ML112450527

Rulemaking Petition to Rescind Prohibition Against Consideration of Environmental Impacts of Severe Reactor and Spent Fuel Pool Accidents and Request to Suspend Licensing Decision. (Davis-Besse)

ML112450527
Person / Time
Site:	Davis Besse
Issue date:	08/11/2011
From:	Lodge T - No Known Affiliation
To:	NRC/SECY
SECY EHD
References
50-346, Davis Besse 50-346-LR, PRM-51-26
Download: ML112450527 (24)

Text

August 11,2011 UNITED STATES OF AMERICA NUCLEAR REGULA TORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) Docket No. 50-346 First Energy Nuclear Operating Company )

(Davis-Besse Nuclear Power Station, Unit 1)

)

(Regarding the Renewal of Facility Operating License NPF -003 for a 20-Year )

Period)

)

RULEMAKING PETITION TO RESCIND PROHIBITION AGAINST CONSIDERATION OF ENVIRONMENTAL IMPACTS OF SEVERE REACTOR AND SPENT FUEL POOL ACCIDENTS AND REQUEST TO SUSPEND LICENSING DECISION I. INTRODUCTION Pursuant to 10 C.F.R. § 2.802, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio (collectively "Petitioners") petition the U.S. Nuclear Regulatory Commission ("NRC") to rescind regulations in 10 C.F.R. Part 51 that make generic conclusions about the environmental impacts of severe reactor and spent fuel pool accidents and that preclude consideration of those issues in individual licensing proceedings. This petition also requests the NRC to suspend the above-captioned licensing proceeding while the NRC considers this petition and the environmental issues raised

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in the attached Contention Regarding NEP A Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report ("Contention").

This petition is captioned in both the rulemaking docket and the docket for the Davis Besse, Unit 1 operating licensing renewal proceeding because it seeks relief that is both generic and applicable to the individual proceeding. The rulemaking petition is also being filed by other organizations and individuals who have submitted contentions regarding the safety and environ mental implications of the NRC's report entitled Recommendations for Enhancing Reactor Safety in the 21 st Century: The Near-Term Task Force Review ofInsights from the Fukushima Dai-ichi Accident at 20-21 (July 12,2011) (,Task Force Report").

II. DISCUSSION A. General Solution The general solution sought by Petitioners is to rescind all regulations in 10 C.F.R. Part

. 51 which reach generic conclusions about the environmental impacts of severe reactor and/or spent fuel pool accidents and therefore prohibit consideration of those impacts in reactor licensing proceedings. These regulations include 10 C.F.R. Part 51, Appendix B; 10 C.F.R. §§ 51.45,51.53, and 51.95.

B. Petitioners' Grounds for and Interest in the Action Requested.

Petitioners seek rescission of any NRC regulations that would prevent the NRC from complying with its obligation under the National Environmental Policy Act ("NEP A") and NRC implementing regulations to consider, in the licensing proceeding for Davis-Besse Nuclear Power Station, Unit 1, the environmental implications of new and significant information discussed in the Task Force Report regarding the regulatory implications of the Fukushima Dai-ichi nuclear

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accident. Our legal and technical grounds for seeking consideration of new and significant information in the Task Force Report are discussed at length in the attached Contention, which is attached and incorporated herein by reference.

C. Support for Petition This petition for rulemaking is supported by the Task Force Report and also by the attached Declaration of Dr. Arjun Makhijani (August 8, 2011). As demonstrated in both of those documents, the Fukushima accident has significant regulatory implications with respect to both severe reactor accidents and spent fuel pool accidents, because the Task Force Report recom mends that mitigative measures for both of these types of accidents, which are not currently included in the design basis for nuclear reactors, should be added to the design basis and subject to mandatory safety regulation.

D. Request for Suspension of Licensing Proceeding As discussed in the attached Contention, NEP A requires that agencies consider the environmental impacts of their actions before they are taken,in order to ensure that "important effects rof the licensing decision] will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). See also 40 C.F.R. §§ 1500.1(c), 1502.1, 1502.14.

The NRC's obligation to comply with NEPA in this respect is independent of and in addition to the NRC's responsibilities under the Atomic Energy Act, and must be enforced to the "fullest extent possible." Calvert Cliffs Coordinating Committee, 449 F.2d at 1115. See also Limerick Ecology Action v. NRC, 869 F.2d 719, 729 (3rd Cir. 1989) (citing Public Service Co. o/New Hampshire v. NRC, 582 F.2d 77, 86 (1st Cir. 1978)). The NRC's obligation to delay licensing

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decisions until after it has considered the environmental impacts of those decisions is also non discretionary. Silva v. Romney, 473 F.2d 287, 292 (1st Cir. 1973). Therefore, the NRC has a non-discretionary duty to suspend the Davis-Besse license renewal proceeding while it considers the environmental impacts of that decision, including the environmental implications of the Task Force Report with respect to severe reactor and spent fuel pool accidents.

