ML13173A001

Petitioners' Reply in Support of Petition to Intervene and for an Adjudicatory Public Hearing of FENOC License Amendment Request

ML13173A001
Person / Time
Site:	Davis Besse
Issue date:	06/21/2013
From:	Lodge T J - No Known Affiliation, Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Ohio Sierra Club
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24713, ASLBP 13-928-02-LA-BD01, 50-346-LA
Download: ML13173A001 (19)

Text

UNITED STAT ES O F AMERICA NUCLEAR REGULATORY COMM ISS ION I n the Matter of

FirstEnergy Nuclea r Ope rating Company Davis-Besse Nuclea r Power Station, Unit 1 Regarding the Propose d Amendment to Facility Oper ating L icense)Docke t No. 50-346-L A )J une 21, 2013) )PETIT IONERS' REPLY IN SUPPORT OF 'PET ITION TO INTERVENE AND FOR A N ADJUD ICATORY PUBLIC HEARING OF FENOC LICENSE AMENDM ENT REQUES T' Now come Bey ond Nuclea r, Citiz ens Environment Allianc e of Southwester n Ontario, Don't Waste Michigan, a nd the Ohio Sierra Club, herea fter r efe rre d to as the "Petitioners,"

and here by respond to the "

NRC St aff Answer to the Bey ond Nuclea r, Citiz ens Environment Alliance of Southwestern Ontar io, Don't Waste Michigan, and O hio Sierra Club J oint Request for a Hea ring and Petition for L eave to I nterve ne" (NRC St aff Answer) and "FirstEnergy Nuclea r Oper ating Company

's Answe r Opposing Petition to I nterve ne and Re quest for H ear ing Regarding Te chnica l Specifica tion L icense Amendment Reque st" (FirstEnergy or FENOC Answer). For re asons discussed he rein, the Petition should be grante d and the Petitioners acc orded a merits hear ing.I. STANDING FENOC and the NRC Staff pre dictably confla te the conc ept of standing to sue, improp-erly , with the merits of the Petition, returning a r esult of nonsuit. They also misread a nd misap-ply other c ommonly-under stood standing principles, exagge rating the lega lly-re quired showing which Petitioners must make.

A. Petition ers Stated Cogn izable Facts An d Concerns To Est ablish Proxim ity And In jury-in-Fact St andin g The Petitioners used a "for m" dec lara tion to assert their standing. Eac h individual decla ration submitted contains these a llegations:

3) FirstEnergy Nuclea r Ope rating Corpora tion (FENOC) has applied f or an amendment to the Da vis-Besse oper ating license te chnica l specifica tions related to repla ceme nt of a stea m gener ator a t the power plant, schedule d for 2014.

4) I have sa fety and envir onmental conc erns a bout the Davis-Besse plant's opera tions. I do not believe a dequate information has be en disclosed a bout the steam gener ator proje ct. Also, lessons about the stea m gener ator fa ilures at the San Onof re pla nt have not be en ade quately explore d or incorpor ated into the Da vis-Besse plan. I believe the proposal may pose unac cepta ble risks to the environment a nd public health and my persona l health and sa fety. I n their Petition to I nterve ne, the Petitioners allege sever al base s for their c oncer ns about safe ty which give dimension to their asse rtions of standing:

> The shield building at the plant will be subjected to an unpr ece dented f ourth (4th) wa ll penetra tion to allow swapping the old gener ator c omponents for the ne

w. This raises the potential for a dditional aggrava tion of alrea dy-existing structura l cra cks identified in that building in 2011, and could conce ivably cause failure of a c ritical saf ety component (the building it self or the steel conta inment structure inside it which house s the re actor). Petition at 4.

> The new stea m gener ator e quipment may fail, compromising safe ty margins for opera tion of the nuclea r re actor. I n short, without the opportunity for a public hear ing 1 and indepe ndent assessment of the complete pla ns, Davis-Besse ma y opera te unsafe ly and pose an undue and unac cepta ble risk to the environme nt, and jeopar dize the health, safe ty and we lfare of the Petitioners' membe rs who live, re cre ate a nd conduct their business in the vicinity of the nuc lear power plant. Petition at 4-5.

> Ar nold Gunderse n, a nucle ar e ngineer who is Petiti oners' exper t, opined in his Use of "wi th" in st ead of "wi tho ut" in th is pas sage a s i t a ppe ar s i n t he P et it ion was a t ypog ra ph-1 ic al er ror.

written re port filed with the Petition, lis ted nine (9) phy sical diffe renc es betwee n the 2 2013 steam gene rators a nd those installed when Da vis-Besse wa s constructe d, and opined that "Ea ch and e very one of the se af oreme ntioned change s is signi fica nt individually , and when take n together pr ove that the Repla ceme nt OTSG contains m any experiment al param eters, espe cially in com parison t o the Origin al OTSG." (Empha sis suppli ed).Expert Witness Report of Arnold Gunde rsen (Gunder sen Report) a t 5, incorpora ted by ref ere nce into Petition, but also quoted at Petiti on pp. 11-12.

