ML14206A719

Memorandum and Order (Denying Intervenors' Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems)

ML14206A719
Person / Time
Site:	Davis Besse
Issue date:	07/25/2014
From:	William Froehlich, Kastenberg W, Nicholas Trikouros Atomic Safety and Licensing Board Panel
To:	Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Don't Waste Michigan, Green Party of Ohio
SECY RAS
References
50-346-LR, ASLBP 11-907-01-LR-BD01, RAS 26251
Download: ML14206A719 (19)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

William J. Froehlich, Chairman Nicholas G. Trikouros Dr. William E. Kastenberg In the Matter of:

Docket No. 50-346-LR FirstEnergy NUCLEAR OPERATING ASLBP No. 11-907-01-LR-BD01 COMPANY July 25, 2014 (Davis-Besse Nuclear Power Station, Unit 1)

MEMORANDUM AND ORDER (Denying Intervenors Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems)

Before this Board is a motion from Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (collectively, Intervenors) seeking admission of a newly proposed contention regarding recent structural problems discovered in the shield building at the Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse).1 Intervenors motion was filed on April 22, 2014 and is opposed by the applicant, FirstEnergy Nuclear Operating Company (FENOC),2 and the NRC Staff.3 Intervenors filed a 1

Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems (April 21, 2014) [hereinafter Contention 6 Motion]. In support of their motion, Intervenors submitted eight attachments. See Contention 6 Motion.

2 FENOCs Answer Opposing Intervenors Motion for Admission of Contention No. 6 (May 16, 2014) [hereinafter FENOCs Answer].

3 NRC Staffs Answer to Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems (May 16, 2014) [hereinafter NRC Staffs Answer].

2 reply to FENOC and the NRC Staff on May 23, 2014.4 For the reasons discussed below, Intervenors motion to admit Contention 6 is DENIED.

I. PROCEDURAL BACKGROUND The underlying proceeding in this docket concerns FENOCs August 27, 2010 application to renew the operating license for its Davis-Besse Nuclear Power Station, Unit 1 for an additional twenty years.5 Intervenors initially petitioned to intervene on December 27, 2010, proposing four contentions.6 The Board admitted Contention 1 (dealing with renewable energy alternatives) and Contention 4 (dealing with severe accident mitigation alternatives).7 FENOC appealed the Boards ruling and the Commission reversed the Boards admission of Contention 1 and reversed, in part, the Boards admission of Contention 4.8 FENOC subsequently moved for and the Board granted, summary disposition of Contention 4.9 On January 10, 2012, Intervenors moved to admit proposed Contention 5 concerning concrete cracking at the Davis-Besse shield building.10 During 2012, Intervenors submitted five 4

Reply in Support of Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems (May 23, 2014) [hereinafter Reply].

5

[FENOCs] License Renewal Application is available on the NRCs public website at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse/davis-besse-lra.pdf 6

See Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio Request for Public Hearing and Petition for Leave to Intervene (Dec. 27, 2010).

7 See LBP-11-13, 73 NRC 534, 588-89 (2011).

8 See CLI-12-8, 75 NRC 393 (2012).

9 See [FENOCs] Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (July 26, 2012).

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

3 additional motions to amend and/or supplement Contention 5.11 Contention 5 was based on shield building cracks identified in October 2011 during a scheduled reactor head replacement.

In general, Contention 5 alleged that the 2011 shield building cracking raised both safety and environmental concerns and that FENOCs License Renewal Application (LRA) was inadequate for failing to discuss how the aging effect of these cracks would be managed.

The Board held oral argument on November 5 and 6, 2012, in Toledo, Ohio, on the admissibility of proposed Contention 5 and the five motions to supplement or amend, in addition to other matters.12 On December 28, 2012, the Board denied Intervenors motion to admit proposed Contention 5 and the five subsequent motions to supplement or amend Contention 5.13 II.

SUMMARY

OF CONTENTION 6 Intervenors motion indicates that Contention 6 is based upon additional shield building cracking discovered in August and September of 2013 and upon the discovery of concrete voids and rebar cracking in February 2014.14 Intervenors state that in September 2013, additional concrete cracking which had not hitherto been identified was discovered in the shield building.15 Intervenors motion quotes from a September 20, 2013, Preliminary Notification of Event or Occurrence (PNO):

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

Intervenors Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking) (June 4, 2012); Intervenors Third Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (July 16, 2012); Intervenors Motion to Amend and Supplement Proposed Contention No. 5 (Shield Building Cracking) (July 23, 2012); Intervenors Fifth Motion To Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking) (Aug. 16, 2012).