Ill. CONCLUSION For the foregoing reasons, the Commission should grant this rulemaking petition.

Respectfully submitted this 11 th day of August 2011.

/s/ Terry 1. Lodge Terry 1. Lodge (OH #0029271) 3 16 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 fax (419) 255-8582 Counsel for Petitioners

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August 11,2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) Docket No. 50-346 First Energy Nuclear Operating Company )

(Davis-Besse Nuclear Power Station, Unit 1)

)

(Regarding the Renewal of Facility Operating License NPF-003 for a 20-Year )

Period)

)

MOTION TO ADMIT NEW CONTENTION REGARDING THE SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE NUCLEAR REGULATORY COMMISSION TASK FORCE REPORT ON THE FUKUSHIMA DAI-ICHI ACCIDENT INTRODUCTION Pursuant to 10 C.F.R. § 2.309, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio ("Intervenors")

hereby move to admit a new contention challenging the adequacy of the Davis-Besse Nuclear Power Station ("Davis-Besse") Operating License Renewal Application, Environmental Report (the "ER") on the basis that it fails to address the extraordinary environmental and safety implications of the findings and recommendations raised by the N uc 1ear Regulatory Commis sion's Fukushima Task Force (the "Task Force") in its report, "Recommendations for Enhancing

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Reactor Safety in the 21't Century: The Near-Term Task Force Review of Insights From the Fukushima Dai-ichi Accident" (July 12,2011) ("Task Force Report"). Intervenors respectfully submit that admitting the new contention is necessary to ensure that the Nuclear Regulatory Commission ("NRC" or the "Commission") fulfills its nondiscretionary duty under the National Environmental Policy Act ("NEP A") to consider the new and significant information set forth in the Task Force Report before it issues a Combined License ("COL") for Davis-Besse.

BACKGROUND On December 27,2010, Intervenors (Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio) filed a request for hearing and petition for leave to intervene against the license extension application filed by FirstEnergy Nuclear Operating Company (FENOC) for its Davis-Besse atomic reactor (Facility Operating License No-NFP-003, Docket No. 50-346, NRC-2010-0299). On April 26, 2011 (the 25th anniversary of the Chernobyl nuclear catastrophe), the ASLB found that Intervenors had established standing, and admitted a number of contentions for hearing. These included renew able energy alternatives to Davis-Besse's license extension (wind and/or solar photovoltaics in conj unction with compressed air storage), as well as various challenges to the adequacy of FENOC's SAMA (Severe Accident Mitigation Alternatives) analyses. Intervenors have since defended their contentions admitted for hearing against any and all challenges brought by the NRC staff and/or FENOC. Thus, all admitted contentions are, at this point, still bound for hearing stage. As of this time, specific hearing dates on these contentions admitted for hearing by the ASLB have not yet been scheduled.\

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DISCUSSION To be admitted for hearing, a new contention must satisfy the six general requirements set forth in 10 C.F.R. § 2.309(£)(1), and the timeliness requirements set forth in either 10 C.F.R. § 2.309(£)(2) (governing timely contentions) or 10 C.F.R. § 2.309(c) (governing non-timely contentions). As provided in the accompanying contention, each of the requirements set forth in 10 C.F.R. § 2.309(£)(1) is satisfied. Furthermore, Intervenors maintain that this Motion and accompanying contention are timely, and the requirements of 10 C.F.R. § 2.309(£)(2) are also satisfied. In the event this Board determines that this Motion and the accompanying contention are not timely, however, Intervenors also maintain that the requirements of 10 C.F.R. § 2.309(c) are satisfied.

This Motion and the Accompanying Contention Satisfy the Requirements for Admission of a Timely Contention Set Forth in 10 C.F.R. § 2.309(£)(2).

The NRC has adopted a three-part standard for assessing timeliness. See 10 C.F.R. § 2.309(£)(2). The Motion and accompanying contention are timely.

The Information Upon Which the Motion and Accompanying Contention are Based was not Previously Available.

The availability of material information "is a significant factor in a Board's determination of whether a motion based on such information is timely filed." Houston Lighting & Power Co.

(South Texas Project, Units 1 & 2), LBP-85-19, 21 NRC 1707, 1723 (1985) (internal citations omitted). This Motion and the accompanying contention are based upon information contained within the Task Force Report, which was not released until July 12,2011. Before issuance of the Task Force Report, the infonnation material to the contention was simply unavailable.

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The Information Upon Which the Motion and Accompanying Contention are Based is Materially Different than Information Previously Available.

