ML14251A609
| ML14251A609 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 09/08/2014 |
| From: | Lodge T J Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Don't Waste Michigan, Green Party of Ohio |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-346-LR, ASLBP 11-907-01-LR-BD01, RAS 26459 | |
| Download: ML14251A609 (27) | |
Text
UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBefore the Atomic Safety and Licensing BoardIn the Matter of:)Docket No. 50-346-LFirstEnergy Nuclear Operating Company)September 8, 2014Davis-Besse Nuclear Power Station, Unit 1))INTERVENORS' MOTION TO AMEND AND SUPPLEMENT CONTENTION NO. 7ON WORSENING SHIELD BUILDING CRACKING AND INADEQUATE AMPS IN SHIELD BUILDING MONITORING PROGRAMNow come Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario(CEA), Don't Waste Michigan, and the Green Party of Ohio (collectively, Intervenors), by andthrough counsel, and move to amend and supplement their September 2, 2014 "Motion to AdmitContention No. 7 on Worsening Shield Building Cracking and Inadequate AMPs in Shield Build-ing Monitoring Program." FirstEnergy Nuclear Operating Company ("FENOC") has modified itsAging Management Plans ("AMPs") within its Shield Building Monitoring Program in responseto a worsening cracking problem in the reactor Shield Building at the Davis-Besse NuclearPower Station, Unit 1 ("Davis-Besse"). /s/ Terry J. Lodge Terry J. Lodge (Ohio Bar #0029271)316 N. Michigan St., Ste. 520Toledo, OH 43604-5627Phone/fax (419) 255-7552tjlodge50@yahoo.comCounsel for Intervenors MEMORANDUMAMENDED CONTENTIONIntervenors amend their contention filed on September 2, 2014, by adding wording(italicized) as follows:FENOC's revisions to the AMPs in its Shield Building Monitoring Program,dated July 3, 2014, acknowledge not only the risk, but the reality, of aging-related1cracking propagation - that is, worsening - in the already severely cracked ShieldBuilding, an admission which brings the issue within the scope of this License RenewalApplication proceeding. FENOC's proposed modifications to its Shield BuildingMonitoring Program AMPs, regarding the scope (areas of the Shield Building to beexamined), sample size (number of tests to be performed), and the frequency of itssurveillance activities, are woefully inadequate. Significantly more core bores, as well asa broader diversity of complementary testing methods should be required, and at a muchgreater frequency than FENOC has proposed. The cracking phenomena must beidentified, analyzed and addressed within the Final Supplemental Environmental ImpactStatement for the license renewal both in the consideration of alternatives to granting the20-year license extension for Davis-Besse as well as in the Severe Accident MitigationAlternatives analysis (SAMA). The cracking problems do not support a conclusion thatthere is "reasonable assurance" that Davis-Besse can be operated in a mannerprotective of the public health and safety under the Atomic Energy Act during the 20-yearproposed license extension period.BACKGROUNDIn LBP-12-27 (December 28, 2012), the Atomic Safety and Licensing Board rejectedIntervenors' Contention 5 and its associated amending and supplemental filings, seekingconsideration of widespread laminar cracking and other concrete damage in the Shield Buildingwalls to be viewed as aging-related problems falling within the parameters of this license renewalSee FENOC's "Reply to Request for Additional Information for the Review of the Davis-Besse1Nuclear Power Station, Unit No. 1, License Renewal Application (TAC No. ME4640) andLicense Renewal Application Amendment No. 51," Davis-Besse Nuclear Power Station, UnitNo. 1, Docket No. 50-346, License Number NPF-3, sent by FENOC to the attention of theDocument Control Desk at the U.S. Nuclear Regulatory Commission on July 3, 2014, per 10CFR 54,
Enclosure:
Davis-Besse Nuclear Power Station, Unit No. 1 (Davis-Besse), Letter L-14-224, Enclosures 1 and 2, ADAMS No. ML14184B184 (hereinafter referenced as "FENOC's RAILetter, July 3, 2014").