12 See Notice and Order (Scheduling Oral Argument) (Sept. 20, 2012) (unpublished); see also Tr. at 275-712. The Board dedicated November 5 to argument on Contention 4. See Tr. at 288-425.

13 See LBP-12-27, 76 NRC 583 (2012).

14 See Contention 6 Motion at 1-2, 6.

15 Id. at 6.

4 On August 26, 2013, the licensee was performing examinations of core bores in the shield building in accordance with the commitments First Energy Nuclear Operating Company (FENOC) made to the NRC. The commitment is for long term monitoring of the shield building which was documented in the NRCs Confirmatory Action Letter dated December 2, 2011 (ADAMS ML11336A355). The examinations performed in 2011 and 2012 showed no additional cracks. This year [2013], using new instrumentation with enhanced capabilities, plant workers identified a crack that had not been seen before. To date, the core bore examinations revealed seven previously unidentified cracks. FENOC has taken steps to reevaluate 43 core bores and will be looking at the remaining 39 going forward.16 The Intervenors also state that, [o]n or about February 13, 2014, FENOC discovered an extensive air pocket or void of concrete in the Davis-Besse shield building's inner wall.17 The Intervenors motion quotes from another PNO which first appeared in the NRCs public-access ADAMS library on February 19, 2014 stating:

On 02/14/2014, an unfilled area was discovered in the concrete along the top of the shield building construction opening on the annulus side. The condition was discovered during the current steam generator replacement outage, and is likely due to not completely repouring the shield building wall opening in 2011. Analysis shows this condition is bounded by previous calculations that demonstrate the containment function is maintained such that the protection of the health and safety of the public was not in question. Further analysis is planned to reconfirm previous calculations.

The NRC Resident Inspector has been notified.18 The Intervenors also rely upon an article published in the Toledo Blade on February 15, 2014 entitled, Davis-Besse Had Air Gap in Shield Building,19 and statements made by an NRC staff member on March 25, 2014 at an NRC-sponsored public comment session about the Davis-Besse Draft Supplement Environmental Impact Statement.20 On April 21, 2014, Intervenors submitted the instant motion for admission of Contention 16 Id. (citing Exh. 6, Preliminary Notice of Event or Occurrence at 6 (Sept. 20, 2013)) (emphasis in original).

17 Id. at 3.

18 Id. (citing Exh. 1, Preliminary Notice of Event or Occurrence (Feb. 19, 2014)).

19 See id., Exh. 2, Tom Henry, Davis-Besse had Air Gap in Shield Building: FirstEnergy Found Flaw while Replacing 2 Steam Generators, THE BLADE (Toledo, Ohio) (Feb. 15, 2014).

20 See Contention 6 Motion at 4 (citing Exh. 3, Declaration of Victoria Clemons (Apr. 14, 2014))

[hereinafter Clemons Declaration].

5 6.21 Intervenors proposed Contention 6 makes both safety and environmental claims.

Specifically, Intervenors Contention 6 alleges:

The improper concrete pour in 2011, discovered in the form of a 25' long void, or air space in the reconstructed area of the Davis-Besse shield building where a 2011 maintenance access had been hydrologically cut is at least the second known concrete void at the plant. This honeycombing problem is complicated by the contemporaneous February 2014 discovery of broken and damaged rebar in the vicinity of the void. These shield building reconstruction problems coincide with the identification of continued and expanding concrete laminar and other cracking within the walls of the plants shield building, which was verified by a FENOC investigation during August/September 2013.

These problems represent ongoing aging problems compounded and intertwined with management failures; they are unmentioned and undocumented within the DSEIS for Davis-Besse; they may be interrelated or synergistic; they each are precedented at Davis-Besse; and they must be more intensely subjected to Aging Management Plans (AMPs) than has heretofore happened. The Draft and Final SEIS documents must be reconfigured in recognition of the lax management and QA failings, and the failings of the physical components of the shield building so that the true nature of these historic problems can be revealed and analyzed in the NEPA documents and in the severe accident mitigation alternatives analysis (SAMA). Relevant AMPs must be redrawn to anticipate and account for the implications or insufficient and irregular aging management of the shield building. Also, the Safety Evaluation review and overall SE Report must be rewritten to articulate modified AMPs and QA procedures which will reasonably assure that the plant can operate safely between now and April 22, 2017, and during the extended operating license period from 2017 until 2037.22 III. LEGAL STANDARDS