Only five months ago, a nuclear accident occurred at the Fukushima Dai-ichi Nuclear Power Plant. In the wake of the accident, the Task Force was established and instructed by the NRC to provide:

A systematic and methodical review of [NRC) processes and regulations to determine whether the agency should make additional improvements to its regulatory system and to make recommendations to the Commission for its policy direction, in light of the accident at the Fukushima Dai-ichi Nuclear Power Plant. Task Force Report at vii. In response to that directive, the Task Force made twelve "overarching" recommendations to "strengthen the regulatory framework for protection against natural disasters, mitigation and emergency preparedness, and to improve the effectiveness of NRC's programs." Id. at viii. In these recommendations the Task Force, for the first time since the Three Mile Island accident occurred in ] 979, funda mentally questioned the adequacy of the current level of safety provided by the NRC's program for nuclear reactor regulation.

In the ER, FENOC assumes that compliance with existing NRC safety regulations is sufficient to ensure that the environmental impacts of accidents are acceptable. The information in the Task Force Report refutes this assumption and is materially different from the information upon which the ER is based. See attached contention and Declaration of Dr. Arjun Makhijani.

The Motion and Accompanying Contention are Timely Based on the Availability of the New Information.

Intervenors have submitted this Motion and accompanying contention in a timely fashion.

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The NRC customarily recognizes as timely contentions that are submitted within thirty (30) days of the occurrence of the triggering event. Shaw Areva MOX Services, Inc. (Mixed Oxide Fuel Fabrication Facility), LBP-08-1O, 67 NRC 460,493 (2008). The Task Force Report, upon which the contention is based, was published on July 12, 2001. Because they were filed within thirty (30) days of publication of the Task Force Report, this Motion and accompanying contention are timely.

The New Contention Satisfies the Standards For Non-Timely Contentions Sct Forth in 10 C ..F.R. § 2.309c Pursuant to § 2.309(c), determination on any "nontimely" filing of a contention must be based on a balancing of eight factors, the most important of which is "good cause, if any, for the failure to file on time." Crow Butte Res., Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008). As set forth below, each of the factors favors admission of the accompanying contention.

A. Good Cause.

Good cause for the late filing is the first, and most important element of 10 C.F.R. § 2.309( c)(I). Private Fuel Storage, L.L.c. (Independent Spent Fuel Storage Installation), CLI-OO 02,51 NRC 77, 79 (2000). Newly arising infOlmation has long been recognized as providing the requisite "good cause." See Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-82-63, 16 NRC 571, 577 (1982), citing Indiana & Michigan Elec. Co. (Donald C. Cook Nuclear Plant, Units 1 & 2), CLI-72-75, 5 AEC 13, 14 (1972). Thus, the NRC has previously found good cause where (1) a contention is based on new information and, therefore, could not have been presented earlier, and (2) the intervenor acted promptly after learning of the new information. Texas Utils.

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Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 69-73 (1992).

As noted above, the information on which this Motion and accompanying contention are based is taken from the Task Force Report, which was issued on July 12,2011 and analyzes NRC processes and regulations in light of the Fukushima accident, an event that occurred a mere five months ago. This Motion and accompanying contention are being submitted less than thirty (30) days after issuance of the Task Force Report.

Accordingly, the Intervenors have good cause to submit this Motion and the accompanying contention now.

B. Nature of the Intervenors' Right to be A Party to the Proceeding.

Intervenors are currently parties in the Davis-Besse OL renewal proceeding. First Energy Nuclear Operating Company (Davis-Besse Nuclear Power Station, Unit 1) LBP-11-13 (April 26, 2011).

C. Nature of Intervenors' Interest in the Proceeding.

Each of the intervening organizations seeks to protect the health, safety, and lives of its members, the general public and the environment by ensuring that the NRC fulfills its non discretionary duty under NEP A to consider the new and significant information set forth in the Task Force Report before it issues an OL renewal for Davis-Besse. Moreover, as each of the members represented by Intervenors lives live within fifty (50) miles of Davis-Besse, Intervenors have an interest in this proceeding because of the "obvious potential for offsite consequences" to their own or their members' health and safety. Diablo Canyon, 56 NRC at 426-27, citing Florida

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Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC l38, 146, aff'd, CLI-01-17, 54 NRC 3 (2001).

D. Possible Effect of an Order on Intervenors' Interest in the Proceeding As noted above, Intervenors' interest in a safe, clean, and healthful environment would be served by the issuance of an order requiring the NRC to fulfill its nondiscretionary duty under NEP A to consider new and significant information before making a licensing decision. See Silva

v. Romney, 473 F.2d 287,292 1st Cir. 1973). Compliance with NEPA ensures that environmental issues are given full consideration in "the ongoing programs and actions of the Federal Government." Marsh v. Oregon Natural Res. Council, 490 U.S. 360,371 n.14 (1989).

E. Availability of Other Means to Protect the Intervenors' Interests.

With regard to this factor, the question is not whether other parties may protect Inter venors' interests, but rather whether there are other means by which Intervenors may protect their own interests. Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2),

ALAB-292, 2 NRC 631 (1975). Quite simply, no other means exist. Only through this hearing do Intervenors have a right that is judicially enforceable to seek compliance by NRC with NEP A before the COL for Davis-Besse is issued, permitting this new reactor to operate and impose severe accident risks on Intervenors and the individuals they represent.

