ML12181A013

NRC Staff'S Answer to Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking)

ML12181A013
Person / Time
Site:	Davis Besse
Issue date:	06/29/2012
From:	Catherine Kanatas NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22856, ASLBP 11-907-01-LR-BD01, 50-346-LRA
Download: ML12181A013 (32)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

NRC STAFFS ANSWER TO MOTION TO AMEND AND SUPPLEMENT PROPOSED CONTENTION NO. 5 (SHIELD BUILDING CRACKING)

Brian G. Harris Catherine E. Kanatas Counsel for NRC Staff June 29, 2012

TABLE OF CONTENTS PAGE INTRODUCTION ........................................................................................................................1 BACKGROUND ..........................................................................................................................3 I. Legal Requirements for Amended Contentions ...............................................................7 II. Mootness Doctrine Regarding Contentions of Omission ................................................ 10 III. Admissibility of Intervenors Proposed Amendments or Supplements to Contention 5 ... 12 A. Intervenors Motion Does Not Include the Required Certification and Intervenors Did Not Consult Before Filing Their Motion ..................................... 12 B. Only the Shield Building Monitoring AMP is New and Material Information ........ 14 C. Other Documents Referred By Intervenors Do Not Contain New and Material Information ...........................................................................................15

1. 2011 RAIs Do Not Contain New and Material Information ...................... 16

2. The Root Cause Report Does Not Contain New and Material Information .............................................................................................17

3. The Revised Root Cause Report Does Not Contain Materially Different Information ...............................................................................19 D. The Shield Building Monitoring AMP Renders Proposed Contention 5 Moot ...... 21 E. Intervenors Do Not Challenge the Adequacy of the Shield Building Monitoring AMP .................................................................................................22 F. Intervenors Do Not Meet the Contention Admissibility Requirements ................. 23

1. Claims Related to Davis-Besses Current Operation are Outside the Scope of this Proceeding .....................................................24

2. Safety Culture Claims are Outside the Scope of this Proceeding ......... 25

3. Even If Intervenors Claims Regarding Current Operation Were Within the Scope of this Proceeding, They Lack an Adequate Basis and are Immaterial ........................................................................26 CONCLUSION ..........................................................................................................................28

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

NRC STAFFS ANSWER TO INTERVENORS MOTION TO AMEND AND SUPPLEMENT PROPOSED CONTENTION NO. 5 (SHIELD BUILDING CRACKING)

INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1) and the Atomic Safety and Licensing Boards (Board) Initial Scheduling Order (ISO), 1 the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer to the Intervenors Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking), (Intervenors Motion) jointly filed by Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio (collectively Intervenors) 2 regarding FirstEnergy Nuclear Operating Companys (FENOC) license renewal application for Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse). 3 1

Initial Scheduling Order at B.2.

2 See Intervenors Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking) (June 4, 2012) (Agencywide Documents Access and Management System (ADAMS)

Accession No. ML12156A411). Intervenors Motion included a May 25, 2012 letter from the Union of Concerned Scientists entitled FENOC Violating Federal Regulations (Again), (ADAMS Accession No. ML12156A410).

3 Letter from Barry S. Allen, Vice President, dated August 27, 2010, transmitting the license renewal application for Davis-Besse (ADAMS Accession No. ML102450565) (LRA).

As more fully set forth below, the Staff no longer supports admission of a limited portion of proposed Contention 5. 4 FENOCs submission of an aging management program (AMP) to address any possible aging effects of the shield building cracking 5 has mooted Contention 5 as proposed by Staff 6 and Intervenors Motion does not raise a challenge to the adequacy of any specific portion of the AMP. Further, Intervenors have not demonstrated that their proposed additional bases for Contention 5 meet the Commissions admissibility requirements. Yet again, Intervenors Motion fails to plead the non-timely filing requirements. Intervenors continue to raise issues that are simply outside the scope of this limited proceeding, including: (1) assertions that the recently discovered cracks in the shield building constitute a safety issue during the current operating period, and (2) arguments that there is a safety culture issue at Davis-Besse. These bases are also inadmissible because they are immaterial to the findings that the Staff must make and the contention lacks an adequate basis. Finally, Intervenors 4

Previously, the Staff recognized that a small portion of Contention 5 as proposed by Intervenors in their January 10, 2012 filing could be an admissible contention of omission. Specifically, [t]o the extent Contention 5 identifies FENOCs failure to describe how the Structures AMP will account for the shield building cracks during the period of extended operation, Contention 5 is an admissible contention of omission. See NRC Staffs Answer to Motion to Admit New Contention Regarding the Safety Implications of Newly Discovered Shield Building Cracking, (Feb. 6, 2012) (Staffs Answer to Contention

5) (ADAMS Accession No. ML12037A200) at 1-2; 16. The Staff proposed the following language for Contention 5:

Is the Structures AMP adequate to address any aging effects for the shield building that are related to the cracks identified by FENOC during the October 10, 2011 reactor head replacement and subject to a root cause evaluation to be provided by FENOC on February 28, 2012 such that the shield building would be unable to perform its intended functions of: 1) protecting the steel containment from environmental effects, including wind, tornado, and external missiles, 2) providing biological shielding, 3) providing controlled release to the annulus during an accident, and 4) providing a means for collection and filtration of fission product leakage from the Containment Vessel following a hypothetical accident?

5 See L-12-028, Reply to Request for Additional Information for the Review of the Davis-Besse Nuclear Power Station, Unit No. 1, License Renewal Application (TAC No. ME4640) and License Renewal Application Amendment No. 25 (Apr. 5, 2012) (ADAMS Accession No. ML12097A520)

(FENOCs April 5, 2012 Submittal).

6 Contention 5 as proposed by Intervenors is also moot since the remainder of their claims and bases, both as initially proposed and as amended in the instant motion, are inadmissible. See infra at 23-27 and Staffs Answer to Contention 5.

Motion should be denied because they continue to ignore this Boards clear instructions regarding consultation. 7 For all of these reasons, Intervenors Motion should be denied and Contention 5 should not be admitted.

BACKGROUND This proceeding concerns FENOCs August 27, 2010 application to renew its operating license for Davis-Besse for an additional twenty years from the current expiration date of April 22, 2017. 8 The NRC Staffs Answer to Motion to Admit New Contention [5] Regarding the Safety Implications of Newly Discovered Shield Building Cracking, (Staffs Answer to Contention 5) 9 discussed the procedural history for this proceeding through the filing of proposed new Contention 5, 10 so the Staff will not unduly repeat it here. 11 The Staffs Answer to Contention 5 opposed the admission of Contention 5 as submitted, 12 but recognized that a limited portion of Contention 5, as revised by the Staff, could be admitted by the Board as a 7

Boards ISO (motions will be summarily rejected if they do not include the certification specified in 10 C.F.R. § 2.323(b).). See also FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-34, 74 NRC __ (Nov. 23, 2011)(slip op. at 12) (noting that a motion must be rejected if it fails to meet 10 C.F.R. § 2.323).

