ML12278A040
| ML12278A040 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 10/04/2012 |
| From: | Lodge T Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Don't Waste Michigan, Green Party of Ohio |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23576, 50-346-LR, ASLBP 11-907-01-LR-BD01 | |
| Download: ML12278A040 (13) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
Docket No. 50-346-LR First Energy Nuclear Operating Company )
(Davis-Besse Nuclear Power Station, Unit 1) October 4, 2012
)
INTERVENORS RESPONSE IN OPPOSITION TO FENOCS MOTION TO STRIKE INTERVENORS REPLY IN OPPOSITION TO FIRSTENERGYS MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 4 (SAMA ANALYSIS - SOURCE TERMS)
Now come Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario (CEA), Dont Waste Michigan, and the Green Party of Ohio (collectively, Intervenors), by and through counsel, and reply in opposition to FENOCs Motion to Strike Intervenors Reply in Opposition to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis
- Source Terms). FirstEnergy miscasts the scope of Contention 4 and permissible responsive arguments and hides behind procedural rigidity to avoid substantive justice.
Up for determination is this version of Contention 4, dealing with source term issues, specified here in the ruling of the full Commission:
Petitioners challenge the computer code used to determine source terms in the SAMA analysis, the Modular Accident Analysis Progression (MAAP) code. Petitioners argue that the SAMA analysis minimizes the potential amount of radioactive release in a severe accident because source terms used in the analysis were generated by the MAAP code. More specifically, Petitioners claim that the MAAP code is an industry code that has not been validated by the NRC, and that it generates radioactive release fractions that are consistently smaller for key radionuclides than the release fractions specified in NUREG-1465 and its recent revision for high-burnup irradiated nuclear fuel. Petitioners go on to state that the source term used in the analysis results in lower consequences than would be obtained from NUREG-1465 release fractions and release durations. They additionally claim that MAAP generates lower release fractions than those derived and used by NRC in [severe accident] studies such as NUREG-1150.
Petitioners challenge to the use of the MAAP code is substantively identical to the source term challenge raised in Seabrook. For the reasons outlined in our Seabrook decision, Petitioners source term claims are weak, but because the Board is the appropriate arbiter of such fact-specific questions of contention admissibility, we defer to the Board on admission of this limited aspect of the SAMA contention.
FirstEnergy Nuclear Operating Company (Davis-Besse Nuclear Power Station, Unit 1), CLI 08 at p. 20 (2012).
The thrust of Intervenors response in opposition to summary disposition of Contention 4 was particularly focused on what FENOC calls Basis 2: that the radionuclide release fractions generated by MAAP are consistently smaller for key radionuclides than the release fractions specified in NUREG-1465' and result in anomalously low accident consequences. FENOCs Motion for Summary Disposition p. 3.
To meet their burden on summary disposition, Intervenors came forward with a factual showing that Davis-Besses plant-unique shield building cracking and containment shell corrosion phenomena were categorically excluded from consideration within FENOCs SAMA analysis. FirstEnergys experts assumed in the analysis that for Davis-Besse, approximately 90% of the core damage sequences involve accidents in which the containment retains its structural integrity . . . and the remaining 10% would be the result of early containment failure and other events. Intervenors Reply in Opposition to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms) at 10, quoting FENOCs Motion for Summary Disposition (MSD) at p. 26. Juxtaposed against this assumption, Intervenors provided evidence from the NRCs own engineers that in the event of even a mild earthquake or a reactor disaster which produced higher-than-normal heat and pressure within the shield building, collapse of up to 90% of the shield building concrete was possible and that FENOCs SAMA candidates consequently were merely theoretical and not predicated on fact. Id. at 11, 19.
FENOCs objection is at best a technical claim of lack of notice and should be overruled because the evidence and argument are within the scope of Contention 4.