F. Extent the Intervenors' Interests are Represented by Other Parties.

No other party can represent Intevenors' interests in protecting the health, safety, and environment of themselves and their members.

F. Extent That Participation Will Broaden the Issues.

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While Intervenors' participation may broaden or delay the proceeding, this factor may not be relied upon to deny this Motion or exclude the contention because the NRC has a non-discre tionaI)' duty under NEP A to consider new and significant information that arises before it makes its licensing decision. Marsh, 490 U.S. at 373-4. Moreover, while a hearing date for Inter venors' admitted contentions has been tentatively scheduled, , that date is approximately 17 or more months into the future and the admission of the new contention will not delay the hearing.

G. Extent to which Intervenors Will Assist in the Development of a Sound Record.

Intervenors will assist in the development of a sound record, as their contention is supported by the expert opinion of a highly qualified expert, Dr. Arjun Makhijani. See attached Makhijani Declaration. See also Pacific Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-0 1, 67 NRC 1,6 (2008) (finding that, when assisted by experienced counsel and experts, participation of a petitioner may be reasonably expected to contribute to the development of a sound record). Furthermore, as a matter of law, NEPA requires consideration of the new and significant information set forth in the Task Force Report. See 10 C.F.R. § 51.92(a)(2). A sound record cannot be developed without such consideration.

The New Contention Satisfies the Standards For Admission of Contentions Set Forth in 10 C.F.R. § 2.309(1)(1).

As discussed in the accompanying contention, the standards for admission of a contention set forth in 10 C.F.R. § 2.309(£)( 1) are satisfied and for all the foregoing reasons, this Motion should be granted and the accompanying contention admitted.

Respectfully submitted this 11 th day of August 2011.

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/s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-8582 Counsel for Intervenors

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D==~~=================================

1!@@!1 INSTITUTE FOR ENERGY AND ENVIRONMENTAL RESEARCH 6935 Laurel Avenue, Suite 201 Takoma Park, MD 20912 Phone: (301) 270-5500 FAX: (301) 270*3029 e-mail: ieer@ieer.org http://www.ieer.org DECLARATION OF DR. ARJUN MAKHIJANI REGARDING SAFETY AND ENVIRONMENTAL SIGNIFICANCE OF NRC TASK FORCE REPORT REGARDING LESSONS LEARNED FROM FUKUSHIMA DAIICHI NUCLEAR POWER STATION ACCIDENT t I, Arjun Makhijani, declare as follows:

Introduction and Statement of Qualifications

1. I am President of the Institute far Energy and Environmental Research ("lEER") in Takoma Park, Maryland. Under my direction, IEER produces technical studies on a wide range of energy and environmental issues to provide advocacy groups and policy makers with sound scientific information and analyses as applied to environmental and health protection and for the purpose of promoting the understanding and democratization of science. A copy of my curriculum vita is attached.

2. I am qualified by training and experience as an expert in the fields of plasma physics, electrical engineering, nuclear engineering, the health effects of radiation, radioactive waste management and disposal (including spent fuel), estimation of source ten11S from nuclear facilities, risk assessment, energy-related technology and policy issues, and the relative costs and benefits of nuclear energy and other energy sources. I am the principal author of a report on the 1959 accident at the Sodium Reactor Experiment facility near Simi Valley in California, prepared as an expert report for litigation involving radioactivity emissions from that site. I am also the principal author of a book, The Nuclear Power Deception: u.s. Nuclear Mythology from Electricity "Too Cheap to Meter" to "Inherently Safe' Reactors" (Apex Press, New Yark, 1999, co-author, Scott Saleska), which examines, among other things, the safety of various designs of nuclear reactors.

3. I have written or co-written a number of other books, reports, and publications analyzing the safety, economics, and efficiency of various energy sources, including nuclear power. I am also the author of Securing the Energy Future ofthe United States: Oil, Nuclear and Electricity 1 Task Foree Review (Recommendations for Enhancing Reactor Safety in the 21st Century: The Near- Term Task Force Review ofInsights from the Fukushima Dai-ichi Accident, Nuclear Regulatory Commission, July 12, 2011, at

Vulnerabilities and a Post-September 11, 2001 Roadmap for Action (Institute for Energy and Environmental Research, Takoma Park, Maryland, December 2001). In 2004, I 'wrote "Atomic Myths, Radioactive Realities: Why nuclear power is a poor way to meet energy needs," Journal ofLand, Resources, & Environmental Law, v. 24, no. 1 at 61-72 (2004). The article was adapted from an oral presentation given on April 18,2003, at the Eighth Annual Wallace Stegner Center Symposium entitled, "Nuclear West: Legacy and Future," held at the University of Utah SJ.

Quinney College of Law. In 2008, 1 prepared a report for the Sustainable Energy & Economic Development (SEED) Coalition entitled Assessing Nuclear Plant Capital Costs for the Two Proposed NRG Reactors at the South Texas Project Site.

