UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

Transcription

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) ) FLORIDA POWER & LIGHT CO. ) Docket No ) (St. Lucie Plant, Unit 2) ) ) NRC STAFF ANSWER TO SOUTHERN ALLIANCE FOR CLEAN ENERGY'S HEARING REQUEST REGARDING DE FACTO AMENDMENT OF ST. LUCIE UNIT 2 OPERATING LICENSE Catherine E. Kanatas David E. Roth Jeremy L. Wachutka Counsel for NRC Staff April 28, 2014

2 - ii - TABLE OF CONTENTS Page INTRODUCTION... 1 BACKGROUND... 3 I. The 2007 Steam Generator Replacement at St. Lucie Plant, Unit No II. The 2011 Extended Power Uprate License Amendment Request... 5 III. SACE s Hearing Request and CLI DISCUSSION... 7 I. The Hearing Request Should Be Denied Because There is No License Amendment Proceeding, Actual or De Facto, Triggering AEA 189a. Hearing Rights... 7 A. There is No Actual License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No B. There is No De Facto License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No The Commission's Perry Decision Provides the Standard for What Constitutes a De Facto License Amendment SACE Does Not Indicate How Staff's Inspection Activities Constitute a De Facto License Amendment SACE Does Not Indicate How Staff Inaction Has Effectively Amended FPL's License FPL's 10 C.F.R Actions Do Not Constitute De Facto or Actual License Amendments II. SACE s Hearing Request Does Not Meet the Commission s Contention Admissibility Standards Because There Is No Proceeding in Which to Intervene III. Even Assuming Arguendo That a De Facto Proceeding Exists, SACE s Hearing Request Does Not Meet 10 C.F.R A. SACE Does Not Have Standing Because It Does Not Demonstrate the Existence of Any Injury-in-Fact Traceable to an NRC Action B. SACE s Contentions Do Not Meet 10 C.F.R (f)(1)... 25

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

4 - iv - TABLE OF AUTHORITIES JUDICIAL DECISIONS Page U.S. Supreme Court Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) U.S. Courts of Appeal Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995)... passim City of West Chicago v. NRC, 701 F.2d 632, 639 (7th Cir. 1983) Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995) Sholly v. NRC, 651 F.2d 780 (D.C. Cir 1980) ADMINISTRATIVE DECISIONS Commission: AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658 (2008) Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315 (1996)... 11, 16 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-04, 49 NRC 185 (1999) Consumers Power Co. (Palisades Nuclear Power Facility), CLI-82-18, 16 NRC 50 (1982) Crow Butte Res., Inc. (North Trend Expansion Area), CLI-09-12, 69 NRC 535 (2009) Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-12, 59 NRC 237 (2004) Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631(2004)... 19, 26 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231 (2008) Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328 (1999)... 27

5 - v - Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39 (2012) Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479 (2012) Florida Power & Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 NRC 325 (1989) Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-04, 79 NRC (Apr. 1, 2014) (slip op.)... passim Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327 (2000)... 20, 21, 29 General Pub. Util. Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2) (Oyster Creek Nuclear Generator Station), CLI-85-4, 21 NRC 561 (1985)....9, 15 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 NRC 193 (2000) Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB 183, 8 AEC 222 (1974) International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247 (2001) Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-1-11, 74 NRC 427 (2011)... 20, 29 Petition for Rulemaking to Amend 10 C.F.R (c), CLI-11-1, 73 NRC 1 (2011)... 3 Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998)... 19, 30 Portland Gen. Elec. Co.,(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976)... 23, 35 Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-04-01, 59 NRC 1 (2004) Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64 (1994) Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC 437 (2012)... passim Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-09, 78 NRC (Dec. 5, 2013) (slip op.)... 11, 12 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309 (2005)... 24

6 - vi - USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95 (1994)... 18, 22 Atomic Safety and Licensing Appeal Board: Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785 (1985)... 20, 21, 29 Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13 (1974)... passim Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC , 16 Atomic Safety and Licensing Board: Arizona Pub. Service Co.,(Palo Verde Nuclear Station, Unit Nos. 1, 2 and 3), LBP-91-19, 33 NRC 397 (1991) Dominion Nuclear Connecticut, Inc.(Millstone Power Station, Unit No. 3), LBP-08-09, 67 NRC 421 (2008) FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-13-11, 77 NRC (Aug. 12, 2013) (slip op.)... 22, 28 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-08-18, 68 NRC 533 (2008) Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 and 7), LBP-11-6, 73 NRC 149 (2011) Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-13-07, 77 NRC (May 13, 2013) (slip op.)... 11, 16, 17 Tennessee Valley Auth. (Sequoyah Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15 (2002) Directors Decisions: Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), DD-07-3, 65 NRC 643 (2007)... 21, 31 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), DD-96-19, 44 NRC 283 (1996) REGULATIONS 10 C.F.R

7 - vii - 10 C.F.R (a) C.F.R (b) C.F.R (b)(4) C.F.R (d)(1)(ii) C.F.R (d)(1)(iv)... 20, C.F.R (d)(2) C.F.R (f)(1) C.F.R (f)(1)(iii)... 19, 20, 21, C.F.R (f)(1)(iv) C.F.R (b) C.F.R (b) C.F.R C.F.R (c) C.F.R (c)(2) C.F.R (d)(1) C.F.R (d)(2) C.F.R (a) C.F.R (e).... 4, C.F.R (e)(2) C.F.R C.F.R C.F.R MISCELLANEOUS Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 77 Fed. Reg. 63,343 (Oct. 16, 2012)... 5 Changes to Adjudicatory Process, 69 Fed. Reg (Jan. 14, 2004) (final rule)... 26