a. General Requirements for Contentions Contentions must meet the admissibility criteria set forth in 10 C.F.R. § 2.309(f)(1). This section requires each contention to: (1) provide a specific statement of the issue of law or fact to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised in the contention is within the scope of the proceeding; (4) demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the licensing action; (5) provide a concise statement of the alleged facts or expert opinions in support of the petitioners position on the issue and on which the petitioner intends to rely at hearing; and (6) provide sufficient information to show that a genuine dispute exists with the 21 See generally id.

22 Id. at 25-26.

6 applicant/licensee on a material issue of law or fact, with reference to specific disputed portions of the application.23 A failure to meet any of these criteria renders the contention inadmissible.

b. Additional Requirements for New and Amended Contentions Once the deadline for filing petitions to intervene has passed, in this proceeding the initial filing deadline was December 27, 2010,24 a party may file new or amended contentions based on material information that has subsequently become available.

Under the Boards Initial Scheduling Order, to file an admissible contention the Intervenors must show that:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.25 In this case, a new or amended contention is considered timely if it is filed within sixty (60) days of the date when the material information first becomes available to the moving party through service, publication, or any other means.26 IV. PARTIES POSITIONS Intervenors motion to admit Contention 6 is based on the recent shield building 23 10 C.F.R. § 2.309(f)(1)(i)-(vi).

24 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).

25 10 C.F.R. § 2.309(f)(2)(i)-(iii) (2012).

26 Licensing Board Order (Initial Scheduling Order) at 12 (June 15, 2011) (unpublished)

[hereinafter ISO].

7 cracking, concrete void, and broken rebar problems at Davis-Besse.27 Intervenors assert that a deep and concerning history of quality assurance (QA) failures at Davis-Besse have elevated QA to an aging management problem at the plant and that it is not reasonable to assume that cracks are strictly a current management problem, but are likely to increase and recur throughout the 20-year license renewal period.28 Specifically, Intervenors move for admission of Contention 6 in order to determine the adequacy of, and if need be, to challenge the sufficiency of modifications to the Shield Building Monitoring Program and the Structures Monitoring Program Aging Management Plans (AMPS) credited for the shield building in the Davis-Besse (LRA).29 Additionally, Intervenors seek to litigate the adequacy of FENOCs anticipated modifications to Davis-Besses Shield Building Monitoring Program and the Structures Monitoring Program AMPs.30 FENOC responds that the Board should deny Contention 6 on a several grounds. First, it asserts that Contention 6 raises arguments that were the subject of Intervenors earlier proposed Contention 5 and the five supplements. FENOC likens Contention 6 to a motion for reconsideration of the dismissal of Contention 5.31 Second, FENOC contends that Contention 6 does not satisfy the NRCs contention admissibility requirements under 10 C.F.R. § 2.309(f)(1) because the proposed contention challenges issues outside the scope of license renewal, fails to challenge the Davis-Besse License Renewal Application or the Draft Supplemental Environmental Impact Statement, lacks adequate factual support, and raises issues not material 27 See Contention 6 Motion at 1-2.

28 Id. at 2.

29 Id.

30 Id.

31 See FENOCs Answer at 17-18.

8 to the findings the NRC Staff must make to issue the requested renewal license.32 Finally, FENOC asserts that Contention 6 does not satisfy the relevant timeliness requirements.33 The NRC Staff also argues that Contention 6 should be denied for multiple reasons.

The NRC Staff asserts that the motion is untimely as a request for reconsideration of LBP-12-27 to the extent the motion attempts to relitigate Contention 5.34 Second, the NRC Staff contends that the proposed contention does not meet the standards in 10 C.F.R. § 2.309(f)(1)35 and 10 C.F.R. § 2.309(f)(2).36 In their Reply, Intervenors assert that they are not seeking reconsideration of the denial of Contention 5.37 Intervenors contend the instant motion is timely38 and is based on new information. They state that the motion simply recounts the history of the shield building cracking at Davis-Besse.39 Intervenors also argue that the proposed contention ties the shield building cracking to a specific environmental impact because the connection between the shield building failure on a catastrophic level, and the environment should be obvious on its face.40 32 See id. at 19-37.

