ML110680416
| ML110680416 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 03/01/2011 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-738, RAS AAA-1 | |
| Download: ML110680416 (241) | |
Text
As -- I Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
FirstEnergy. Nuclear Operating Company Davis-Besse Nuclear Power-Station Docket Number: 50-346-LR DOCKETED ASLBP Number: 11-907-01-LR-BDO1 March 1, 2011 (8:59 a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Location: Port Clinton, Ohio Date: Tuesday, March 1,2011 PagO eS,:23 Work Order No.: NRC-738 P age.. 1-2 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue,:N.W.
Washington, D.C. 20005
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1 1 UNITED STATES OF AMERICA U.S. NUCLEAR REGULATORY COMMISSION 3
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5
6 7 In the Matter of:. Docket No.
8 FIRSTENERGY NUCLEAR: 50-346-LR 9 OPERATING COMPANY ASLBP No.
10 (Davis-Besse 11-907-01-LR-BDO1 Nuclear Power 12 Station, Unit 1 13
- 14 Tuesday, 15 March 1, 2011 16 17 Ottawa County Courthouse 18 Common Pleas Court, Room 1 19 315 Madison Street 20 Port Clinton, Ohio 21 BEFORE:
22 WILLIAM J. FROEHLICH, Chairman 23 NICHOLAS G. TRIKOUROS, Administrative Judge 24 WILLIAM E. KASTENBERG, Administrative Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE-ISLAD AVE., N.W.
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2 1 APPEARANCES:
2 On Behalf of the U.S. Nuclear Regulatory 3 Commission:
4 BRIAN G. HARRIS, ESQ.
5 EMILY MONTEITH, ESQ.
6 U.S. Nuclear Regulatory Commission 7 Office of General Counsel 8 Mail Stop 15 D21 9 Washington, D.C. 20555 10 (301) 415-1392 11 FAX 415-3725 12 Brian.Harris@nrc.gov 13 14 On Behalf of the Applicant FirstEnergy Nuclear 15 Operating Company:
16 ALEX S. POLONSKY, ESQ.
17 KATHRYN M. SUTTON, ESQ.
18 of: Morgan, Lewis & Bockius LLP 19 1111 Pennsylvania Avenue, N.W.
20 Washington, D.C. 20004 21 (202.) 739-5830 (Polonsky) 22 (202) 739-5738 (Sutton) 23 FAX 739-3001 24 apolonsky@morganlewis com 25 ksutton@morganlewis.com NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 MARTIN J. O'NEILL, ESQ.
2 of: Morgan, Lewis & Bockius LLP 3 1000 Louisiana Street, Suite 4200 4 Houston, Texas 77002 5 (71.3) 890-5710 6 FAX 890-5001 7 martin.oneill@morganlewis.com 8
9 DAVID W. JENKINS, ESQ.
10 Senior Attorney 11 FirstEnergy 12 76 South Main Street 13 Akron, Ohio 44308 14 (330) 384-5037 15 FAX 384-3875 16 djenkins@firstenergycorp.com 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 1 On Behalf of the Petitioners Beyond Nuclear,
- 2 Citizens Environmental Alliance of Southwestern 3 Ontario, Don't Waste Michigan and the Green Party of 4 Ohio:
5 TERRY LODGE, ESQ.
6 316 West Michigan Street, Suite 520 7 Toledo, Ohio 43604-5627 8 (419) 255-7552 9 FAX 255-8582 10 tjlodge5o@yahoo.com i 11 12 KEVIN KAMPS, ESQ.
13 Beyond Nuclear 14 6930 Carroll Avenue, Suite 400 15 Takoma Park, Maryland 20912 16 (301) :270-2209xi 17 kevin@beyondnuclear.org 18 19 20 21 22 23 24 25
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5 1 TABLE OF CONTENTS Opening Statement of the Petitioners ............ .16
- 3 Opening Statement of FirstEnergy .... ........... .21 4 Opening Statement of the NRC .................. ... 27 5 Discussion of Appendix Issues . . .. .... ....... .32 6 Discussion of Contentions . ..................... 53 7
8 9
10 11 12 13
- 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COORT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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6 1 P-R-O-C-E-E-D-I-N-G-S 2 (8:59 a.m.)
- 3. CHAIRMAN FROEHLICH: Today is Tuesday, 4 March 1st, 9 a.m. Central Time, and we're in the 5 Ottawa Common Pleas Court in Port Clinton, Ohio.
6 Today's pre-hearing conference concerns FirstEnergy 7 Nuclear Operating Company application and Docket 8 Number 50-346-LRA to renew its facility operating 9 license for the Davis-Besse Power Station Unit 1 for 10 an additional 20 years from its current expiration 11 date of April 22nd, 2017.
12 The joint petitioners have petitioned to 13 intervene in this renewal proceeding. The Davis-Besse 14 site is located here in Ottawa County about 10 miles 15 northeast of the courthouse.
16 Today's proceeding was publically noticed 17 by Board order on February 1st, 2011. The order 18 contains an appendix which laid out, in general terms, 19 what we will be discussing today and the types of 20 questions we would like answered in oral argument.
21 My name is William Froehlich, and I'm 22 Chairman of the Atomic Safety and Licensing Board. To
- 23. my left is Judge Nicholas Trikouros. Judge Trikouros 24 has been a full-time member of this panel since 2006.
25 He holds a BS from Fordham University, a Masters from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 1 NYU, an advanced engineering degree from the 2 Polytechnic Institute affiliated with NYU, and has 3 over 30 years experience in the nuclear industry, 4 including serving as an adjunct professor at Rutgers 5 University where he taught at the graduate level.
6, To my right is Judge William Kastenberg.
7 Judge Kastenberg holds a BS and MS in engineering from 8 UCLA and has a Ph.D. in nuclear engineering from the 9 University of California at Berkeley. For over 40 10 years, Dr. Kastenberg was a professor in the 11 University of California system. He retired as the 12 Daniel M. Tellep Distinguished Professor of 13 Engineering. He has published numerous journals and 14 articles on nuclear safety and risk analysis.
15 As I mentioned earlier, my name is William 16 Froehlich. I'm a lawyer by training. I've had 35 17 years federal administrative and regulatory law 18 experience. Because I'm a lawyer and one of the 19 judges here, I serve as Chairman of this board for 20 procedural issues.
21 I'd also like to introduce a few other 22 people from the Atomic Safety and Licensing Board 23 panel. Our law clerk is over there, an attorney, Ms.
24 Hillary Cain., We also have an administrative and 25 logistical support member with us, Ms. Patricia NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 Harich.
9 2 I'd also like to thank at this point the 3 Ottawa County Common Pleas Court for allowing us to 4 use their facilities, especially Nancy Chaney, James 5 Van Etern, Jerry Witt, Deputy Sheriff Lekowski and his 6 men, and Judge Winters who allowed us to use this 7 courtroom.
8 Our court reporter today is Toby Walker.
9 There will be an electronic transcript made of this 10 entire proceeding, and copies of this transcript will 11 be made available to the public. It will be posted on 12 the NRC website in about a week.
