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alleged de facto license amendments fail to meet the NRCs reasonable assurance standard and should be revoked and enjoined and a hearing held before the restart of St. Lucie Plant, Unit No. 2 following its scheduled refueling outage.4 In the alternative, SACE requests that the Commission hold a discretionary hearing on its claims.5 The Commission should deny SACEs Hearing Request. As explained below and in the related Staff affidavits,6 there is no license amendment proceeding, either actual or de facto, to trigger hearing rights under Section 189a. of the Atomic Energy Act of 1954, as amended (AEA). For this same reason, SACEs Hearing Request does not satisfy the required standing, contention admissibility, and timeliness standards of 10 C.F.R. § 2.309, which all presume the existence of an AEA § 189a. proceeding.
alleged de facto license amendments fail to meet the NRCs reasonable assurance standard and should be revoked and enjoined and a hearing held before the restart of St. Lucie Plant, Unit No. 2 following its scheduled refueling outage.4 In the alternative, SACE requests that the Commission hold a discretionary hearing on its claims.5 The Commission should deny SACEs Hearing Request. As explained below and in the related Staff affidavits,6 there is no license amendment proceeding, either actual or de facto, to trigger hearing rights under Section 189a. of the Atomic Energy Act of 1954, as amended (AEA). For this same reason, SACEs Hearing Request does not satisfy the required standing, contention admissibility, and timeliness standards of 10 C.F.R. § 2.309, which all presume the existence of an AEA § 189a. proceeding.
Moreover, even assuming arguendo that there was a de facto license amendment proceeding, SACEs Hearing Request should be denied because SACE has not demonstrated standing and its contentions do not meet the 10 C.F.R. § 2.309(f)(1) requirements. Instead, SACEs contentions challenge the basic structure of the Commissions regulatory process, are outside the scope of licensing proceedings, and fail to raise a genuine material dispute.
Moreover, even assuming arguendo that there was a de facto license amendment proceeding, SACEs Hearing Request should be denied because SACE has not demonstrated standing and its contentions do not meet the 10 C.F.R. § 2.309(f)(1) requirements. Instead, SACEs contentions challenge the basic structure of the Commissions regulatory process, are outside the scope of licensing proceedings, and fail to raise a genuine material dispute.
Furthermore, SACEs request for a discretionary hearing should be denied because SACE has not shown that its assertions warrant a discretionary hearing. As discussed below, (Oct. 2, 2003) with Technical Specifications, as revised though Feb. 7, 2014 (ADAMS Accession No.
Furthermore, SACEs request for a discretionary hearing should be denied because SACE has not shown that its assertions warrant a discretionary hearing. As discussed below, (Oct. 2, 2003) with Technical Specifications, as revised though Feb. 7, 2014 (ADAMS Accession No. ML052800077) (NPF-16).
ML052800077) (NPF-16).
4 See Hearing Request at 3-4 (summarizing proffered Contentions 1 and 2). The full text of SACEs proffered Contentions 1 and 2 is provided below at p. 6.
4 See Hearing Request at 3-4 (summarizing proffered Contentions 1 and 2). The full text of SACEs proffered Contentions 1 and 2 is provided below at p. 6.
5 Hearing Request at 1, 25.
5 Hearing Request at 1, 25.
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On December 31, 2007, the NRC completed an inspection that reviewed, inter alia, the 2007 St.
On December 31, 2007, the NRC completed an inspection that reviewed, inter alia, the 2007 St.
Lucie Plant, Unit No. 2 steam generator replacement project, including the 10 C.F.R. § 50.59 evaluations used by FPL to determine that the replacement did not require a license amendment; the NRC inspectors identified no findings of significance.15 II.          The 2011 Extended Power Uprate License Amendment Request On February 25, 2011, FPL submitted a license amendment request (LAR) for an extended power uprate (EPU) to increase the licensed core power level at St. Lucie Plant, Unit No. 2 from 2700 megawatts thermal to 3020 megawatts thermal.16 On September 1, 2011, the Commission published a notice of opportunity to request a hearing on this EPU LAR and to access related documents which were otherwise non-public.17 No requests for a hearing or access to documents were received. On September 24, 2012, the Commission issued Amendment No. 163 to the St. Lucie Plant, Unit No. 2 license authorizing the units operation at power levels not in excess of 3020 megawatts thermal.18 15 St. Lucie Nuclear Plant - NRC Integrated Inspection Report 05000335/2007005, 05000389/2007005, § 4OA5.3 "Unit 2 Steam Generator Replacement Inspection (IP 50001)" (Feb. 1, 2008) at 27-33 (ADAMS Accession No. ML080350408); López-Santiago Affidavit at 2-3.
Lucie Plant, Unit No. 2 steam generator replacement project, including the 10 C.F.R. § 50.59 evaluations used by FPL to determine that the replacement did not require a license amendment; the NRC inspectors identified no findings of significance.15 II.          The 2011 Extended Power Uprate License Amendment Request On February 25, 2011, FPL submitted a license amendment request (LAR) for an extended power uprate (EPU) to increase the licensed core power level at St. Lucie Plant, Unit No. 2 from 2700 megawatts thermal to 3020 megawatts thermal.16 On September 1, 2011, the Commission published a notice of opportunity to request a hearing on this EPU LAR and to access related documents which were otherwise non-public.17 No requests for a hearing or access to documents were received. On September 24, 2012, the Commission issued Amendment No. 163 to the St. Lucie Plant, Unit No. 2 license authorizing the units operation at power levels not in excess of 3020 megawatts thermal.18 15 St. Lucie Nuclear Plant - NRC Integrated Inspection Report 05000335/2007005, 05000389/2007005, § 4OA5.3 "Unit 2 Steam Generator Replacement Inspection (IP 50001)" (Feb. 1, 2008) at 27-33 (ADAMS Accession No. ML080350408); López-Santiago Affidavit at 2-3.
A "finding" is a performance deficiency of More-than-Minor significance." NRC Inspection Manual IMC 0612, "Power Reactor Inspection Reports," at 1 (Jan. 24, 2103) (ADAMS Accession No.
A "finding" is a performance deficiency of More-than-Minor significance." NRC Inspection Manual IMC 0612, "Power Reactor Inspection Reports," at 1 (Jan. 24, 2103) (ADAMS Accession No. ML12244A483). A "Performance Deficiency" is an issue that is the result of a licensee not meeting a requirement or self-imposed standard where the cause was reasonably within the licensee's ability to foresee and correct, and therefore should have been prevented." Id. at 2.
ML12244A483). A "Performance Deficiency" is an issue that is the result of a licensee not meeting a requirement or self-imposed standard where the cause was reasonably within the licensee's ability to foresee and correct, and therefore should have been prevented." Id. at 2.
16 Letter L-2011-021 from R. L. Anderson, Site Vice President, St. Lucie Plant, to NRC, at 1 (Feb.
16 Letter L-2011-021 from R. L. Anderson, Site Vice President, St. Lucie Plant, to NRC, at 1 (Feb.
25, 2011) (ADAMS Accession No. ML110730116). The complete EPU-LAR is available in ADAMS Package ML110730268. Some portions are proprietary, and thus not publicly-available.
25, 2011) (ADAMS Accession No. ML110730116). The complete EPU-LAR is available in ADAMS Package ML110730268. Some portions are proprietary, and thus not publicly-available.
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a license amendment authorizing use of the RSGs, installed in the fall of 2007, at EPU power levels.31 FPLs submittal of the EPU LAR triggered an actual license amendment proceeding under AEA § 189a. in which SACE could have requested a hearing.32 SACE, however, chose not to request a hearing.
a license amendment authorizing use of the RSGs, installed in the fall of 2007, at EPU power levels.31 FPLs submittal of the EPU LAR triggered an actual license amendment proceeding under AEA § 189a. in which SACE could have requested a hearing.32 SACE, however, chose not to request a hearing.
Moreover, SACEs instant Hearing Request does not explain how the Staffs approval of FPLs EPU LAR, which constituted and was labeled an actual, not a de facto, license amendment at the time,33 somehow went beyond what was requested by FPL so that it would constitute some sort of de facto license amendment. Therefore, SACEs challenges to the EPU licensing action are untimely and unsupported by law. If SACE seeks to revoke the EPU license amendment, its recourse is to file a 10 C.F.R. § 2.206 petition.34 B.      There is No De Facto License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2 SACEs primary claim is that there is a past and ongoing de facto license amendment proceeding related to the St. Lucie Plant, Unit No. 2 steam generators which provides SACE 31 Attachment 5 to Letter L-2011-021, St. Lucie Unit 2 EPU Licensing Report, § 2.2.2.5 "Steam Generators and Supports" at § 2.2.2.5.1 "Introduction," page 2.2.2-57 (ADAMS Accession No.
Moreover, SACEs instant Hearing Request does not explain how the Staffs approval of FPLs EPU LAR, which constituted and was labeled an actual, not a de facto, license amendment at the time,33 somehow went beyond what was requested by FPL so that it would constitute some sort of de facto license amendment. Therefore, SACEs challenges to the EPU licensing action are untimely and unsupported by law. If SACE seeks to revoke the EPU license amendment, its recourse is to file a 10 C.F.R. § 2.206 petition.34 B.      There is No De Facto License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2 SACEs primary claim is that there is a past and ongoing de facto license amendment proceeding related to the St. Lucie Plant, Unit No. 2 steam generators which provides SACE 31 Attachment 5 to Letter L-2011-021, St. Lucie Unit 2 EPU Licensing Report, § 2.2.2.5 "Steam Generators and Supports" at § 2.2.2.5.1 "Introduction," page 2.2.2-57 (ADAMS Accession No. ML110730299) ("The technical evaluation included as part of this LR describes the input parameters, assumptions and acceptance criteria used to evaluate SG performance relative to the EPU.").
ML110730299) ("The technical evaluation included as part of this LR describes the input parameters, assumptions and acceptance criteria used to evaluate SG performance relative to the EPU.").
FPL's EPU LAR specifically discussed the two St. Lucie Plant, Unit No. 2 RSGs and described how the steam generators and associated supports were considered through the following ten evaluations: 1. Thermal-hydraulic, 2. Structural integrity, 3. Design pressure differential, 4. Tube integrity,
FPL's EPU LAR specifically discussed the two St. Lucie Plant, Unit No. 2 RSGs and described how the steam generators and associated supports were considered through the following ten evaluations: 1. Thermal-hydraulic, 2. Structural integrity, 3. Design pressure differential, 4. Tube integrity,
: 5. Tube vibration and wear evaluation, 6. Foreign objects, 7. Tube repair hardware, 8. Steam drum, 9.
: 5. Tube vibration and wear evaluation, 6. Foreign objects, 7. Tube repair hardware, 8. Steam drum, 9.
Line 428: Line 425:
: g. The results of condition monitoring including the results of tube pulls and in-situ testing;
: g. The results of condition monitoring including the results of tube pulls and in-situ testing;
: h. The effective plugging percentage for all plugging in each SG.
: h. The effective plugging percentage for all plugging in each SG.
: 7. On May 6, 2013, in accordance with St. Lucie Plant, Unit 2 Technical Specification 6.9.1.12, "Steam Generator Tube Inspection Report," FPL provided the report for the inspection conducted September 9-15, 2012 during refueling outage twenty (SL2-20). Letter L-2013-130 from E. Katzman, FPL, to NRC, Refueling Outage SL2-20 Steam Generator Tube Inspection Report, (May 6, 2013), with Attachment 1, Engineering Evaluation PSL-ENG-SESJ-12-006, and 12 enclosures to Attachment 1, at Attachment 1 page 1 (ADAMS Accession No.
: 7. On May 6, 2013, in accordance with St. Lucie Plant, Unit 2 Technical Specification 6.9.1.12, "Steam Generator Tube Inspection Report," FPL provided the report for the inspection conducted September 9-15, 2012 during refueling outage twenty (SL2-20). Letter L-2013-130 from E. Katzman, FPL, to NRC, Refueling Outage SL2-20 Steam Generator Tube Inspection Report, (May 6, 2013), with Attachment 1, Engineering Evaluation PSL-ENG-SESJ-12-006, and 12 enclosures to Attachment 1, at Attachment 1 page 1 (ADAMS Accession No. ML13141A479).
ML13141A479).
: 8. SL2-20 was the third refueling outage following installation of the Areva-NP Model 86/19TI replacement steam generators (SGs) in December, 2007. Id.
: 8. SL2-20 was the third refueling outage following installation of the Areva-NP Model 86/19TI replacement steam generators (SGs) in December, 2007. Id.
: 9. By letter dated November 26, 2013, FPL provided additional information to the NRC concerning the SL2-20 inspections. Letter L-2013-325 with attachment from E. Katzman to NRC, SL2-20 Steam Generator Tube Inspection Report RAI Reply (Nov. 26, 2013)(ADAMS Accession No. ML13338A582).
: 9. By letter dated November 26, 2013, FPL provided additional information to the NRC concerning the SL2-20 inspections. Letter L-2013-325 with attachment from E. Katzman to NRC, SL2-20 Steam Generator Tube Inspection Report RAI Reply (Nov. 26, 2013)(ADAMS Accession No. ML13338A582).