33 See id. at 41-50.

34 See NRC Staffs Answer at 20-25.

35 See id. at 36-52.

36 See id. at 26-32.

37 See Reply at 1-3.

38 See id. at 11-12.

39 See id. at 1, 3-8.

40 Id. at 8.

9 V. ANALYSIS AND RULING Contention 6 must be denied because it does not meet the Commissions standards for a new or amended contention and in some respects it may be viewed as premature. Failure to comply with any of section 2.309(f)(1) is grounds for not admitting a contention.41 Proposed Contention 6 is inadmissible because (1) it addresses issues that are not within the scope of the license renewal proceeding in violation of section 2.309(f)(1)(iii); (2) it lacks adequate support as required by section 2.309(f)(1)(v); (3) it does not raise a genuine dispute with Davis-Besses License Renewal Application as required by section 2.309(f)(1)(vi);

and (4) it does not raise a material issue as required by section 2.309(f)(1)(iv).

a. Contention 6 is Not Within the Scope of a License Renewal Proceeding As the Board explained in LBP-12-27,42 NRC regulations limit the scope of a license renewal proceeding to specific matters that must be considered for the license renewal application to be granted.43 All contentions must be within the scope of the proceeding as defined by the Commission in the initial Notice and Order referring the proceeding to the Licensing Board.44 Any contention that falls outside the specified scope of the proceeding must be rejected.45 41 LBP-12-27, 76 NRC at 592 (citing South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 & n.33 (2010)).

42 See id. at 594.

43 See Final Rule: Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995); Final Rule: Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec.

13, 1991).

44 See 10 C.F.R. § 2.309(f)(1)(iii); Florida Power & Light Co. (Turkey Point Nuclear Generating Plants, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985).

45 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 435-36 (2011).

10 In Contention 6, as was the case with Contention 5,46 Intervenors raise concerns that are outside the scope of the license renewal application pending before the Licensing Board. For instance, Intervenors challenge the Commissions generic determinations in 10 C.F.R. Part 51 Subpart A, Appendix B that the environmental impacts of postulated accidents are small, by contending that the poor quality assurance management of the structural integrity of the shield building should negate the generic finding in this license renewal case.47 Specifically, Intervenors assert that the cracking issues with the shield building represent ongoing aging problems compounded and intertwined with management failures. . . . The Draft and Final SEIS documents must be reconfigured in recognition of the lax management and [Quality Assurance]

failings. . . .48 Additionally, Contention 6 raises safety culture claims, such as references to the corrosion of Davis-Besses reactor lid in 2002.49 As we stated in LBP-12-27, the Commission has held that issues such as management competence, quality assurance, and safety culture concerns are outside the scope of license renewal proceedings.50 Thus, the parts of Contention 6 that are not within the scope of the license renewal proceeding are inadmissible under 10 C.F.R. § 2.309(f)(1)(iii).

b. Contention 6 Lacks Adequate Support As the Board explained in LBP-12-27,51 to trigger an adjudicatory hearing, petitioners 46 See LBP-12-27, 76 NRC at 611.

47 See, e.g., Contention 6 Motion at 20.

48 Id. at 26.

49 See, e.g., id. at 27, 31.

50 See, e.g., LBP-12-27, 76 NRC at 611 (citing Northern States Power Co. (Prairie Island Nuclear Generating Plants, Units 1 and 2, CLI-10-27, 72 NRC 481, 491 (stating that broad-based issues akin to safety culture -- such as operational history, quality assurance, quality control, management competence, and human factors -- [are] beyond the bounds of a license renewal proceeding)).

51 Id. at 595.

11 must be able to proffer at least some minimal factual and legal foundation in support of their contentions.52 It is the petitioners obligation to present factual allegations and/or expert opinion necessary to support its contention.53 While a board may appropriately view a petitioners supporting information in a light favorable to the petitioner, failure to provide such information regarding a proffered contention requires that the contention be rejected.54 Neither mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.55 If a petitioner neglects to provide the requisite support for its contentions, it is not within the boards power to make assumptions or draw inferences that favor the petitioner, nor may the board supply information that is lacking.56 Likewise, simply attaching material or documents as a basis for a contention, without setting forth an explanation of that informations significance, is inadequate to support the admission of the contention.57 While it is clear that Intervenors are concerned about the structural problems of the shield building, the instant contention is inadmissible under section 2.309(f)(1)(v) because it is based upon unsupported assertions, conclusions, and speculation. For example, Intervenors assert that [t]he recurring concrete void problem, cracking problem and rebar problem have or may compromise important structures and safety features at the plant and have not been 52 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999).