13 Also, I would just mention that the media 14 and public are welcome. There's a member here from 15 the NRC Office-of Public Affairs, Ms. Victoria Lynne.
16 And feel free to contact her if* you have any questions 17 about the proceeding or anything that you hear during 18 the course of the day.
19 At this point, I'd like the parties to 20 introduce themselves. I'd like for the lead 21 representative to introduce yourself, state the name 22 of your client, and any counsel who may be 23 participating with you in oral argument today. Could 24 we start with the applicant?
25 MR. POLONSKY: Good morning, your Honor.
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.9 1 Alex Polonsky at Morgan, Lewis & Bockius. To my far 2 left, for FirstEnergy and from FirstEnergy, is David 3 Jenkins. To my immediate left from Morgan Lewis is 4 Kathryn Sutton, and to my immediate right is Martin 5 O'Neill. And we, together,. are counsel for 6 FirstEnergy, the applicant.
7 CHAIRMAN FROEHLICH: Thank you. And for 8 the petitioner?
9 MR. LODGE: Thank you. Good morning, your 10 Honor. I'm Terry Lodge. I'm an attorney, and I 11 practice in Toledo, 'Ohio in civil practice. To my 12 right is Kevin Kamps who will introduce himself.
13 MR. KAMPS: My name is Kevin Kamps from 14 Beyond Nuclear.
15 MR. LODGE: And I'm sorry, your Honor, I 16 didn't mention I'm entering an appearance and 17 representing the Citizens Environmental Alliance of 18 Southwestern Ontario, Don't Waste Michigan, and the 19 Green Party of Ohio. And with us today we have Anita 20 Rios who is the President of the Green Party of Ohio, 21 Dr. Alvin Campana who is an expert witness. I 22 understand the rules about testimony today, but from 23 time to time we may need to talk with him and Michael 24 Keegan from Don't Waste Michigan.
25 CHAIRMAN FROEHLICH: Thank you, Mr. Lodge.
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10 1 And for the NRC staff?
2 MR. HARRIS: I'm Brian Harris from the 3 NRC. I represent the NRC staff. With me today is 4 Emily Monteith, my co-counsel who will be arguing some 5 of the contentions. Also with me today is Drew 6 Stuyvenberg from the Division of License Renewal, 7 project manager in the Division of License Renewal; 8 Paula Cooper is the environmental PM for Davis-Besse's 9 license renewal application; and John Berlio who is 10 from the Division of Risk Assessment.
11 CHAIRMAN FROEHLICH: Okay, thank you.
12 Just a few words of housekeeping and a little bit of 13, introductory material before we start. Please, if 14 anyone still has their cell phone on turn them to 15 vibrate; depending on the brand. If you have any 16 conversations or need to have a conversation, please 17 take it out of the courtroom during our proceedings 18 down in the hall, please.
19 As I mentioned earlier, members of the 20 public are free to observe the proceedings today and 21 ailINRC's proceedings, but only the counsel for the 22 parties or their representatives will be allowed to 23 speak. Because it is based on the pleadings that have 24 been filed in this case already.that the Board has its 25 questions.
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ii 1 For the benefit of the public and maybe 2 any media who is here, I thought it might be useful 3 just to explain the rules of this Atomic Safety and
ý4 Licensing Board, a very, very brief history of the 5 proceeding, and the purpose of our argument today. In.
6 essence, under the Atomic Energy Act, a law passed by 7 Congress, we created the Nuclear Regulatory 8 Commission. There are five commissioners on the NRC.
9 They're appointed by the President and confirmed by 10 the Senate. The Commission has a large regulatory 11 staff, several thousand professionals, working for 12 them, and they're represented at the table here by NRC 13 staff counsel.
14 The Board, the three of us, are a separate 15 entity, entirely separate from the staff and the 16 commissioners. They're judges that are appointed to 17 hear these types of cases, basically appointed for 18 life. We're not part of the regulatory staff, and 19 we're not part of the commissioners. Our 20 responsibility is solely to hear. the cases that are 21 brought before us by litigants and decide the 22 questions and rule on the legal and factual issues 23 contained in them. The only communications we receive 24 about this case is what's in front of us, what's been 25 filed by the parties, and what's in the record of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 case. We don't sit and talk, with staff and staff 2 counsel. We don't talk with the commissioners about 3 the proceeding. That's entirely prohibited. Further, 4 we don't talk with any of the parties, the 5 commissioners, the applicants, anyone else. Our 6 decision-has to be based solely on what's contained in 7 the record of these proceedings.
8 The Commission is an appellate body and, 9 as such, they can overrule our decision. Likewise, 10 the decision of the Commission is usually appealable 11 to the federal courts. The main point, I guess, for 12 the public to understand is that when we talk about 13 the NRC we're really-talking about at least three 14 different entities: Commission staff, the 15 commissioners themselves, and this licensing board.
16 So that's a little background of who we 17 are and what we do. Let's go to the proceeding and 18 what we're going to do today.
19 On or about the 27th of January, the joint 20 petitioners filed four contentions challenging 21 FirstEnergy's compliance with the National 22 Environmental Policy Act (NEPA), *and the Nuclear 23 Regulatory Commission's regulations that implement 24 NEPA. The first three contentions challenge 25 FirstEnergy's treatment of energy alternatives in its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 environmental statement related to wind and solar 2 power, while the fourth contention challenges 3 FirstEnergy's analysis of severe accident mitigation 4 alternatives that we refer to as SAMAs during today's 5 proceeding.
6 To be granted a hearing in a license 7 renewal proceeding,, the joint petitioners must 8 demonstrate they have standing and submit at least one 9 admissible contention, and the joint petitioners bear 10 this burden going forward. The Board will decide 11 whether the request for hearing should be granted. We 12 will decidewhether or not the joint petitioners, one e
13 or all four, have standing and whether they filed 14 what's known as an admissible contention.
15 The NRC has a regulation, which we are 16 bound to. apply. It's found at 10 CFR, the Code of 17 Federal Regulations, at 2.309(f) (1). And that 18 provision, 309(f) (1) has six elements listed in there.
19 We're going to go through each contention, hold it up 20 against the standards that are spelled out in the 21 regulations. Those regulations provide things like 22 petitioners have to provide a specific statement of 23 law or fact to be raised or controverted. Another 24 requirement is the contention to provide a brief 25 explanation of the basis for that contention. They NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 have to show that the contention is within the scope 2 of the proceeding and it's material to the conclusions 3 or decisions that the Agency must make.
4 Finally, the petitioner must provide, a 5 concise statement of alleged facts or expert, opinions.
6 which support their position on the issue and on which 7 the petitioner intends to rely at hearing, together 8 with references to specific sources or documents on 9 which the petitioner intends to, 'rely on that 10 particular issue. The petitioners has to show that 11 there's a general issue and that a genuine dispute 12 exists with the applicant on a material issue of law 13 or fact. This information must be include references 14 to specific portions of the application, including the 15 environmental report, and that the petitioner disputes 16 and has supporting reason for each dispute; or if the 17 petitioner believes that the application fails to 18 contain information that's required by the regulation, 19 he' has to identify the failure and.'the supporting 20 reasons for that belief.