8 LRA at 1.2-1. If the LRA is approved, Davis-Besses new license expiration date would be April 22, 2037.

9 See Staffs Answer to Contention 5.

10 See Motion for Admission of Contention No. 5 on Shield Building Cracking, (Intervenors Motion to Admit Contention 5) (ADAMS Accession No. ML12010A172).

11 Staffs Answer to Contention 5 at 2-3.

12 In their Motion to Admit Contention 5, Intervenors proposed Contention 5 stated:

Interveners contend that FirstEnergys recently-discovered, extensive cracking of unknown origin in the Davis-Besse shield building/secondary reactor radiological containment structure is an aging-related feature of the plant, the condition of which precludes safe operation of the atomic reactor beyond 2017 for any period of time, let alone the proposed 20-year license period.

Intervenors also argued that the shield building cracking must be discussed in the ER and the Staffs supplemental environmental impact statement. Id. at 3-4, 8-9. Intervenors also made several arguments about the current safety of Davis-Besse, and past and current management practices.

contention of omission. 13 On February 6, 2012, FENOC filed an answer opposing the admission of Contention 5. 14 On February 13, 2012, Intervenors filed a combined Reply to the Staffs and FENOCs Answers to Contention 5 (Intervenors Reply). 15 On February 9, 2012, FENOC filed a motion requesting leave from the Board to file a short response to the Staffs Answer to Contention 5. 16 On February 13, 2012, the Board issued an order denying FENOCs motion for leave to respond to the Staffs Answer to Contention 5, and setting this matter for oral argument on the admissibility of Contention 5 at a time and place to be announced. 17 On February 27, 2012, Intervenors filed a motion to amend their motion for admission of Contention 5 based on a claim of new information (Intervenors Initial Motion to Amend Contention 5). 18 On February 27, 2012, FENOC submitted a Shield Building Root Cause Report (Root Cause Report) to the NRC, which included the results of the root cause 13 See, e.g., Staffs Answer to Contention 5 at 1-2;16 (To the extent Contention 5 identifies FENOCs failure to describe how the Structures AMP will account for the shield building cracks during the period of extended operation, Contention 5 is an admissible contention of omission.).

14 FENOCs Answer Opposing Intervenors Motion for Admission of Contention No. 5 on Shield Building Cracking (Feb. 6, 2012) (ADAMS Accession No. ML12037A245).

15 See Intervenors Combined Reply in Support of Motion for Admission of Contention No. 5, (Feb. 13, 2012) (Intervenors Reply) (ADAMS Accession No. ML12044A361). FENOC filed a motion to strike portions of Intervenors Reply. See FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking, (Feb. 23, 2012) (ADAMS Accession No. ML12054A755). Intervenors and Staff timely filed answers to FENOCs motion to strike. See Intervenors Answer to FENOCs Motion to Strike, (Feb. 27, 2012) (ADAMS Accession No. ML12058A260); NRC Staffs Answer to FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking, (Mar. 5, 2012) (ADAMS Accession No. ML12065A341).

16 FENOCs Unopposed Motion for Leave to Respond to the NRC Staffs Answer to Proposed Contention 5 on Shield Building Cracking (Feb. 9, 2012) (ADAMS Accession No. ML12040A170).

17 Order Denying Unopposed Motion for Leave to Respond to NRC Staffs Answer to Proposed Contention 5 and Setting Proposed Contention 5s Admissibility for Oral Argument (Feb. 13, 2012)

(ADAMS Accession No.ML12044A306).

18 See Intervenors Initial Motion to Amend Contention 5.

evaluation and corrective actions, including long-term monitoring requirements. 19 The Root Cause Report concluded that the direct cause of the shield building cracking was the integrated affect of moisture content, wind speed, temperature, and duration from the blizzard of 1978, and the root cause was due to the design specification for construction of the shield buildingthat did not specify application of an exterior sealant from moisture. 20 On March 8, 2012, both FENOC and Staff filed answers opposing Intervenors motion to amend their motion for admission of contention 5. 21 On March 28, 2012, the Board issued an order scheduling oral argument on the admission of Contention 5 for May 18, 2012. 22 On April 5, 2012, FENOC submitted revisions to the LRA 23 which included an AMP related to the recently identified shield building cracking in response to an NRC request for additional information (Shield Building Monitoring AMP). 24 FENOCs submission explained that while the Root Cause Report did not identify any new aging effects associated with the shield building cracking, a new plant-specific aging management program titled Shield Building Monitoring Program is provided to periodically inspect the [shield building] to confirm that there 19 See Letter L-12-065 from Barry S. Allen to Cynthia D. Pederson, Davis-Besse Nuclear Power Station, Unit 1 Docket Number NPF-3 Submittal of Shield Building Root Cause Evaluation, (Feb. 27, 2012) (ADAMS Accession No. ML120600056). See also CAL No. 3-11-001 (Dec. 2, 2011) (ADAMS Accession No. ML11336A355) (noting that FENOC will provide the results of the root cause evaluation and corrective actions to the NRC, including any long-term monitoring requirements, by February 28, 2012.).

20 Root Cause Report at 59. Notably, the Root Cause Report concluded that [t]here was no evidence of typical concrete time-dependent aging failure modes. Id. at 6.

21 See NRC Staffs Answer to Intervenors Motion to Amend Motion for Admission of Contention No. 5 (Mar. 8, 2012) (ADAMS Accession No. ML12068A095); FENOCs Answer Opposing Intervenors Motion to Amend Proposed Contention 5 on Shield Building Cracking (Mar. 8, 2012) (ADAMS Accession No. ML12068A429).

22 Notice and Order (Scheduling Oral Argument) (Mar. 28, 2012) (ADAMS Accession No. ML12088A340).

23 FENOCs April 5, 2012 Submittal.

24 See id. The new AMP is in Section B.2.43 and is entitled Shield Building Monitoring Program.

are no changes in the nature of the identified laminar cracks. 25 The Shield Building Monitoring AMPs stated purpose is to provide reasonable assurance that the existing environmental conditions will not cause aging effects that could result in a loss of component intended function. 26 On April 16, 2012, FENOC filed an unopposed motion for leave to supplement its answer to proposed Contention 5 regarding shield building cracking (FENOCs Motion to Supplement). 27 In its Motion to Supplement, FENOC argued that the Shield Building Monitoring AMP moots both (1) the proposed Contention [5]s challenges to whether FENOC addressed aging management of shield Building cracking, and (2) the revised contention of omission set forth by the NRC Staff in its Answer. 28 On April 17, 2012, the Board granted FENOCs Motion to Supplement. 29 On May 14, 2012, Intervenors filed an unopposed motion to vacate and reschedule oral argument on Contention No. 5 (Intervenors Motion to Vacate Oral Argument). 30 In that motion, Intervenors requested that the Board vacate the May 18, 2012 25 FENOCs April 5, 2012 Submittal at 5. The Shield Building Monitoring AMP is described in Section B.2.43 of the LRA.

26 FENOCs April 5, 2012 Submittal, Enclosure at 15. FENOC indicated that the requirements of the plant-specific Shield Building Monitoring [AMP] are to be administered in conjunction with the existing Structures Monitoring Program. FENOCs April 5, 2012 Submittal, at 6.

