ML14118A499

Florida Power & Light Company'S Answer Opposing Southern Alliance for Clean Energy'S Hearing Request Regarding De Facto License Amendment of St. Lucie Unit 2 Operating License

ML14118A499
Person / Time
Site:	Saint Lucie
Issue date:	04/28/2014
From:	Lepre M Florida Power & Light Co, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
50-389-LA, License Amendment, RAS 25868
Download: ML14118A499 (32)

Text

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

Florida Power & Light Company ) Docket No. 50-389

)

(St. Lucie Plant, Unit 2) )

FLORIDA POWER & LIGHT COMPANY'S ANSWER OPPOSING SOUTHERN ALLIANCE FOR CLEAN ENERGY'S HEARING REQUEST REGARDING DE FACTO LICENSE AMENDMENT OF ST. LUCIE UNIT 2 OPERATING LICENSE I. INTRODUCTION Pursuant to the Commissi on's Order dated April 1, 2014, 1 Florida Power & Light Company ("FPL") hereby submits this answer ("Answer") in opposition to the Hearing Request Regarding De Facto License Amendment of St. Lucie Unit 2 Operating License ("Hearing Request") by the Southern Alliance for Clean Energy ("

SACE") filed with the Secretary on March 10, 2014.

2 SACE requests that the Nuclear Regulatory Commission ("Commission" or "NRC") conduct a hearing regarding an alleged de facto amendment to the St. Lucie Unit 2 operating license "before Unit 2 can be permitted to operate again." Hearing Request at 4. The Commission should deny the Hearing Request because (1) there is no proceeding in which SACE may intervene; (2) SACE has failed to demonstrate standing; (3) its Hearing Request is untimely; and (4) its Contentions fail to meet the NRC's standards for admissibility.

1 Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-04, 79 NRC __ (Apr. 1, 2014) (slip op.) ("CLI-14-04"). 2 Along with the Hearing Request, SACE also submitted a request to stay restart of St. Lucie Unit 2 (since denied by the Commission) and a supporting declaration.

See 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), Attachment 1 to Hearing Request ("Gundersen Decl.").

2 SACE proffers two Contentions base d on the "NRC Staff's ongoing process for de facto approval of significant changes that FPL made to the safety design of the Unit 2 steam generators" through FPL's installation of replacement steam generators ("RSGs") in 2007.

Hearing Request at 1. SACE's Hearing Request is procedurally improper, as it seeks to evade NRC consideration of its claim under 10 C.F.

R. § 2.206(a). In addition, FPL sought and obtained license amendments concerning instal lation and operation of the RSGs in 2006 and 2012. SACE had an opportunity to request a hearing in each of those proceedings. Having forgone these opportunities, SACE lacks standing to request a hearing an d cannot now contrive a new proceeding to address matters relating to the NRC's ongoing reactor oversight of St. Lucie Unit 2. Installation and operation of the RSGs did not at any time constitute a de facto license amendment. The installation of RSGs at St. Lucie Unit 2 was proper pursuant to 10 C.F.R. § 50.59, as is the common industry practice, and in accordance with the th en-existing St. Lucie Unit 2 Updated Final Safety Analysis Report ("UFSAR") acceptance criteria and Technical Specifications. Declaration of Mr. William A. Cross in Support of FPL's Answer Opposing SACE Request for Hearing, Attachment 1 hereto

("Cross Decl.") at ¶ 6.

Contrary to SACE's claims, FPL's replacement of the steam generators in accordance with 10 C.F.R. § 50.59 did not modify St. Lucie Unit 2's operating license or afford FPL any greater operating authority.

Id. at ¶ 8. And, despite SACE's attempts to compare St. Lucie Unit 2's tube wear with the unique form of steam generator tube-to-tube wear experienced at the San O nofre Nuclear Generating Station ("SONGS"), neither the ty pe of tube wear at SONGS nor the ensuing confirmatory action letter bear any similarity to the licensing acti ons or operational experience of St. Lucie Unit 2.

3 Declaration of Mr. Rudy Gil in Support of FPL's Answer Opposing SACE Request for Hearing, Attachment 2 hereto ("Gil Decl.") at ¶¶ 4, 27-30.

Finally, each of SACE's two Contentions fails to reach the required threshold for admissibility. Among other deficiencies, the Contentions are outside the scope of any proceeding and accordingly do not raise material issues, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(iii)-(iv). Further, bot h Contentions rely on an outdate d version of the St. Lucie Unit 2 UFSAR and other inaccurate assumptions to allege departures from St. Lucie Unit 2's licensing basis. Accord ingly, they fail to raise a genuine dispute of material fact, in contravention of 10 C.F.R. § 2.309(f)(1)(vi). For these reasons, the Commission should reject both of SACE's Contentions and deny its request for hearing.

II. BACKGROUND FPL operates St. Lucie Unit 2 pursuant to NRC Operating License No. NPF-16, originally issued in 1983 and renewed in 2003. On May 25, 2006, FPL submitted an application for an amendment to St. Lucie Unit 2's operati ng license to change, am ong other things, the Technical Specifications relating to steam generator tube integrity based on the NRC's approved Revision 4 to Technical Specification Task Force Standard Technical Specification Change Traveler, TSTF-449, "Steam Generator Tube Integrity."

3 FPL's license amendment request noted that it addressed design changes associated with the RSGs that were scheduled to be installed in the fall of 2007.

4 Among other things, the amendment required that a program be established for the RSGs to ensure that steam generator tube integrity would be maintained.

Cross Decl. at ¶ 5.

3 See Letter from Gordon L. Johnson, Acting Vice President, St. Lucie Plant, to NRC, L-2006-094 (May 25, 2006) (ADAMS Accession No. ML061510346), at 1.

4 Id., Attachment 1 at 2.

4 On July 18, 2006, the NRC published a notice of a proposed no significant hazards consideration determination concerning FPL's license amendment request, including a notice of opportunity for interested persons to file a hearing request.

5 No comments or hearing requests were filed in response to this notice.

6 Following its review and two requests for additional information, the NRC granted the license amendment on May 29, 2007, before the steam generators were replaced.

7 In December 2007, FPL replaced the origin al steam generators with two RSGs manufactured by AREVA NP. In accordance with 10 C.F.R. § 50.59, FPL prepared an evaluation demonstrating that the RSGs satisfied the existing UFSAR acceptance criteria and Technical Specification Limits.

8 In addition, the Section 50.59 ev aluation found that none of the criteria warranting a license amendment, as spec ified in 10 C.F.R. § 50.59(c)(2), applied to the RSGs for St. Lucie Unit 2.

9 The NRC Staff inspection included verification that replacement of Unit 2 steam generators was "properly evaluated in accordance with 10 CFR 50.59."