Latest revision as of 21:42, 5 February 2020

NRC Staff Answer to Southern Alliance for Clean Energy'S Hearing Request Regarding De Facto Amendment of St. Lucie Unit 2 Operating License
ML14118A290
Person / Time
Site: Saint Lucie NextEra Energy icon.png
Issue date: 04/28/2014
From: Catherine Kanatas
NRC/OGC
To:
NRC/OCM
SECY RAS
References
50-389-LA, License Amendment, RAS 25865
Download: ML14118A290 (54)
v • d • e


Text

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

)

FLORIDA POWER & LIGHT CO. ) Docket No. 50-389

)

(St. Lucie Plant, Unit 2) )

)

NRC STAFF ANSWER TO SOUTHERN ALLIANCE FOR CLEAN ENERGY'S HEARING REQUEST REGARDING DE FACTO AMENDMENT OF ST. LUCIE UNIT 2 OPERATING LICENSE Catherine E. Kanatas David E. Roth Jeremy L. Wachutka Counsel for NRC Staff April 28, 2014

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TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 I. The 2007 Steam Generator Replacement at St. Lucie Plant, Unit No. 2 ......................... 4 II. The 2011 Extended Power Uprate License Amendment Request .................................. 5 III. SACEs Hearing Request and CLI-14-04 ........................................................................ 6 DISCUSSION ................................................................................................................................ 7 I. The Hearing Request Should Be Denied Because There is No License Amendment Proceeding, Actual or De Facto, Triggering AEA § 189a. Hearing Rights ..................................................................................................... 7 A. There is No Actual License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2............................................. 7 B. There is No De Facto License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2............................................. 9

1. The Commission's Perry Decision Provides the Standard for What Constitutes a De Facto License Amendment ............................................. 10
2. SACE Does Not Indicate How Staff's Inspection Activities Constitute a De Facto License Amendment ........................................................ 12
3. SACE Does Not Indicate How Staff Inaction Has Effectively Amended FPL's License...................................................................................... 14
4. FPL's 10 C.F.R. § 50.59 Actions Do Not Constitute De Facto or Actual License Amendments ........................................................................... 15 II. SACEs Hearing Request Does Not Meet the Commissions Contention Admissibility Standards Because There Is No Proceeding in Which to Intervene................... 19 III. Even Assuming Arguendo That a De Facto Proceeding Exists, SACEs Hearing Request Does Not Meet 10 C.F.R. § 2.309 ............................................................... 23 A. SACE Does Not Have Standing Because It Does Not Demonstrate the Existence of Any Injury-in-Fact Traceable to an NRC Action .................................. 23 B. SACEs Contentions Do Not Meet 10 C.F.R. § 2.309(f)(1) ............................................ 25

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1. SACE's Claims Challenge the Commission's Regulatory Process ..................... 27
2. The Scope of the Claimed De Facto Proceeding Would Not Allow for Prompt Resolution of Issues or Meaningful Public Participation and SACE's Claims are Outside the Scope of Licensing Proceedings ........................................................................................ 29
3. SACE's Contentions Do Not Raise a Genuine Material Dispute ......................... 31 IV. SACE Does Not Show That it is Entitled to a Discretionary Hearing ............................. 34 CONCLUSION ............................................................................................................................ 36

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TABLE OF AUTHORITIES Page JUDICIAL DECISIONS U.S. Supreme Court Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)........................................................ 23 U.S. Courts of Appeal Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995) ............................. passim City of West Chicago v. NRC, 701 F.2d 632, 639 (7th Cir. 1983) ............................................... 19 Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995). ............................................................................. 23 Sholly v. NRC, 651 F.2d 780 (D.C. Cir 1980) ............................................................................. 14 ADMINISTRATIVE DECISIONS Commission:

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-08-28, 68 NRC 658 (2008) ................................................................................................... 20 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1),

CLI-96-13, 44 NRC 315 (1996) ............................................................................................. 11, 16 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),

CLI-99-04, 49 NRC 185 (1999) ................................................................................................... 24 Consumers Power Co. (Palisades Nuclear Power Facility),

CLI-82-18, 16 NRC 50 (1982) ..................................................................................................... 11 Crow Butte Res., Inc. (North Trend Expansion Area),

CLI-09-12, 69 NRC 535 (2009) ................................................................................................... 32 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-12, 59 NRC 237 (2004) ................................................................................................... 20 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 NRC 631(2004) .............................................................................................. 19, 26 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-08-17, 68 NRC 231 (2008) .................................................................................................. .26 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3),

CLI-99-11, 49 NRC 328 (1999) ................................................................................................... 27

-v-Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39 (2012) ........................................................................................ 36 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479 (2012) .................................................................................... 28 Florida Power & Light Co. (St. Lucie, Units 1 and 2),

CLI-89-21, 30 NRC 325 (1989) ................................................................................................... 24 Florida Power & Light Co. (St. Lucie Plant, Unit 2),

CLI-14-04, 79 NRC __ (Apr. 1, 2014) (slip op.) .................................................................. passim Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-00-23, 52 NRC 327 (2000) ....................................................................................... 20, 21, 29 General Pub. Util. Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2)

(Oyster Creek Nuclear Generator Station), CLI-85-4, 21 NRC 561 (1985)............................ .9, 15 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),

CLI-00-06, 51 NRC 193 (2000) ................................................................................................... 23 Gulf States Utilities Co. (River Bend Station, Units 1 and 2),

ALAB-183, 8 AEC 222 (1974) .................................................................................................... 24 International Uranium (USA) Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 NRC 247 (2001) ................................................................................................... 23 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-1-11, 74 NRC 427 (2011) ............................................................................................... 20, 29 Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c),

CLI-11-1, 73 NRC 1 (2011) ........................................................................................................... 3 Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) .................. 19, 30 Portland Gen. Elec. Co.,(Pebble Springs Nuclear Plant, Units 1 and 2),

CLI-76-27, 4 NRC 610 (1976) ............................................................................................... 23, 35 Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-04-01, 59 NRC 1 (2004) ............................ 23 Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site),

CLI-94-12, 40 NRC 64 (1994) ..................................................................................................... 25 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

CLI-12-20, 76 NRC 437 (2012) ........................................................................................... passim Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

CLI-13-09, 78 NRC __ (Dec. 5, 2013) (slip op.) .................................................................... 11, 12 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309 (2005) .................................. 24

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USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) .................................. 32 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),

CLI-94-3, 39 NRC 95 (1994) ................................................................................................. 18, 22 Atomic Safety and Licensing Appeal Board:

Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-825, 22 NRC 785 (1985) ...................................................................................... 20, 21, 29 Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3),

ALAB-216, 8 AEC 13 (1974) ............................................................................................... passim Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2),

ALAB-940, 32 NRC 225 ........................................................................................................ 12, 16 Atomic Safety and Licensing Board:

Arizona Pub. Service Co.,(Palo Verde Nuclear Station, Unit Nos. 1, 2 and 3),

LBP-91-19, 33 NRC 397 (1991) .................................................................................................. 26 Dominion Nuclear Connecticut, Inc.(Millstone Power Station, Unit No. 3),

LBP-08-09, 67 NRC 421 (2008) .................................................................................................. 31 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),

LBP-13-11, 77 NRC __ (Aug. 12, 2013) (slip op.) ................................................................ 22, 28 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

LBP-08-18, 68 NRC 533 (2008) .................................................................................................. 25 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 and 7),

LBP-11-6, 73 NRC 149 (2011) .................................................................................................... 26 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

LBP-13-07, 77 NRC __ (May 13, 2013) (slip op.) ........................................................... 11, 16, 17 Tennessee Valley Auth. (Sequoyah Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15 (2002) .............................................................................................. 28 Directors Decisions:

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1),

DD-07-3, 65 NRC 643 (2007) ............................................................................................... 21, 31 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2),

DD-96-19, 44 NRC 283 (1996) ................................................................................................... 13 REGULATIONS 10 C.F.R. § 2.309........................................................................................................................ 19

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10 C.F.R. § 2.309(a) ................................................................................................................... 19 10 C.F.R. § 2.309(b) ................................................................................................................... 22 10 C.F.R. § 2.309(b)(4) ............................................................................................................... 19 10 C.F.R. § 2.309(d)(1)(ii) ........................................................................................................... 19 10 C.F.R. § 2.309(d)(1)(iv) .................................................................................................... 20, 32 10 C.F.R. § 2.309(d)(2) ............................................................................................................... 21 10 C.F.R. § 2.309(f)(1) ................................................................................................................ 29 10 C.F.R. § 2.309(f)(1)(iii) ......................................................................................... 19, 20, 21, 29 10 C.F.R. § 2.309(f)(1)(iv) ........................................................................................................... 19 10 C.F.R. § 50.34(b) ..................................................................................................................... 3 10 C.F.R. § 50.36(b) ..................................................................................................................... 4 10 C.F.R. § 50.59........................................................................................................................ 18 10 C.F.R. § 50.59(c) ................................................................................................................... 17 10 C.F.R. § 50.59(c)(2) ............................................................................................................... 16 10 C.F.R. § 50.59(d)(1). ................................................................................................................ 4 10 C.F.R. § 50.59(d)(2) ................................................................................................................. 4 10 C.F.R. § 50.70(a) ..................................................................................................................... 4 10 C.F.R. § 50.71(e). .............................................................................................................. 4, 18 10 C.F.R. § 50.71(e)(2) ................................................................................................................. 4 10 C.F.R. § 50.90........................................................................................................................ 17 10 C.F.R. § 50.100...................................................................................................................... 18 10 C.F.R. § 54.3.......................................................................................................................... 17 MISCELLANEOUS Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 77 Fed. Reg. 63,343 (Oct. 16, 2012) ............................................................................................ 5 Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) (final rule) ..................... 26

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Florida Power & Light Company, St. Lucie Plant, Unit 2 License Amendment Request; Opportunity To Request a Hearing and To Petition for Leave To Intervene, and Commission Order Imposing Procedures for Document Access, 76 Fed. Reg. 54,503 (Sept. 1, 2011) .................................................................................... 5, 8, 9 NEI 96-07, Nuclear Energy Institute Guidelines for 10 CFR 50.59 Safety Evaluations, (Jul. 1996) (ADAMS Accession No. ML060270176) ................................................................... 17 Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991) (final rule) ......... 17

April 28, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

FLORIDA POWER & LIGHT CO. ) Docket No. 50-389

)

(St. Lucie Plant, Unit 2) )

)

NRC STAFF ANSWER TO SOUTHERN ALLIANCE FOR CLEAN ENERGYS HEARING REQUEST REGARDING DE FACTO AMENDMENT OF ST. LUCIE UNIT 2 OPERATING LICENSE INTRODUCTION Pursuant to the Commissions order,1 the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) hereby files its answer opposing the request for a hearing (Hearing Request) filed on March 10, 2014 by Southern Alliance for Clean Energy (SACE).2 The Hearing Request claims that the Staff has conducted and is continuing to conduct de facto license amendments of Renewed Facility Operating License No. NPF-16 for St. Lucie Plant, Unit No. 23 and that these 1

Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-04, 79 NRC __, __ (Apr. 1, 2014)

(slip op. at 5) (CLI-14-04) (setting a schedule for further briefing with respect to SACEs Hearing Request, which was filed directly with the Commission outside of any licensing proceeding and not in accordance with any NRC regulation).

2 Southern Alliance for Clean Energys Hearing Request Regarding De Facto Amendment of St.

Lucie Unit 2 Operating License (Mar. 10, 2014) (Hearing Request). SACE's filing included Southern Alliance for Clean Energys Motion to Stay Restart of St. Lucie Unit 2 Pending Conclusion of Hearing Regarding De Facto Amendment of Operating License and Request for Expedited Consideration (Mar.

10, 2014) (Motion to Stay), the Declaration of Arnold Gundersen (Mar. 9, 2014) (Gundersen Declaration),

and eight declarations of standing. The filing is in a single document available at Agencywide Documents Access and Management System (ADAMS) Accession No. ML14071A431.

On April 25, 2014, SACE filed an amended hearing request. See [SACEs] Motion for Leav[e] to Amend Hearing Request Regarding De Facto Amendment of St. Lucie Unit 2 Operating License (Apr. 25, 2014); [SACEs] Amended Hearing Request Regarding De Facto Amendment of St. Lucie Unit 2 Operating License (Apr. 25, 2014). The Staff opposed SACEs motion to amend its hearing request and reserves the right to separately answer the amended request.

3 Docket No. 50-389, St. Lucie Plant, Unit No. 2, Renewed Facility Operating License No. NPF-16

alleged de facto license amendments fail to meet the NRCs reasonable assurance standard and should be revoked and enjoined and a hearing held before the restart of St. Lucie Plant, Unit No. 2 following its scheduled refueling outage.4 In the alternative, SACE requests that the Commission hold a discretionary hearing on its claims.5 The Commission should deny SACEs Hearing Request. As explained below and in the related Staff affidavits,6 there is no license amendment proceeding, either actual or de facto, to trigger hearing rights under Section 189a. of the Atomic Energy Act of 1954, as amended (AEA). For this same reason, SACEs Hearing Request does not satisfy the required standing, contention admissibility, and timeliness standards of 10 C.F.R. § 2.309, which all presume the existence of an AEA § 189a. proceeding.

Moreover, even assuming arguendo that there was a de facto license amendment proceeding, SACEs Hearing Request should be denied because SACE has not demonstrated standing and its contentions do not meet the 10 C.F.R. § 2.309(f)(1) requirements. Instead, SACEs contentions challenge the basic structure of the Commissions regulatory process, are outside the scope of licensing proceedings, and fail to raise a genuine material dispute.