4. I am generally familiar with the basic design and operation of U.S. nuclear reactors and with the safety and environmental risks they pose. I am also generally familiar with materials from the press, the Japanese government, the Tokyo Electric Power Company, the French government safety authorities, and the U.S. Nuclear Regulatory Commission ("NRC") regarding the Fukushima Daiichi (hereafter Fukushima) accident and its potential implications for the safety and environmental protection of U.S. reactors. I have also read Recommendationsfor Enhancing Reactor Safety in the 2r t Century: The Near-Term Task Force Review ofInsights from the Fukushima Dai-chi Accident, July 12,2011 (hereafter the "Task Force Review"),

published by the NRC.

5. On April 19,2011, I prepared a declaration stating my opinion that although the causes, evolution, and consequences of the Fukushima accident were not yet fully clear a month after the accident began, it was already presenting new and significant information regarding the risks to public health and safety and the environment posed by the operation of nuclear reactors. My declaration was submitted to the NRC by numerous individuals and environmental organizations in support of a legal petition to suspend licensing decisions while the NRC investigated the regulatory implications of the Fukushima accident. Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons learned From Fukushima Daiichi Nuclear Power Station Accident (April 14-18, 2011).

In my declaration I also stated my belief that the integration of new information from the Fukushima accident into the NRC's licensing process could affect the outcome of safety and environmental analyses for reactor licensing and relicensing decisions by resulting in the denial of licenses or license extensions or the imposition of new conditions and/or new regulatory requirements. 1 also expressed the opinion that the new information could also affect the NRC's evaluation of the fitness of new reactor designs for certification. Id., par. 5.

Purpose

6. The purpose of my declaration is to explain why the Task Force Review provides further support for my opinions that the Fukushima accident presents new and significant information regarding the risks to public health and safety and the environment posed by the operation of nuclear reactors and that the integration of this new information into the NRC's licensing process could affect the outcome of safety and environmental analyses for reactor licensing and relicensing decisions and the NRC's evaluation of the fitness of new reactor designs for certification.

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Agreement With Task Force Review's Conclusions Regarding Need to Expand Design Basis

7. In my opinion, the Task Force reasonably concludes that substantial revisions to the very framework of NRC regulations are needed to adequately protect public health and the environment. I also agree that a major overarching step that needs to be taken is to integrate into the design basis for NRC safety requirements an expanded list of severe accidents and events, based on current scientific understanding and evaluations. This would ensure that potential mitigation measures are evaluated on the basis of whether they are needed for safety and not whether they are merely desirable. Should the NRC fail to incorporate an expanded list of severe accident requirements in the design basis of reactors, then a conclusion that the design provides for adequate protection to the public against severe accident risks could not be justified. The necessity for an expanded list of design basis requirements should be viewed in light of the Fukushima experience and the nuclear accident experience which preceded Fukushima, including Three Mile Island and Chernobyl accidents. Specifically, adequate protection of the public is incompatible with the NRC's continued reliance on voluntary evaluation of severe external and internal events, voluntary adoption of mitigation measures, or the use of cost-benefit analysis to evaluate their desirability.

8. I believe my opinion is consistent with the Task Force's statement that:

Adequate protection has been, and should continue to be, an evolving safety standard supported by new scientific information, technologies, methods, and operating experience. This was the case when new information about the security environment was revealed through the events of September 11, 2001. Licensing or operating a nuclear power plant with no emergency core cooling system or without robust security protections, while done in the past, would not occur under the current regulations. As new information and new analytical techniques are developed, safety standards need to be reviewed, evaluated, and changed, as necessary, to insure that they continue to address the NRC's requirements to provide reasonable assurance ofadequate protection ofpublic health and safety.

The Task Force believes, based on its review ofthe information currently available from Japan and the current regulations, that the time has come/or such change. [po 18, italics added]

9. I am concerned that over the past three decades or more, the NRC has not conducted the type of review of the adequacy of its safety regulations that is necessary to update its requirements so as to ensure that NRC safety requirements will provide the minimum level of protection required by the Atomic Energy Act. For instance, the Task Force Review points out that, over 30 years ago, the Rogovin Commission recommended that the scope of the design basis should be expanded to include a greater range of severe accidents. The Rogovin Commission explicitly stated that "[m]odification is definitely needed in the current philosophy that there are some accidents ("Class Nine accidents") [2] so unlikely that reactor designs need not 2 Class Nine accidents are now called "severe accidents." (Task Foree Review p. 16) 3

provide for mitigating their consequences.,,3. This recommendation was effectively disregarded by the NRC. Instead of imposing and enforcing mandatory requirements for prevention and mitigation of severe accidents, the NRC accepted voluntary measures and the use of cost-benefit assessments by licensees to exclude requirements for a range of preventive or mitigative measures. As a result the Task Force Review concluded that despite including some requirements for beyond-design-basis accidents, "the NRC has not madefundamental changes to the regulatory approach for beyond-design-basis events and severe accidents for operating reactors." (p. 17, italics added). Even the installation of hardened vents on Mark I and Mark II BWRs was left to the voluntary discretion of the licensees. Given the NRC's failure to make the needed changes in its basic regulatory requirements for safety since the Rogovin Commission report was issued over thirty years ago, and in light of the disastrous consequences of the Fukushima accident, which continues nearly five months after it started, I consider the current inadequacies in the NRC's program for regulation of basic reactor safety to be extraordinarily grave problems.