27 See FENOCs Unopposed Motion for Leave to Supplement Its Answer to the Proposed Shield Building Cracking Contention (Apr. 16, 2012) (ADAMS Accession No. Ml12107A485) (FENOCs Motion to Supplement).

28 Id. at 2. See also id. (stating that supplement is necessary to ensure that all material relevant information and arguments relative to admission of the proposed Contention are properly before the Board, and to prevent unnecessary litigation of the now-mooted issues).

29 Board Order (Granting FENOCs Unopposed Motion for Leave to Supplement Its Answer)

(Apr. 17, 2012) (ADAMS Accession No. ML12108A213).

30 See Intervenors Unopposed Motion to Vacate and Reschedule Oral Argument on Proposed Contention No. 5 (May 14, 2012) (ADAMS Accession No. ML12135A405).

oral argument so that they could move to amend or supplement their proposed Contention 5 based upon the [Shield Building Monitoring AMP]. 31 On May 15, 2012, the Board issued an order granting Intervenors Motion to Vacate Oral Argument. 32 On May 16, 2012, FENOC submitted a Revised Root Cause Analysis, which incorporated observations made by NRC during an on-site inspection. (Revised Root Cause Report). FENOC noted that [t]hese observations did not affect the overall conclusions [of the Root Cause Report] or the corrective actions being taken. 33 On June 4, 2012, Intervenors filed the instant motion to amend/supplement proposed Contention 5. On June 21, 2012, Staff issued an inspection report regarding the evaluation of FENOCs root cause analysis and corrective actions related to the cracking in the shield building. 34 I. Legal Requirements for Amended Contentions Intervenors Motion move[s] the Board to allow them to supplement and amend their proposed Contention 5, 35 which was submitted on January 10, 2012. 36 As discussed in the Staffs Answer to Intervenors Initial Motion to Amend Contention 5, the Commission does not 31 Id. at 2.

32 See Order (Granting Unopposed Motion to Vacate Oral Argument) (May 15, 2012) (ADAMS Accession No. ML12136A456).

33 L-12-205, Submittal of Revision 1 of Shield Building Root Cause Evaluation (May 16, 2012)

(ADAMS Accession No. ML12142A053). See also id. at 5-7 (summarizing revisions and noting that the NRCs inspection observations do not invalidate the methodology, assessment and analysis, or conclusions of the root cause analysis report, but do identify areas for improvement).

34 Davis-Besse Nuclear Power Station - Inspection to Evaluate the Root Cause Evaluation and Corrective Actions for Cracking in the Reinforced Concrete Shield Building of the Containment System 05000346/2012 009 (DRS) (June 21, 2012) (ADAMS Accession No. ML12173A023).

35 Intervenors Motion at 1. See generally Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 & n.103 (2010) (The reach of a contention necessarily hinges upon its terms coupled with its stated bases.) (emphasis in original; footnote and internal quotation marks omitted).

36 Intervenors Motion to Admit Contention 5.

look with favor on new or amended contentions filed after the initial filing, 37 and does not allow new bases for a contention to be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2). 38 This Board has likewise held that Intervenors must address the required criteria for late-filed or amended contentions in 10 C.F.R. § 2.309(c) and (f)(2) when attempting to add new bases and supporting material for a contention. 39 Additionally, late-filed contentions must meet the threshold admissibility standards contained in 10 C.F.R. § 2.309(f)(1). 40 Under 10 C.F.R. § 2.309(f)(2), an amended contention filed after the initial filing period may be admitted as a timely new contention only with leave of the Board 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. 41 Pursuant to the Boards ISO, a motion and proposed new contention shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within sixty (60) days of the date when the material information on which it is based first becomes available to the moving party through 37 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004)(noting that the Commission does not look with favor on amended or new contentions filed after the initial filing.).

38 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 261 (2009) (internal citations omitted).

39 See Memorandum and Order (Granting Motion To Strike and Requiring Re-filing of Reply) at 3 (Feb. 18, 2011) (ADAMS Accession No. ML110490269).

40 Oyster Creek, CLI-09-7, 69 NRC 235, 261 (2009).

41 10 C.F.R. § 2.309(f)(2).

service, publication, or any other means. If filed thereafter, the motion and proposed contention shall be deemed nontimely under 10 C.F.R. § 2.309(c). 42 As discussed in the Staffs Answer to Intervenors Initial Motion to Amend Contention 5, the Commission has made several points clear when discussing what constitutes new and materially different information for purposes of 10 C.F.R. § 2.309(f)(2). First, when a petitioners motion makes little effort to meet the pleading requirements governing late-filed contentions, that in and of itself constitutes sufficient grounds for rejecting the petitioners motion. 43 For example, the Commission has stated that a petitioners failure to address the factors in 10 C.F.R. § 2.309(f)(2) or 10 C.F.R. § 2.309(c) is reason enough to reject the motion. 44 Second, petitioners cannot just point to documents merely summarizing earlier documents or compiling pre-existing, publicly available information into a single source[as doing so] do[es] not render new the summarized or compiled information. 45 As the Commission noted in Prairie Island 46, a petitioner or intervenor [cannot] delay filing a contention until a document becomes available that collects, summarizes and places into context the facts supporting that contention.

42 Boards ISO at B.1. Nontimely filings may only be entertained following a determination by the Board that a balancing of the eight factors in 10 C.F.R. § 2.309(c) weigh in favor of admission. Of all the eight factors, the first, good cause for failure to file on time, is given the most weight. This Board emphasized that if there was uncertainty in whether a new or amended contention was timely filed, the movant could file under both § 2.309(f)(2) and § 2.309(c). ISO at B.1. Intervenors Motion does not address the § 2.309(c) factors, and does not demonstrate good cause despite a failure to plead it.

43 Florida Power & Light Co., FPL Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2; Calvert Cliffs Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, Units 1 and 2; R.E. Ginna Nuclear Power Plant; Turkey Point Nuclear Generating Plant, Units 3 and 4; St. Lucie Nuclear Power Plant, Units 1 and 2; Seabrook Station; Duane Arnold Energy Center), CLI-06-21, 64 NRC 30, 33 (2006).

44 Id. (noting that petitioner did not address any of the factors in 10 C.F.R. § 2.309(f)(2) and did not address two of the factors in 10 C.F.R. § 2.309(c)).

45 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 NRC __ (Mar. 10, 2011) (slip op. at 13).

46 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010).

To conclude otherwise would turn on its head the regulatory requirement that new contentions be based on information not previously available (internal citations omitted).

Third, the Commission has made clear that alleged new and materially different information must support the proposed contention. 47 Thus, the Commission has noted that alleged new and materially different information must articulate a reasonably apparent foundation for the contention. 48 Fourth, simply rehashing old arguments is not enough to meet the materially different standard in 10 C.F.R. § 2.309(f)(2)(ii). 49 Instead, the Commission has stated that petitioners filing amended contentions must show how their arguments supporting the contention differ from their previous arguments. 50 Finally, the Commission considers information new and materially different when the Staff is considering the information for the first time in responding to issues relevant to the contention. 51 II. Mootness Doctrine Regarding Contentions of Omission Intervenors and FENOC recognize that Contention 5, as proposed by the Staff, is a contention of omission. 52 As the Commission has repeatedly stated, there is a difference between contentions that merely allege an omission of information and those that challenge substantively and specifically how particular information has been discussed in a license 47 See Prairie Island, CLI-10-27, 72 NRC at 493-94 (noting that the SER petitioners cited to as having new and materially different information did not provide support for the contention and so did not contain new or materially different information).