Furthermore, SACEs request for a discretionary hearing should be denied because SACE has not shown that its assertions warrant a discretionary hearing. As discussed below, (Oct. 2, 2003) with Technical Specifications, as revised though Feb. 7, 2014 (ADAMS Accession No. ML052800077) (NPF-16).

4 See Hearing Request at 3-4 (summarizing proffered Contentions 1 and 2). The full text of SACEs proffered Contentions 1 and 2 is provided below at p. 6.

5 Hearing Request at 1, 25.

6 See Affidavit of Omar R. López-Santiago Concerning SACEs Claims Regarding Staffs Steam Generator Inservice Inspection (Mar. 20, 2014) (ADAMS Accession No. ML14079A445) (López-Santiago Affidavit) (filed with NRC Staffs Answer to Southern Alliance for Clean Energys Motion to Stay Restart of St. Lucie Unit 2 Pending Conclusion of Hearing Regarding De Facto Amendment of Operating License and Request for Expedited Consideration (Mar. 20, 2014) (Staff Answer to Motion to Stay)); Affidavit of Kenneth J. Karwoski Concerning Southern Alliance for Clean Energys Claims Regarding Staffs Review of Steam Generator Tube Inspection Report (Apr. 18, 2014) (Karwoski Affidavit).

SACEs Hearing Request demonstrates a fundamental misunderstanding of the Commissions case law regarding de facto license amendments, the purpose and effect of the Staffs inspection activities, and the requirements and authorizations in the St. Lucie Plant, Unit No. 2 operating license. Therefore, a discretionary hearing would not promote the Commissions dual goals of public safety and timely adjudication.7 For these reasons, SACEs Hearing Request should be denied.

BACKGROUND Pursuant to Renewed Facility Operating License No. NPF-16, Florida Power and Light Company (FPL) is authorized to operate St. Lucie Plant, Unit No. 2, a pressurized water nuclear reactor, and its associated steam generators and electrical generating equipment,8 which are described in the Updated Final Safety Analysis Report (UFSAR), as supplemented and amended.9 Consistent with its regulatory process, the NRC has performed and continues to perform oversight of FPL's operations under this license through inspections, assessments of performance, and enforcement, and documents the results of its inspections.10 7

Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC 1, 4 (2011).

8 The license is held by FPL, Orlando Utilities Commission of the City of Orlando, Florida, and Florida Municipal Power Agency, but FPL is authorized to act as agent for the others and has exclusive responsibility and control over the physical construction, operation, and maintenance of the facility. NPF-16, at 2.

9 The UFSAR includes information that describes the facility, presents the design bases and the limits on its operation, and presents a safety analysis of its structures, systems, and components and of the facility as a whole. 10 C.F.R. § 50.34(b). The licensee is required under 10 C.F.R. § 50.71(e) to update the UFSAR to assure that the UFSAR contains the effects of all changes made in the facility or procedures as described in the UFSAR; all safety analyses and evaluations performed by the licensee either in support of approved license amendments or in support of conclusions that changes did not require a license amendment in accordance with 10 C.F.R. § 50.59(c)(2).

10 The relevant inspection reports for St. Lucie Plant, Unit No. 2 are available at http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/listofrpts_body.html.

I. The 2007 Steam Generator Replacement at St. Lucie Plant, Unit No. 2 Pursuant to 10 C.F.R. § 50.59(c)(1), FPL may make changes in the facility as described in the UFSAR, make changes in the procedures as described in the UFSAR, and conduct tests or experiments not described in the UFSAR without obtaining a license amendment pursuant to 10 C.F.R. § 50.90 if a change to the technical specifications (TS)11 is not required, and the change, test, or experiment does not meet any of the eight criteria in 10 C.F.R. § 50.59(c)(2).

FPL is required to maintain records of any such changes, tests, or experiments made without prior NRC approval.12 These records must include a written evaluation which provides the bases for the determination that the change, test, or experiment did not require a license amendment.13 FPL must make these records available to the NRC for inspection and must periodically submit to the NRC a report containing a brief description of these changes, tests, or experiments including a summary of the evaluation of each.14 In the fall of 2007, FPL removed the original steam generators (OSG) at St. Lucie Plant, Unit No. 2 and installed replacement steam generators (RSG). Before doing this, FPL determined that the process of removing the OSGs and installing RSGs did not require a change to the technical specifications or meet any of the criteria in 10 C.F.R. § 50.59(c)(2).

Therefore, FPL concluded that it could conduct this process without prior NRC approval.

11 TS are part of the license, and in general are derived from the analyses and evaluations included in the licensees safety analysis report, and amendments thereto, submitted pursuant to 10 C.F.R. § 50.34 (requiring that each application for a construction permit include a preliminary safety analysis report and requiring each application for an operating license to include a final safety analysis report). 10 C.F.R. § 50.36(b).

12 10 C.F.R. § 50.59(d)(1).

13 Id.

14 10 C.F.R. §§ 50.59(d)(2), 50.70(a) (requiring licensees to permit inspections of records, premises, and activities), 50.71(e) (requiring periodic updates of the UFSAR to include information in support of conclusions by the licensee that changes did not require a license amendment in accordance with 10 C.F.R. § 50.59(c)(2)), 50.71(e)(2) (requiring UFSAR update submittals to identify changes made under the provisions of 10 C.F.R. § 50.59 but not previously submitted to the Commission).

On December 31, 2007, the NRC completed an inspection that reviewed, inter alia, the 2007 St.

Lucie Plant, Unit No. 2 steam generator replacement project, including the 10 C.F.R. § 50.59 evaluations used by FPL to determine that the replacement did not require a license amendment; the NRC inspectors identified no findings of significance.15 II. The 2011 Extended Power Uprate License Amendment Request On February 25, 2011, FPL submitted a license amendment request (LAR) for an extended power uprate (EPU) to increase the licensed core power level at St. Lucie Plant, Unit No. 2 from 2700 megawatts thermal to 3020 megawatts thermal.16 On September 1, 2011, the Commission published a notice of opportunity to request a hearing on this EPU LAR and to access related documents which were otherwise non-public.17 No requests for a hearing or access to documents were received. On September 24, 2012, the Commission issued Amendment No. 163 to the St. Lucie Plant, Unit No. 2 license authorizing the units operation at power levels not in excess of 3020 megawatts thermal.18 15 St. Lucie Nuclear Plant - NRC Integrated Inspection Report 05000335/2007005, 05000389/2007005, § 4OA5.3 "Unit 2 Steam Generator Replacement Inspection (IP 50001)" (Feb. 1, 2008) at 27-33 (ADAMS Accession No. ML080350408); López-Santiago Affidavit at 2-3.

A "finding" is a performance deficiency of More-than-Minor significance." NRC Inspection Manual IMC 0612, "Power Reactor Inspection Reports," at 1 (Jan. 24, 2103) (ADAMS Accession No. ML12244A483). A "Performance Deficiency" is an issue that is the result of a licensee not meeting a requirement or self-imposed standard where the cause was reasonably within the licensee's ability to foresee and correct, and therefore should have been prevented." Id. at 2.

16 Letter L-2011-021 from R. L. Anderson, Site Vice President, St. Lucie Plant, to NRC, at 1 (Feb.

25, 2011) (ADAMS Accession No. ML110730116). The complete EPU-LAR is available in ADAMS Package ML110730268. Some portions are proprietary, and thus not publicly-available.

17 Florida Power & Light Company, St. Lucie Plant, Unit 2 License Amendment Request; Opportunity To Request a Hearing and To Petition for Leave To Intervene, and Commission Order Imposing Procedures for Document Access, 76 Fed. Reg. 54,503 (Sept. 1, 2011).

18 Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 77 Fed. Reg. 63,343, 63,354-63,355 (Oct. 16, 2012).

III. SACEs Hearing Request and CLI-14-04 On March 10, 2014, SACE e-mailed the instant Hearing Request to the Commission.

The Hearing Request was not in response to any notice of opportunity for hearing published in the Federal Register.19 SACEs Hearing Request contains two claims, which SACE labeled as contentions:

Contention 1 The NRC Staff has conducted and is conducting a de facto license amendment proceeding to allow FPL to operate St. Lucie Unit 2 with RSGs that exceed the design basis for the reactor and that do not conform to the reactors technical specifications. Before FPL may be allowed to resume operation of Unit 2, SACE is entitled to a hearing on the license amendment under the Atomic Energy Act, 10 C.F.R. § 50.59, and 10 C.F.R. § 2.309.

Hearing Request at 5-6.

Contention 2 FPL and the NRC Staff have failed to demonstrate that the design changes made by FPL to its RSGs comply with NRC safety regulations 10 C.F.R. §§ 50.92, 50.40, 54.29, 54.33, and 54.35; and Criterion 14 of 10 C.F.R. Part 50, Appendix A. Therefore the NRC Staffs de facto past amendment of the Unit 2 license should be revoked, the Staffs continuing amendment of the Unit 2 license should be enjoined, and restart of Unit 2 should be suspended until FPL has made any design changes necessary to demonstrate that the reactor is safe to operate.

Hearing Request at 17.

SACEs Hearing Request was accompanied by a motion to stay restart of St. Lucie Plant, Unit No. 2 pending completion of a hearing on SACEs proffered contentions (Motion to 19 See Hearing Request at 3 (The fact that the NRC has not formally announced the issuance or consideration of a license amendment does not preclude consideration of this hearing request.).

Stay).20 In CLI-14-04, the Commission stated that both the Hearing Request and Motion to Stay arise from the 2007 steam generator replacement at St. Lucie Plant, Unit No. 2.21 The Commission denied SACEs Motion to Stay and provided an opportunity for FPL and the Staff to file answers to SACEs Hearing Request by April, 28, 2014.22 For the reasons discussed below, SACEs Hearing Request should be denied.

DISCUSSION I. The Hearing Request Should Be Denied Because There is No License Amendment Proceeding, Actual or De Facto, Triggering AEA § 189a. Hearing Rights Section 189a. of the AEA provides that, in any proceeding under the AEA for the amending of a license, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. SACE argues that it is entitled to an AEA § 189a. hearing because of a de facto license amendment relating to the installation of replacement steam generators at St.

Lucie Plant, Unit No. 2.23 As explained below, the Commission should deny SACE's Hearing Request because there is no actual or de facto license amendment related to the St. Lucie Plant, Unit No. 2 steam generators or to the restart of St. Lucie Plant, Unit No. 2. As a result, AEA § 189a. does not provide SACE an opportunity for a hearing.

A. There is No Actual License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2 As SACE recognizes, there is currently no licensing proceeding associated with the steam generators or restart of St. Lucie Plant, Unit No. 2.24 FPL has not submitted a 10 C.F.R. 20 See Hearing Request at 1; see generally Motion to Stay.

21 St. Lucie, CLI-14-04, 79 NRC at __ (slip op. at 2).

22 Id. at 5.

23 See Hearing Request at 1, 5-6, 13. See also St. Lucie, CLI-14-04, 79 NRC at __ (slip op. at 1).

24 See Hearing Request at 3, 21 (noting that the NRC has not announced the issuance or consideration of a license amendment).

§ 50.90 license amendment request associated with the steam generators or restart of St. Lucie Plant, Unit No. 2 and the Staff has not instituted any proceeding to modify, suspend, or revoke FPL's license. Thus, there is no proceeding to amend the St. Lucie Plant, Unit No. 2 license under AEA § 189a. in which SACE can intervene.

Instead of challenging an existing proceeding, SACE challenges a past proceeding, namely the license amendment proceeding associated with FPLs EPU license amendment request.25 SACE claims that a de facto amendment took place through the NRCs approval of the EPU LAR in 201226 and that the plant is not safe to operate given the NRCs grant of the EPU license amendment.27 As an initial matter, SACE is incorrect in claiming that the Staffs approval of the EPU LAR constituted a de facto license amendment. A de facto license amendment is an agency action that is not formally labeled as a license amendment but that has the effect of amending a license, thereby triggering AEA § 189a. hearing rights.28 The Staffs approval of FPLs EPU LAR was formally labeled and constituted an actual license amendment, not a de facto license amendment. Specifically, FPL submitted its EPU LAR on September 1, 2011. The Commission then published a notice of opportunity to request a hearing on the EPU LAR and to access documents which were otherwise non-public.29 Thus, very clearly and openly,30 FPL applied for 25 See Hearing Request at 9-10. SACE also challenges the 2007 steam generator replacement at St. Lucie Plant, Unit No. 2 itself, which is not associated with any proceeding since it was conducted without prior NRC approval pursuant to 10 C.F.R. § 50.59. See, e.g., Hearing Request at 17.

26 Hearing Request at 21 ("For instance, de facto approval of an amendment to the Unit 2 operating license occurred in the 2012 EPU decision, when the NRC Staff reviewed the safety of the altered steam generators under increased power loads and found them safe to operate.").

27 See Hearing Request at 9-11; Gundersen Declaration at 15-17, 25-26.

28 Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 294-95 (1st Cir. 1995) (CAN).

29 76 Fed. Reg. at 54,503.

30 See contra Hearing Request at 22 (claiming that there is a secretive and misleading license amendment proceeding).

a license amendment authorizing use of the RSGs, installed in the fall of 2007, at EPU power levels.31 FPLs submittal of the EPU LAR triggered an actual license amendment proceeding under AEA § 189a. in which SACE could have requested a hearing.32 SACE, however, chose not to request a hearing.

