection,"Section I I I. G. 2. Reactor operators must assure t h a t no s i n g l e f i r e will destroy t h e control room's a b i l i t y t o remotely shutdown t h e r e a c t o r i n t h e event of f i r e i n order t o protect emergency backup electrical systems with approved three-hour rated f i r e barriers, o r one-hour r a t e d f i r e barriers used i n conjunction with smoke detectors and sprinklers, o r a l t e r n a t e l y physical separation of redundant electrical systems by a minimum of 20-feet with detection and suppression equipment i n t h e area.

10. I n separate but i d e n t i c a l Davis-Besse f i r e code violations involving t h e s a m e 1 0 CFR 50 Appendix R I I I. G. 2 requirements, FENOC w a s placed under an NRC Confirmatory Order issued on June 22, 1998 t o r e s t o r e f u n c t i o n a l i t y t o "inoperable" f i r e barriers relied upon f o r t h e safe shutdown of t h e r e a c t o r from t h e control room i n the event of f i r e.

This r e f e r r e d t o t h e use of a product called Thermo-Lag 330 f o r required fire b a r r i e r s, which w a s generically declared "inoperable" by t h e NRC i n 1992 and ordered t o be replaced.3 I n 1998, t h e NRC ordered FENOC, with FENOCfs express consent, t o r e s t o r e f u n c t i o n a l i t y of t h e f i r e barriers no l a t e r than December 31, 1998.

3See Bulletin 92-01, "Failure of Thermo-Lag 330 F i r e Barriers To Maintain Cabling i n Wide Trays and S m a l l Conduits Free From F i r e Damage," U.S. Nuclear Regulatory Commission, June 24, 1992.

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11. The NRC responded t o NIRS' concerns by letter dated March 4, 2004,4 s t a t i n g t h a t staff had "reviewed t h e... procedure f o r anticipated f i r e i n t h e control room and cable spreading room, calculations supporting t h e procedure, and t h e timeline f o r operator actions associated with t h e procedure," concluding t h a t t h e r e is

'reasonable assurance t h a t t h e p l a n t can be s a f e l y shut down....

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12. This response is inadequate i n t h a t t h e s u b s t i t u t i o n of manual operator actions were accomplished i n an informal, e f f e c t i v e l y secret and ad hoc manner, outside t h e customary public s c r u t i n y and input opportunity afforded by NRC procedures and required by t h e f e d e r a l Administrative Procedure A c t.
13. This secretive s u b s t i t u t i o n i n 1991 of human f r a i l t y and f a l l i b i l i t y f o r genuine physical s a f e t y measures a t Davis-Besse, followed by FENOC's inaction i n t h e face of NRC orders f o r t h e next seven ( 7 ) years, coincides c l o s e l y with t h e t i m e frame within which FENOC evaded regulatory control as t h e company f a i l e d t o l o o k f o r and detect enormous corrosion problems on t h e D a v i s - B e s s e reactor head.

FENOC's corporate indifference t o t h e f i r e protection issue, combined with t h e f a c t t h a t t h e NRC w i l l not enforce s a f e t y regulations, is t h e pre-eminent safety c u l t u r e problem i n t h e nuclear industry. While the reversal of FENOC's corporate indifference is supposedly a t t h e h e a r t of t h e NRC's confirmatory order, t h e NRC itself remains unchanged i n its s u p e r f i c i a l "paper" regulatory approach t o m a t t e r s of s a f e t y concern a t nuclear power r e a c t o r s. The "paper" review by t h e NRC i n 2003-2004 has e f f e c t i v e l y deprived t h e public, yet again, of t h e 4Does not appear at NRC website as of this writing.

opportunity t o examine and question t h e adequacy of f i r e protections a t Davis-Besse within t h e context of a i p u b l i c l i c e n s e amendment proceeding.

B. A Continued Pattern of Regulatory Indifference to Issues of Potential Safety Concern 1 4. I n t h e weeks preceding t h e March 8 Confirmatory Order and s i n c e i t s issuance, t h e NRC has continued its p a t t e r n of passive regulation. On March 4, 2004, the NRC propounded several important root cause questions t o FENOC concerning a vent l i n e problem unique t o Davis-Besse which p o t e n t i a l l y could cause cracking of nearby nozzles... [and] i f real, could impact t h e cracking assumptions f o r t h e new RPV head.5 I n other words, a s o f the date o f this writing, neither FENOC nor the NRC have f u l l y identified the core causes of the Davis-Besse corrosion fiasco, much less defined the technical means of preventing i t s re-occurrence. I n fact, FENOC has been granted u n t i l May 25, 2004 t o respond (some two 12) months following t h e Davis-Besse restart) and it is unclear whether even then t h e root cause(s) f o r t h e near-disaster a t Davis-Besse w i l l be known.