48 Id. at 495.

49 See Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 53 (2010).

50 Id.

51 See Paina Hawaii, LLC, (Materials License Application), CLI-10-18, 72 NRC 56, 79 (2010).

52 Intervenors Motion at 2 (The NRC Staff has proposed alternative wording [for Contention 5]

which would transform the contention into a contention of omission.); FENOCs Motion to Supplement at 2 (noting that Staffs revised contention was one of omission that was mooted by Shield Building Monitoring AMP).

application. 53 A classic contention of omission [is] an argument that an application omits one or more necessary safety-related steps or analyses. 54 The Commission has explained:

Where a contention challenges the omission of particular information or an issue from an application, and the information is later supplied by the applicant or considered by the Staff in a draft EIS, the contention is moot. Without requiring submission of a new or amended contention, the original omission contention could be transformed into a broad series of disparate claims. This approach would, in turn, circumvent NRC contention pleading standards and defeat the contention rules purposes: (1) providing notice to the opposing party of the issues that will be litigated; (2) ensuring that at least a minimal factual or legal foundation exists for the different claims that have been alleged; and (3) ensuring there exists an actual genuine dispute with the applicant on a material issue of law or fact.

Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &

2), CLI-02-28, 56 NRC 373, 383 (2002), clarifying CLI-02-17, 56 NRC 1 (2002). See also Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), LBP-04-7, 59 NRC 259, 263 (2004).

Therefore, when a contention claims that an application fails to include a particular analysis, the subsequent inclusion of the analysis in the application moots the contention. See Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), CLI-10-2, 71 NRC 27, 36 n. 44 (2010). The contention must then be modified as a contention attacking the adequacy of the now-included analysis, or dismissed as moot. Id. A contention can be found moot by the presiding officer as part of the contention admission phase of the proceeding. 55 Importantly, the Commission has made clear that when challenging the adequacy of an analysis included in an application, it is not enough for an intervenor to merely state it is deficient. Instead, an intervenor must indicate what is wrong with [the analysis or 53 Progress Energy Carolinas, Inc., (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI 9, 71 NRC 245, 270 (2010); See also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-83 (2002)).

54 South Carolina Electric & Gas Co. & South Carolina Public Service Authority (Also Referred to as Santee Cooper) (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1,9 (2010).

55 USEC (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444-45 (2006). See also South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 & 4), LBP-09-21, 70 NRC 581, 596 (2009) (holding that proposed contention was moot given submission of additional information by applicant).

discussion.] 56 Here, despite FENOCs submission of a specific AMP for the shield building, Intervenors remain silent as to any issue they take with any specific portion of the AMP.

III. Admissibility of Intervenors Proposed Amendments or Supplements to Contention 5 As discussed in detail below, Intervenors Motion should be denied because (1)

Intervenors did not include a certification in their Motion or consult with the parties, (2)

Intervenors did not indicate how any information was new and material, (3) the Shield Building Monitoring AMP renders proposed Contention 5 moot, (4) Intervenors do not challenge the adequacy of any specific portion of the Shield Building Monitoring AMP, and (5) Intervenors Motion does not meet the contention admissibility requirements.

A. Intervenors Motion Does Not Include the Required Certification and Intervenors Did Not Consult Before Filing Their Motion Once again, Intervenors Motion contains no certification that Intervenors made a sincere attempt to resolve the issues raised by their Motion. 57 Therefore, pursuant to the Commissions regulations and the Boards ISO, the Intervenors Motion must be denied. Specifically, 10 C.F.R. § 2.323(b) provides that [a] motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been unsuccessful. Likewise, the Boards ISO 56 Progress Energy Carolinas, Inc., (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI 9, 71 NRC 245, 270 (2010). See also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-83 (2002)).

57 Intervenors also failed to include a certification in their initial Motion to Amend Contention 5.

See NRC Staffs Answer to Intervenors Motion to Amend Motion for Admission of Contention No. 5.

This Board has held that motions that do not meet § 2.323 can be dismissed on that ground alone. See Davis-Besse, LBP-11-34, 74 NRC at __ (slip op. at 12) (noting that Intervenors made no attempt to contact FirstEnergy or its counsel and resolve the issues raised in the Motion and New Contention and that Intervenors motion to admit a new contention does not contain the certification required by Section 2.323(b). The motion can therefore be rejected on this ground.). Additionally, the Boards ISO states that motions will be summarily rejected if they do not include the certification specified in 10 C.F.R. § 2.323(b). Boards ISO at 18. Therefore, Intervenors should know that these procedural deficiencies are grounds for dismissal of their motion.

clearly states that motions will be summarily rejected if they do not include the certification specified in 10 C.F.R. 2.323(b) that a sincere attempt to resolve the issues has been made. 58 Additionally, the Intervenors did not consult with the parties before filing their motion.

Instead, Intervenors only indicated an intent to file a motion to amend or supplement Contention 5 in their Motion to Vacate Oral Argument. 59 But Intervenors did not consult with the parties before filing the instant motion. Therefore, the parties did not have notice about the Intervenors concerns. 60 Moreover, in their Motion to Vacate Oral Argument, Intervenors only indicated that any motion to amend or supplement would be based on the Shield Building Monitoring AMP. 61 But Intervenors Motion discusses several other documents as allegedly having troubling new information regarding the shield building cracking which allegedly render the Shield Building Monitoring AMP suspect. 62 Given these procedural deficiencies, the Intervenors Motion should be denied.

58 Boards ISO at G.1.

59 See Intervenors Motion to Vacate Oral Argument at 2 (noting that Intervenors wish to avail themselves of the option to move to amend or supplement their proposed Contention 5 based upon FENOCs Shield Building Monitoring AMP).

60 See Davis-Besse, LBP-11-34, 74 NRC at __ (slip op. at 12) (noting that one purpose of consultation is for parties to resolve the issues raised in a motion).

61 See Intervenors Motion to Vacate Oral Argument at 2 (noting that Intervenors wish to avail themselves of the option to move to amend or supplement their proposed Contention 5 based upon FENOCs Shield Building Monitoring AMP).

62 Intervenors Motion at 3 (citing to Revised Root Cause Report and Performance Improvement Internationals Root Cause Assessment, Davis-Besse Shield Building Laminar Cracking Report).

Notably, Intervenors Motion states that they reserve their right to later supplement Contention 5 based on the Revised Root Cause Report. Intervenors Motion at 2 (emphasis added). This suggests that the instant motion is not alleging new and material information related to that document. But then the motion goes on to assert that the Revised Root Cause Report contains troubling new information. Id. at 3.