21 So today we'll be talking and probing the 22 joint petitioners about each of their contentions, 23 trying to figure out whether they meet these 24 regulatory requirements. If they meet the six 25 requirements, we will rule that that contention is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 admissible.:. And if they don't, we're obliged to rule 2 that contention is not admissible.
3 After we hear oral argument today,, we'll 4 go back to Rockville. We'll issue a written decision.
5 We won't be able to issue a decision from the bench 6 today. I have a feeling the issues are going.to be 7 just too complicated and we'll have good arguments, 8 I'm sure, on both sides. And we intend to get our 9 decision out within the next 45 days or so.
10 At this point, I'd like to ask my two 11 colleagues if there's anything'that they'd like to add 12 before we begin,.
13 JUDGE KASTENBERG: I think you said it 14 all.
15 CHAIRMAN FROEHLICH: Judge Trikouros?
16 JUDGE TRIKOUROS:.. No, thank you.
17 Actually, I would like to say one thing. Thank you to 18 Judge Winters for allowing us to utilize this 19 courtroom.
20 . CHAIRMAN FROEHLICH: 'Okay. As stated in 21 the Board's notice scheduling oral argument, today's 22 argument will begin with an opening statement of ten 23 minutes in length from each party. The petitioners i 24 will go first, followed by the applicant, and then the 25 NRC staff Each one will get ten minutes to give an NEAL R. GROSS
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16 1 uninterrupted opening statement to us. We'll then 2 turn to reviewing the questions of timeliness, 3 standing, and the admissibility of the four individual 4 contentions that have been filed. After we've asked 5 all our questions probably sometime this afternoon and 6 heard oral argument from all the parties, each-party 7 will get five minutes for a closing statement.
8 So we're ready to begin opening statement 9 from the petitioners. Mr. Kamps? Mr. Lodge?
10 MR. LODGE: It will be. Mr. Lodge for 11 starters, your Honor.
12 CHAIRMAN FROEHLICH: Okay.
13 MR. LODGE: I intend to divide time with 14 Mr. Kamps. I'm going to try, and being a lawyer I 15 think you probably understand the difficulty sometimes 16 of containing one's remarks, but I'm going to actually 17 try to stick to a five-minute limit, probably four and 18 a half by now.
19 Thank you. May it please the panel, 20 opposing counsel; and members of the public. Many 21 years. ago, Daniel Patrick Moynihan observed that 22 you're entitled to your own opinion but not to your 23 own facts. Thirty-five years ago when I started 24 working against commercial nuclear power, we were told 25 repeatedly, often patronizingly, as public interveners NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 that things like wind and photovoltaic solar and other 2 alternatives were nice ideas, they were ideas with 3 maybe some promise, but they were way over the 4 horizon. I'm here to talk about the first three 5 contentions filed by the joint petitioners, that being, 6 the commercial wind contention, the commercial 7 photovoltaic solar, and a combination of the two, all 8 of those with the intention of seriously arguing that 9 the horizon is upon us. Indeed, we are crossing the 10 horizon of the intense and growing commercial 11 feasibility of alternative sources of energy. We are 12 here today to talk about the implications of the 13 commercial viability of alternatives and how those 14 implications must be addressed in the grand plan for 15 the re-licensure of Davis-Besse.
16 During the 35 years since I began working
- 17 against nuclear power, Davis-Besse and I have grown a V 18 lot older. I'm not going to spend a lot of time on 19 either me or the plant with respect to that, but I 20 would like to point out that we believe that this 21 panel is at an unusual stage in NRC history because of 22 the fact that it is now going to be proven to you,. at 23 least on a facial level, that both the environmental 24 report proffered by the utility as well as, 25 ultimately, the draft of the environmental impact NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 statement have to address in a very comprehensive 2 overview and detailed fashion the viability or 3 potential viability of alternatives to extending the 4 operational life of Davis-Besse from 2017 to 2037.
5 I've also learned in a number of decades 6 practicing law that when the law is good you argue the 7 'law, when the facts are good you argue the facts, and 8 my codicil to all of that is that when neither are 9 very good you scatter procedural objections around the 10 courtroom. We're going to be talking about very 11 serious substantive issues today, but, first, of 12 course we're going to have to deal with whether or not 13 .. our Canadian interveners can properly intervene 14 because they. ostensibly live 300 feet outside of a 50-15 mile radius, an absolutely ridiculous objection.
16 We're going to deal with whether or not Don't Waste 17 Michigan has a germane set of articles* of 18 incorporation that ýwould allow them, as an 19 organization, to intervene on behalf of, people from 20 .Michigan who can see Davis-Besse from substantial 21 portions of the southeastern corner of the state of 22 Michigan because I can see their nuclear power plant 23 as I stand near Davis-Besse.
24 We're going to talk about, in short, a lot 25 of procedural niceties, which are nothing but that.
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19 1 One thing that's undisputed is, the Green Party ,of 2 Ohio, no one disputes their standing organizationally 3 to be. present at this proceeding. So we have 4 standing. We have a right, the public certainly 5 inherently has a right, but we have a right' as, 6' interveners to be here and make these arguments.
7 I trust and'hope that the panel will give 8 -- the other issue is timeliness. We will, of, course, 9 have to delve into the timeliness of the filing of the 10 petition on December 27th, 28th', 2010. That, too, is 11 a matter that should not occupy more than a few 12 moments of. the Board's time I anticipate.
13 In any event, your Honor, I"m going to now 14 defer to Mr. Kamps, having, maybe used six'minutes.
15 Thank'you.
16 MR. KAMPS: Your Honors, it's Kevin .Kamps 17 from Beyond Nuclear. And just to introduce, I would 18 like to say what an honor it is to represent Phyllis 19 Oster as 'our member and supporter in this local area.
.20 She opposed the constr~uction and the 'operation of 21 *Davis'-Be'sse before'it was even built. The interveners 22 back then, in the mid 1970s, early 1970s, raised 23 issues of the safety risk of this facility, and that
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20 1 accident mitigation alternatives analyses.
2 And Phyllis and her colleagues back in the 3 1970s were correct. Davis-Besse has had a number of 4 close calls over the years, the first of which was the 5 Three Mile Island precursor incident of 1977; in 1985, 6 a steam generator dry down which left the reactor coil 7 without cooling for 12 minutes; a direct hit by a 8 tornado in 1998 with defective and dysfunctional 9 emergency diesel generators; and then, most infamous 10 of all, the 2002 hole in the head fiasco.
11 So these are not theoretical or abstract 12, or academic discussions, and that is why we chose to 13 challenge the SAMA analyses in the environmental 14 report. We think we have solid grounds on a number of 15 those contentions. Just as one example, the Great 16 Lakes sea breeze effect is not dealt with adequately 17 in the environmental report, and that could 18 significantly contribute to radiation doses received 19 by members of the public downwind of a severe accident 2120 and radioactivity release at Davis-Besse. And if that 21 sea breeze effect is dealt with adequately, it would 22 make a number of the SAMAs that were analyzed cost 23 beneficial. And, again, I emphasize that the cost of 24 a radioactivity release from Davis-Besse is 25 unimaginable and needs to be prevented in the first NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 place, and that's why we're so adamant about arguing 2 the devil in the details on the SAMA analyses in the 3 environmental report. Thank you.