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

9 April 28, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) ) FLORIDA POWER & LIGHT CO. ) Docket No ) (St. Lucie Plant, Unit 2) ) ) NRC STAFF ANSWER TO SOUTHERN ALLIANCE FOR CLEAN ENERGY S HEARING REQUEST REGARDING DE FACTO AMENDMENT OF ST. LUCIE UNIT 2 OPERATING LICENSE INTRODUCTION Pursuant to the Commission s order, 1 the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) hereby files its answer opposing the request for a hearing (Hearing Request) filed on March 10, 2014 by Southern Alliance for Clean Energy (SACE). 2 The Hearing Request claims that the Staff has conducted and is continuing to conduct de facto license amendments of Renewed Facility Operating License No. NPF-16 for St. Lucie Plant, Unit No. 2 3 and that these 1 Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-04, 79 NRC, (Apr. 1, 2014) (slip op. at 5) (CLI-14-04) (setting a schedule for further briefing with respect to SACE s Hearing Request, which was filed directly with the Commission outside of any licensing proceeding and not in accordance with any NRC regulation). 2 Southern Alliance for Clean Energy s Hearing Request Regarding De Facto Amendment of St. Lucie Unit 2 Operating License (Mar. 10, 2014) (Hearing Request). SACE's filing included Southern Alliance for Clean 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), the Declaration of Arnold Gundersen (Mar. 9, 2014) (Gundersen Declaration), and eight declarations of standing. The filing is in a single document available at Agencywide Documents Access and Management System (ADAMS) Accession No. ML14071A431. On April 25, 2014, SACE filed an amended hearing request. See [SACE s] Motion for Leav[e] to Amend Hearing Request Regarding De Facto Amendment of St. Lucie Unit 2 Operating License (Apr. 25, 2014); [SACE s] Amended Hearing Request Regarding De Facto Amendment of St. Lucie Unit 2 Operating License (Apr. 25, 2014). The Staff opposed SACE s motion to amend its hearing request and reserves the right to separately answer the amended request. 3 Docket No , St. Lucie Plant, Unit No. 2, Renewed Facility Operating License No. NPF-16

10 - 2 - alleged de facto license amendments fail to meet the NRC s reasonable assurance standard and should be revoked and enjoined and a hearing held before the restart of St. Lucie Plant, Unit No. 2 following its scheduled refueling outage. 4 In the alternative, SACE requests that the Commission hold a discretionary hearing on its claims. 5 The Commission should deny SACE s Hearing Request. As explained below and in the related Staff affidavits, 6 there is no license amendment proceeding, either actual or de facto, to trigger hearing rights under Section 189a. of the Atomic Energy Act of 1954, as amended (AEA). For this same reason, SACE s Hearing Request does not satisfy the required standing, contention admissibility, and timeliness standards of 10 C.F.R , which all presume the existence of an AEA 189a. proceeding. Moreover, even assuming arguendo that there was a de facto license amendment proceeding, SACE s Hearing Request should be denied because SACE has not demonstrated standing and its contentions do not meet the 10 C.F.R (f)(1) requirements. Instead, SACE s contentions challenge the basic structure of the Commission s regulatory process, are outside the scope of licensing proceedings, and fail to raise a genuine material dispute. Furthermore, SACE s request for a discretionary hearing should be denied because SACE has not shown that its assertions warrant a discretionary hearing. As discussed below, (Oct. 2, 2003) with Technical Specifications, as revised though Feb. 7, 2014 (ADAMS Accession No. ML ) (NPF-16). 4 See Hearing Request at 3-4 (summarizing proffered Contentions 1 and 2). The full text of SACE s proffered Contentions 1 and 2 is provided below at p Hearing Request at 1, See Affidavit of Omar R. López-Santiago Concerning SACE s Claims Regarding Staff s Steam Generator Inservice Inspection (Mar. 20, 2014) (ADAMS Accession No. ML14079A445) (López-Santiago Affidavit) (filed with NRC Staff s Answer to 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. 20, 2014) (Staff Answer to Motion to Stay)); Affidavit of Kenneth J. Karwoski Concerning Southern Alliance for Clean Energy s Claims Regarding Staff s Review of Steam Generator Tube Inspection Report (Apr. 18, 2014) (Karwoski Affidavit).