53 See 10 C.F.R. § 2.309(f)(1)(v); USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006).

54 See Arizona Pub. Serv. Co. (Palo Verde Nuclear Stations, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

55 See American Centrifuge Plant, CLI-06-10, 63 NRC at 472; Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

56 See Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553 (2009); Palo Verde, CLI-91-12, 34 NRC at 155.

57 See Fansteel, CLI-03-13, 58 NRC at 204-05.

12 properly disclosed to the public under NEPA and that the cracking has not been accounted for in the Safety Evaluation Report (SER) nor the Severe Accident Mitigation Analysis (SAMA).58 However, as the Staff points out,59 Intervenors do not explain why, using facts or expert opinion, the shield building cracks, concrete void, or broken rebar impacts the shield buildings ability to perform its intended safety functions or how these issues reflect age-related degradation of the shield building.60 Intervenors have submitted eight attachments with their motion, including a report from Arnold Gundersen, which addresses 10 C.F.R. § 50.59 analyses and the replacement of steam generators 61 and a Declaration from Victoria Clemons, a member of the public that learned about the shield building rebar failure at a public meeting.62 Dr. Gundersens report and Ms.

Clemons declaration do not support Intervenors concerns about Davis-Besses shield building cracking, concrete void, or broken rebar. Neither the report or the declaration connect the shield building cracking, concrete void, or broken rebar to an environmental or safety impact.

Contention 6 is not admissible because it lacks adequate support and does not meet the standard in10 C.F.R. § 2.309(f)(1)(v).

c. Contention 6 Does Not Raise a Genuine Dispute with the LRA As the Board explained in its Memorandum and Order denying Contention 5,63 a properly formulated contention must focus on the license application in question, challenging either specific portions of, or alleged omissions from, the application (including the safety 58 See Contention 6 Motion at 26-27.

59 See NRC Staffs Answer at 44-45.

60 See generally Contention 6 Motion.

61 See Contention 6 Motion, Exh. 8, Expert Witness Report of Arnold Gundersen at 3-12 (May 20, 2013).

62 See Exh. 3, Clemons Declaration.

63 LBP-12-27, 76 NRC at 595.

13 analysis report/technical report and the ER) so as to establish that a genuine dispute exists with the applicant on a material issue of law or fact.64 Any contention that fails to directly controvert the application or that mistakenly asserts the application does not address a relevant issue will be dismissed.65 In this case, Intervenors articulate numerous concerns about the Aging Management Programs related to the Shield Building66 and challenge the sufficiency of the previous modifications made to the Aging Management Programs.67 Intervenors, however, have not made clear why the AMPs are deficient, or how the AMPs should be improved.68 Intervenors have indicated that the Board should admit their proposed contention so that Intervenors can determine the adequacy of, and if need be, to challenge the sufficiency of, modifications to the Shield Building Monitoring Program and the Structures Monitoring Program Aging Management Plans. . . .69 Intervenors allege that the cracking problem has proven not to be susceptible of management under AMP commitments in place since 2012,70 but Intervenors do not state how the AMPs are deficient.71 The Board has addressed this issue before. In fact, Intervenors failure to specifically challenge the adequacy of the Shield Building Monitoring AMP in Contention 5, and the five 64 See 10 C.F.R. § 2.309(f)(1)(vi).

65 See North Trend Expansion Project, CLI-09-12, 69 NRC at 557; American Centrifuge Plant, CLI-06-10, 63 NRC at 462-63.

66 See, e.g., Contention 6 Motion at 26-27.

67 See, e.g., id. at 2.

68 See generally id.

69 Id. at 2.

70 Id. at 27.

71 See generally id.

14 related motions to amend, resulted in the Boards denial of the admission of Contention 5.72 Because Contention 6 suffers from the same underlying flaw as Contention 5 (not raising a genuine dispute with the LRA), the Board must deny Contention 6. Contention 6 does not meet the standard in 10 C.F.R. § 2.309(f)(1)(vi).

d. Contention 6 Does Not Raise a Material Issue FENOC73 and the NRC Staff74 assert that the proposed contention does not raise an issue that is material to the findings that NRC must make in accordance with 10 C.F.R.