10 In November 2009, following the first cycle of operation of the St. Lucie Unit 2 RSGs, an inspection identified a number of tube to anti-vibration bar ("AVB") wear indications. Gil Decl.

at ¶ 21. As required by FPL's Steam Generator Management program and the Unit's technical

5 71 Fed. Reg. 40,742, 40,743, 40,747-48 (July 18, 2006).

6 See 72 Fed. Reg. 33,779, 33,787-88 (June 19, 2007).

7 See Letter from Brenda L. Mozafari, NRC Office of Nuclear Reactor Regulation, to J. A. Stall, Senior Vice President, Nuclear and Chief Nuclear Officer, FPL (May 29, 2007) (ADAMS Accession No. ML071490483); Letter from Brenda L. Mozafari, NRC Office of Nuclear Reactor Regulation, to J. A. Stall, Senior Vice President, Nuclear and Chief Nuclear Officer, FPL (Aug. 8, 2007) (ADAMS Accession No. ML072140147) (correction to amendment number in Technical Specification pages).

8 See Letter from Gordon L. Johnston, Site Vice President, St. Lucie Plant, to NRC, L-2008-148 (June 26, 2008), at 8 (ADAMS Accession No. ML081840111).

9 The licensing actions relating to steam generator replacement and extended power uprate are described in greater detail in the Cross Declaration at ¶¶ 4-12.

10 St. Lucie Nuclear Plant - NRC Integrated Inspection Report 05000335/2007005, 05000389/2007005 (Feb. 1, 2008) (ADAMS Accession No. ML080350408), Enclosure at 28.

5 specifications, FPL prepared operational assessments and continued to inspect and manage tube wear after the second, thir d and fourth cycles.

Id. at ¶ 21-25. The root cause of this tube wear is well understood.

Id. at ¶ 26. As expected, based on th is root cause and the operational assessments, the tube wear has attenuated over time and is manageable under FPL's Steam Generator Management program.

Id. On February 25, 2011, FPL requested a license amendment to permit an extended power uprate ("EPU") at St. Lucie Unit 2.

11 On September 1, 2011, the Commission published a notice of the license amendment request and of an opportunity to request a hearing.

12 No hearing requests or petitions to intervene were submitted. Cross Decl. at ¶ 11. In reviewing the EPU request, both the NRC Staff and the Advisory Committee on Reactor Safeguards ("ACRS") evaluated the steam generator tube wear in the St. Lucie Unit 2 RS Gs in light of the unique tube-to-tube wear observed at SONGS Unit 3. The ACRS commented on pertinent differences between the types and extent of steam generator wear observed at the two plants and concluded that "[t]hese considerations a nd the licensee's action plan ade quately address concerns about [steam generator] tube integrity."

13 The Commission issued the requested license amendment on September 24, 2012.

14 On April 1, 2014, the Commission issued its Order denying SACE's Motion to Stay. Among other deficiencies, the Commission found the Motion to Stay to be procedurally improper because "SACE has neither been admitted as a party to an adjudication relating to St.

Lucie nor identified any adjudicatory decision or actions that it s eeks to have us stay." CLI 11 See Letter from Richard L. Anderson, Site Vice President, St. Lucie Plant, to NRC, L-2011-021 (Feb. 25, 2011) (ADAMS Accession No. ML110730116).

12 See 76 Fed. Reg. 54,503 (Sept. 1, 2011).

13 Letter from J. Sam Armijo, Chairman, ACRS, to R.W. Borchardt, NRC Executive Director of Operations (July 23, 2012), at 4 (ADAMS Accession No. ML12198A202).

14 See 77 Fed. Reg. 63,343, 63,354-55 (Oct. 16, 2012).

6 04 at 4. While denying the Motion to Stay, the Order set a briefing sche dule concerning SACE's Hearing Request.

Id. at 5. III. SACE HAS NOT DEMONSTRATED STANDING A. Standards for Demonstrating Standing In order to obtain a hearing before the NRC, a petitioner must demonstrate that it has standing and file at least one admissible contention.

See Atomic Energy Act § 189a ("Act" or "AEA"); 10 C.F.R. § 2.309(a), (d). Standing is not a mere legal technica lity, but "an essential element in determining whether there is any legitimate role" for the Commission "in dealing with a particular grievance." Westinghouse Electric Corp. (Nuclear Fuel Export License for Czech Republic - Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 331-32 (1994). The burden of demonstrating standing rests with the petitioner.

Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 N RC 90, 98 (2000). To establish standing, the petitioner must plead "the nature of the requestor

's/petitioner's right under the Act to be made a party to the proceeding[,] . . . the nature and extent of [the petitioner's] property, financial or other interest in the proceeding; and [t]he possible effect of any decision or order that may be issued in the proceeding on the [petitioner's] interest." 10 C.F.R. § 2.309(d)(1). In addition, "[i]t 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, 239 (2004), reconsideration denied , May 18, 2004.

B. SACE Has Not Demonstrated Standi ng to Support Its Hearing Request In calling for a new proceeding where none currently exists, SACE's Hearing Request seeks to bypass clear and longstanding rules governing public intervention in NRC regulatory actions. Section 189a(1)(A) of the AEA provide s an opportunity for hearing only for certain categories of actions, including the "amending of any license." 42 U.S.C. § 2239(a)(1)(A). "If a 7 form of Commission action does not fall within the limited categories enumerated in section 189a, the Commission need not grant a hearing." Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant), CLI-96-13, 44 NRC 315, 326 (1996). A licensee's modification to its facility pursuant to 10 C.F.R. § 50.59 requires a license amendment only "[i]f the proposed change is incons istent with the license or . . . involves an unreviewed safety question . . ., only then are the statutory hearing ri ghts of § 189a triggered." Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 287 (1st. Cir. 1995) (emphasis added).

Despite SACE's invocation of Section 189a of the AEA and 10 C.F.R. § 2.309(a) (Hearing Request at 1), neither the AEA nor the Commission's rules afford SACE the right to a hearing where there is no current or pending proceeding and where the NRC Staff reviewed and accepted FPL's Section 50.59 evaluation. See Citizens Awareness Network , 59 F.3d at 287; Millstone , CLI-04-12, 59 NRC at 239. Thus, in the absence of an application for a license amendment or any notice of a proceeding, SACE has no standing to seek intervention and request a hearing. Moreover, SACE's insistence that "the NRC has effectively amended FPL's license" by allowing the continued operation of St. Lucie Unit 2 following FPL's installation of RSGs pursuant to 10 C.F.R. § 50.59 (Hear ing Request at 2) is unavailing. In determining whether NRC actions constitute a de facto license amendment, the Commission is guided by the following factors: "did the challenged approval grant the licensee a ny 'greater operating authority,' or otherwise 'alter the original terms of a license'"?

