04-9692. FirstEnergy Nuclear Operating Company; Notice of Issuance of Director's Decision Under 10 CFR 2.206

Notice is hereby given that the Director, Office of Nuclear Reactor Regulation, has issued a Director's Decision with regard to a letter dated August 25, 2003, filed by Greenpeace pursuant to section 2.206 of title 10 of the Code of Federal Regulations (10 CFR) on behalf of the Nuclear Information & Resource Service and the Union of Concerned Scientists (collectively, the Petitioners). The Petitioners requested that the Nuclear Regulatory Commission (NRC) take enforcement actions against FirstEnergy Nuclear Operating Company (FirstEnergy), the licensee for Davis-Besse Nuclear Power Station in Oak Harbor, Ohio, and also requested that NRC suspend the Davis-Besse license and prohibit plant restart until certain conditions have been met. As basis for the request to have the NRC take enforcement actions against the licensee, the Petitioners stated that FirstEnergy has failed to complete commitments related to the NRC's 50.54(f) design basis letter (issued on October 9, 1996), and referred to numerous design basis violations dating back to plant licensing (corresponding to Requests 1 and 2 in the Petitioners' August 25 letter). The Petitioners also requested that the NRC suspend the Davis-Besse license and prohibit plant restart until all design basis deficiencies identified in response to the NRC's 50.54(f) design basis letter are adequately addressed, the plant probabilistic risk assessment (PRA) is updated to reflect design flaws, and no systems are in a “degraded but operable” condition (corresponding to Requests 3, 4, and 5 in the Petitioners' August 25 letter).

In a letter dated October 7, 2003, the NRC informed the Petitioners that the issues in the Petition were accepted for review under 10 CFR 2.206 and had been referred to the Office of Nuclear Reactor Regulation for appropriate action. A copy of the acknowledgment letter is publicly available in the NRC's Agencywide Documents Access and Management System (ADAMS) under Accession No. ML032690314. A copy of the Petition is publicly available in ADAMS under the Accession No. ML032400435.

The Petitioners' representatives met with NRC staff on September 17, 2003, to provide additional details in support of this request. This meeting was transcribed and the transcript is publicly available on the NRC Web site as a supplement to the Petition (http://www.nrc.gov/​ reactors/operating/ops-experience/vessel-head-degradation/controlled-correspondence.html).

The licensee responded to the Petition on October 20, 2003 (ML033421458). This response was considered by the staff in its evaluation of the Petition.

In a letter dated November 26, 2003 (ML033010172), the NRC provided to the Petitioners its evaluation of their “immediate action” requests. The staff considered the Petitioners” requests to suspend the Davis-Besse license and prohibit plant restart until certain conditions have been met to be equivalent to “immediate action” requests because the Davis-Besse licensee might complete all necessary restart activities, and the NRC staff might complete all necessary oversight activities, before the staff could finalize the Director's Decision on this Petition. Requests 3, 4, and 5 in the Petitioners' August 25 letter were considered immediate action requests, and the staff's November 26 evaluation is repeated in Section II.D of the Director's Decision for completeness.

The NRC sent a copy of the proposed Director's Decision to the Petitioners and to the licensee for comment on February 5, 2004 (ML040280003). Neither the Petitioners nor the licensee provided comments on the proposed Director's Decision.

The Director of the Office of Nuclear Reactor Regulation has determined that the Petitioners' first request for enforcement based solely on failure of the licensee to complete commitments represents a misinterpretation of the agency's enforcement policies regarding commitments and therefore is denied. The Director of the Office of Nuclear Reactor Regulation has also determined that the Petitioners' second request for enforcement based on numerous design basis violations is in effect being granted by the actions already taken by the staff. The reasons for these decisions are explained in Director's Decision DD-04-01, the complete text of which is available in ADAMS, or is available for inspection at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records are accessible from the ADAMS Public Electronic Reading Room on the NRC Web site, http://www.nrc.gov/​reading-rm/​adams.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR reference staff at 1-800-397-4209 or 301-415-4737, or by e-mail to [e-mail].

A copy of the Director's Decision will be filed with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206 of the Commission's regulations. As provided for by this regulation, the Director's Decision will constitute the final action of the Commission 25 days after the date of the decision, unless the Commission, on its own motion, institutes a review of the Director's Decision in that time.

Dated in Rockville, Maryland, this 22nd day of April, 2004.

For the Nuclear Regulatory Commission.

J.E. Dyer,

Director, Office of Nuclear Reactor Regulation.