proceeding:. . . Intervenors must point to the specific ways in which the Shield BuildingMonitoring AMP is wrong or inadequate to raise a genuine dispute with FENOC's LRA.This they have failed to do. Intervenors have provided no support for their argumentthat the cracking (1) is aging-related, and (2) prevents safe operation of the plant. Theseclaims amount to bare assertions, which the Commission has made clear "are insufficientto support a contention.". . . However, a petitioner "'must present sufficient informationto show a genuine dispute' and reasonably 'indicating that a further inquiry isappropriate.'"(Emphasis added). Id., LBP-12-27 at 30 (32 of .pdf). However, in their "Motion for Admission of Contention No. 7" filed September 2, 2014,Intervenors exposed the distinct change of position of FENOC. Applicant now concedes thatsignificant mistakes were made in remediation and in understanding the implications of thecracking phenomena which were first noticed in 2011. FENOC's latest, "ice-wedging" crackingpropagation root cause is an admission that the Shield Building cracking is aging-related, whichbrings it within the scope of this LRA proceeding. FENOC acknowledged worsening cracking inAugust-September 2013; on July 8, 2014, FENOC provided, at long last, the supposed root causeof this worsening, or "propagating," cracking - ice-wedging, per PII's 9/11/13 RCA-2. So nearlyat the end of this LRA adjudicatory proceeding, FENOC has admitted what was clear toIntervenors since 2011: the calculations of NRC staff engineers which suggest that the ShieldBuilding is permeated by cracking which threatens the continued usefulness and stability of thestructure itself, and the burgeoning evidence of increasing cracking, must be conceded validity,and there are serious questions surrounding the basis for granting a 20-year extension of Davis-Besse's operating life which must be adjudicated in this license renewal proceeding.FACTS WHICH REQUIRE EXPANDED NEPA CONSIDERATION AND/OR UNDERCUT A FINDING OF 'REASONABLE ASSURANCE' The document identified as "Enclosure 2," the "Full Apparent Cause Evaluation"(hereinafter "FACE") which is part of the FENOC RAI Letter dated July 3, 2014 but not2disclosed to the ASLB, Intervenors and the public until July 8, 2014, is the focus of this filing.The facts which justify reworking of the NEPA document for the license extension, andwhich additionally undercut a finding of "reasonable assurance" that the public health and safetywould be adequately protected during the proposed 20-year license extension term are many.1. Water is saturating the shield building walls,but not all sources have been consideredFENOC's consultant, Performance Improvement International ("PII"), conducted theinvestigation and compilation of the Apparent Cause Evaluation. PII learned that there is watersaturating the Shield Building concrete at 10 inches of depth. FACE, p. 34/98 of .pdf. In 2012,FENOC or its contractors sealed bore holes made for investigation into the cracking, and waterfrom within the walls appeared in them. Id. PII concludes that coating the outer walls of theDavis-Besse Shield Building has "prevented a finite amount of moisture from leaving thestructure. Until this moisture dissipates it contributes to the water accumulation mechanismrequired for Ice-Wedging." Id. at 35/98 of .pdf. A petrographic examination of the core samples was also conducted. Id. at 34/98 of .pdf.Inspection under a Scanning Electron Microscope (SEM) revealed the presence of microcracks.Id. A quantitative approach was developed to assess the microcrack density in the core samples.Id. At multiple depths, evidence of Freeze-Thaw damage and evidence of water transport in theform of Ettringite crystals formation and microcracks emanating from pores was found. Id. TheNRC ADAMS No. ML14184B184.2 maximum microcrack density was near the outer most layer of the concrete (within the first 2 in).The microcracks emanating from pores at the laminar crack locations were present at a lowerdensity than shallower locations. Id. On account of the water detection inside the bores, thewater analysis, and the presence of microcracks emanating from pores at depths up to 10 in, thepresence of excess water was confirmed. Id. Ettringite is a hydrous calcium aluminium sulfatemineral. FENOC asserted in its February 2012 Root Cause Analysis that when ettringite is foundlining the air voids in shield building concrete it "suggests long-term exposure to moisturemigrating through the concrete." RRCA at 25. Owing to a high content of salt within the structure's walls, there is an ongoing water-borne corrosive effect which exceeds the corrosion from outside the Shield Building. FACE, p.39/98 of .pdf. The presence of corrosive agents has serious implications for rebar embedded inthe Shield Building walls:Corrosion of embedded metal is one of the main causes of failure of concretestructures (ACI 201.2R, ACI 222R). The critical elements needed for corrosion to occurare water, oxygen, and chloride ions, which in turn makes permeability the main concreteproperty that influences corrosion resistance. The high alkalinity (pH>12.5) of theconcrete protects the thin iron-oxide film on the surface of the steel, thus making the steelpassive to corrosion."FENOC-Davis-Besse Nuclear Power Station, Unit 1, Submittal of Contractor Root CauseAssessment Report - Section 1," ADAMS No. ML12138A037, pp. 180-181/257 of .pdf. 3In "Intervenors' Third Motion to Amend and/or Supplement Proposed Contention No. 5At 180-181/257 of .pdf, 2012 Revised Root Cause Analysis by PII: "Corrosion of embedded3metal is one of the main causes of failure of concrete structures (ACI 201.2R, ACI 222R). Thecritical elements needed for corrosion to occur are water, oxygen, and chloride ions, which inturn makes permeability the main concrete property that influences corrosion resistance. Thehigh alkalinity (pH>12.5) of the concrete protects the thin iron-oxide film on the surface of thesteel, thus making the steel passive to corrosion."