Potential Effects of Task Force Review on Environmental Analyses for ~ew Reactors, Existing Reactor License Renewal, and Standardized Design Certification

10. If the Task Force's recommendation to incorporate severe accidents into the design basis for NRC safety requirements is considered in environmental analyses for reactor licensing decisions or standardized design certifications, I think it would have very significant effects on the outcome of those analyses, in three key respects. First, the environmental analysis would have to consider the implication of the Task Force Review that compliance with current NRC safety requirements does not adequately protect public health and safety from severe accidents and their environmental effects. Second, for reactors that are unable to comply with new mandatory requirements, it could result in the denial of licenses. Third, the cost of adopting mandatory measures necessary to significantly improve the safety of currently operating reactors and proposed new reactors is likely to be significant.

Change to Estimate of Environmental Risk

11. An analysis of the environmental implications of the Task Force Review would have to consider the ramifications of the Task Force's implicit conclusion that compliance with current NRC safety standards does not adequately protect public health and safety from severe accidents and their environmental effects. For instance, the Task Force Review indicates that seismic and flooding risks as well as risks of seismically-induced fires and floods may be greater than previously understood by the NRC in some cases. Therefore in its environmental analyses, the NRC would have to revise its analysis to reflect the new understanding that the risks and radiological impacts of accidents are greater than previously thought.

Potential Denial of License Applications Based on Environmental Risk Analyses

12. The Task Force Review implicitly raises the potential that some reactors will be unable to 3 Rogovin Commission report (Three Mile Island: A Report to the Commissioners and to the Public, by Mitchell Rogovin and George T. Frampton, ct al. NVREG/CR-1250 1980. (Rogovin, Stern & Huge, Washington, DC, January 1980), v. 1, p. 151 4

comply with new mandatory requirements, thus resulting in the denial oflicenses. For instance, this would be the case if a reactor cannot be adequately backfitted to comply with present-day assessment of ground shaking induced by earthquakes. Similarly, multi-unit siting may not be allowed in certain cases due to the impracticality of meeting upgraded emergency management requirements.

Significant Changes to Cost-Benefit Analyses

13. The cost of adopting mandatory measures necessary to significantly improve the safety of currently operating reactors and proposed new reactors is likely to be significant. Adoption of a coherent regulatory framework as recommended by the Task Force, including periodic reassessments of whether the design basis is up to date with scientific assessments of flooding and seismic threats, is likely to result in significantly increased costs for nuclear reactors.

14. The Task Force Review contains numerous recommendations for consideration of new mandatory requirements for increasing the capability of the reactors, equipment, and personnel to handle and to respond to a range of severe accidents. Adoption of such measures could have high costs. This, in turn, will affect the overall cost-benefit analysis for reactors, especially the comparisons of nuclear power with alternative sources of electricity. Examples of potentially significant costs if severe accident mitigation measures are adopted follow in paragraphs 15 through 24 below:

15. If the Task Force recommendations are adopted, all existing reactors will be required to make changes to extend their capacity to handle station blackouts. This design upgrade is likely to have significant costs.

16. Similar considerations apply to new reactor combined construction and operating license applications. For instance, the Task Force recommends adding station blackout requirements to the Advanced Boiling Water Reactor, which would also likely result in increased costs. (p.72).

17. Even where the Task Force deems some narrow issues to be already resolved by COL (combined license) applications and/or design certification applications, the interplay of other Task Force recommendations may raise environmental issues and cost concerns. For instance, while the Task Force found that the APlOOO and ESBWR designs already have a 72-hour provision for passive emergency core cooling, thereby satisfying the design requirement recommendations for station blackouts (pp. 71-72), other statements in the Task Force Review indicate the existence of environmental concerns that should be addressed in an EIS. For instance, the Task Force recommendations relating to the provision of backup power during the time beyond 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> relate mainly to prepositioning equipment offsite (Recommendation 4.1, p.

38) and therefore were regarded as not relevant to AP1000 and ESBWR design certifications but only to the COL process (p. 72). However, in the context of emergency preparedness, the Task Force Review notes that "[i]n the case of large natural disasters such as earthquakes, hurricanes, and floods, the phenomena challenging the plant will also have affected the local community. In these cases, prearranged resources may not be available because of their inability to reach the plant site .. ,," (p. 60, italics added). Therefore the designs of the AP1000 and the ESBWR need to be reviewed in the context of their ability to mitigate the environmental impacts of station 5

blackout lasting more than 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. The potential for destruction of infrastructure that would prevent prestaged offsite equipment from reaching the site would also needs to be taken into account in environmental analyses for COLs and license extension applications.