15. The NRC on February 26, 2004 expanded t h e t i m e from March 4, 2004 u n t i l March 31, 2005 f o r FENOC t o inspect and plug worn steam generator tubes.

5Letter, Jon B. Hopkins, (NRC) to Lew W. Myers (FENOC), Request for Additional Information Re: Root Cause Analysis, Accession No.ML0406404, http://adamswebsearch.nrc.gov/scripts/rwisapi.dl~/~pip.env?CQ SESSION KEY=GFI RFEXUWJSR&CQ QUERY HANDLE=12 5 11 4 &CQQNUM=l &CQ DOCUMENT=YES &CQ ZAVE [ ResultsRetu rnFage] =results list.htmZ&CQ CUR DOCUMENT=I Davis-Besse, Package, One-Ti7me Extension of Steam Generator Tube Inservice Inspection Interval, ML040580026 2004-02-27 ML040440169+ML040570370+

FNWEBNAVIGATE=l.O SYSTEMTYPE=MEZZANINE DOCUMENTID=040580026 STARTPAGE=l LIBRARYNAME=ml adamshqntad01; Davis-Besse, License Amendment 262 regarding One-Time Extension of Steam Generator Tube Inservice Inspection Interval, ML040580026+ February 26, 2004.

ML040440169 2004-02-26 13 05000346 NPF-003 TAC MC1573 2004-02-26 2004-02-27 7

1 6. The l a c k of regulatory consistency evidenced by these acts of t h e NRC demonstrates t h e absence of c u l t u r a l change with t h e Commission itself, following discovery of t h e near-catastrophe a t Davis-Besse.

C. The Suspicious Lack of Civil Monetary and Non-monetary Penalties Against FENOC for the Corrosion Failures

17. A s of t h e t i m e of t h i s writing, t h e r e have been no c i v i l monetary o r non-monetary sanctions of any s o r t imposed upon FENOC as a r e s u l t of the a c t s or omissions which culminated i n t h e corrosion holes and associated damage t o t h e Davis-Besse reactor.
18. N o t only have NRC s t a f f d i r e c t l y involved i n t h e i l l e g a l decision t o allow t h e continued operation of Davis-Besse f o r an a d d i t i o n a l 75 days i n 2001-2002 not been subjected t o d i s c i p l i n e, the NRC staff director, Sam Collins, has a c t u a l l y been promoted.

1 9. FENOC mysteriously placed an order, i n o r about December 2001, for t h e manufacture of a new reactor head for D a v i s - B e s s e.

FENOC a s s e r t s the new head was t o be used as a f u t u r e routine replacement7 and w a s not r e l a t e d t o t h e discovery, some months later, of severe damage t o the o r i g i n a l Davis-Besse reactor head. After t h e corrosion damage was discovered and f o r weeks t h e r e a f t e r, t h e u t i l i t y resisted replacement of t h e damaged head, and instead planned t o i n s t a l l a m e t a l "plug" i n t h e l a r g e s t of t h e corrosion holes. The fact t h a t t h e Corrosion on another reactor head spurs review," Cleveland Plain Dealer, 7 a 3/29/02, http://www.cleveland.com/davisbesse/index.ssf?/davisbesse/~ore/2l.ht~; "Lid f o r Davis-Besse reactor on order FirstEnergy faces costs of r e p a i r s, energy purchases," Cleveland Plain Dealer, 3/19/02, http://clevessf.dev.advance.net/davisbesse/more/28.ht~

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u t i l i t y ordered a new r e a c t o r head a t t h e end of a serious controversy with NRC s t a f f over whether t o replace t h e e x i s t i n g head, but before discovery of t h e advanced corrosion a t Davis-Besse i s a very remarkable coincidence.