4 MR. POLONSKY: Good morning, your Honors.
5 Thank you. Petitioners bear the burden at this stage 6 of the proceeding' to demonstrate that their 7 contentions are admissible. Petitioners seemed 8 convince that the legal standard that applies to those 9 contentions is one of notice pleading, such that they 10 do not need to articulate all of their bases. They 11 also seem convinced that the Board must take all of 12 the petitioners' facts pleaded as true. That is most 13 certainly not the legal standard.. NRC regulations, 14 which.petitioners' counsel calls procedural niceties, 15 require that a petitioner at the admissibility stage 16 identify the contention and its bases. A petitioner 17 cannot add bases even in its reply, as petitioners 18 have found out, let alone later in the proceeding. So 19 notice pleading is not the standard, nor can a board
.20 take all the facts pleaded as' true. If a'petitioner 21 'signs to a document for support, the Board is tasked 22 at this admissibility stage to examine the document 23 when the applicant and the staff challenge the cited 24 support. As another board phrased it, the board must 25 examine documents for what they do and do not say.
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22 1 This feeds into the cornerstone of the NRC's 2 admissibility standards and do.not, in any way, go to 3 the merits. And those standards are that only 4 adequately-supported contentions that raise a genuine 5 dispute of. material fact" or law will- be admitted.
6 Petitioners would have this board rewrite the 7 admissibility standards to require only support; 8 regardless of its quality, and the identification of 9 a dispute, regardless. of whether it is genuine or 10 material. The Board cannot allow this.
11 'Petitioner strategy fully explains, 12 however, why their petition and reply are legally 13 deficient. When you believe that the legal-standard 14 is only to put forward support and raise a dispute, 15 you have no need to demonstrate that your support is 16 adequate or that your dispute is genuine or material.
17 So petitioners raised three energy 18 alternative contentions that are supported by 19 documents showing progress in wind and solar 20 development in other countries or plans to build wind 21 and solar or energy storage projects in the United 22 States but which will not come online with significant 23 capacity until years after Davis-Besse will have 24 received its renewed operating license and which would 25 not even then equal base load energy generation.
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23 1 For example, the petitioners state that 2 FirstEnergy's ER must acknowledge the, quote, 3 dramatically changing circumstances and the regional 4 energy mix that are currently underway and -can 5 especially be expected to accelerate and materialize
.6 over two decades, that is between 2017 and 2037.
7 Considering energy alternatives that would not mature 8 until after 2017 is not a reasonable alternative under 9 NEPA because it in no way. meets the definition of the 10 proposed action..
11 NEPA is not a statute to promote academic 12 think tank type work. It is a statute that's intended 13 to drive reasonable examinations of alternatives.
14 It's governed by a rule of reason. Davis-Besse is a 15 908-megawatt electric base load electric generating 16 station. This is not a proceeding to build a new 17 plant somewhere in FirstEnergy service territory but 18 rather to renew the license of an existing plant here 19 in Ohio. And the NRC is performing its NEPA 20 evaluation now and over the next year. If an energy 21 alternative is not available either geographically or 22 temporally, then it is not reasonable and need not be 23 considered under NEPA.
24 So while petitioners have provided support 25 and articulated a dispute that gigawatts of wind or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 solar power might be available a decade from now, 2 well, that's just not adequate support and does not 3 raise 'a genuine dispute of material fact or law.
4 Similarly, petitioners raise six SAMA contentions.
5 The SAMA analysis is not a safety analysis driven by 6 the Atomic Energy Act. SAMA analysis is.not used to 7 support evacuation planning or emergency preparedness 8 which, in any event, are outside the scope of this 9 proceeding under Commission precedent. Rather, SAMA 10 analysis is a site-specific environmental mitigation 11 alternatives analysis required by NEPA. It involves 12 probabilistic risk assessments which examine a 13 spectrum of hypothetical accident.scenarios for beyond 0
- 14 design basis events, highly unlikely scenarios, using 15 mean values of population dose risk and offsite 16 economic costs. Petitioners stridently ignore 17 Commission precedent when they argue that SAMAs must 18 address spent fuel. accidents or must consider acts of 19 terrorism or the societal or economic impacts of 20 license renewal or that the MACC2 code is out of date 21 or that NEPA requires the use of 95th percentile 22 values.
23 They also rely on exhibits that the
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25 1 restoration study. And although they say that certain 2 documents support their contentions,- a review of those 3 documents, such as NtJREG 1465 and NUREG 1150, reveal 4 that they contain generic information that does not 5 remotely call into question the site specific 6 information used in a SAMA analysis, indeed required 7 under a SAMA analysis, as set forth in the 8 environmental report. It is as if petitioners did not 9 read their own exhibits or don't understand them. And 10 although the area of site-specific SAMA analysis is 11 technically complex, arguably at the apex of technical 12 complexity, and inputs to the analysis do not 13 necessarily result in linear outputs, petitioners' six 14 SAMA contentions come with no expert support.
15 Accordingly, petitioners simply and 16 literally acknowledge the cut-and-paste arguments from 17 the Pilgrim and Seabrook proceedings without, 18 apparently, independently verifying that the 19 information is correct or even relevant for a plant in 20 Ohio. This leads to allegations, for example, that 21 the Gaussian plume model can't be used at Davis-Besse 22 because it doesn't take into account terrain effects.
23 Well, even if that were true and even if it's true 24 that the terrain is undulating near Pilgrim and the 25 Seabrook plant, I think if you drove in here you'll NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND, AVE., N.W.
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26 1 see that that is certainly not the case for Davis-2 Besse.
3 Once again, petitioners will argue that 4 they have provided support for their contention and 5 raised a dispute. But their support is not adequate, 6 and their dispute is not genuine. As the Commission.
7 stated in the Turkey Point proceeding in CLI 01-17, 8 quote, the NRC toughened its! contention pleading 9 standard in 1989 to avoid the admission of contentions 10 based on little more than speculation. Prior to the 11 amended rule it was possible for interveners to be 12 admitted to a hearing after merely~copying contentions 13 from another proceeding involving another reactor.
14 Hearings should serve the purpose for which they are 15 intended, the Commission continued, to adjudicate 16 gehuine substantiative safety and environmental issues 17 placed in contention by qualified interveners.
18 So where does that leave us? Because of 19 petitioners' cut-and-paste job and lack of expert 20 support for SAMA analyses, it is even more incumbent 21 on this board to review petitioners' supporting 22 documents for what they do and do not say. The Board 23 also should make more discerning judgments about the 24 accuracy and applicability of the arguments that were 25 cut and pasted 'from other proceedings to determine NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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27 1 whether they truly even apply to Davis-Besse because, 2 although they may have articulated support and a 3 dispute, it is not adequate support and it doesn't 4 raise a genuine dispute of material fact or law.