Moreover, SACEs instant Hearing Request does not explain how the Staffs approval of FPLs EPU LAR, which constituted and was labeled an actual, not a de facto, license amendment at the time,33 somehow went beyond what was requested by FPL so that it would constitute some sort of de facto license amendment. Therefore, SACEs challenges to the EPU licensing action are untimely and unsupported by law. If SACE seeks to revoke the EPU license amendment, its recourse is to file a 10 C.F.R. § 2.206 petition.34 B. There is No De Facto License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2 SACEs primary claim is that there is a past and ongoing de facto license amendment proceeding related to the St. Lucie Plant, Unit No. 2 steam generators which provides SACE 31 Attachment 5 to Letter L-2011-021, St. Lucie Unit 2 EPU Licensing Report, § 2.2.2.5 "Steam Generators and Supports" at § 2.2.2.5.1 "Introduction," page 2.2.2-57 (ADAMS Accession No. ML110730299) ("The technical evaluation included as part of this LR describes the input parameters, assumptions and acceptance criteria used to evaluate SG performance relative to the EPU.").

FPL's EPU LAR specifically discussed the two St. Lucie Plant, Unit No. 2 RSGs and described how the steam generators and associated supports were considered through the following ten evaluations: 1. Thermal-hydraulic, 2. Structural integrity, 3. Design pressure differential, 4. Tube integrity,

5. Tube vibration and wear evaluation, 6. Foreign objects, 7. Tube repair hardware, 8. Steam drum, 9.

Chemistry, and 10. Supports. Id.

32 76 Fed. Reg. at 54,503.

33 See St. Lucie Plant, Unit 2 - Issuance of Amendment Regarding Extended Power Uprate (TAC No. ME5843) (Sep. 24, 2012). Attachment to License Amendment No. 163 to Renewed Facility Operating License No. NPF-16 Docket No. 50-389, at 3 (ADAMS Accession No. ML12235A463) (issuing Amendment No. 163 to NPF-16 authorizing operation at power levels not in excess of 3020 megawatts thermal).

34 See General Pub. Util. Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2) (Oyster Creek Nuclear Generator Station), CLI-85-4, 21 NRC 561, 562 n.3 (1985).

with AEA § 189a. hearing rights.35 As noted above, a de facto license amendment is an agency action not formally labeled a license amendment but that has the effect of amending a license, thereby triggering AEA § 189a. hearing rights.36 SACE claims that FPL should have submitted a license amendment to replace the steam generators in 2007 and that a de facto license amendment proceeding exists because the Staff has permitted FPL to operate ever since the replacement with these significant design changes.37 Specifically, SACE claims that de facto license amendments occurred as a result of the Staffs inaction after reviewing three post-outage TS Section 6.9.1.12 Steam Generator Tube Inspection Reports and that a de facto license amendment is ongoing under the umbrella of the Staff's 2014 inspection of FPL's inservice inspection (ISI) activities.38 SACE asserts that these Staff activities constitute an ongoing process for de facto approval that effectively amends FPLs license.39 SACE further asserts that this alleged de facto amendment renders the plant unsafe and should be enjoined before restart can safely occur.40 But SACEs Hearing Request does not demonstrate that there was or is a de facto license amendment; instead, it demonstrates a misunderstanding of the Commissions de facto case law and the purpose and effect of the Staffs inspection activities.

1. The Commissions Perry Decision Provides the Standard for What Constitutes a De Facto License Amendment SACEs Hearing Request demonstrates a misunderstanding of the Commissions de facto license amendment case law and what constitutes a de facto license amendment.

35 See, e.g., Hearing Request at 5-6.

36 CAN, 59 F.3d at 294-95.

37 Hearing Request at 1-2.

38 Id. at 21-22.

39 Id. at 1-2.

40 See, e.g., Hearing Request at 17.

For example, SACE is mistaken to the extent that it claims that the vacated41 San Onofre Nuclear Generating Station (SONGS) Confirmatory Action Letter (CAL) Board decision, LBP 07,42 provides the relevant and legally binding de facto license amendment standard.43 Instead, the Commissions decision in Perry44 provides the relevant and legally binding de facto license amendment standard.45 Under Perry, the proper question in a de facto license amendment case is whether a completed agency action effectively amends a license.46 In Perry, the Commission considered whether a Staff approval constituted a de facto license amendment. The Commission stated that, if the NRC approval does not permit the licensee to operate in any greater capacity than originally prescribed and all relevant safety regulations and license terms remain applicable, the NRC approval does not amend the license.47 Notably, this de facto license amendment analysis does not look to licensee 41 See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

CLI-13-09, 78 NRC __, __ (slip op. at 12) (Dec. 5, 2013) (vacating LBP-13-07). The Commission has stated that vacated decisions should not be used for guidance. Consumers Power Co. (Palisades Nuclear Power Facility), CLI-82-18, 16 NRC 50, 52 (1982). And vacated decisions cannot create legal precedent binding on future tribunals. However, NRC litigants are not prohibited from referencing a vacated decision. San Onofre, CLI-13-09, 78 NRC at __ (slip op. at 11 n.34).

42 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

LBP-13-07, 77 NRC __ (May 13, 2013) (slip op.), vacated as moot, CLI-13-09, 78 NRC at __ (Dec. 5, 2013) (slip op. at 12).

43 See Hearing Request at 14.

44 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 326-328 (1996) (Perry).

45 The Commission recently affirmed that Perry provides the proper de facto license amendment standard. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

CLI-12-20, 76 NRC 437, 441 n.15 (2012) (citing Perry when asking a Board to consider whether a Staff Confirmatory Action Letter constituted a de facto license amendment). Notably, the SONGS CAL Board stated that its de facto license amendment analysis departed from Perry in that, instead of looking backward to determine whether a completed Staff action effectively constituted a license amendment, the Board analyzed whether a future hypothetical Staff action (i.e., approval of SCEs Unit 2 Return to Service Plan) would effect a license amendment. See San Onofre, LBP-13-07, 77 NRC at __ (May 13, 2013) (slip op. at 22-23).

46 Perry, CLI-96-13, 44 NRC at 327.

47 Id.

activities under 10 C.F.R. § 50.59 or hypothetical future Staff actions when determining whether there is a de facto license amendment.48 The Perry decision is in line with an earlier Appeal Board decision49 and Federal case law.50 Thus, the Commission should not accept SACEs argument that the standard outlined in the vacated SONGS CAL Board decision applies to its Hearing Request.51 Instead, Perry should be applied here, and in every instance where there is a challenge that an NRC action constitutes a de facto license amendment. As explained below, SACE has not shown how any Staff action related to the steam generators or restart of St. Lucie Plant, Unit No. 2 constitutes a de facto license amendment under Perry.

2. SACE Does Not Indicate How the Staffs Inspection Activities Constitute a De Facto License Amendment SACE claims that the Staffs past and current inspection activities constitute a de facto license amendment. For example, SACE argues that the NRCs inservice inspection activities repeatedly amended FPL's license to allow significant alterations to the design basis of St. Lucie Plant, Unit No. 2.52 SACE asserts that the Staff has some sort of ongoing approval process related to the operation of the steam generators that effectively amends the license.53 48 The de facto license amendment analysis also does not look at a licensees activities in response to a Staff action. See Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2),

ALAB-940, 32 NRC 225, 237 (1990) (considering only the Staffs issuance of the CAL, and not the licensees activities in response to the CAL, when determining whether there was a de facto suspension of the license).

49 See Seabrook, ALAB-940, 32 NRC at 237.

50 See CAN, 59 F.3d at 284.

51 See Hearing Request at 14 (suggesting that the SONGS Board decision provides the relevant de facto analysis). See San Onofre, CLI-13-09, 78 NRC at __ (slip op. at 11) (noting that litigants can cite to vacated decisions as support for an argument and the presiding officer will then consider whether such an argument is persuasive).

52 See, e.g., Gundersen Declaration at 27 (asserting that the Staff's baseline inservice inspection is used to "approv[e] the operation of [St. Lucie,] Unit 2 outside its design basis); Hearing Request at 3 (asserting that inspection and the analysis of its results would constitute a licensing action).

53 Hearing Request at 1.

SACEs claims demonstrate a misunderstanding of the purpose and effect of the Staffs inspection and enforcement activities.

Consistent with its regulatory process, the NRC Staff oversees FPL's operations though inspections, assessments of performance, and enforcement, and documents the results of the NRC's inspections.54 In this role:

The NRC staff focuses on ensuring adequate tube integrity by requiring licensee compliance with applicable regulations and Technical Specification requirements. The staff uses its field inspections, meetings with the licensee, and licensing reviews to ensure that the licensee satisfies the regulations and plant Technical Specifications as they apply to steam generator tube integrity and that appropriate inspection methods . . . are used to address specific forms of degradation. Plant Technical Specifications . . . specify the scope of [the licensee's] inspections and reporting requirements and set forth . . . limits for allowable leakage in the reactor coolant system. NRC regulations and plant Technical Specifications require that steam generator tube degradation be managed through a combination of inservice inspection, . . . primary-to-secondary leakage monitoring, and structural and run-time analyses to ensure that safety objectives are met.55 Thus, the Staffs inspection activities are not de facto license amendments under the Commissions Perry standard: they are not approvals of any kind, much less approvals that expand FPLs authority or alter any relevant safety regulations or license terms. Instead, the Staffs inspection activities verify compliance with the existing license. Therefore, none of the Staffs inspections, meetings with FPL, or reviews of a report required to be submitted by FPLs technical specifications constitute a de facto license amendment.

54 The relevant inspection reports for St. Lucie Plant, Unit No. 2 may be accessed at http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/listofrpts_body.html.

55 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), DD-96-19, 44 NRC 283, 286 (1996) (footnote omitted).

3. SACE Does Not Indicate How Staff Inaction Has Effectively Amended FPLs License SACE also argues that the Staffs inaction has effectively amended FPLs license and therefore constitutes a de facto license amendment. For example, SACE claims that the Staff failed to require FPL to change the St. Lucie Plant, Unit No. 2, steam generator design to conform to the technical specifications.56 SACE also claims that the Staff allowed the plant to operate despite inspection findings suggesting a safety issue.57 As an initial matter, SACE offers no support for its legal theory that an agency inaction can constitute a de facto license amendment. Rather, under Commission and Federal case law, a de facto license amendment requires an affirmative NRC action such as an approval,58 a Commission policy change,59 or a Commission order.60 SACE points to no Staff decision, no Staff approval, no Commission order or policy change, and no Staff-issued document such as an inspection report or policy statement, wherein the Staff or Commission took an affirmative step effectively changing FPL's license to eliminate an identified violation.61 Thus, SACE has not indicated how there has been any Staff or Commission action constituting a de facto license amendment.

This is not surprising, as there has, in fact, been no Staff or Commission action constituting a de facto amendment of the St. Lucie Plant, Unit No. 2 license. As previously explained in a Staff Affidavit submitted as part of the Staffs answer to SACEs Motion to Stay, 56 See Hearing Request at 3.

57 See id. at 2 (claiming that the Staff allowed FPL to operate after inspection findings that showed a high and increasing rate of damage to [the] steam generator tubes).

58 See generally CAN.

59 See CAN, 59 F.3d at 294-95.

60 See Sholly v. NRC, 651 F.2d 780, 791 (D.C. Cir 1980).

61 Likewise, SACEs Motion to Stay pointed to no Staff action or decision relating to restart. See St. Lucie, CLI-14-04, 79 NRC at __ (slip op. at 4).

the past and future routine reviews of the licensee's inservice inspection activities do not amount to ongoing amendment proceedings that change the licensees license.62 Instead, the inspections verify compliance with the existing license.63 Similarly, as explained in the attached affidavit of Kenneth J. Karwoski, the Staffs review of the steam generator inspection reports verify compliance with the existing license.64 Instead of showing that there has been a de facto license amendment, SACEs Hearing Request indicates that SACE seeks to amend or revoke FPLs license. As the Commission has explained, it cannot revoke a license without instituting an enforcement proceeding.65 SACE could seek such a proceeding by filing a 10 C.F.R. § 2.206 petition. In fact, a 10 C.F.R. § 2.206 petition related to the St. Lucie Plant, Unit No. 2 steam generators has been filed by another petitioner.66 SACE recognizes but rejects this process.67 However, in doing so, SACE rejects established Commission process.68

4. FPLs 10 C.F.R. § 50.59 Actions Do Not Constitute De Facto or Actual License Amendments SACE also claims that FPLs actions taken pursuant to 10 C.F.R. § 50.59 constitute de facto license amendments. For example, SACE asserts that FPLs replacement of the St. Lucie Plant, Unit No. 2 steam generators did not comply with 10 C.F.R. § 50.59 and that, therefore, 62 López-Santiago Affidavit at 3-4.

63 Id. at 4.

64 Karwoski Affidavit at 6.

65 Three Mile Island/Oyster Creek, CLI-85-4, 21 NRC at 562 n.3.

66 See Thomas Saporito Ltr. Re: 2.206 - Florida Power & Light Company (Mar. 12, 2014)

(ADAMS Package No. ML14071A025).

67 Hearing Request at 24 (stating that a 10 C.F.R. § 2.206 petition would provide SACE with no meaningful recourse).

68 San Onofre, CLI-12-20, 76 NRC at 439-440 (The 2.206 process provides stakeholders a forum to advance their concerns and to obtain full or partial relief, or written reasons why the requested relief is not warranted.).