> Gunde rsen c oncludes in his repor t that "the list of exper imental change s identi-fied by FENOC does not include the a dditional modifications applied by FENOC to cut into the Davis-Besse c ontainment for the f ourth time since it was c onstructed. To the best of Fairew inds' knowledge a nd belief, no othe r conta inment structure ha s been c ut open more than twic e, y et Davis-Be sse's four th containment per fora tion should have bee n identified by the 10 C.F.R. § 50.59 process as proble matic and ther efor e re quiring a license a mendment re view and a pplication." Gunde rsen Repor t at 5-6, quoted in Petition at p. 15.For purposes of a ssessing injury-in-fa ct or a ny other a spect of sta nding, a hea ring petitioner's fa ctual asse rtions, if uncontrover ted, must be ac cepte d. Babcoc k & W ilcox (Apollo, Pennsy lvania Fuel Fabrica tion Facility

), L BP-93-4, 37 NRC 72, 82 (1993). The Atomic Saf ety and L icensing Board (ASL B) "must acc ept as true all materia l fac tual allegations of the pe tition, exce pt to the extent [it

] deem[s] t hem to be over ly specula tive." Envirocare of Utah, Inc. (By-product Mate rial Waste Disposal L icense), L BP-92-8, 35 NRC 167, 173 (1992).

Petitioners' expre ssion of conce rn that the lessons lea rned f rom the steam ge nera tor controve rsy at San Onofr e, which ultimately triggere d the re cent pe rmane nt shuttering of the plant, are being ignored in the D avis-Besse stea m gener ator re place ment plan. The r efe renc e to A te nth (1 0) d if fe re nce app ear s i n t he 2 010 Enviro nm ent al Repo rt , Appe ndi x E, t h 2 htt p://www.nr c.gov/rea ct ors/op er at ing/l ic ens ing/r ene wal/a ppl ic at ion s/davis-bes se/davis-bes se-envir o.pd f:"Ea ch o f t he o nce-thr ough st eam g ene ra tor s i s a vert ic al ly-m ount ed, st ra ight-tub e a nd s hel l cou nte r-fl ow he at exc han ger t hat con verts hea t f rom the re act or coo la nt syste m in to st eam to d ri ve the tur bin e gener at ors and pr oduc e e le ct ri ci ty. The e xis ti ng s te am gen era tor s ar e e ach appr oxi m ate ly 75 fe et lo ng, ha ve a di am et er of appr oxi m ate ly 15 f eet , and wei gh ap pro xim ate ly 590 to ns. T he rep lac em ent st eam gen era tor s wi ll be dim ens ion all y e qui val ent to the ori gin al st eam gen era tor s, b ut wei gh on ly app rox im ate ly 465 to ns e ach."

San Onofre bespea ks an engine ering c atastrophe that posed dange r to Californians of a major radia tion relea se. I n his report in support of the Petition, Arnold Gunde rsen c ompare d the bungled steam ge nera tor design cha nge proc ess at San Onof re w ith the simi larly-trivialized analy sis of design differ ence s betwee n the original and r eplac ement gene rators a t Davis-Besse.

Gunder sen stated in his expe rt repor t that 'I n the detailed a naly sis of the [S outhern California

]Edison RS Gs, Fairewinds identified 39 se para te safe ty issues that failed to mee t the NRC 50.59 criter ia." He points out t hat it is li tera lly "impossible" for FENO C to have incorpor ated a ny"lessons lea rned" in the repla ceme nt steam gene rators f or Da vis-Besse, "since the San Onofr e RSGs failed in 2012, well afte r the D-B ROTSGs were a lrea dy in fabric ation. Quite simply , the Davis-Besse ROTSG could not have be en modified to re flec t any lessons learne d from the technica l failures a t San Onofre Units 2 and 3." Gunde rsen r eport a t 8.The Atomic Safe ty and L icensing Board a t San Onofre observe d that Steam gener ator tubes se rve c ritical saf ety functions. For exa mple, they are an integral pa rt of the r eac tor coolant pre ssure bounda ry and thus are essential for maintaining primary sy stem pressure and coola nt inventory. They also isolate the radioa ctive fission products in the primar y coolant fr om the seconda ry sy stem.Southern Califor nia Edison Co, (San Onofr e Nuc lear Gene rating Station, Units 2 and 3), L BP-13-07 at 2 (Ma y 13, 2013).

Acc ording to FENOC's license a mendment re quest, ML 103018A350, the design ba sis acc ident rele ase r ate f or Da vis-Besse's stea m gener ators assumes tha t only one tube c an suff er a n open-e nded fa ilure during a ma in steam line brea k acc ident and be a dequate ly compensa ted for by sy stem fee dwater fea tures. Id., see "Eva luation of the Proposed Ame ndment" p. 40/49 (of 3"The st eam g ene ra tor tu be r upt ure (SGTR) ac ci den t i s t he l imiti ng desi gn basi s e vent f or SG 3 tub es and avoidi ng an SGTR i s t he b asi s f or thi s Sp eci fi cat ion. The ana lysis of a SGTR event ass um es a

.pdf). I n these c ircumstance s, high pressure radioa ctive wa ter fr om the primary sy stem enters the lower pr essure steam cy cle that is normally not radioac tive. The tube f ailure pr ovides a re lease path out of the c ontainment into the non-radioa ctive spac es and into the e nvironment.

When the Southern California Edison Company decide d to avoid the 10 C.F.R. §50.59 licensing proce ss at San Onofre , four r eplac ement stea m gener ators we re f abric ated. I n J anuar y of 2012, a single tube in the Re place ment Steam Gene rator on San O nofre Unit 3 failed a nd the unit was shut down. Resulting tests s howed that de sign error s ignored by Edison's 10 C.F.R.