11 - 3 - SACE s Hearing Request demonstrates a fundamental misunderstanding of the Commission s case law regarding de facto license amendments, the purpose and effect of the Staff s inspection activities, and the requirements and authorizations in the St. Lucie Plant, Unit No. 2 operating license. Therefore, a discretionary hearing would not promote the Commission s dual goals of public safety and timely adjudication. 7 For these reasons, SACE s Hearing Request should be denied. BACKGROUND Pursuant to Renewed Facility Operating License No. NPF-16, Florida Power and Light Company (FPL) is authorized to operate St. Lucie Plant, Unit No. 2, a pressurized water nuclear reactor, and its associated steam generators and electrical generating equipment, 8 which are described in the Updated Final Safety Analysis Report (UFSAR), as supplemented and amended. 9 Consistent with its regulatory process, the NRC has performed and continues to perform oversight of FPL's operations under this license through inspections, assessments of performance, and enforcement, and documents the results of its inspections Petition for Rulemaking to Amend 10 C.F.R (c), CLI-11-1, 73 NRC 1, 4 (2011). 8 The license is held by FPL, Orlando Utilities Commission of the City of Orlando, Florida, and Florida Municipal Power Agency, but FPL is authorized to act as agent for the others and has exclusive responsibility and control over the physical construction, operation, and maintenance of the facility. NPF- 16, at 2. 9 The UFSAR includes information that describes the facility, presents the design bases and the limits on its operation, and presents a safety analysis of its structures, systems, and components and of the facility as a whole. 10 C.F.R (b). The licensee is required under 10 C.F.R (e) to update the UFSAR to assure that the UFSAR contains the effects of all changes made in the facility or procedures as described in the UFSAR; all safety analyses and evaluations performed by the licensee either in support of approved license amendments or in support of conclusions that changes did not require a license amendment in accordance with 10 C.F.R (c)(2). 10 The relevant inspection reports for St. Lucie Plant, Unit No. 2 are available at

12 - 4 - I. The 2007 Steam Generator Replacement at St. Lucie Plant, Unit No. 2 Pursuant to 10 C.F.R (c)(1), FPL may make changes in the facility as described in the UFSAR, make changes in the procedures as described in the UFSAR, and conduct tests or experiments not described in the UFSAR without obtaining a license amendment pursuant to 10 C.F.R if a change to the technical specifications (TS) 11 is not required, and the change, test, or experiment does not meet any of the eight criteria in 10 C.F.R (c)(2). FPL is required to maintain records of any such changes, tests, or experiments made without prior NRC approval. 12 These records must include a written evaluation which provides the bases for the determination that the change, test, or experiment did not require a license amendment. 13 FPL must make these records available to the NRC for inspection and must periodically submit to the NRC a report containing a brief description of these changes, tests, or experiments including a summary of the evaluation of each. 14 In the fall of 2007, FPL removed the original steam generators (OSG) at St. Lucie Plant, Unit No. 2 and installed replacement steam generators (RSG). Before doing this, FPL determined that the process of removing the OSGs and installing RSGs did not require a change to the technical specifications or meet any of the criteria in 10 C.F.R (c)(2). Therefore, FPL concluded that it could conduct this process without prior NRC approval. 11 TS are part of the license, and in general are derived from the analyses and evaluations included in the licensee s safety analysis report, and amendments thereto, submitted pursuant to 10 C.F.R (requiring that each application for a construction permit include a preliminary safety analysis report and requiring each application for an operating license to include a final safety analysis report). 10 C.F.R (b) C.F.R (d)(1). 13 Id C.F.R (d)(2), 50.70(a) (requiring licensees to permit inspections of records, premises, and activities), 50.71(e) (requiring periodic updates of the UFSAR to include information in support of conclusions by the licensee that changes did not require a license amendment in accordance with 10 C.F.R (c)(2)), 50.71(e)(2) (requiring UFSAR update submittals to identify changes made under the provisions of 10 C.F.R but not previously submitted to the Commission).

13 - 5 - On December 31, 2007, the NRC completed an inspection that reviewed, inter alia, the 2007 St. Lucie Plant, Unit No. 2 steam generator replacement project, including the 10 C.F.R evaluations used by FPL to determine that the replacement did not require a license amendment; the NRC inspectors identified no findings of significance. 15 II. The 2011 Extended Power Uprate License Amendment Request On February 25, 2011, FPL submitted a license amendment request (LAR) for an extended power uprate (EPU) to increase the licensed core power level at St. Lucie Plant, Unit No. 2 from 2700 megawatts thermal to 3020 megawatts thermal. 16 On September 1, 2011, the Commission published a notice of opportunity to request a hearing on this EPU LAR and to access related documents which were otherwise non-public. 17 No requests for a hearing or access to documents were received. On September 24, 2012, the Commission issued Amendment No. 163 to the St. Lucie Plant, Unit No. 2 license authorizing the unit s operation at power levels not in excess of 3020 megawatts thermal St. Lucie Nuclear Plant - NRC Integrated Inspection Report / , / , 4OA5.3 "Unit 2 Steam Generator Replacement Inspection (IP 50001)" (Feb. 1, 2008) at (ADAMS Accession No. ML ); López-Santiago Affidavit at 2-3. A "finding" is a performance deficiency of More-than-Minor significance." NRC Inspection Manual IMC 0612, "Power Reactor Inspection Reports," at 1 (Jan. 24, 2103) (ADAMS Accession No. ML12244A483). A "Performance Deficiency" is an issue that is the result of a licensee not meeting a requirement or self-imposed standard where the cause was reasonably within the licensee's ability to foresee and correct, and therefore should have been prevented." Id. at Letter L from R. L. Anderson, Site Vice President, St. Lucie Plant, to NRC, at 1 (Feb. 25, 2011) (ADAMS Accession No. ML ). The complete EPU-LAR is available in ADAMS Package ML Some portions are proprietary, and thus not publicly-available. 17 Florida Power & Light Company, St. Lucie Plant, Unit 2 License Amendment Request; Opportunity To Request a Hearing and To Petition for Leave To Intervene, and Commission Order Imposing Procedures for Document Access, 76 Fed. Reg. 54,503 (Sept. 1, 2011). 18 Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 77 Fed. Reg. 63,343, 63,354-63,355 (Oct. 16, 2012).