20. Six ( 6 ) FENOC executives allegedly sold t h e i r stock shares i n FirstEnergy Corporation before public announcement of t h e discovery of t h e corrosion holes w a s made i n e a r l y 2002.*
21. FirstEnergy has acknowledged i n f i n a n c i a l reports t h a t t h e r e is believed t o be a f e d e r a l criminal grand j u r y convened i n Cleveland, Ohio t o investigate p o t e n t i a l criminal wrongdoing associated with t h e Davis-Besse corrosion debacle.
22. I n February 2003, it w a s learned t h a t t h e emergency water c i r c u l a t i o n system, a sump pump, probably would have clogged and been inoperable i f t h e r e a c t o r head had burst due t o t h e severe corrosion -

and it w a s f u r t h e r calculated t h a t it would not have functioned c o r r e c t l y during t h e e n t i r e operating h i s t o r y of t h e plant.g

23. I n July 2003 a t D a v i s - B e s s e it w a s discovered t h a t valves i n hydrogen-detection equipment have improperly been l e f t i n "closed" p o s i t i o n s i n c e the plant was b u i l t. Those valves had since corroded shut, and so the system t o determine how much highly-explosive hydrogen has escaped i n t o t h e a i r i n the r e a c t o r building (not t h e o r e t i c a l ; a huge hydrogen bubble exploded a t TMI) might not have worked as it should during an emergency a t Davis-Besse and a hydrogen

buildup might not have been detected or the explosion threat correctly evaluated.

24. No less than Harold Denton, former director of nuclear reactor regulation at the NRC, who became known worldwide during his oversight of the Three Mile Island disaster in 1979 as President Jimmy Carters direct-reporting deputy on site, has pronounced the two worst U. S.

commercial nuclear plant failings since 1979 to have taken place at Davis-Besse: (1) the corrosion holes discovered in 2002, and (2) the 12-minute interruption of feedwater to steam generators on June 9, 1985, which came within minutes of causing a meltdown in the reactor.

25. The NRC is inexplicably withholding the imposition of civil sanctions under the Atomic Energy Act against FENOC at this late date, more than two years after discovery of the corrosion hole and the management misdeeds which allowed damage to occur to the reactor.

Deferring civil sanctions protects FirstEnergy by minimizing the negative perception a criminal grand jury might take of FENOC as a result of a publicly-administered penalty. Deferring civil sanctions also has the effect of holding open an option to help FirstEnergy avoid the negative effects of criminal indictment, by allowing a large civil fine to be imposed in l i e u of criminal punishment of a corporation or its officers. This is precisely what the U.S.

Department of Justice has been credibly accused of doing after Rockwell International was purportedly indicted for criminal malfeasance in the mishandling of dangerous plutonium and other 10http://www.cleveland.com/davisbesse/index.ssf?/davisbesse/more/lO583485O3l57 842. html http://www.to1edob1ade.com/apps/pbcs.d11/ar~ic1e?A1D=/20040312/NE~S17/1031201 28/-1/ARCHIVES30 Davis-Besse woes rated among Americas worst, 11\\\\

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weapons materials at the Rocky Flats Arsenal in Colorado in the late 1980's and early 1990'~.'~

26. It is against the public health and safety and the safety of the environment to allow Davis-Besse to restart operations until after the grand jury has made its report and until obvious, anticipated civil sanctions have been imposed under the Atomic Energy Act.

WHERJ?,FORE, the Intervenors pray the Commission grant them a hearing, at which they be allowed to put on evidence of their allegations; further, Intervenors request the Commission to suspend the operating license and halt the restart of Davis-Besse, and require FirstEnergy Nuclear Operating Company to satisfy all licensing criteria prior to being authorized to operate Davis-Besse Nuclear Power Station or the commercial generation of electricity.

(419) 255-7552 Fax (419) 255-8582 Counsel for Intervenors CERTIFICATION OF SERVICE I hereby certify that I served a copy of the foregoing "Objections to Confirmatory Order Modifying License" by faxing emailing the same to the Secretary, U. S. Nuclear Regulatory Commission, ATTN: Chief, Rulemakings and Adjudications Staff, Washington, DC 20555 (facsimile no. 301-415-1672; email and 1 and by mail copies via regular U.S. mail, postage prepaid, to Director, Office of Nuclear Reactor Regulation, U. S. Nuclear Regulatory Commission, Washington, DC 20555; Assistant General Counsel for Materials Litigation and Enforcement, U.S.

Nuclear Regulatory Commission, Washington, DC 20555; Regional Administrator U.S. Nuclear Regulatory Commission, Region 111, 801 Warrenville Road, Lisle, Colorado Congressman Seeks Rocky F l a t s Probe,"

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http://www.guardian.co.uk/uslatest/story/O%2Cl282%2C-3892290~2COO.html 11

I l l i n o i s 60532-4351; and t o M r. Lew W. Myers, Chief Operating Officer, FirstEnergy Nuclear Operating Company, Davis-Besse Nuclear Power Station, 5501 North State Route 2, Oak Harbor, OH 43449-9760; a l l on t h i s 2gth day of March, 2004.

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