FPL is operat[ing] outside the scope or restrictions of its existing license.69 SACE references the vacated SONGS CAL Board decision for the proposition that this argument suggests a de facto license amendment.70 In that decision, the SONGS CAL Board stated that 10 C.F.R.

§ 50.59 could be used as guidance in determining what constitutes a de facto license amendment.71 Once again, SACEs claims demonstrate a fundamental misunderstanding of de facto license amendment case law. As discussed above, the Commissions binding de facto case law provides that only a completed agency action can constitute a de facto licensing action triggering AEA § 189a. hearing rights.72 Specifically, under Perry, the de facto license amendment analysis turns on whether NRC approval of an activity allowed a licensee to operate in any greater capacity than originally prescribed.73 An action under 10 C.F.R. § 50.59 is a licensee action, not an agency action. As a result of its 10 C.F.R. § 50.59 evaluation, a licensee could conclude that it must obtain a license amendment pursuant to 10 C.F.R. § 50.90 prior to implementing a proposed change, test, or experiment.74 But the licensee's 10 C.F.R. § 50.59 evaluation is not, and cannot, constitute a de facto license amendment because the licensee's evaluation is not an NRC action.

69 Hearing Request at 14. See also, id. at 2 (Under 10 C.F.R. § 50.59, FPLs drastic alterations to the original and renewed design of the Unit 2 steam generators required a license amendment before FPL could implement them.).

70 See Hearing Request at 14.

71 San Onofre, LBP-13-07, 77 NRC at __ (slip op. at 23).

72 See Perry, CLI-96-13, 44 NRC at 327; Seabrook, ALAB-940, 32 NRC at 235-236; CAN, 59 F.3d at 294-95.

73 Perry, CLI-96-13, 44 NRC at 327.

74 10 C.F.R. § 50.59(c)(2).

SACEs claims also demonstrate a misunderstanding of the criteria in 10 C.F.R. § 50.59.

These criteria are not relevant to a de facto license amendment inquiry under Perry.75 The standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) do not apply to NRC approvals or actions.

Instead, the 10 C.F.R. § 50.59 criteria govern the licensees determination of whether a proposed change to the UFSAR, which is a component of the facilitys licensing basis,76 requires the licensee first to obtain an amendment under 10 C.F.R. § 50.90.77 Thus, the standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) do not address the question of whether a given agency activity constitutes a change in operating authority that effects a de facto amendment to a license.

Further, licensee actions under 10 C.F.R. § 50.59 do not effect an actual amendment to a license. Under the Commissions regulations, when a licensee desires to amend its license, it does so under 10 C.F.R. § 50.90,78 which triggers a license amendment proceeding with associated AEA § 189a. hearing rights. In a 10 C.F.R. § 50.90 license amendment proceeding, the license is not amended unless and until the Staff approves the request.79 And while a 75 See contra San Onofre, LBP-13-07, 77 NRC at __ (slip op. at 23).

76 The UFSAR constitutes part of the licensing basis, with which the licensee must comply when operating the facility. See 10 C.F.R. § 54.3 (noting that the current licensing basis is the set of NRC requirements applicable to a specific plant and includes parts of the UFSAR). Although the definition in 10 C.F.R. § 54.3 applies to Part 54 license renewal, it reflects the Commissions understanding of the normal requirements governing plant operation outside the license renewal context. Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,949 (Dec. 13, 1991) (final rule).

77 10 C.F.R. § 50.59(c). Under 10 C.F.R. § 50.59, licensees screen out activities which do not change the analysis in the UFSAR before considering those activities under the standards in 10 C.F.R. § 50.59(c)(1) and (c)(2). NEI 96-07, Nuclear Energy Institute Guidelines for 10 CFR 50.59 Safety Evaluations, at 29, 30 (25, 26) (July 1996) (ADAMS Accession No. ML060270176). Consequently, the analysis of an activity under the standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) already presupposes that the activity constitutes a change to the licensees operating authority as described in the UFSAR.

78 See 10 C.F.R. § 50.90 (Whenever a holder of a license . . . desires to amend the license . . .

application for an amendment must be filed with the Commission . . . .).

79 Thus, contrary to SACEs claim, the Staffs approval of a license amendment request is not a de facto approval or de facto license amendment. See Hearing Request at 21 (claiming that there was a de facto approval associated with the Staffs actual approval of FPLs EPU LAR).

licensee can make changes under 10 C.F.R. § 50.59 without receiving prior NRC approval under 10 C.F.R. § 50.90,80 these changes do not amend the license.81 If a licensee does not properly perform its 10 C.F.R. § 50.59 analysis and makes a change requiring prior Commission approval without a license amendment request, the licensee has not amended its license.

Instead, the licensee is in violation of the Commissions regulations and thus subject to enforcement action.82 Thus, SACE does not show that any action taken by FPL under 10 C.F.R. § 50.59 constituted a de facto or actual license amendment. Instead, SACEs challenges to FPLs 10 C.F.R. § 50.59 activities constitute the type of challenges that the Commission has consistently held can only be made via a 10 C.F.R. § 2.206 petition.83 80 See 10 C.F.R. § 50.59. The 10 C.F.R. § 50.59 criteria address whether a licensee may make changes to the plant or to the UFSAR without first submitting a license amendment to the NRC. In contrast, de facto license amendments occur when a completed Staff action effectively amends a license, without a license amendment request being submitted.

81 As noted, the standards in 10 C.F.R. § 50.59(c)(1) and (c)(2) provide licensees a regulatory framework for determining whether proposed changes to the UFSAR, which is part of the facilitys current licensing basis, require a license amendment prior to implementation.

82 See 10 C.F.R. § 50.100.

There is no requirement for licensees to individually submit 10 C.F.R. § 50.59 analyses to the NRC although they are maintained onsite available for inspection. Additionally, licensees shall update periodically . . . the [FSAR] . . . [which] shall include the effects of . . . all safety analyses and evaluations performed by the . . . licensee . . . in support of conclusions that changes did not require a license amendment in accordance with § 50.59(c)(2) . . . . 10 C.F.R. § 50.71(e).

83 See San Onfore, CLI-12-20, 76 NRC at 439 n.10 (citing Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC at 101 n.7 (1994) (A member of the public may challenge an action taken under 10 C.F.R. § 50.59 only by means of a petition under 10 C.F.R. § 2.206.)). See id. at 440, n.13 (referring challenges to 10 C.F.R. § 50.59 analyses done in support of a SG replacement to the EDO for consideration as a 10 C.F.R. § 2.206 petition).

II. SACEs Hearing Request Does Not Meet the Commissions Contention Admissibility Standards Because There Is No Proceeding in Which to Intervene Section 189a. of the AEA provides a hearing opportunity to any person whose interest may be affected by a license amendment proceeding under the AEA.84 The purpose of AEA § 189a. hearings is to allow for meaningful public participation and prompt resolution of issues in controversy in a licensing proceeding.85 The Commission has helped serve this purpose by establishing standing86 and contention admissibility requirements87 which must be met before an AEA § 189a. hearing will be granted.88 Importantly, these standing and contention admissibility requirements presume that a licensing proceeding exists.89 Indeed, all proffered contentions must be within the scope of the 84 42 U.S.C. § 2239. Sec. 189.a. does not mandate a hearing on license amendments; rather, a hearing will only be held if a hearing request is submitted and the requestor demonstrates standing and offers at least one admissible contention. City of West Chicago v. NRC, 701 F.2d 632, 639 (7th Cir.

1983). See 10 C.F.R. § 2.309 (requestor must demonstrate standing and offer at least one admissible contention before the Commission will grant an AEA § 189a. hearing).

85 See Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998) (noting that the opportunity for hearing should be a meaningful one that focuses on genuine issues and real disputes regarding agency actions subject to adjudication. By the same token, however, applicants for a license are also entitled to a prompt resolution of disputes concerning their applications.).

86 10 C.F.R. § 2.309(a) (providing that any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing).

87 To be admissible, a contention must satisfy each of the six basic requirements in 10 C.F.R.

§ 2.309(f)(1)(i)-(vi). Failure to comply with any of these requirements is grounds for finding a contention inadmissible. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 636 (2004).

88 The Commission, presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request for hearing and/or petition for leave to intervene, will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of 10 C.F.R. § 2.309(d) and has proposed at least one admissible contention that meets the requirements of 10 C.F.R. § 2.309(f). 10 C.F.R. § 2.309(a).

89 See, e.g., 10 C.F.R. § 2.309(a) (Any person whose interest may be affected by a proceeding .

. . .), 10 C.F.R. § 2.309(b)(4) (In proceedings . . . .), 10 C.F.R. § 2.309(d)(1)(ii) (The nature of the requestors/petitioners right under the [AEA] to be made a party to the proceeding . . . .), 10 C.F.R. § 2.309(f)(1)(iii) (Demonstrate that the issue raised in the contention is within the scope of the proceeding .

. . .), 10 C.F.R. § 2.309(f)(1)(iv) (Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding . . . .).

proceeding.90 Any contention that falls outside the specified scope of the proceeding must be rejected.91 As discussed above, there is no actual or de facto licensing proceeding related to the St. Lucie Plant, Unit No. 2 steam generators or restart. Thus, as explained in detail below, SACE does not meet the Commissions standing and contention admissibility requirements in 10 C.F.R. § 2.309.92 First, SACE does not demonstrate standing under 10 C.F.R. § 2.309(d). Under 10 C.F.R. § 2.309(d)(1), a petitioner must state the nature of the petitioners right under the AEA to be made a party to the proceeding. SACE claims that it is entitled to a hearing under the AEA based on its de facto license amendment claims.93 SACE claims that its members interests may be affected by the results of this alleged proceeding.94 But SACE has not demonstrated that there is a de facto license amendment proceeding. Therefore, the AEA does not provide SACE hearing rights.95 Likewise, SACE cannot state the possible effect of any decision or order that may be issued in the proceeding on its interests,96 because there is no proceeding, 90 See 10 C.F.R. § 2.309(f)(1)(iii); Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, 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).

91 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 11, 74 NRC 427, 435-36 (2011).

92 It is axiomatic that a person cannot intervene in a proceeding before the proceeding actually exists. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-12, 59 NRC 237, 240 (2004).

93 See Hearing Request at 13.

94 Id. at 4.

95 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 677 (2008) (participation in the adjudicatory hearing process is not automatic.).

96 See 10 C.F.R. § 2.309(d)(1)(iv).

decision, or order. Thus, SACE does not demonstrate standing and the Commission cannot make a determination on standing.97 Second, SACE does not meet the contention admissibility requirements in 10 C.F.R.

§ 2.309(f)(1). As previously discussed, there is no application to amend FPLs license, no de facto license amendment, and no NRC Staff action, decision, or approval required for restart or related to the St. Lucie Plant, Unit No. 2 steam generators. Thus, SACEs Hearing Request, which claims that there must be a hearing related to the St. Lucie Plant, Unit No. 2 steam generators prior to restart,98 does not demonstrate that it raises a genuine material dispute with any application or that it raises issues material to any findings the Staff must make.99 Moreover, SACE does not raise any issues within the scope of a proceeding because there is no proceeding.100 Put simply, the scope requirement of 10 C.F.R. § 2.309(f)(1)(iii) is related to the requirements in 10 C.F.R. § 2.309(f)(1)(iv) and (v); if an issue is not within the scope of a proceeding, then it is also necessarily not legally or factually material at the contention admissibility stage.101 Therefore, SACEs proffered contentions should be rejected.

Finally, SACE does not meet the Commissions timeliness requirements in 10 C.F.R.

§ 2.309(b) and (c). These requirements are typically provided in the Federal Register notice 97 See 10 C.F.R. § 2.309(d)(2) (The Commission must determine among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in paragraph 10 C.F.R. § 2.309(d)(1).").

98 Hearing Request at 4.

99 See 10 C.F.R. § 2.309(f)(1)(iii) (all proffered contentions must be within the scope of the proceeding). As noted in the Staffs Answer to SACEs Motion to Stay, there are no findings the Staff must make related to restart. See also St. Lucie, CLI-14-04, 79 NRC at __ (slip op. at 4) (noting that SACE did not identify any Staff action or decision relating to restart).

100 See 10 C.F.R. § 2.309(f)(1)(iii); Turkey Point, CLI-00-23, 52 NRC at 329; Catawba, ALAB-825, 22 NRC at 790-91.

101 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), DD-07-3, 65 NRC 643, 658 (2007).

associated with a given licensing action.102 As discussed above, there is no actual or de facto licensing action associated with the St. Lucie Plant, Unit No. 2 steam generators or restart.

Thus, there is no date103 to trigger the timely submittal of a hearing request. Instead, SACEs timeliness arguments focus on the use of the RSGs at the current (uprated) power. But these claims are not timely because the associated license amendment proceeding is long past.104 SACE also does not demonstrate that its challenges to FPL's 10 C.F.R. § 50.59 evaluations, including FPLs decision under 10 C.F.R. § 50.59(c)(1) not to obtain a license amendment for the replacement of the St. Lucie, Unit No. 2 steam generators, are timely under 10 C.F.R. § 2.309 because those claims are not cognizable in a 10 C.F.R. § 2.309 hearing.105 Similarly, SACE does not demonstrate that its challenges to past and current Staff activity are timely because SACE does not indicate how any Staff action effected a licensing action, thereby triggering a timing requirement.

For all of these reasons, SACEs Hearing Request does not meet the 10 C.F.R. § 2.309 requirements and should be denied.