18. Similarly, while the Task Force concludes that COL and Early Site Permit (ESP) applications already satisfy Recommendation 2.1 with respect to analysis of seismic and flooding risks (p. 71), it does not appear that all of the seismic and flooding-related implications of the Review have been addressed. Specifically, the flooding and fires that may be induced by earthquakes was closed by the NRC without imposing new requirements; the Task Force Review recommends reopening this issue (p. 32). These are issues that combine site characteristics and reactor design. For instance, the passive cooling features of APlOOOs and ESBWRs involve pools of water located above the reactors. In addition, the ESBWR design has a buffer spent fuel pool in roughly the same position relative to the reactor as the Mark I design reactors (i.e., above the reactor vessel). Hence it is important to revisit this issue for these two reactor designs since they may be built at seismically active sites, including in the central and eastern United States (see paragraph 22 below), where there are active COL applications pending.

19. In the context of existing reactors, the Task Force Review recommends incorporating the latest understanding of seismic impacts and flooding (Recommendation 2, p. 30), and reopening the issue seismically induced flooding and fires (Recommendation 3, p. 32). This reassessment may also involve increased costs due to required backfits.

20. Taken as a whole, the Task Force Review's recommendations implicitly call for a review of all new reactor design certifications regarding station blackout (SBO) arrangements, including mitigation measures for SBO events that extend beyond 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> and spent fuel pool instrumentation and make up water supply capability. The effects of seismically induced flooding and fires on spent fuel pool arrangements should also be reviewed. All of these reviews could result in the imposition of costly prevention or mitigation measures, affecting comparisons with the alternatives.

21.. In view of the events leading to the hydrogen explosions in Units 1,3, and 4 at Fukushima, the reliability of the existing hardened vent system in Mark I and Mark II reactors has been thrown into question. The Task Force Review recommends installation of reliable hardened vents in all Mark I and Mark II BWRs (Recommendation 5, p. 41). Because such vents have not yet been designed and tested, their costs are unknown. However, they are likely to be substantial. These costs must be determined and evaluated for NEP A purposes for all 23 Mark I reactors and all eight Mark II reactors.

22. The recommended mandatory review of the flooding and seismic design basis of existing reactors to evaluate whether they meet the design basis safety requirements could result in greatly increased costs in some or many cases. The establishment of the Shoreline Fault just offshore the Diablo Canyon Power Plant and the Oceanside thrust in the area of the San Onofre Nuclear Generating Station provides examples of recent developments that could lead to large expenditures for restoring the design basis safety margins for these reactors. As a reflection of the uncertainty, Pacific Gas & Electric (PG&E), which owns Diablo Canyon has itselfrequested and obtained a delay of 52 months in its license extension application so that the necessary 6

seismic studies can be completed. Another example relates to seismic hazard assessments in the central and eastern United States. In that case, the NRC has concluded that "[u ]pdates to seismic data and models indicate that estimates of the seismic hazard, at some operating nuclear power plant sites in the Central and Eastern United States, have increased.,,4 The NRC does not have enough data at present to determine what, if any, backfits may be called for, but intends to use a cost-benefit approach in deciding whether they should be implemented. It specifically states that

"[i]n order to progress with the Regulatory Analysis Stage, a comprehensive list of candidate plant backfits must be identified for subsequent value-impact analysis."s "Value-impact analysis" is the NRC's terminology for a cost-benefit analysis. 6 However, ifbackfitting for more severe earthquakes than were incorporated into the original design were required for safety rather than left to a cost-benefit analysis, the implications for comparison with the alternatives could be considerable for existing reactors in the Central and Eastern United States.

23. The Task Force noted that the same concern applies to flooding hazards, where "the assumptions and factors that were considered in flood protection at operating plants vary. In some cases, the design basis does not consider the probable maximum flood (PMF)." (p. 29)

Again, protection of reactors against updated f100d hazards could involve significant costs, depending on the outcome of the updated evaluations.

24. Finally, the Task Force Review points out the importance of considering mitigation measures associated with multi-unit events. Such events had not been considered before and therefore were assigned zero probability for all intents and purposes. The Task Force review recommends a revision of regulations to cover multi-unit events, for instance, to ensure adequate emergency core and spent fuel cooling for more than one unit at a time:

As part of the revision to 10 CFR 50.63, the NRC should require that the equipment and personnel necessary to implement the minimum and extended coping strategies shall include sufficient capacity to provide core and spent fuel pool cooling, and reactor cooling system andprimary containment integrity for all units at a multiunit facility. The staff should also make the appropriate revisions to the definitions of "station blackout" and "alternate ac source" in 10 CFR 50.2. [po 39, italics added]

Because most new applicants for COLs, such as Vogtle 3 and 4, propose to locate the new units at sites that already have reactors, the entire basis of emergency response adequacy, station blackout related requirements, and emergency core and spent fuel pool cooling needs to be 4 Implications o{Updated Probabilistic Seismic Hazard Estimates in Central and Eastern United States on Existing Plants Safety/Risk Assessments, Generic Issue 199 (G I-199), Nuclear Regulatory Commission, August 2010, at

~.cc"','_,",~,.,.c,-=-'-'-'-"'~=-'-_~~=:_=, p. 30 01-199 p. 30 6 NRC guidelines require "that the value-impact of an alternative be quantified as the "net value" (or "net benefit").

