ML12068A429

Fenoc'S Answer Opposing Intervenors' Motion to Amend Proposed Contention 5 on Shield Building Cracking

ML12068A429
Person / Time
Site:	Davis Besse
Issue date:	03/08/2012
From:	Matthews T FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22022, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12068A429 (12)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) March 8, 2012

)

FENOCS ANSWER OPPOSING INTERVENORS MOTION TO AMEND PROPOSED CONTENTION 5 ON SHIELD BUILDING CRACKING I. INTRODUCTION On February 27, 2012, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (Intervenors) filed a motion with the Atomic Safety and Licensing Board (Board) to amend their proposed Contention 5 (proposed Contention) regarding Shield Building cracking (Motion to Amend).1 FirstEnergy Nuclear Operating Company (FENOC) files this timely Answer in opposition to the Motion to Amend, pursuant to 10 C.F.R. § 2.309(h)(1) and Section B.2 of the Boards June 15, 2011 Initial Scheduling Order (ISO).2 As demonstrated below, the Board should deny the Motion to Amend because, contrary to 10 C.F.R. § 2.309(f)(2), the information upon which the Motion to Amend is based is not new or materially different than information previously available. Additionally, even if this information were considered, it would not remedy the proposed Contentions earlier defects.

1 Intervenors Motion to Amend Motion for Admission of Contention No. 5 (Feb. 27, 2012).

2 Under 10 C.F.R. § 2.309(h)(1), an applicant may file an answer to a proffered contention within 25 days of the service of the contention. Section B.2 of the ISO in this proceeding states that FENOC may file an answer to a motion for leave to file a new contention within 25 days after service of the pleadings. ISO at 13. This section of the ISO encompasses a request for leave to file a new or amended contention. Id. at 12 (emphasis added).

Therefore, FENOC understands that this Answer would have been due 25 days after the Motion to Amend was filed, even though FENOC chose to file it early.

II. BACKGROUND On January 10, 2012, Intervenors filed a motion with the Board to admit a proposed Contention regarding Shield Building cracking.3 Both FENOC and the Nuclear Regulatory Commission (NRC) Staff filed answers to the proposed Contention on February 6, 2012.4 Intervenors filed their Reply on February 13, 2012.5 On February 23, 2012, FENOC filed a Motion to Strike portions of the Reply.6 Intervenors responded to the Motion to Strike on February 27, 2012.7 On February 27, 2012, the Intervenors also filed the instant Motion to Amend.

III. LEGAL STANDARDS Under the Boards ISO,8 an amended contention must satisfy the requirements of 10 C.F.R. § 2.309(f)(2)(i) through (iii), which provide that a petitioner may submit an amended contention only with leave of the presiding officer upon a showing that:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

3 Motion for Admission of Contention No. 5 on Shield Building Cracking (Jan. 10, 2012) (Proposed Contention).

4 NRC Staffs Answer to Motion to Admit New Contention Regarding the Safety Implications of Newly Discovered Shield Building Cracking (Feb. 6, 2012); FENOCs Answer Opposing Intervenors Motion for Admission of Contention No. 5 on Shield Building Cracking (Feb. 6, 2012) (FENOC Answer).

5 Intervenors Combined Reply in Support of Motion for Admission of Contention No. 5 (Feb. 13, 2012)

(Reply).

6 FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking (Feb. 23, 2012) (Motion to Strike).

7 Intervenors Answer to FENOC Motion to Strike (Feb. 27, 2012).

8 See ISO § B.2, at 12.

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IV. THE MOTION TO AMEND SHOULD BE REJECTED Intervenors claim that they have discovered new information which they believe to be relevant to the contention.9 The information alleged to be new is from two documents identified by Intervenors: (1) a February 8, 2012 press release from Congressman Dennis Kucinichs website, entitled Why Wont FirstEnergy Tell the Truth About Davis-Besse?

(Kucinich Press Release), and (2) a January 31, 2012 NRC Inspection Report (Inspection Report).10 A. Neither the Information in the Kucinich Press Release nor in the NRC Inspection Report Is New or Materially Different from Earlier Information Contrary to 10 C.F.R. § 2.309(f)(2)(i) and (ii), the information in the Kucinich Press Release and the Inspection Report is not new or materially different than information previously available.