(Shield Building Cracking)" (July 16, 2012), they pointed out that there was no examination ofadmitted cracking of the Shield Building Dome, or the below-grade Shield Building walls in the2011-2012 investigation, despite the revelation that the shield building dome, built in 1973, wassealed in 1976 but not before it had displayed cracking (so three years' worth of water soakinginto dome, flowing down side walls occurred). Moreover, NRC RAIs in late 2011/early 2012asked about the "Blizzard of 1977," which was nearly as troublesome as the "Blizzard of 1978."Water inflow through the Shield Building dome might have contributed to water in the wallswhich, once the blizzards and other freeze-thaw events initiated cracking, propagated it via ice-wedging. As Intervenors warned in 2012, the whitewashing of the Shield Building has nowlocked the water in the walls. Thus, every time it freezes, another 0.4 to 0.7 inches of circum-ferential ice-wedging crack spreading takes place, as Intervenors pointed out in their September2, 2014 filing. This is aging-related, it gets worse with each winter freeze-thaw cycle.In PII's 2012 Revised Root Cause Analysis, FENOC asserts that a waterproofingmembrane was installed below-grade on the shield building exterior. RRCA p. 33. The RRCAalso reveals that the decision was taken in 1969 to not seal the interior or exterior of the shieldbuilding, nor the below-grade shield building walls. So the Shield Building was left wide open todamaging water infiltration, from above, the sides, and below, as well as inside-out, probably foreconomic reasons. Despite these moisture intrusion pathways dating to 40 years ago, FENOCpersists in excluding from the AMP discussion any examination of the dome or the below-gradeshield building walls. Cracks in the dome, failed sealant on the dome exterior, and certainly thesealant-lacking, degraded water-barrier at the base, and unsealed below-grade Shield Buildingwalls, are all vulnerabilities to water inflow to the SB walls, that could worsen ice-wedging crack propagation. PII concludes that "the [exterior Shield Building] coating has effectively blocked outexternal water intrusion and locked in moisture or water existing in the structure prior to thecoating. This condition will have an impact on the moisture movement and distribution withinthe shield building wall as described." FACE, p. 41/98 of pdf.PII concludes that "[w]hile application of the coating has effectively prevented waterfrom entering the shield building, its application has also prevented a finite amount of moisturefrom leaving the structure (failure mode 6). Until this moisture dissipates it provides the wateraccumulation mechanism required for Ice-Wedging, and therefore is identified as Causal Factor2." FACE, p. 55/98 of .pdf. PII reached this conclusion after admitting gravely mistakenassumptions at the time the decision to coat the Shield Building was taken: The presence of moisture is inherent in any concrete structure, and as in the caseof the shield building, it was not believed to pose any challenges to the coating effort.Water discovered in plugged bores prior to coating application was believed to haveentered from the outside environment, however the possibility of existing water withinthe shield building was posed as feasible. However, the belief was that had the watercome from inside of the shield building, the amounts discovered were small enough topresent no adverse effect to the shield building.FACE, p. 63/98 of .pdf.Until the moisture within the walls "dissipates, it provides the water accumulationmechanism required for ice-wedging, and therefore is identified as the Contributing Cause to thelaminar cracking propagation." Id., p. 65/98 of .pdf. The moisture level in the Shield Buildingconcrete increased from 65% as measured in 2011 to 90-100% as measured in 2013. Id., 76/98 of.pdf.2. There is an issue of fact as to whether the Shield Building conforms to its licensing basis PII concludes that "[a] review of engineering analysis documentation developedfollowing the initial laminar crack condition, demonstrated that the shield building remainedstructurally adequate for the controlling load case(s) and is in compliance to the current designand licensing bases." FACE, p. 55/98 of .pdf. This statement is highly suspect, and probablyfalse.In a May 8, 2012 email from Timothy Riley of NRC's office of OCA to Ohio's two U.S.Senators (Exh. A hereto), Riley noted that FENOC "concluded in its Shield Building Root CauseReport dated February 27, 2012, that the SB [Shield Building], with the laminar cracking in itswalls, was operable but non-conforming to the current design and licensing bases with regard tothe design stress analysis methodology, and the tornado allowable stress values." In an NRC Inspection Report covering the period December 1, 2011 through May 9,2012, referenced in the Riley email, the NRC confirms that the Shield Building cracking meantthat the building failed to meet its licensing basis:For the Direct Cause CA No. 2, the licensee will develop an engineering plan tore-establish design and licensing basis for the SB. Hence, the licensee will meet theirprocedure requirements for addressing the Direct Cause (Reference NOBP-LP-2011,"FENOC Cause Analysis"). Based upon the proposed actions and ongoing NRC reviewsfor this area, the NRC team concluded that the continued capability of the SB to performthe design safety functions would be assured. In particular, the NRC LRA reviews willinclude an evaluation of the program for monitoring of the shield building cracking. TheNRC team also confirmed that that licensee had assigned site staff (e.g., owners) to eachDirect Cause CA with reasonable due dates.ADAMS no. ML12173A023. In "Intervenors' Fifth Motion To Amend and/or Supplement Proposed Contention No. 5(Shield Building Cracking)" (Aug. 16, 2012), the Intervenors amassed considerable evidencemostly gleaned from FOIA requests concerning departures of the Shield Building from Davis-Besse's current licensing basis (CLB). For example, Document B/23 [11/17/11; Davis-BesseContainment System Primary Steel Containment and Shield Building. (1 page)], at Page 28 of101 on PDF counter, contains the statement that "[t]he shield building was designed to withstandforces generated by design bases seismic events," but this assertion is challenged, if not outrightundermined, by Document B/1's revelations. Intervenors cited NRC's admission, "The existingas-found condition of cracking in the concrete of the shield building has raised questions on theability of the structure to maintain its ability to perform its design functions under conditions thatwould introduce active forces (such as a seismic event or potentially rapid changes in theenvironmental conditions)," as supportive of its call for a hearing on the merits of these issues.At pp. 41-42 from Intervenors' Document B/26 [11/22/11; Email from A. Sheikh, NRRto E. Sanchez Santiago, RIII on Questions for the Conference Call. (1 page)] [beginning on Page39 of 101 on PDF counter], at p. 41 [NRC staffer] Sheikh's states: "The licensee is usingnumerous assumptions in his summary report and calculations that are not described in theUFSAR and ACI 318-63, and still calls it a design basis calculation. Can the licensee providejustification for this approach." From Intervenors' Document B/36 [12/02/11; Email from B. Lehman, NRR to S. Sakai,NRR et al. FW: Davis Besse POP. (2 pages)] [which begins at Page 52 of 101] [commencing atPage 55 of 101 on PDF counter]: "The licensee still has unresolved questions to answerregarding the design basis of the plant. Basically, when the SB was built the requirements andcodes it was built under were for an uncracked building. Because the building is now cracked, thequestion of whether the SB still meets the requirements as stated in the FSAR [Final SafetyAnalysis Report] and licensing basis needs to be evaluated."