B. Only the Shield Building Monitoring AMP is New and Material Information Intervenors Motion purports to amend or supplement the bases for proposed Contention 5, which was filed on January 10, 2012. 63 In order to admit their new contention under 10 C.F.R. § 2.309(f)(2), Intervenors must show that the information upon which Contention 5 is based was not previously available, that such information is materially different from the information previously available, and that they submitted the contention in a timely fashion based on the availability of this information. Pursuant to the Boards initial scheduling order, a new contention is deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within sixty days of the date when the information on which it is based first becomes available to the moving party through service, publication, or any other means. 64 Here, Intervenors only assert that their supplemental facts are timely submitted under the Commissions standard in 10 C.F.R. § 2.309(f)(2)(i)-(iii), 65 and do not address the non-timely filing standards in 10 C.F.R. § 2.309(c). 66 Intervenors argue that the purpose of their motion is to expos[e] discrepancies between FENOCs February 27, 2012 [Root Cause Report]

and the [Shield Building Monitoring] AMP. 67 Intervenors assert that the information on which the [proposed amended and/or supplemented Contention 5] is based is materially different than information previously available because it relates to findings and commitments that did not 63 Intervenors Proposed Contention 5, submitted on January 10, 2012, stated: Interveners contend that FirstEnergys recently-discovered, extensive cracking of unknown origin in the Davis-Besse shield building/secondary reactor radiological containment structure is an aging-related feature of the plant, the condition of which precludes safe operation of the atomic reactor beyond 2017 for any period of time, let alone the proposed 20-year license period. Id.

64 Boards ISO at B.1. If filed thereafter, the motion and proposed contention shall be deemed nontimely under 10 C.F.R. § 2.309(c). Id.

65 Intervenors Motion at 13.

66 Id. at 8. See discussion of § 2.309 infra. The Staff notes that Commission precedent provides that a failure to plead the non-timely factors is reason enough for dismissal. Calvert Cliffs, CLI-06-21, 64 NRC at 33. Intervenors also did not plead the non-timely factors in their Initial Motion to Amend Contention 5.

67 Intervenors Motion at 2.

exist when Intervenors moved for admission of Contention 5 in January 2012. 68 Specifically, Intervenors note that their Motion is timely because it is filed within sixty (60) days of the [Shield Building Monitoring AMP] release on April 5, 2012, and 60 days is the period ordered by the

[Board] in which Intervenors must act. 69 The Staff recognizes that the Shield Building Monitoring AMP is new information that is relevant to proposed Contention 5. Specifically, the Shield Building Monitoring AMP was submitted less than 60 days prior to Intervenors Motion, and directly addresses the recently identified shield building cracking and FENOCs plans to manage any possible aging effects associated with the cracking. The Staff is currently reviewing FENOCs Shield Building Monitoring AMP. As discussed above, the Commission considers information new and materially different when the Staff is considering the information for the first time in responding to issues relevant to the contention. 70 Therefore, Intervenors Motion properly describes the Shield Building Monitoring AMP as new and materially different information related to proposed Contention 5. 71 C. Other Documents Referenced By Intervenors Do Not Contain New and Material Information However, Intervenors Motion also attempts to use the Shield Building Monitoring AMP to justify supplementing the bases of their proposed Contention 5 with information that cannot satisfy the timeliness standards. For example, Intervenors seek to supplement proposed Contention 5 with references to RAIs from 2011, the Root Cause Report, the Revised Root Cause Report, and Performance Improvement Internationals Root Cause Assessment, Davis-68 Intervenors Motion at 13-14.

69 Id. at 14.

70 See Paina, CLI-10-18, 72 NRC at 79 (2010).

71 As discussed below, the Shield Building Monitoring AMP moots proposed Contention 5.

Besse Shield Building Laminar Cracking report, 72 which all preceded their motion by more than 60 days, including some that preceded the initial proposed Contention 5. Intervenors Motion should be denied because these documents are either not new and/or Intervenors have not demonstrated that information in these documents is materially different from information previously available.

1. 2011 RAIs Do Not Contain New and Material Information Intervenors argue that the 2011 RAIs contain information indicating other water problems inside the shield building. 73 First, the 2011 RAIs have been publicly available for more than a year. 74 Therefore, under the Boards ISO, they are not timely raised and Intervenors did not plead the non-timely factors in § 2.309(c). Second, Intervenors do not indicate how information in the 2011 RAIs is materially different than information previously available. Intervenors do not indicate how this alleged water problem relates to the cracking in the shield building, the subject of their proposed Contention 5. As discussed above, alleged new and materially different information must (1) support the proposed contention, 75 and (2) articulate a reasonably apparent foundation for the contention. 76 Thus, even if these documents were newly available, Intervenors have not shown they contain materially different 72 Intervenors Motion at 2-3. As discussed, Intervenors failed to consult with the other parties regarding these documents before filing their motion on June 4, 2012. Therefore, Intervenors Motion should be denied.

73 Intervenors Motion at 12 (citing to a May 24, 2011 RAI response).

74 See L-11-153, Davis-Besse Nuclear Power Station, Unit No. 1, Docket No. 50-346, License Number NPF-3, Reply to Requests for Additional Information for the Review of the Davis-Besse Nuclear Power Station, Unit No. 1. License Renewal Application, Batch 2 and Batch 1 (TAC No. ME4640), and License Renewal Application Amendment No. 7 (May 24, 2011) (ADAMS Accession No. ML11151A090).

This RAI response was made available in ADAMS on May 31, 2011, more than seven months before Intervenors filed their initial motion on Contention 5.

75 See Prairie Island, CLI-10-27, 72 NRC at 493-94 (noting that the SER petitioners cited to as having new and materially different information did not provide support for the contention and so did not contain new or materially different information).

76 Id. at 495.

information. Third, Intervenors did not plead the late-filed factors, and do not meet them despite a failure to plead them, particularly since the 2011 RAIs were available months before their initial proposed Contention 5 was filed. For all these reasons, the Board should not allow Intervenors to amend or supplement proposed Contention 5 with any bases related to the 2011 RAIs.

2. The Root Cause Report Does Not Contain New and Material Information Regarding the Root Cause Report, Intervenors assert that there are discrepancies between FENOCs [Root Cause Report] and the [Shield Building Monitoring AMP], 77 and that these discrepancies constitute new and materially different information. Intervenors argue that because FENOC submitted revisions to the Root Cause Report to the NRC (i.e., the Revised Root Cause Report), (1) FENOC has violated 10 C.F.R. § 50.9 and (2) the Shield Building Monitoring AMP should be held suspect. 78 Specifically, Intervenors assert that the NRC forced FENOC to revise its [Root Cause Report] to explain why it had not weather-sealed its shield building [and that] FENOC still has not explained why. 79 As an initial matter, the NRC did not force FENOC to revise its Root Cause Report and submittal of the Revised Root Cause Report did not constitute a violation of 10 C.F.R. § 50.9.

The Staff identified minor weaknesses associated with the level of detail in the documentation provided, and reviewed FENOCs corrective actions to address the causes of the shield building 77 Intervenors Motion at 2. While Intervenors Motion only mentions the Root Cause Report, later in their Motion, they discuss the Revised Root Cause Report and how it allegedly renders the Shield Building Monitoring AMP suspect, so the Staff addresses both the Root Cause Report and the Revised Root Cause Report as sources of new and material information.