102 10 C.F.R. § 2.309(b).

103 The Staff assumes that in a de facto licensing proceeding, the triggering date would be the date on which the Staff took the action claimed to be a de facto amendment or suspension. For example, in the SONGS CAL proceeding, the date was March 27, 2012, the day the Staff issued the CAL to the licensee that was claimed to effect a license amendment.

104 The issuance of the EPU license amendment occurred on Sept. 24, 2012. See St. Lucie Plant, Unit 2 - Issuance of Amendment Regarding Extended Power Uprate (TAC No. ME5843) (Sep. 24, 2012). Attachment to License Amendment No. 163 to Renewed Facility Operating License No. NPF-16 Docket No. 50-389, at 3 (ADAMS Accession No. ML12235A463) (issuing Amendment No. 163 to NPF-16 authorizing operation at power levels not in excess of 3020 megawatts thermal).

105 Yankee, CLI-94-3, 39 NRC at n.10; San Onofre, CLI-12-20 76 NRC at 440, n.13 (referring challenges to 10 C.F.R. § 50.59 analyses to the EDO for consideration as a 10 C.F.R. § 2.206 petition);

FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-13-11, 77 NRC __,

__ (Aug. 12, 2013) (slip op. at 4-5) (holding that a challenge to FirstEnergys analysis under 10 C.F.R. § 50.59 of its proposed steam generator replacement is not the proper subject of an adjudicatory hearing and that the Commission has prohibited Licensing Boards from hearing challenges to actions taken under 10 C.F.R. § 50.59).

III. Even Assuming Arguendo That a De Facto Proceeding Exists, SACEs Hearing Request Does Not Meet 10 C.F.R. § 2.309 Even assuming, arguendo, that there was a de facto license amendment proceeding, SACEs Hearing Request should be denied because it does not meet the 10 C.F.R. § 2.309 requirements to demonstrate standing and proffer an admissible and timely contention.

A. SACE Does Not Have Standing Because It Does Not Demonstrate the Existence of Any Injury-in-Fact Traceable to an NRC Action SACEs Hearing Request must be denied because, even assuming arguendo that there was a de facto license amendment proceeding, SACE has not demonstrated standing under 10 C.F.R. § 2.309(d). To establish standing in a proceeding under 10 C.F.R. § 2.309(d), a petitioner must provide a sufficiently particularized106 pleading of an injury-in-fact that is fairly traceable to the challenged Staff action107 and falls among the general interests protected by the AEA and is likely to be redressed by a favorable decision.108 An organization like SACE may establish standing under 10 C.F.R. § 2.309(d) by demonstrating how at least one of its members may be affected by the licensing action and showing that the organization is authorized to represent that member.109 SACEs Hearing Request is supported by several standing declarations. But these declarations are insufficient to demonstrate standing.

SACE claims that it has presumptive standing by virtue of its members less-than 106 Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976).

107 See Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-04-01, 59 NRC 1, 4 (2004) (no injury-in-fact can result where no new activity is proposed).

108 International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 250 (2001) (citing Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-02, 53 NRC 9, 13 (2001)). See also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998); Kelley v. Selin, 42 F.3d 1501, 1508 (6th Cir. 1995).

109 White Mesa, CLI-01-21, 54 NRC at 250; GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 NRC 193, 202 (2000).

mile-proximity to St. Lucie Plant, Unit No. 2.110 However, a presumption of standing based on proximity is only recognized in a license amendment proceeding when the proposed amendment quite obviously entails an increased potential for offsite consequences.111 SACE does not make this showing. Instead, SACE only generally claims that an alleged past and ongoing de facto license amendment has increased the risk posed by St. Lucie Plant, Unit No. 2 and that an accident and consequent offsite radiation release would devastate its members health, property values, and community.112 These general claims do not establish an obvious increase in the potential for offsite consequences. Thus, SACE has not shown that it is entitled to a proximity presumption.113 Because it is not entitled to a proximity presumption, to demonstrate standing SACE must show a particularized injury-in-fact that is fairly traceable to a Staff action.114 SACEs Hearing Request does not make this demonstration. SACE asserts it has standing based on its interest in the safe operation of the plant given changes to the St. Lucie Plant, Unit No. 2 steam generators.115 But, as discussed above, the changes made to the St. Lucie Plant, Unit No. 2 steam generators were not Staff actions. Instead, the replacement of the steam generators was 110 Hearing Request at 5 (asserting that SACE has standing to intervene because it has many members who live, work, and own property within 50 miles of the St. Lucie Unit 2 reactor, and their interests may be affected by the results of the proceeding).

111 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-04, 49 NRC 185, 191 (1999).

112 Hearing Request at 5.

113 Florida Power & Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989)

(citing Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 8 AEC 222, 226 (1974)).

114 See USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 311-12 (2005) (Where there is no obvious potential for radiological harm at a particular distance frequented by a petitioner, it becomes the petitioner's burden to show a specific and plausible means of how the challenged action may harm him or her.).

115 See, e.g., Declaration of Standing of Mary Jo Aagerstoun at paragraph 6.

done under 10 C.F.R. § 50.59. Thus, SACE cannot show any injury-in-fact traceable to a Staff action related to the replacement of the steam generators.

Likewise, SACE has not shown any injury-in-fact traceable to a Staff action related to restart, because SACE has not identified any Staff action or decision related to restart.116 To the extent that the Staff approved any changes to the St. Lucie Plant, Unit No. 2 steam generators in 2012 when it approved the EPU LAR, SACE should have sought to participate and demonstrate how its interest would be affected by that proceeding. But now, there is no NRC action or decision that could lead to injury-in-fact or be redressed. Therefore, SACE has not demonstrated standing.

SACEs Hearing Request also fails to make a sufficient showing of any injury-in-fact. To demonstrate an injury-in-fact in a license amendment proceeding, a petitioner must show that it has personally suffered or will personally suffer in the future a distinct and palpable harm that constitutes injury-in-fact.117 SACE does not make this showing. Instead, SACEs members express general concerns that the risk of a radiological accident at St. Lucie Plant, Unit No. 2 is increasing because of the worn steam generator tubes and that such wear may be related to differences between the designs of the OSGs and the RSGs.118 SACEs claimed threats are speculative and do not show the requisite foreseeable injury-in-fact.119 B. SACEs Contentions Do Not Meet 10 C.F.R. § 2.309(f)(1)

Moreover, even assuming, arguendo, that there was a de facto license amendment proceeding, SACEs contentions do not meet 10 C.F.R. § 2.309(f)(1) and should therefore be 116 See St. Lucie, CLI-14-04, 79 NRC at __ (slip op. at 4) (noting that SACE did not identify any Staff action or decision relating to restart).

117 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-08-18, 68 NRC 533, 538 (2008).

118 See, e.g., Declaration of Standing of Mary Jo Aagerstoun.

119 See Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994).

denied.120 The 10 C.F.R. § 2.309(f)(1) requirements are strict by design121 and serve to: (1) assure that the contention raises a matter appropriate for adjudication in a particular proceeding;122 (2) establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose. Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20 (1974); Arizona Pub.

Service Co. (Palo Verde Nuclear Station, Units Nos. 1, 2 and 3), LBP-91-19, 33 NRC 397, 400 (1991). Thus, a contention must be rejected if:

(1) it constitutes an attack on applicable statutory requirements; (2) it challenges the basic structure of the Commissions regulatory process or is an attack on the regulations; (3) it is nothing more than a generalization regarding the petitioners view of what applicable policies ought to be; (4) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (5) it seeks to raise an issue which is not concrete or litigable.123 120 Millstone, CLI-04-36, 60 NRC at 636 (failure to comply with any of the six basic requirements in 10 C.F.R. § 2.309(f)(1)(i)-(vi) is grounds for finding a contention inadmissible).

121 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 233 (2008).

122 See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004) (final rule)

(stating that the hearing process [is only intended for] issue[s] that [are] appropriate for, and susceptible to, resolution in an NRC hearing.).

123 Peach Bottom, ALAB-216, 8 AEC at 20-21. See also Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 and 7), LBP-11-6, 73 NRC 149, 253 n.16 (2011).

These contention admissibility requirements are designed to obviate serious hearing delays caused by poorly defined or supported contentions.124 Thus, these requirements prevent the admission of contentions that appear to be based on little more than speculation.

For the reasons discussed below, SACEs contentions do not meet the 10 C.F.R.

§ 2.309(f)(1) contention admissibility requirements

1. SACEs Claims Challenge the Commissions Regulatory Process As the Commission noted in CLI-14-04, SACEs Hearing Request arises from the St.

Lucie Plant, Unit No. 2 steam generator replacement in 2007.125 For example, in support of Contention 1, SACE presents Mr. Gundersen's opinion that: (1) FPL violated its license and 10 C.F.R. § 50.59 by installing RSGs in 2007 without first obtaining a license amendment; (2) the NRC Staff effectively granted the RSG license amendment request by allowing FPL to restart St. Lucie Plant, Unit No. 2 after each of the three post-RSG refueling/inspection outages, and is in the process of doing so again; and (3) the RSG are not designed safely.126 Similarly, in support of proffered Contention 2, SACE claims that the Staff did not demonstrate that FPL's changes comply with regulations.127 Even assuming arguendo that there is a de facto license amendment proceeding based on SACEs claims, SACEs proffered contentions are inadmissible because they challenge the Commissions regulatory process.128 At bottom, SACEs claims challenge 10 C.F.R. § 50.59 analyses, the Staffs review, and suggest that the license should be modified, revoked, or suspended. But the Commission has made clear that none of these challenges should be 124 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999).

125 St. Lucie, CLI-14-04, 79 NRC at __ (slip op. at 2).

126 Gundersen Declaration at 3.

127 Hearing Request at 17.

128 Peach Bottom, ALAB-216, 8 AEC at 20-21.

raised in a 10 C.F.R. § 2.309 hearing. Specifically, the Commission has repeatedly stated that challenges to a licensees 10 C.F.R. § 50.59 analyses are not litigable in 10 C.F.R. § 2.309 hearings; instead, they should be raised via a 10 C.F.R. § 2.206 petition.129 Likewise, it is well established that contentions claiming that the NRC Staff has not performed an adequate analysis are outside the scope of licensing proceedings.130 Similarly, the Commission has held that challenges that a licensee is not meeting its license requirements should be submitted through the 10 C.F.R. § 2.206 process.131 Thus, to the extent that SACEs contentions challenge 10 C.F.R. § 50.59 analyses, the Staffs review, or the Staffs enforcement of FPLs license, they are inadmissible challenges to the basic structure of the Commissions regulatory process.

In fact, SACE recognizes but rejects the Commissions 10 C.F.R. § 2.206 process, saying that it would provide no meaningful recourse.132 But the Commission has recently disagreed with this very argument. Specifically, when considering a petitioners request to institute an AEA § 189a. license amendment hearing based on allegedly deficient 10 C.F.R. § 129 See e.g., San Onofre, CLI-12-20 76 NRC at 440, n.13 (referring challenges to 10 C.F.R. § 50.59 analyses to the EDO for consideration as a 10 C.F.R. § 2.206 petition). This same result was reached in Davis-Besse, LBP-13-11, 77 NRC __, __ (Aug. 12, 2013) (slip op. at 4-5) (holding that a challenge to FirstEnergys analysis under 10 C.F.R. § 50.59 of its proposed steam generator replacement is not the proper subject of an adjudicatory hearing and that the Commission has prohibited Licensing Boards from hearing challenges to actions taken under 10 C.F.R. § 50.59.).

130 See e.g., Tennessee Valley Auth. (Sequoyah Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 37 (2002) (It is a well-established principle of NRC adjudication that contentions must rest on the license application, not on NRC Staff reviews. As the Commission stated when it amended the contentions rule, a contention will not be admitted if the allegation is that the NRC Staff has not performed an adequate analysis' because the sole focus of the hearing is on whether the application satisfies NRC regulatory requirements, rather than adequacy of the NRC Staff performance.) (internal citations omitted) (emphasis in original).

131 See, e.g., Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 483 (2012) (noting that the 10 C.F.R. § 2.206 petition process can respond to claims of regulatory violations).

132 Hearing Request at 24.

50.59 licensee analyses done in support of a steam generator replacement, the Commission stated that:

The 2.206 process provides stakeholders a forum to advance their concerns and to obtain full or partial relief, or written reasons why the requested relief is not warranted. We may then review the NRC Staff's findings on our own motion. If [the petitioner] prevails on its 2.206 argument that [the licensee] needed a license amendment to replace the [facility] steam generators, then it may be able to obtain the adjudicatory hearing it seeks. Section 189a of the [AEA] grants an opportunity for a hearing on (among other things) license amendments . . . . We therefore deny [the petitioners] request and refer this portion of [the] petition to the EDO for consideration as a petition under 10 C.F.R. § 2.206.133 Likewise here, the Commission should reject SACEs attempts to raise challenges to FPLs 10 C.F.R. § 50.59 analyses in a 10 C.F.R. § 2.309 hearing, as well as reject SACEs challenges to the Staffs review and enforcement of the license; these claims reflect challenges to the basic structure of the Commissions regulatory process and such challenges to the regulations are impermissible under 10 C.F.R. § 2.309.134

2. The Scope of the Claimed De Facto Proceeding Would Not Allow for Prompt Resolution of Issues or Meaningful Public Participation and SACEs Claims Are Outside the Scope of Licensing Proceedings To be admissible, a contention must be within the scope of a proceeding.135 Any contention that falls outside the specified scope of the proceeding must be rejected.136 A license amendment proceedings scope is typically defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board.137 Here, there is no such notice and order, because there is no actual proceeding. For the sake of argument, the 133 San Onofre, CLI-12-20, 76 NRC at 439-40.

