ML110480941

Joint Intervenors' Combined Reply in Opposition to Fenoc'S 'Motion to Strike.'

ML110480941
Person / Time
Site:	Davis Besse
Issue date:	02/17/2011
From:	Kamps K Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Don't Waste Michigan, Green Party of Ohio
To:	NRC/SECY
SECY RAS
References
RAS 19615, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML110480941 (15)

Text

February 17, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Office of the Secretary In the Matter of: ) Docket No. 50-346 FirstEnergy Nuclear Operating Company )

Davis-Besse Nuclear Power Station, Unit 1 )

(Regarding the Renewal of Facility )

Operating License NPF-003 for a 20-Year Period) )

)

JOINT INTERVENORS COMBINED REPLY IN OPPOSITION TO FENOCS MOTION TO STRIKE Now come Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (Petitioners), who hereby reply in opposition to FENOCs Motion to Strike Portions of Petitioners Combined Reply.

First-Energys inability to distinguish bona fide rebuttal argument engendered by argu-ments it raised in its own Answer, coupled with its nonfactual insistence that it has been blindsided by the introduction of ostensibly new information, has caused a troubling waste of the Licensing Boards judicial resources and of the Petitioners time.

1. The Parameters of Reply Argument Petitioners readily accept that a reply filing cannot expand the scope of the arguments set forth in the original hearing request and that replies must focus narrowly on the legal or factual arguments first presented in the original petition or raised in answers to it. New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. 2.309(c), (f)(2). If the contention as originally pled did not cite adequate documentary support, a petitioner cannot remediate the deficiency by introducing in the reply new documents that were available to it during the time frame for initially filing contentions. Nuclear Management Co.,

LLC (Palisades Nuclear Plant), CLI-06-17,63 NRC 727, 732 (2006); Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-08-18, 68 NRC 533, 541-42 (2008).

Against this common background, Petitioners now address the portions of their Combined Reply which FENOC wishes to have stricken as specified by FENOC as denoted in the table commencing at p. 4 of its Motion.

2. The 2002 Inspector-General Report on Davis-Besse Corrosion Hole in Reactor Head FENOC has reproduced the reference made by Petitioners to the 2002 NRC Inspector-Generals report out of context. Immediately preceding the quoted material which appears at p. 4 of the Motion to Strike, Petitioners said this in their Combined Reply (at p. 45):

Finally, FENOC questions (at its Answer, Page 131) why Joint Petitioners cited Dr. Edwin Lymans testimony in the Indian Point (Units 2 and 3) license extension proceeding, and how it applies to this Davis-Besse license extension proceeding. Joint Petitioners cited Dr. Lymans testimony to emphasize the importance of scientific conservatism, as embodied in 95th percentile confidence levels as opposed to mean values. Joint petitioners insist that such confidence levels are necessary to adequately protect people and the environment against the hazards of radioactivity, to successfully mitigate against severe accidents.

Petitioners then quoted the OIG statements which have offended FENOC. To justify the point that Dr. Lymans 95 per cent confidence level should be utilized, Petitioners explained in their January 28, 2011 filing that the NRC Inspector-General had criticized the NRC staff itself fol-lowing the discovery in 2002 of an extremely serious corrosion hole in the reactor head at Davis-Besse, for elevating FENOCs corporate financial security ahead of safety1. Petitioners unmis-takably were suggesting by their quoting of the OIG that adoption of the Lyman recommendation as a SAMA standard could help change the perception of the NRC from corporate sycophant to that of an unbiased safety regulator.2 Petitioners were responding directly to FENOCs stated need to understand the pertinence of Dr. Lymans recommended confidence level to Davis-Besses SAMA. But now, that FENOC knows that Petitioners answer addresses FENOCs extraord-inary mismanagement and coverup, FENOC has implored the ASLB to halt besmirchment of its corporate image by dumping the OIG reference down the corrosion hole.

In Detroit Edison Company (Fermi Nuclear Power Plant, Unit 3), LBP-10-09, ASBLP 1

The precise words of the Inspector-General were that the NRC appears to have informally established an unreasonably high burden of requiring absolute proof of a safety problem, versus lack of a reasonable assurance of maintaining public health and safety . . . ." Inspector General Report on Case No.02-03S, Dec. 30, 2002, http://www.nrc.gov/reading-rm/doc-collections/insp-gen/2003/02-03s.pdf (accessed Jan. 4, 2003), p. 23.