14 - 6 - III. SACE s Hearing Request and CLI On March 10, 2014, SACE ed the instant Hearing Request to the Commission. The Hearing Request was not in response to any notice of opportunity for hearing published in the Federal Register. 19 SACE s Hearing Request contains two claims, which SACE labeled as contentions: Contention 1 Hearing Request at 5-6. Contention 2 Hearing Request at 17. The NRC Staff has conducted and is conducting a de facto license amendment proceeding to allow FPL to operate St. Lucie Unit 2 with RSGs that exceed the design basis for the reactor and that do not conform to the 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 , and 10 C.F.R 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 , 50.40, 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. SACE s Hearing Request was accompanied by a motion to stay restart of St. Lucie Plant, Unit No. 2 pending completion of a hearing on SACE s proffered contentions (Motion to 19 See Hearing Request at 3 ( The fact that the NRC has not formally announced the issuance or consideration of a license amendment does not preclude consideration of this hearing request. ).

15 - 7 - Stay). 20 In CLI-14-04, the Commission stated that both the Hearing Request and Motion to Stay arise from the 2007 steam generator replacement at St. Lucie Plant, Unit No The Commission denied SACE s Motion to Stay and provided an opportunity for FPL and the Staff to file answers to SACE s Hearing Request by April, 28, For the reasons discussed below, SACE s Hearing Request should be denied. DISCUSSION I. The Hearing Request Should Be Denied Because There is No License Amendment Proceeding, Actual or De Facto, Triggering AEA 189a. Hearing Rights Section 189a. of the AEA provides that, in any proceeding under the AEA for the amending of a license, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. SACE argues that it is entitled to an AEA 189a. hearing because of a de facto license amendment relating to the installation of replacement steam generators at St. Lucie Plant, Unit No As explained below, the Commission should deny SACE's Hearing Request because there is no actual or de facto license amendment related to the St. Lucie Plant, Unit No. 2 steam generators or to the restart of St. Lucie Plant, Unit No. 2. As a result, AEA 189a. does not provide SACE an opportunity for a hearing. A. There is No Actual License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2 As SACE recognizes, there is currently no licensing proceeding associated with the steam generators or restart of St. Lucie Plant, Unit No FPL has not submitted a 10 C.F.R. 20 See Hearing Request at 1; see generally Motion to Stay. 21 St. Lucie, CLI-14-04, 79 NRC at (slip op. at 2). 22 Id. at See Hearing Request at 1, 5-6, 13. See also St. Lucie, CLI-14-04, 79 NRC at (slip op. at 1). 24 See Hearing Request at 3, 21 (noting that the NRC has not announced the issuance or consideration of a license amendment).

16 license amendment request associated with the steam generators or restart of St. Lucie Plant, Unit No. 2 and the Staff has not instituted any proceeding to modify, suspend, or revoke FPL's license. Thus, there is no proceeding to amend the St. Lucie Plant, Unit No. 2 license under AEA 189a. in which SACE can intervene. Instead of challenging an existing proceeding, SACE challenges a past proceeding, namely the license amendment proceeding associated with FPL s EPU license amendment request. 25 SACE claims that a de facto amendment took place through the NRC s approval of the EPU LAR in and that the plant is not safe to operate given the NRC s grant of the EPU license amendment. 27 As an initial matter, SACE is incorrect in claiming that the Staff s approval of the EPU LAR constituted a de facto license amendment. A de facto license amendment is an agency action that is not formally labeled as a license amendment but that has the effect of amending a license, thereby triggering AEA 189a. hearing rights. 28 The Staff s approval of FPL s EPU LAR was formally labeled and constituted an actual license amendment, not a de facto license amendment. Specifically, FPL submitted its EPU LAR on September 1, The Commission then published a notice of opportunity to request a hearing on the EPU LAR and to access documents which were otherwise non-public. 29 Thus, very clearly and openly, 30 FPL applied for 25 See Hearing Request at SACE also challenges the 2007 steam generator replacement at St. Lucie Plant, Unit No. 2 itself, which is not associated with any proceeding since it was conducted without prior NRC approval pursuant to 10 C.F.R See, e.g., Hearing Request at Hearing Request at 21 ("For instance, de facto approval of an amendment to the Unit 2 operating license occurred in the 2012 EPU decision, when the NRC Staff reviewed the safety of the altered steam generators under increased power loads and found them safe to operate."). 27 See Hearing Request at 9-11; Gundersen Declaration at 15-17, Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, (1st Cir. 1995) (CAN) Fed. Reg. at 54, See contra Hearing Request at 22 (claiming that there is a secretive and misleading license amendment proceeding).