134 Peach Bottom, ALAB-216, 8 AEC at 20-21.

135 10 C.F.R. § 2.309(f)(1). See 10 C.F.R. § 2.309(f)(1)(iii); Turkey Point, CLI-00-23, 52 NRC at 329; Catawba, ALAB-825, 22 NRC at 790-91.

136 See Diablo Canyon, CLI-1-11, 74 NRC at 435-36.

137 Id.

Staff is assuming arguendo that the scope of the proceeding is the scope of the alleged past and continuing de facto license amendments described by SACEs Hearing Request.

In particular, SACE claims that its contentions are within the scope of the proceeding that the NRC Staff is now undertaking to amend the FPL operating license for St. Lucie Unit 2.138 However, SACE only offers an indeterminate characterization of the scope of this claimed proceeding; namely, that there is a continuing and ongoing de facto license amendment proceeding that has been going on for over six years and continues today and with each Staff inspection.139 This undefined scope of a proceeding does not meet or serve the purpose of a 10 C.F.R.

§ 2.309 hearing, which is to allow for meaningful public participation and prompt resolution of issues in controversy.140 Given SACEs undefined continuing amendment claims, any hearing notice to the public would be equally undefined. The hearing notice could only generally indicate that SACEs issues are based on past and future undetermined actions by FPL or the Staff. A person could not meaningfully participate in the type of undefined hearing SACE requests. And the Commission or a Board could not provide prompt resolution to issues in controversy in such an open-ended hearing. Thus, assuming arguendo that there was a proceeding, SACEs contentions should be found to be inadmissible.141 138 Hearing Request at 16-17 (claiming that proffered Contention 1 is within scope); id. at 20 (claiming that proffered Contention 2 is within scope).

139 See, e.g., Hearing Request at 5 (claiming that the NRC Staff has conducted and is conducting a de facto license amendment proceeding); id. at 12 (claiming that the NRC has informally amended FPLs operating license on multiple occasions and that this process is ongoing).

140 See Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998) (noting that the opportunity for hearing should be a meaningful one that focuses on genuine issues and real disputes regarding agency actions subject to adjudication. By the same token, however, applicants for a license are also entitled to a prompt resolution of disputes concerning their applications.).

141 See Peach Bottom, ALAB-216, 8 AEC at 20-21.

Additionally, even assuming that a presiding officer could determine the scope of SACEs claimed de facto proceeding and give the public sufficient notice to meaningfully participate, SACEs claims are not within the scope of a licensing proceeding. As discussed above, SACEs claims pertain to the design differences between the St. Lucie Plant, Unit No. 2 OSGs and RSGs, whether these differences comply with applicable safety standards and license requirements, and whether the Staffs review and enforcement of these differences was adequate.142 These challenges are not within the scope of a 10 C.F.R. § 2.309 hearing because they are only subject to challenge in a 10 C.F.R. § 2.206 proceeding.

3. SACEs Contentions Do Not Raise a Genuine Material Dispute Further, SACEs contentions should be dismissed because SACE fails to raise a genuine material dispute. As noted, challenges outside the scope of a proceeding cannot raise a genuine material dispute.143 As discussed, SACEs claims are outside the scope of a license amendment proceeding as they improperly challenge 10 C.F.R. § 50.59 analyses,144 the Staffs review, and the current operation of the plant.145 Thus, SACEs contentions cannot raise a genuine material dispute.

Moreover, the regulations make clear that a properly formulated contention must focus on the license application in question, challenging either specific portions of, or alleged omissions from, the application so as to establish that a genuine dispute exists with the 142 See, e.g., Hearing Request at 21 (outlining basis for proffered Contention 2). See also Gundersen Declaration at 14-15 (claiming that FPLs 10 C.F.R. § 50.59 analyses are faulty).

143 Shearon Harris, DD-07-3, 65 NRC 643, 658.

144 For example, proffered Contention 2 pertains to the question of whether the design of the St.

Lucie Plant, Unit No. 2 RSGs complies with applicable safety standards and license requirements. See Hearing Request at 21. But these challenges are outside the scope of a 10 C.F.R. § 2.309 hearing. In any event, the Staff does not dispute that FPL must meet all applicable regulations and its license.

145 See Millstone, LBP-08-09, 67 NRC, at 430-31 (noting that challenges to the current operating license are outside the scope of matters challengeable in a license amendment proceeding, and therefore fail to meet the requirements of 10 C.F.R. §2.309(f)(1)(iii)).

applicant/licensee on a material issue of law or fact.146 Any contention that fails directly to controvert the application or that mistakenly asserts that the application does not address a relevant issue will be dismissed.147 Here there is no application to amend the license or Staff action effectively amending the license. Therefore, SACE cannot directly controvert any license amendment application or de facto licensing action. Instead, SACE appears to challenge the existing FPL license.148 However, challenges to the existing FPL license should be raised in a 10 C.F.R. § 2.206 proceeding, not a 10 C.F.R. § 2.309 hearing.

Further, SACEs challenges to the Staffs actions or inactions do not raise a genuine material dispute under 10 C.F.R. § 2.309(f)(1)(vi). The plain text of that regulation makes clear that it is designed to identify genuine disputes a petitioner has with the applicant/licensee, not with the Staff. Thus, these challenges do not raise a genuine material dispute.

In fact, instead of raising a genuine material dispute, SACEs claims demonstrate a misunderstanding of the Commissions regulations and FPLs license. For example, SACE claims that the issues it raises in proffered Contention 1 are material because SACE seeks input to the NRCs safety evaluation of whether issuance of the [de facto] license amendment would comply with NRCs safety requirements.149 In support of proffered Contention 1, SACE makes a "specific component" argument asserting that specific components (e.g., stay cylinder) covered by FPL's aging management program (AMP) and Steam Generator Integrity Program are incorporated into the technical specifications of St. Lucie Plant, Unit No. 2. SACE states that because some parts of the RSGs 146 See 10 C.F.R. § 2.309(f)(1)(vi).

147 See Crow Butte Res., Inc. (North Trend Expansion Area), CLI-09-12, 69 NRC 535, 557 (2009); American Centrifuge Plant, CLI-06-10, 63 NRC at 462-63.

148 See, e.g., Hearing Request at 4 (claiming that the St. Lucie Plant, Unit No. 2 RSGs do not meet NRC safety regulations or the NRCs reasonable assurance standard and that FPL should be prevented from restarting the plant).

149 Hearing Request at 17.

differ from the OSGs, if the Staff conducts an inspection of FPL's Inservice Inspection activities, then the staff must either (1) approve a change to technical specifications, or (2) require FPL to change the RSGs.150 Furthermore, according to SACE, FPL cannot remove equipment covered by an aging management program without a license amendment.151 SACE's "specific component" argument reflects an incorrect understanding of the contents of the license,152 the incorporated technical specifications, and the how AMPs are summarized in the FSAR. Contrary to SACE's view, the license does not list specific components covered by an AMP. Instead, the license provides the Commission's finding that actions have been identified and have been or will be taken with respect to managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under 10 C.F.R. § 54.21(a)(1).153 As noted in the license, and in accordance with the Commission's license renewal regulations, the licensee was required to add the license renewal FSAR supplement required under 10 C.F.R. § 54.21(d) and containing, inter alia, a summary of the AMPS, to the FSAR; the FSAR supplement was subject to 10 C.F.R. § 50.59.154 Further, TS 6.8.4.l requires FPL to establish, implement, and maintain a "Steam Generator (SG) Program" for the RSGs to ensure that steam generator tube integrity is maintained through, inter alia, inservice inspection. But this program does not contain any component-specific AMP or inservice inspection requirements to support SACE's claims that, 150 Id. at 12.

151 Id. at 14.

152 The renewed license for St. Lucie Plant, Units No. 1 & 2, was issued on October 2, 2003. See U.S. NRC, St. Lucie, Units 1 & 2 - License Renewal Application (2013), available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/st-lucie.html. Thus, this challenge cannot be seen as raising a genuine material dispute with a license renewal application.

153 Renewed Facility Operating License No. NPF-16 at 1, ¶ b.

154 Id. at 4, ¶ 3.C.

(1) the TS must be changed, or (2) the RSGs must be changed.155 Thus SACE's assertions do not raise a genuine material dispute even assuming that there was some sort of de facto licensing proceeding.

Similarly, SACE's view that a license amendment is required to remove a component subject to an AMP does not raise a genuine material dispute as it is not supported by the Commissions regulations. In particular, the existence or absence of an AMP is not one of the factors in 10 C.F.R. § 50.59(c)(1)156 or 10 C.F.R. § 50.59(c)(2).157 As discussed above, the steam generator components are not "included" in the license, thus changing a component cannot lead to a de facto change in the license. Instead, FPL is already authorized to make changes to the components and AMPs described in the FSAR as updated, so long as the 10 C.F.R. § 50.59(c)(1) criteria are satisfied; FPL is not required to obtain a license amendment solely based on the removal of a component that is subject to an AMP.

IV. SACE Does Not Show That it is Entitled to a Discretionary Hearing In the event that the Commission denies SACE an AEA § 189a. hearing, SACE requests in the alternative that the Commission hold a discretionary hearing.158 The Commission should deny SACEs discretionary hearing request because SACE has not raised information to the Commission justifying a discretionary hearing.159 155 Hearing Request at 12.

156 10 C.F.R. § 50.59(c)(1) states when a licensee can make a change without an amendment.

157 10 C.F.R. § 50.59(c)(2) states when a licensee shall obtain an amendment before making the change.

158 Hearing Request at 25.

159 To the extent that SACEs request for a discretionary hearing is actually a request for discretionary intervention under 10 C.F.R. § 2.309(e), it should be denied. A prerequisite to discretionary intervention under 10 C.F.R. § 2.309(e) is that another party has successfully established standing and provided an admissible contention in a proceeding. In this instance, there is no actual or de facto proceeding. Therefore, there is no proceeding in which another party could provide the requisite intervention for SACE to base a discretionary intervention request on. Therefore, the Commission should deny any request for discretionary intervention under 10 C.F.R. § 2.309(e).

The Commission's decision on discretionary requests is fact-based, considering, for example: if petitioners show significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented; if petitioners have set forth these matters with suitable specificity to allow evaluation; and if petitioners demonstrate their importance and immediacy, justifying the time necessary to consider them.160 The Commission should deny SACEs discretionary hearing request because SACE has not identified information to the Commission justifying a discretionary hearing.161 SACE has not shown a significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented. Instead, SACEs Hearing Request attempts to litigate issues that the Commission has previously explained are properly raised and presented in another forum. Moreover, SACEs claims reflect a misunderstanding of the relevant de facto license amendment case law, the Commissions regulations, the purpose and effect of the Staffs inspection and enforcement activities, and the St. Lucie Plant, Unit No. 2 renewed operating license. Thus, holding a discretionary hearing is not warranted.

On the contrary, holding a discretionary hearing would be detrimental because SACEs claims are contrary to established Commission and legally binding de facto license amendment case law. Thus, holding a discretionary hearing could create uncertainty for the public, the Staff, and licensees about the appropriate de facto license amendment framework and what type of action can effectively amend a license.162 160 Pebble Springs, 4 NRC at 617.

161 In fact, SACE makes only passing reference to a discretionary hearing. See Hearing Request at 1 and 25.

162 For example, 10 C.F.R. § 50.90 states that a license amendment is submitted when a licensee desires, and that the Staff must act to approve the request before it is implemented. But SACE's claims suggest that when a licensee acts under 10 C.F.R. § 50.59 or the Staff inspects an existing license for compliance, this will also trigger a license amendment.

A discretionary hearing is also not warranted because SACEs claims are not set forth with suitable specificity to allow for evaluation in an adjudicatory forum. Instead, SACE makes general assertions about a past and ongoing de facto licensing proceeding without giving any dates or specific Staff actions that actually changed FPLs authority. Further, SACEs claims about the safety of the plant are speculative and unsupported. As the Commission noted in CLI-14-04, SACEs Hearing Request is based on the 2007 St. Lucie Plant, Unit No. 2 steam generator replacement. That replacement occurred more than 6 years ago and the plant has operated safely since that time. At bottom, SACEs claims reflect discontent with FPLs 10 C.F.R. § 50.59 analyses, the Staffs inspection and enforcement activities, and the Commissions 10 C.F.R. § 2.206 process. These issues are not material to licensing decisions or adjudicatory proceedings.163 Thus, a discretionary hearing is not warranted and SACEs request should be denied.

CONCLUSION The Staff respectfully requests that SACEs request for an AEA § 189a. hearing be denied. There is no actual or de facto license amendment proceeding that gives rise to an AEA

§ 189a. hearing opportunity. Therefore, SACE has no right to an AEA § 189a. hearing and does not meet the Commissions contention admissibility requirements.

Even assuming arguendo that a de facto license amendment proceeding existed, SACEs Hearing Request does not meet the Commissions contention admissibility standards and should be denied. SACE has not shown that it is entitled to standing based on a license amendment proximity presumption and has not shown an injury-in fact traceable to a Staff action. Moreover, SACEs contentions are inadmissible because they challenge the Commissions regulatory process, would not allow for prompt resolution of issues or meaningful 163 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39, 57-8 (2012).

public participation, are outside the scope of a licensing proceeding, and fail to raise a genuine material dispute.