§50.59 proce ss cause d at least e ight tubes to thi n to the point where they would have f ailed if a main steam line bre ak ac cident occ urre d. Should thi s event ha ve occ urre d, resulting water losses from the pr imary side to the seconda ry side would have exce eded the ability of eme rgenc y sy stems to provide ade quate c ore c ooling and a meltdown would have occur red. Rea ctor opera tors are not trained to addr ess this scenar io. The e xperimenta l change s to the design of the tubes in the Da vis-Besse re place ment once through steam gene rators (ROTSG) could ca use a similar c asca ding tube failure of more tha n one tube. I n the eve nt of multipl e tube f ailures, a ccide nt relea ses from Da vis-Besse ca n exce ed enginee red sa fety limit s, and saf ety sy stems cannot provide adequa te makeup w ater. Plant opera tors are not trained to mitigate this accide nt.boun din g primary to s eco nda ry LEAK AGE ra te equ al to th e op er at ion al LEAK AGE ra te li m it s i n LCO 3.4.1 3, "RCS Oper at ion al LEAK AGE," p lus th e LEAK AGE ra te as soc ia te d wi th wit h a doub le-end ed rup tur e of a s ingle tu be. The acc ide nt ana lysis of a SGTR ass um es the con ta m ina te d se con dar y flui d i s re le ase d t o t he a tmosphe re via main s te am safe ty valves.

The ana lysis fo r d esi gn basi s a cci den ts and tr ans ie nts ot her th an a SGTR as sume the SG t ube s re ta in the ir st ruc tur al in te grit y (i.e., th ey are as sumend no t t o r upt ure). In the se ana lyses , th e s te am dis cha rge t o t he a tmosphe re is bas ed o n t he t ota l p ri m ar y to se con dar y LEAKAGE f rom all SGs o f 1 gallo n pe r minut e. DOSE EQUI VALENT I-131 is as sumed to be equ ivale nt to 1% fi le d f uel in th e acc ide nt ana lysis. The doe s c ons equ enc es of the se events ar e wi thi n t he l imits of GDC 19 (Ref. 2), 10 CFR 100 (Re f. 3) o r t he NRC a ppr oved li cen si ng basi s (e.g., a s m al l f ra ct ion of th ese li m it s)."

Henc e, contr ary to the asser tions of the NRC St aff (Answe r at 12) a nd FENOC (Answer at 14) in the e vent of stea m gener ator fa ilure, there is "obvious potential for ra diological harm a t a par ticular distance fre quented by a petitioner."

USEC, Inc. (Amer ican Centrif uge Plant), CL I-4 05-11, 61 NRC 309, 311-12 (2005).

"A pe titioner may base its standing upon a showing that his or her residenc e, or tha t of its members, is 'within the geogra phical zone that might be aff ecte d by an ac cidental r elea se of f ission products.'"

Louisi ana Power &

Light C o. (Waterf ord Steam Electric Station, Unit 3), AL AB-125, 6 AEC 371, 371 n.6 (1973);"

Detroit Edison Co. (Enric o Fermi Atomic Power Plant, Unit 2), L BP-79-1, 9 NRC 73, 78 (1979). Distance s of as much a s 50 miles have be en held to fa ll within t his z one. Tennessee Valley Authority (Watts Bar Nuclea r Plant, Units 1 & 2), AL AB-413, 5 NRC 1418, 1421 n.4 (1977).

B. St aff and FENOC Con flation C onfusion Both the NRC S taff a nd FirstEnergy have blur red c oncepts of Petitioners' legal standing with the merits of the Petition. This is apparent in tenuous ar guments advanc ed by both. The 5 ultimate result is to elevate the require ment of standing to the expe ctation, at the outset of a proce eding, of proof bey ond a re asonable doubt that petitioners will prevail on the mer its after trial. I n evalua ting Petit ioners' c laims here, c are must be taken to avoid "

the fa miliar trap of I ncl udi ng, sur el y, thos e Pe ti ti one rs whom, as t he NRC S ta ff hel pfu ll y clar if ie d, r esi de 2 3 miles 4 or so f rom Davis-Bess e, s ee NRC Sta ff Answe r a t 1 3 f n. 41.For exa m ple , se e NRC St af f a nswe r a t 1 4: "Fur the rmore, i f a SG r epl ace m ent at DBNPS wer e 5 to le ad t o t he n ucl ear powe r s ta ti on b ei ng permanen tl y shut down l ike Cryst al River and San Onof re , it is unc le ar what ra dio logic al in j ury-in-fact cou ld re sul t f rom thi s s pec ula ti ve outc om e."Als o, see FENOC Ans wer at 16-17: "M ore over, Pe ti ti one rs' gene ra l c onc er ns a bout th e s af et y of Davis-Bess e du e t o t he n ew s te am g ene ra tor s, Sh ie ld Buil din g penet ra ti ons , or th ei r o the r a rgum ent s do not sup por t t he c aus at ion pr ong of s ta ndi ng, beca use th ese con cer ns a re not 't ra cea ble to th e pr opos ed act ion ,' wh ic h r el at es to amendin g four Davis-B ess e Te chn ic al Spe ci fi cat ion s t o ac cou nt for m at er ia l a nd dimensi on c han ges in th e ne w st eam g ene ra tor s.As a r esu lt , th ese is sue s a re out si de t he s cop e of the LAR an d ca nnot be use d as a b asi s f or st and ing in th is pr oce edi ng.