Perry , CLI-96-13, 44 NRC at 326-27 (citations omitted). FPL's replacement of St. Lucie Unit 2's steam generators in accordance with Section 50.59 did not modify the license or afford FPL any greater operating authority. Cross Decl. at ¶ 8. Indeed, where greater operating authority was sought, FPL applied for and obtained a license amendment. The RSG installation was preceded by an amendment to 8 the Technical Specifications to reflect establishment of a program to maintain RSG tube integrity. Id. at ¶ 5. That amendment was appr oved by the Commission in May of 2007.

Id. Accordingly, although the December 2007 replacement entailed minor amendments to the

UFSAR, it did not require any further change to the license's Techni cal Specifications beyond those already reflected in the recently amended license.

Id. at ¶ 6. See Perry , CLI-96-13, 44 NRC at 320 (the UFSAR "can be modified without a license amendment, so long as the modifications do not involve a change to the technical specifications or an unreviewed safety question").

SACE's reliance on the case of Citizens Awareness Network to justify its claim that a de facto license amendment has occurred at St. Lucie Unit 2 is misplaced.

See Hearing Request at 2-4. Citizens Awareness Network involved the Commission's appr oval of licensee action which departed from prior NRC policy and "substantially en larged the authority of an extant licensee . . . retroactively." 59 F.3d at 294. FPL's replacement of steam generators in accordance with the established process set forth in 10 C.F.R. § 50.59 entailed no such enlargement of operating authority or departure from the terms of the a pplicable operating license, as it had previously been amended. The NRC Staff's review of FPL's Section 50.59 evaluation identified no errors in such evaluation or other findings of significance. Cross Decl. at ¶ 7. Similarly, SACE's implied comparison of NRC oversight of FPL's installation and operation of RSGs at St. Lucie Unit 2 to the recent confirmatory action letter ("CAL") process at SONGS is inapposite. In the SONGS proceeding, the Atomic Safety and Licensing Board

("ASLB"), in a decision which was later vacated by the Commission, deemed the CAL process between the NRC Staff and the licensee to constitute a de facto license amendment.

See Southern California Edison Co. (San Onofre Nuclear Generati ng Station, Units 2 and 3), LBP-9 13-7, 77 NRC 307, 345 (2013), vacated , CLI-13-09, 78 NRC __ (slip op.) (Dec. 5, 2013). The ASLB stated unequivocally that its unprecedented decision finding the SONGS CAL to be a de facto license amendment was due to the unique rapi d wear from tube-to-tube contact in an eleven-month period never before encountered in a nuclear steam generator. Here, in contrast, the NRC Staff has not initiated a CAL or other extraordinary process conditioning restart on certain actions or calling into question the continue d safe operation of the reactor. Further, the SONGS steam generator tube issues involved unprecedented causes and extent of damage which are not present at St. Lucie Unit 2. Gil Decl. at ¶¶ 27-30. Indeed, in the SONGS proceeding, the Commission declined to grant a hearing on whether a licensee's replacement of steam generators pursuant to 10 C.F.R. § 50.59 required a license amendment. Rather, it referred the issue for consideration as a 10 C.F.R. § 2.206 petition. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC 437, 440 (2012).

Lacking statutory or other regulatory basis for its Hearing Request, SACE alternatively requests a "discretionary hearing." Hearing Request at 1. However, SACE fails to demonstrate a basis for either "discretionary interventi on" pursuant to 10 C.F.

R. § 2.309(e), or the Commission's inherent discretion under Section 161c of the AEA, to institute a proceeding where none is required by law. 10 C.F.R. § 2.309(e) permits a presiding officer to "consider a request for discretionary intervention when at least one requestor/petitioner has establis hed standing and at least one admissible contention has been admitted so that a hearing will be held." A petitioner requesting discretionary intervention must address the st anding factors under Sect ion 2.309(d)(1) as well as 10 the factors governing discreti onary intervention as specified at Section 2.309(e)(1)-(2).

15 See 10 C.F.R. § 2.309(e). SACE has advanced no basis that would justify the Commission's granting of discretionary intervention in this context. To the contrary, there is no existing proceeding in which SACE may intervene, nor are there any other petitioners or admitted contentions. Further, SACE fails to demonstrate how the discretiona ry intervention factors listed in Section 2.309(e)(1)-(2) weigh in favor of permitting its intervention.

16 In particular, SACE's participation cannot "reasonably be expected to assist in developing a sound record" (10 C.F.R. § 2.309(e)(1

)(i)) because its Hearing Request relies on outdated licensing documents and other flawed assump tions to allege departures from St. Lucie Unit 2's licensing basis. Gil D ecl. at ¶¶ 3, 7, 12, 15, 16. Moreover, discretionary intervention is inappropriate because a Section 2.206 petition provides "other means whereby the requestor's/petitioner's interest will be protected."

10 C.F.R. § 2.309(e)(2)(i). SACE's objection that a Section 2.206 petition "would provide SACE with no meaningful recourse, given that it is the Staff's actions that SACE challenges in it s contentions" (Hearing Re quest at 24), fails to account for the Commission's oversight of Section 2.206 proceedings and is otherwise

15 Under 10 C.F.R. § 2.309(e)(1)-(2), the factors to be considered in ruling on a request for discretionary intervention are as follows: (e)(1) Factors weighing in favor of allowing intervention- (i) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record; (ii) The nature and extent of the requestor's/petitioner's property, financial or other interests in the proceeding; and (iii) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest; (e)(2) Factors weighing against allowing intervention- (i) The availability of other means whereby the requestor's/petitioner's interest will be protected; (ii) The extent to which the requestor's/petitioner's interest will be represented by existing parties; and (iii) The extent to which the requestor's/petitioner's participation will inappropriately broaden the issues or delay the proceeding.

16 SACE only discusses certain of the factors for discretionary intervention under 10 C.F.R. § 2.309(e)(1)-(2) in arguing that it has met the Commission's standard for untimely hearing requests.

See Hearing Request at 24-25.

11 unsupported. See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 565 n.63 (2005) (noting that skeptic ism regarding the likelihood of success of Section 2.206 petitions "is entirely unwarranted and inappropriate"). Finally, SACE's alleges that the NRC Staff's ac tions in "repeatedly am ending FPL's license to permit operation of the Unit 2 RSGs with signi ficant design changes, without conducting an appropriate analysis or notifying the public, demonstrates that th e Staff cannot represent SACE's interests" (Hearing Request at 24). This charge rests on ignorance and/or a misunderstanding of relevant licensing actions at St. Lucie 2 - including specifically two license amendment proceedings and a Staff-reviewed Section 50.59 analysis - and is no more than a veiled challenge to NRC Staff oversight. Therefore, the fact ors listed in 10 C.F.R. § 2.309(e)(1)-(2) weigh against allowing discretionary intervention by SACE. Section 161c of the AEA also authorizes the Commission to institute a proceeding where none is required by law. However, exercising this inherent discretion is appropriate only where substantial health and safety issues have been identified.