In Intervenors' section discussing Document B/44 [12/13/11; Email from M. Galloway,NRR to A. Sheikh, NRR et al., RE: Davis-Besse Shield Building. (1 page)], at Page 66 of 101 onPDF counter, they observed that "Abdul Sheikh admits 'Davis Bessee [sic] shield building hasnot been designed for containment accident pressure and temperature.'" Abdul Sheikh alsostated in Document B/26 that "I am concerned that the concrete will fail in this region due tobending in this region even under small loads." Given that according to PII in the FACE report, "the laminar cracking of the shieldbuilding is unique with respect to reinforced concrete" (FACE, p. 63/98 of .pdf); that FENOChas just belatedly admitted a complete reversal of its former positions and acknowledged thatthere is an ongoing cracking problem related to an as-yet unresolved concrete water saturationsituation; that coating the exterior of the Shield Building has "apparently" visited unexpectedcomplications upon FENOC; and that continued cracking is so probable that a monitoring effortthroughout the 20-year license extension has been postulated, there is an issue of fact as towhether the Shield Building conforms to its current licensing basis.3) Inaction is not effective Corrective ActionThe "corrective action" which is proposed for the Shield Building is merely "monitoringthe crack propagation condition." FACE, p. 66/98 of .pdf. FENOC's policy of opposing repairs of small exterior cracks may be counterproductive. The assertion that "the shield building coating was completed in October of 2012 and wouldtherefore prevent subsequent water intrusion" ignores the potential for new outer-wall cracks asfissures to continue to foster water intrusion. Id., 40/98 of .pdf. On the same page, PII points outthat "[t]he Davis-Besse maintenance rule manual states that cracks 1/16 in or less do not need to be repaired." Id. FENOC's policy against repairing cracks may promote the spread of new oradditional exterior wall cracking.The remedy proposed by FENOC and PII is minimal expansion of bores (4 more) to try tocapture info on what the severe 2013-2014 winter weather might have caused to the ShieldBuilding, to conduct annual monitoring and sampling through 2018, then to go to biannualmonitoring and sampling through 2026, and ultimately to move to every-four-year monitoringand sampling at that point through 2037. FACE, pp. 67-68/98 of .pdf.PII admits that "there are no Corrective Actions being implemented to mitigate adverseconditions," only shield building monitoring activities which will be tracked through theCorrective Action program. FACE, p. 70/98 of .pdf. In 2012, Intervenors identified the microcracking phenomena and called for tests toinvestigate for them extensively. The PII "Revised Root Cause Analysis" of spring 2012 4mentioned micro-cracking, and Intervenors petitioned for adjudication to investigate in detail thepossibility that the cracking problems were not contained by coating the Shield Building and thatthey were indeed aging-related and thus within the scope of this LRA proceeding. PII andFENOC now admit that micro-cracking, caused by freeze-thaw cycles, is aging-related.Contemporaneously in 2012, FENOC was discovering excessive water presence in testboring holes in the Shield Building and not telling the ASLB, the parties to this proceeding, orthe public, not even its contractor, PII, which discovered the water presence in bore holes in late2013. FACE, p. 22/98 of .pdf. The two years of concealment of the presence of increased waterconcentrations in the Shield Building walls, especially through the uniquely severe winter ofhttp://pbadupws.nrc.gov/docs/ML1213/ML12138A037.pdf4 2013-2014, has almost certainly worsened the spread of cracking. PII's September 2013 FACEadmits that there is 0.4 to 0.7 inches of circumferential crack growth per freeze and acknow-ledges up to 10.8 inches of additional cracking per two years because of the water presence andice-wedging it causes.By "Intervenors' Third Motion to Amend and/or Supplement Proposed Contention No. 5(Shield Building Cracking)" (July 16, 2012), they brought microcracking to the ASLB's5attention. See id., pp. 3-5. In "Intervenors' Motion to Amend and Supplement ProposedContention No. 5 (Shield Building Cracking)" (July 23, 2012), they mention micro-cracking at6pp. 7-8, 27, 40, and 46.In "Intervenors' Motion to Amend and Supplement Proposed Contention No. 5 (ShieldBuilding Cracking)" (June 4, 2012), Intervenors mentioned (at p. 6):7The conclusion that "the Blizzard of '78 did it" is viewed with skepticism becausethe engineering literature is disputed over how forceful the delivery of precipitation mustbe for it to penetrate concrete. In an article, "Quantification of Water Penetration IntoConcrete Through Cracks by Neutron Radiography," The 3rd ACF InternationalConference-ACF/VCA 2008, 925, M. Kanematsu, Ph.D., I. Maruyama, Ph.D., T.Noguchi, Ph.D., H. Iikura, Ph.D. and N. Tuchiya, research engineers, found that: [W]ater penetrates through the crack immediately after pouring and itsmigration speed and distribution depends on the moisture condition in theconcrete. With another detailed analysis, it is understood that the water hasreached around 50mm depth in the horizontal crack, but 20-30mm depth in thevertical crack immediately after pouring water. From these result it is detected thatwater reaches to the 25-30mm depth in few minutes after it is exposed to waterand in 30 minutes it reaches to the 80mm. This means water will be supplied tothe rebar with few minutes' scattered showers. http://www.beyondnuclear.org/storage/3rd%20%20Motion%20COMPLET%20supp%20cracke5d%20concrete%20containment%20contention%20July%2016%202012.pdfhttp://www.beyondnuclear.org/storage/4th%20Motion%20PII%20COMPLET.pdf6http://www.beyondnuclear.org/storage/June%204%202012%20Motn%20to%20Amend%20Sup7p%20Contn%205%20COMPLETE-1.pdf (Emphasis supplied). Intervenors asserted further in that filing that Davis-Besse has other waterproblems inside the shield building, pointing out that in RAI responses dated May 24, 2011 (ML11151A90), the NRC staff had noted a "history of ground water infiltration into the annularspace between the concrete shield building and steel containment." And that during a 2011 AMPaudit, NRC staff also reviewed documentation that:[I]ndicated the presence of standing water in the annulus sand pocket region. Thestanding water appears to be a recurring issue of ground water leakage and areas ofcorrosion were observed on the containment vessel. In addition, during the audit the staffreviewed photographs that indicate peeling of clear coat on the containment vesselannulus area, and degradation