1. Kucinich Press Release The Kucinich Press Release includes statements regarding an alleged bounding analysis assumption used by the NRC Staff and FENOC during evaluation of the strength of the Shield Building.11 As quoted and highlighted by Intervenors, the Kucinich Press Release states:

The NRC allowed my staff to review those documents.

The reports showed conclusively that the cracking was not in architectural or decorative elements of the wall, as FirstEnergy publicly claimed, but ran throughout the line of the main outer rebar.

In fact, the cracking is so extensive that the NRC required FirstEnergy to assume, in its calculations of the strength of the wall, that the vertical outer rebar mat did not even exist.12 9

Motion to Amend at 1.

10 Id. at 2-3. Intervenors provided the Kucinich Press Release and the Inspection Report as attachments to the Motion to Amend.

11 See id. at 2.

12 Id. (emphasis supplied in Motion to Amend).

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This information is not new or materially different than information previously available.

In fact, this information was previously identified by Intervenors themselves in the proposed Contention. For example:

• Intervenors alleged in the proposed Contention that the cracks were not confined to the architecturally decorative elements of the building (contrary to FENOCs repeated statements in the media throughout October, November and December 2011) and one or more cracks extended the full 225-foot height of the reactor shield building.13

• A November 21, 2011 letter from Congressman Kucinich that is repeated verbatim in the proposed Contention states that the cracking runs along the line of the outermost steel reinforcing bars (rebar).14

• A December 7, 2011 statement from Congressman Kucinich that is reproduced in the proposed Contention states: They also described the cracking as laminar cracking that is circumferential to the entire outer rebar map. While only a small percentage of the wall has actually been tested, they are assuming for purposes of evaluation that the flute shoulders have laminar cracking all the way up and down the concrete wall.15

• Intervenors alleged in the proposed Contention that FENOC (as with NRC) is assuming that the cracking extends for 225 feet from the bottom of the concrete shield building to the top.16

2. Inspection Report The Inspection Report includes statements regarding cracking in the top 20 feet of the Shield Building.17 As quoted by Intervenors, the Inspection Report states:

On October 31, 2011, the licensee identified additional indications of concrete cracking during IR testing towards the top of the SB wall, approximately between the 780 ft and 800 ft elevations. This area of indications was yet another one different from the laminar cracking initially identified adjacent to the RRVCH opening. The licensee entered this extent-of-condition issue for the SB cracking into their CAP as CR 2011-04648, informed the NRC via the Resident Inspectors Office on site, and continued to investigate further to determine if any additional adverse conditions existed.18 13 Proposed Contention at 8.

14 Id. at 27.

15 Id. at 36.

16 Id. at 37.

17 Motion to Amend at 3.

18 Id.

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This information is not new or materially different than information previously available.

In fact, this same information was previously identified by Intervenors themselves in the proposed Contention.19 For example:

• A December 7, 2011 statement from Congressman Kucinich that is reproduced in the proposed Contention states: As a result of information shared by the NRC, it was revealed that the extent of those cracks is greater than portrayed to the public by FirstEnergy. Cracks have been found in additional locations not revealed in public statements by FirstEnergy, including cracks around the top twenty feet of the building.20

• A December 7, 2011 statement from Congressman Kucinich that is reproduced in the proposed Contention states: On December 6, 2011, the NRC informed us that impact response mapping had revealed similar cracks in various areas of the top 20 feet of the building that were not flute shoulders.21

• Intervenors stated in the proposed Contention that given Rep. Kucinichs revelations about cracking in the top 20 feet of the concrete shield building/secondary radiological containment structure, Intervenors seek to understand FENOCs specific methodology for visually inspecting that elevated region of the structure.22

3. Analysis of Documents Under 10 C.F.R. § 2.309(f)(2)

Intervenors acknowledge that the Motion to Amend is subject to the requirements in 10 C.F.R. § 2.309(f)(2), but they incorrectly evaluate the Section 2.309(f)(2) factors. Intervenors claim that the Motion to Amend satisfies these requirements by stating:

The information contained in the two numbered paragraphs above was not previously available from any source prior to February 8, 2012 (paragraph 1) and January 31, 2012 (paragraph 2). It is materially different from information previously available about the cracking phenomena in the shield building of Davis-Besse Nuclear Power Station, as the facts describe new locations and types of structural damage caused by the cracking compared to the 19 Intervenors also referenced the Inspection Report in their Reply. See Reply at 2-3. In the Reply, however, Intervenors did not reference the Inspection Report in the context of new factual support; instead, Intervenors referenced the Inspection Report as part of their argument that FENOC and the NRC Staff should be equitably estopped from asserting timeliness arguments. Id. at 2-5. FENOC has moved to strike this entire argument in the Reply. See Motion to Strike at 7-10.