A. The Evidence and Argument Are Within Scope of the Contention Intervenors evidence and argument in opposition to the MSD are well within the scope of the contention. The original contention was considerably recast and rewritten by the ASLB and the Commission. The scope of Contention 4 was established by the Licensing Board, which stated:
Using the Joint Petitioners own words whenever possible, we recast Contention Four as follows:
The Environmental Report (ER) is inadequate because it underestimates the true cost of a severe accident at Davis-Besse in violation of 10 C.F.R. § 51.53(C)(3)(II)(L) [sic] and Further Analysis by the Applicant, [FirstEnergy], is called for because of:
(1) Minimization of the potential amount of radioactive material released in a severe accident by using a source term . . . based on radionuclide release fractions
. . . which are smaller for key radionuclides than the release fractions specified in NRC guidance; (2) Use of an inappropriate air dispersion model, the straight-line Gaussian plume, that does not allow consideration for the fact that winds for a given time period may vary spatially, . . . ignores the presences of Great Lakes sea breeze circulations which dramatically alter air flow patterns, fails to account for hot spots of radioactivity caused by plumes blowing . . . offshore over Lake Erie, and is based on meteorological inputs . . . collected from just one site at Davis-Besse itself; and (3) Use of inputs that minimized and inaccurately reflected the economic consequences of a severe accident,specifically particle size and clean-up costs for urban areas.
Memorandum and Order, ASLBP No. 11-907-01-LR-BD01, pp. 49-50 (slip. op. May 26, 2011).
Intervenors opposition to the MSD legitimately focuses on subsection (1), and they articulated facts suggesting that FENOC seriously underestimated the true cost of a severe accident at Davis-Besse by calculating theoretical source terms which grossly underestimate the radionuclide fractions released in the event of a shield building failure which differ from the passive equip-ment failures predicted by NRC staff engineers. The scope of the contention, then, was set by the ASLB, and within that broad scope, Intervenors have postulated factual disputes which preclude summary disposition. As long as new statements are within the scope of the initial contention and directly flow from and are focused on the issues and arguments raised in the Answers, fairness is achieved through the consideration of these newly expressed arguments. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 at 41 (p. 43 of .pdf) (July 6, 2011).
Although the Commission does not allow distinctly new complaints to be added at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds, Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010) (cited at pp. 1-2 of the FENOCs Motion to Strike), the cracked shield building and corrupted steel liner fall within those reasonably inferred bounds. It is not a distinctly new complaint that a highly-relevant data input is missing from the SAMA modeling.
The scope of the SAMA litigation at Pilgrim Nuclear Power Station discussed in CLI 11 was similarly the object of contentiousness. The Commission, noting the 2-1 ASLB ruling in the Pilgrim case, described the inconsistent understanding of the scope of the SAMA contention which had been admitted:
The parties - and even the Board judges among themselves - do not agree on the scope of Contention 3 as admitted. Like the Board majority, Entergy and the NRC Staff claim that Contention 3 included only challenges to specific input data applied in the SAMA analysis and not challenges to any model embedded in the MACCS2 code, such as the straight-line Gaussian plume atmospheric dispersion model and the codes economic model. Entergy and the Staff therefore conclude that the Board majority properly rejected Pilgrim Watchs arguments concerning the adequacy of the Gaussian plume model because the model is not an input to the MACCS2 code. Pilgrim Watch argues that the majority misinterpreted the decision admitting Contention 3 (LBP-06-23) and therefore improperly excluded areas of inquiry that had been admitted as part of the contention, including the adequacy of the straight line Gaussian plume model.
We agree with Pilgrim Watch and the dissent that the majority improperly excluded the issue of the adequacy of the straight-line Gaussian plume model. While the Board decision admitting the contention declared the contentions scope limited to particular types of input data that is entered into the MACCS2 code, the Board did not make a distinction between specific input data entered into the MACCS2 code and specific models embedded in the code (such as the atmospheric dispersion model),
resulting in confusion over the contentions scope. Pilgrim Watchs arguments on the adequacy of the straight-line Gaussian plume model and the sea breeze phenomenon appeared under the headings of incorrect input data and Meteorological Data and, as the dissent notes, centrally involved arguments asserting the limitations of the straight-line Gaussian plume model. Moreover, different models require different amounts and kinds of data, with more detailed variable trajectory models requiring significantly more data than that used in the straight-line Gaussian dispersion model.