of the moisture barrier, concrete grout, and sealant in theannulus area that were installed in 2002-2003. Id. at 47/280 of .pdf."Intervenors' Motion to Amend and Supplement Proposed Contention No. 5 (Shield BuildingCracking)" at 12.Intervenors submit now, as they did in 2012, that "there has been no consideration nordiscussion which addresses the possibility that much less than the drama of the Blizzard mighthave produced the damage." FENOC argued the "Blizzard of '78" in 2012, to deny aging-rela-tedness and render Intervenors' challenges about cracking outside the scope of this proceeding.As Intervenors were suggesting on June 4, 2012 that greater significance should attach to mere"scattered showers" and their possible influence on the cracking issue, FENOC was either concealing, or, at best, ignorant of the significance of, the presence of water in the walls. FENOC had found water in the bore holes "in 2012," PII reported on September 11, 2013.But FENOC had considered it so little water as to be insignificant. And, FENOC assumed, thewater must have come in through the bore holes themselves, from the exterior SB side wallsurface, due to rain. PII in September 2013 confirmed that the water in the walls was internal in nature, not sneaking in through the bore holes on the exterior surface. And PII also found that thewater in the walls was symptomatic and a key cause of the ice-wedging crack propagation. Without a full-spectrum investigation into water sources, it is not likely that the dehydration ofthe Shield Building walls can be accomplished. This source of standing groundwater identifiedabove by Intervenors could well be wicking water up into the walls. PII in the FACE tries toassure that the water in the walls will dissipate over time, but there is no explanation as to howthis will happen, or when. The whitewash prevents the water in the walls from escaping that way.The standing water on the ground is a source of which could well be moving into the walls.And so FENOC, acknowledged only in August-September 2013 that it had supposedlylearned for the first time that the cracking was getting worse. And it was not until July 2014 thatthe company disclosed this revelatory PII FACE report to the ASLB, the Intervenors, and thepublic. For two years the facts of water saturating the Shield Building, with ice-wedging effectthrough the most difficult and bitterly cold winter of the 21 Century, was kept from thestLicensing Board, Intervenors, and the public. LEGAL STANDARDSa. Timeliness of this Amended/Supplementation Under the ASLB panel's Initial Scheduling Order ("ISO") in this proceeding, a newcontention must meet the requirements of the former (that is, pre-August 2012) 10 C.F.R. §2.309(f)(2)(i) through (iii), which provided that Intervenors may submit a new contention onlywith leave of the presiding officer upon a showing that: (i) The information upon which the amended or new contention is based was notpreviously available; (ii) The information upon which the amended or new contention is based is materiallydifferent than information previously available; (iii) The amended or new contention has been submitted in a timely fashion based on theavailability of the subsequent information.8The presiding ALSB in this case stated at p. 12 of the Initial Scheduling Order, ASLBPNo. 11-907-01-LR-BD01 (June 15, 2011) that "The Board directs that a motion and proposednew contention shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within sixty(60) days of the date when the material information on which it is based first becomes availableto the moving party through service, publication, or any other means."Intervenors respectfully submit that their amendment and supplementation of Contention7 are timely filed because this Motion has been filed within sixty (60) days of the provision of theJuly 3, 2014 RAI letter and its enclosures by FENOC's counsel on July 8, 2014. CA's May 16posting date and conforms with the ASLB's Initial Scheduling Order. Shaw Areva MOXServices, Inc. (Mixed Oxide Fuel Fabrication Facility), LBP-08-10, 57 NRC 460, 493(2008). Intervenors have also moved in a timely manner under 10 C.F.R. § 2.309(f)(2)(i)-(iii).1) Information not previously availableThe information upon which Intervenors' amendment and supplemental facts are basedwas available for the first time when distributed to the ASLB and the parties by FENOC'scounsel on July 8, 2014. This filing is timely as it is being made on the first business day afterthe 60 day following July 8, which was September 6, 2014, which fell on a weekend. 10 C.F.R.th Licensing Board Order (Initial Scheduling Order) at 12 (June 15, 2011) (unpublished)8[hereinafter ISO].
§ 2.306(a). Although the ASLB panel stated in its July 25, 2014 order in this case that9FENOC's modifications to Davis-Besse's Shield Building Monitoring Program were provided onJuly 3, 2014, Amendment No. 51 to the Davis-Besse LRA actually was distributed on July 8,2014. (See also fn. 1, infra). Intervenors could not file this contention regarding modifications10to Davis-Besse's Shield Building Monitoring Program until they were placed in the publicdomain on July 8.If a contention satisfies the timeliness requirement of 10 C.F.R. § 2.309(f)(2)(iii), then, bydefinition, it is not subject to 10 C.F.R. 2.309(c), which specifically applies to nontimely filings.The three (f)(2) factors are not mere elaborations on the "good cause" factor of § 2.309(c)(1)(I),since "good cause" to file a nontimely contention may have nothing to do with the factors setforth in (f)(2). Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 573 (2006).2) Materially different informationThe information upon which this new contention is based is materially different thaninformation previously available prior to July 8, 2014. The Atomic Safety and Licensing Board("ASLB") panel itself indicated as much in its own July 25, 2014 ruling by pointing out thisopportunity for Intervenors to file a new contention. In the July 25 order, the ASLB wrote: "The last day of the period so computed is included unless it is a Saturday or Sunday, a Federal9legal holiday at the place where the action or event is to occur, or a day upon which, because ofan emergency closure of the Federal government in Washington, DC, NRC Headquarters doesnot open for business, in which event the period runs until the end of the next day that is not aSaturday, Sunday, Federal legal holiday, or emergency closure."The Licensing Board acknowledged in the July 25, 2014 order that the July 3, 2014 letter from10FENOC's counsel to the ASLB and parties "is dated July 8, 2014. Enclosure 1 to the letter isdated July 3, 2014." Order, fn. 89.