17 - 9 - a license amendment authorizing use of the RSGs, installed in the fall of 2007, at EPU power levels. 31 FPL s submittal of the EPU LAR triggered an actual license amendment proceeding under AEA 189a. in which SACE could have requested a hearing. 32 SACE, however, chose not to request a hearing. Moreover, SACE s instant Hearing Request does not explain how the Staff s approval of FPL s EPU LAR, which constituted and was labeled an actual, not a de facto, license amendment at the time, 33 somehow went beyond what was requested by FPL so that it would constitute some sort of de facto license amendment. Therefore, SACE s challenges to the EPU licensing action are untimely and unsupported by law. If SACE seeks to revoke the EPU license amendment, its recourse is to file a 10 C.F.R petition. 34 B. There is No De Facto License Amendment Proceeding Related to the Steam Generators or Restart of St. Lucie Plant, Unit No. 2 SACE s primary claim is that there is a past and ongoing de facto license amendment proceeding related to the St. Lucie Plant, Unit No. 2 steam generators which provides SACE 31 Attachment 5 to Letter L , St. Lucie Unit 2 EPU Licensing Report, "Steam Generators and Supports" at "Introduction," page (ADAMS Accession No. ML ) ("The technical evaluation included as part of this LR describes the input parameters, assumptions and acceptance criteria used to evaluate SG performance relative to the EPU."). FPL's EPU LAR specifically discussed the two St. Lucie Plant, Unit No. 2 RSGs and described how the steam generators and associated supports were considered through the following ten evaluations: 1. Thermal-hydraulic, 2. Structural integrity, 3. Design pressure differential, 4. Tube integrity, 5. Tube vibration and wear evaluation, 6. Foreign objects, 7. Tube repair hardware, 8. Steam drum, 9. Chemistry, and 10. Supports. Id Fed. Reg. at 54, See St. Lucie Plant, Unit 2 Issuance of Amendment Regarding Extended Power Uprate (TAC No. ME5843) (Sep. 24, 2012). Attachment to License Amendment No. 163 to Renewed Facility Operating License No. NPF-16 Docket No , at 3 (ADAMS Accession No. ML12235A463) (issuing Amendment No. 163 to NPF-16 authorizing operation at power levels not in excess of 3020 megawatts thermal). 34 See General Pub. Util. Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2) (Oyster Creek Nuclear Generator Station), CLI-85-4, 21 NRC 561, 562 n.3 (1985).

18 with AEA 189a. hearing rights. 35 As noted above, a de facto license amendment is an agency action not formally labeled a license amendment but that has the effect of amending a license, thereby triggering AEA 189a. hearing rights. 36 SACE claims that FPL should have submitted a license amendment to replace the steam generators in 2007 and that a de facto license amendment proceeding exists because the Staff has permitted FPL to operate ever since the replacement with these significant design changes. 37 Specifically, SACE claims that de facto license amendments occurred as a result of the Staff s inaction after reviewing three post-outage TS Section Steam Generator Tube Inspection Reports and that a de facto license amendment is ongoing under the umbrella of the Staff's 2014 inspection of FPL's inservice inspection (ISI) activities. 38 SACE asserts that these Staff activities constitute an ongoing process for de facto approval that effectively amends FPL s license. 39 SACE further asserts that this alleged de facto amendment renders the plant unsafe and should be enjoined before restart can safely occur. 40 But SACE s Hearing Request does not demonstrate that there was or is a de facto license amendment; instead, it demonstrates a misunderstanding of the Commission s de facto case law and the purpose and effect of the Staff s inspection activities. 1. The Commission s Perry Decision Provides the Standard for What Constitutes a De Facto License Amendment SACE s Hearing Request demonstrates a misunderstanding of the Commission s de facto license amendment case law and what constitutes a de facto license amendment. 35 See, e.g., Hearing Request at CAN, 59 F.3d at Hearing Request at Id. at Id. at See, e.g., Hearing Request at 17.

19 For example, SACE is mistaken to the extent that it claims that the vacated 41 San Onofre Nuclear Generating Station (SONGS) Confirmatory Action Letter (CAL) Board decision, LBP-13-07, 42 provides the relevant and legally binding de facto license amendment standard. 43 Instead, the Commission s decision in Perry 44 provides the relevant and legally binding de facto license amendment standard. 45 Under Perry, the proper question in a de facto license amendment case is whether a completed agency action effectively amends a license. 46 In Perry, the Commission considered whether a Staff approval constituted a de facto license amendment. The Commission stated that, if the NRC approval does not permit the licensee to operate in any greater capacity than originally prescribed and all relevant safety regulations and license terms remain applicable, the NRC approval does not amend the license. 47 Notably, this de facto license amendment analysis does not look to licensee 41 See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-09, 78 NRC, (slip op. at 12) (Dec. 5, 2013) (vacating LBP-13-07). The Commission has stated that vacated decisions should not be used for guidance. Consumers Power Co. (Palisades Nuclear Power Facility), CLI-82-18, 16 NRC 50, 52 (1982). And vacated decisions cannot create legal precedent binding on future tribunals. However, NRC litigants are not prohibited from referencing a vacated decision. San Onofre, CLI-13-09, 78 NRC at (slip op. at 11 n.34). 42 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-13-07, 77 NRC (May 13, 2013) (slip op.), vacated as moot, CLI-13-09, 78 NRC at (Dec. 5, 2013) (slip op. at 12). 43 See Hearing Request at Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, (1996) (Perry). 45 The Commission recently affirmed that Perry provides the proper de facto license amendment standard. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC 437, 441 n.15 (2012) (citing Perry when asking a Board to consider whether a Staff Confirmatory Action Letter constituted a de facto license amendment). Notably, the SONGS CAL Board stated that its de facto license amendment analysis departed from Perry in that, instead of looking backward to determine whether a completed Staff action effectively constituted a license amendment, the Board analyzed whether a future hypothetical Staff action (i.e., approval of SCE s Unit 2 Return to Service Plan) would effect a license amendment. See San Onofre, LBP-13-07, 77 NRC at (May 13, 2013) (slip op. at 22-23). 46 Perry, CLI-96-13, 44 NRC at Id.