See Yankee Atomic Electric Co.

(Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 103 (1994). SACE's bald claim of "significant and too-long-hidden safety issues" (Hearing Reques t at 1) ignores clear instances in which the NRC Staff and the ACRS have examined and found the St. Lucie Unit 2 RSGs safe to operate, and fails to demonstrate how safety would not be addressed through the NRC Staff's ongoing reactor oversight. Finally, SACE provi des no indication that it possesses special knowledge or that it will present significant information not already available to, and considered by, the Commission. Accordingly, a discretionary hearing is unwarranted because it would "impose unnecessary burdens on th e participants without assisting the Commission in making its statutory findings under the AEA."

Transnuclear, Inc. (Export of 93.3% Enriched Uranium),

12 CLI-00-16, 52 NRC 68, 72 (2000). In the absence of an adjudicatory proceeding, the proper avenue for relief available to SACE was a petition to institute a proceeding pursuant to 10 C.F.R. § 2.206(a).

See San Onofre , CLI-12-20, 76 NRC at 439 n.10; Yankee, CLI-94-3, 39 NRC at 101 n.7 ("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."). Additionally, SACE previously had two opportunities to request a hearing on RSG safety issues at St.

Lucie Unit 2: (1) the 2006-2007 license amendment proceeding; and (2) the 2011-2012 EPU proceeding. Having failed to avail itself of th ese opportunities, SACE lacks standing to intervene and request a hearing at this juncture.

IV. SACE'S HEARING REQUEST IS NOT TIMELY SACE characterizes its Hearing Request as timely in accordance with 10 C.F.R. § 2.309(b)(4)(ii) because it was filed within 60 days of the NRC Staff's issuance of two documents relating to Staff's review of in-service inspections ("ISIs") at St. Lucie Unit 2. Hearing Request at 21-22. In the alternative, SACE asserts that it has good cause for untimely filing under 10 C.F.R. § 2.309(c)(1). SACE's Hearing Request fails to satisfy either standard. A license amendment hearing may only be requested within the time period specified in the relevant notice of op portunity for a hearing.

See 10 C.F.R. § 2.309(b)(3)(i); Texas Utilities Electric Co. (Comanche Peak Steam El ectric Station, Units 1 and 2), CLI-92-12, 36 NRC 62, 67 (1992). Pursuant to 10 C.F.R. § 2.309(b)(4), in proceedings for which no Federal Register notice of NRC action is published, a hearing request may be filed no later than 60 days following (i) publication of a notice on the NRC web site, or (ii) the requestor' s receipt of "actual notice of a pending application, but not more th an sixty (60) days after agen cy action on the application."

13 Following the NRC's issuance of a license amendmen t, any challenge to such license must take the form of a Sec tion 2.206 petition.

Comanche Peak , CLI-92-12, 36 NRC at 67.

As noted, SACE did not request a hearing in two prior license amendment proceedings involving St. Lucie Unit 2 RSGs, despite having opportunities to do so. SACE's timeliness argument is predicated on its assertion that each NRC Staff action relating to its ongoing

oversight of St. Lucie Unit 2 since the 2007 installation of the RSGs equates to a de facto license amendment.

See Hearing Request at 21-22. Specifically, SACE cites "

de facto approval of an amendment to the Unit 2 operating license" in the 2012 EPU decision, as well as NRC Staff findings on review of steam generator tube ISI reports "after each of the past three outages," most recently on January 24, 2014.

Id. at 21. SACE alleges that, in each case, "the NRC Staff reviewed the deteriorating condition of the Unit 2 steam generators and issued an affirmative finding that no regulatory action was warranted."

Id. In fact, the 2012 EPU proceeding involved an actual license amendment which, as SACE acknowledges, include d the NRC's evaluation and a pproval of RSG operation at increased power levels. Furthermore, neither th e Staff's issuance of findings on review of FPL's ISI reports, nor its notice of a planned baseline ISI, constitu tes "notice of a pending application" or "agency action on the application." 10 C.F.R. § 2.309(b)(4)(ii). Thus, SACE cannot overcome its failure to request a hearing in two previous license amendment proceedings by shoehorning its Hearing Request into a nonexistent proceeding based on alleged ongoing NRC Staff oversight.

Similarly, the Hearing Request fails to meet the Commission's recently amended criteria for considering late-filed hearing requests. In particular, untimely requests "will not be 14 entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing" that the foll owing criteria have been met: (i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(c)(1).

SACE has not satisfied any of the criteria sp ecified in Section 2.309(c

)(1). As discussed, contrary to SACE's allegation of a "secretive and misleading" amendment of St. Lucie Unit 2's operating license to account for the RSGs (Hear ing Request at 22), info rmation concerning the licensing bases for the RSGs has been available and has undergone NRC Staff review in multiple contexts since as early as the 2006 license amendment request. SACE has not identified any new, materially different information upon which its Hearing Request is based. Rather, SACE makes unsupported claims of misrepresentations and failures to address RSG design changes (see id. at 23-25). And, despite SACE's claims, the SONGS proceeding did not unearth any new information regarding the licensing basis for the St. Lucie Unit 2 RSGs or their susceptibility to

tube-to-tube wear of the type uniquely experienced at SONGS.

See Gil Decl. at ¶¶ 27-30.

V. SACE HAS NOT SUBMITTED ANY ADMISSIBLE CONTENTIONS As explained below, neither of SACE's two proposed Contentions meet the applicable standards for the admission of contentions.

A. Legal Standards for Contention Admissibility The Commission's contention admissibili ty rules are "strict by design".

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Stati on, Units 2 & 3), CLI-01-24, 54 NRC 15 349, 358 (2001) (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999)). "The protestant must make a minimal showing that material facts are in dispute, thereby demonstrating that an 'i nquiry in depth' is appropriate." 54 Fed. Reg.

33,168, 33,171 (Aug. 11, 1989) (quoting Conn. Bankers Ass'n v. Bd. of Governors , 627 F.2d 245, 251 (D.C. Cir. 1980)).

A petition "must set forth with particularity the contentions sought to be raised." 10 C.F.R. § 2.309(f)(1). Petitioners must provide "a clear statement as to the basis for the contentions and [submit] supporting information and references to specific documents and sources that establish the va lidity of the contention."

USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 437 (2006) (citing Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991)). Specifically, for each contention the petition must: (i) Provide a specific statement of the issue of law or fact to be raised or controverted . . . ; (ii) Provide a brief e xplanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (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; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a ma terial issue of law or fact.

10 C.F.R. § 2.309(f)(1). Contentions that do not satisfy each of these six requirements must be rejected.

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

16 CLI-09-8, 69 NRC 317, 324 (2009). The petitioner bears the burden of proffering contentions that meet the NRC's pleading requirements.

See Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998).

B. Contention 1 Is Inadmissible SACE Contention 1 reads: The NRC Staff has conduc ted 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 reactor's 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 1 is inadmissible because it is outside the scope of any existing proceeding, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(iii). Contention 1 also fails to raise a material issue or a genuine dispute of material law or fact , in contravention of 10 C.F.R. § 2.309(f)(1)(iv) and (vi).

1. Contention 1 Is Outside the Scope of Any Proceeding A petitioner must demonstrate "that the issue raised in the contention is within the scope of the proceeding." 10 C.F.R. § 2.309(f)(1)(iii). Under the Commission' s regulations, "[a] proceeding commences when a notice of hearing or a notice of proposed action under § 2.105 is issued." 10 C.F.R. § 2.318(a). See also Millstone, CLI-04-12, 59 NRC at 240 ("[I]ssuance of a

'notice of hearing' or a 'notice of proposed action' is a prerequisite to the initiation of a 'proceeding.'"). Any contention that falls outside the scope of a proceeding is inadmissible. Any contention that challenges an NRC rule is outside the scope of the proceeding because "no rule or regulation of the Commission . . . is subject to attack . . . in any adjudicatory proceeding."

See 10 C.F.R. § 2.335(a); see also Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC 13, 18 n.15 17 (2007). Petitioners "may not demand an ad judicatory hearing to attack generic NRC requirements or regulations, or to express ge neralized grievances about NRC policies."

Oconee , CLI-99-11, 49 NRC at 334. Contentions seeking to impose requirements in addition to those contained in Commission regulations impermissibly challenge those regulations.

Long Island Lighting Co. (Shoreham Nuclear Power Stati on, Unit 1), CLI-87-12, 26 NRC 383, 394-95 (1987); see also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1273 (1983) (When a Commission regulation permits the use of a particular analysis or technique , a contention asserting that a di fferent analysis or technique should be used is an impermissibl e challenge to the regulation). Contention 1 fails to meet the requirement of 10 C.F.R. § 2.309(f)(1)(iii) because there is no proceeding applicable to St. Lucie Unit 2. As there is no proceeding under Section 189a of the AEA for the granting, suspending, revoking or amending of FPL's operating license for St.

Lucie Unit 2, SACE has no basis to intervene and request a hearing. See Perry , CLI-96-13, 44 NRC at 326. Accordingly, Contention 1 cannot fit within the scope of a proceeding that does not exist. See Millstone , CLI-04-12, 59 NRC at 239. Moreover, contrary to SACE's argument, the NRC Staff has not conducted, and is not now conducting, a de facto license amendment proceeding w ith respect to St. Lucie Unit 2 RSGs. SACE's claim that it "is entitled to a prior hearing on the amen dment of FPL's operating license, before Unit 2 can be permitted to operate again" (Hearing Request at 13) is premised upon factual inaccuracies concerning the licensing basis for the St. Lucie Unit 2 RSGs and a strained interpretation of the Commission's legal standards governing de facto license amendments.

18 First, SACE incorrectly describes the licensing process by which FPL supported installation of the RSGs at St. Lu cie Unit 2. SACE alleges that FPL

's installation of the RSGs in 2007 in accordance with 10 C.F.R. § 50.59 necessitated a license amendment and that "the new design of the RSGs put the reactor's operation ou tside of both the original design basis and the license renewal design basis." He aring Request at 11; Gundersen De cl. at ¶¶ 51-52. In fact, in anticipation of steam generator replacement, FPL applied for an amendment to St. Lucie Unit 2's operating license to modify the Technical Specifications relating to steam generator tube integrity, including establishing a program to ensure that steam generator t ube integrity would be maintained. Cross Decl. at ¶ 5. The NRC granted the license amendment on May 29, 2007, before the steam generators were replaced.

17 In part because the Technical Specifications had already been so revised, the replacement itself was properly implemented in December 2007 pursuant to Section 50.59, which is the common industry practice, after a thorough screen ing and evaluation. Cr oss Decl. at ¶ 6.

In accordance with Section 50.59, FPL prepared an evaluation that demonstrated that the RSGs satisfied the existing UFSAR acceptance criteria and Technical Specification Limits.

Id. In addition, the Section 50.59 evaluation found that none of the criteria warranting a license amendment, as specified in 10 C.F.R. § 50.59(c)(2), applied to the RSGs.

Id. No further changes to St. Lucie Unit 2's Technical Specifica tions were required, nor were any changes to the Emergency Operating Procedures required as a result of the steam generator replacements.

Id. Affected sections of the UFSAR were updated, but the new steam generators were bounded by the original calculations for the original steam generators.

Id. The NRC Staff reviewed the Section 50.59 evaluation for the St. Lucie Unit 2 RS Gs as part of a three-month inspection, and

17 See footnote 7, infra.

19 identified no deficiencies.

18 Accordingly, the RSGs were installed in conformity with St. Lucie Unit 2's amended license and a Section 50.59 evalua tion reviewed by the NRC Staff, and did not further modify the operating license or afford FPL any greater operating authority. Cross Decl.

at ¶ 8. SACE also erroneously claims that the baseline ISI performed at Unit 2 during the current refueling outage must cover components that are listed in FPL's Aging Management Program ("AMP") - specifically the stay cylinde r and lattice tube supports - but that were removed or altered by FPL when it replaced the steam generators. Hearing Request at 12; Gundersen Decl. at ¶¶ 10, 57, 66.

In fact, FPL revised the design basis for the AMP in March 2007, prior to the steam generator replacement, to reflect that, as part of th e replacement, the stay cylinder would be removed and tube support plates would be substituted for the lattice tube supports. Cross Decl. at ¶ 10. Accordingly, as of the time the Section 50.59 analysis for the replacement steam generators was performed, and well before the current refueling outage's in-service inspection, the St. Lucie Unit 2 AMP reflected the removal of the st ay cylinders as well as the replacement of lattice tube supports with support plates and anti-vibration bars.

Id. SACE's concern regarding RSG design differences from the original steam generators and the original AMP is misplaced. FPL appropriately updated its Technical Specifications and AMP to reflect those di fferences. Second, SACE's attempt to characterize the Staff's acceptance of the Section 50.59 analysis and continued operation of the RSGs as a de facto license amendment reflects a misunderstanding of relevant Commission preced ent. As discussed above, the RSGs were installed in conformity with the St. Lucie Unit 2 amended license and FPL's Section 50.59

18 See St. Lucie Nuclear Plant - NRC Integrated Inspection Report 05000335/2007005, 05000389/2007005 (Feb. 1, 2008) (ADAMS Accession No. ML080350408), Enclosure at 28, 33.

20 evaluation, and were at all times subject to NRC oversight. Because installation of the RSGs pursuant to the amended license and Section 50.5 9 evaluation did not "g rant the licensee any

'greater operating authority,' or otherwise 'alter the original terms of a license,'" no de facto license amendment occurred.