To the extent that Intervenors have proffered Contention 6 in advance of futuremodifications to the relevant AMPs that they assume will occur as a result of the recentlyidentified structural problems, it is premature. The Board notes that the modifications toDavis-Besse's Shield Building Monitoring Program, anticipated by the Intervenors, wereprovided on July 3, 2014 in Amendment No. 51 to the Davis-Besse LRA. Specificintervenor concerns regarding specific portions of LRA Amendment No. 51 may besubmitted to the Board in a timely manner for its consideration as specified by our InitialScheduling Order.11With the July 3, 2014 "modifications to Davis-Besse's Shield Building MonitoringProgram," FENOC saw it as necessary to modify its monitoring program due to receivingconfirmation from its contractor, PII, in August-September, 2013 that there was previouslyundetected cracking, and worsening cracking, in the Shield Building. PII's "Full Apparent CauseEvaluation" ("FACE") represents significant, new, material information.3) Timeliness of the amended or new contentionThis new contention has been submitted in a timely fashion, within sixty (60) days of theavailability of the subsequent information, namely, the July 8, 2014 notification to the ASLB andthe parties of modifications to Davis-Besse's Shield Building Monitoring Program, accompaniedby the disclosure of PII's "Full Apparent Cause Evaluation.".ADMISSIBILITY CRITERIAContentions must meet the admissibility criteria set forth in 10 C.F.R. § 2.309(f)(1),which requires each contention to: (1) provide a specific statement of the issue of law or fact tobe raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that theissue raised in the contention is within the scope of the proceeding; (4) demonstrate that the issueMEMORANDUM AND ORDER (Denying Intervenors' Motion for Admission of Contention11No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems), FirstEnergyNuclear Operating Company (Davis-Besse Nuclear Power Station, Unit 1), Docket No. 50-346-LR, ASLBP No. 11-907-01-LR-BD01, July 25, 2014, Page 16, internal citations omitted.
raised in the contention is material to the findings the NRC must make to support the licensingaction; (5) provide a concise statement of the alleged facts or expert opinions in support of thepetitioner's position on the issue and on which the petitioner intends to rely at hearing; and (6)provide sufficient information to show that a genuine dispute exists with the applicant/licenseeon a material issue of law or fact, with reference to specific disputed portions of the application.A failure to meet any of these criteria renders the contention inadmissible. 10 C.F.R. §2.309(f)(1)(I)-(vi). These admissibility criteria are addressed in turn below.1) Specific statement of the issue of law or fact to be raisedThe proposed contention appears below. Amended wording appears in italics.FENOC's revisions to the AMPs in its Shield Building Monitoring Program, dated July 3,2014, acknowledge not only the risk, but the reality, of aging-related cracking propagation - that12is, worsening - in the already severely cracked Shield Building, an admission which brings theissue within the scope of this License Renewal Application proceeding. FENOC's proposedmodifications to its Shield Building Monitoring Program AMPs, regarding the scope (areas ofthe Shield Building to be examined), sample size (number of tests to be performed), and thefrequency of its surveillance activities, are woefully inadequate. Significantly more core bores, aswell as a broader diversity of complementary testing methods should be required, and at a muchgreater frequency than FENOC has proposed. The cracking phenomena must be identified,analyzed and addressed within the Final Supplemental Environmental Impact Statement for thelicense renewal both in the consideration of alternatives to granting the 20-year licenseextension for Davis-Besse as well as in the Severe Accident Mitigation Alternatives analysis(SAMA). The cracking problems do not support a conclusion that there is "reasonableassurance" that Davis-Besse can be operated in a manner protective of the public health andsafety under the Atomic Energy Act during the 20-year proposed license extension period.The FACE evaluation provided as Enclosure 2 to FENOC's July 3 RAI letter verifies to adegree of scientific certainty, aging-related cracking is spreading through the Shield Buildingwalls, which buttresses Intervenors' September 2, 2014 Contention 7 filing and ensures that thisissue falls within the scope of this License Renewal Application proceeding. FENOC's proposedSee "FENOC's RAI Letter, July 3, 2014," Enclosure 2. 12 modifications to its Shield Building Monitoring Program AMPs, regarding the scope (areas ofthe Shield Building to be examined), sample size (number of tests to be performed), and thefrequency of its surveillance activities, are woefully inadequate. Significantly more core bores, aswell as a broader diversity of complementary testing methods should be required, and at a muchgreater frequency than FENOC has proposed. The cracking phenomena must be identified,analyzed and addressed within the Final Supplemental Environmental Impact Statement for thelicense renewal, both as part of the Severe Accident Mitigation Alternatives analysis (SAMA)and as part of the consideration of alternatives to a 20-year operating license extension. .Moreover, the presence of unresolved and continuing cracking of the Shield Building,which performs several key safety and