Further, SACEs request for a discretionary hearing should be denied. SACE has not identified information warranting a discretionary hearing. Instead, SACEs claims illustrate a misunderstanding of Commission case law and process and the Commission should not expend its limited resources entertaining claims that it has made clear should be raised via 10 C.F.R.

§ 2.206 petitions.

Respectfully submitted,

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Executed in Accord with 10 CFR 2.304(d)

David E. Roth Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-2749 E-mail: David.Roth@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Jeremy L. Wachutka Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-1571 E-mail: Jeremy.Wachutka@nrc.gov Dated at Rockville, Maryland this 28th day of April, 2014

Florida Power & Light Co.

(St. Lucie Plant, Unit 2)

Docket No. 50-389 AFFIDAVIT OF KENNETH J. KARWOSKI CONCERNING SOUTHERN ALLIANCE FOR CLEAN ENERGYS CLAIMS REGARDING STAFFS REVIEW OF STEAM GENERATOR TUBE INSPECTION REPORT ATTACHMENT A

April 18, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

FLORIDA POWER & LIGHT CO. ) Docket No. 50-389

)

(St. Lucie Plant, Unit 2) )

AFFIDAVIT OF KENNETH J. KARWOSKI CONCERNING SOUTHERN ALLIANCE FOR CLEAN ENERGYS CLAIMS REGARDING STAFFS REVIEW OF STEAM GENERATOR TUBE INSPECTION REPORT I, Kenneth J. Karwoski, on the basis of my professional opinion, and under penalty of perjury, do hereby state as follows:

1. I am employed by the United States Nuclear Regulatory Commission (NRC) as the Senior Level Advisor for Steam Generator Integrity and Materials Inspection in the Division of Engineering in the NRCs Office of Nuclear Reactor Regulation in Rockville, Maryland. A statement of my professional qualifications is attached as Attachment A.
2. This affidavit is prepared in response to "Southern Alliance for Clean Energys Hearing Request Regarding De Facto Amendment of St. Lucie Unit 2 Operating License" (March 10, 2014) (Hearing Request). I also reviewed Southern Alliance for Clean Energy's Motion to Stay Restart of St. Lucie Unit 2 Pending Conclusion of Hearing Regarding De Facto Amendment of Operating License and Request for Expedited Consideration" (Mar. 10, 2014)

(Motion to Stay), "Declaration of Arnold Gundersen" (Mar. 9, 2014) (Gundersen Declaration) with Exhibits 1 - 4, and declarations of standing from several persons. (Agencywide Documents Access and Management System (ADAMS) Accession No. ML14071A431).

3. It is my understanding that a de facto license amendment occurs when there is a completed Staff action that provides additional authority or approval beyond that in the existing license.
4. Based on my review of SACE's Hearing Request, SACE appears to claim that the Staffs January 27, 2014 letter is a type of approval beyond the authority granted in Florida Power and Light, Co.s (FPL) existing license to operate St. Lucie Plant, Unit 2. Specifically, SACE asserts:

De facto approval of an amendment to Unit 2s operating license also occurred after each of the past three outages, when the NRC Staff reviewed the deteriorating condition of the Unit 2 steam generators and issued an affirmative finding that no regulatory action was warranted. The most recent such finding was issued on January 24[sic], 2014, less than 60 days ago.

Hearing Request at 21-22 (citing Gundersen Declaration, ¶ 56).

5. SACE is referring to the Staffs January 27, 2014 letter and enclosed Inspection Summary Report. See letter from S. P. Lingam, NRC, to M. Nazar, FPL, St. Lucie Plant, Unit 2

- Review of the 2012 Refueling Outage Steam Generator Tube Inservice Inspection Report (TAC No. MF1786) (Jan. 27, 2014) (ADAMS Accession No. ML14013A247).

6. By way of background, FPL's TS 6.9.1.12, "Steam Generator Tube Inspection Report," requires FPL to submit to the NRC a Steam Generator Tube Inspection Report within 180 days after initial entry into HOT SHUTDOWN following completion of an inspection of the replacement steam generators performed in accordance with TS 6.8.4.l.1. Per TS 6.9.1.12, the report shall contain:
a. The scope of inspections performed on each SG;
b. Active degradation mechanisms found;
c. Nondestructive examination techniques utilized for each degradation mechanism;
d. Location, orientation (if linear), and measured sizes (if available) of service induced indications;
e. Number of tubes plugged during the inspection outage for each active degradation mechanism;
f. Total number and percentage of tubes plugged to date;
g. The results of condition monitoring including the results of tube pulls and in-situ testing;
h. The effective plugging percentage for all plugging in each SG.
7. On May 6, 2013, in accordance with St. Lucie Plant, Unit 2 Technical Specification 6.9.1.12, "Steam Generator Tube Inspection Report," FPL provided the report for the inspection conducted September 9-15, 2012 during refueling outage twenty (SL2-20). Letter L-2013-130 from E. Katzman, FPL, to NRC, Refueling Outage SL2-20 Steam Generator Tube Inspection Report, (May 6, 2013), with Attachment 1, Engineering Evaluation PSL-ENG-SESJ-12-006, and 12 enclosures to Attachment 1, at Attachment 1 page 1 (ADAMS Accession No. ML13141A479).
8. SL2-20 was the third refueling outage following installation of the Areva-NP Model 86/19TI replacement steam generators (SGs) in December, 2007. Id.
9. By letter dated November 26, 2013, FPL provided additional information to the NRC concerning the SL2-20 inspections. Letter L-2013-325 with attachment from E. Katzman to NRC, SL2-20 Steam Generator Tube Inspection Report RAI Reply (Nov. 26, 2013)(ADAMS Accession No. ML13338A582).
10. The NRC's January 27, 2014 letter documented the Staffs review of the SL2-20 Steam Generator Tube Inspection Report, as supplemented. See letter from S. P. Lingam, NRC, to M. Nazar, FPL, St. Lucie Plant, Unit 2 - Review of the 2012 Refueling Outage Steam Generator Tube Inservice Inspection Report (TAC No. MF1786) (Jan. 27, 2014) (ADAMS Accession No. ML14013A247).
11. In this declaration, I present information with respect to the background of St.

Lucie Plant, Unit 2 Technical Specification 6.9.1.12, "Steam Generator Tube Inspection Report,"

and the purpose and sole effect of the Staffs January 27, 2014 letter documenting review of the SL2-20 report. In particular, I describe how the Staffs review of the required Steam Generator Tube Inspection Report is a routine part of the Staffs oversight of all PWRs.

12. Briefly, St. Lucie Plant, Unit 2 Technical Specification 6.9.1.12, "Steam Generator Tube Inspection Report," is modeled after Technical Specification Task Force (TSTF) Standard Technical Specification Change Traveler, TSTF - 449, "Steam Generator Tube Integrity."
13. TSTF-449 incorporated a new, largely performance-based approach for ensuring the integrity of the SG tubes is maintained. The performance-based requirements were supplemented by prescriptive requirements relating to tube inspections and tube repair limits to ensure that conditions adverse to quality are detected and corrected on a timely basis. TSTF-449 included revised criteria for the Steam Generator Tube Inspection Report. See Notice of Opportunity To Comment on Model Safety Evaluation on Technical Specification Improvement To Modify Requirements Regarding the Addition of LCO 3.4.[17] on Steam Generator Tube Integrity Using the Consolidated Line Item Improvement Process, 70 Fed. Reg. 10,298, 10,308-10,309 (Mar. 2, 2005) (discussing proposed administrative TS 5.6.9 "Steam Generator (SG)

Tube Inspection Report).

14. When considering approval of TSTF-449, the NRC staff noted that 10 CFR 50.72, in conjunction with NUREG-1022, Rev 2, Event Reporting Guidelines 10 CFR 50.72 and 50.73, October 31, 2000, as corrected, 69 Fed. Reg. 57,367 (Sept. 24, 2004), requires that the NRC staff be promptly notified in the event that the tube integrity performance criteria are not met. The NRC staff would have the opportunity under the NRC Reactor Oversight Process

(ROP) to follow up on such an occurrence as warranted. See Notice of Opportunity To Comment on Model Safety Evaluation on Technical Specification Improvement To Modify Requirements Regarding the Addition of LCO 3.4.[17] on Steam Generator Tube Integrity Using the Consolidated Line Item Improvement Process, 70 Fed. Reg. 10,298, 10,309 (Mar. 2, 2005)

(discussing proposed administrative TS 5.6.9 "Steam Generator (SG) Tube Inspection Report).

15. The information provided through adoption of TSTF-449 model TS 5.6.9 "Steam Generator (SG) Tube Inspection Report" enhances the NRC staff's ability to monitor the kinds of inspections being performed, the extent and severity of each active degradation mechanism, degradation trends (stable or getting worse), and the degree of challenge faced by the licensee in maintaining tube integrity. See Notice of Opportunity To Comment on Model Safety Evaluation on Technical Specification Improvement To Modify Requirements Regarding the Addition of LCO 3.4.[17] on Steam Generator Tube Integrity Using the Consolidated Line Item Improvement Process, 70 Fed. Reg. 10,298, 10,309 (Mar. 2, 2005) (discussing proposed administrative TS 5.6.9 "Steam Generator (SG) Tube Inspection Report).
16. Specifically for St. Lucie Plant, Unit 2, on May 29, 2007, the NRC issued Amendment No. 147 to revise the Unit 2 Technical Specifications (TSs) to be consistent with the NRC-approved Revision 4 to Technical Specification Task Force (TSTF) Standard TS Change Traveler, TSTF-449, Steam Generator Tube Integrity. Biweekly Notice; Applications and Amendments to Facility Operating Licenses Involving No Significant Hazards Considerations, 72 Fed. Reg. 33,779, 33,787 (June 19, 2007); see also letter dated May 29, 2007 from B. L.

Mozafari, NRC to J. A. Stall, FPL, St. Lucie Plant, Unit 2 - Issuance of Amendment Regarding Steam Generator Tube Integrity (TAC No. MD2322), enclosing 1) Amendment No. 147 to NPF-16 and 2) Safety Evaluation (together in ADAMS package ML071500355), as corrected by letter

dated August 8, 2007 (ADAMS Package No. ML072140314).

17. In this manner, St. Lucie Plant, Unit 2's technical specifications are similar to all other pressurized water reactors' technical specifications, because as of September 2007, the TSTF-449, Revision 4, changes were adopted in the plant TS for all pressurized water reactors.

Notice of Availability and Model Safety Evaluation of TSTF-510, Rev. 2, "Revision to Steam Generator Program Inspection Frequencies and Tube Sample Selection Using the Consolidated Line Item Improvement Process," (Oct. 19, 2011) (ADAMS Accession No. ML112101513).

18. As part of my official duties, I frequently am assigned to review Steam Generator Tube Inspection Reports submitted by licensees pursuant to the technical specifications modeled after TSTF-449.
19. As part of my official duties, I performed the review of FPL's Refueling Outage SL2-20 Steam Generator Tube Inspection Report, as described in the letter from Siva P.

Lingam, NRC, to Mano Nazar, FPL, re: St. Lucie Plant, Unit 2 - Review of the 2012 Refueling Outage Steam Generator Tube Inservice Inspection Report (TAC No. MF1786) (Jan. 27, 2014)

(ML14013A247).

20. The Staff's review of FPLs SL2-20 Steam Generator Tube Inspection Report is no different than the Staff's review of the reports from all PWRs. The purpose of the Staffs review is to determine if the licensees report fulfills the requirements of the particular PWR's technical specifications. The Staff then informs the licensee in writing of the results of the Staffs review.
21. This was the purpose of the Staffs January 27, 2014 letter to FPL. In that letter, the Staff indicated that the report complied with the TS and no additional action was warranted.
22. The Staffs Jan 27, 2014 letter did not amend FPLs license to operate St. Lucie

Plant, Unit 2, nor did it authorize or forbid any activities.

23. I disagree with SACE's claims about the effects of my review. As described in the Staff's January 27, 2014 letter, the review concluded that FPL provided the information required by its Technical Specifications.
24. FPL's "Steam Generator Tube Inspection Report" does not request permission or authority from the NRC. Instead, it is presenting inspection data as described above.

Accordingly, nothing in my review directly or indirectly gave FPL additional authority beyond that in FPL's license to operate St. Lucie Plant, Unit 2, which includes Technical Specifications.

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

Kenneth J. Karwoski, Senior Level Advisor for Steam Generator Integrity and Materials Inspection, US Nuclear Regulatory Commission, Washington DC, 20555 Kenneth.Karwoski@nrc.gov Executed in Rockville, Maryland this 18th day of April, 2014

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

)

FLORIDA POWER & LIGHT CO. ) Docket No. 50-389

)

(St. Lucie Plant, Unit 2) )

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC STAFF ANSWER TO SOUTHERN ALLIANCE FOR CLEAN ENERGY'S HEARING REQUEST REGARDING DE FACTO AMENDMENT OF ST. LUCIE UNIT 2 OPERATING LICENSE, dated April 28, 2014 and ATTACHMENT A, AFFIDAVIT OF KENNETH J. KARWOSKI, dated April 18, 2014 have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 28th day of April, 2014.

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Dated at Rockville, Maryland this 28th day of April, 2014

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