20 Proposed Contention at 33.

21 Id. at 35-36.

22 Id. at 40.

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information hitherto known. Finally, the informational disclosures are well within the 60-day window in which new allegations must be raised following discovery.23 Although Intervenors are correct that the two documents were not published until after the proposed Contention, they are incorrect that [t]he information contained in the two numbered paragraphs above was not previously available from any source.24 As demonstrated above, the relevant information cited by Intervenors in the Kucinich Press Release and the Inspection Report was previously available, and was actually provided in Intervenors proposed Contention.25 The timeliness of an amended contention is based on when the underlying information became available, not when a document is published.26 The Commission has stated that not only must the petitioner have acted promptly after learning of the new information, but the information itself must be new information, not information already in the public domain.27 Similarly, NRC tribunals have held that the unavailability of a specific document does not justify admission of a new contention when the contentions factual 23 Motion to Amend at 3-4.

24 Id. at 3. Intervenors are incorrect that the information in the Kucinich Press Release and the Inspection Report was not available until these documents were public. In addition to the information being referenced and discussed in Intervenors proposed Contention itself, as discussed above, the information was discussed in detail at the January 5, 2012 public meeting regarding the Shield Building cracking. As shown in the FENOC slides for this meeting, the meeting addressed (1) the location of the cracking, including outside the architectural features, adjacent to the outer rebar mat, and at the top 20 feet of the Shield Building; and (2)

FENOCs bounding calculations that assume [v]ertical and horizontal reinforcement ineffective for strength in flute shoulders, two steam line penetration areas and in regions at top of shield building. See, e.g., FENOC Answer, attach. 2, at 19, 24, 26-27, 30, 34, 38. Intervenors attended this meeting. See, e.g., Proposed Contention at 46. Therefore, even had Intervenors not identified the information from the Kucinich Press Release and the Inspection Report in their proposed Contention, Intervenors cannot now claim that this information is new when it was available at a public meeting that they attended, especially when that meeting occurred before the proposed Contention was filed.

25 Additionally, even if Intervenors had not already been aware of the information from the Kucinich Press Release and the Inspection Report, the Motion to Amend still should be rejected, because a petitioner must show that the information on which the new contention is based was not reasonably available to the public, not merely that the petitioner recently found out about it. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 126 (2009). As shown above, however, the relevant information already was available in public statements by Congressman Kucinich.

26 10 C.F.R. § 2.309(f)(2).

27 Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 70 (1992).

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predicate was previously available.28 Therefore, the Motion to Amend fails to satisfy the requirement in 10 C.F.R. § 2.309(f)(2)(i) that [t]he information upon which the amended or new contention is based was not previously available.

Intervenors claim that the information in the two documents is materially different29 from previous information also is incorrect. As demonstrated above, the same information in the Kucinich Press Release and the Inspection Report was actually provided in Intervenors proposed Contention, and therefore cannot be considered materially different than previous information. Similarly, the information in the two documents does not describe new locations and types of structural damage caused by the cracking compared to the information hitherto known,30 because it is the same as information previously available and included in the proposed Contention. Therefore, the Motion to Amend fails to satisfy the requirement in 10 C.F.R. § 2.309(f)(2)(ii) that [t]he information upon which the amended or new contention is based is materially different than information previously available.

In summary, Intervenors had previously identified the same information contained in the Kucinich Press Release and the Inspection Report. Therefore, this information is neither new nor materially different from earlier information, contrary to 10 C.F.R. § 2.309(f)(2)(i) and (ii),

respectively. Accordingly, the Motion to Amend should be rejected.

28 See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 208 (1998) (citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1043, 1045 (1983); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8, 26 (1996);

Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 69 (1983)) (ruling that the intervenors reliance on newly-disclosed materials was not necessary or integral to the development of its late-filed contention, such that delay in filing was not justified), affd, CLI-98-13, 48 NRC 26 (1998).