confusing the standing de termination with the assessment of pe titioner's ca se on the mer its." Babcoc k & W ilcox (Apollo, Pennsy lvania Fuel Fabrica tion Facility

), L BP-93-4, 37 NRC 72, 82 (1993), citing City of L os Angeles v. Nat'l Highway Traf fic Safety Admin

., 912 F.2d 478, 495 (D.C. Cir. 1990), cert. de nied , 117 L.Ed. 2d 460 (1992);

Sequoyah F uels Corp. (Gore , Oklahoma Site Decontamination and D ecommissioning Fundi ng), L BP-94-5, 39 NRC 54, 68 (1994), aff'd , CL I-94-12, 40 NRC 64 (1994);

Sequoyah F uels Corp. (Gore , Oklahoma, Site Dec ommissi on-ing), CL I-01-02, 53 NRC 2, 15 (2001).

Whil e the Staff and FENOC would no doubt pref er to c onsign the Petiti on to the tender merc ies of the Red Q ueen in Alice in Wonderland, Petitioners expec t the ASL B to avoid 6 confla tion of standing and merits.

C. An Alleged Inju ry To A Purely Legal Interest Is Sufficient To Su pport St andin g I n the individual standing declar ations, the dec lara nts "do not believe a dequate infor-mation has bee n disclosed about the stea m gener ator proje ct" a nd that "lessons about the stea m gener ator fa ilures at the San Onof re pla nt have not bee n adequa tely explore d or incorpor ated into the Davis-Be sse plan." T hese a verme nts are suppor ted within the petition by a re citation of the 7 htt p://www.l it er at ure.or g/aut hor s/car rol l-le wis/a li ces-advent ure s-inwo nde rl and/6 cha pte r-12.h tml: "'Let th e j ury con si der th ei r verd ic t,' the K ing sa id, fo r a bout th e t went ie th ti m e t hat day.`No, no!' sa id the Quee n. `Sent enc e f ir st - verdi ct af te rwa rds.'`Stuf f a nd n ons ens e!' sa id Ali ce lou dly. `The i dea of having th e s ent enc e f ir st!'"Fro m Pet it ion at 4-5: "Thi s pr opos ed a m end m ent ca ll s f or ins ta ll at ion of new, unt est ed s te am 7 genera tor equ ipment. The shi el d bu il din g at t he p la nt wil l b e s ubj ect ed t o an unp re ced ent ed f our th (4t h)wal l p ene tr at ion to al low swap pin g the o ld genera tor componen ts fo r t he n ew. Th is ra is es the pot ent ia l for add it ion al agg ra vatio n of al re ady-exi st ing st ruc tur al cr acks i den ti fi ed i n t hat bui ldi ng in 20 11, a nd cou ld con cei vably caus e f ai lur e of a c ri ti cal sa fe ty component (t he b uil din g its el f o r t he s te el con ta inment st ruc tur e i nsi de i t wh ic h ho use s t he r eac tor). T he n ew s te am g ene ra tor equ ipment m ay fai l, c om pro m is ing saf et y m ar gins f or ope ra ti on o f t he n ucl ear re act or. I n sh ort , wit h out th e op por tun it y for a pub li c he ar ing and in dep end ent as ses sment of th e c om ple te pl ans , Davis-Besse m ay oper at e un saf el y and po se an u ndue untested nature of the ne w steam ge nera tors and conc erns that the unpr ece dented f ourth (4)t h penetr ation of the shield building - which is degr aded by widespre ad cr acking - require more compre hensive scr utiny , bey ond technica l specifica tion changes w hich ar e the na rrow r ationale FENOC considers to be the sole basis for a license a mendment. These are calls for rigorous proce dural scr utiny of the propose d repla ceme nt project. The y are expre ssions of a legal inter est in the proper application of r egulations and in par ticular, of use of the Atomic Ene rgy Act hear ing right.

An allege d injury to a pure ly legal intere st is sufficient to support standing. Thus, a petitioner der ived standing by alleging that a pr oposed license amendment would de prive it of the right to notice and oppor tunity for he aring provide d by § 189.a. of the AEA. Cleveland Elec

.Illuminating Co. (Perr y Nuclea r Power Plant, Unit 1), L BP-90-15, 31 NRC 501, 506 (1990), rec onsid. denied, L BP-90-25, 32 NRC 21 (1990). Standing may be base d upon the allege d loss of a pr ocedur al right, as long as the pr ocedur e at issue is designed to pr otect aga inst a threate ned concr ete injury , and the loss of rights to notice, opportunity for a hear ing and opportunity for judicial revie w constitute a discr ete injury. Cleveland Elec. Illuminating Co. (Perr y Nuclea r Power Plant, Unit 1), CL I-93-21, 38 NRC 87, 93-94 (1993)

.Petitioners have, then, de monstrated standing to enfor ce the ir legal intere st in the project.