5 Thank you very much.
6 CHAIRMAN FROEHLICH: Mr. Harris?
7 MR. HARRIS: Thank you, your Honor.
8 Again, I'm Mr. Harris, and I represent the NRC staff.
9 And before. I outline the NRC staff's positions on 10 these contentions, I wanted to put a little 11 perspective on the license renewal process for the NRC 12 because, though we're here for, this administrative 13 proceeding, some of what the staff does is lost in 14 this sort of small litigation step.
15 The Commission, when they issued the 16 regulations governing license renewal, they issued 17 those regulations based on sort of two key findings, 18 and those two key findings was, that, absent aging-19 related degradation effects, that the current 20 regulations were sufficient to guarantee the safe 21 operation of reactor plants. As a corollary to that, 22 they also determined that, should the regulations be 23 modified to address these aging-related effects in the 24 license renewal process to account for these,
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28 1 will continue to be operated during the period of 2 extended operation, that period of 40 to 60 years, in 3 a safe manner.
4 Now, as an aside to that, they also 5 realized that during the license renewal process we 6 may come across current operating issues that'could 7 affect the safe operation, and they .issued 54.30, the 8 obligation of the applicant to fix these current 9 operating issues and that these issues would always be 10 outside the scope of license renewal. They'need to be 11 addressed now and not, withheld until later' in the
- 12 period of extended operation.
13 As an independent assessment and for what 14 we're really discussing here, the NRC's obligation 15 under National Environmental Policy Act, the 16 Commission has chosen to address the environmental 17 impact-s in a two-step process.. In 1996, they issued 18 the Generic Environmental Impact Statement, and in 19 that Generic Environmental Impact Statement they made, 20 you know, again, sort of two key findings: that 21 certain issues. could be addressed generically for all 22 plants or for all plants of a particular nature, for 23 example pressurized water reactors or boiling water
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29 1 Category 1 findings are not subject to challenge here 9 2 in this proceeding, absent a waiver from the 3 Commission. In addition to that, they also found that 4 certain issues would need to be resolved under a site-5 specific basis for each plant and that couldn't be 6 resolved generically, and these issues became the 7 Category 2 findings that are in the Generic 8 Environmental Impact Statement. These findings have 9 been incorporated into the regulations by rule and, 10 therefore, are not subject to challenge in this 11 particular proceeding, except to the extent thatthose 12 category 2 findings apply to the site-specific input 13 that's been put in.
- 14 Now, we have actually heard a lot of both 15 sides of the issue here. I want to highlight a couple 16 of key points. Each intervener must establish its 17 standing, and it's their- obligation to prove that 18 they're entitled to standing. For standing, there are 19 two ways that a petitioner can go about establishing 20 standing under the current precedent. Currently, they 21 can be entitled to a proximity presumption. That 22 proximity presumption has been, historically and 23 consistently interpreted to apply to a petitioner who 24 is located within 50-.miles. If you're outside'50.
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30 1 standing is that you need to provide an injury impact.
2 Even with what was recently identified by petitioners 3 in Calvert Cliffs were the Commission had talked about 4 approximately 50 miles. The Commission in that 5 particular case also sided with the Board's approval 6 that -- let me correct that. The Commission sited the 7 Board's discussion of the proximity presumption with 8 approval that it was always going to be within .50 9 miles. And so in this case, petitioners have just 10 failed to plead the appropriate standard for standing 11 to establish for Citizens Environmental Alliance.
12 For the environmental contentions, 13 contentions one through three, which are all 14 alternative type analysis, is that it's incumbent upon 15 the alternatives to be a reasonable alternative to 16 provide for the purpose of this license renewal. And 17 the purpose of this license renewal is to provide a, 18 approximately, 910 megawatts electric, of base load 19 power. When you look closely at the exhibits that 20 have been presented and the basis that have been 21 advanced in that analysis is, for solar power, none of 22 those exhibits show that solar photoelectric is 23 capable of providing base load power. In fact, all 24 the exhibits point to it being able to provide peaking 25 power, you know, to account for the increased load NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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31 i that you would experience during the summer months.
2 For wind power, again, it needs to provide 3 910 megawatts electric of base load power. That base 4 load power needs to be available at-- the time of 5 license renewal, that is 2017. If you examine closely 6 again, all the exhibits that have been advanced by 7 petitioners in this case, it points to providing wind 8 power after 2020 to 2030 to have this kind of 9 capability in place. So these would not be reasonable 10 alternatives to provide for the re-licensing of Davis-11 Besse in 2017.
12 And then, finally, I want to address the 13 SAMA analysis, and I just want to highlight some of 14 the examinations that we'll need to do as we continue 15 along this. The SAMA analysis is very complex. Just 16 because I change an input in'this point or slice that 17 a particular way that we're doing a model doesn't 18 result in linear changes in the output of what we're 19 trying to analyze. We're looking at expected values 20 of outcomes to make economic decisions about What 21 would be a cost beneficial mitigation measure in this 22 particular instance.
23 For example, just because I assert that 24 something is true doesn't necessarily mean it's true.
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32, 1 advanced, and you've seen this in Seabrook and in 2 previous proceedings this same sort of statement that 3 if we use a different atmospheric transport model we 4 would' expect to have both. increased concentration 5 spread out over more area, and that's simply not 6 possible. The source term, whether we disagree or 7 whichever source term we end up using to discuss this, 8 is the source term. It's either going to be more 9 concentrated or it's going to be spread out over- a 10 greater area. It can't be both.
11 And so we need to analyze-that kind of, 12 you know, bare assertions without really, you know, 13 and see them for what they really can mean. It's not 14 true just because we've argued it or because it's been 15 asserted. 'It needs to actually. be possible. Thank I'
16 you.
17 CHAIRMAN FROEHLICH: Thank you very much.
18 What I'd like to do now is proceed through and I19 discuss as we had in the appendix to the notice of 20 this proceeding, discuss first questions that we have 21 on timeliness. We'll move on from timeliness to 22 standing, and then from there into the wind/solar 23 combination. Later in the day, we'll get to the SAMA 24 questions.
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33 1 challenge the timeliness of the joint petition?
2 MR. HARRIS: We do not challenge the 3 timeliness of the joint petition. If you would 4 examine the regulation, for something to be timely it 5 would need to be completed prior to midnight in terms 6 of when it was filed. Based on what we've seen in the 7 reply, we still. wouldn't challenge :it as timely.
8 However, I would tend to suggest that it would have 9 been helpful for all the parties to have known of the 10 issues that they had with the EIE system. I think 11 nobody would have, at that point, had some issue. But 12 sort of waiting until the reply to find out about 13 these particular issues does raise questions when you 14 are looking-at this kind of reply. But, no, we did 15 not challenge the timeliness.
16 CHAIRMAN FROEHLICH: Okay. 'And even with 17 the absence of a motion to accompany the late filing, 18 one filed perhaps the next day, staff still ýhas: no 19 objection .to the timeliness?
20 MR. HARRIS: Wedid not object. No, your 21 Honor.
22 CHAIRMAN FROEHLICH: Okay. I guess I'd 23 ask, at this point, the petitioner. After having read 24 -- I'm sorry. Ask the applicant, after having read 25 the petitioners' reply, whether you still challenge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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34 1 the timeliness of the petition and the explanation 2 they put forward in their reply?