Perry, CLI-96-13, 44 NRC at 326-27 (citations omitted). Nor did the subsequent 2012 issuance of an actual license amendment for the EPU, which reflected the NRC Staff and ACRS review of detailed design and performance information, somehow overlook design changes or wear indications, as SACE asserts.

Hearing Request at 9-10; Gundersen Decl. at ¶¶ 33-35, 54. Finally, SACE misconstrues the nature and purpose of ISIs when it asserts that the NRC Staff's baseline IS I at St. Lucie Unit 2 durin g refueling requires the NRC Staff to "necessarily choose between approving a change to the technical specifications and requiring FPL to change the RSG design to conform to the technical specifications." Hearing Request at 12.

19 Therefore, SACE's claims regardi ng a purportedly ongoing license amendment are unfounded. To the extent that SACE disputes the adequacy of the NRC Staff's review of facility modifications implemented pursuant to 10 C.F.R. § 50.59, Contention 1 is an impermissible challenge to Section 50.59 and the Staff's reactor oversight program. As SACE did not seek a waiver to challenge Section 50.59, its attack on the facility modi fication standards set forth in Section 50.59 is prohibited.

See 10 C.F.R. § 2.335(a). The Commission has clea rly stated that it "has not, and will not, litigate claims about the adequacy of the Staff's safety review in licensing adjudications."

AmerGen Energy Co., LLC (Oyster Creek Nuclear Ge nerating Station), CLI 19 The baseline ISI is intended to "assess the effectiveness of the licensee's program for monitoring degradation of vital system boundaries," including steam generator tubes. NRC Inspection Procedure 71111.08 (Nov. 23, 2011)

(ADAMS Accession No. ML11262A023), at 1, 4. The ISI involves a review of steam generator tube performance and the licensee's corrective actions for conformity with applicable Technical Specification requirements.

See id. at 4-6. While certain issues may be referred to NRC Staff for further evaluation (id. at A-1), the baseline ISI process does not contemplate changes to the Technical Specifications or to the steam generator design.

21 23, 68 NRC 461, 476 (2008) (citing Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg.

2,182, 2,202 (Jan. 14, 2004)). Further, any challenge to licensee action under Section 50.59 must be by means of a Section 2.206 petition.

See Yankee, CLI-94-3, 39 NRC at 101 n.7. Thus, Contention 1 falls squarely outside the scope of any proceeding and accordingly fails to meet 10 C.F.R. § 2.309(f)(1)(iii).

2. Contention 1 Does Not Raise a Material Issue or a Genuine Dispute of Material Law or Fact A petitioner must 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."

20 10 C.F.R. § 2.309(f)(1)(iv). Admissible contentions "must explain, with specificity, particular safety or legal reasons requiring rejec tion of the contested [application]."

Millstone , CLI-01-24, 54 NRC at 359-60. The Commission has defined a "material" issue as one where "resolution of the dispute would make a difference in the outcome of the licensing proceeding." 54 Fed. Reg. at 33,172 (emphasis added). In this regard, each contention must be one that, if proven, would entitle the petitioner to relief. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 56 NRC 358, 363 n.10 (2002). Because there is no proceeding and thus no findings the NRC must make to support continued operation pursuant to FPL's license, SA CE's dispute with the licensing basis for the RSGs at St. Lucie Unit 2 is not a material issue.

See 10 C.F.R. § 2.309(f)(1)(iv). However, even if a license amendment proceeding were somehow warranted, SACE's Contention 1 still fails to raise a material issue because it relies upon outdated and inaccura te information concerning the design and licensing basis of the St. Lucie Unit 2 RSGs.

20 Because no proceeding has been commenced with respect to St. Lucie Unit 2, the issues that SACE raises in its Hearing Request are not material. However, assuming that a proceeding did exist to amend the St. Lucie Unit 2 operating license, the standards defining the findings that the NRC must make to support issuance of an amendment to an operating license would be those set forth in 10 C.F.R. § 50.92.

22 SACE's claim that the RSGs are inconsistent with a previous ve rsion of the renewed operating license and UFSAR is not a material issue. FPL, in connection with the RSG installation process and subsequent EPU, amen ded the operating license and UFSAR (as well as the AMP) for consistency with the RSG design. As discussed above, the RSGs, at the time of installation, conformed to the am ended operating license and Techni cal Specifications then in effect. The RSGs' design departures from the original steam generators and renewed operating license were duly considered and approved in connection with multiple licensing processes, namely the 2007 license amendment, the S ection 50.59 evaluation and the 2012 EPU license amendment. Therefore, SACE's list of four asserted departures of the RSGs from the operating license, based upon references to outdated licensing documents (Hearing Re quest at 14-16), is inaccurate and immaterial. For similar reasons, the issues raised by SACE in Conten tion 1 do not raise a genuine dispute with St. Lucie Unit 2's licensing basis on a material issue of law or fact (10 C.F.R. § 2.309 (f)(1)(vi)) because SACE fails to controvert relevant facility licensing documentation.

Under the NRC's pleading standards, a petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could se rve as the foundati on for a specific contention. Neither Section 189a of the Atomic Energy Act not [the corresponding Commission regulation] permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff.

54 Fed. Reg. at 33,170 (quoting Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other grounds , CLI-83-19, 17 NRC 1041 (1983)). The obligation to make specific reference to relevant facility documentation applies with special force to an applicant's FSA R, and a contention should be rejected if it 23 inaccurately describes an applicant's proposed actions or ignores or misstates the content of the licensing documents.

See, e.g., Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LB P-82-119A, 16 NRC 2069, 2076 (1982); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-107A, 16 NRC 1791, 1804 (1982);

Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1504-05 (1982). As noted, SACE's Contention 1 refers to and attaches an outdated version of the UFSAR for St. Lucie Unit 2.

See Hearing Request at 14-16. As a result, SACE's claims of a de facto license amendment rely on inaccurate facility documentation and other mistaken assumptions. Accordingly, Contention 1 must be rejected because it ignores or misstates the content of applicable licensing documents, thus failing to raise a material dispute with the St. Lucie Unit 2 licensing basis as it actually exists.

See Harris , LBP-82-119A, 16 NRC at 2076.

C. Contention 2 Is Inadmissible Contention 2 reads:

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 Staff's de facto past amendment of the Unit 2 license should be revoked, the Staff's 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. Contenti on 2 falls outside the scope of any existing proceeding, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(iii). Contention 2 also fails to raise a material issue or a genuine dispute of material law or fact, in cont ravention of 10 C.F.R. §§ 2.309(f)(1)(iv) and (vi). Accordingly, Contention 2 is inadmissible.