D. Prior Participation In Proceedings Involving The Sam e Facility V itiates Need For New Proofs Of Stan ding Bey ond Nuclea r, Citiz ens Environment Allianc e of Southwester n Ontario, a nd Don't Waste Michigan, of the puta tive intervening orga nizations , and Micha el Kee gan of the individ-and una cce pta ble ri sk to t he e nviro nm ent , an d j eop ar dize t he h eal th, sa fe ty and wel fa re of th e Pe ti ti one rs'm embers who l ive, r ecr eat e a nd c ondu ct th ei r b usi nes s i n t he vic ini ty of the nuc le ar powe r p la nt."

ually-designate d intervenor repr esenta tives, all were acc orded standing in the Da vis-Besse Nuclea r Power Station license rene wal proc eeding. Tha t proce eding re mains on the Commis

-sion's active doc ket. The c onfer ring of standing on these pa rties should occur without any further scrutiny. I f an interve nor has e stablished standing in a prior proc eeding involving the same f acility , there is no need f or the interve nor to establish standing in a later proce eding. U.S. Army (Jeffer son Proving Ground), L BP-04-01, 59 NRC 27, 29 (2004). Under cer tain circ umstances, e ven if a curr ent proc eeding is sepa rate from an e arlier proce eding, the Commissi on may ref use to apply its rules of proc edure in an over ly formalistic manne r by requiring that pe titioners participating in the ea rlier pr ocee ding must again identify their intere sts to participate in the c urre nt proce eding.Georgia Inst. of Tech. (Ge orgia Te ch Resea rch Rea ctor), L BP-95-14, 42 NRC 5, 7 (1995) (citing Georgia Power Co. (Vogtle Elec tric Ge nera ting Pl ant, Units 1 & 2)

L BP-91-33, 34 NRC 138 (1991)). E. The Board S houl d Consi der The Contribu tion Petit ioners May Make To The P rocee ding Even if the Boa rd believe s that Petiti oners ha ve not made the ir ca se for any other for m of standing, it should t ake into ac count Petitioners' contribution to the license amendment proce eding alre ady , in the form of a repor t from one of the same public e xperts who wa s involved in the litigation over the San Onofr e stea m gener ator c ontroversy , and gra nt leave to Petitioners to intervene on tha t basis. Where a petitioner does not satisfy the judicial standar ds for standing, interve ntion could still be allowed as a matter of disc retion. Metropolitan Edison Co. (Thre e Mile I sland Nuclea r Station, Unit 1), CL I-83-25, 18 NRC 327, 333 (1983);

Sacrame nto Mun. Util. Dist

.

(Rancho Sec o Nuclea r Ge nera ting St ation), CL I-93-12, 37 NRC 355, 358 (1993). L icensing Boards may , as a ma tter of discr etion, grant interve ntion in domesti c licensing c ases to petitioners who ar e not entitled to intervene as of r ight under judicial standing doctrine s but who may , never theless, make some contribution to the proce eding. Portland General Elec tric Co.(Pebble Springs Nucle ar Plant, Units 1 & 2), CL I-76-27, 4 NRC 610 (1976).

Moreove r, taking into acc ount the previous contr ibutions t hat most of the petitioning organizations have made during more than thr ee (3) y ear s of ac tivity in the Davis-Besse license rene wal proc eeding, the c ognizable legal injury alleged, a nd the asser tions respec ting injury-in-fac t, the ASL B may justifiably grant Petitioners the status of inter venors to ensur e that the public's intere st in a transpar ent license amendment pr ocess is re specte d. II. REPLY AS TO SCOPE AND ENFORCEMENT OBJE CTIONS The NRC Staff a nd FENOC both complain that the Petition raises issues bey ond the scope of the license amendment r equest, a nd that Petitioners seek, in ef fec t, an enf orce ment action, for which the only available reme dy is a 10 C.F.R. §2.206 petition. See NRC St aff Answer at 15; FENOC Answer a t 22.A. At I ssue Is FE NOC's Purposeful Lim itation Of The Scope Of The Lic ense Am endm ent Request Central to this lit igation is the question of whether FENOC should have sole discre tion to decide the scope of the lice nse ame ndment reque st (a view a cquiesc ed in by the NRC Staff).

Petitioners submit that such unbridled discr etion does not exist and that the supine posture of the NRC on this issue has contributed to r ece nt disastrous results in steam gener ator re place ments. The a rgument goes a s follows. "Ther e is no requir ement to individually submit 10 C.F.R.-1 0-

§ 50.59 analy ses to the NRC, although they are maintained onsite ava ilable for inspe ction." NRC Staff Answe r at 15, fn. 58. A dditionally , licensee s "shall update pe riodically . . . the [F SAR] . . .[which] shall include the e ffe cts of . . . all saf ety analy ses and e valuations perf ormed by the . . .

licensee . . . in support of conc lusions that changes did not requir e a lice nse ame ndment in acc ordanc e with § 50.59(c

)(2) . . . ." 10 C.F.R. § 50.71(e).

Id. "Furthermor e, just beca use the NRC is not immediately scrutinizing any potential FENOC 10 C.F.R. § 50.59 analy ses re garding the installation of repla ceme nt SGs at DBNPS does not mean tha t the NRC has relinquished oversight of this planned installation. To the contr ary , the NRC has alre ady schedule d SG repla ceme nt inspections at DBNPS i n acc ordanc e with NRC inspection proce dures 50001."