3 MR. POLONSKY: Yes, your Honor. The 4 applicant still does challenge the timeliness for the 5 following reasons. We raised the issue of timeliness 6 in the answer because 67 or so of the exhibits were 7 not filed until after the midnight deadline. In fact, 8 some weren't filed until the following afternoon.
9 They did not inform us .that they even had problems 10 until they filed their reply, which was a full 30 days 11 after they filed their petition. As the petitioners 12 in the Seabrook proceeding did, they filed the next 13 day an extension request and the applicant in that 14 case did not object. There's no such motion to 15 request time. They simply think that they can just, 16 after the fact, rationalize why they did not file on 17 time, and we don't believe the Board should reward 18 that kind of ignoring of NRC procedural rules.
19 .CHAIRMAN FROEHLICH: By early afternoon'of 20 the day after the petition was received, the applicant 21 and all parties had copies of all the exhibits and- all 22 the materials that they had intended to file before 23 midnight. Is that correct?
24 MR. POLONSKY: Yes.
25 CHAIRMAN FROEHLICH: And does the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 applicant allege that they've been prejudiced in any 2 way by receiving it I guess shortly after noon on the 3 day after it was due?
4 MR. POLONSKY: Your Honor, there's no 5 requirement in the procedural rule that any prejudice 6 be shown to any party. I mean, this is akin to 7 essentially a statute of limitations. The date hits, 8 and regardless of whether there was a party prejudice 9 after that date, the statute of limitations have run.
10 Petitioners had three and a half months to file their 11 petition to intervene from the date the application 12 was submitted or available, and they waited, 13 literally, until the 11th hour to even begin filing.
14 They could have started filing all those numerous 15 attachments at two in the afternoon before the 16 petition ever came in. There's nothing in the rules 17 against that and, yet, they started very, very late in 18 the evening of the day that it was due and, arguably, 19 may not have even been able to submit even if the EIE 20 had functioned properly. So for all those reasons, we 21 don't believe it's relevant whether FirstEnergy was 22 prejudiced by the late filing.
23 CHAIRMAN FROEHLICH: Okay. While we're 24 talking about timeliness, I have a procedural kind of 25 correction for the petitioners. On the 23rd of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 February, the reply was re-filed. And I notice also 2 on the 24th of February it was re-filed a second time.
3 The February 24th filing seems to be about two pages 4 shorter than the filing that was made on 2/23. Could 5 you tell me what the difference between the two are?
6 MR. KAMPS: Yes, your Honor. Kevin Kamps, 7 Beyond Nuclear. I was still a pro se at that point, 8 just as I was on December 27th. And what happened 9 most specifically was that Alex called to my attention 10 that one of the orders that you had made on February 11 18th to strike something from our combined reply had 12 not been stricken. Despite my best effort to do so, 13 I had somehow not done it. And so I went back and I 1-4 finally struck that final remaining portion that he 15 identified that very day, I believe. And so we got it 16 in. It-was revised-revised is how I titled it. We 17 got it in before your midnight deadline.
18 CHAIRMAN FROEHLICH: I'm sorry. I 19 misunderstood the last part of your -- you got it- in 20 before the deadline?
21 MR. KAMPS: You had issued a deadline of -
22 23 CHAIRMAN FROEHLICH: Oh, the 24th.
24 MR. KAMPS: -- midnight of February 24th.
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37 1 before, but -then Alex called my attention to more than 2 one item, I don't know if we'll get into that detail, 3 one of which I disagreed with him on because you had 4 ordered that we make corrections from our errata, 5 which is exactly what I did. But I did agree with him 6 that there was a segment that you had ordered stricken 7 that had not been- on February: 23rd, so I went ahead 8 and struck it and then revised-revised on the 24th.
9 CHAIRMAN FROEHLICH: Thank you, Mr. Kamps.
10 Any questions from my colleagues on the timeliness?
11 Okay. Let's move on to standing questions. Now, as 12 I read through the petition, page six specifically, I 13 noticed that. the petitioners state that Mr. Denari, 14 Mr. Nestor, and Ms. Rios seek individual standing in 15 this proceeding. Is this correct?
16 MR. LODGE: Your Honor, that may have. been 17 pleading in the alternative. I do believe that what 18 they were suggesting was, if for any reason the Green 19 Party were not an acceptable representative 20 organizationally, that they wish to be admitted as 21 individual petitioners.
22 -CHAIRMAN FROEHLICH: Okay. And I noticed 23 also on that page, among the same lines, lines 11 and 24 12, that Ms. Rios seeks to represent the Green Party 25 of Ohio or is it the Green Party of Ohio seeks to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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38 1 represent Ms. Rios?
2 MR. LODGE: I think it's the other way 3 around, your Honor. And at that point, the matter was 4 a pro se petition. I would like to think, though, I 5 would have, caught that, but I wasn't there.
6 CHAIRMAN FROEHLICH: And I assume that 7 your notice of appearance filed February 22nd 8 supercedes the language in the petition and the 9 statement that the Green Party of Ohio seeks to be 10 represented by Mr. Kamps or Mr. Gunther?
11 MR. LODGE: Correct.
12 CHAIRMAN FROEHLICH: Okay. I'd like to 13 ask the applicant about footnotes 28 and 35 with your 14 answer. Should we be reading that as an argument that 15 CEA and Don't Waste Michigan both have not 16 demonstrated standing because the representative may
- 17 have acted ultra vires in filing the petition? Is 18 that correct?
.19 MR. POLONSKY: Yes, your Honor, that is 20 why we wrote those footnotes and -made those arguments.
21 Your Honor, there has been some question about whether 22 we still are challenging the standing of Don't Waste 23 Michigan. We are not. As far as the petition stated, 24 we did not believe that they had met the germaneness 25 factor for standing. They adequately cured that in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 their reply, and we are no longer challenging the 2 standing of Don't Waste Michigan. We continue to 3 challenge the standing of CEA.
4 CHAIRMAN FROEHLICH: All right. That 5 takes care of one of the questions I was going to ask 6 of the applicant, and we'll, get to CEA in just a 7 moment. Again, the petition that was originally 8 filed, and this question is for the petitioners, on 9 page nine, paragraph ten, petitioners present their 10 sundry contentions as attachments to this petition.
11 What attachments should we be directed to and are 12 looking for.:. in that reference on page nine, 13 petitioners present their sundry contentions as 14 attachments to this petition? Are there attachments 15 to the petition?
16 MR. LODGE: I think, your Honor, that that 17 refers to the 155-page document. Again, I guess'the 18 :answer is that is the petition and its attachments.,
V 19 I don't know if that's an adequate answer.
20 CHAIRMAN FROEHLICH: All right. Just to 21 close a loop on the representational standing versus 22 individual standing, the interveners are -seeking 23 representational standing, in this proceeding, not 24 personal standing?
25 MR. LODGE: Correct.
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40 1 CHAIRMAN FROEHLICH: Okay. Let's then 2 move to our geography and Citizens Environmental 3 Alliance of Southwestern Ontario. By the staff 4 calculation, the Coronados, they're 50 miles and 300 5 feet; is that correct?
6 MR. HARRIS: I mean, that's as near as we 7 could tell using their lat and longitude and 8 calculating the great circle between the two.