§ 2.309(f)(1)(iv). This requirement of materiality often dictates that any contention alleging deficiencies or errors in an application also indicate some significant link between the claimed deficiency and either the health and safety of the public or the environment.75 As we stated in LBP-12-27,76 the regulations require that all contentions proffer an issue of law or fact that is material to the outcome of a licensing proceeding, meaning that the subject matter of the contention must impact the grant or denial of a pending license application.77 While Intervenors provide a thorough history of the shield building cracking that led to the filing of Contention 6, including a summary of Contention 5 and the associated motions to amend, Intervenors do not state how any of their current concerns prevent the Staff from making the required license renewal findings.78 For instance, Intervenors assert that the root 72 LBP-12-27; 76 NRC at 609-10.

73 See FENOCs Answer at 32-37.

74 See NRC Staffs Answer at 44-52.

75 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 75-76 (1996), rev'd in part on other grounds, CLI-96-7, 43 NRC 235 (1996); see also Pac. Gas & Elec.

Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413, 439-41 (2002), petition for review denied, CLI-03-12, 58 NRC 185, 191 (2003).

76 LBP-12-27, 76 NRC at 594.

77 See 10 C.F.R. § 2.309(f)(1)(iv).

78 See generally Contention 6 Motion.

15 cause of the cracking is not known and needs to be known.79 However, Intervenors do not describe how the root causes of the cracking, concrete void, or rebar problems would impact the Staff license renewal findings.80 As the NRC Staff explains in its answer, the Staffs aging management review focuses on managing the functionality of systems, structures, and components [SSCs] in the face of detrimental aging effects as opposed to identification and mitigation of aging mechanisms.81 Intervenors fail to explain why the specific approach being used to monitor the cracking is inadequate.82 Additionally, the NRC Staff points out that the purpose of the AMP is to provide reasonable assurance that the existing environmental conditions will not cause aging effects that could result in a loss of component intended function.83 Again, other than stating that the AMPs are deficient,84 Intervenors do not indicate what portion of the License Renewal Application is inadequate or what specifically is wrong with the analysis.85 The Commission has stated that challenges to an applications analysis will fail if the challenge does not state what is wrong with the analysis other than the analysis is deficient.86 79 See id. at 7, 13, 35.

80 See generally id.

81 NRC Staffs Answer at 46 (quoting 60 Fed. Reg. at 22,488).

82 See generally Contention 6 Motion.

83 NRC Staffs Answer at 46 (citing FirstEnergy Notification of Filing Related to Proposed Shield Building Cracking Contention (Apr. 5, 2012), Enclosure L-12-028 at 15 (ADAMS Accession No. ML12097A216)) (emphasis not included).

84 See, e.g., Contention 6 Motion at 16 (Another deficiency in existing AMP arrangements is that they wholly neglect the shield buildings inner face exposure to the elements.).

85 See generally id.

86 See Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245, 270 (2010).

16 Intervenors motion states that they move for admission of Contention 6 in order to determine the adequacy of, and if need be, to challenge the sufficiency of, modifications to the Shield Building Monitoring Program and the Structures Monitoring Program Aging Management Plans (AMPS) credited for the shield building in the Davis-Besse License Renewal Application (LRA).87 Further, Intervenors claim that they seek to litigate the adequacy of FENOCs anticipated modifications to Davis-Besses Shield Building Monitoring Program and the Structures Monitoring AMPs.88 To the extent that Intervenors have proffered Contention 6 in advance of future modifications to the relevant AMPs that they assume will occur as a result of the recently identified structural problems, it is premature. The Board notes that the modifications to Davis-Besses Shield Building Monitoring Program, anticipated by the Intervenors, were provided on July 3, 2014 in Amendment No. 51 to the Davis-Besse LRA.89 Specific intervenor concerns regarding specific portions of LRA Amendment No. 51 may be submitted to the Board in a timely manner for its consideration as specified by our Initial Scheduling Order.90 Contention 6, as presently before us, is inadmissible because it does not address the LRA or the specific provisions of an LRA amendment and thus, fails to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iv).

VI. CONCLUSION For the reasons stated above, Intervenors Motion for Admission of Contention No. 6 on 87 Contention 6 Motion at 2 (emphasis added).