24 1. Contention 2 Is Outside the Scope of Any Proceeding Like Contention 1, Contention 2 raises issues that are outside the scope of a proceeding and thus contrary to 10 C.F.R. §§ 2.309(f)(1)(iii). As discussed above, no proceeding currently exists with respect to St. Lucie Unit 2. Even if such a proceeding did exist, the Hearing Request is an impermissible challenge to the current li censing basis for St. Lucie Unit 2 and a collateral attack on the Commission's reactor oversight program. A petitioner is not entitled to an adjudicatory hearing to attack generic NRC requirements or regulations.

Oconee , CLI-99-11, 49 NRC at 334. As the Commission has recognize d, "the thrust of SACE's co mplaint is that the NRC has not taken sufficient regulatory actions to ensure that St. Lucie is operated safely with the replacement steam generators." CLI-14-04 at 4-5. However, "[t]he NRC has not, and will not, litigate claims about the adequacy of the Staff' s safety review in licensing adjudications."

Oyster Creek, CLI-08-23, 68 NRC at 476. Affording SACE a hearing on the basis of generalized concerns with steam generator replacement would unduly hinder ongoing NRC oversight and create a nearly unbounded right to a hearing at any time due to generalized grievances with the Commission's oversight of reactor licensees. See Kelley v. Selin , 42 F.3d 1501, 1514 (6th Cir.) ("If . . . public participation were automatically required for any agency action, the public would be en titled to an unrestrained plat form that would disable the Commission and effectively prevent it from taking any action."), cert. denied , 515 U.S. 1159 (1995).

2. Contention 2 Does Not Raise a Material Issue or a Genuine Dispute of Material Law or Fact Moreover, contrary to 10 C.F.R. §§ 2.309(f)(1)(v)-(vi), Contention 2's assertions of design and safety deficiencies with the RSGs at St. Lucie Unit 2 necessarily fail to raise a 25 material issue because the NRC is not making any findings with respect to the continued operation of St. Lucie Unit 2, and because there is no licensing request to dispute. Even if there were there such a licensing proceeding, Contention 2 rests upon misunderstandings of the RSG design and of the safety significance of certain steam generator tube wear indications.

As discussed above, FPL's installation of the RSGs was conducted after St. Lucie Unit 2's license was amended to reflect the RSGs' design. SACE identifies four design changes which, according to SACE and Mr. Gundersen, depart from St. Lucie Unit 2's licensing basis and applicable NRC safety standards: "the remova l of the stay cylinder, the perforation of the central region of the tubesheet , the addition of 588 tubes in that central region, and the substitution of broached trefoil plates for a lattice or egg crate support system for the thousands of tubes in each steam generator." Hearing Requ est at 17. SACE asserts that "[n]either FPL nor the NRC Staff has analyzed how the newly altered [Reactor Coolant Pressure Boundary] components will interact and change the behavior of the entire system."

Id. at 17-18; Gundersen Decl. at ¶ 59. In fact, however, all four of these design change s were appropriately considered by the NRC and are currently reflected in St. Lucie Unit 2's UFSAR.

See Gil Decl. at ¶¶ 5-19. The purpose of the stay cylinder in the Com bustion Engineering design for St. Lucie Unit 2's original steam generators was to provide structural support for the large diameter tube sheet plates to meet the American Society of Mechan ical Engineering ("ASME

") code and regulatory requirements.

Id. at ¶ 6. AREVA's design, which was used for the RSGs, instead utilizes a divider plate integrally welded to the tube sheet face and primary head to separate the inlet and outlet plenums and to provide the same structural support in accordance with ASME code and regulatory requirements. The divider plates are described in Section 5.4.2.1.2 of St. Lucie Unit 2's current UFSAR (Amendment 21 dated November 2012).

Id. at ¶ 7. However, they were first 26 described in Amendment 18 to that UFSAR dated January 2008.

Id. The current UFSAR (and Amendment 18 to the UFSAR) also removed "stay cylinder" from the list of steam generator components in UFSAR Table 5.2-3.

Id. Mr. Gundersen's position concerning the stay cylinders relies on his Exhibits 2 and 3, which are outdated versions of the UFSAR that preceded Amendment 18.

Id. Moreover, SACE's safety concerns regard ing removal of the st ay cylinder (Hearing Request at 18; Gundersen Decl. at ¶ 61) are without merit. In addition to being subject to NRC review prior to and during the EPU license amendment proceeding, AREVA's use of the divider plate integrally welded to the tube sheet in lieu of a stay cylinder has been fully analyzed and meets all ASME Code requirements. Gil Decl. at

¶ 8. The divider plate in the St. Lucie Unit 2 RSGs provides the same function as the stay cylinde r, i.e., to reduce tube sheet stress levels in bending to acceptable design levels.

Id. SACE and Mr. Gundersen provide no information, opinion or support to the contrary. Indeed, Exhib it 4 to Mr. Gundersen's D eclaration notes that a number of Combustion Engineering plant replacement steam generators manufactured by vendors other than AREVA also "removed" stay cylinders and instead provided divider plates similar to AREVA's design. Gil Decl. at ¶ 9. Despite SACE's claim that the addition of 588 tubes in the RSGs was a change with "significant safety implications

" (Hearing Request at 18; Gunders en Decl. at ¶ 62), the RSGs containing these additional tubes me et applicable codes and regulator y standards. Gil Decl. at ¶ 11. The additional 588 tubes (for a total of 8,999) are described in Section 5.4.2.1.2 of St. Lucie Unit 2's current UFSAR.

See Gil Decl., Exhibit B, 5.4-11. Indeed, the existing number of tubes was first described in St. Lucie Unit 2's Amen dment 18 to the UFSAR dated January 2008. Gil Decl. at ¶ 12. The additional tubes were taken into account at the time the NRC approved the 27 EPU license amendment. Mr. Gundersen's position concerning the 588 additional tubes relies on his Exhibit 3, which is an outdated versi on of St. Lucie Unit 2's FSAR that preceded Amendment 18 and did not consid er the additional tubes. Id. SACE's concern that additional holes that were drilled into the tubesheet to accommodate the additional tubes in the RSGs result in a "l ess solid" tubesheet (Hearing Request at 18; Gundersen Decl. at ¶ 61, 65) is similarly misplaced. Mr. Gundersen's position again relies on an outdated version of the Technical Specifications. In fact, the current UFSAR recognizes the new number of tubes present in the St. Lucie Unit 2 replacement steam generators and thus the additional holes drilled in the tubesheet to accommodate the tubes. Gil Decl. at ¶ 15. Further, the tubesheet is not weakened by the perforations to accommodate the additional tubes.

Id. at ¶ 14. The AREVA replacement steam generators use AREVA's standard divider plate design, which analysis and testing have shown support th e tubesheet such that all codes and regulatory requirements are met even when considering the effects on the tubesheet of additional tubes.