9 CHAIRMAN FROEHLICH: All right. And as I 10 understand, FENOC objects as well and stating in the 11 pleadings that the Coronados live 50.024 miles, which, 12 if I did my math right, is about 50 miles and 127 feet 13 beyond the 50-mile limit; is that correct?
14 MR. POLONSKY: Your Honor, that's what the 15 computer spit out as the number, so that's the number 16 we used. We didn't make it up.
17 CHAIRMAN FROEHLICH: Okay. So I guess K 18 there was some very precise measuring of calculation 19 that was going on. What .were the beginning and end 20 points that were used both in the staff calculation 21 and in the applicant's? Staff?
22 MR. HARRIS: Let me find it. In the brief 23 itself, I put the lat and long coordinates for both 24 Davis-Besse and the address that we had, and those 25 were the beginning and end points that we used for it.
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41 1 At Davis-Besse, the center line of the reactor, we 2 used the 41 degrees, 35 minutes/47 seconds north, and 3 83 degrees, 5 minutes/13 seconds west. We did that 4 using Google Maps looking at where the reactor is 5 located to find the center line of the reactor.
6 CHAIRMAN FROEHLICH: Like the center of 7 the containment?
8 MR. HARRIS: That's normally traditionally 9 where that 50-mile, the radius has been calculated 10 when you look at emergency planning as looking at the 11 center line of unit 1 if you had multi-unit reactor 12 sites. But unit 1, in this case, there's only one 13 reactor. Then the same thing for their address. We 14 actually used the same Google Maps using their address 15 looking for what it gave as the lat and long, and then 16 I was a formal Naval officer so I've gotten some 17 navigation having'to go great circle routes in terms-18 of between two points. So that's how we calculated 19 -the distance between those two points on a globe.
20 CHAIRMAN FROEHLICH: So is that end point 2i that you just referred to, is that perhaps the front 22 door of the property or center of the house? Where 23 would that be?
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42 1 of that property. It was the shortest distance, you 2 know, based on the house that showed up at that 3 particular point at the street there, so it looked to 4 me to be the closest point to the reactor of that 5 property.
6, CHAIRMAN FROEHLICH: Okay, thank you.
,7 JUDGE KASTENBERG: Is there anything in 8 the regulations that defines the beginning and end 9 point? That is, could I interpret distance from the 10 plant, the plant exclusion radius or the plant fence 11 post?
12 MR. HARRIS: The, problem is is that we are 13 somewhat mixing what's been designed for the proximity 14 presumption, which also tends to mirror the emergency 15 planning zone of 50 miles. So everything has been 16 described as within 50 miles in terms of making that 17 measurement. If you look at the guidance documents 18 that have-been published regarding emergency.planning 19 zone, they say from the *reactor site, which has been 20 consistently interpreted-to be the center of unit 1 21 for a :particular site. So it's. not been done 22 traditionally from the boundary site and, in fact, if 23 you look 'at most' of the 50-mile radius done for 24 emergency planning zones they are regular 50-mile 25 radiuses. So if you were doing this kind of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE. ISLAND AVE., N.W.
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43 1 interpretation from the exclusion zone, you would 2 expect for it to be an irregular emergency planning 3 zone. It would reflect the changes in the boundaries 4 as you went around.
5 JUDGE KASTENBERG: But there's no 6 regulation which stipulates that it has to be the 7 center of the reactor? That's open to interpretation?
8 MR. HARRIS: It is open to interpretation, 9 your Honor.
10 CHAIRMAN FROEHLICH: Mr. Polonsky, if you 11 care to elaborate on the scientific method that you Ii 12 applied to the calculations of distance?
13 MR. POLONSKY: Yes, your Honor. And I 14 guess I'd like to take a step back, as well, and say 15 why this proximity presumption came about because it's 16 not in the regulations. It's judicially created. And 17 the concept was if there was some type of energetic 18 release with a large mass which is why, I believe, the 19 reactor building was selected because you wouldn't 20 have' that energetic release- from a large *mass from 21 anywhere else' on the property, that the injury, in 22 fact, would be presumed within 50 miles. But, again, 23 -the presumption is, essentially, as you go further out 24 up to that 50 mile radius, the injury,, in fact, is 25 attenuated such that after 50 miles there's no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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44 1 presumption. We're not arguing that they can't show, 2 because they live more than 50 miles out that they 3 can't show standing. It's just that once you get 4 beyond 50 miles -- andyou have to create the boundary 5 somewhere. It can't be this floating boundary. Once 6 you get beyond that boundary, you're back to 7 traditional judicial concepts. of standing, showing 8 injury in fact, causation, addressability. That's 9 all. And they did not plead that- alternative of 10 injury in fact, causation, and addressability in their 11 petition; and in our reply, in our answer, we pointed 12 that out, and they continue to rely on the 50-mile 13 radius which we don't believe the presumption applies 14 in this case.
15 Now, as for how we actually calculated 16 that, again, we used the same software, Google Maps, 17 as a crow flies, *which makes sense because you're 18 looking for the shortest distance. And Google Maps, 19 with the address provided in their affidavits for the 20 Coronados shows up and the point is at the curb or the 21 sidewalk closest to the house, and we center-lined the 22 starting point, because it allows you to center line 23 it, on the reactor building, as a matter of fact on 24 the furthest edge of the reactor building, to see what 25 the distance was.
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45 1 CHAIRMAN FROEHLICH:. I was going to ask 2 the petitioner how you calculated. I notice in your 3 petition you set forth as part of your standing 4 showing that you the Coronados did live within the 50-5 mile radius.
6 MR. LODGE: No, sir, that's not what we 7 argued.
8 CHAIRMAN FROEHLICH: Okay.
9 MR. LODGE: First of all, I would like to 10 observe that perhaps not since 1813 when Commodore 11 Perry repulsed the British Navy a few miles offshore I. 12 of Port Clinton has the nation of Canada been so 13 insulted. But I would like to offer this: the
- 14 calculation from the petitioners was from the office 15 address of the Citizens Environment Awareness 16 organization, which is 49.75, approximately, miles.
17 It's detailed in the petition using the samesoftware 18 from the center of reactor building. And I would 19 point out that the presumption attaches to people who 20 work within or live within or recreate within the 50-21 mile radius. I would also point out that, as the 22 panel appears to be cognizant, the proximity 23 presumption is approximate. it is not so ironclad.
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46 1 of -Windsor lies within and part of the city of 2 Windsor, Ontario lies without the 50-mile radius.
3 CHAIRMAN FROEHLICH: Just so I'm very 4 clear, page five of the petition, the third line, it 5 says that Garrett and Richard Coronado live within'the 6 50-mile radius of the Davis-Besse nuclear plant?
7 MR. LODGE: Well, at the time, we had not 8 GPS'd matters, we had not Googled. So we thought 50 9 miles was an accurate representation. We also 10 presented in the petition the business address of CEA 11 and the organizational tie that the Coronados have to 12 CEA and, in reply, noticed that that was within the 13 50-mile radius.