Id. Finally , acc ording to the NRC St aff and FENOC views, the public notice dictates with finality the scope - i.e., the sole topics which may be addr essed - of the he aring opportunity. FENOC Answer 20. The FENOC-NRC Staff position, then, is that the utilit y company is allowed to maintain, secr eted a way from public scr utiny , the methodology and re asoning by which it conclude d that major design cha nges of the r eplac ement stea m gener ators did not contra dict the "f it-form-function" lice nsing parame ters of the original Davis-Besse license. This prote cted, unr egulated zone also is impermeable to a ny outsider see king to understand how FENOC fulfilled the "

like-for-like" compa rison nece ssitated by 10 C.F.R. § 50.59. Thus FENOC is allowed to restrict its decisions from public sc rutiny. Despite disastrous re sults following t he hide-and-se ek Southern California Edison misjudgments at San Onofre , the NRC Staff has ne verthe less left it to FENOC to invoke at its option whatever limitation upon the scope of public inquiry it deems best for the hear ing. -1 1-B. The AEA And C om m ission Interpretation Require A Hearing On The Petition B ecause Pe tition ers' Issues Fall Wi thin The Scope Of The Hearing Notice There is no regulation that compels e ither disclosure or nondisclosure of the license amendment a naly sis to the public. There is no re gulation which authorizes the utility company to dictate the sc ope of the license a mendment proc eeding a nd constrain it, at its whim. Unless the public has a r ight to seek a he aring, only the license e would know the ba sis and rea soning sup-porting its chara cter ization of the replac ement stea m gener ator a s a like-f or-like r eplac ement satisfy ing the require ments of Section 50.59. The r esult in the San Onofre case exposes the fallac y of this view, as we ll as the public hea lth and safe ty risks such a policy cre ates. Section 182a of the Atomic Energy Act addr esses wha t must be included in a re actor opera ting license. Such license s must include "technic al spec ifications," including "the specific char acte ristics of the fa cility , and such othe r informa tion as the Commis sion may , by rule or regula tion, deem nec essar y in order to e nable it to find that the utiliz ation . . . of spec ial nuclea r materia l . . . will provide adequa te protec tion to the health and saf ety of the public."

42 U.S.C. § 2232(a). Further, the Commission i s empower ed to issue an or der a mending any license it dee ms nece ssary to "ef fec tuate the pr ovisions of [

the AEA]" (42 U.S.C. § 2233) to "promote the com-mon defe nse and se curity or to protec t health or to minimiz e dange r to life or pr operty." Id. §2201; see also id.

§ 2237. Finally , section 189a of the AEA state s that "[i]

n any proce eding under [the AEA], for the . . . a mending of any license . . . the Commi ssion shall grant a hea ring upon the re quest of any person whose interest may be af fec ted by the proc eeding, a nd shall admit any such per son as a pa rty to such proce eding." 42 U.S.C. § 2239(a)

(1)(A).Consist ently with the statutes, the Commiss ion advises ASL Bs that "the scope of any-1 2-hear ing should include the proposed lice nse ame ndments, and any health, saf ety or environme nt-al issues fairly raised by them.

" (Empha sis suppli ed). Commonwealth Edison Co. (Dre sden Nuclea r Power Station, Unit 1), CL I-81-25, 14 NRC 616, 624 (1981);

see also W is. Elec. Power Co. (Point Beach Nuc lear Plant, Units 1 & 2), L BP-82-88, 16 NRC 1335, 1342 (1982) (holding that it is not "appr opriate to pe rmit an intervenor to question the original design of the r eac tor or the sy stems not directly involved in [

the license amendment] application")

.Petitioners submit that the issues raise d in their pleadings fa ll fairly within the scope of the hea ring notice, be cause the technic al spec ifications for the plant comprise the pa rame ters -i.e., the outer limits - within which all of the nonpublic ana ly sis and decision-making by FENOC have be en under taken. "Standard Te chnica l Specifica tions (STS) ar e published for eac h of the five re actor ty pes as a NUREG-se ries publication. Plants are require d to opera te within these specific ations." NRC website stateme nt. 8 Thus Arnold Gunde rsen's assertions (Repor t at 4) that "The lack of a license application on file with the NRC also implies that Davis-Besse made the deter mination that the 'fit-for m-function' of the re place ment steam gene rators f ell within the licensing para meters of the original Davis-Besse license" challenge s an undenia ble, implicit nonpubli c dec ision not to seek a technica l specifica tion amendment and thus fa lls withi n the scope. His conclusion (Repor t at 5)that "More over, the data r eviewe d shows that FENOC should have applied f or a lice nse ame nd-ment with the requisite public re view six y ear s ago whe n the ROTSG was originally designed, order ed, and pur chase d" similarly implicates and c hallenges de cisions that fall within the para meters of Davis-Besse

's technic al spec ifications. Gunder sen's point (Report a t 6) that "A Foun d at ht tp://www.nrc.gov/r eac tor s/ope ra ti ng/li cen si ng/te chs pec s.ht m l 8-1 3-revie w of the FENOC Power Point presentation submitt ed to the NRC contains an e xtensive list of cha nges to the D-B Te chnica l Specifica tions that clearly identifies the nec essity for c omplete technica l review by the NRC via the forma l 10 C.F.R. § 50.59 license ame ndment proce sses" ha s been gr eete d with oppositi on by the NRC Staff, instead of the objective wa rning it is. I n sever al significant way s, Gunderse n has signaled that the lice nse ame ndment proce eding, while a de sir-able de velopment,, cove rs an incomplete arr ay of cha nges in specif ications.