Id. Mr. Gundersen offers no opinion, support, or information to the contrary.

In addition, contrary to SACE's argument, FPL's substitution of broached trefoil plates for a lattice or egg crate support system in the RSGs is properly re flected in the current St. Lucie Unit 2 UFSAR. Unlike the outdated FSAR upon which Mr. Gunderson relies, the current St.

Lucie Unit 2 UFSAR describes the us e of stainless steel broached-hole tube support plates, rather than a lattice or egg crate support system, to provide support for the tubes and prevent denting.

Gil Decl. at ¶ 16. Like the other changes disc ussed above, the current FSAR description of the tube support plates was adopted in FSAR Amendment 18, well before the NRC reviewed FPL's license amendment request for St. Lucie Unit 2's EPU.

Id. Mr. Gundersen has failed to provide any basis for his assertion that the broached tube support plates have "inc reased resistance to 28 flow" and has led to "vibrational problems."

Gundersen Decl. at ¶ 26.

Mr. Gundersen has not identified any safety issue in connection with the broached-hole tube s upport plates currently used in St. Lucie Unit 2 and in other steam generators for decades. Gil Decl. at ¶ 19. Finally, SACE contends that there is "an immediate danger that the tubes in the St. Lucie Unit 2 RSGs could suddenly fail in a manner simila r to the failure of th e tubes in San Onofre Unit 3." Hearing Request at 19. In particular, SACE posits that the tube-to-AVB wear experienced in St. Lucie Unit 2's RSGs "will over time create the very same type of tube-to-tube wear failures that occurred in San Onofre Unit 3" and that FPL and the NRC have not analyzed the likelihood of such wear. H earing Request at 19; Gundersen Decl. at ¶ 63. SACE's attempt to liken the condition of the RSGs to the situation affecting the steam generators at SONGS Unit 3 is unavailing. Significant differences between the design of the St. Lucie Unit 2 and SONGS steam generators, as well as differences in th e type of tube wear experienced, make such a comparison inappropriate and misleading. Gil Decl. at ¶ 4. The EPU license amendment for St.

Lucie Unit 2 was approved after the unique tube-to-tube wear was observed at SONGS Unit 3.

In connection with its review of the EPU license amendment request, the NRC Staff and the ACRS specifically considered the conditions affecting SONGS Unit 3 as compared to those leading to the wear observed at St. Lucie Unit 2. In recommending appr oval of the license amendment, the ACRS concluded that "the form s of degradation reporte d to have occurred at [SONGS Unit 3] are less likely to occur at St. Lucie 2" and that "[t]hese considerations and the licensee's action plan ad equately address concerns about

[steam generator] tube integrity."

21 Accordingly, the NRC Staff and the ACRS ha ve already addressed steam generator tube wear at St. Lucie Unit 2 in a recent license amendment proceeding. As noted above, on ample

21 Letter from J. Sam Armijo, Chairman, ACRS, to R.W. Borchardt, NRC Executive Director of Operations (July 23, 2012), at 4 (ADAMS Accession No. ML12198A202).

29 recent occasions, the NRC Staff has examined the RSGs and has consistently concluded that they could operate safely. SACE has not provided any evidence that, despite FPL's Steam Generator Management program and the careful safety analysis by the Staff and the ACRS, the steam

generator issues affecting SONGS Unit 3 are likely to occur at St. Lucie Unit 2. After four full cycles of operation, St. Lucie Unit 2 has not ex perienced tube-to-tube wear, and there is no reason to believe that such wear will occur. Gil Decl. at ¶ 28. The most recent ISI completed in March 2014 resulted in the following preliminary conclusions: (a) steam generator wear continues to be manageable within the St. Lucie Unit 2 steam generator program; (b) no tube integrity issues were identified; (c) the number of tubes plugged (69) was significantly less than the number of tubes plugged during the last outage prior to power upr ate; (d) the tube wear was not unexpected, with average and statistical wear rates at approximately 2012 levels notwithstanding power uprate; (e) again, no in-plane tube-to-tube wear was detected; and (f) no issues were identified based on the SONGS operating experience. Gil Decl. at ¶ 25. In sum, because Contention 2 is predicated on erroneous information and faulty assumptions concerning the desi gn and licensing basis of St. Lu cie Unit 2's RSGs, as well as their susceptibility to the uni que tube-to-tube wear experienced at SONGS, it does not raise a genuine dispute with St. Lucie Unit 2's licensing basis, even were there somehow a proceeding in which SACE's claims were material. Theref ore, Contention 2 fails to satisfy 10 C.F.R. §§ 2.309(f)(1)(vi) and is inadmissible.

30 VI. CONCLUSION For the reasons discussed above, FPL respectfully requests that the Commission deny SACE's Hearing Request. Respectfully submitted, /Signed electronically by Michael G. Lepre/ William S. Blair FLORIDA POWER & LIGHT

COMPANY 700 Universe Blvd.

Juno Beach, FL 33408

Telephone: 561-304-5238 Facsimile: 561-304-5366 E-mail: william.blair@fpl.com

April 28, 2014 John H. O'Neill, Jr.

Michael G. Lepre

Stephen L. Markus PILLSBURY WINTHROP SHAW PITTMAN LLP

2300 N Street, NW

Washington, DC 20037-1128

Telephone: 202-663-8148 Facsimile: 202-663-8007 E-mail: john.o'neill@pillsburylaw.com michael.lepre@pillsburylaw.com stephen.markus@pillsburylaw.com

Counsel for FLORIDA POWER & LIGHT COMPANY UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ) )

Florida Power & Light Company ) Docket No. 50-389

)

(St. Lucie Plant, Unit 2) ) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Florida Power & Light Company's Answer Opposing Southern Alliance for Clean Energy's Hearing Request Regarding De Facto License Amendment of St. Lucie Unit 2 Operating License were provided to the Electronic Information Exchange for service to those individuals listed below and others on the service list in this proceeding, this 28th day of April 2014.

Office of Commission Appellate Adjudication

Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov

Secretary Att'n: Rulemakings and Adjudications Staff

Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: secy@nrc.gov; hearingdocket@nrc.gov Administrative Judge

E. Roy Hawkens, Esq., Chair Atomic Safety and Licensing Board

Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: erh@nrc.gov Catherine Kanatas, Esq.

David Roth, Esq.

Jeremy Wachutka, Esq.

Edward Williamson, Esq.

Office of the General Counsel

Mail Stop O-15 D21

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: catherine.kanatas@nrc.gov E-mail: david.roth@nrc.gov E-mail: jeremy.wachutka@nrc.gov E-mail: edward.williamson@nrc.gov E-mail: OGCMailCenter@nrc.gov

2 Dianne Curran, Esq. Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street, NW Suite 600

Washington, DC 20036 E-mail: dcurran@harmoncurran.com

/Signed electronically by Michael G. Lepre/