protective functions relative to the Davis-Besse nuclearreactor, should be held not to suffice to provide "adequate assurance" as required by 10 C.F.R. §54.29: A renewed license may be issued by the Commission up to the full termauthorized by § 54.31 if the Commission finds that:(a) Actions have been identified and have been or will be taken with respect to thematters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there isreasonable assurance that the activities authorized by the renewed license will continue tobe conducted in accordance with the CLB, and that any changes made to the plant's CLBin order to comply with this paragraph are in accord with the Act and the Commission'sregulations. These matters are:(1) managing the effects of aging during the period of extended operation on thefunctionality of structures and components that have been identified to require reviewunder § 54.21(a)(1); . . . .2) Provide a brief explanation of the basis for the contentionIn light of the revelations in August-September 2013 of previously undetected cracks andthe conclusion that they were worsening (propagating), Intervenors challenge the adequacy ofFENOC's Shield Building Monitoring Program AMPs proposed for the 2017-2037 license extension period. Specifically, FENOC's testing frequency is inadequate, and may become lessadequate over time (via relaxed, less frequent testing). The Shield Building walls are saturatedwith water, and there is no formal explanation as to how that circumstance, which helps to causecracking of the concrete walls, will be remedied. In light of recently-misidentified cracking,which was underestimated, investigatory inspections and concrete sample analysis must takeplace on a more frequent basis than biannually or every fourth year, which FENOC proposes.The number of core bores to be examined should be significantly increased over the meagernumber proposed by FENOC. Vast areas of the Shield Building surface area, and volume, wouldfall outside of FENOC's Monitoring Program AMPs, as currently construed, in light of themeager sampling program proposed. The scope of the testing should also be significantlyexpanded.Given the importance of the Shield Building to radiological containment, such as theproper functioning of the Emergency Ventilation System, as well as a biological shield, and a13tornado and missile shield, and thus to public health, safety, and environmental protection, and14 Davis-Besse Nuclear Power Station/License Renewal Application/Technical Information,13section 2.3.3.13 Emergency Ventilation System. Page 2.3-88 [184/1,810 on pdf counter]. Thisdocument, dated August 30, 2010, appears to have not been posted at ADAMS nor assigned anML number. However, it is posted at the following link on NRC's website:http://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse/davis-besse-lra.pdf. At section 2.4.1 CONTAINMENT (INCLUDING CONTAINMENT VESSEL, SHIELD14BUILDING, AND CONTAINMENT INTERNAL STRUCTURES)-SEISMIC CLASS I, of theDavis-Besse Nuclear Power Station/License Renewal Application/Technical Information,FENOC states: "The Shield Building is a concrete structure surrounding the Containment Vessel.It is designed to provide biological shielding during normal operation and from hypotheticalaccident conditions. The building provides a means for collection and filtration of fission productleakage from the Containment Vessel following a hypothetical accident through the EmergencyVentilation System, an engineered safety feature designed for that purpose. In addition, thebuilding provides environmental protection for the Containment Vessel from adverse in consideration of the already severe, and worsening, cracking of the Shield Building, theseinadequacies in the Monitoring Program AMPs are unacceptable, and must be rectified.3) Demonstration that the issue raised in the contention is within the scope of the proceedingFENOC has reversed its former position on cracking of the Shield Building and considersthere to be aging-related risks of cracking propagation. As previously noted, 10 C.F.R. § 54.29allows a license renewal if the Commission finds that "(a) Actions have been identified and havebeen or will be taken . . . such that there is reasonable assurance that the activities authorized bythe renewed license will continue to be conducted in accordance with the CLB, and that anychanges made to the plant's CLB in order to comply with this paragraph are in accord with theAct and the Commission's regulations." These matters include "(1) managing the effects of agingduring the period of extended operation on the functionality of structures and components. . . ." Respecting the NEPA portions of the contention, Intervenors seek Severe AccidentMitigation Alternatives (SAMAs). FENOC's consulting contractor, PII, considers the crackingof the Davis-Besse Shield Building to be "unique." FACE, p. 63/98 of .pdf. Since the cracking isclearly site-specific, NEPA requires SAMAs as a Category 2, site-specific, consideration. 10C.F.R. § 51.53(c)(3)(ii)(L). SAMAs are the only Category 2 issue with respect to severeaccidents. Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),LBP-01-6, 53 NRC 138, 160-161 (2001). Respecting a more serious inquiry into alternatives to continued operation of Davis-atmospheric conditions and external missiles." Page 2.4-3 [263 of 1,810 on PDF counter]This Davis-Besse NPS/LRA/Tech. Info. document, dated August 2010, is posted athttp://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse/davis-besse-lra.pdf.
