ML12254A138

NRC Staff'S Answer to Intervenors' Fifth Motion to Amend And/Or Supplement Proposed Contention No. 5 (Shield Building Cracking)

ML12254A138
Person / Time
Site:	Davis Besse
Issue date:	09/10/2012
From:	Catherine Kanatas NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23449, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12254A138 (38)

Text

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

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

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

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

Brian G. Harris Catherine E. Kanatas Counsel for NRC Staff September 10, 2012

TABLE OF CONTENTS PAGE INTRODUCTION ........................................................................................................................1 BACKGROUND ..........................................................................................................................2 I. Legal Requirements for Amended Contentions ...............................................................4 II. Admissibility of Proposed Supplements to Contention 5 in Intervenors Fifth Motion to Supplement......................................................................................................6 A. Intervenors Fifth Motion to Supplement Does Not Indicate How Any of the Information Cited is New and Materially Different .................................................7

1. Information in the FOIA Documents Regarding Restart and the Root Cause Evaluation Is Not New and Materially Different Information ...............................................................................................9

a. The Fact that the December 2, 2011 Restart Occurred Before the Root Cause Was Known Is Not New and Materially Different Information ...................................................10

b. Intervenors Do Not Demonstrate That There Is Any New and Materially Different Information Regarding the Risks of the Shield Building Cracking .............................................................14

i. References to Hole-in-the-Head Incident Are Not New and Materially Different Information ......................... 15 ii. References to Non-Conformance of Shield Building Are Not New and Materially Different Information ............ 16 iii. References to Crystal River Are Not New and Materially Different Information ........................................ 18

c. Intervenors Do Not Demonstrate That There Is Any New and Materially Different Information Indicating That the Investigation Into the Root Cause of the Shield Building Cracking Was Inadequate..................................................................................19

d. The FOIA Documents Do Not Contain New and Materially Different Information Than Previously Available Concerning the Shield Building Cracking Being Addressed in the LRA ................ 24

2. The FOIA Documents Do Not Contain New and Materially Different Information Indicating That the Shield Building Cracking Is Related to FENOCs SAMA Analysis ...................................................................26 B. Intervenors Fifth Motion to Supplement Does Not Meet the Commissions Contention Admissibility Requirements ..............................................................29

ii CONCLUSION ..........................................................................................................................32

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 FIFTH MOTION TO AMEND AND/OR 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) Order, 1 the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer to the Intervenors Fifth Motion to Amend and/or Supplement Proposed Contention No.

5 (Shield Building Cracking)(Fifth Motion to Supplement), 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 As set forth below, the Board should deny Intervenors Fifth Motion to Supplement because (1) it does not demonstrate that it is based on new and materially different information, and (2) it does not meet the Commissions contention admissibility standards. Instead, the 1

See Initial Scheduling Order (Jun. 15, 2011) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML111662021) (ISO) at B.2.

2 See Intervenors Fifth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (Aug. 16, 2012) (ADAMS Accession No. ML12229A584).

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).

motion simply repeats previously argued out-of-scope, unsupported, and/or immaterial assertions regarding (1) the Staffs safety review; (2) the Staffs decision to allow restart on December 2, 2011; and (3) the root cause evaluations adequacy. Thus, Intervenors Fifth Motion to Supplement should be denied and Contention 5 should be denied as moot. 4 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. 5 The Staffs August 17, 2012 Answer to Intervenors Third and Fourth Motions to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (Staffs Answer to Third and Fourth Motions to Supplement) 6 discussed the procedural history for this proceeding, including FENOC and NRC reports on the root cause investigation, 7 through the filing of the instant motion, 8 so the Staff will not unduly repeat it here. 9 Once again, Intervenors instant motion moves the Board for leave to further supplement and amend Intervenors proposed Contention No. 5 on the recently identified shield building 4

See Staffs June 29, 2012 and August 17, 2012 Answers explaining why proposed Contention 5, as reworded by Staff, should be found moot given the submission of FENOCs Shield Building Monitoring Aging Management Program (AMP).

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

6 See NRC Staffs Answer to Third and Fourth Motions to Amend and/or Supplement Proposed Contention to Admit new Contention No. 5 (Shield Building Cracking) (Aug. 17, 2012) (Staffs Answer to Third and Fourth Motions to Supplement) (ADAMS Accession No. ML12230A212).

7 See FENOCs Root Cause Report and Revised Root Cause Report, supported by PIIs Report.

See NRC Staff Inspection reports from May 7, 2012 and June 21, 2012.

8 See Staffs Answer to Third and Fourth Motions to Supplement at 2-9.

9 Still pending before the Board is FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking, (Feb. 23, 2012) which the Staff Answered on March 5, 2012. See 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) (responding to Intervenors baseless claims of fraud, among other things).

cracking, 10 which was submitted over seven months ago, 11 and remains pending before the Board. 12 Like Intervenors Fourth Motion to Supplement, Intervenors Fifth Motion to Supplement claims that documents from Appendix B of NRCs June 12, 2012 response to Intervenors January 26, 2012 Freedom of Information Act (FOIA) request contains new and materially different information regarding their proposed contention 5. 13 Intervenors assert that this new and materially different information bolsters their proposed Contention 5 regarding the recently identified shield building cracking. 14 Contrary to their vague assertions regarding proposed Contention 5, Intervenors Fifth Motion to Supplement inexplicably focuses on issues outside the limited scope of license renewal proceedings including: (1) the adequacy of Staffs review of the shield building cracking with respect to current operations, (2) the Staffs December 2, 2011 decision to allow restart of the reactor, (3) the shield buildings compliance with current licensing requirements, 15 and (4) 10 Fifth Motion to Supplement at 1.

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

(ADAMS Accession No. ML12010A172) (Motion to Admit Contention 5).

12 See Board Order (Granting Unopposed Motion to Vacate Oral Argument) (May 15, 2012)

(ADAMS Accession No. ML12136A456).

13 Fifth Motion to Supplement at 1; Intervenors Fourth Motion to Supplement at 9, 21-25.

Intervenors Fifth Motion to Supplement includes nine appendices listing some of these documents from Appendix B of the Staffs FOIA response. Notably, Intervenors Fourth Motion to Supplement also relied on some of the same Appendix B documents identified in their Fifth Motion to Supplement.

14 Fifth Motion to Supplement at 15. Intervenors also reserve the right to submit a contention supplement based on relevant revelations in Appendix D [another set of FOIA documents received from Staff in response to their January 26, 2012 FOIA request]. Id. at 6. Additionally, Intervenors August 24, 2012 reply suggests they may submit a contention supplement based on FENOCs August 16, 2012 Shield Building Monitoring AMP. Intervenors Combined Reply to NRC and FENOC Answers to Intervenors Third and Fourth Motions to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (Aug. 24, 2012) (ADAMS Accession No. ML12237B197) at 9-10.

15 See Intervenors Fifth Motion to Supplement at 95 (discussing Intervenors basis for having a genuine dispute with the applicant).

the adequacy of FENOCs root cause evaluation of the shield building cracking. 16 Notably, Intervenors never amended proposed Contention 5 to address any specific part of FENOCs Shield Building Monitoring AMP. 17 Instead, Intervenors Fifth Motion to Supplement raises the same issues and arguments found in their previous supplements, which have been opposed by the Staff. 18 Staff has also opposed Intervenors baseless accusations of misconduct by the Staff. 19 I. Legal Requirements for Amended Contentions Intervenors Fifth Motion to Supplement moves the Board for leave to further supplement proposed Contention 5, 20 which was originally submitted on January 10, 2012. 21 As discussed 16 See Intervenors Fifth Motion to Supplement at 91 (describing basis for contention). Id. at 95 (Until there is a thorough, global investigation of the nature, extent and causation [of the shield building cracking], the muted warnings of the NRC Staff stand as creating a genuine dispute of fact.).

17 When Intervenors proposed a contention related to the shield building, FENOCs LRA did not have an AMP directed to this specific type of cracking. On April 5, 2012, FENOC amended its LRA to address this newly identified shield building cracking phenomenon. Intervenors seemingly acknowledged this amendment when they asked the Board to vacate the oral argument. See Intervenors Unopposed Motion to Vacate and Reschedule Oral Argument on Proposed Contention No. 5 (May 14, 2012) (ADAMS Accession No. ML12135A405) at 2 (noting FENOCs submission of Shield Building Monitoring AMP).

Intervenors have repeatedly moved to amend and supplement their contention, although the actual impact of their motions was to only try to add supplemental bases to the contention. On August 16, 2012, the day Intervenors began service of their Fifth Motion to Supplement, FENOC amended its previously submitted Shield Building Monitoring AMP. Putting aside FENOCs latest amendment, Intervenors Fifth Motion to Supplement again failed to amend their contention to address either of the Shield Building Monitoring AMPs submitted by FENOC.

18 See Staffs Feb. 6, 2012 Answer at 17-31; Mar. 8, 2012 Answer; June 29, 2012 Answer; Aug.

17, 2012 Answer. Thus, the instant motion acts more as a surreply not contemplated by the Commissions regulations. Moreover, the instant motion continues to mischaracterize the Staffs position regarding proposed Contention 5. Contrary to Intervenors assertion, Staff did not oppose the contention itself. Instead, the Staff recognized that the contention, as rephrased by Staff, was an admissible contention of omission. Feb. 6, 2012 Answer. As a result of FENOCs LRA amendment to include a Shield Building Monitoring AMP, this omission no longer exists. Therefore, as explained in Staffs previous answers on June 29, 2012 and August 17, 2012, proposed Contention 5 should be found moot and Intervenors motions to supplement should be denied.

19 See NRC Staffs Answer to FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking (Mar. 5, 2012) at 4-5. As discussed below, Intervenors Fifth Motion to Supplement raises similar unsupported accusations of malfeasance.

20 Intervenors Fifth Motion to Supplement at 1. Because Intervenors do not seek to amend the text of their contention, but only the supporting bases, the Staff considers the motion only a motion to supplement, not amend. 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

in previous Staff Answers related to proposed Contention 5, 22 the Commission does not look with favor on new or amended contentions filed after the initial filing, 23 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). 24 This Board has likewise held that Intervenors should 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. 25 Additionally, late-filed contentions must meet the threshold admissibility standards contained in 10 C.F.R. § 2.309(f)(1). 26 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; terms coupled with its stated bases.) (emphasis in original; footnote and internal quotation marks omitted).

21 Intervenors Motion to Admit Contention 5 at 5.

22 See, e.g., Staffs Answer to Second Motion to Supplement at 9-10; Staffs Answer to First Motion to Supplement at 5-7.

23 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.).

24 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 261 (2009) (internal citations omitted). The NRC recently changed its Part 2 regulations regarding the filing of new and amended contentions. The rules took effect on September 4, 2012, so they do not apply to Intervenors Fifth Motion to Supplement, which was filed beginning on August 16, 2012. The amendments to Part 2 eliminate the provisions for nontimely filings, currently in 10 C.F.R. § 2.309(c)(1),

and move the provisions on new or amended contentions currently in § 2.309(f)(2) to §2.309(c)(1).

Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46562, 46566-67, 46571-72, 46582-83, 46,591(Aug. 3, 2012). Because Intervenors only pled § 2.309(f)(2) in their Fifth Motion to Supplement, the Staffs analysis of the motions timeliness would be the same under the current and new rules.

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

26 Oyster Creek, CLI-09-7, 69 NRC at 261.

(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. 27 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 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). 28 The Staffs March 8, 2012 and June 29, 2012 Answers outlined relevant Commission precedent regarding what constitutes new and materially different information for the purposes of 10 C.F.R. § 2.309(f)(2), so the Staff will not unduly repeat it here, except to emphasize that repeating old arguments and old information that simply appears in a newly available document does not satisfy the materially different standard in § 2.309(f)(2)(ii). 29 II. Admissibility of Proposed Supplements to Contention 5 in Intervenors Fifth Motion to Supplement As discussed below, Intervenors Fifth Motion to Supplement should be denied because (1) it does not demonstrate that there is any new and materially different information than previously available, and (2) it fails to satisfy the Commissions contention admissibility requirements.

27 10 C.F.R. § 2.309(f)(2).

28 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 Fifth Motion to Supplement does not address the § 2.309(c) factors, and does not demonstrate good cause despite a failure to plead it.

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

A. Intervenors Fifth Motion to Supplement Does Not Indicate How Any of the Information Cited is New and Materially Different Intervenors Fifth Motion to Supplement should be denied because Intervenors do not meet the Commissions new and amended contention standards. Intervenors claim that their instant motion is timely filed pursuant to 10 C.F.R. § 2.309(f)(2), 30 which requires a showing that the information on which the contention is based is materially different than information previously available, among other things. Intervenors cite over 50 documents in Appendix B of NRCs June 12, 2012 FOIA response, claiming that these documents contain new and materially different information than previously available. 31 Specifically, Intervenors assert, without analysis, that the information is new and not previously available because the NRCs FOIA response was date stamped June 12, 2012and received by Intervenors a number of days later. 32 Intervenors argue that the information in the FOIA documents is materially different than information previously available because:

Intervenors can begin to unravel the chronology of the decision-making process, carried out behind closed doors by NRC and FENOC, regarding the shield building cracking investigation of root cause, extent of condition, safety and environmental significance, and corrective actions; the rushed reactor restart; and prospective plans addressing the cracking in the 2017-2037 timeframe. 33 Intervenors assert that their Fifth Motion to Supplement is timely filed because it was 30 Fifth Motion to Supplement at 95-97.

31 Intervenors also reference several other documents, including Toledo Blade articles. See, e.g., Fifth Motion to Supplement at 80 (citing December 3, 2011 article discussing restart and use-as-is).

However, none of the non-Appendix B documents cited are new and materially different information.

32 See Fifth Motion to Supplement at 96-97. See also id. at 54 (The public has only now gained access to [these documents] thanks to Intervenors FOIA request, made necessary by NRCs withholding of its decision-making documents surrounding the Davis-Besse shield building cracking scandal.).

33 Intervenors Fifth Motion to Supplement at 43. See also id. at 97 (claiming information on which contention is based is materially different because it relates to findings and provides facts which did not exist when Intervenors moved for admission of Contention 5 in January 2012).

filed within sixty (60) days of the [NRCs June 12, 2012 FOIA response], and conforms with the

[Boards ISO], as complimented by a 3 day allowance of time for U.S. Postal Service First Class Mail delivery. 34 As outlined below, Intervenors Fifth Motion to Supplement should be denied because it does not demonstrate that any of the information cited is new and materially different.

Intervenors arguments seemingly misapprehend the regulations requirements and their obligations: the issue is not simply when Intervenors came into possession of documents and the date received is not dispositive on the timeliness of their filings. Even a cursory examination of the Appendix B documents shows that Intervenors have raised these issues multiple times in their previous motions to supplement, as the emails primarily concern the December 2, 2011 restart and preliminary discussions or analyses regarding the root cause investigation. 35 These issues are not new and are not within the scope of this limited license renewal proceeding.

Thus, they should not be allowed to supplement proposed Contention 5.

Moreover, Intervenors never provide any reasonable connection between their out-of-scope concerns on the adequacy of the Staffs review, the Staffs December 2, 2011 restart decision, or FENOCs root cause evaluation and a litigable issue, like the adequacy of the Shield Building Monitoring AMP. Because Intervenors do not show how any of the information cited is new and materially different than previously available information on (1) the NRCs December 2, 2011 restart authorization or (2) FENOCs root cause evaluation, Intervenors Fifth Motion to Supplement should be denied.

34 Fifth Motion to Supplement at 97 (citing 10 C.F.R.§ 2.306(b)(1) and Shaw Areva MOX Services, Inc. (Mixed Oxide Fuel Fabrication Facility), LBP-08-10, 57 NRC 460, 493 (2008)).

35 See Appendices I-IX of Fifth Motion to Supplement. To the extent Intervenors do raise concerns related to proposed Contention 5 and/or the Shield Building Monitoring AMP, they do not meet the Commissions contention admissibility requirements.

1. Information in the FOIA Documents Regarding Restart and the Root Cause Evaluation Is Not New and Materially Different Information Intervenors Fifth Motion to Supplement claims that information in Appendix B provides new and materially different information about (1) the Staffs decision to allow Davis-Besse to restart on December 2, 2011 and (2) the adequacy of FENOCs root cause evaluation. Notably, neither of these issues is material to proposed Contention 5 or the Shield Building Monitoring AMP. The restart of the reactor is a current operating issue and is outside the scope of this proceeding. 36 Likewise, the root cause of the recently identified shield building cracking is a current operating issue and not relevant to proposed Contention 5 or the Shield Building Monitoring AMP. 37 FENOC determined that the recently identified shield building cracking was not aging related. 38 And the Shield Building Monitoring AMP will inspect the cracking as it exists and will monitor it for any change in conditions on a set schedule. 39 Even assuming these issues were related to proposed Contention 5 and/or the Shield Building Monitoring AMP, Intervenors do not indicate how any information cited is new and materially different in relation to proposed Contention 5 or the Shield Building Monitoring AMP. 40 36 See Staffs Feb. 6, 2012 Answer to Intervenors January 10, 2012 Motion at 20 (outlining why challenges to NRCs decision to allow Davis-Besse to restart are outside the scope of this proceeding).

37 As discussed in Staffs August 17, 2012 Answer, the Staffs aging management review focuses on managing the functionality of systems, structures, and components in the face of detrimental aging effects as opposed to identification and mitigation of aging mechanisms. The purpose of the Shield Building Monitoring AMP 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. FENOCs April 5, 2012 Submittal, Enclosure at 15 (emphasis added). 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. FENOC submitted a revised Shield Building Monitoring AMP on August 16, 2012. Staff notes that the stated purpose of that revised AMP is similar to the stated purpose in the April 5, 2012 AMP. See L-12-284 at page 6 of 12.

38 See FENOCs May 16, 2012 cover letter transmitting Revised Root Cause Report.

39 Intervenors Third Motion to Supplement appeared to recognize this, as Intervenors noted that the AMPs purpose is to to oversee and deal with the shield buildingscracking. Intervenors Third Motion to Supplement at 2.

40 The Staffs review of the Shield Building Monitoring AMP is ongoing. As noted above, FENOC submitted a response to a Staff RAI on August 16, 2012, along with corresponding changes to the Shield

Instead, Intervenors Fifth Motion to Supplement, like the Fourth Motion to Supplement, relies on documents in Appendix B, which contain preliminary and internal emails between Staff, mostly regarding the December 2, 2011 restart of the reactor, to suggest that NRC has concerns regarding the December 2, 2011 restart and the results of the root cause analysis done by PII and/or FENOC. 41 As explained in Staffs August 17, 2012 Answer to the Fourth Motion to Supplement, the Appendix B documents (1) do not contain new and materially different information 42 and (2) do not serve as Staffs conclusions on FENOCs Root Cause Report, which was not issued until February 27, 2012. 43 Once again, Intervenors do not indicate how the information in the Appendix B documents is new and materially different than information previously available.

Thus, the Board should not admit Intervenors claims, summarized below, to supplement the bases for proposed Contention 5, which should be found moot given the submission of the Shield Building Monitoring AMP. 44

a. The Fact that the December 2, 2011 Restart Occurred Before the Root Cause Was Known is Not New and Materially Different Information Intervenors Fifth Motion to Supplement claims that certain FOIA documents contain new and materially different information about the December 2, 2011 restart occurring before the Building Monitoring AMP. The Staff will evaluate the response and/or submit additional RAIs if needed as part of their ongoing review.

41 See Fourth Motion to Supplement at 21-24 and 36 (citing emails of NRC Staff Abdul Sheikh and Pete Hernandez); Fifth Motion to Supplement at 12-14, 39-41 (citing same emails).

42 Instead, they were preliminary discussions by Staff based on still emerging information and were subject to substantial change and revision as additional information became available. Moreover, the documents contain discussion of the Dec. 2, 2011 restart of the reactor and preliminary discussions about the root cause investigation. Both of these issues are outside the scope of this proceeding.

43 Staffs Answer to Third and Fourth Motions to Supplement at 31-32.

44 See Staffs June 29, 2012 Answer to Second Motion to Supplement and Aug. 17, 2012 Answer to the Third and Fourth Motion to Supplement. Contrary to Intervenors assertion, Staff has not insist[ed]

that any aging related aspects of the shield building are ameliorated by that AMP. Fifth Motion to Supplement at 92. Staffs review of the Shield Building Monitoring AMP is ongoing.

root cause of the shield building cracking was known. But Intervenors do not demonstrate that any information cited is new and materially different as it relates to the proposed Contention 5, or the adequacy of the Shield Building Monitoring AMP. Instead, Intervenors repeat their out-of-scope arguments that the December 2, 2011 restart was improper. 45 For example, Intervenors argue that the FOIA documents show that more than a month and a half after NRC issued its rushed [Confirmatory Action Letter (CAL)] approving Davis-Besse restart, NRC technical Staff were still brainstorming ways to justify why that was acceptable under their regulations. 46 This is not new and materially different information for several reasons. First, Intervenors mischaracterize the Staffs actions. The Staff was not brainstorming or justif[ying] its actions regarding restart. 47 The Staff does not rely on faith based regulation, as Intervenors claim. 48 Instead, the Staff was preparing slides for a public meeting and trying to make them accessible to a wide audience. Second, the fact that the restart was approved before the root cause was known is not new information. The CAL issued on December 2, 2011 indicated that FENOC was to submit a Root Cause Evaluation by February 28, 2012. 49 Therefore, Intervenors cannot demonstrate that this is new and materially different information.

Intervenors also claim that certain FOIA documents reveal the existence of the draft CAL, and that this information is materially different because it shows that NRC changed their messaging regarding Davis-Besses shield building cracking. 50 Intervenors claim that before 45 As noted in other answers to Intervenors motions to supplement proposed Contention 5, if Intervenors wish to challenge the current operation of the plant, they can file a § 2.206 petition.

46 Fifth Motion to Supplement at 85.

47 Id.

48 Id.

49 CAL.

50 Fifth Motion to Supplement at 44.

the draft CAL, NRC had assured the media and public that NRCs questions about root cause, extent of condition, safety and environmental significance, and corrective actions must be answered before reactor restart would be authorized. 51 Intervenors assert that the FOIA documents show that NRC had a shift in attitude [that] has yet to be explained 52 and that Staff approved the restart without a clear understanding and mastery of safety- and environmentally-significant issues. 53 But Intervenors made this same argument over seven months ago, in their January 10, 2012 Motion to Admit Contention 5. Specifically, Intervenors claimed that [d]espite its assurances, NRC did not require a full understanding of how [the shield building cracking]

happened and the full extent of it before blessing FENOCs hasty re-start of Davis-Besse. 54 Intervenors Motion to Admit Contention 5 cited local newspaper articles from October 2011 as proof that the NRC promised to answer all questions about the shield building cracking before restart. 55 Notably, Intervenors Fifth Motion to Supplement cites the same Cleveland Plain Dealer article. 56 This information from October 2011 is neither new nor materially different.

Moreover, as Intervenors themselves noted in their Motion to Admit Contention 5, what NRC actually said was that the reactor would not restart until the NRC had confidence that the 51 Fifth Motion to Supplement at 44.

52 Id.

53 Id. at 50.

54 See Motion to Admit Contention 5 at 17.

55 See e.g., id. at 14 (On October 14, 2011 the same FENOC spokeswoman cited above assured the Toledo Blade that We will make sure we fully understand the issue before we re-start the plant. [http://www.toledoblade.com/news/2011/10/14/Crack-in-Davis-Besse-shield-buildingcontinues.

html] (Emphasis added). But even as of the date of this Contention filing in January 2012, neither FENOC nor NRC fully understand the issue, and yet FENOC has chosen to re-start Davis-Besse, with NRCs blessing.).

56 See Fifth Motion to Supplement at 57.

cracks in the Shield Building don't have any safety implications. 57 Despite Intervenors repeated assertions in their Fifth Motion to Supplement that NRCs safety related questions went unanswered, 58 the NRCs questions regarding the integrity of the shield building to perform its intended functions were answered before restart was authorized on December 2, 2011. In fact, Intervenors Fifth Motion to Supplement specifically points the Board to a December 2, 2011 email from NRC Staff that states:

Tech staff unanimously concurred on the decision that the licensee provided reasonable assurance [that] the Shield Building will perform its safety function. There are no further questions from the NRC to be answered before startup can commence. 59 And NRCs May 7, 2012 Inspection Report noted that:

On December 1, 2011, the licensee provided revised calculations to address remaining concerns of the NRC technical review team.

On December 1 and December 2, 2011, a portion of the NRC technical review team conducted additional onsite discussions with the licensee technical staff and the licensees contractors to ensure appropriate understanding of the latest calculation revisions. The remainder of the NRC technical review team continued to provide offsite support. On December 2, 2011, the NRC technical review team concluded that the licensee provided reasonable assurance that the [shield building] had sufficient structural capacity to perform its design functions if subjected to a postulated design basis earthquake, tornado wind, or tornado generated missiles. 60 57 Motion to Admit Contention 5 at 21 (quoting NRC Staff member Viktoria Mytling).

58 See, e.g., Fifth Motion to Supplement at 48 (asserting that revelations in documents related to the December 2, 2011 restart and the root cause investigation make it retrospectively clear that NRCs questions and concerns were not resolved by the time the CAL was issued on December 2, 2011.); id. at 46-7 (claiming there were lingering unanswered questions).

59 Intervenors Fifth Motion to Supplement at 53 (citing B/36). Intervenors claim that a grammatical error in the email message, i.e., the word for being used instead of that in the sentence stating that reasonable assurance was provided, may be a reflection of the speed at which the restart approval was granted. Id. However, a grammatical error in an internal email summarizing NRC activities that does not change the substantive meaning of the message does not indicate that Staff rushed in performing its mission, and is not new and materially different information.

60 See Davis-Besse Nuclear Power Station Reactor Vessel Head Replacement and Shield Building Cracking Inspection Report 05000346/2012007(DRS) (May 7, 2012) (ADAMS Accession No. ML12128A443) at 9. This inspection report was served on the parties on May 10, 2012. See Letter from Brian G. Harris to the Board (May 10, 2012) (ADAMS Accession No. ML12131A031).

While Intervenors are concerned that internal staff briefing materials were not updated, 61 and that Staff asked questions and were reviewing calculations and analyses on the day restart was authorized, 62 Intervenors do not indicate how any of the information in the FOIA documents is new and materially different, 63 or how these issues are relevant to their proposed Contention 5 or the Shield Building Monitoring AMP. Therefore, these claims should not be allowed to supplement proposed Contention 5 and the motion should be dismissed.

b. Intervenors Do Not Demonstrate That There is Any New and Materially Different Information Regarding the Risks of the Shield Building Cracking Intervenors Fifth Motion to Supplement also claims that there is new and materially different information in the FOIA documents concerning the safety and environmental risks associated with the shield building cracking. 64 Once again, Intervenors arguments are similar if not identical to arguments made in multiple previous motions related to proposed Contention 5 that the restart of the reactor was improper given the significance of the shield building cracking. 65 As discussed below, Intervenors do not demonstrate that any information in the FOIA documents discussing the Hole-in-the-Head incident, the shield buildings non-conformance, or Crystal River, is new and materially different than information previously available, or related to their proposed Contention 5 or the Shield Building Monitoring AMP.

61 See, e.g., Fifth Motion to Supplement at 49-50 (citing B/33).

62 See, e.g., Fifth Motion to Supplement at 50 (citing B/34 and claiming that [t]his document shows that NRC staff concerns about Davis-Besse shield building cracking persisted up to the final moments before NRCs rushed CAL authorized reactor restart.).

63 The October 12, 2011 Cleveland Plain Dealer article is also not new information under the Boards ISO.

64 See, e.g., Fifth Motion to Supplement at 46-47 (asserting that restart occurred despite the lingering, unanswered, complex, safety- and environmentally-significant questions and concerns related to the shield building cracking.).

65 See, e.g., Motion to Admit Contention 5 at 53 (suggesting that there is such rapid degradation of the shield building concrete that Davis-Besse cannot safely operate to the end of its existing license).

Id. at 31 (claiming restart was premature and unsafe because FENOC and NRC did not fully understand the causes, extent, and significance of the cracking). See also Third Motion to Supplement at 2 (claiming that there is potential for further concrete and rebar problems in the Davis-Besse shield building).

i. References to Hole-in-the-Head Incident Are Not New and Materially Different Information Intervenors Fifth Motion to Supplement claims that a communication plan sent between Staff, which was related to cracking of the reactor pressure vessel (RPV) head penetration nozzles, tends to show that Davis-Besses 2011 shield building cracking discovery is the most significant safety and environmental scandal to beset FENOC since the 2002 Hole-in-the-Head Fiasco. 66 But Intervenors do not demonstrate that this information is new and materially different.

In fact, Intervenors argued in their Motion to Admit Contention 5 that the recently identified shield building cracks are similar to the cracking of the RPV head. Specifically, Intervenors January 10, 2012 Motion to Admit Contention 5 asserted that the shield building cracking phenomena suggest[s] another round of Radioactive Russian Roulette at Davis-Besse. 67 Notably, the Board has already stricken Intervenors references to the Hole-in-the Head incident in this proceeding. 68 Despite this, Intervenors have repeatedly referenced this incident in several motions related to proposed Contention 5. 69 In any event, Intervenors do not demonstrate how any information in the FOIA documents is new and materially different from information previously available, or how these claims are related to proposed Contention 5 or the adequacy of the Shield Building Monitoring AMP. 70 Therefore, these claims should not be 66 Fifth Motion to Supplement at 45. Intervenors also claim that there might be more boric acid leakage, and cite event notification reports from Turkey Point and Salem, as well as a statement made by Arnie Gundersen at Fairewinds Associates in Vermont. Id. at 67. As Intervenors recognize, id., these event notifications concern plants with lined containments which does not apply to Davis-Besse.

67 Motion to Admit Contention 5 at 18. Id. at 49 (claiming that the cracking in the shield building could have same consequences as 2001 cracking almost did and/or Fukushima did).

68 See Memorandum and Order (Granting Motion To Strike and Requiring Re-filing of Reply)

(Feb. 18, 2011) at 2-3 (ADAMS Accession No. ML110490269).

69 See, e.g., Motion to Admit Contention 5 at 17, 18, 25, 46, 53; Second Motion to Supplement at 17, 18; Fourth Motion to Supplement at 9-10.; Fifth Motion to Supplement at 87.

70 Intervenors also point to FOIA documents (B/41) which discuss cracking 3 inches deep into the shield building wall. Fifth Motion to Supplement at 61. See also id. at 69. Intervenors claim that this

allowed to supplement proposed Contention 5, which should be found moot given the submission of the Shield Building Monitoring AMP. 71 ii. References to Non-Conformance of Shield Building Are Not New and Materially Different Information Intervenors Fifth Motion to Supplement also claims that certain FOIA documents contain new and materially different information revealing that there were issues related to Davis-Besses design basis that were not resolved before restart. 72 Intervenors appear to argue that because the plant was non-conforming when restart was approved on December 2, 2011, there are greater safety and environmental risks than previously indicated, and that Davis-Besse should not be allowed to operate at full-power. 73 But Intervenors do not demonstrate that any information in the FOIA documents is new and materially different than information previously available. 74 Instead, Intervenors Fifth Motion to Supplement repeats similar arguments to those raised in their Fourth Motion to Supplement. Specifically, Intervenors Fourth Motion to cracking does not account for admissions, in FENOCs February 28, 2012 root cause analysis report, of cracks as deep as 15 inches or more[in] the shield building wall. Id. Intervenors do not demonstrate how information in the FOIA documents is materially different than information previously available about cracking near the outer reinforcing mat.

71 See Staffs Answer to Second Motion to Supplement (noting that proposed Contention 5, as reworded by Staff, is moot); Staffs Answer to Third and Fourth Motions to Supplement (noting same).

72 See, e.g., Fifth Motion to Supplement at 55, 63, 71 (citing B/46); id. at 72-73 (citing B/48); id. at 76-77 (questioning how changes to slides for an internal presentation affected insights). Id. at 92 (It is worth noting that NRC is currently only requiring FENOC to devise a plan for a plan, by December 2012, to restore licensing and design bases conformance at Davis-Besse, given the severely cracked shield building.).

73 See, e.g., Fifth Motion to Supplement at 93 (Intervenors question the appropriateness of such a lax, open-ended time period during which FENOC has the opportunity to restore conformance with Davis-Besse licensing and design bases - all the while allowing FENOCs operation of Davis-Besse at full power). As discussed, restart and the plants full power operation is outside the scope of this proceeding.

74 Intervenors also cite to a December 3, 2011 Toledo Blade article discussing FENOCs use-as-is disposition for the existing concrete cracking configuration. Fifth Motion to Supplement at 80. This article is well more than 60 days old, and so is not new under the Boards ISO. Further, it is related to restart and the current operation of the plant, which are outside the scope of this proceeding.

Supplement pointed to FOIA documents from Appendix B and claimed that the NRC staff wrestled with FENOCs operability/functionality approach to returning Davis-Besse to full power operations, as opposed to a design conformance or licensing basis approach. 75 As noted in Staffs Answer to the Third and Fourth Motions to Supplement, the fact that the plant was non-conforming given the shield building cracking is not new and materially different information. It was discussed in the Root Cause Report, which was available on February 29, 2012. 76 Intervenors seemingly recognized this in their Fourth Motion to Supplement, stating that FENOC admitted in its February 2012 [Root Cause Report] that the shield building cracking has left the shield building non-conforming to the current design and licensing bases 77 Thus, this information is not new and materially different information under the Boards ISO or the regulations, and should not be admitted to supplement proposed Contention 5.

Moreover, restoration of the design basis is a current operating issue, not a license renewal issue related to proposed Contention 5 or the Shield Building Monitoring AMP. 78 Notably, Intervenors Fifth Motion to Supplement recognizes this is a current operating issue, and references FOIA documents indicating that:

Davis-Besses current non-conformances with its licensing and design bases, due to shield building cracking, are being overseen by NRC in operations space (see NRC FOIA Document B/22 and B/24) or inspection space (see NRC FOIA Document B/48, Slide # 11) - that is, during the course of routine, regular, ongoing operational inspections. 79 75 See Intervenors Fourth Motion to Supplement at 9 (citing Memo, NRCs Hernandez to Sanchez-Santiago,11/17/2011 (from NRC FOIA responses)).

76 Staffs Answer to Third and Fourth Motions to Supplement at 31.

77 Fourth Motion to Supplement at 9. See also Second Motion to Supplement at 8.

78 As Intervenors recognize, license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs. Fifth Motion to Supplement at 93 (citing Florida Power & Light Co (Turkey Point Nuclear Generating Plant, Units 3 &

4), CLI-01-17, 54 NRC 3, 7 (20010; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-24, 64 NRC 257, 275-76 (2006)).

79 Fifth Motion to Supplement at 93.

As stated in previous Staff Answers to Intervenors motions related to proposed Contention 5, if Intervenors are concerned about the timing of resolving the non-conformance, they can file a § 2.206 petition. 80 Because there is no new and materially information cited on this issue, these claims should not be allowed to supplement proposed Contention 5.

iii. References to Crystal River Are Not New and Materially Different Information Intervenors also suggest that certain FOIA documents discussing Crystal River suggest that there is new and materially different information than previously available regarding Davis-Besses shield building cracking. 81 Intervenors reference FOIA documents indicating that a computer model used at Crystal River was also used at Davis-Besse. But Intervenors Fifth Motion to Supplement does not demonstrate that any information in the FOIA documents is new and materially different information than previously available. In fact, the Root Cause Report noted that:

Performance Improvement International used concrete stress and fracture analysis modeling techniques originally developed as part of the Crystal River Unit 3 containment concrete delamination cracking root cause investigation. The modeling and analysis was updated to reflect the design characteristics of the DBNPS shield building. The material properties and failure criteria used in the analysis and modeling were based upon the results of the DBNPS shield building concrete laboratory tests and examinations. 82 This information was available on February 29, 2012 and Intervenors could have timely raised a concern in one of their earlier motions to supplement. Because Intervenors do not demonstrate that the FOIA documents contain any new and materially different information 80 See, e.g., Staffs Answer to Third and Fourth Motions to Supplement at 37 n. 166; Staffs Answer to Second Motion to Supplement at 25 n. 114; Staffs Answer to Motion to Admit Contention 5 at 20-21.

81 See, e.g., Fifth Motion to Supplement at 79-80 (discussing use of model used at Crystal River and how at SONGs, the use of a computer model has led to shut down of the SONGs reactors since January 2012). Id. at 89-90 (claiming there needs to be third party validation of model).

82 Root Cause Report at 40.

than previously available, these claims should not be allowed to supplement proposed Contention 5.

c. Intervenors Do Not Demonstrate That There is Any New and Materially Different Information Indicating That the Investigation Into the Root Cause of the Shield Building Cracking Was Inadequate As in other motions related to proposed Contention 5, Intervenors Fifth Motion to Supplement claims that FENOCs investigation into the root cause of the shield building cracking was inadequate, 83 in that it did not identify all types of cracking and/or potential root causes, 84 among other things. 85 Intervenors argue that [g]iven the safety significance of the shield building crackingNRC [should have demanded] that more empirical data be collected. 86 Intervenors argue that several FOIA documents in Appendix B include new information that is materially different than information previously available demonstrating that:

(1) there are numerous different types/areas of cracking 87 (2) FENOCs Blizzard of 1978 theory is wrong 88 and (2) there has been an incomplete accounting of the extent of the cracking 83 Intervenors Second, Third, and Fourth Motions to Supplement were all based in part on the claim that in light of a wholly-incomplete, tokenistic investigationthe true extent of the cracking and deterioration of the shield building remains unknown. Second Motion to Supplement at 6. See also Third Motion to Supplement at 2 (The scope of the admitted cracking is far narrower than the identified cracking); Fourth Motion to Supplement at 3 (The scope of the admitted cracking is far narrower than the identified cracking...). Intervenors Motion to Admit Contention 5 claimed that carbonation was a potential root cause of the cracking, citing an Oak Ridge National Study. Motion to Admit Contention 5 at 26-29. Intervenors Fifth Motion to Supplement likewise claims that the root cause investigation was a token exercise, id. at 82, and repeats arguments made in previous pleadings (e.g., carbonation argument made in Motion to Admit Contention 5). Id. at 81.

84 See, e.g., Fifth Motion to Supplement at 72 (talking about discussion of dome parapet cracking in the Revised Root Cause Report). Id. at 81 (noting concern that FENOC applied no specific logic in its shield building cracking investigation).

85 Intervenors question the accuracy, robustness, and value of FENOCs modeling. Fifth Motion to Supplement at 84.

86 Fifth Motion to Supplement at 82.

87 See Fifth Motion to Supplement at 60 (claiming that document B/41 provides information representing yet another additional form of cracking, in addition to those FENOC has chosen to focus so exclusively upon in just a few select areas.).

88 Fifth Motion to Supplement at 60 (These numerous different/types/areas of cracking challenge

and safety/environmental risk significance, and consequently inadequate corrective actions. 89 Intervenors argue that essential truth and facts about the shield building cracking [were]

sacrificed to arbitrary schedules, lame excuses, and, apparently, corporate profitability. 90 But Intervenors do not indicate how the FOIA documents contain new and materially different information regarding the type or extent of cracking, or undermining the conclusions in the (1) Root Cause Report, (2) Revised Root Cause Report, (3) PII Report, (4) May 7, 2012 NRC Inspection Report, or (5) June 21, 2012 NRC Inspection Report. 91 Moreover, Intervenors do not indicate how the NRCs June 12, 2012 FOIA response provides new and materially different information related to the adequacy of the Shield Building Monitoring AMP. Instead, Intervenors repeat the same or similar arguments made in previous motions related to proposed Contention 592 and either point to information that is already before the Board, 93 or fail to FENOCs Blizzard of 1978 theory. Just as NRCs own questioning, documented in the PII revised root cause assessment report, indicated, FENOCs theory cannot account for all this.); id. at 76 (Meanwhile, FENOC fished around for the most convenient root cause it could conjure up, and settled on the Blizzard of 1978, inappropriately and inexplicably excluding other potential, and even likely, root cause explanations); id. at 83 (claiming that FENOC had weak foundation on which to rule out freeze/thaw cycles as contributing to the various forms and locations of cracking on the shield building); id. at 84 (It appears to Intervenors that FENOC cherry-picked a single root cause that it could claim was not aging related, thereby minimizing needed corrective actionsallowing it to deny the possibility that cracking could worsen over time); id. at 86-87 (claiming that Blizzard of 1978 was a convenient, as opposed to accurate, comprehensive, or truthful, root cause explanation).

89 Fifth Motion to Supplement at 61.

90 Id. at 82.

91 The NRCs June 21, 2012 Inspection Report found that FENOCs Root Cause Report established a sufficient basis for the causes of the shield building laminar cracking.

92 See, e.g., Fifth Motion to Supplement at 95 (There is extensive information, much of which is form NRCs own Staff,suggesting the universal presence of cracking in the shield building from different origins (from the pouring and original drying of the concrete, the construction of the shield building significantly out of plumb, micro-cracking, moisture infiltration, carbonation and corrosion), of high safety and environmental risk significance.). See Fourth Motion to Supplement at 47 (raising same issues).

93 The discussion below focuses on Intervenors references to FOIA documents, but Intervenors Fifth Motion to Supplement also references information already put forth before the Board in other pleadings and/or information that is not new. For example, Intervenors reference statements by Representative Kucinich that were in their Motion to Admit Contention 5. See, e.g., Fifth Motion to Supplement at 81. Intervenors also reference information in Sandias Calculation of Reactor Accident Consequences (CRAC-2) report, which they recognize has been public since 1982. Id. at 68.

demonstrate how information in the FOIA documents is new and materially different than information previously available to the Intervenors.

For example, Interveners claim that FOIA documents provide new and materially different information indicating that FENOC did not completely characterize the extent of cracking in the shield building and/or the risks associated with the cracking. 94 Notably, two of the FOIA documents cited, B/9 and B/26, are exactly the same documents cited in Intervenors Fourth Motion to Supplement. 95 Intervenors do not indicate how any of the information cited in these documents is new and materially different than information previously available. As stated in Staffs Answer to the Third and Fourth Motions to Supplement, this information is not new and materially different. 96 Similarly, Intervenors Fifth Motion to Supplement claims that FOIA documents contain new and materially different information suggesting that FENOC failed to meet the CALs February 28, 2012 deadline for (1) determining the root cause of the cracking and (2) developing a long-term monitoring program by February 28, 2012. 97 Specifically, Intervenors assert that because FENOC did not submit (1) its Revised Root Cause Report until May 16, 2012, or (2) its Shield Building Monitoring AMP until April 5, 2012, it failed to meet the February Intervenors claim that the CRAC-2 report contains information about the consequences of a catastrophic radioactivity release at Davis-Besse. Id. Intervenors also cite a June 2011 piece by Jeff Donn. Id.

Neither the CRAC-2 report or Donns article are new information under the Boards ISO.

94 Fifth Motion to Supplement at 61. Intervenors also argue that FOIA documents show that FEOC seems content to collect the bare minimum of data points, sometimes even by accident, as by nicking a portion of rebar. Id. at 87 (citing B/53). Intervenors further assert that freeze/thaw is ongoing and a form of age-related degradation Id. at 83. Staff notes that the Structures Monitoring AMP deals with this issue and that Intervenors make no specific challenge to either the Structures Monitoring AMP or the Shield Building Monitoring AMP.

95 See Fourth Motion to Supplement at 21-25; Fifth Motion to Supplement at 61-63.

96 Staffs Answer to Third and Fourth Motions to Supplement at 14, 31-32.

97 See Fifth Motion to Supplement at 63.

28, 2012 deadline outlined in the CAL, and violated 10 C.F.R. § 50.9. 98 First, Intervenors argument conflates the Shield Building Monitoring AMP with the long-term monitoring plan 99 submitted as part of the Root Cause Report. 100 The long-term monitoring plan is associated with current operation, while the Shield Building Monitoring AMP is associated with license renewal. Second, Intervenors claims that FENOC failed to submit the root cause determination and long-term monitoring plan in a timely fashion are not correct. As discussed above and in Staffs Answer to the Third and Fourth Motions to Supplement, the Staff found the Root Cause Report submitted on February 27, 2012, which contained FENOCs determination regarding the root cause of the cracking and the long-term monitoring plan, acceptable. 101 Intervenors do not point to any new and materially different information in the FOIA documents that undermines this determination. Third, Intervenors arguments about a § 50.9 violation and the Root Cause Reports conclusions have already been put before the Board. 102 The Staff has already indicated why these claims are inaccurate and outside the scope of this proceeding. 103 98 Fifth Motion to Supplement at 64, 86. See also id. at 86 (Never mind that the February 28 root cause report was so half-baked that NRC sent it back to the kitchen, only for FENOC to re-publish it with many revisions on May 16, 2012.).

99 See Fifth Motion to Supplement at 74 (arguing that the CALs inclusion of a commitment to develop a long-term-monitoring program confirms that the shield building cracking is aging related).

100 See coverletter to Root Cause Report at page 1 (The root cause evaluation of the DBNPS Shield Building cracks has been completed, and a copy of the Root Cause Analysis Report is enclosed.

This report includes the corrective actions being taken along with long-term monitoring requirements.)

(emphasis added).

101 Staffs Answer to Third and Fourth Motions to Supplement at 28 (citing June 21, 2012 Inspection Report); id. at 30.

102 See Second Motion to Supplement at 3 (Had the information been deemed by the NRC to either be complete and accurate or be incomplete/inac-curate but immaterial during its inspections, the re-submittals of the root cause assessment and root cause evaluation would not have been necessary.

The re-submittals under these circumstances constitute prima facie evidence that FENOC violated

§50.9.).

103 See Staffs Answer to Second Motion to Supplement at 17 (noting that NRC did not force FENOC to revise its Root Cause Report and submittal of Revised Root Cause Report did not constitute a violation of § 50.9). Id. at 24-25 (noting that violation of § 50.9 raises current safety issue and is outside scope of proceeding).

Fourth, these arguments are not timely, as the Revised Root Cause Report was publicly available on May 17, 2012. For all these reasons, Intervenors do not demonstrate that information in the FOIA documents is new and materially different.

Intervenors also argue that FOIA document B/41 contains new and materially different information indicating that not all 16 flute shoulders were core bored. 104 However, the Root Cause Report indicates that not all 16 flute shoulders were core bored. 105 Notably, Intervenors pointed to the Root Cause Reports discussion of this issue in their Second Motion to Supplement, where they made the same argument as in this instant motion that all 16 flute shoulders should have been core bored. 106 The Staffs June 29, 2012 Answer to the Second Motion to Supplement discussed why this information was not new and materially different information. 107 Once again, Intervenors do not demonstrate that any information cited is new and materially different information than previously available. Thus, these claims should not be allowed to supplement proposed Contention 5.

Similarly, Intervenors assert that some of the FOIA documents indicate that there is new and materially different information about a failed test related to freeze/thaw. 108 However, the 104 See Fifth Motion to Supplement at 60. Document B/41 contains Staffs slides discussing FENOCs condition assessment, which were prepared before the Root Cause Report was completed.

The slides indicated that core bores [were] taken on 12 shoulders to confirm crack boundaries.

105 Root Cause Report at 18.

106 Second Motion to Supplement at 9 (Only 15 of the 16 flute shoulders were analyzed for damage. "Impulse Response testing and cores [sic] bores taken using man-lifts from the ground and scaffold from building roofs across 15 of the 16 architectural flute shoulders confirmed that a similar concrete crack phenomenon in the architectural flute shoulders exists in other regions around the perimeter of the shield building..." But "Shoulder 14 was not accessible from the ground due to interference with a start-up transformer." RCA at 18.). The Second Motion to Supplement argued that this indicated FENOCs decisions put convenience over safety concerns. Second Motion to Supplement at 9.

107 Staffs Answer to Second Motion to Supplement at 17-18. Id. at 24 and n. 107 (noting that these claims were also outside the scope of the proceeding).

108 Fifth Motion to Supplement at 81.

Root Cause Report discusses a failed test related to freeze/thaw. 109 The Root Cause Report has been publicly available since February 29, 2012 when it was served on all parties in this proceeding. Intervenors are well aware of the Root Cause Report, as several of their motions to supplement have been based on and/or referenced it. Thus, this most recent supplement does not indicate how any information in the FOIA documents is new and materially different than information previously available. Therefore, these claims should not be allowed to supplement proposed contention 5.

d. The FOIA Documents Do Not Contain New and Materially Different Information Than Previously Available Concerning the Shield Building Cracking Being Addressed in the LRA Intervenors also claim that certain FOIA documents in Appendix B show that the shield building cracking issue is relevant to this license renewal proceeding. 110 For example, Intervenors note that an internal NRC email dated December 2, 2011 states that NRCs Division of license renewal: (1) recognize that degraded concrete is a Part 50 issue affecting license renewal, (2) need to understand if the degradation in the shield building concrete is age-related and if so, how the aging-effect will be managed, (3) drafted a RAI asking FENOC to explain how the recently identified shield building cracking (i.e., unique operating experience) will be addressed by its AMPs, and (4) added an open item in the Safety Evaluation Report regarding this issue. 111 Intervenors also point out that NRCs internal power point slides reference the shield building crackings Impact on License Renewal 112 and assert that this information clearly confirms the merits of Intervenors request for a hearing. 113 Further, Intervenors point 109 Root Cause Report at 23.

110 See Fifth Motion to Supplement at 51-52 (citing B/35).

111 See Fifth Motion to Supplement at 51-52.

112 Id. at 59-60 (citing B/40 and B/41).

113 See Fifth Motion to Supplement at 52. See also id. at 65 (citing B/42).

to a January 12, 2012 email that was referenced in a previous pleading related to proposed Contention 5, 114 which outlines Staffs position that the NRC did not oppose a limited version of Intervenors originally proposed Contention 5 prior to FENOCs amended LRA application proposing a Shield Building Monitoring AMP. 115 Staff agrees that the information in the December 2, 2011 and January 12, 2012 emails and references to a draft RAI regarding the shield building cracks license renewal impact indicates that a portion of Intervenors proposed Contention 5 was an admissible contention when submitted on January 10, 2012. This information has already been brought before the Board and has not been transformed in to new material by being included in the Staffs June 12, 2012 FOIA response. In fact, the draft RAI cited in Intervenors Fifth Motion to Supplement is the RAI that was (1) finalized and sent on December 27, 2011 to FENOC, (2) cited in Intervenors January 10, 2012 Motion to Admit Contention 5, 116 (3) referenced in Staffs February 6, 2012 Answer as a reason Staff did not oppose proposed Contention 5 as a contention of omission to the extent it identified FENOCs failure to describe how its AMPs will account for the shield building cracks during the period of extended operation, 117 and (4) answered by FENOC on April 5, 2012. In fact, Intervenors Second Motion to Supplement was based on FENOCs April 5, 2012 answer to this RAI, which included the Shield Building 114 See Intervenors Combined Reply to FENOC and NRC Staff Opposition to Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking), (July 6, 2012) (ADAMS Accession No. ML12188A792) (citing B/50).

115 See Fifth Motion to Supplement at 77-78 (citing B/50).

116 See Motion to Admit Contention 5 at 23 (On December 27, 2011, as will be shown, NRCs RAIs extended directly to aging management vis-a-vis cracking in the concrete shield building. Id. at 30 (NRCs RAIs from December, 2011 have directly to do with shield building cracking, a critical safety-significant aging management issue that should be addressed in the license extension proceeding, as urged by this contention.). Id. at 50; Id. at 53-54 (quoting the RAI, which is the finalized form of the draft RAI cited in Intervenors Fifth Motion to Supplement).

117 Staffs Feb. 6, 2012 Answer to Motion to Admit Contention 5 at 16.

Monitoring AMP. 118 And the January 12, 2012 email outlining Staffs position is the same position taken in Staffs February 6, 2012 Answer to proposed Contention 5. Therefore, this information is not new and materially different and Intervenors motion should be denied.

As indicated in its June 29, 2012 and August 17, 2012 Answers, Staffs position is that proposed Contention 5 should be found moot given the submittal of the Shield Building Monitoring AMP. 119 Staff recognizes that the recent shield building cracking is a license renewal issue, and continues to review the Shield Building Monitoring AMP to ensure that it will address the shield building cracking during the PEO. 120 But nothing in the Fifth Motion to Supplement, or any of the four prior motions to supplement proposed Contention 5, suggests that there is new and materially different information regarding proposed Contention 5 or the adequacy of the Shield Building Monitoring AMP. 121 Therefore, Intervenors Fifth Motion to Supplement should be denied and proposed Contention 5 should be dismissed as moot.

2. The FOIA Documents Do Not Contain New and Materially Different Information Indicating That the Shield Building Cracking Is Related to FENOCs SAMA Analysis Intervenors Fifth Motion to Supplement also repeats Intervenors argument that the 118 See April 5, 2012 submission. See Second Motion to Supplement. Intervenors Fifth Motion to Supplement states that Intervenors are keenly interested in the answers to many more questions as well. Fifth Motion to Supplement at 71. But Intervenors do not indicate how the questions or answers they seek are new and materially different information than previously available.

119 See Staff Answer to Second Motion to Supplement at 21-22. Id. at 10-12 (discussing mootness doctrine regarding contentions of omission); Staff Answer to Third and Fourth Motions to Supplement at 8, 33, 34.

120 See Staff Answer to Third and Fourth Motions to Supplement at 16 n.77.

121 Instead of raising specific challenges to the Shield Building Monitoring AMP and/or the LRA, Intervenors make unsupported and generic challenges to the Shield Building Monitoring AMP. For example, Intervenors cite to FOIA document B/53 and claim that a robust Quality Assurance program be applied to the very foundations of site programs for managing the aging effects of safety related structures. Fifth Motion to Supplement at 90. Intervenors state that this issue of lacking QA is most deserving of further inquiry in a hearing, for it completely undermines the safety and soundness of 20 year license extension decision making. Such decisions are made while flying blind, due to the lack of QA. Id. This unsupported statement is not the type of challenge to the adequacy of an AMP that would support a hearing.

recently identified shield building cracking implicates FENOCs SAMA analysis, 122 and asserts that there is new and materially different information in the FOIA documents on the issue. In particular, Intervenors cite a December 2, 2011 NRC press release received from their FOIA request, and note that the press release states that Davis-Besse is about 40 miles southeast of Toledo, instead of 21 miles east-southeast of Toledo as stated on NRCs website. 123 First, the press release is not new and materially different information. While Intervenors received a copy of it as part of the NRCs June 12, 2012 FOIA response, the press release was publicly available on December 2, 2011. Thus, Intervenors could have timely raised a complaint about this press release within 60 days of December 2, 2011. Second, the press release is not part of the SAMA analysis or related to proposed Contention 5 or the Shield Building Monitoring AMP. Intervenors neither claim nor demonstrate that FENOC made a similar error in its SAMA analysis. Instead, Intervenors only assert that the NRCs opposition to their SAMA contention is absurd because the press releases gross error in estimating the distance from an atomic reactor to a population center carries numerous implications, from radiological doses suffered downwind, to emergency preparedness, SAMA analyses, etc. 124 The press release is simply not part of the LRA, and cannot affect the SAMA analysis in any way. Intervenors bare assertions are not sufficient to support a hearing.

Intervenors also assert that the FOIA documents provide new and materially different information indicating that a power uprate has been granted, 125 and that this information holds potential environmental and safety implications for both Intervenors SAMA and cracked 122 See, e.g., Fifth Motion to Supplement at 57. See Motion to Admit Contention 5 at 26.

123 Fifth Motion to Supplement at 56-57.

124 Id. at 58.

125 Id.

concrete containment contentions. 126 Specifically, Intervenors cite FOIA document B/38, which is a December 2, 2011 magazine article in Power Engineering Magazine. Intervenors note that the article states that Davis-Besses electric output is 913 Megawatts-electric, which is the same output noted on NRCs website, but 5 MWe higher than the figure listed in FENOCs ER. 127 Intervenors assert that [i]f there has been an electrical output increase at Davis-Besse since late 2010, when this proceeding began, this increases safety and environmental risks, due to the reactors increased thermal output. 128 Once again, Intervenors cite information that is not new and materially different from information previously available. The NRC licenses reactors based on thermal output, not electric output. The thermal output noted in Davis-Besses license, the LRA, and the NRCs website indicates that Davis-Besse is licensed to 2817 MW-thermal. In any event, the 913 MWe figure is not new information, as it was in the publicly available magazine article published on December 2, 2011, well more than 60-days ago. Intervenors have an iron-clad obligation to examine the publicly available documentary material with sufficient care to enable [them] to uncover any information that could serve as the foundation for a specific contention. 129 Further, Intervenors do not demonstrate that this information is materially different than information previously available.

Instead, Intervenors only offer the assertion that a high operating temperature is theorized to be associated with the boric acid leakage, and consequent lid corrosion, that has 126 See Fifth Motion to Supplement at 58.

127 Id.

128 Id. Intervenors also appear to imply that this somehow implicates their energy alternatives contentions, which were consolidated by the Board and dismissed by the Commission. See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08 (Mar. 27, 2012) (slip op.

at 5-17). Intervenors offer no support for this claim.

129 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI 27, 72 NRC __ (Sept. 30, 2010) (slip op. at 18). See also Feb. 6, 2012 Answer to Jan. 10 Motion at 10.

necessitated Davis-Besses not one, but two, lid replacements in a single decade (2002-2011). 130 Notably, Intervnors Motion to Admit Contention 5 raised similar concerns about the multiple lid replacements, citing FENOCs ER among other things. 131 Because Intervnors do not demonstrate that there is new and materially different information than previously available, their claims should not be allowed to supplement proposed Contention 5. 132 B. Intervenors Fifth Motion to Supplement Does Not Meet the Commissions Contention Admissibility Requirements Intervenors Fifth Motion to Supplement should also be denied because it does not meet the Commissions contention admissibility requirements, as it, like Intervenors four prior motions to supplement, raises issues that are outside the scope of this limited license renewal proceeding, unsupported and/or immaterial. 133 Additionally, Intervenors fail to challenge a specific aspect of the Shield Building Monitoring AMP, which has been part of FENOCs LRA since April 5, 2012.

For example, as in several other motions related to proposed Contention 5, 134 Intervenors Fifth Motion to Supplement asserts that the Staff has acted improperly during its review. Intervenors Fifth Motion to Supplement argues that the NRC (1) rushed its decision on 130 Fifth Motion to Supplement at 58.

131 Motion to Admit Contention 5 at 11-13.

132 It is unclear how these claims are even related to proposed Contention 5 or the Shield Building Monitoring AMP.

133 Intervenors Fifth Motion to Supplement also fails to plead the nontimely § 2.309(c) factors, which the Staff has indicated in previous answers could be an independent reason to deny Intervenors motion. See, e.g., Staffs Answer to Third and Fourth Motions to Supplement at 32.

134 See, e.g., Motion to Admit Contention 5 at 16 (From what little information the public has been provided thus far, NRCs supposedly independent assessment of the safety significance of the cracking appears to be woefully inadequate.); Intervenors Combined Reply to NRC and FENOC Answers to Intervenors Third and Fourth Motions to Amend and/or Supplement Proposed Contention No.

5 (Shield Building Cracking) (Aug. 24, 2012) (ADAMS Accession No. ML12237B197) at 5 (Intervenors position is thus within the sweep of aging management review, while the artful dodges and concealments of discrepancies between the facts as found by the Staffs investigating experts, and the Commissions acquiescence in the suspect root cause finding by FENOC, have not produced a complete understanding of the degraded component condition and heightened potential for failure of the shield building.).

Davis-Besses restart in order to preserve FENOCs profitability; (2) rubberstamped FENOCs root cause evaluation; (3) misled the public, and (4) colluded with FENOC, among other things.

As an initial matter, Intervenors claims of malfeasance by the Staff are baseless and unsupported. Intervenors seem to make these assertions only because they would disagree with the Staffs careful analysis, conclusions, and decisions. These unsupported and vague claims have not changed since Intervenors first started raising these issues almost eight full months ago. 135 Contrary to Intervenors assertions of malfeasance, their Fifth Motion to Supplement identifies the Staffs dedication to public health and safety including working nights, weekends, and over holidays to analyze information related to the shield building cracking, asking multiple questions concerning FENOCs restart calculations, and eventually deciding to allow restart on December 2, 2011.

Regardless of Intervenors baseless assertions regarding the Staffs review, these claims cannot support the admission of a contention. The Commission has repeatedly emphasized that the adequacy of the Applicants application and not the Staffs review is the issue to be resolved in a license renewal proceeding. The Commission stated that [t]he NRC has not, and will not, litigate claims about the adequacy of the Staffs safety review in licensing adjudications. 136 Thus, these types of claims are outside the scope of this proceeding 137 and 135 See Motion to Admit Contention 5 at 46 (Verification and oversight long after restart authorization is a very dubious approach to safety regulation enforcement. This is especially unacceptable at Davis-Besse in 2011-2012, given the December 2002 NRC Office of Inspector General Report on Davis-Besses Hole-in-the-Head fiasco, which found that not only did FENOC place profits ahead of safety (earning a record fine from NRC, amounting to $33.5 million altogether), but also that NRC - at the highest levels of the agency - also put FENOCs profits ahead of public safety. The December 2, 2011 NRC restart authorization, without resolving the root cause, extent, or solution to the concrete shield building cracking problem, is a repeat of FENOC putting profits ahead of safety, and NRC letting FENOC get away with it.).

136 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 (2008) (citing Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004) (citing Curators of the University of Missouri, CLI-95-1, 41 NRC at 121-22, and prior agency rulings holding same)).

should not be allowed to supplement proposed Contention 5. 138 The Fifth Motion to Supplement also continues to rely on preliminary internal Staff documents and to criticize the December 2, 2011 restart of the plant and/or the root cause investigation rather than demonstrating a material dispute with FENOCs LRA. But the December 2, 2011 restart, the physical integrity of the shield building, 139 and the investigation into the root cause of the shield building cracking are issues outside the scope of this proceeding and unrelated to Intervenors proposed Contention 5 and the Shield Building Monitoring AMP. Therefore, these claims are inadmissible and should not be allowed to supplement proposed Contention 5.

Intervenors instant motion also repeats arguments made in previous motions regarding current operating issues, including (1) the scheduled 2014 steam generator replacement 140 and (2) safety culture concerns. 141 Each of these issues is outside the scope of this proceeding 142 137 To the extent Intervenors wish to raise these concerns, the proper forum is not a contention, but a request for an investigation by the NRC Inspector General. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-86-21, 23 NRC 849, 858 (1986) (noting that fact that the Office of Investigation and the Office of Inspector and Auditor are investigating otherwise unidentified allegations is insufficient basis for admitting a contention). Representative Kucinich has requested such an investigation. See http://kucinich.house.gov/news/email/show.aspx?ID=RQF7CWWP5YWJOI47CB4YXWE3VI.

138 These claims also should not be allowed to supplement proposed Contention 5 as they relate to issues (restart and the root cause investigation) which are outside the scope of this proceeding, unsupported, and/or immaterial. Further, Intervenors unsupported claims (1) about collusion between FENOC and Staff (p. 19, 20, 47), (2) impugning the Staffs safety and environmental review (p. 49, 76),

and (3) mischaracterizing Staffs actions (p. 65-66, 79), among other things, are inconsistent with NRCs rules of practice which presume that parties and their representatives in proceedings subject to [Subpart 2 will] conduct themselves with honor, dignity, and decorum as they should before a court of law. 10 C.F.R. 2.314(a).

139 See, e.g., Fifth Motion to Supplement at 73 (claiming that operation of the reactor is a risky nuclear experiment).

140 Fifth Motion to Supplement at 11. This argument was first brought up in Intervenors Motion to Admit Contention 5 at 11-13. Staff opposed the argument in its Feb. 6, 2012 Answer at 23-24.

141 See, e.g., Fifth Motion to Supplement at 49, 88.

142 See, e.g., Prairie Island, CLI-10-27, 72 NRC 481, 490-493 (2010); see also Diablo Canyon, CLI-11-11, 74 NRC __ (slip op. at 9-13).

and unsupported. Intervenors also make unsupported and immaterial claims regarding the root cause investigation and underlying documents.

Staffs answers to previous motions related to proposed Contention 5 have indicated why Intervenors similar or identical arguments are (1) outside the scope of this limited proceeding, (2) unsupported, 143 and/or (3) immaterial. 144 The Staff incorporates herein its answers to previous motions related to proposed Contention 5 on these issues that have been raised repeatedly, and notes that the instant motion functions as a surreply not contemplated by the Commissions regulations. For these reasons, Intervenors Fifth Motion to Supplement should be denied.

CONCLUSION Intervenors Fifth Motion to Supplement does not provide any explanation as to how the information in the NRCs June 12, 2012 FOIA response is materially different from the information previously available and identified repeatedly in its earlier filings. Here, as in other pleadings, Intervenors leave it to the Board and other parties to determine these important issues. Even assuming that information in Intervenors Fifth Motion to Supplement was deemed new and materially different, it still cannot support the admission of a contention in this proceeding because Intervenors claims are outside the scope of this proceeding, unsupported, immaterial, and/or fail to raise a genuine dispute with FENOCs LRA. Additionally, Intervenors instant motion effectively serves as a surreply not contemplated by the Commissions regulations, as it repeats arguments and claims previously made without identifying new and 143 See, e.g., Staffs Answer to Third and Fourth Motions to Supplement at 30 (While Intervenors clearly disagree (1) that PIIs and/or FENOCs answers were sufficient and (2) with the methods used in the root cause assessment, Intervenors provide no support for their claims, again leaving it to the Board and other parties to expend their resources trying to respond to unclear and repetitive arguments in serial supplements.).

144 See February 6, 2012 Answer; June 29, 2012 Answer, August 17, 2012 Answer.

materially different information to support the claims. For these reasons, Intervenors Fifth Motion to Supplement should be denied.

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: September 10, 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 FIFTH MOTION TO AMEND AND/OR SUPPLEMENT PROPOSED CONTENTION NO. 5 (SHIELD BUILDING CRACKING) in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 10th day of September, 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