Therefore, there easily may be an overlap between arguments challenging the sufficiency of input data used and challenging the model used, if the model does not require, allow for, or otherwise take into account particular types of data.
In admitting the contention, the Board indicated that Contention 3 included issues relating to plume behavior, including whether Entergy had adequately taken into account relevant and realistic data with respect to . . . meteorological patterns that would carry the plume, and the use of more accurate data relating to . . . meteorologic plume behavior.
Unless expressly narrowed otherwise, these issues logically may encompass arguments that a model is deficient because it does not take into account and reflect sufficient types of meteorological information or data.
(First two italicizations original; latter emphasis added). CLI-10-11 pp. 14-15.
The method by which FirstEnergy validated MAAP4 codes for the Davis-Besse SAMA lays out a long front for factual challenge. In ¶ 47 of its Statement of Material Facts, FENOC asserts the MAAP4 program has been benchmarked against Three Mile Island and other severe accident studies. Intervenors point out in opposition that the scenarios involving a fatally-cracked and compromised shield building and corroded containment shell do not appear to have been addressed. At ¶ 49 of its Statement of Material Facts, FENOC asserts that If inputs and assumptions are appropriate for the computer model, and sources of uncertainty are understood, then the results of that code may be accepted by a reviewer or regulator for purposes of the application. Intervenors contend in opposition that the inputs and assumptions for the Davis-Besse SAMA are inappropriate, and that consequently the sources of uncertainty are not well understood. At ¶¶ 53 and 54 of the Statement of Material Facts, FirstEnergy distinguishes between the source terms describing radioactivity which is contained from those terms describing radiation leakage into the outer environment. But those terms do not include or countenance a cracked and compromised shield building nor a corroded steel containment, the engineered characteristics of which have changed from the time of its fabrication.
FENOCs experts opined in support of summary disposition that [p]lant-specific source terms developed for SAMA analysis must consider a spectrum of probabilistically-significant accident scenarios to have any meaning from a risk quantification perspective. Joint Declaration of Kevin OKula and Grant Teagarden in Support of FirstEnergys Motion for Summary Dispo-sition of Intevenors Contention 4 (SAMA Analysis Source Terms) (OKula/Teagarden Decl., to FENOCs MSD) ¶ 44. According to FENOCs experts, the methodology used to develop source terms for a SAMA analysis must account for plant-unique conditions, plant design, support system dependencies, plant maintenance and operating procedures, operator training, and the interdependencies among these factors that can influence the core damage frequency (CDF) estimate for a specific plant. Id. ¶ 49. Intervenors agree in concept, and consistent with FENOCs experts framework, maintain that key plant-unique facts were omitted from the SAMA methodology. Intervenors have exposed the garbage in, garbage out problem with FENOCs SAMA.. They have questioned the foundational assumptions contained in FENOCs broad attempt to negate the presence of factual disputes.
Intervenors submit that FENOC made the same argumentative mistake in their MSD as did Entergy in the Pilgrim case, i.e.: . . . Entergys motion for summary disposition and attached documents addressed several Pilgrim Watch arguments challenging the adequacy of the Gaussian plume model, nowhere suggesting that challenges related to the model should be considered beyond the scope of the admitted contention. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11 at 16. Here, even assuming arguendo that Intervenors have strayed beyond the scope of Contention 4, it was at the invitation of FENOC, which now seeks to strike Intervenors from the guest list after opening the door. FENOC imputes a broad scope to Con-tention 4, which it proceeds to try to deny Intervenors. This heads-I-win-tails-you-lose tack should be decapitated.
B. Response to FENOCs Claim of Intervenors Failure to Amend Contention 4 Intervenors acknowledge that they did not formally file a motion to amend Contention 4 by adding averments about the shield building and containment shell problems. But FirstEnergy could not have been surprised by Intervenors reply in opposition to the MSD on Contention 4.