78 Intervenors Motion at 3.

79 Id.

laminar cracking. 80 FENOC voluntarily entered these observations into its corrective action system, and submitted a Revised Root Cause Report to incorporate the NRCs observations. 81 In any event, the root cause of the shield building cracking is not at issue in Intervenors proposed Contention 5. Intervenors proposed Contention 5 asserts that regardless of the cause, 82 the shield building cracking is an aging-related feature of the plant, the condition of which precludes safe operation of the atomic reactor beyond 2017 for any period of time, let alone the proposed 20-year license period. Therefore, the root cause of the cracking is irrelevant for purposes of proposed Contention 5. Intervenors have not indicated how information related to the root cause of the cracking is new and material within the meaning of the Boards ISO, the regulations, and Commission caselaw. 83 This is especially important in light of Intervenors admission that the cause of the cracking is not material. 84 Therefore, the Board should not admit these proposed amended/supplemental bases.

80 Davis-Besse Nuclear Power Station - Inspection to evaluate the Root Cause Evaluation and Corrective Actions for Cracking in the Reinforced Concrete Shield Building of the Containment System 05000346/2012 009 (DRS) (June 21, 2012) (ADAMS Accession No. ML12173A023). The Staff noted that the NRC has ongoing reviews as part of your Davis-Besse License Renewal Application that will evaluate your proposed program for monitoring of the shield building cracking. Overall, the team concluded that your corrective and preventative actions for the causes of the shield building laminar cracking, if adequately implemented, would prevent recurrence, and provide reasonable assurance for maintaining the shield building safety functions. Id. at coverpage.

81 See Revised Root Cause Report.

82 The proposed contention stated that at the time filed, the cracking was of unknown origin.

Intervenors Motion at 2.

83 Additionally, while Intervenors claim that FENOC did not explain why the shield building was not weather sealed, Intervenors Motion quotes the exact portion of the Revised Root Cause Report that explains why an exterior protective sealant on the shield building was not applied. See Intervenors Motion at 4 (citing page 33 of Revised Root Cause). See also Intervenors Motion at 4 (citing Revised Root Cause Report p. 5 Information regarding why the shield building design did not include a requirement for an exterior protective sealant was added in section 3.3.5 - Design [page 33], and - Shield Building Milestones [pages 86 & 88].

84 As discussed, the proposed contention stated that at the time filed, the cracking was of unknown origin. Intervenors Motion at 2. Thus, the cause of the cracking was not a concern described in the proposed contention.

3. The Revised Root Cause Report Does Not Contain Materially Different Information The Revised Root Cause Report is new information, in that it contains revisions from the Root Cause Report that were made available within 60 days of the filing of Intervenors Motion.

However, Intervenors have not indicated how any of the revisions are materially different from information previously available about the shield building cracking. 85 Notably, the Revised Root Cause Report repeatedly states that the revisions to the Root Cause Report do not invalidate the methodology, assessment and analysis, or conclusions of the root cause analysis report 86 Despite these statements, Intervenors allege that the Revised Root Cause Report was extensively revised, 87 and that the Revised Root Cause Report renders the Shield Building Monitoring AMP suspect. 88 Even assuming the revisions were extensive, Intervenors do not indicate how any of these revisions to the Root Cause Report are materially different from information previously available. 89 For example, Intervenors appear to assert that the Revised Root Cause Report contains new and material information regarding the coating on the shield building dome parapet area. 90 Intervenors state that to their knowledge, FENOC has never acknowledged that the shield 85 Intervenors Motion states that it is based on differences in the Feb. 27 version of the Root Cause and the Shield Building Monitoring AMP, but that they reserve their right to supplement based on a closer reading of the Revised Root Cause Report. But then Intervenors discuss troubling new information in the Revised Root Cause that undermines the Shield Building Monitoring AMP.

86 Revised Root Cause Report at 5. Id. at coverpage (noting that revisions based on NRC observations did not affect the overall conclusions or corrective actions being taken).

87 Intervenors Motion at 13.

88 Id. at 3.

89 The Revised Root Cause Report contains a summary of changes made to the Root Cause Report (see pages 5-7 of Revised Root Cause Report). Additionally, FENOC italicized all changes in the Revised Root Cause Report. See coverpage to Revised Root Cause Report (information added or clarified in the report is identified by italics text.). See, e.g., pgs. 22, 25, 27, 29, 33, and 46.

90 See Intervenors Motion at 4 (noting that on page 29 of the Revised Root Cause Report, FENOC reported that the dome parapet coating was laid on 1/4 inch thick). See also id. at 4-5 (discussing how the Revised Root Cause Report discussed how a thinner replacement coat was applied).

building dome parapet had been weather sealed until the May 16 Revised [Root Cause Report.] 91 While this may be true, Intervenors do not show how information in the Revised Root Cause Report regarding the dome parapet is materially different from information previously available in terms of proposed Contention 5. 92 It appears that Intervenors are arguing that had the shield building been sealed like the dome parapet, then the shield building cracking would not have occurred. 93 But as discussed above, the cause of the shield building cracking is not at issue in Intervenors proposed Contention 5, and Intervenors seem to be fully aware of this issue and thus the information is clearly not new.

Instead, Intervenors apparent concern was that FENOC did not discuss the cracking in the LRA or propose a plan to adequately manage any aging effects associated with the cracking. 94 FENOCs LRA has been amended to include (1) a discussion of the shield building cracking and (2) a new AMP specific to monitoring the shield building cracking. Intervenors do not indicate how the dome parapet information relates to the Shield Building Monitoring AMP or how the dome parapet information constitutes new and material information related to Intervenors proposed Contention 5. Therefore, the Board should not allow Intervenors to supplement or amend proposed Contention 5 based on this information.

Moreover, the Intervenors Motion does not address the factors in 10 C.F.R. § 2.309(c).

Both the Commission and this Board have clearly stated that intervenors must address the 91 Id. at 5.

92 Intervenors also do not indicate how the dome parapet coating relates to the shield building cracking. Likewise, Intervenors state that there are construction defects related to the rebar installation.

See Intervenors Motion at 8. However, Intervenors do not indicate what these claimed defects have to do with the Shield Building Monitoring AMPs adequacy.

93 See Intervenors Motion at 5.

94 The remaining assertions and bases did not meet the admissibility requirements, as outlined in Staffs Answer to Contention 5 and below.

required criteria in 10 C.F.R. § 2.309(c) when attempting to add new bases and supporting material for a contention. 95 Thus, Intervenors Motion should be denied because they do not meet the timely filing requirements, did not plead the non-timely filing requirements, and did not adequately consult as to this information.