20 activities under 10 C.F.R or hypothetical future Staff actions when determining whether there is a de facto license amendment. 48 The Perry decision is in line with an earlier Appeal Board decision 49 and Federal case law. 50 Thus, the Commission should not accept SACE s argument that the standard outlined in the vacated SONGS CAL Board decision applies to its Hearing Request. 51 Instead, Perry should be applied here, and in every instance where there is a challenge that an NRC action constitutes a de facto license amendment. As explained below, SACE has not shown how any Staff action related to the steam generators or restart of St. Lucie Plant, Unit No. 2 constitutes a de facto license amendment under Perry. 2. SACE Does Not Indicate How the Staff s Inspection Activities Constitute a De Facto License Amendment SACE claims that the Staff s past and current inspection activities constitute a de facto license amendment. For example, SACE argues that the NRC s inservice inspection activities repeatedly amended FPL's license to allow significant alterations to the design basis of St. Lucie Plant, Unit No SACE asserts that the Staff has some sort of ongoing approval process related to the operation of the steam generators that effectively amends the license The de facto license amendment analysis also does not look at a licensee s activities in response to a Staff action. See Public Service Co. of New Hampshire, (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC 225, 237 (1990) (considering only the Staff s issuance of the CAL, and not the licensee s activities in response to the CAL, when determining whether there was a de facto suspension of the license). 49 See Seabrook, ALAB-940, 32 NRC at See CAN, 59 F.3d at See Hearing Request at 14 (suggesting that the SONGS Board decision provides the relevant de facto analysis). See San Onofre, CLI-13-09, 78 NRC at (slip op. at 11) (noting that litigants can cite to vacated decisions as support for an argument and the presiding officer will then consider whether such an argument is persuasive). 52 See, e.g., Gundersen Declaration at 27 (asserting that the Staff's baseline inservice inspection is used to "approv[e] the operation of [St. Lucie,] Unit 2 outside its design basis ); Hearing Request at 3 (asserting that inspection and the analysis of its results would constitute a licensing action ). 53 Hearing Request at 1.

21 SACE s claims demonstrate a misunderstanding of the purpose and effect of the Staff s inspection and enforcement activities. Consistent with its regulatory process, the NRC Staff oversees FPL's operations though inspections, assessments of performance, and enforcement, and documents the results of the NRC's inspections. 54 In this role: The NRC staff focuses on ensuring adequate tube integrity by requiring licensee compliance with applicable regulations and Technical Specification requirements. The staff uses its field inspections, meetings with the licensee, and licensing reviews to ensure that the licensee satisfies the regulations and plant Technical Specifications as they apply to steam generator tube integrity and that appropriate inspection methods... are used to address specific forms of degradation. Plant Technical Specifications... specify the scope of [the licensee's] inspections and reporting requirements and set forth... limits for allowable leakage in the reactor coolant system. NRC regulations and plant Technical Specifications require that steam generator tube degradation be managed through a combination of inservice inspection,... primary-to-secondary leakage monitoring, and structural and run-time analyses to ensure that safety objectives are met. 55 Thus, the Staff s inspection activities are not de facto license amendments under the Commission s Perry standard: they are not approvals of any kind, much less approvals that expand FPL s authority or alter any relevant safety regulations or license terms. Instead, the Staff s inspection activities verify compliance with the existing license. Therefore, none of the Staff s inspections, meetings with FPL, or reviews of a report required to be submitted by FPL s technical specifications constitute a de facto license amendment. 54 The relevant inspection reports for St. Lucie Plant, Unit No. 2 may be accessed at 55 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), DD-96-19, 44 NRC 283, 286 (1996) (footnote omitted).

22 SACE Does Not Indicate How Staff Inaction Has Effectively Amended FPL s License SACE also argues that the Staff s inaction has effectively amended FPL s license and therefore constitutes a de facto license amendment. For example, SACE claims that the Staff failed to require FPL to change the St. Lucie Plant, Unit No. 2, steam generator design to conform to the technical specifications. 56 SACE also claims that the Staff allowed the plant to operate despite inspection findings suggesting a safety issue. 57 As an initial matter, SACE offers no support for its legal theory that an agency inaction can constitute a de facto license amendment. Rather, under Commission and Federal case law, a de facto license amendment requires an affirmative NRC action such as an approval, 58 a Commission policy change, 59 or a Commission order. 60 SACE points to no Staff decision, no Staff approval, no Commission order or policy change, and no Staff-issued document such as an inspection report or policy statement, wherein the Staff or Commission took an affirmative step effectively changing FPL's license to eliminate an identified violation. 61 Thus, SACE has not indicated how there has been any Staff or Commission action constituting a de facto license amendment. This is not surprising, as there has, in fact, been no Staff or Commission action constituting a de facto amendment of the St. Lucie Plant, Unit No. 2 license. As previously explained in a Staff Affidavit submitted as part of the Staff s answer to SACE s Motion to Stay, 56 See Hearing Request at See id. at 2 (claiming that the Staff allowed FPL to operate after inspection findings that showed a high and increasing rate of damage to [the] steam generator tubes ). 58 See generally CAN. 59 See CAN, 59 F.3d at See Sholly v. NRC, 651 F.2d 780, 791 (D.C. Cir 1980). 61 Likewise, SACE s Motion to Stay pointed to no Staff action or decision relating to restart. See St. Lucie, CLI-14-04, 79 NRC at (slip op. at 4).