Besse, it is a given that the Commission may accord substantial weight to FENOC's preferencesand economic goals. Nuclear Management Co., LLC (Monticello Nuclear Generating Plant),LBP-05-31, 62 NRC 735, 753 (2005). But an agency must not craft a set of alternatives sonarrowly as to render it a foregone conclusion that the proposed action will be deemed superior.Exelon Generation Company (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134,158 n.77 (2005). NEPA does not require an applicant to look at every conceivable alternative,but rather requires only consideration of feasible, nonspeculative, reasonable alternatives.Respecting the compromised Shield Building, "reasonable consideration of alternatives" shouldmean that an accurate economic costing of the replacement of the Shield Building should beincluded in the NEPA analysis, along with other remedial steps, such as replacement of portionsof the reinforced concrete walls. "Reasonable alternatives for license renewal proceedings arelimited to discrete options that are feasible technically and available commercially, as well as theGEIS requirement that the "no-action" alternative address energy conservation. Entergy NuclearOperations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 205(2008).Legalistically, Intervenors' contention controversies fall well within the scope of thisLRA proceeding.4. Demonstration that the issue raised is material to the findingsthe NRC must make to support the licensing actionThe NRC is mandated by the Atomic Energy Act and National Environmental Policy Actto provide reasonable assurance of public health and safety, and environmental protection, duringthe proposed 20-year license extension at Davis-Besse, and to take a "hard look" at environ-mental impacts, as by making predictive safety findings and conducting an environmental analysis regarding the safety and environmental impacts of the 20-year license extension.The Shield Building at Davis-Besse is critical to radiological containment during reactoremergencies, such as meltdowns or other radioactive releases. It can filter radioactivity to acertain extent before it is expelled to the external atmosphere, and it is also essential to defendingthe Inner Steel Containment Vessel, and Reactor Pressure Vessel against external threats, such astornadoes or missiles. The Shield Building further provides biological shielding during normaloperations. (See fns. 12 and 13 infra).The severe, and finally-admitted increased cracking of the Shield Building threatens tofail the Shield Building from performing its vital design safety and environmental functions. Intervenors challenge the adequacy of FENOC's Shield Building Monitoring Program AMPs toguarantee the Shield Building fulfills its vital safety functions, as required by applicable laws andregulations. Also, the NEPA document requires a realistic Severe Accident Mitigation Alternativesanalysis which includes among its assumptions a flawed Shield Building which may not meet its current licensing basis (CLB). The requisite decisions on the issues raised by this contention are directly material to alicense extension decision for Davis-Besse. 5. Concise statement of the alleged facts or expert opinions in support of the petitioner's position and on which the petitioner intends to rely at hearingIntervenors incorporate herein by reference and re-allege as if written herein "Intervenors'Motion for Admission of Contention No. 7 on Worsening Shield Building Cracking andInadequate AMPs in Shield Building Monitoring Program," and the section infra entitled "FactsWhich Require Expanded NEPA Consideration and/or Undercut a Finding of 'Reasonable Assurance.'" 6. Showing of a genuine dispute between the licensee on a material issueof law or fact, with reference to specific disputed portions of the applicationThere are several genuine disputes. FENOC's credibility as nuclear manager and operatorof Davis-Besse is brought squarely into focus by the revelations that the root cause(s) (for therehave been two prior to the current "apparent cause") do not adequately encompass or explain thecracking phenomenon. There is a dispute over whether Davis-Besse conforms to its current licensing basis(CLB) merely by providing a slightly more engaged monitoring program. Part of that dispute ishow and why FENOC intends principally to take samples from areas where there already areknown cracks, as opposed to sampling from a more dispersed set of locations on the ShieldBuilding exterior. The scope of causation of the water saturation within the Shield Building walls isdisputed; Intervenors contend that insufficiently-inclusive analysis of potential water sources hasbeen undertaken. There is a dispute over whether the SAMA portion of the NEPA document for the licenserenewal must take cognition of the deteriorating state of the Shield Building. There is a disputeover whether the NEPA-required "hard look" at alternatives to a 20-year license extension hasbeen achieved in light of the reversal of position by FENOC that admits the cracking problemsare likely to be permanent and increasingly intrusive into the structural integrity of the ShieldBuilding.CONCLUSIONIf FENOC cannot assure Davis-Besse's safety, then the plant must be permanently shut down, not granted a 20-year license extension. It has become increasingly clear that Davis-Bessefails the reasonable assurance of adequate protection test, given its Shield Building's aging-related degradation, its severe and worsening cracking, and its susceptibility to not properlyperform vital design functions. FENOC cannot be allowed to endanger the public throughout itsregion by operating Davis-Besse for 20 additional years in such a degraded, and worsening, state.WHEREFORE, Petitioners pray the Atomic Safety and Licensing Board panel allow theamendments and supplementation as explained hereinabove, and that it admit Contention 7 asamended and supplemented for full adjudication.Executed according to 10 C.F.R. § 2.304(d)/s/ Terry J. Lodge Terry J. Lodge (Ohio Bar #0029271)316 N. Michigan St., Ste. 520Toledo, OH 43604-5627Phone/fax (419) 255-7552tjlodge50@yahoo.comCounsel for IntervenorsCONSULTATION PURSUANT TO 10 C.F.R. § 2.323(b)Undersigned counsel hereby certifies that he made a sincere attempt to consult withopposing counsel for the Nuclear Regulatory Commission Staff and for FirstEnergy NuclearOperating Company in an effort to resolve the concerns raised in the foregoing Motion. Counselfor FirstEnergy Nuclear Operating Company indicated in an email on September 8, 2014 thatFENOC would oppose Intervenors' Motion. Counsel for the NRC Staff stated that the Staff didnot oppose Intervenors' right to file this Motion, given the ASLB's mention of the possibility inits July 25, 2014 order, but reserved the right to oppose it upon review.
Executed in Accord with 10 C.F.R. § 2.304(d)/s/ Terry J. Lodge Terry J. LodgeCounsel for Intervenors UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBefore the Atomic Safety and Licensing BoardIn the Matter of:)Docket No. 50-346-LFirstEnergy Nuclear Operating Company)September 8, 2014Davis-Besse Nuclear Power Station, Unit 1))CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing "INTERVENORS' MOTION TO AMENDAND SUPPLEMENT CONTENTION NO. 7 ON WORSENING SHIELD BUILDINGCRACKING AND INADEQUATE AMPS IN SHIELD BUILDING MONITORINGPROGRAM" was deposited in the NRC's Electronic Information Exchange this 8 day ofthSeptember, 2014 and was served upon all parties of record.Executed in Accord with 10 C.F.R. § 2.304(d)/s/ Terry J. Lodge Terry J. Lodge (Ohio Bar #0029271)316 N. Michigan St., Ste. 520Toledo, OH 43604-5627Phone/fax (419) 255-7552tjlodge50@yahoo.comCounsel for Intervenors-27-