D. The Shield Building Monitoring AMP Renders Proposed Contention 5 Moot Intervenors Motion should also be denied because the Shield Building Monitoring AMP renders proposed contention 5 moot, even as supplemented. Specifically, Intervenors argued that the LRA was deficient because it did not discuss the recently identified cracking in the shield building, a safety significant issue for license renewal. 96 Intervenors further argued that the cracking should be considered as an aging feature at Davis-Besse, which requires explicit plans for remediation and management. 97 The Staff agreed with this proposition, assuming the cracking was found to be aging-related, and argued that proposed Contention 5 could be an admissible contention of omission to the extent it claimed the LRA did not discuss how an AMP would manage any aging effects associated with the recently identified shield building cracking. 98 FENOC responded by submitting the Shield Building Monitoring AMP, which revised its LRA. Therefore, the LRA now includes a discussion of the recently identified shield building 95 See Florida Power & Light Co., CLI-06-21, 64 NRC at 33; Memorandum and Order (Granting Motion To Strike and Requiring Re-filing of Reply) at 3 (Feb. 18, 2011)(ADAMS Accession No. ML110490269).

96 Specifically, Intervenors asserted that [t]he shield structure is a feature requiring aging-management review [and] the cracking problem must be addressed as part of the license extension determination. Intervenors Motion to Admit Contention 5 at 2. See also id. (asserting that cracking should be considered as an aging feature at Davis-Besse, which requires explicit plans for remediation and management).

97 Intervenors Motion to Admit Contention 5 at 2. Intervenors also asserted that the cracking should be analyzed in the Staffs SEIS. However, this claim is inadmissible, as detailed in Staffs Answer to Contention 5.

98 Staffs Answer to Contention 5 at 1-2, 16.

cracks and FENOCs plans to address these cracks during the period of extended operation.

FENOC created a site-specific AMP to prevent and manage any possible aging effects associated with the recently identified shield building cracking, even though the Root Cause Report concluded that the cracking was not aging-related. 99 FENOC submitted this AMP on the docket on April 5, 2012, to amend its LRA, and has supplemented its Answer to Contention 5 with this information. Therefore, the LRA now includes a discussion of the recently identified shield building cracking and an AMP to address any possible aging effects associated with the cracking. The Staff continues to review the Shield Building Monitoring AMP. While the Staffs review is still ongoing, Commission caselaw states that [w]here a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant the contention is moot, and the contention must be disposed of or modified. 100 Therefore, Contention 5, as proposed by Staff, is moot. 101 E. Intervenors Do Not Challenge the Adequacy of the Shield Building Monitoring AMP Because the Shield Building Monitoring AMP moots Contention 5, the Intervenors Motion must challenge the adequacy of the Shield Building Monitoring AMP. Levy County, CLI-10-2, 71 NRC at 36 n. 44. As discussed above, this challenge must be more than merely alleging that the analysis is deficient. Progress Energy Carolinas, Inc., (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245, 270 (2010). Intervenors must point to the specific ways in which the Shield Building Monitoring AMP is wrong or inadequate. Id.

However, the Intervenors Motion does not do this. Instead, Intervenors Motion generally 99 FENOCs April 5, 2012 Submittal.

100 McGuire, CLI-02-28, 56 NRC at 382-83.

101 And Contention 5 as initially proposed by Intervenors is also moot to the extent that the remainder of the claims and bases underlying the proposed contention are inadmissible.

attacks the Shield Building Monitoring AMP, calling it a plan to have a plan. 102 However, the Shield Building Monitoring AMP provides specific details on the inspections, tests, and monitoring that will be performed.

For example, FENOC notes that the Shield Building Monitoring AMP will periodically inspect the structure to confirm that there are no changes in the nature of the identified laminar cracks. 103 In terms of testing, FENOC notes that the Shield Building Monitoring AMP includes inspections or testing to monitor the condition of the sealant or coating that is planned to be applied to the Shield Building and that the current Davis-Besse procedures for the evaluation of structures is being revised to incorporate a section specifically for the long term monitoring of the Shield Building laminar cracks. 104 Intervenors do not indicate why these planned activities, or any others associated with the Shield Building Monitoring AMP, would be inadequate, even assuming that the blizzard of 1978 was not the cause of the cracking. 105 As discussed, intervenors must do more to claim that a discussion of an issue is deficient; they must identify what is wrong. Shearon Harris, CLI-10-9, 71 NRC at 270. Therefore, Intervenors Motion should be denied.

F. Intervenors Do Not Meet the Contention Admissibility Requirements Instead of attacking the adequacy of the Shield Building Monitoring AMP, Intervenors Motion attacks the (1) investigation done on the shield building cracking, (2) decision 40 years ago to not weather seal the shield building, (3) management practices of FENOC, and (4) Root 102 Intervenors Motion at 6, 8, and 9.

103 FENOCs April 5, 2012 Submittal, at page 5, item 3 (citing RAI Request #4 for more information).

104 Id. at 6.

105 Intervenors note that the conclusion that the Blizzard of 78 did it is viewed with skepticism because the engineering literature is disputed over how forceful the delivery of precipitation must be for it to penetrate concrete. Intervenors Motion at 6. But as discussed, the cause of the cracking is not at issue in proposed Contention 5. Whether or not something much less than the drama of the Blizzard might have produced the [shield building cracks], id. at 6, the issue is whether the Shield Building Monitoring AMP is adequate to manage any aging effects of the cracks.

Cause Report, among other things. However, these assertions, bases, and arguments are simply beyond the scope of this narrow license renewal proceeding. Therefore, Intervenors Motion should be denied and Contention 5 should be found inadmissible.

1. Claims Related to Davis-Besses Current Operation are Outside the Scope of this Proceeding Like both the Motion to Admit Contention 5 and the Initial Motion to Amend Contention 5, the instant motion contains several claims that the recently identified shield building cracks constitute a current safety issue. For example, Intervenors claim the Shield Building Monitoring AMP is deficient because it is not currently managing the shield building cracking. 106 Intervenors also claim that the investigation into the shield building cracking is wholly-incomplete [and] tokenistic, leaving the true extent of the cracking and deterioration of the shield buildingunknown. 107 Further, Intervenors assert that FENOC provided incomplete and erroneous information in the Root Cause Report and that the re-submittal of the Revised Root Cause Report constitute[s] prima facie evidence that FENOC violated [10 C.F.R.] § 50.9. 108 Intervenors also reference other components which have failed and suffered degradation. 109 106 Where one might expect immediate, priority current regulation activities to be complete, they are relegated to be dealt with in the future in the RAI AMP. Intervenors Motion at 8. Intervenors also reference FENOCs plan to re-establish the design and licensing basis conformance of the shield building. Id. This relates to the current operation of the plant, and is therefore outside the scope of this proceeding.

107 Id. at 6. See also id. at 9-10 (noting the limited scope of the investigation of the cracking which has taken place to date and a failure to inspect in a serious fashion); id. (noting that only 15 of 16 flute shoulders were analyzed for damage); id. at 12 -13 (arguing that lack of quality assurance control 40 years ago should spur complete investigation); id. at 13 (claiming that FENOC should address potential for concrete damage emanating outward from inside the shield building).

108 Id. at 3 (citing Union of Concerned Scientists May 25, 2012 letter).

109 Id. at 7 (discussing dome parapet roof coating and other components). See id. at 8 (discussing purported construction defects). Id. at 12 (noting history of ground water infiltration into the annular space between the concrete shield building and steel containment.).