23 the past and future routine reviews of the licensee's inservice inspection activities do not amount to ongoing amendment proceedings that change the licensee s license. 62 Instead, the inspections verify compliance with the existing license. 63 Similarly, as explained in the attached affidavit of Kenneth J. Karwoski, the Staff s review of the steam generator inspection reports verify compliance with the existing license. 64 Instead of showing that there has been a de facto license amendment, SACE s Hearing Request indicates that SACE seeks to amend or revoke FPL s license. As the Commission has explained, it cannot revoke a license without instituting an enforcement proceeding. 65 SACE could seek such a proceeding by filing a 10 C.F.R petition. In fact, a 10 C.F.R petition related to the St. Lucie Plant, Unit No. 2 steam generators has been filed by another petitioner. 66 SACE recognizes but rejects this process. 67 However, in doing so, SACE rejects established Commission process FPL s 10 C.F.R Actions Do Not Constitute De Facto or Actual License Amendments SACE also claims that FPL s actions taken pursuant to 10 C.F.R constitute de facto license amendments. For example, SACE asserts that FPL s replacement of the St. Lucie Plant, Unit No. 2 steam generators did not comply with 10 C.F.R and that, therefore, 62 López-Santiago Affidavit at Id. at Karwoski Affidavit at Three Mile Island/Oyster Creek, CLI-85-4, 21 NRC at 562 n See Thomas Saporito Ltr. Re: Florida Power & Light Company (Mar. 12, 2014) (ADAMS Package No. ML14071A025). 67 Hearing Request at 24 (stating that a 10 C.F.R petition would provide SACE with no meaningful recourse ). 68 San Onofre, CLI-12-20, 76 NRC at ( The process provides stakeholders a forum to advance their concerns and to obtain full or partial relief, or written reasons why the requested relief is not warranted. ).

24 FPL is operat[ing] outside the scope or restrictions of its existing license. 69 SACE references the vacated SONGS CAL Board decision for the proposition that this argument suggests a de facto license amendment. 70 In that decision, the SONGS CAL Board stated that 10 C.F.R could be used as guidance in determining what constitutes a de facto license amendment. 71 Once again, SACE s claims demonstrate a fundamental misunderstanding of de facto license amendment case law. As discussed above, the Commission s binding de facto case law provides that only a completed agency action can constitute a de facto licensing action triggering AEA 189a. hearing rights. 72 Specifically, under Perry, the de facto license amendment analysis turns on whether NRC approval of an activity allowed a licensee to operate in any greater capacity than originally prescribed. 73 An action under 10 C.F.R is a licensee action, not an agency action. As a result of its 10 C.F.R evaluation, a licensee could conclude that it must obtain a license amendment pursuant to 10 C.F.R prior to implementing a proposed change, test, or experiment. 74 But the licensee's 10 C.F.R evaluation is not, and cannot, constitute a de facto license amendment because the licensee's evaluation is not an NRC action. 69 Hearing Request at 14. See also, id. at 2 ( Under 10 C.F.R , FPL s drastic alterations to the original and renewed design of the Unit 2 steam generators required a license amendment before FPL could implement them. ). 70 See Hearing Request at San Onofre, LBP-13-07, 77 NRC at (slip op. at 23). 72 See Perry, CLI-96-13, 44 NRC at 327; Seabrook, ALAB-940, 32 NRC at ; CAN, 59 F.3d at Perry, CLI-96-13, 44 NRC at C.F.R (c)(2).

25 SACE s claims also demonstrate a misunderstanding of the criteria in 10 C.F.R These criteria are not relevant to a de facto license amendment inquiry under Perry. 75 The standards in 10 C.F.R (c)(1) and (c)(2) do not apply to NRC approvals or actions. Instead, the 10 C.F.R criteria govern the licensee s determination of whether a proposed change to the UFSAR, which is a component of the facility s licensing basis, 76 requires the licensee first to obtain an amendment under 10 C.F.R Thus, the standards in 10 C.F.R (c)(1) and (c)(2) do not address the question of whether a given agency activity constitutes a change in operating authority that effects a de facto amendment to a license. Further, licensee actions under 10 C.F.R do not effect an actual amendment to a license. Under the Commission s regulations, when a licensee desires to amend its license, it does so under 10 C.F.R , 78 which triggers a license amendment proceeding with associated AEA 189a. hearing rights. In a 10 C.F.R license amendment proceeding, the license is not amended unless and until the Staff approves the request. 79 And while a 75 See contra San Onofre, LBP-13-07, 77 NRC at (slip op. at 23). 76 The UFSAR constitutes part of the licensing basis, with which the licensee must comply when operating the facility. See 10 C.F.R (noting that the current licensing basis is the set of NRC requirements applicable to a specific plant and includes parts of the UFSAR). Although the definition in 10 C.F.R applies to Part 54 license renewal, it reflects the Commission s understanding of the normal requirements governing plant operation outside the license renewal context. Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,949 (Dec. 13, 1991) (final rule) C.F.R (c). Under 10 C.F.R , licensees screen out activities which do not change the analysis in the UFSAR before considering those activities under the standards in 10 C.F.R (c)(1) and (c)(2). NEI 96-07, Nuclear Energy Institute Guidelines for 10 CFR Safety Evaluations, at 29, 30 (25, 26) (July 1996) (ADAMS Accession No. ML ). Consequently, the analysis of an activity under the standards in 10 C.F.R (c)(1) and (c)(2) already presupposes that the activity constitutes a change to the licensee s operating authority as described in the UFSAR. 78 See 10 C.F.R ( Whenever a holder of a license... desires to amend the license... application for an amendment must be filed with the Commission.... ). 79 Thus, contrary to SACE s claim, the Staff s approval of a license amendment request is not a de facto approval or de facto license amendment. See Hearing Request at 21 (claiming that there was a de facto approval associated with the Staff s actual approval of FPL s EPU LAR).