What FENOC and the NRC St aff are suggesting is that once the die is ca st and a limited arr ay of tec hnical spec ifications is deeme d to be af fec ted by the steam ge nera tor projec t, the"scope" of a ny subsequent proc eeding is limited to a challenge of those fe w cha nges. Petitioners counter that the notice of hear ing opened the w indow for a public hear ing to be sought based, among other gr ounds, upon the point that an insufficient a rra y of tec hnical spec ifications cha nges has bee n identified by FENOC. The Staff a dmits t hat it has not eff ectively decide d the merits of the technic al spec ifications modifications, so how ca n it forec lose the potential that FENOC has 9 unduly limit ed the r ange of its engineering r eview a nd perf ormed a n incomplete ana ly sis of the nature and tec hnical implications of the multitude of diffe renc es betwe en the or iginal steam gener ators and the 2014 repla ceme nts?Under the circ umstances, the L icensing Board ma y not delegate its obli gation to decide controve rsial issues to the Staff.

Cleveland Elec. Illuminating Co. (Perr y Nuclea r Power Plant, Units 1 & 2), A L AB-298, 2 NRC 730, 737 (1975);

Commonwealth Edison Co. (By ron Nuc lear Power Station, Units 1 & 2), L BP-84-2, 19 NRC 36, 210 (1984), rev'd on other grounds , AL AB-At St af f An swer p. 3 fn. 9, t he NRC S ta ff st at es: "Th e St af f i s c urr ent ly re viewin g the J anu ar y 9 18, 2 013 li cen se amendm ent re que st and has not re ach ed a ny fin al det er m ina ti on r egardi ng the pro pos ed amendm ent or FENOC's as ser ti ons."-1 4-793, 20 NRC 1591, 1627 (1984), citing Perry , AL AB-298, 2 NRC at 737.

Strikingl y , the position assumed by the NRC Staff in the instant matter dire ctly contra dicts its posi tion in the San Onofre c ase. I n the "NRC Staff' s Answer to Petiti on to I nterve ne and Re quest for H ear ing by Friends of the Ea rth on the Restart of the San Onofr e Reac tors," ML 12195A330 (July 20, 2012), the NRC Staff took this positi on: FOE also does not m eet the tim ely f ilin g requirem ents of 10 C.F.R

§ 2.309(b) because the heart of FOE's claim appears to be that th e June 27, 2008, license am end-m ent was in compl ete. But th e tim e for FOE to bring forwar d this concern would h ave been withi n sixt y days of the Federal Register noti ce published on S eptember 23, 2008.

No individual or individuals submi tted a hea ring reque st. The Staff subseque ntly issued the re quested a mendments on J uly 14, 2009.

Thus a h earing on t he adequacy of the June 27, 2008 request is n o longer available to FOE.

FOE's challenge to the previous action must take the f orm of a pe tition under 10 C.F.R. § 2.206.

Id. at 18-19. (E mphasis supplied). I n the San Onofr e ca se, the Staff acknow ledged that the he art of FOE's cla im was an a llegation that the license amendment wa s "incomplete."

I ncomplete analy sis of the cha nges re quiring a for mal license a mendment is simil arly the cr ux of Petitioners' allegations in the instant matter. I n the San Onofr e litigation, the Staff conc urre d that the prope r time in which to raise a verme nts of incompleteness would ha ve bee n within 60 day s of September 23, 2008, the date of the Feder al Register notice , but FOE miss ed that dea dline. Id.The NRC Staff a ffirme d this posit ion in a later f iling in t he San Onof re c ase. I n the "NRC Staff's Answ er to Reque st that the NRC Decide Petition to I nterve ne and A pplication to Stay Restart De cision," ML 12299A513, p. 6 (Oc tober 25, 2012), the Staff expla ined to the Commi ssion: FOE's claim that there was no lice nse ame ndment rela ted to the SONGS steam gener ator re place ment is not accur ate. As discusse d in Staff's Answe r to FOE's Petition to I nterve ne, there was a license am endm ent associated with the SONGS steam generator replace m ent, and alon g with it, an oppor tun ity to request a hearin g.-1 5-Id. at 6. (Emphasis supplied). But now, in the Da vis-Besse ca se, under very simil ar c ircumstan-ces, the Staff stands fa st in it s insist ence that A license e that does not prope rly perf orm a 10 C.F.R. § 50.59 analy sis and makes a cha nge re quiring prior NRC approva l without a license a mendment re quest would be in violation of NRC regulations and thus subject to enfor ceme nt action. . . . [B]

inding Com

-mission precede nt holds that challenges to a lice nsee's 10 C.F.R. § 50.59 analy ses ar e outside the scope of the ac tions li sted in AEA § 189a a nd may only be brought a s reque sts for e nforc ement under 10 C.F.R. § 2.206.

So the Staff was r ight before it was wrong.

C. 10 C.F.R. § 2.206 Is A M eaningless Tail-Chase The a ssertions by NRC St aff and FENOC that Petitioners must file for re gulatory enfor ceme nt under 10 C.F.R. § 2.206 is di singenuous. A petitioner is not entitled to an adjudicator y hear ing under § 2.206, whic h, as NRC regulations and pr ece dent make c lear , is a petition to the NRC t o take enforce ment action. Holding an a djudicatory hear ing is critical from a due proc ess and public pa rticipation standpoint, as it is the mechanism through which infor ma-tion about the change s the licensee made to the f acility is tested and provide d to the public.