88 Id. (emphasis added).

89 See Letter from Timothy P. Matthews, Counsel for FENOC, to Davis-Besse Licensing Board, Notification of Documents Related to the Davis-Besse Shield Building, at Encl. 1, 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. 51 (July 8, 2014). As a note, Mr. Timothys letter to the Board is dated July 8, 2014. Enclosure 1 to the letter is dated July 3, 2014.

90 The Boards Initial Scheduling Order for this case provides a 60-day window for the submission of new or amended contentions. See ISO at 12.

17 Shield Building Concrete Void, Cracking and Broken Rebar Problems is denied.

While this Order is not subject to appeal to the Commission as a matter of right at this time, Intervenors may consider whether significant and novel legal or policy issues exist which would warrant a petition to the Commission for interlocutory review pursuant to 10 C.F.R.

§ 2.341(f)(2).

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

William J. Froehlich, Chairman ADMINISTRATIVE JUDGE

/RA/

Nicholas G. Trikouros ADMINISTRATIVE JUDGE

/RA/

Dr. William E. Kastenberg ADMINISTRATIVE JUDGE Rockville, Maryland July 25, 2014

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

FIRST ENERGY NUCLEAR OPERATING )

COMPANY ) Docket No. 50-346-LR

)

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

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying Intervenors Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems) have been served upon the following persons by Electronic Information Exchange.

Office of Commission Appellate Office of the Secretary of the Commission Adjudication U.S. Nuclear Regulatory Commission Mail Stop O-7H4M Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov Office of the General Counsel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission. Mail Stop O-15D21 Mail Stop T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 Edward L. Williamson, Esq.

E-mail: edward.williamson@nrc.gov William J. Froehlich, Chair Beth Mizuno, Esq.

Administrative Judge E-mail: beth.mizuno@nrc.gov E-mail: william.froehlich@nrc.gov Brian Harris, Esq.

E-mail: brian.harris@nrc.gov Nicholas G. Trikouros Catherine Kanatas, Esq.

Administrative Judge E-mail: catherine.kanatas@nrc.gov E-mail: nicholas.trikouros@nrc.gov John Tibbetts, Paralegal E-mail: john.tibbetts@nrc.gov William E. Kastenberg Administrative Judge OGC Mail Center : OGCMailCenter@nrc.gov E-mail: wek1@nrc.gov FirstEnergy Service Company.

Onika Williams, Law Clerk Mailstop: A-GO-15 E-mail: onika.williams@nrc.gov 76 South Main Street Kathleen Schroeder, Law Clerk Akron, OH 44308 E-mail: kathleen.schroeder@nrc.gov David W. Jenkins, Esq.

E-mail : djenkins@firstenergycorp.com

Davis-Besse Nuclear Power Station, Docket No. 50-346-LR MEMORANDUM AND ORDER (Denying Intervenors Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems)

Morgan, Lewis & Bockius Dont Waste Michigan 1111 Pennsylvania Avenue, NW 811 Harrison Street Washington, D.C. 20004 Monroe, Michigan 48161 Stephen Burdick, Esq. Michael Keegan E-mail: sburdick@morganlewis.com E-mail: mkeeganj@comcast.net Kathryn M. Sutton, Esq.

E-mail: ksutton@morganlewis.com Terry J. Lodge, Counsel for CEA, Dont Martin ONeill, Esq. Waste Michigan, and Green Party of Ohio E-mail: martin.oneill@morganlewis.com 316 N. Michigan Street, Suite 520 Timothy Matthews, Esq. Toledo, OH 43604-5627 E-mail: tmatthews@morganlewis.com E-mail: tjlodge50@yahoo.com Jane Accomando, Esq.

E-mail: jaccomando@morganlewis.com Beyond Nuclear Mary Freeze, Legal Secretary 6930 Carroll Avenue Suite 400 E-mail: mfreeze@morganlewis.com Takoma Park, Md. 20912 Paul Brown, Legal Secretary Kevin Kamps E-mail: pbrown@morganlewis.com E-mail : kevin@beyondnuclear.org Paul Gunter Citizens Environmental Alliance (CEA) E-mail : paul@beyondnuclear.org of Southwestern Ontario 1950 Ottawa Street Windsor, Ontario Canada N8Y 197 Green Party of Ohio 2626 Robinwood Avenue Toledo, Ohio 43610

[Original signed by Brian Newell ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 25th day of July, 2014