2 The OIG report is replete with admissions of inappropriate NRC concerns about FirstEnergys financial stability. From pp. 16-17:

It is undisputed by NRC and FENOC officials that a shutdown order would adversely affect the licensee financially. A senior NRC official explained that the need to issue a shutdown order would indicate a clear disconnect between the agency and licensee, where the agency concludes that a plant should be shut down, and industry does not feel a shutdown is necessary.

He stated that such a result would indicate that the parties were either misaligned in their technical assessments or held differing values related to public health and safety.

An NRR manager stated that from the perspective of external stakeholders, the need for a shutdown order is not a positive indicator for the nuclear industry and would destabilize confidence in the nuclear industrys ability to make the right decisions. Another NRR engineer explained to OIG that a nuclear plant operator would suffer a black eye if issued a shutdown order even if the licensee was positioned to fight the matter. He said just litigating the matter would jeopardize the licensees relationship with the NRC, result in bad press locally, and could even affect the licensees financial rating. With respect to Davis-Besse, one NRR senior official noted to OIG that the staff considered the large cost FENOC would incur if ordered to shut down, particularly if no cracking was found upon inspection.

No. 09-880-05-BD01 (June 15, 2010), the intervenors submitted a late-filed contention, and on reply, submitted an expert declaration. The ASLB, while acknowledging the general rule that new information may not be submitted for the first time on reply in support of a proposed con-tention, noted that the NRC staff in its answer had argued that the intervenors significantly overstated the extent of DTEs QA violations and that the expert declaration, which quoted and relied upon internal NRC Staff emails, was directed at showing that the NRC Staff, itself, did not believe that Detroit Edison had fully set up a quality assurance program. Id. p. 22. The ASLB ruled that the intervenors had responded to the Staffs argument and had provided additional information in direct support of the proposed contention wording:

Although Intervenors did not cite the June 2009 e-mails in Contention 15, our contention admissibility rules do not require an intervenor to provide all supporting facts for a contention or prove its case on the merits in its original submission. When the NRC Staffs Answer accused Intervenors of overstating the extent of the violations identified in the NOV, it was appropriate for Intervenors to respond by citing statements of NRC Staff that appear consistent with Intervenors position. (Emphasis supplied)

Id. p. 23. Citing official NRC findings here via official notice appears to be consistent with the ASLB determination in Fermi 3.3 In further fairness to the applicant and NRC Staff, the ASLB extended an opportunity to both to respond to the new information. Id. at 24. Petitioners here have no objection if the ASLB takes that route in lieu of striking relevant argument.

From the context of Petitioners citation of the OIG finding, one might have thought that the party taking greater offense would be the NRC Staff. But the Staff notably acquiesced to the 3

The Board may take official notice of any fact of which a federal court could take judicial notice, or of any technical or scientific fact within the Commissions knowledge as an expert body. 10 C.F.R. § 2.337(f). For example, the Board may take official notice of the agencys own records and documents as coming within its own knowledge. See Duke Power Co. (Catawba Nuclear Station, Units 1

& 2), LBP-74-22, 7 AEC 659, 667 & n.9 (1974). Records of which the Board may take official notice include records on file in the agencys Public Document Room. See Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 332 (1973).

OIG reference,4 perhaps because it is indisputable and documents a troubling lack of regulatory distance between the NRC Staff and FENOC - a lack of distance in which the Staff departed from the mandate of the Atomic Energy Act that the agency is not to consider economic effects over safety in its regulatory decisionmaking. Section 182(a) of the Act commands the NRC to ensure that any use or production of nuclear materials "provide[s] adequate protection to the health or safety of the public." 42 U.S.C. § 2232(a). In setting or enforcing the standard of "adequate protection" that this section requires, the Commission may not consider the economic costs of safety measures. The Commission must determine, regardless of costs, the precautionary measures necessary to provide adequate protection to the public; the Commission then must impose those measures, again regardless of costs, on all holders of or applicants for operating licenses. Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, 824 F.2d 108 (D.C. Cir. 1987)

FENOCs protest that its integrity is despoiled by reference to the officially-noticeable OIG report is legally irrelevant. As part of its licensing and oversight responsibilities, the Commission may indisputably consider the adequacy of a licensee's corporate organization and the integrity of its management, because the past performance of management may help indicate whether a licensee will comply with agency standards. Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 120 (1995). One of the risks to a nuclear utility of maintaining licensure is the risk that its honor and integrity might rightfully be called into question, especially after it has been officially and publicly besmirched by the NRC Office 4

FENOC states at p. 1, fn. 1 of its Motion to Strike that the Staff does not object to its Motion.

That is not the same as joining as a co-Movant.

of Inspector-General, and fined $33,500,000 for the trouble.