Further, a § 2.206 pe tition i s in fact not a via ble alter native for obtaining substantive relief. I n the San Onofr e litigation, the ASL B determined that the numbe r of instanc es in which the Staff gr anted a § 2.206 petition in whole was 2 out of 387, or one-half of one per cent. 1 0 As Friends of the Ea rth argue d there , "it is clear that the vast majority of § 2.206 petitions suffe r a quie t death bef ore the Staff. Thus, the r efr ain in the NRC Staff's Answe r to FOE's Petition - t hat 'the c orre ct cour se of a ction is to file a petition under 10 C.F.R. § 2.206' - is, in Sout her n Cal if orn ia Edi son Compan y (Sa n Onof re Nucl ear Gene ra ti ng Stat ion), Do cket No s.1 0 50-361, 50-362 (Li cen si ng Board Me m ora ndum and Or der Dir ect ing St af f t o Am end Fil ing on 1 0 C.F.R.§ 2.2 06) (J une 19, 2012) a t 2.-1 6-rea lity , a proposa l to consign Petit ioner's c oncer ns to eterna l regulatory purgatory

." FOE Reply

, ML 12195A330, p. 12. Filing a § 2.206 petition i s not a viable a lternative.

III. THE CONTENTION RAISE S A GENUINE DISPUTE OF FACT AND LAW Contrary to FENOC's insist ence (Answe r at 18), the proposed Contention does, indee d, "provide sufficie nt information to show that a genuine dispute exists with the applicant/licensee on a mater ial issue of law or fac t," as re quired by 10 C.F.R. § 2.309(f)

(1)(vi). Ther e is a ge nuine dispute on the legality of the re stricted scope of the lice nse ame ndment and a f actua l dispute as to the completene ss of FENOC's license a mendment ana ly sis. Restriction of the litigation t o numerica l change s in technica l specifica tions in four are as re lated to the stea m gener ator repla ceme nt project is spec ious and does not comport with customar y regula tory prac tice. A fa ilure to demonstrate the existenc e of a genuine dispute on a materia l issue of fac t is a failure to provide any fac tual evidenc e or suppor ting documents that produce some doubt about the ade quacy of a spe cified por tion of applicant's doc uments or that provide suppor ting reasons that tend to show that there is some specified omission from applica nt's documents.

Florida Power and Light C

o. (Turke y Point Nuclear G ener ating Plant, Units 3 & 4), L BP-90-16, 31 NRC 509, 515, 521 & n.12 (1990), citing 10 C.F.R. §§ 2.309(f)

(1)(v) and (vi). Petitioners question the adequa cy of the 10 C.F.R. 50.59 analy sis, and claim that there are specific omissions from FENOC's license a mendment re quest.The fa ctual support nec essar y to show that a genuine dispute exists need not be a s strong as that nec essar y to withstand a summary dispositi on motion. W hat is require d is "a minimal showing that material f acts a re in dispute, ther eby demonstrating that an '

inquiry in depth' is appropr iate." Gulf States Utili ties Co. (River Bend Station, Unit 1), CL I-94-10, 40 NRC 43, 51

-1 7-(1994) (citing "Final Rule, Rules of Practice for Dome stic L icensing Proce edings - Procedur al Changes in the He aring Proce ss," 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989), quoting Connec-ticut Bankers Association v. Board of Gov ernors , 627 F.2d 245 (D.C. Cir. 1980).

A basis for a contention is set forth with re asonable specific ity if the applica nts are suf fi-ciently put on notice so that they will know, at least gene rally , what they will have to def end against or oppose , and if ther e has be en suff icient founda tion assigned to warr ant furthe r explora tion of the proposed c ontention.

Kansas Gas &

Electric Co. (Wolf Creek Ge nera ting Station, Unit 1), L BP-84-1, 19 NRC 29, 34 (1984).

IV. CONCLUSION I t is not enough that there is a nominal he aring opportunity , calc ulated to be void of most controve rsy. FENOC and the NRC Staff have evisce rate d the substantive mecha nism of the Atomic Energy Act, hea rings on the merits which a ffor d acc ess to the public to participa te in the regula tion of inherently danger ous technologies. A he aring is of no va lue to the public intere st if it has been c ensore d or re stricted. The L icensing Board should re ject the a rguments ra ised by FENOC and the NRC Staff, and se t this m atter f or hea ring of the issues ra ised by Petitioners in their May 20, 2013 filing.

/s/ Terry J. L odge Terr y J. L odge (O H #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@y ahoo.com Counsel for I nterve nors-1 8-UNITED STAT ES O F AMERICA NUCLEAR REGULATORY COMM ISS ION I n the Matter of FirstEnergy Nuclea r Ope rating Company Davis-Besse Nuclea r Power Station, Unit 1 Regarding the Propose d Amendment to Facility Oper ating L icense)Docke t No. 50-346-L A) J une 21, 2013

)) *****CERTIFICATE OF S ERVICE I here by cer tify that a copy of the for egoing "PETI TI ONERS' REPL Y I N SUPPOR T OF'PETI TI ON TO I NTERVENE A ND FOR AN ADJUDI CATORY PUBL I C HEARI NG OF FENOC L I CENSE AMENDMENT REQUE ST'"wa s deposited in the NRC's Electronic I nformation Exc hange this 21st day of June, 2013.

/s/ Terry J. L odge Terr y J. L odge (O H #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@y ahoo.com Counsel for I nterve nors-1 9-