In their initial and supplemental filings concerning Contention 5 (the shield building cracking contention), Intervenors repeatedly commented that the structural problems in the shield building and steel containment shell have implications for the Davis-Besse SAMA.1 The most recent 1
From Intervenors January 10, 2012 Motion for Admission of Contention No. 5 on Shield Building Cracking, p. 26: If the shield building loses its ability to perform its safety- and security-related functions, Davis-Besse should be immediately shut down, of course. But this very risk, the potential loss of shield building safety and security function over time, is exactly the kind of analysis that should be included in FENOC SAMA analyses regarding the Davis-Besse license extension. Such analyses have not been done. Similarly, the potential for Davis-Besses cracked shield building to cause its early retirement, before its current license expiration in 2017, or before its extended 2037 license expiration proposed by FENOC, should be addressed by FENOCs reliability analyses, and its energy reference in a cracking contention pleading appeared in Intervenors Fifth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking), filed August 16, 2012. It was filed a few weeks after the appearance of FENOCs amended SAMA in a July 16, 2012 letter with attachments (Attachment 5 to FENOCs Motion for Summary Disposition on Contention 4), within the 60-day window allowed by ASLB order for contention amendment.
Although they did not launch a formal motion to amend the SAMA contention, in that cracking contention pleading on August 16, Intervenors indisputably put FENOC on notice of SAMA implications stemming from the failures to account for the current state of deterioration of the shield building and the steel containment. And this was not the first time.
alternatives analyses.
From Intervenors Fourth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking), filed July 23, 2012, p. 44: Intervenors urge that their cracked concrete containment and Severe Accident Mitigation Alternatives (SAMA) contentions are inextricably interlinked because FENOC assumes a functioning shield building in its SAMA analyses. Given the severe cracking and other degradation of the shield building, that assumption no longer holds water.
From Intervenors Fifth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking), filed August 16, 2012, pp. 31-32: NRC reports that the shield building is supposed to contain radioactivity, so that it can be swept and filtered before release to the environment.
But there is legitimate concern that the cracks in the shield building might allow direct leakage to the environment before sweeping and filtering can be carried out. FENOCs February 28, 2012 root cause report documents cracking that penetrates the shield building nearly one-half of its thickness (depending on whether the crack is located at a thicker shoulder, or on the main body of the side wall) through its wall thickness (in some cases, nearly 16 inches deep). If the shield building fails, as questioned by NRCs Pete Hernandez above, and NRCs Abdul Sheikh below, it appears to be an open question how much hazardous radioactivity might escape into the environment.
In this sense, the shield building cracking is also SAMA-related, for FENOCs Severe Accident Mitigation Alternatives analyses undoubtedly assumed an intact and functional shield building, not the severely cracked one of doubtful functionality that exists in reality. In fact, NRC concludes page 2 by acknowledging this:
The existing as-found condition of cracking in the concrete of the shield building has raised questions on the ability of the structure to maintain its ability to perform its design functions under conditions that would introduce active forces in the structure (such as a seismic event or potentially rapid changes in environmental conditions).
From id. p. 58: An increase in thermal output holds potential environmental and safety implications for both Intervenors SAMA and cracked concrete containment contentions.
A motion to strike is the mechanism for seeking the removal of information from a pleading or other submission that is irrelevant. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-05-20, 62 NRC 187, 228 (2003). However, the information provided by Intervenors was highly relevant to their contention that the SAMA source term analysis was faulty and thus incomplete. Intervenors responded to the MSD within the scope of the SAMA contention as set by the ASLB and the Commission.
Moreover, a reply may provide legitimate amplification to a proffered contention. PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 299-302 (2007).
CONCLUSION What is at stake in Contention 4 is whether FENOCs Severe Accident Mitigation Analysis (SAMA) assigns realistic and meaningful values to the accident scenarios which might befall Davis-Besse so that there has been the requisite hard look at the costs and benefits of possible changes to Davis-Besses physical plant and associated operations. This discussion is of concern under the NEPA, which requires public disclosure and discussion of mitigation alternatives. The harm which Intervenors seek for the NRC, as regulator, to avoid, is procedural:
that all reasonable alternative mitigation scenarios be anticipated and addressed in the SAMA analyses.