3. FENOC Discovers That Davis-Besse Is Situated on a Large Lake The applicant complains at p. 5 of its Motion that Petitioners directly assert [from pp.

46-48 of their Combined Reply] for the first time . . . that a severe accident at Davis-Besse would involve a radiological release into the Great Lakes and would result . . . [in] large, consequences of an international scope to downstream drinking water supplies in the U.S. and Canada. . . . FENOC also fumes (Motion to Strike at p. 5) that Petitioners have surprised FENOC by asserting FENOC and NRC itself must much more seriously address the risks of an intentional terrorist attack at Davis-Besse, and that Petitioners also compare a postulated severe accident at Davis-Besse to the 1986 nuclear accident at Chernobyl.

Petitioners have heretofore indulged the belief that FENOC knew that Davis-Besse is located on Lake Erie and that Lake Erie is an integral, large lake within an even larger system of interconnected Great Lakes. Indeed, at p. 119 of their first, December 27, 2010, Petition filing, the Petitioners warned FENOC of these unnoticed considerations when they alleged that:

The immediately adjacent presence of Lake Erie (the drinking water supply for many millions of people downstream in the U.S., Canada, and numerous Native American/First Nations) greatly affects atmospheric dispersion processes and is of great importance to estimating the consequences in terms of human lives and health effects of any radioactive releases from the facility. . . . (Emphasis supplied)

At p. 121 of the same filing, Petitioners refer to the behavior of plumes over water - an obvious reference to Lake Erie - when they said that:

This can lead to hot spots of radioactivity in places along the sea coast or Great Lakes shoreline, certainly to Detroit/Windsor, Toledo, and Cleveland, bringing larger doses over a greater geographic area than modeled and with high population concentrations. (Emphasis supplied)

Concerning terrorism, the initial December 27, 2010 Petition contains this passage (at pp.

107-108):

In addition, in his report on the likely consequences of an accident at the Indian Point Nuclear Plant, Dr. Edwin S. Lyman (Union of Concerned Scientists, Senior Scientist) stresses that intentional acts represent a class of accidents that should not be considered using probabilistic modeling. Accident probabilities are not relevant for scenarios that are intentionally caused by sabotage. Severe releases resulting from the simultaneous failure of multiple safety systems, while very unlikely if left up to chance, are precisely the outcomes sought by terrorists seeking to maximize the impact of their attack. Thus the most unlikely accident sequences may well be the most likely sabotage sequences. Edwin S. Lyman, PhD, Chernobyl on the Hudson? The Health and Economic Impacts of a Terrorist Attack at the Indian Point Nuclear Plant, Union of Concerned Scientists, p. 16 (September, 2004 - Available on the internet at http://www.ucsusa.org/assets/d ocuments/nuclear_power/indianpointhealthstudy.pdf). FENOC failed to model intentional acts in its analysis of external events. FENOC ER E.3.1.2 (FENOC ER, E.3.1.2, Pages E-25 to E-27, External Events, only considers Internal Fires, Seismic Events, and Other External Events (namely, high winds, external floods, extreme rainfall, and transportation and nearby facility accidents.) (Emphasis supplied)

Petitioners are confused; they believed that by again reciting the very same report at p. 47 of their Combined Reply, they were properly offering reply arguments to matters covered in their initial Petition. Petitioners have assumed that by expressly mentioning the Lyman study in their December 27, 2010 filing, and then responding directly to FENOCs arguments in their January 28, 2011 filing by referring explicitly, again, to the same report, that FENOC was properly (indeed, redundantly) placed on notice of Petitioners stance on unconsidered terrorism and sabotage. Accordingly, Petitioners cannot understand what principle of argument they have supposedly violated. Incidentally, Petitioners mentioned Chernobyl at different places in their December 27, 2010 Petition besides those singled out by FENOC. See, pp. 30-31, which discusses the vulnerability of different types of birds to radiation near Chernobyl; and p. 140, where there is a mention of studies examining Chernobyl and RDD type devices.

Petitioners raised no new contention or new facts whatsoever in the cited parts of their Reply. FENOCs argument is specious and incomprehensible.