29 Motion to Amend at 3.

30 Id.

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B. The Motion to Amend Does Not Remedy the Proposed Contentions Earlier Defects Even if the information in the Kucinich Press Release and the Inspection Report were considered, it would not change the conclusions in the FENOC Answer that the proposed Contention was untimely and did not satisfy the contention admissibility requirements.31 As set forth in Section III of the FENOC Answer, a proposed contention must satisfy the requirements in: (1) 10 C.F.R. § 2.309(f)(2) and (c) governing timeliness of late-filed contentions; and (2) 10 C.F.R. § 2.309(f)(1) to demonstrate contention admissibility.32 Failure to satisfy any of these requirements compels the rejection of the proposed Contention.33 Section IV.A of the FENOC Answer explained that the proposed Contention was untimely.34 Specifically, the proposed Contention was untimely under 10 C.F.R. § 2.309(f)(2) because, contrary to the ISO, Intervenors filed the proposed Contention more than 60 days after the public availability of the information upon which it was based, and subsequent documents or events did not present materially-different information.35 Moreover, Intervenors failed to demonstrate good cause under 10 C.F.R. § 2.309(c)(1) justifying their late filing.36 Section IV.B of the FENOC Answer explained that the environmental and non-environmental arguments failed to satisfy the contention admissibility requirements specified in 10 C.F.R. § 2.309(f)(1).37 Specifically, the environmental arguments inappropriately challenged generic conclusions in the NRC regulations without a waiver petition, failed to challenge the 31 See FENOC Answer at 1-3.

32 Id. at 7-12.

33 See, e.g., N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC __,

slip op. at 9-10 (Sept. 30, 2010) (stating that for a late-filed contention to be admissible, it must satisfy the admissibility requirements in Section 2.309(f)(1) and must satisfy the timeliness requirements in Section 2.309(f)(2)).

34 See FENOC Answer at 12-23.

35 See id. at 12-16.

36 See id. at 16-20.

37 See id. at 23-47.

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Davis-Besse License Renewal Application (LRA), and lacked adequate factual support.38 Similarly, Intervenors safety arguments inappropriately challenged issues outside the scope of license renewal, failed to directly challenge the Davis-Besse LRA, and lacked adequate factual support.39 As demonstrated above in Section IV.A of this Answer, the Kucinich Press Release and the Inspection Report include the same information that Intervenors presented in the proposed Contention itself. Because the Motion to Amend provides no new material information, it does not cure any of the proposed Contentions defects identified in the FENOC Answer.

38 See id. at 24-32.

39 See id. at 32-46.

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V. CONCLUSION As demonstrated above, the Board should deny the Motion to Amend because it does not identify any new or materially different information, and therefore does not support an amended contention under 10 C.F.R. § 2.309(f)(2). Additionally, the Motion to Amend does not cure the defects in the proposed Contention, including that the proposed Contention was untimely and did not satisfy the contention admissibility requirements.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Signed (electronically) by Timothy P. Matthews Timothy P. Matthews Kathryn M. Sutton Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com David W. Jenkins Senior Corporate Counsel FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FENOC Dated in Washington, D.C.

this 8th day of March 2012 10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) March 8, 2012

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FENOCs Answer Opposing Intervenors Motion to Amend Proposed Contention 5 on Shield Building Cracking was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

Administrative Judge Administrative Judge William J. Froehlich, Chair Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wjf1@nrc.gov E-mail: nicholas.trikouros@nrc.gov Administrative Judge Office of the General Counsel Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Brian G. Harris E-mail: wek1@nrc.gov Megan Wright Emily L. Monteith Catherine E. Kanatas Office of the Secretary E-mail: Brian.Harris@nrc.gov; U.S. Nuclear Regulatory Commission Megan.Wright@nrc.gov; Rulemakings and Adjudications Staff Emily.Monteith@nrc.gov; Washington, DC 20555-0001 Catherine.Kanatas@nrc.gov E-mail: hearingdocket@nrc.gov

Office of Commission Appellate Adjudication Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Mail Stop: O-16C1 811 Harrison Street Washington, DC 20555-0001 Monroe, MI 48161 E-mail: ocaamail@nrc.gov E-mail: mkeeganj@comcast.net Kevin Kamps Terry J. Lodge Paul Gunter 316 N. Michigan St., Ste. 520 Beyond Nuclear Toledo, OH 43604 6930 Carroll Avenue, Suite 400 E-mail: tjlodge50@yahoo.com Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5059 E-mail: sburdick@morganlewis.com COUNSEL FOR FENOC DB1/ 69201911.3