26 licensee can make changes under 10 C.F.R without receiving prior NRC approval under 10 C.F.R , 80 these changes do not amend the license. 81 If a licensee does not properly perform its 10 C.F.R analysis and makes a change requiring prior Commission approval without a license amendment request, the licensee has not amended its license. Instead, the licensee is in violation of the Commission s regulations and thus subject to enforcement action. 82 Thus, SACE does not show that any action taken by FPL under 10 C.F.R constituted a de facto or actual license amendment. Instead, SACE s challenges to FPL s 10 C.F.R activities constitute the type of challenges that the Commission has consistently held can only be made via a 10 C.F.R petition See 10 C.F.R The 10 C.F.R criteria address whether a licensee may make changes to the plant or to the UFSAR without first submitting a license amendment to the NRC. In contrast, de facto license amendments occur when a completed Staff action effectively amends a license, without a license amendment request being submitted. 81 As noted, the standards in 10 C.F.R (c)(1) and (c)(2) provide licensees a regulatory framework for determining whether proposed changes to the UFSAR, which is part of the facility s current licensing basis, require a license amendment prior to implementation. 82 See 10 C.F.R There is no requirement for licensees to individually submit 10 C.F.R analyses to the NRC although they are maintained onsite available for inspection. Additionally, licensees shall update periodically... the [FSAR]... [which] shall include the effects of... all safety analyses and evaluations performed by the... licensee... in support of conclusions that changes did not require a license amendment in accordance with 50.59(c)(2) C.F.R (e). 83 See San Onfore, CLI-12-20, 76 NRC at 439 n.10 (citing Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC at 101 n.7 (1994) ( A member of the public may challenge an action taken under 10 C.F.R only by means of a petition under 10 C.F.R )). See id. at 440, n.13 (referring challenges to 10 C.F.R analyses done in support of a SG replacement to the EDO for consideration as a 10 C.F.R petition).

27 II. SACE s Hearing Request Does Not Meet the Commission s Contention Admissibility Standards Because There Is No Proceeding in Which to Intervene Section 189a. of the AEA provides a hearing opportunity to any person whose interest may be affected by a license amendment proceeding under the AEA. 84 The purpose of AEA 189a. hearings is to allow for meaningful public participation and prompt resolution of issues in controversy in a licensing proceeding. 85 The Commission has helped serve this purpose by establishing standing 86 and contention admissibility requirements 87 which must be met before an AEA 189a. hearing will be granted. 88 Importantly, these standing and contention admissibility requirements presume that a licensing proceeding exists. 89 Indeed, all proffered contentions must be within the scope of the U.S.C Sec. 189.a. does not mandate a hearing on license amendments; rather, a hearing will only be held if a hearing request is submitted and the requestor demonstrates standing and offers at least one admissible contention. City of West Chicago v. NRC, 701 F.2d 632, 639 (7th Cir. 1983). See 10 C.F.R (requestor must demonstrate standing and offer at least one admissible contention before the Commission will grant an AEA 189a. hearing). 85 See Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998) (noting that the opportunity for hearing should be a meaningful one that focuses on genuine issues and real disputes regarding agency actions subject to adjudication. By the same token, however, applicants for a license are also entitled to a prompt resolution of disputes concerning their applications. ) C.F.R (a) (providing that any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing). 87 To be admissible, a contention must satisfy each of the six basic requirements in 10 C.F.R (f)(1)(i)-(vi). Failure to comply with any of these requirements is grounds for finding a contention inadmissible. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI , 60 NRC 631, 636 (2004). 88 The Commission, presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request for hearing and/or petition for leave to intervene, will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of 10 C.F.R (d) and has proposed at least one admissible contention that meets the requirements of 10 C.F.R (f). 10 C.F.R (a). 89 See, e.g., 10 C.F.R (a) ( Any person whose interest may be affected by a proceeding.... ), 10 C.F.R (b)(4) ( In proceedings.... ), 10 C.F.R (d)(1)(ii) ( The nature of the requestor s/petitioner s right under the [AEA] to be made a party to the proceeding.... ), 10 C.F.R (f)(1)(iii) ( Demonstrate that the issue raised in the contention is within the scope of the proceeding.... ), 10 C.F.R (f)(1)(iv) ( Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding.... ).