To the extent possible, all attributes, whether values or impacts, arc quantified in monetary terms and added together (with the appropriate algebraic signs) to obtain the net value in dollars. The net value calculation is generally favored over other measures, such as a value-impact ratio or internal rate of return (RWG 1996,Section III.A.2)."

(Regulatory Analysis Technical Evaluation Handbook: Final Report, NUREG/BR-O 184, Nuclear Regulatory Commission, Office of Nuclear Regulatory Research, January 1997, p. 5.2. Link at 7

reconsidered for the total number of units proposed at the site. The design and cost implications could be significant and must be reconsidered and reevaluated.

Conclusions

25. I agree with the conclusions of the Task Force that significant changes to the NRC's regulatory system are needed in order to ensure that the operation of new reactors and re-licensed existing reactors does not pose unacceptable safety and environmental risks to the public. In light of the disastrous and ongoing events at Fukushima since March 11, 2011, it is clear that the issues of public safety raised by the Task Force are exceptionally grave. I also believe that it is highly likely that consideration of the Task Force's conclusions and recommendations in environmental analyses for new reactor licensing, existing reactor re-licensing, and design certification rulemakings, would materially affect the outcome of many and possibly all those studies.

The facts presented above are true and correct to the best of my knowledge, and the opinions expressed therein are based on my best professional judgment.

Date: 8 August 2011 Dr. Arjun Makhijani 8

August 11,2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) Docket No. 50-346 First Energy Nuclear Operating Company )

(Davis-Besse Nuclear Power Station, Unit 1)

)

)

CERTIFICATE UF SERVICE I hereby certify that copies of "Intervenors , Motion to Admit New Contention" have been served on the following persons via Electronic Information Exchange this 11 th day of August, 2011:

Administrative Judge Office of Commission Appellate E-mail: wekl@nrc.gov Adjudication Hillary Cain U.S. Nuclear Regulatory Commission Law Clerk Washington, DC 20555-0001 E-mail: hillary.cain@nrc.gov E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission. Office of the Secretary of the Commission Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop T-3F23 Mail Stop O-I6C 1 Washington, DC 20555-0001 Washington, DC 20555-0001 William 1. Froehlich, Chair Hearing Docket Administrative Judge E-mail: hearingdocket@nrc.gov E-mail: William.froehlich@nrc.gov Office of the General Counsel Nicholas G. Trikouros U.S. Nuclear Regulatory Commission Administrative Judge Mail Stop O-I5D21 E-mail: nicholas.trikouros@nrc.gov Washington, DC 20555-0001 William E. Kastenberg Edward L. Williamson, Esq.

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E-mail: edward.williamson@nrc.gov Lloyd B. Subin, Esq.

E-mail: lloyd.subin@nrc.gov Brian Harris, Esq.

E-mail: brian.harris@nrc.gov Brian P. Newell, Paralegal E-mail: brian.newell@nrc.gov OGC Mail Center:

OGCMaiICenter@nrc.gov FirstEnergy Service Company.

Mailstop: A-GO-J5 76 South Main Street Akron, OH 44308 David W. Jenkins, Esq.

E-mail: djenkins@firstenergycorp.com Morgan, Lewis & Bockius Pennsylvania Avenue, NW Washington, D.C. 20004 Stephen Burdick, Esq.

E-mail: sburdick@morganlewis.com Alex Polonsky, Esq.

E-mail: apolonsky@morganlewis.com Kathryn M. Sutton, Esq.

E-mail: ksutton@morganlewis.com Martin O'Neill, Esq.

E-mail: martin.oneill@morganlewis.com Timothy Matthews, Esq.

E-mail: tmatthews@morganlewis.com Mary Freeze, Legal Secretary E-mail: mfreeze@morganlewis.com Lisa Harris, Legal Secretary E-mail: lisa.harris@morganlewis.com

/s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-8582 Counsel for Intervenors

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Rulemaking Comments From: Terry Lodge [tjlodge50@yahoo.com]

Sent: Thursday, August 11, 2011 11 :29 PM To: Rulemaking Comments

Subject:

Rulemaking on behalf of intervenors in Davis-Besse OL extension and Fermi 3 COL Attachments: rulemaking pet DB complete. pdf; rulemaking petn F complete. pdf