Finally, Intervenors assert that there are multiple deficiencies in the Root Cause Report 110 and Revised Root Cause Report. 111 These claims are not only inaccurate, 112 but they raise current safety issues and are therefore outside the scope of the proceeding. Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10. 113 If there are questions about the integrity of the shield building or a violation of § 50.9, the Commission will address them as part of its continuing responsibility to oversee the safety and security of ongoing plant operations. See Turkey Point, CLI-01-17, 54 NRC at 8-10 (holding that for license renewal, the Commission has found it unnecessary to include a review of issues already monitored and reviewed in the ongoing regulatory oversight processes). Thus, the Intervenors claims regarding current operation are outside the scope of the proceeding. 114

2. Safety Culture Claims are Outside the Scope of the Proceeding Intervenors Motion asserts that Davis-Besses operational history suggests that there is a safety culture issue at the plant. 115 Specifically, Intervenors assert that there is a history of misleads and reluctance on FENOCs part to be candid with the public, and that FENOC is 110 Id. at 10 (noting concrete spalling discussed in a 2011 RAI).

111 Id. at 10-11 (discussing history of cracking in dome). See id. at 11-12 (claiming that Root Cause Report and Revised Root Cause Report are deficient because they do not discuss interior of shield building); id. at 11 (But the root cause investigation narrowly scrutinizes the shield building exterior weather factors affecting the exterior only from 1978 forward.).

112 The NRC determined that the cracks, as they are, do not impact the structural integrity of the building. See CAL No. 3-11-001. And the Staff has not found that FENOC violated § 50.9, and the revisions to the Root Cause Report do not constitute prima facie evidence of a violation of that rule.

113 See, e.g., 10 C.F.R. § 54.30(a) and (b) (noting that if license renewal review of a plant demonstrates that plant will not comply with its CLB during the current licensing term, the licensee must take actions to address the noncompliance, and the licensees compliance with this requirement is not within the scope of the license renewal review).

114 To the extent Intervenors believe there are existing operational issues at Davis-Besse that warrant immediate action, their remedy is to file a § 2.206 petition.

115 Intervenors Motion at 17, 18. See also Intervenors Motion to Admit Contention 5.

being specious in justifying its reasons for not coating the shield building. 116 Further, Intervenors claim that FENOC must be coddled and pressured for facts and explanations. 117 Intervenors state that there is an absurd theme that runs throughout FENOCs management decisions over the yearsthat convenience outweighs safety concerns. 118 Intervenors conclude that the history of crisis management at Davis-Besse - or certainly, the public perceptions of the same - is shameful. FirstEnergy is not transparent in its investigations and repeatedly has been found not to be forthright with the public. 119 Intervenors safety culture claims amount to a challenge that Davis-Besse is unsafe to operate currently and/or during the period of extended operation based on past operational experience. The Commission has found that such safety culture contentions are outside the scope of license renewal, as they impermissibly raise issues that are relevant to current plant operation and are being addressed by the NRC's established and ongoing oversight activities.

See Prairie Island, CLI-10-27, 72 NRC at 490-92; see also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC __ (Oct. 12, 2011) (slip op. at 9-13). Thus, these safety culture claims are inadmissible. 120

3. Even if Intervenors Claims Regarding Current Operation Were Within the Scope of this Proceeding, They Lack an Adequate Basis and Are Immaterial Even assuming Intervenors claims about the current safety of Davis-Besse were within the scope of the proceeding, these portions of Contention 5 would not meet the admissibility requirements of 10 C.F.R. § 2.309(f)(1), as they lack an adequate basis and are immaterial.

116 Intervenors Motion at 5-6.

117 Id. at 5.

118 Id. at 9.

119 Id. at 14.

120 To the extent Intervenors believe there are existing operational issues at Davis-Besse that warrant immediate action, their remedy is to file a § 2.206 petition.

Intervenors give no facts, expert support, or reasons why the recently identified cracks impact the shield buildings ability to perform its intended safety functions. Instead, Intervenors only claim that the shield building should have been moisture-sealed 40 years ago, and that the investigation into the shield building was inadequate. 121 Thus, Intervenors have not provided adequate support for their claims regarding the Shield Building Monitoring AMPs ability to adequately manage any aging-effects related to the shield building cracks. Instead, they have provided the type of unsupported assertions the Commission has stated will not trigger an adjudicatory hearing. Jersey Central Power & Light Co. and Amergen Energy Co.

LLC (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000). As discussed, the NRC performed independent evaluations, analyses, and inspections in support of the restart authorization, which confirmed that the shield building was able to perform its intended safety functions. And the NRCs ongoing oversight will ensure the shield building continues to perform its intended safety functions.

Moreover, Intervenors have not illustrated that their claims regarding current operations at Davis-Besse raise a material issue. To renew a license, the Commission must find reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB. 10 C.F.R. § 54.29. Intervenors have not indicated how any of their claims prevent the Staff from making the required license renewal findings.

Therefore, these arguments do not raise a material issue and are inadmissible.

For all the reasons outlined above, these portions of Proposed Contention 5 are inadmissible.

121 Intervenors Motion at 6.

CONCLUSION For the reasons set forth above, the Board should deny Intervenors Motion and find proposed Contention 5 inadmissible.

Respectfully submitted, Signed (electronically) by Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Date of Signature: June 29, 2012

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER TO INTERVENORS MOTION TO AMEND AND SUPPLEMENT PROPOSED CONTENTION NO. 5 (SHIELD BUILDING CRACKING) in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 29th day of June, 2012.

William J. Froehlich, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: william.froehlich@nrc.gov E-mail: OCAAmail.resource@nrc.gov Nicholas G. Trikorous, Administrative Judge Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemakings and Adjudications Staff Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: nicholas.trikorous@nrc.gov E-mail: hearingdocket@nrc.gov William E. Kastenberg, Administrative Judge David W. Jenkins, Esq.

Atomic Safety and Licensing Board Panel First Energy Service Company Mail Stop: T-3F23 Mail Stop A-GO-15 U.S. Nuclear Regulatory Commission 76 South Main Street Washington, DC 20555-0001 Akron, OH 44308 E-mail: william.kastenberg@nrc.gov E-mail: djenkins@firstenergycorp.com

Beyond Nuclear Morgan, Lewis & Bockius 6930 Carroll Avenue, Suite 400 Pennsylvania Avenue, NW Takoma Park, MD 20912 Washington, D.C. 20004 Paul Gunter Stephen Burdick, Esq.

E-mail: paul@beyondnuclear.com E-mail: sburdick@morganlewis.com Kevin Kamps Alex Polonsky, Esq.

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

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

E-mail: tmatthews@morganlewis.com Mary Freeze, Legal Secretary E-mail: mfreeze@morganlewis.com Derek Coronado Michael Keegan Citizens Environmental Alliance (CEA) Dont Waste Michigan of Southwestern Ontario 811 Harrison Street 1950 Ottawa Street Monroe, Michigan 48161 Windsor, Ontario Canada N8Y 197 E-mail: mkeeganj@comcast.net Email: dcoronado@cogeco.net Anita Rios Green Party of Ohio 2626 Robinwood Avenue Toledo, Ohio 43610 Email: rhannon@toast.net

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov