Text

Fenoc'S Answer Opposing Intervenors' Fifth Motion to Amend And/Or Supplement Proposed Contention No. 5 (Shield Building Cracking)
	ML12254B086
Person / Time
Site:	Davis Besse
Issue date:	09/10/2012
From:	Matthews T; FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	RAS 23450, 50-349-LR, ASLPB 11-907-01-LR-BD01
	Download: ML12254B086 (38)
	v • d • e

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

)

In the Matter of )

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

)

(Davis-Besse Nuclear Power Station, Unit 1) ) September 10, 2012

)

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

Timothy P. Matthews Kathryn M. Sutton Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com David W. Jenkins Senior Corporate Counsel II FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FENOC

TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ............................................................................................................... 3 III. LEGAL STANDARDS ................................................................................................... 10 A. Timeliness ............................................................................................................ 11 B. Contention Admissibility ..................................................................................... 13 IV. THE FIFTH SUPPLEMENT SHOULD BE REJECTED ............................................... 14 A. The Fifth Supplement Should Be Rejected as Untimely ..................................... 14

1. The Fifth Supplement Is Untimely Pursuant to 10 C.F.R. § 2.309(f)(2) ................................................................................................ 14

a. Much of the Information Relied upon by Intervenors Is more than 60 Days Old ................................................................ 17

b. None of the Information in the FOIA Response Is Materially Different from Previously Available Information ...... 19

2. The Fifth Supplement Fails to Meet the 10 C.F.R. § 2.309(c)(1)

Non-Timely Filing Requirements ............................................................ 20 B. The Fifth Supplement Is Outside the Scope of this Proceeding .......................... 23

1. Intervenors Arguments Regarding Davis-Besses Current Licensing Basis Are Outside the Scope of this Proceeding ..................... 23

2. Attacks on FENOCs Integrity and Safety Culture Are Outside the Scope of this Proceeding .......................................................................... 25

3. Challenges to NRC Review/Licensing Process Are Outside the Scope of this Proceeding .......................................................................... 26 C. The Fifth Supplement Is Not Adequately Supported ........................................... 28 D. The Fifth Supplement Does Not Raise a Genuine Dispute with the Davis-Besse LRA ........................................................................................................... 31 V. CONCLUSION ................................................................................................................ 33

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

)

In the Matter of )

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

)

(Davis-Besse Nuclear Power Station, Unit 1) ) September 10, 2012

)

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

I. INTRODUCTION On January 10, 2012, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (Intervenors) moved for the Atomic Safety and Licensing Board (Board) to admit proposed Contention 5 (Original Contention) regarding Shield Building laminar cracking.1 Intervenors have requested to amend and/or supplement the Original Contentionfive times nowon February 27, 2012,2 June 4, 2012,3 July 16, 2012,4 July 23, 2012,5 and most recently on August 16, 2012.6 FirstEnergy Nuclear Operating Company (FENOC) previously filed Answers opposing the Original 1

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

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

3 Intervenors Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking) (June 4, 2012) (Second Supplement).

4 Intervenors Third Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (July 16, 2012) (Third Supplement).

5 Intervenors Fourth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (July 23, 2012) (Fourth Supplement).

6 Intervenors Fifth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking)

(Aug. 16, 2012) (Fifth Supplement). Intervenors have recently indicated that they are considering filing yet another supplement to the Original Contention. See 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) at 10 (Aug. 24, 2012).

Contention and the first four Supplements.7 Pursuant to 10 C.F.R. § 2.309(h)(1)8 and the Boards June 15, 2011 Initial Scheduling Order (ISO), FENOC files this timely Answer in opposition to the Fifth Supplement, dated August 16, 2012.9 The Fifth Supplement consists primarily of an 83 page section titled Issues of Fact and Inconsistencies that attaches and discusses 43 documents provided to Intervenors by the Nuclear Regulatory Commission (NRC or Commission) in response to a Freedom of Information Act (FOIA) request, none of which support admission of Contention 5. The Fifth Supplement should be rejected by the Board for several independent reasons:

First, the Fifth Supplement is untimely under 10 C.F.R. § 2.309(f)(2). Intervenors rely upon 10 C.F.R. § 2.306(b)(1) to show that the Fifth Supplement is timely, but that regulation is inapplicable. Additionally, much of the information upon which the Fifth Supplement is based was available well over 60 days prior to its filing. Furthermore, none of the information in the Fifth Supplement is shown to be materially different than that previously available to Intervenors. Intervenors have yet again failed to even plead, much less demonstrate, good cause under 10 C.F.R. § 2.309(c)(1) justifying the late filing of the Fifth Supplement, despite the plain language of the ISO.10 7

See FENOCs Answer Opposing Intervenors Motion for Admission of Contention No. 5 on Shield Building Cracking (Feb. 6, 2012) (FENOCs Original Contention Answer); FENOCs Answer Opposing Intervenors Motion to Amend Proposed Contention 5 on Shield Building Cracking (Mar. 8, 2012) (FENOCs Answer to First Supplement); FENOCs Answer Opposing Intervenors Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking) (June 29, 2012) (FENOCs Answer to Second Supplement);

FENOCs Answer Opposing Intervenors Third and Fourth Motions to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (Aug. 17, 2012) (FENOCs Answer to Third and Fourth Supplements).

8 FENOC recognizes that recent revisions to 10 C.F.R. Part 2 are effective as of September 4, 2012. See Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,562 (Aug. 3, 2012) (stating that the effective date of the revisions is September 4, 2012).Section II of the final rule, however, states that in ongoing adjudicatory proceedings, if there is a dispute over an adjudicatory obligation or situation arising prior to the effective date of the new rule, the former rule provisions would be used. Id.

Because the Fifth Supplement was filed before the effective date of the final rule, FENOC believes that this Answer should apply the Part 2 regulations in effect prior to the recent revisions. Therefore, this Answer refers to the regulations in effect prior to the revisions. As discussed below, however, regardless of whether the Fifth Supplement is evaluated based on the old or new Part 2 regulations, it does not support an admissible contention.

9 Under 10 C.F.R. § 2.309(h)(1), an applicant may file an answer to a proffered contention within 25 days of the service of the contention. The ISO in this proceeding reiterates that FENOC may file an answer to a motion for leave to file a new contention and a proposed contention within 25 days after service of those pleadings.

ISO at 13.

10 ISO at 12.

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Second, the Fifth Supplement fails to proffer an admissible contention because it raises issues that are outside the scope of this license renewal proceeding, contrary to 10 C.F.R.

§ 2.309(f)(1)(iii). Specifically, the Fifth Supplement inappropriately addresses issues that are part of the current licensing basis, inappropriately challenges FENOCs integrity and safety culture, and inappropriately challenges the NRC review and licensing process.

Third, the Fifth Supplement fails to proffer an admissible contention because it is utterly devoid of supporting law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(v). Intervenors have brought no expert support to bear on this highly-technical subject. The Fifth Supplement is nothing more than speculative, non-expert arguments based on guesses and inferences in response to the NRC FOIA Response.

Finally, the Fifth Supplement fails to proffer an admissible contention because Intervenors have, yet again, failed to challenge the Davis-Besse License Renewal Application (LRA), including the Shield Building Aging Management Program (Shield Building AMP), contrary to 10 C.F.R. § 2.309(f)(1)(vi), beyond mere assertion or speculation. This failure to challenge the very means by which FENOC addresses the Shield Building laminar cracking for purposes of license renewal renders the Fifth Supplement fatally defective.

For these reasons, the Fifth Supplement not only fails to cure the deficiencies in the Original Contention, which remains mooted by the Shield Building AMP, but is independently defective and should be rejected in its entirety.

II. BACKGROUND This proceeding concerns FENOCs August 27, 2010 LRA,11 which requests that the NRC renew the Davis-Besse operating license for an additional 20 years.12 A full discussion of the history of this proceeding was provided in FENOCs Answer to the Third and Fourth Supplements and is incorporated herein by reference.13 The background is reproduced below only to the extent necessary to provide context to this Answer to the Fifth Supplement.

11 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License No. NPF-003 for an Additional 20-Year Period; FirstEnergy Nuclear Operating Company, Davis-Besse Nuclear Power Station, Unit 1, 75 Fed. Reg. 65,528, 65,529 (Oct. 25, 2010) (Hearing Notice).

The LRA is available at ADAMS Accession No. ML102450572.

12 Applicants Environmental Report, Operating License Renewal Stage, Davis-Besse Nuclear Power Station at 1.1-1 (Aug. 2010) (ER), available at ADAMS Accession No. ML102450563.

13 See FENOCs Answer to Third and Fourth Supplements at 3-13.

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On October 1, 2011, Davis-Besse shut down for a scheduled outage to complete maintenance activities.14 During hydro-demolition activities on October 10, 2011, workers identified indications of laminar cracking below the exterior surface of the Shield Building.15 Upon the initial identification of the cracking, FENOC promptly notified the NRC Resident Inspector, placed the issue into the Corrective Action Program, and mobilized a team of experts to investigate.16 During this time, the NRC Staff inspected FENOCs activities related to the Shield Building cracking. As part of their inspection, the Staff asked questions and conducted teleconferences with FENOC.17 The Staff also had internal communications and discussions regarding the nature of the cracking during the course of the inspection.18 Upon evaluating FENOCs extent of condition and technical analysis of the Shield Building laminar cracking, the Staff concluded that FENOC provided reasonable assurance that the Shield Building is capable of performing its safety functions.19 On December 2, 2011, the Staff issued a Confirmatory Action Letter that documented FENOCs commitments to provide a Root Cause Evaluation to the NRC and to perform future examinations of the cracking.20 Following issuance of the Confirmatory Action Letter, Davis-Besse restarted on December 5, 2011.

14 Additional details on the background of the Shield Building laminar cracking are provided in FENOCs February 6, 2012 Answer opposing the Original Contention. See FENOCs Original Contention Answer at 4-7.

15 See Letter from R. Seeholzer, FirstEnergy, to the Investment Community, at 1 (Oct. 31, 2011) (Investment Community Letter) (provided as Attachment 1 to FENOCs Original Contention Answer); see also FENOC Presentation Slides, NRC Public Meeting, at 19 (Jan. 5, 2012) (January FENOC Slides) (provided as Attachment 2 to FENOCs Original Contention Answer).

16 January FENOC Slides at 20.

17 See FOIA Response Documents B/10, B/13, B/16, B/18, B/25, B/30. The FOIA Response Documents were provided as attachments to Intervenors Fifth Supplement.

18 See, e.g., FOIA Response Documents B/4, B/9, B/24, B/26, B/28.

19 See Letter from NRC to FENOC, Confirmatory Action Letter - Davis-Besse Nuclear Power Station at 1 (Dec.

2, 2011) (Confirmatory Action Letter) (provided as Attachment 4 to FENOCs Original Contention Answer).

20 Id. at 1-3.

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On January 10, 2012, Intervenors filed a motion for admission of the Original Contention 5 challenging various purported environmental and aging management issues associated with the newly-identified laminar cracking of the Davis-Besse Shield Building.21 Intervenors generally claimed therein that the cracking should be considered as an aging feature at Davis-Besse, which requires explicit plans for remediation and management.22 Both FENOC and the NRC Staff filed Answers to the Original Contention on February 6, 2012.23 FENOCs Answer to the Original Contention demonstrated that the Original Contention is untimely and does not satisfy the contention admissibility requirements of Section 2.309(f) and, therefore, should be rejected in its entirety.24 The Staffs Original Contention Answer similarly concluded that much of the Original Contention is inadmissible, but did not object to admission of a limited portion of the Original Contention, stating: 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.25 Intervenors filed a Combined Reply on February 13, 2012.26 The Parties subsequently filed pleadings related to FENOCs motion to strike portions of the Reply27 21 See generally Original Contention.

22 Id. at 2.

23 FENOCs Original Contention Answer; NRC Staffs Answer to Motion to Admit New Contention Regarding the Safety Implications of Newly Discovered Shield Building Cracking (Feb. 6, 2012) (Staffs Original Contention Answer).

24 See FENOCs Original Contention Answer at 1-3.

25 Staffs Original Contention Answer at 1-2, 16.

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

27 FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking (Feb. 23, 2012); Intervenors Answer to FENOC Motion to Strike (Feb. 27, 2012); NRC Staffs Answer to FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking (Mar. 5, 2012). This motion remains pending before the Board.

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and Intervenors First Supplement, which was based on a February 8, 2012 press release and a January 31, 2012 NRC Staff Inspection Report.28 In the interim, on February 29, 2012, FENOC notified the Board and Parties to this proceeding that it had submitted the Root Cause Evaluation for Shield Building laminar cracking to the NRC on February 27, 2012.29 The Root Cause Evaluation concludes that the direct cause of the laminar cracking is the integrated affect of moisture content, wind speed, temperature, and duration from the blizzard of 1978, and the root cause was a design specification for construction of the Shield Building (C-038) that did not specify application of an exterior sealant from moisture.30 Of note, the Root Cause Evaluation concludes that [t]here was no evidence of typical concrete time-dependent aging failure modes.31 Stated more simply, the Root Cause Evaluation conclusively demonstrates that the laminar cracking phenomenon is not the result of aging effects.32 On April 5, 2012, FENOC notified the Board33 of a letter it had submitted to the NRC to:

(1) respond to RAI B.2.39-13, which the NRC Staff issued to FENOC on December 27, 2011, related to the Shield Building laminar cracking (April RAI Response);34 and (2) revise the 28 See First Supplement; FENOCs Answer to First Supplement; NRC Staffs Answer to Intervenors Motion to Amend Motion for Admission of Contention No. 5 (Mar. 8, 2012). The First Supplement remains pending before the Board.

29 See Submittal of Shield Building Root Cause Evaluation (Feb 27, 2012) (Root Cause Evaluation) (submitted as an enclosure to Letter from T. Matthews, FENOC Counsel, to Board, Notification of Filing Related to Proposed Shield Building Cracking Contention (Feb. 29, 2012)).

30 Id. at 59.

31 Id. at 6.

32 See id. at 25 (There was no evidence of typical concrete time-dependent aging failure modes such as chemical attack including reinforcing steel corrosion, physical attack, chronic freeze/thaw, and vibration /fatigue.).

33 Letter from T. Matthews, FENOC Counsel, to the Board, Notification of Filing Related to Proposed Shield Building Cracking Contention (Apr. 5, 2012) (Board Notification for April RAI Response).

34 See Letter from D. Imlay, FENOC, to NRC, 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, Attachment L-12-028 (Apr. 5, 2012) (April RAI Response) (provided as an enclosure to the Board Notification for April RAI Response).

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Davis-Besse LRA to include, among other things, a new Shield Building AMP in LRA Section B.2.43.35 Of note, the April RAI Response reiterates the Root Cause Evaluations conclusion that there are no direct aging effects associated with the identified laminar cracks.36 Nonetheless, the April RAI Response explains that the Shield Building AMP is provided to periodically inspect the structure to confirm that there are no changes in the nature of the identified laminar cracks.37 It is important to recognize that the Shield Building AMP is a plant-specific prevention and condition monitoring program for Davis-Besse that supplements the existing Structures Monitoring AMP to ensure that the intended functions of the Shield Building are maintained during the period of extended operation.38 The Shield Building AMP consists of inspections of the Shield Building concrete and reinforcing steel to monitor the newly-identified laminar cracking, change of material properties, and loss of material.39 The Shield Building AMP also requires inspection of the Shield Building exterior concrete coatings for evidence of loss of effectiveness.40 The Shield Building AMP concludes: Implementation of the Shield Building Monitoring Program will provide reasonable assurance that the existing environmental 35 Amendment No. 25 to the DBNPS License Renewal Application, at 10-15 (Apr. 5, 2012) (Shield Building AMP) (provided as an enclosure to the April RAI Response). FENOC revised the Shield Building AMP on August 16, 2012 consistent with certain RAI responses regarding the Shield Building laminar cracking and license renewal. See Letter from D. Imlay, FENOC, to NRC, 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) Attachment L-12-284, Enclosure A at 5-12 (Aug. 16, 2012) (provided as an attachment to FENOCs Answer to Third and Fourth Supplement).

36 April RAI Response at 5.

37 Id.

38 Shield Building AMP at 10.

39 Id.

40 Id.

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conditions will not cause aging effects that could result in a loss of component intended function.41 Based on the new Shield Building AMP, FENOC filed an unopposed motion to supplement its Original Contention Answer.42 As explained in that motion, the new Shield Building AMP moots both: (1) the Original Contentions challenges to whether FENOC specifically addressed aging management of the newly-identified Shield Building laminar cracking; and (2) the alternative contention of omission postulated by the NRC Staff.43 The Board granted FENOCs motion to supplement FENOCs Original Contention Answer.44 On May 10, 2012, the NRC Staff notified the Board and Parties to this proceeding that it had issued an Inspection Report, dated May 7, 2012, that addressed inspection activities conducted subsequent to FENOCs identification of the Shield Building laminar cracks.45 The NRC Staff did not identify any findings or violations of significance.46 Thereafter, on May 17, 2012, FENOC notified the Board and Parties to this proceeding that it had submitted Revision 1 of the Root Cause Evaluation to the NRC on May 16, 2012.47 The Revised Root Cause Evaluation includes additional clarifying information in response to 41 Id. at 15.

42 FENOCs Unopposed Motion for Leave to Supplement Its Answer to the Proposed Shield Building Cracking Contention (Apr. 16, 2012) (FENOC Supplemental Answer).

43 Id. at 6-9.

44 Order (Granting FENOCs Unopposed Motion for Leave to Supplement Its Answer) at 3 (Apr. 17, 2012)

(unpublished). Neither Intervenors nor Staff responded to the motion to supplement.

45 Davis-Besse Nuclear Power Station Reactor Vessel Head Replacement and Shield Building Cracking Inspection Report 05000346/2012007 (DRS) (May 7, 2012) (May 2012 NRC Inspection Report) (provided as an enclosure to Letter from B. Harris, Staff Counsel, to Board (May 10, 2012)).

46 Id., Enclosure, at 1.

47 See Letter from B. Allen, FENOC, to C. Pederson, NRC, Submittal of Revision 1 of Shield Building Root Cause Evaluation, Enclosure (May 16, 2012) (Revised Root Cause Evaluation) (submitted as an enclosure to Letter from T. Matthews, FENOC Counsel, to Board, Notification of Filing Related to Proposed Shield Building Cracking Contention (May 17, 2012)).

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observations made during a recent NRC Staff inspection regarding the evaluation.48 The revisions did not invalidate the methodology, assessment and analysis, or conclusions of the evaluation.49 Intervenors subsequently filed their Second Supplement to Contention 5 on June 4, 2012.50 FENOC and the NRC Staff filed their Answers opposing the Second Supplement on June 29, 2012.51 Of note, the Staff also agreed that FENOCs new Shield Building AMP mooted the Staffs alternative contention of omission set forth in the Staffs Original Contention Answer.52 Intervenors then replied on July 6, 2012.53 On June 21, 2012, the NRC Staff issued another Inspection Report describing its review of FENOCs Root Cause Evaluation and the associated corrective actions.54 A team of NRC inspectors conducted the review over the course of a five-month period.55 Regarding causes, the June 2012 NRC Inspection Report states that FENOC established a sufficient basis for the causes of the shield building laminar cracking related to: the environmental factors associated 48 See id. at 5-7.

49 See id. at 5.

50 See Second Supplement.

51 See FENOCs Answer to Second Supplement; NRC Staffs Answer to Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking) (June 29, 2012) (Staffs Answer to Second Supplement).

52 See Staffs Answer to Second Supplement at 21-22.

53 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). Intervenors generally reply that their arguments are within the scope of this proceeding and they have adequately challenged FENOCs aging management plans. See id. at 3-9.

54 Inspection Report 05000346/2012009, 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 (June 21, 2012) (June 2012 NRC Inspection Report) (provided as Attachment 1 to FENOCs Answer to Second Supplement).

55 Id., Enclosure, at 1.

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with the 1978 blizzard, the lack of an exterior moisture barrier, and the structural design elements of the shield building.56 Intervenors filed their Third and Fourth Supplements on July 16, 2012, and July 23, 2012, respectively. FENOC and the NRC Staff filed their Answers opposing the Third and Fourth Supplements on August 17, 2012.57 Intervenors filed their Reply to these Answers on August 24, 2012.58 Meanwhile, on January 26, 2012, Intervenors submitted a FOIA request to the NRC related to the Davis-Besse Shield Building cracking.59 The NRC FOIA Office responded in part on June 14, 2012 (FOIA Response).60 Intervenors then filed their Fifth Supplement on August 16 and 17, 2012 in light of the FOIA Response.61 This Answer responds to that Supplement.

III. LEGAL STANDARDS As noted above, the NRC has recently revised the requirements in 10 C.F.R. Part 2 governing adjudicatory proceedings, and the revisions are effective as of September 4, 2012.62 In the corresponding rulemaking for the revisions, however, the Commission indicated that in ongoing adjudicatory proceedings, if there is a dispute over an adjudicatory obligation or situation arising prior to the effective date of the new rule, the former rule provisions would be used.63 Because the Fifth Supplement was filed on August 15, 2012, before the effective date 56 Id. at 1.

57 See FENOC Answer to Third and Fourth Supplements; NRC Staffs Answer to Intervenors Third and Fourth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (Aug. 17, 2012).

58 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) (Reply to Third and Fourth Supplements).

59 See Fifth Supplement at 1.

60 See id. at 4.

61 The Fifth Supplement focuses on documents disclosed in Appendix B of the FOIA Response. Id. at 7.

62 See Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. at 46,562 (stating that the effective date of the revisions is September 4, 2012).

63 Id.

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of the revisions, FENOC evaluates it according to the Part 2 requirements as they existed before the recent revisions.64 Part 2 references herein, therefore, refer to the regulations prior to the Part 2 revisions, unless otherwise indicated.

As discussed below, and as required by the ISO, Intervenors must satisfy the requirements in: (1) 10 C.F.R. §§ 2.309(f)(2) and (c) governing timeliness of late-filed contentions; and (2) 10 C.F.R. § 2.309(f)(1) to demonstrate contention admissibility. Failure to satisfy any of these requirements compels the rejection of the Fifth Supplement.65 A. Timeliness Pursuant to the Hearing Notice and 10 C.F.R. § 2.309(b)(3), the deadline for timely petitions to intervene in this proceeding expired on December 27, 2010, over a year and a half ago. Accordingly, the Fifth Supplement must satisfy 10 C.F.R. § 2.309(f)(2) and 10 C.F.R.

§ 2.309(c), which govern nontimely requests and/or petitions and contentions. Intervenors bear the burden of successfully addressing the stringent late-filing criteria.66 Under the Boards ISO,67 a new or amended contention must meet the requirements of 10 C.F.R. § 2.309(f)(2)(i) through (iii), which provide that a petitioner may submit a new or amended contention only with leave of the presiding officer upon a showing that:

(i) The information upon which the amended or new contention is based was not previously available; 64 FENOC believes this is consistent with the Boards recent Notice regarding the Part 2 revisions, which states that [t]hese new regulations take effect on September 4, 2012, and apply to obligations and disputes that arise after that date. Notice (Advising Parties of Amendments to 10 C.F.R. Part 2) at 1 (Aug. 22, 2012)

(unpublished) (quoting Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. at 46,562).

65 See, e.g., Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __, slip op. at 6-7 (June 7, 2012) (stating that contentions must meet the strict contention standards under 10 C.F.R.

§ 2.309(f), including the admissibility and timeliness standards); see also ISO at 12.

66 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009); see also Pilgrim, CLI-12-15, slip op. at 13 (At the threshold contention admission stage, the burden for providing support for a contention is on the petitioner.); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-11-02, 73 NRC __, slip op. at 5 & n.19 (Mar. 10, 2011).

67 See ISO at 12.

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(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.

The Board specified a finite period for determining timeliness. The ISO provides that 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.68 The ISO further states that if a motion and amended contention are filed after the 60 day time period, then they shall be deemed nontimely under 10 C.F.R.

§ 2.309(c).69 Section 2.309(c) sets forth an eight-factor balancing test for nontimely filings.70 The burden is on Intervenors to demonstrate that a balancing of these factors weighs in favor of granting the petition.71 The eight factors in Section 2.309(c)(1) are not of equal importance.

The first factor, whether good cause exists for the failure to file on time, is entitled to the most weight.72 68 Id. (emphasis added). This Board has strictly interpreted timeliness requirements that are based on information availability, as exhibited in its January 10, 2012 Order. See Memorandum and Order (Denying Motion to Dismiss Contention 1) at 3-7 (Jan. 10, 2012) (unpublished) (denying a Motion to Dismiss because it was submitted more than 10 days after the event triggering the motion).

69 ISO at 12.

70 These factors are: (i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestors/petitioners right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestors/petitioners interest; (v) The availability of other means whereby the requestors/petitioners interest will be protected; (vi) The extent to which the requestors/petitioners interests will be represented by existing parties; (vii) The extent to which the requestors/petitioners participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestors/petitioners participation may reasonably be expected to assist in developing a sound record. 10 C.F.R. § 2.309(c)(1).

71 Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Units 1 & 2), CLI-88-12, 28 NRC 605, 609 (1988).

72 Pilgrim, CLI-12-15, slip op. at 25 n.96 (The standard for new or amended contentions involves a balancing of eight factors set forth in 10 C.F.R. § 2.309. The factor given the most weight is whether there is good cause 12

B. Contention Admissibility Separate and apart from satisfying the late-filing criteria set forth above, a newly-proposed contention also must meet the fundamental admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1)(i) to (vi) applicable to all contentions.73 Specifically, under 10 C.F.R.

§ 2.309(f)(1), Intervenors must set forth with particularity the contentions sought to be raised.

The regulation specifies that each contention must:

(1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.74 As the Commission recently explained in several proceedings, including this one, failure to comply with any one of the six admissibility criteria is grounds for rejection.75 The Commission explained that its strict contention rule is designed to avoid resource-intensive for the failure to file on time.); see also Dominion Nuclear Conn., Inc. (Millstone Power Station, Unit 3),

CLI-09-5, 69 NRC 115, 125-26 (2009).

73 See Pilgrim, CLI-12-15, slip op. at 6-7 (explaining that late-filed contentions must meet the standards under 10 C.F.R. § 2.309(f), including the admissibility factors in Section 2.309(f)(1) and the timeliness factors in Section 2.309(f)(2)). These requirements are discussed in detail in FENOCs January 21, 2011 answer opposing Intervenors petition to intervene.

74 10 C.F.R. § 2.309(f)(1)(i)-(vi).

75 See, e.g., Davis-Besse, CLI-12-08, slip op. at 3 (stating that proposed contentions must satisfy all six of the

[admissibility] requirements); see also Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004).

13

hearings where petitioners have not provided sufficient support for their technical claims, and do not demonstrate a potential to meaningfully participate and inform a hearing.76 The NRC revised the admissibility rules in 1989 to prevent the admission of poorly defined or supported contentions, or those based on little more than speculation.77 The Commission further explained that it properly reserve[s] our hearing process for genuine, material controversies between knowledgeable litigants.78 IV. THE FIFTH SUPPLEMENT SHOULD BE REJECTED The Fifth Supplement fails to satisfy the timeliness and contention admissibility requirements set forth in 10 C.F.R. Part 2. In particular, the Fifth Supplement does not provide any new information that is materially different from previously-available information, presents arguments that are outside the scope of this proceeding, is not adequately supported, and fails to raise a genuine dispute with the Davis-Besse LRA. For all of these reasons, the Fifth Supplement should be rejected by the Board.

A. The Fifth Supplement Should Be Rejected as Untimely

1. The Fifth Supplement Is Untimely Pursuant to 10 C.F.R. § 2.309(f)(2)

As acknowledged by Intervenors, the Fifth Supplement is subject to the timeliness requirements of 10 C.F.R. § 2.309(f)(2).79 Section 2.309(f)(2) requires that an amended contention be based on previously unavailable and materially-different information.80 Further, 76 Davis-Besse, CLI-12-08, slip op. at 31; Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001) (explaining that the Commissions rules on contention admissibility are strict by design).

77 Davis-Besse, CLI-12-08, slip op. at 3-4 (citations omitted) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

78 Davis-Besse, CLI-12-08, slip op. at 4 (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).

79 See Fifth Supplement at 95-97.

80 See, e.g., Crow Butte Res., Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241, 255-60 (2008)

(considering the timeliness of individual documents under 10 C.F.R. §§ 2.309(c) and (f)(2) to determine whether the documents should be considered with respect to admissibility of a proposed contention), affd in 14

the ISO requires a supplement to be filed within sixty (60) days of the date when the material information on which it is based first becomes available in order to satisfy Section 2.309(f)(2)(iii).81 As the Board explained in its January 10, 2012 Order, these regulatory requirements are strict by design and must be applied rigorously.82 Intervenors filed the Fifth Supplement on August 16-17, 2012.83 Therefore, only arguments based on materially different information that first became available within 60 days before August 17, 2012 (i.e., on or after June 18, 2012), are timely under Section 2.309(f)(2).

Intervenors bear the burden of showing that the Fifth Supplement is timely.84 The FOIA Response was postmarked June 14, 2012.85 Intervenors state that they received the FOIA response some days later, but do not identify the specific date on which they received the information.86 Instead, they cite 10 C.F.R. § 2.306(b)(1) for the proposition that they had three additional days (beyond the initial 60 days) to file their motion.87 Accordingly, Intervenors appear to contend that they had 63 days after June 14, 2012 in which to file their motion (i.e.,

until August 16, 2012). Thus, even by Intervenors own standard, a portion of the Fifth Supplement was filed late (on August 17, 2012).

relevant part, CLI-09-12, 69 NRC 535, 549 (2009) (stating that the Commission agrees that a late-filed document that allegedly supports or provides a basis for a proposed contention should be considered under [10 C.F.R. §§ 2.309(c) and (f)(2)]).

81 ISO at 12.

82 Memorandum and Order (Denying Motion to Dismiss Contention 1) at 5 (citation omitted) (emphasis added).

83 Intervenors filed several pieces of the Fifth Supplement on August 16 and Appendices V-IX on August 17.

84 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009); see also Pilgrim, CLI-12-15, slip op. at 13 (At the threshold contention admission stage, the burden for providing support for a contention is on the petitioner.); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-11-02, 73 NRC __, slip op. at 5 & n.19 (Mar. 10, 2011).

85 Fifth Supplement at 5, Appendix I.

86 See id. at 4.

87 Id.

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Moreover, Intervenors reliance on Section 2.306(b)(1) is misplaced, as it does not apply to the FOIA Response, but rather applies to service of adjudicatory filings.88 Specifically, Section 2.306(b)(1) applies only to a notice or document . . . served upon a participant. The FOIA Response was not required to be served on Intervenors in accordance with the Part 2 requirements for adjudicatory proceedings.89 FOIA requests are governed by 10 C.F.R. Part 9, not 10 C.F.R. Part 2. Because Intervenors rely upon Section 2.306(b)(1) for timeliness of the Fifth Supplement, and Section 2.306(b)(1) does not apply, the Fifth Supplement was filed late, and should be rejected.

Additionally, the publication of a new document, standing alone, does not meet the requirements of 10 C.F.R. § 2.309(f)(2) unless the information in that document is new and materially-different from previously available information.90 As demonstrated below, much of the information in the Fifth Supplement is well over 60 days old, and none of it is materially different than that previously available to Intervenors.91 88 See Use of Electronic Submission in Agency Hearings, 72 Fed. Reg. 49139, 49140 (Aug. 28, 2007) (Filing and service involve the transfer of a document from one participant to the presiding officer, the other participants in the proceeding, and the Secretary of the Commission for inclusion in the official proceeding docket.).

89 Any claim of confusion over the service of the FOIA Response would be unjustified. The Hearing Notice stated that [a]ll documents filed in NRC adjudicatory proceedings . . . must be filed in accordance with the NRC E-Filing rule. . . . Participants may not submit paper copies of their filings unless they seek an exemption

. . . . Hearing Notice, 75 Fed. Reg. at 65,529-530. The FOIA Response was not submitted through the E-Filing process, and could not be misinterpreted as a filing that was served in this proceeding.

90 See, e.g., Vt. Yankee, CLI-11-02, slip op. at 13; see also N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 493-96 (2010).

91 One of the most significant changes in the recent Part 2 revisions, discussed above, is to move the timeliness requirements for new and amended contentions from 10 C.F.R. § 2.309(f)(2) and consolidate them with the requirements in 10 C.F.R. § 2.309(c)(1) for nontimely filings. Specifically, the Part 2 revisions remove the eight-factor balancing test for nontimely filings, and specify that new and amended contentions now will only be entertained if the presiding officer determines that the movant has demonstrated good cause based on three factors. These three factors are identical to the three factors in former Section 2.309(f)(2). See Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. at 46,571-572, 46,591-592. Therefore, the evaluation of the Section 2.309(f)(2) factors discussed in this Answer to the Fifth Supplement would equally apply to an evaluation of good cause under the Part 2 revisions. For the same reasons demonstrated herein, Intervenors have not shown good cause for the Fifth Supplement under the Part 2 revisions.

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a. Much of the Information Relied upon by Intervenors Is more than 60 Days Old Many of Intervenors arguments in the Fifth Supplement are untimely pursuant to 10 C.F.R. § 2.309(f)(2)(i) and (iii), as they are based on information pre-dating June 18, 2012.

Intervenors incorrectly calculate the timeliness of the Fifth Supplement based entirely on the timing of the FOIA Response, even though many of their arguments are based on earlier information. A document that merely summarizes earlier documents or compiles pre-existing, publicly-available information into a single source does not render the information new.92 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.93 As described in Section II above, a significant amount of detailed information regarding the NRCs inspection of the Shield Building cracking, the NRCs authorization of Davis-Besses restart, and the root cause of the cracking was available from sources other than the FOIA Response more than 60 days before Intervenors filed the Fifth Supplement on August 16, 2012. Many of the FOIA Response documents relied upon by Intervenors in the Fifth Supplement merely collect, summarize, or place into context this previously-available information. For example:

Document B/4 is cited in the Fifth Supplement to show that the Staff, FENOC, and certain industry experts initially thought hydro-blasting may have caused the Shield Building sub-surface laminar cracking.94 This information, however, has been available to Intervenors for well over 60 days.95 92 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-11-02, 73 NRC __, slip op. at 13 (Mar. 10, 2011).

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

94 Fifth Supplement at 11.

95 See, e.g., Davis-Besse Shield Building Investigation and Technical Summary at 8 (Nov. 17, 2011) (Although the condition was initially suspected to be caused by the hydro-demolition process adjacent flute shoulders were interrogated using IR testing . . . .) (posted in ADAMS on Mar. 29, 2012), available at ADAMS Accession No. ML12069A208.

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Intervenors make much of Document B/25s reference to three types of cracking,96 but these crack types are all identified in FENOCs Revised Root Cause Evaluation, which has been publicly-available since its issuance in May 2012.97

Intervenors arguments regarding alleged errors in a press release are based on information that has been available since the press release was issued on December 2, 2011.98

Intervenors admit that Document B/38 merely compiles media coverage garnered by NRC Region 3s press release.99 The articles in the email are all dated December 2, 2011.

Document B/40 is a one sentence question asking a Staff member to forward draft RAIs to another Staff member to be finalized. Intervenors appear to contend that this document reveals that the NRC had not yet issued all RAIs related to the Shield Building prior to issuance of the Confirmatory Action Letter.100 Those RAIs, however, have been publicly available for well over 60 days.101 Indeed, Intervenors Second Supplement is based in part on FENOCs response to those RAIs.

Intervenors arguments include citations to publicly available documents related to containment liner corrosion from 2010, and a Calculation of Reactor Accident Consequences report published in 1982.102

Intervenors provide a discussion of draft RAIs in Document B/45,103 but FENOCs response to these RAIs has been available since April 2012, including the wording of the RAIs.104

Intervenors rely on an internal email for the proposition that the NRC initially supported Contention 5 as a contention of omission.105 This was clearly evident, however, from the Staffs Original Contention Answer filed on February 6, 2012.

Thus, many of Intervenors arguments, including those listed above, are untimely under 10 C.F.R. § 2.309(f)(2)(i) and (iii) because they are based on information that was publicly available 96 Fifth Supplement at 29.

97 See Revised Root Cause Report at 9, 46, 49, 59.

98 See Fifth Supplement at 56-57.

99 Id. at 58.

100 Id. at 59-60.

101 See, e.g., April RAI Response.

102 See Fifth Supplement at 67-68.

103 Id. at 70-71.

104 See April RAI Response.

105 Fifth Supplement at 79.

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well before June 18, 2012. All of the Intervenors arguments related to previously-available information should be rejected by the Board.

b. None of the Information in the FOIA Response Is Materially Different from Previously Available Information Intervenors argue that the information on which the Fifth Supplement is based is materially different than information previously available because it relates to findings and provides facts which did not exist when Intervenors moved for admission of Contention 5 in January 2012.106 Intervenors, however, fail to identify any materially different findings and facts in the FOIA Response Documents. Instead, they contend that the Fifth Supplement is timely because it was filed within 60 days of the FOIA Response, and then in the bulk of the Fifth Supplement draw inferences about the motivation behind certain NRC Staff actions, and make conclusions based on internal NRC Staff questions and discussions. This is insufficient to demonstrate that the information in the FOIA Response is materially different from previously available information.

For information to be considered new and materially different, it must be reasonably apparent how that information supports the proposed contention.107 It is not reasonably apparent how any of the information in the FOIA Response supports the Fifth Supplement or the Original Contention. For example, Document B/37 consists of a copy of an e-mail from a member of the NRC Staff transmitting a press release that has been publicly available since December 2, 2011, and a reply from another NRC Staff member stating: FYI: NRC Press Release on Davis-Besse shield building. I think they did a nice job crafting it. I especially like that they addressed fully documenting the decision. Have a great weekend!108 It is in no way 106 Id. at 97.

107 See Prairie Island, CLI-10-27, 72 NRC at 493-94.

108 FOIA Response Document B/37 at 1.

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reasonably apparent how this new information in Document B/37 supports the Intervenors Fifth Supplement. Intervenors do not attempt to explain how this information is materially different from previously-available information, stating only that the email is concluded most ironically because it says, Have a great weekend!109 Likewise, it is far from reasonably apparent how information showing that a conference room was reserved for the rest of the day provides any meaningful information whatsoever, much less support for the Fifth Supplement or the Original Contention.110 Additionally, most of the FOIA Response documents consist of internal NRC questions and observations made during the Staffs inspection of the Shield Building cracking.111 These documents contain preliminary discussions among Staff rather than findings or conclusions. Thus, again, it is not reasonably apparent how these documents advance Intervenors Fifth Supplement or Original Contention.

Accordingly, the FOIA Response documents relied upon by Intervenors are not new and materially different from previously-available information.

2. The Fifth Supplement Fails to Meet the 10 C.F.R. § 2.309(c)(1) Non-Timely Filing Requirements Nontimely arguments must satisfy the late-filing criteria in Section 2.309(c)(1)(i)-

(viii).112 Yet again, however, Intervenors fail to address the requirements of Section 2.309(c).113 This failure to address the requirements of Section 2.309(c) is alone a sufficient basis to reject 109 See Fifth Supplement at 56.

110 See id. at 21-22 (discussing FOIA Response Document B/21).

111 See, e.g., FOIA Response Documents B/4, B/9, B/10, B/13, B/16, B/18, B/24, B/25, B/26, B/28, B/30.

112 See supra Section III.A; see also ISO at 12; 10 C.F.R. § 2.309(c)(2) (The requestor/petitioner shall address the factors in paragraphs (c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.).

113 In FENOCs answers to the Shield Building related contentions alone, it has previously pointed out Intervenors obligation to address the 2.309(c)(1) criteria no less than three times. See FENOCs Original Contention Answer at 17; FENOCs Answer to Second Supplement at 18; FENOCs Answer to Third and Fourth Supplements at 19.

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the late arguments, as the Commission has affirmed rejection of late-filed contentions for failure to address late-filing criteria.114 Nonetheless, even if the Section 2.309(c)(1) factors are considered, the late arguments should be dismissed as untimely by the Board. Intervenors have not demonstrated the necessary good cause under 10 C.F.R. § 2.309(c)(1)(i) for filing these arguments late. To show good cause, Intervenors must show that they raised these arguments in a timely manner, following the availability of new information.115 The Commission has explained that to demonstrate good cause, a petitioner must show not only that it acted promptly after learning of the new information, but the information itself must be new information, not information already in the public domain.116 For the same reasons that Intervenors have not satisfied the timeliness requirements in 10 C.F.R. § 2.309(f)(2), discussed above, they have not demonstrated good cause under 10 C.F.R. § 2.309(c)(1)(i).117 Additionally, some of the documents relied upon by Intervenors in support of the Fifth Supplement were previously relied upon in the Fourth Supplement.118 114 See, e.g., Millstone, CLI-09-5, 69 NRC at 126 (The Board correctly found that failure to address the requirements [of 10 C.F.R. §§ 2.309(c) and (f)(2)] was reason enough to reject the proposed new contentions.); Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 347 & n.9 (1998) (Indeed, the Commission has itself summarily dismissed petitioners who failed to address the . . . factors for a late-filed petition.).

115 See Exelon Generation Co. (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 162-63 (2005)

(finding that the requirements for a good cause showing under 10 C.F.R. § 2.309(c)(1)(i) are analogous to the requirements of Sections 2.309(f)(2)(i) (information not previously available) and (f)(2)(iii) (submitted in a timely fashion)), review denied, CLI-05-29, 62 NRC 801 (2005), affd sub nom. Envtl. Law & Policy Ctr. v.

NRC, 470 F.3d 676 (2006).

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

(emphasis added).

117 See Clinton ESP, LBP-05-19, 62 NRC at 162-63.

118 Compare Fifth Supplement at 12-14, 22-27, 39-42 (discussing FOIA Response Documents B/9, B/22, and B/26) with Fourth Supplement at 9, 21-24, 36 (discussing FOIA Response Documents B/9, B/22, and B/26).

Additionally, with respect to Document B/26, Intervenors claimed in their Reply to FENOCs Answer to Third and Fourth Supplements that FENOC makes a judicial admission that the Nuclear Regulatory Commission violated its own enforcement protocols in the heated rush to restore [Davis-Besse]. Reply to Third and Fourth Supplements at 16. Intervenors point to a statement made in FENOCs Answer to Third and Fourth Supplements, which stated: The Revised Root Cause Evaluation demonstrates that the final versions of 21

Good cause for a nontimely supplemented contention cannot be shown when it relies on the same support as an earlier argument.119 Further, Intervenors have made no compelling showing as to the remaining factors to outweigh the lack of good cause.120 The late arguments, if included as part of an admitted contention, would broaden the scope of (or delay) the current proceeding (factor seven) by raising additional challenges on Shield Building cracking. Intervenors provide no indication that their participation on this technical issue would contribute to the development of a sound record (factor eight). The content of their multiple Supplements demonstrates their lack of familiarity with the fundamental subject matter of the contention. Contrary to the Commissions requirements, Intervenors have not specified the precise issues they plan to contest, have not identified any prospective witness, and have not summarized their proposed Calculations C-CSS-099.20-054 [vertical reinforcement] and -056 [hoop reinforcement] were approved on December 1, 2011 and December 5, 2011, respectively, which is after the interactions with the Staff on the Calculations. Id. at 17. Intervenors understanding of this statement is wrong. To be clear, this quoted sentence addressed the fact that the calculations were revised after the interactions with the NRC Staff that were challenged by Intervenors, and the revisions that are referenced in the Revised Root Cause Evaluation were approved by FENOC (i.e., the revisions were dated) on December 1 and December 5, 2011. This sentence does not refer to the timing of the NRC Staffs review of the calculations. This is clear from the citation in FENOCs Answer, which points to the Revised Root Cause Evaluations list of references, and does not point to any discussion of the NRC Staffs approval of the calculations. See FENOCs Answer to Third and Fourth Supplements at 63 n.262. Intervenors argument here provides yet one more example of its focus on issues outside the scope of license renewal, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

119 See Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI 8, 67 NRC 193, 200-01 (2008) (finding that the intervenor did not satisfy the good cause factor for a late-filed contention because the late-filed contention was very similar to an earlier contention and relied on nearly identical support), affd sub nom., San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109 (9th Cir. 2011).

120 Pilgrim, CLI-12-15, slip op. at 26 n.96 (A failure to demonstrate good cause for a late-filed contention requires a compelling showing on the remaining factors.); see also Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 244 (1986).

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testimony.121 Accordingly, a balancing of the factors under 10 C.F.R. § 2.309(c)(1) demands rejection of the late arguments.122 In summary, the Board should not consider the untimely information or corresponding arguments proffered by Intervenors in the Fifth Supplement. Furthermore, as discussed below, none of the arguments in the Fifth Supplement, whether timely or untimely, supports admission of this proposed contention due to a variety of fatal flaws.

B. The Fifth Supplement Is Outside the Scope of this Proceeding The Fifth Supplement is outside the scope of this proceeding for the reasons explained below, contrary to 10 C.F.R. § 2.309(f)(1)(iii), and should be rejected for this reason alone.

1. Intervenors Arguments Regarding Davis-Besses Current Licensing Basis Are Outside the Scope of this Proceeding Much of the Fifth Supplement consists of arguments related to Davis-Besses current licensing basis.123 Indeed, the stated purpose of the Fifth Supplement is to itemize the divergences and issues of fact between the proposed license action and the true status of the Davis-Besse shield building in light of the NRCs FOIA response.124 Yet as FENOC has repeatedly pointed out, the current status of the Davis-Besse Shield Building, and regulatory actions specific to current operations, are outside the scope of this proceeding. The Commission 121 See Braidwood, CLI-86-8, 23 NRC at 246 (When a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony. (quoting Miss. Power & Light Co. (Grand Gulf Nuclear Station, Units 1

& 2), ALAB-704, 16 NRC 1725, 1730 (1982))).

122 The other factors in 10 C.F.R. § 2.309(c)(1) are less important and do not outweigh Intervenors failure to demonstrate good cause or meet factors seven and eight. See, e.g., Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-1, 67 NRC 1, 8 (2008); Tex. Utils. Elec. Co.

(Comanche Peak Steam Elec. Station, Unit 2), CLI-93-4, 37 NRC 156, 165 (1993). Factors two through four speak towards standing; therefore, their applicability is limited here because Intervenors are already parties to this proceeding and are seeking admission of nontimely contentions, rather than nontimely intervention.

Factors five (availability of other means) and six (interests represented by other parties) are entitled to the least weight. See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-00-8, 51 NRC 146, 154 (2000) (citing Braidwood, CLI-86-8, 23 NRC at 244-45).

123 See Fifth Supplement at 7-14, 22-28, 39-42, 52-58, 66-69, 86-91 (discussing FOIA Response Documents B/1, B/2, B/4, B/9, B/22, B/23, B/24, B/26, B/36, B/38, B/44, and B/53).

124 Id. at 3-4.

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has specifically limited its license renewal safety review to the matters specified in 10 C.F.R.

§§ 54.21 and 54.29, which focus on the management of aging of certain systems, structures, and components during the period of extended operation, and the review of time-limited aging analyses.125 Intervenors arguments related to Davis-Besses current licensing basis (that are thus outside the scope of this proceeding) include, for example, those based on Document B/22, which discusses the distinction between operability and functionality.126 Document B/22 is clearly related to current Davis-Besse operations as opposed to license renewal. In fact, Document B/22 states that the operability determination is tied to the Tech Specs for Davis-Besse while functionality is tied to the Current Licensing Basis. Accordingly, this document is out of the scope of this proceeding. Likewise, Intervenors concerns about FENOCs planned 2014 Davis-Besse steam generator replacement (prior to the period of extended operation) are related to the current licensing basis and outside the scope of this proceeding.127 As another example, Intervenors also question the NRCs ultimate approval of the Davis-Besse restart,128 emphasizing certain internal NRC Staff communications that they contend evidence NRCs rush to authorize the restart.129 The NRCs license renewal framework is premised upon the notion that, with the exception of aging management issues, the NRCs ongoing regulatory process is adequate to ensure that the current licensing basis of operating plants provides and maintains an acceptable level of safety.130 Thus, the decision to restart 125 See Turkey Point, CLI-01-17, 54 NRC at 7-8; Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2),

CLI-02-26, 56 NRC 358, 363 (2002).

126 See Fifth Supplement at 22.

127 See id. at 11-12.

128 Id. at 17, 48-52.

129 See, e.g., id. at 42, 46, 50, 51, 53-54.

130 See Final Rule, Nuclear Power Plant License Renewal; Revisions, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991). The term current licensing basis is defined in 10 C.F.R. § 54.3. See also 10 C.F.R. §§ 54.29, 54.30.

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Davis-Besse under its current licensing basis, and the timing of that decision, are both outside the scope of this proceeding.

2. Attacks on FENOCs Integrity and Safety Culture Are Outside the Scope of this Proceeding Intervenors accuse FENOC and the NRC Staff of collusion related to the timing of a public meeting on the Shield Building cracking,131 and the timing of the Davis-Besse restart.132 Intervenors also allege that FENOC prioritizes profits over safety,133 and pressured the NRC Staff to sign off on a rush to restart.134 These types of challenges regarding a companys integrity and safety culture are outside the scope of license renewal, as demonstrated by the Commission rejecting similar challenges in the Prairie Island and Diablo Canyon license renewal proceedings.

In Prairie Island, the Commission reversed admission of a contention challenging an applicants safety culture to ensure effective aging management during the period of extended operation based on historical performance.135 In agreeing with the applicant and the NRC Staff that the contention would bring operational issues that are already addressed by existing NRC regulatory processes within license renewal proceedings, the Commission stated:

We stated unambiguously in our License Renewal Rule that license renewal should not include a new, broad-scoped inquiry into compliance that is separate from and parallel to [our] ongoing compliance oversight activity. We specifically indicated that other broad-based issues akin to safety culture - such as operational history, quality assurance, quality control, management competence, and human factors - were beyond the bounds of a license renewal proceeding. This is because these conceptual issues fall outside the bounds of the passive, safety-related physical 131 Fifth Supplement at 19, 20 (discussing FOIA Response Documents B/18 and B/19).

132 Id. at 47 (discussing FOIA Response Document B/31).

133 Id. at 48-49 (discussing FOIA Response Document B/32).

134 Id. at 16 (discussing FOIA Response Document B/15).

135 Prairie Island, CLI-10-27, slip op. at 1-2.

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systems, structures and components that form the scope of our license renewal review.136 In Diablo Canyon, the Commission reversed admission of a contention on similar issues regarding whether past actions demonstrate whether aging management will be adequately managed during the period of extended operation.137 The Commission reversed the admission of the contention for reasons similar to those in Prairie Island, concluding that [c]laims of management competence generally relate to current operations and are beyond the scope of a license renewal proceeding.138 The same holds true in the context of this license renewal proceeding. Similarly, Intervenors attacks on FENOC, such as claims of collusion between FENOC and the NRC regarding current operations or allegations that FENOC prioritizes profits over safety, are outside the scope of this license renewal proceeding and should be rejected.

3. Challenges to NRC Review/Licensing Process Are Outside the Scope of this Proceeding Intervenors further raise issues related to the NRCs review and licensing process that are outside the scope of this license renewal proceeding.139 For example, instead of contesting the aging management of the Davis-Besse Shield Building, Intervenors focus on judging the NRCs performance during assessment of the Shield Building cracking. Intervenors point to differences between the NRC Staffs initial and final conclusions regarding the nature of the cracking,140 and question the time period for public notification.141 The quality of the NRC Staff oversight of the investigation into the Shield Building cracking, however, is outside the scope of this proceeding.

136 Id. at 10-11 (citations omitted).

137 See Diablo Canyon, CLI-11-11, slip op. at 4-13.

138 Id. at 9-11.

139 See Fifth Supplement at 10, 14-19, 21-39, 42-66, 69-86 (discussing FOIA Response Documents B/3, B/10, B/13, B/16, B/21, B/22, B/23, B/25, B/27, B/28, B/29, B/30, B/31, B/32, B/33, B/34, B/35, B/36, B/37, B/39, B/40, B/41, B/42, B/43, B/45, B/46, B/48, B/49, B/50, B/51, and B/52).

140 Id. at 10, 11.

141 Id. at 10.

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The potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs define the scope of the safety review in license renewal proceedings.142 In other words, the NRCs license renewal regulations deliberately and sensibly reflect the distinction between aging management issues, on the one hand, and the ongoing regulatory process on the other.143 Intervenors continue to ignore this fundamental distinction.

In rejecting requests to alter the license renewal process, the Commission has explained that [t]he purpose and scope of a licensing proceeding is to allow interested persons the right to challenge the sufficiency of the application. The NRC has not, and will not, litigate claims about the adequacy of the Staffs safety review in licensing adjudications.144 It is well established that contentions concerning the adequacy of the Staffs review of a license application (as distinguished from the application itself) are inadmissible in licensing hearings.145 The Commission also has stated that [a]s a general matter, the Commissions licensing boards and presiding officers have no authority to direct the Staff in the performance of its safety reviews.146 Intervenors challenges regarding the NRCs performance during assessment of the 142 Turkey Point, CLI-01-17, 54 NRC at 7. Detrimental aging effects can result from, for example, metal fatigue, erosion, corrosion, thermal and radiation embrittlement, microbiologically induced effects, creep, and shrinkage. See id. at 7-8.

143 Specifically, in developing 10 C.F.R. Part 54, the NRC sought to develop a process that would be both efficient, avoiding duplicative assessments where possible, and effective, allowing the NRC Staff to focus its resources on the most significant safety concerns at issue during the renewal term. Id. at 7.

144 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 (2008);

see also Final Rule, Changes to the Adjudicatory Process, 69 Fed. Reg. at 2202; Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 170-71 (2000) (rejecting a contention regarding the performance of the NRC Staff in overseeing the plant).

145 Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed.

Reg. 33,168, 33,171 (Aug. 11, 1989) (With the exception of NEPA issues, the sole focus of the hearing is on whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC staff performance.); see also Curators of the Univ. of Mo., CLI-95-8, 41 NRC 386, 396 (1995) ([I]n adjudications, the issue for decision is not whether the Staff performed well, but whether the license application raises health and safety concerns.); see also Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 121-22, 121 n.67 (1995)

(citing reactor cases in which this principle has been applied).

146 Curators of the Univ. of Mo., CLI-95-1, 41 NRC 121; see also Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-5, 37 NRC 168, 170 (1993); Northeast Nuclear Energy Co. (Montagne Nuclear Power Station), LBP-75-19, 1 NRC 436, 437 (1975).

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Shield Building cracking, or other attacks on NRC process, present the types of impermissible challenges that have been rejected by the Commission.

C. The Fifth Supplement Is Not Adequately Supported The entirety of the Fifth Supplement lacks adequate support, contrary to 10 C.F.R.

§ 2.309(f)(1)(v). Section 2.309(f)(1)(v) requires a contention to [p]rovide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue. Like its predecessors, the Fifth Supplement contains neither a concise statement of alleged facts nor any expert opinions.

Additionally, Intervenors do not provide any documentary support for the Fifth Supplement, but instead rely solely on assertions and mere speculation about the meaning of internal NRC Staff communications and documentation. These FOIA Response documents represent internal deliberations by the NRC regarding the Shield Building cracking phenomenon, and do not provide adequate support for an admissible contention. The May 2012 NRC Inspection Report, on the other hand, provides the Staffs conclusion that FENOC provided reasonable assurance that the Shield Building is capable of performing its safety functions, and documents its lack of adverse findings.147 Moreover, all of Intervenors arguments are based on mere assertion and speculation.

For example, Intervenors posit that a grammatical error in a press release may be a reflection of the speed at which the restart approval was granted, and all outstanding questions and concerns were silenced.148 Even assuming that this argument is within the scope of this 147 See May 2012 NRC Inspection Report, Cover Letter.

148 Fifth Supplement at 53.

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proceeding (which it is not for the reasons discussed in Section IV.B above), it consists solely of speculation. Likewise, contending that the NRC Staff was still trying to formulate a justification for the Davis-Besse restart because it was preparing slides on the topic is nothing but pure speculation.149 Intervenors make only three brief assertions regarding the Shield Building AMP: (1) there is a serious incongruity between the cracking problems as defined by FENOC, and the proposed remedy, exemplified by the AMP;150 (2) the AMP includes only infrequent and irregular reviews of the basis for continued operation;151 and (3) the AMP is woefully inadequate.152 Intervenors do not provide adequate support for any of these assertions.

First, Intervenors contend that there is a serious incongruity between the cracking problems as defined by FENOC, and the proposed remedy, exemplified by the AMP and cite the FOIA Response for the propositions that: (1) the scope of the admitted cracking is narrower than identified cracking; and (2) the potential for further aging-related concrete and rebar problems in the Shield Building may include the loss of up to 90% of the Shield Building walls.153 The FOIA Response documents, however, do not provide adequate support for these propositions.

Intervenors appear to rely on the statement, One flute area did have a vertical crack, but determined to be isolated condition, in a presentation slide for the proposition that there is an additional form of cracking in the Shield Building.154 This is a far cry from adequate support for the proposition that the scope of the admitted cracking is narrower than the 149 See id. at 59.

150 See id. at 4.

151 See id. at 24, 34.

152 See id. at 64.

153 See id. at 4.

154 See Id. at 60; FOIA Response Document No. B/41.

29

identified cracking, much less the argument that there is an incongruity between the cracking and the Shield Building AMP.

Likewise, the only support provided by Intervenors for the proposition that the Shield Building may lose up to 90% of the concrete in its walls is an internal email from a member of the NRC Staff that states: If this assumption [for a certain calculation] is correct only 3-4 inches of the concrete on the inside face can be used in the structural analysis.155 Again, this is not adequate support for Intervenors argument that there is incongruity between the cracking problems and the Shield Building AMP, or even the proposition that 90% of the Shield Building may fail due to age-related degradation. Intervenors are inappropriately relying upon NRC Staff internal deliberations and observations regarding the Shield Building cracking as support for admission of the Fifth Supplement. These informal questions and observations are akin to NRC RAIs. It is a long-standing NRC adjudicatory principle that RAIs are a common and expected feature of the licensing review process and do not alone form the basis for admissible contentions.156 The second argument Intervenors make about the Shield Building AMP is that it includes only infrequent and irregular reviews of the basis for continued operation.157 Intervenors provide no support whatsoever for the proposition that the frequency of reviews under the Shield Building AMP is insufficient. Finally, Intervenors assert that the Shield 155 See Fifth Supplement at 39-40; FOIA Response Document No. B/26.

156 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 242 (2008) (The mere issuance of RAIs does not mean an application is incomplete for docketing.); Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), CLI-06-6, 63 NRC 161, 164 (2006) ([W]e have held repeatedly that the mere issuance of a staff RAI does not establish grounds for a litigable contention.);

Oconee, CLI-99-11, 49 NRC at 336-37 (stating that RAIs are a standard part of NRC licensing reviews and do not suggest that the application is incomplete, and that petitioners must do more than rest on the mere existence of RAIs as a basis for contentions).

157 See Fifth Supplement at 24, 34.

30

Building AMP is woefully inadequate.158 Intervenors likewise provide no support for this statement.

In summary, Intervenors have not provided the support required by 10 C.F.R.

§ 2.309(f)(1)(v). The Commission has stated that a contention will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation.159 Given the lack of expert or other documentary support, the Fifth Supplement boils down to bare assertions and speculation. For this reason alone, the Fifth Supplement should be dismissed by the Board.

D. The Fifth Supplement Does Not Raise a Genuine Dispute with the Davis-Besse LRA The arguments in the Fifth Supplement do not demonstrate a genuine dispute with the LRA, contrary to 10 C.F.R. § 2.309(f)(1)(vi). To raise a genuine dispute admissible under Section 2.309(f)(1)(vi), a petitioner must read the pertinent portions of the license application, . . . state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant.160 If a petitioner believes the license application fails to adequately address a relevant issue, then the petitioner is to explain why the application is deficient.161 A contention that does not directly controvert a position taken by the applicant in the applicationsuch as the Fifth Supplementis subject to dismissal.162 Section 158 See id. at 64.

159 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195, 203 (2003); see also Pilgrim, CLI-12-15, slip op. at 13 (Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding. (quoting AmerGen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008))).

160 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed.

Reg. 33,168, 33,170 (Aug. 11, 1989); see also Millstone, CLI-01-24, 54 NRC at 358.

161 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed.

Reg. at 33,170; see also Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2 & 3),

CLI-91-12, 34 NRC 149, 155-56 (1991).

162 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010).

31

2.309(f)(1)(vi) also requires that a proposed contention include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute.

Intervenors fail to meet this burden. Nowhere in the Fifth Supplement do Intervenors explain why FENOCs LRA is allegedly deficient.163 As discussed in Section IV.C above, Intervenors make only three claims related to the Shield Building AMP. First, Intervenors contend that there is a serious incongruity between the cracking problems as defined by FENOC, and the proposed remedy, exemplified by the AMP.164 In support of this assertion, Intervenors state:

The scope of the admitted cracking is far narrower than the identified cracking, and the potential for further aging-related concrete and rebar problems in the Davis-Besse shield building may include the loss of up to 90% of the shield building walls with the collapse of outer layers of concrete and rebar, or in other words, the shield building could fall, according to NRC documents revealed to Intervenors by FOIA/A-2012-0121, Response 1.165 Even if it were true that the scope of the admitted cracking is narrower than the identified cracking, Intervenors do not attempt to explain how this undermines the Shield Building AMP.

Likewise, even if there is the potential for further aging-related concrete and rebar problems in the Shield Building that could include the loss of up to 90% of the Shield Building walls, 163 Intervenors assert in passing that the Shield Building cracking is related to FENOCs Severe Accident Mitigation Alternatives Analysis (SAMA) because that analysis undoubtedly assumed an intact and functional shield building. Fifth Supplement at 32. 10 C.F.R. § 2.309(f)(1)(vi), however, requires that a proposed contention include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute. Intervenors fail to meet this requirement. ER Section 4.20 discusses SAMAs and ER Attachment E provides a full SAMA analysis for Davis-Besse. See ER at 4.20-1, App. E. Instead of challenging the adequacy of specific portions of the SAMA analysis, Intervenors simply guess as to its content. In fact, the Shield Buildings safety functions are not credited in FENOCs SAMA model. See ER at 4.20-1, App. E.

164 Fifth Supplement at 4.

165 Id. at 4-5.

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Intervenors do not attempt to explain how or why the Shield Building AMP is inadequate for addressing this issue.

Next, Intervenors contend that the Shield Building AMP includes only infrequent and irregular reviews of the basis for continued operation,166 and make the conclusory statement that the Shield Building AMP is woefully inadequate.167 Again, Intervenors do not provide an explanation of why they consider the reviews to be too infrequent or how the Shield Building AMP is inadequate, or even which specific reviews they are addressing.

Additionally, to the extent Intervenors disagree with FENOCs root cause for the laminar cracking and the NRCs decision to authorize Davis-Besses restart, they have not even attempted to claim a nexus between such disagreement and the LRA. In sum, Intervenors have not identified a genuine material dispute because they have not explained why the Shield Building AMP would be unable to address aging issues related to the Shield Building laminar cracking even if their statements are correct.

V. CONCLUSION As demonstrated above, the Fifth Supplement is untimely under 10 C.F.R. §§ 2.309(f)(2) and (c)(1). In particular, it is untimely under 10 C.F.R. § 2.309(f)(2) because it was filed late and it does not contain new information that is materially different from previously available information, and Intervenors have not demonstrated good cause for their late filing.

Furthermore, the Fifth Supplement utterly fails to satisfy the contention admissibility requirements specified in 10 C.F.R. § 2.309(f)(1): All of the arguments in the Fifth Supplement should be rejected because they are outside the scope of this proceeding, lack adequate factual 166 Id. at 24.

167 Id. at 64.

33

support, and fail to sufficiently challenge the Davis-Besse LRA. For all of these reasons, the Fifth Supplement should be rejected.

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

Signed (electronically) by Timothy P. Matthews Timothy P. Matthews Kathryn M. Sutton Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com David W. Jenkins Senior Corporate Counsel II FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FENOC Dated in Washington, DC this 10th day of September 2012 34

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

)

In the Matter of )

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

)

(Davis-Besse Nuclear Power Station, Unit 1) ) September 10, 2012

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FENOCs Answer Opposing Intervenors Fifth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

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

Office of Commission Appellate Adjudication Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Mail Stop: O-16C1 811 Harrison Street Washington, DC 20555-0001 Monroe, MI 48161 E-mail: ocaamail@nrc.gov E-mail: mkeeganj@comcast.net Kevin Kamps Terry J. Lodge Paul Gunter 316 N. Michigan St., Ste. 520 Beyond Nuclear Toledo, OH 43604 6930 Carroll Avenue, Suite 400 E-mail: tjlodge50@yahoo.com Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Signed (electronically) by Jane T. Accomando Jane T. Accomando Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5815 E-mail: jaccomando@morganlewis.com

ML12254B086

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