4. FENOCs Un-Learned Lesson-Learning at Davis-Besse In a very proper retort argument appearing at pp. 48-55 of its Reply, Petitioners detail the 2002 hole-in-the-head incident at Davis-Besse and its implications, today, for claimed weak analysis within the proffered SAMA. Citing to p. E-21 of the Environmental Report for this very relicensing case, Petitioners responded directly to FENOCs suggestion that the utility need only provide probability calculations, pointing out (Reply pp. 49-50) that:

What this passage reveals is a lesson learned in the nuclear power establishment

- a hard lesson learned at Davis-Besse itself. How probable was it that an atomic reactors reactor pressure vessel lid would corrode to such an extent that a breach could result in a loss of coolant accident to the nuclear core? At one time, not only the NRC, but even its contractor which performed NUREG/CR-5750, believed that a reactor vessel rupture event was so improbable that it need not even be considered in analyzing large Loss of Coolant Accident risks, including in SAMA analyses by nuclear utilities seeking 20 year license extensions.

However, Davis-Besses hole-in-the-head revealed that accident scenarios long thought impossibly remote actually do happen in the real world, due to such factors as nuclear utility greed and disregard for public safety, combined with NRC complicity at the highest levels of the agency (putting profit over safety, in the words of NRCs OIG, December 2002). Interestingly, FENOC saw fit, in the aftermath of its near-disastrous, scandalous, and even criminal lid corrosion incident, to put back the reactor vessel rupture accident scenario it had previously deleted. What had previously been considered an accident scenario so fleetingly improbable so as to not merit any further consideration, nearly became a 100% severe accident probability on the Great Lakes shoreline, 20 miles east of Toledo in early 2002. All it took was for FENOC to neglect and cover up its reactors boric acid leak for a long enough period of time, and for NRC to look the other way and allow them to get away with it.

Then, Petitioners cite (Reply p. 50) a backgrounding document prepared by Beyond Nuclear in November 2010 which discusses the 1977 Three Mile Island precursor event at Davis-Besse as carrying a 7% core damage probability, which in turn references a publicly-available NRC document as its source. Petitioners then point out (Reply p. 51) that the NRC itself has called the 1977 event the fourth most serious accident sequence precursor, again, according to the NRC itself, and merely lists the three more serious ones at TMI, Browns Ferry and Rancho Seco.

FENOCs predecessor failed to learn the lesson that presaged Three Mile Island, losing the opportunity to help avert nuclear disaster from its own 1977 experience at Davis-Besse by communicating with its "twin" reactors across the U.S., as well as with the NRC.

Petitioners then discuss the phenomenon of probability denial as it played out in the well-known space shuttle disasters, discuss the serious problem that took place with auxiliary feedwater systems at Davis-Besse in June 1985, the mainstream technical criticisms by Congress and the Union of Concerned Scientists of that incident. The argument on these incidents was to emphasize the point that FENOC already has a long history of underestimating risk proba-bilities at Davis-Besse in the past, that Davis-Besse experienced 6 of the 34 worst near-misses in the entire industry for the period 1969-2005, and that the SAMA for the plant should be scru-tinized and changed in light of very disturbing institutional denial scenarios that have become repetitive. This is all legitimate argument which responded to the accusation by FENOC that the Petitioners failed to understand the meaning of calculated accident probabilities.

This is a watershed moment in the history of nuclear power regulation, where the industry not only cries foul when legitimately confronted by its own officially-documented bad judgments and misbehaviors, but shrieks in terror at the mention of the standing those bad judgments and misbehaviors occupy in the pantheon of breathtaking near-misses. If the ASLB empathizes with FENOCs position on this controversy, the proper remedy is not to strike the message, but to have FirstEnergy justify its present SAMA estimates to the messengers via the adjudicatory process, and to the Board in light of the unusual history of mismanagement.

5. The Beyond Nuclear Backgrounder Narrative FENOC seeks to strike a Beyond Nuclear compilation, Davis-Besse Atomic Reactor: 20 MORE Years of Radioactive Russian Roulette on the Great Lakes shore?! dated November 19, 2010 as the primary source of much of the new information on pages 46 though 55 of the Combined Reply that FirstEnergy seeks to strike. Motion to Strike p. 6. A short review of the 10-page item reveals that it is a meticulously-footnoted history of accidents, gaffes and nuclear near-misses at Davis-Besse, and that the narrative is not a primary source, but that it cites to genuine primary sources. At least twenty-two (22) of the sixty (60) footnoted sources are official NRC, GAO, DOE or Congressional issuances. Another ten (10) of the footnoted sources are to authoritative nongovernmental organization studies (Union of Concerned Scientists and Institute for Environmental and Energy Research).

