The Nuclear Regulatory Commission apparently is not going to give U.S. District Court Judge David Katz a straight answer about a controversial 661-page report prepared by two FirstEnergy Corp. consultants.
The report could be used to absolve the utility of liability for the near-rupture of Davis-Besse's old reactor head in 2002 and help the company process a $200 million insurance claim.
The report, prepared by Exponent Failure Analysis Association of Menlo, Calif., and Altran Solutions Corp. of Boston, has huge legal implications for the government's case against two former Davis-Besse workers and a former contractor who have been indicted on charges of misleading the NRC about the plant's condition in the fall of 2001, according to defense attorneys.
Judge Katz, who is presiding over that case in Toledo, told U.S. Department of Justice attorneys in open court on April 20 he needs to know if the report is "junk science" before proceeding because it contradicts government research that had been presented earlier. He gave Justice Department attorneys a directive to get an assessment from the NRC - the agency that regulates the nuclear industry - within two weeks.
Last night, a spokesman for the NRC's regional office near Chicago e-mailed The Blade a copy of a letter sent earlier yesterday from Lisa B. Clark, NRC senior litigation attorney, to Richard Poole, one of three Justice Department attorneys who appeared in court before Judge Katz. Mr. Poole is a senior trial attorney for the Justice Department's environment and natural resources division.
The letter recapped some actions the NRC took after getting the FirstEnergy consultants' report March 20. But there was no mention of whether the agency found the report credible.
And Viktoria Mitlyng, the agency spokesman who e-mailed the correspondence to The Blade, said there would be no such assessment.
The regulator intends to assess nothing other than potential safety implications for 68 of the nation's 102 other nuclear plants that have Besse-like pressurized reactors. It has concluded its inspection program is adequate and that there are no widespread implications for the industry, Ms. Mitlyng said.
Its lone assessment to date "does not evaluate whether the assumptions, logic, analysis, and conclusions of the Exponent report are correct," Ms. Clark's letter stated.
"If the judge does not accept it, then I don't know how the situation will unfold," Ms. Mitlyng said. "It's not a matter of tap-dancing. It's a matter of [FirstEnergy's consultants] going back and looking at something with a different set of assumptions."
FirstEnergy's consultants claimed in their report the thinning of Davis-Besse's old reactor head was a fluke, primarily the result of accelerated deterioration during the last three weeks before the plant was shut down for two years on Feb. 16, 2002.
The NRC itself has said in the past that the football-sized cavity in the reactor head occurred over several years as a result of known acid leaks that had been tolerated and were assumed not to be melting the head's metal.
Ms. Mitlyng also revealed last night that a separate, yet related 90-page report FirstEnergy turned over to its insurance carrier, Nuclear Electric Insurance Limited, was not given to the government. She said the NRC expects to get that report soon. It details efforts the utility and the agency made to manage Davis-Besse's acid leaks in the past, she said.
The agency also yesterday released FirstEnergy's own review of what its consultants had concluded. Todd Schneider, company spokesman, has said the utility stands behind the consultants' findings. But FirstEnergy said in its letter to the NRC it found no reason to redo the company's root-cause report it had filed with the government in 2002, weeks after the cavity was discovered.
- TOM HENRY
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