Intervenors reply to FENOCs MSD is replete with statements properly made within the scope of the initial shield building cracking contention.2 FENOC is legally incorrect in its move 2
Had the NRC Staff weighed in to critique the SAMA as Intervenors have, it would not have had to face a motion to strike. FENOC has abused the SAMA analysis by leaving two structural failures and associated concerns completely out of it. But the Staff, which originated the risk estimates of shield to strike them.
More than that, the Board must address the specter of an at-worst technical omission by Intervenors to amend Contention 4, even as they have produced evidence of a significant cracking and containment concerns for the SAMA. If it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conc-lusions for the SAMA candidates evaluated, the SAMA analysis must be refined. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, ___ (2010)
(slip op. at 39). Intervenors have provided important information which, if incorporated into the SAMA, would induce very different results.
It would be anomalous for the ASLB to deny that the scope of the contention forbids inclusion and consideration of such evidence, merely because no formal motion to amend Contention 4 was filed. The Licensing Board should not accede to the Staffs insistence upon hyper-technical vigilant enforcement of the rules simply because they are the rules, to the det-riment of the agency's supposed mandate to protect public health, safety, and the environment.
If the law supposes that, said Mr. Bumble, the law is a ass - a idiot. If thats the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience - by experience. Charles Dickens, Oliver Twist, chapter 51, p. 489 (1970).
WHEREFORE, Intevenors pray the ASLB deny FirstEnergys Motion to Strike.
building failure, and revealed corrosion to the inner steel containment vessel, remains loyal to FENOCs agenda. However, the agencys responsibility is not simply to sit back, like an umpire, and resolve adversary contentions . . . Rather, it must itself take the initiative of considering environmental values at every distinctive and comprehensive stage of the process beyond the staff's evaluation and recommendation. Calvert Cliffs Coordinating Comm., Inc. v. US Atomic Energy Commn, 449 F.2d 1109, 1119 (D.C. Cir. 1971).
/s/ Terry J. Lodge Terry J. Lodge (Ohio Bar #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 Phone/fax (419) 255-7552 tjlodge50@yahoo.com Counsel for Intervenors UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
Docket No. 50-346-LR First Energy Nuclear Operating Company )
(Davis-Besse Nuclear Power Station, Unit 1) October 4, 2012
. )
CERTIFICATE OF SERVICE We hereby certify that a copy of the INTERVENORS RESPONSE IN OPPOSITION TO FENOCS MOTION TO STRIKE INTERVENORS REPLY IN OPPOSITION TO FIRSTENERGYS MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 4 (SAMA ANALYSIS - SOURCE TERMS) was sent by me to the following persons via electronic deposit filing with the Commissions EIE system on the 4th day of October, 2012:
Administrative Judge Washington, DC 20555-0001 William J. Froehlich, Chair E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: wjf1@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 Administrative Judge Catherine Kanatas Dr. William E. Kastenberg catherine.kanatas@nrc.gov Atomic Safety and Licensing Board Panel Brian G. Harris U.S. Nuclear Regulatory Commission E-mail: Brian.Harris@nrc.gov Washington, DC 20555-0001 Lloyd B. Subin E-mail: wek1@nrc.gov lloyd.subin@nrc.gov Administrative Judge Office of Commission Appellate Nicholas G. Trikouros Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ngt@nrc.gov E-mail: ocaamail@nrc.gov Office of the Secretary Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Rulemakings and Adjudications Staff 811 Harrison Street Monroe, MI 48161 Timothy Matthews, Esq.
E-mail: mkeeganj@comcast.net Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Stephen J. Burdick Washington, DC 20004 Morgan, Lewis & Bockius LLP Phone: (202) 739-5830 1111 Pennsylvania Avenue, N.W. Fax: (202) 739-3001 Washington, D.C. 20004 E-mail: tmatthews@morganlewis.com Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Respectfully submitted,
/s/ Terry J. Lodge Terry J. Lodge (Ohio Bar #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 Phone/fax (419) 255-7552 tjlodge50@yahoo.com Counsel for Intervenors