The three citations to the Beyond Nuclear backgrounder, as FENOC states, are at pp. 29, 50 and 55 of Petitioners Reply. At p. 29, the backgrounder is mentioned as being a summary of serious near-accidents in the history of Davis-Besse. At p. 50, it is cited as containing the primary source reference NRC Commission Document SECY-05-0192, Attachment 2, Results, Trends, and Insights from the Accident Sequence Precursor (ASP) Program, Table 11, Signif-icant accident sequence precursors during the 1969-2005 period, a table showing that 6 of the 34 most serious accidents in the U.S. nuclear industry from 1969-2005 occurred at Davis-Besse.

And at p. 55 of the Reply, the backgrounder is mentioned for containing the reference to a GAO study, a statement on Davis-Besse by Congressman Dennis Kucinich, and the 6-of-34-worst-accidents table. At worst, the backgrounder provides redundant citations. It contains expanded descriptions of the near-miss blunders which, Petitioners urge, suggest a corporate culture within FENOC that trivializes accident risks. Petitioners were well within the bounds of reply argument to bring up Davis-Besses unusually accident-prone past, knowledge of which is chargeable both to the ASLB via official notice of NRC documents, and to FENOC, as Davis-Besses owner.

The footnoted sources are at worst cumulative and are not something which can be stricken for any other reason.

The Board may officially notice facts which are beyond reasonable controversy and which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 75 (1991) (citing Government of Virgin Islands v. Gereau, 523 F.2d 140, 147 (3rd Cir. 1975), cert. denied, 424 U.S. 917 (1976)), reconsid. denied on other grounds, CLI-91-8, 33 NRC 461 (1991); see also Fed.R.Evid. 201. The NRC and other documents are noticeable for the statements contained within them, not for proving Petitioners assertion of what the contents mean. United States v. S. Cal. Edison Co., 300 F.Supp.2d 964, 975 (E.D. Cal. 2004). Any party adversely affected by the decision to notice these facts shall be given the opportunity to controvert the facts. 10 C.F.R. § 2.337(f).

Petitioners have previously offered, since FENOC is scandalized by the provision of concise, true information about the troubled history at Davis-Besse, to afford applicant the remedy of attempting to controvert these facts instead of striking them. However, since FirstEnergy is reduced to protecting its integrity, the Board may logically infer that FENOC has no factual means of controverting Petitioners arguments of fact.

6. Conclusion FENOCs Motion to Strike is a junk food motion comprised of empty calories, signi-fying nothing. It obviously was filed merely to waste Petitioners resources. But FENOC has failed doubly.

WHEREFORE, Petitioners pray the ASLB deny the Motion to Strike in its entirety.

Respectfully submitted,

/s/ Kevin Kamps & submitted by Digital Certificate pro se on behalf of Petitioners Kevin Kamps Radioactive Waste Watchdog Beyond Nuclear 6930 Carroll Avenue, Suite 400 Takoma Park, MD 20912 Tel. 301.270.2209 ext. 1 Email: kevin@beyondnuclear.org Website: www.beyondnuclear.org February 17, 2011 February 17, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Office of the Secretary In the Matter of: ) Docket No. 50-346 FirstEnergy Nuclear Operating Company )

Davis-Besse Nuclear Power Station, Unit 1 )

(Regarding the Renewal of Facility )

Operating License NPF-003 for a 20-Year Period) )

)

CERTIFICATION OF SERVICE OF JOINT INTERVENORS COMBINED REPLY IN SUPPORT OF PETITION FOR LEAVE TO INTERVENE I hereby certify that a copy of the foregoing Joint Intervenors Combined Reply in Opposition to FENOCs Motion to Strike was sent by me to the following persons via electronic deposit filing with the Commissions EIE system this 17th day of February, 2011:

Administrative Judge E-mail: wek1@nrc.gov William J. Froehlich, Chair Atomic Safety and Licensing Board Panel Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Rulemakings and Adjudications Staff E-mail: wjf1@nrc.gov Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Administrative Judge Dr. William E. Kastenberg Office of the General Counsel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Brian G. Harris Megan Wright Emily L. Monteith E-mail: Brian.Harris@nrc.gov; Megan.Wright@nrc.gov; Emily.Monteith@nrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Michael Keegan Dont Waste Michigan 811 Harrison Street Monroe, MI 48161 E-mail: mkeeganj@comcast.net Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Respectfully submitted,

/s/ Kevin Kamps & submitted by Digital Certificate pro se on behalf of Petitioners Kevin Kamps Radioactive Waste Watchdog Beyond Nuclear 6930 Carroll Avenue, Suite 400 Takoma Park, MD 20912 Tel. 301.270.2209 ext. 1 Email: kevin@beyondnuclear.org Website: www.beyondnuclear.org February 17, 2011