14 CHAIRMAN FROEHLICH: Any other questions 15 on standing from my colleagues? All right. I have 16 just a couple of general questions before we get into 17 contentions one, two, and three specifically. I see 18 reference on a number. of occasions in the petition, 19 specifically at page 18, paragraph 32, that the 20 petitioner states that the applicant's ER is deficient 21 because it does not contain expert agency comments.
22 Could you just elabora-te for me a little bit on what 23 you meant about expert agency comments in the ER?
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47 1 the- Department of Energy that was almost not at all 2 mentioned in the ER.
3 CHAIRMAN FROEHLICH: I'd like to ask, 4 before we get into our discussion of the individual 5 contentions, what does NEPA say must be looked at when 6 an alternatives analysis in an EIS? What are the 7 standards to judge an adequate alternative analysis 8 under the National Environmental Policy Act?
9 MR. HARRIS: Are you putting that question 10 to us?
11 CHAIRMAN FROEHLICH: To each of the
.12 parties, please.
13 MR. LODGE: On behalf of the petitioners, 14 my reading of NEPA is it's reasonable, whatever is 15 reasonable. It is a fact-intensive inquiry, and it 16 does not, the type of showing that the petitioners 17 have to make, as the Board well knows, is not proof 18 beyond a reasonable doubt. It's not even proof such 19 as would survive a motion for summary disposition. It 20 is articulation of facial evidence that there's an 21 unconsidered alternative. And I'm not talking about 22 the federal court pleading standard when I say that.
- 23 That 'is NRC precedent that we cited, I believe, in the 24 reply.
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48 1 more than notice pleading, as was mentioned in opening 2 statements?
3 MR. LODGE: Yes.
4 CHAIRMAN FROEHLICH: okay. Applicant, 5 what'definition should we 6 MR. POLONSKY: On page 20, 3, and 24, we 7 discuss underneath of what the standards are for 8 reasonable energy alternative consideration, and it is 9 only consideration of alternatives that are feasible 10 and reasonable, not that are speculative or 11 conjecture, and the rule of reason governs both which 12 alternatives are selected and the level of detail that 13 is required for that discussion. And I would point 14 out that, as we go through, these are not, the 15 contentions cannot be that we did not discuss these at 16 all. The argument appears to be that what was 17 discussed of wind, solar, and combination was not 18 enough because the ER, you know, taking judicial 19 notice of it, contains disdussion of wind, solar, and 20 combinations. So I think the dispute is over the 21 level of detail of what it is in there.
22 CHAIRMAN FROEHLICH: And I guess the 23 applicant position is that the alternatives that were 24 considered were the reasonable alternatives and there 25 are no additional reasonable alternatives that should NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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49 1 have been discussed?
2 MR. POLONSKY: Not quite, your Honor.
3 There's a two-step process, and, ,as we argued in our 4 briefs; we think petitioners leapfrog over immediately 5 to the second one. But the first analysis is a.
6 discussion of whether certain alternatives are 7 reasonable, and that requires some words'on.paper, and 8 those words on paper are contained in the ER 'in 9 Section 7. The. next, step, which is once you've 10 determined that they are reasonable, thenithere's a 11 much more detailed discussion that's -required under 12 NEPA. The discussion and the conclusions drawn in the 13 environmental report are we don't get passed that 14 first stage for many of the reasons that the staff 15 articulated in their opening argument .and the 16 arguments we 'have in our answer. These"just are not 17 reasonable alternatives for the proposed action for a 1' 18 20-year renewal starting 2017.
19 .CHAIRMAN FROEHLICH: Thank you. Staff?
20 MS. MONTEITH: The Commission has stated 21' that an environmental report should consider the range 22 of alternatives that are capable of .achieving the 23 goals of the 'proposed action, which in this case is 24 the generation of approximately 910" megawatts of base 25 load energy., The Commission has also stated that NEPA NEAL R. GROSS COURT REPORTERS AND.TRANSCRIBERS 1323 RHODEISLAND AVE., N.W.
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50 requires consideration of feasible, hon-speculative, 9 2 and reasonable alternatives.
3 CHAIRMAN FROEHLICH: Okay. And you state 4 that.the Commission has stated that'. Where is that?
5 -Where can that be found-?
6 MS. MONTEITH: I'm sorry. With respect to
-7 achieving the goals of the proposed action? In Hydro 8 Resources Inc. CLI 01-4 and Rancho Seco CLI '93-3,*
9 CHAIRMAN' FROEHLICH: Okay. Thank you.
10 Moving on just from-nthis, I see a discussion in the 11 pleadings aboit this 'concept of a Single discreet 12 electric-generating, source. What is the, origin of 13 that requirement as we look at the 'alternatives?
- 14 JUDGETRIKOUROS: .,We' re talking about the iis statement made in 'Section 8.1i I think of the GEIS
.16 regarding di'screte source of energy.
17 CHAIRMAN. FROEHLICH: Okay. Well,ý 18 actually, you got ahead of me.. In the GEIS,' it dQes 19 talk about a single discrete electric generation 20 source. But this single discrete electric generation
. ~21" source, that comes from the GEIS, not from NEPA; is 22 that'correct? Parties?
23 MR. LODGE: Correct.
24 CHAIRMAN FROEHLICH: Staff?
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51 1 came from the GEIS, as you observed, which is the 2 Commission's determination that the reasonable set of 3 alternatives should be limited to the analysis of just 4 single discrete electric generation sources.
5 CHAIRMAN FROEHLICH: Okay.
6 JUDGE TRIKOUROS: The general question 7 that I wanted to start with was are we bound by the 8 requirements of the GEIS in its entirety?
9 MS. MONTEITH: In its entirety? Your 10 Honor, no, in certain respects, it's been codified 11 into regulation. With respect to the generic 12 determination that we're discussing in 8.1, that had 13 not been codified into regulation. However, this
- 14 document did go through notice and comment rulemaking 15 in its entirety. And the determination that a 16 reasonable set of alternatives as single and discrete, 17 it's the determination of the Commission in NUREG 18 1437.
19 JUDGE TRIKOUROS: I'm sorry. Say that 20 last comment again. The last comment you made about 21 that statement.
22 MS. MONTEITH: Well, it says in the GEIS 23 that the NRC has to determine that a reasonable set of 24 alternatives should be limited to single discrete 25 electric generation sources. It's the Commission's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 determination in the GEIS.
2 JUDGE TRIKOUROS: All right.
3 MR. LODGE: On behalf of the petitioners, 4 I'd like to point out that, first of all, in the 1996
.5 GEIS proceeding the NRC essentially said that it was 6 going to update every ten years. And while I 7 understand there is an update of the GEIS pending, 8 it's well beyond ten years. The data is ancient in 9 terms of its assessment of the marketplace potential 10 of alternative sources of energy. I'm sure these are 11 things that the panel already knows about, but the i 12 point is is that, as counsel noted, this is not 13 binding obligatory regulation that the discrete nature 14 of the power source must be compared. However, we are 15 prepared to argue, as the three contentions 16 articulate, two discrete and one blend type of 17 alternative. Thank you.
18 CHAIRMAN FROEHLICH: Why don't we now 19 focus on the individual contentions and take them in 20 the'order that they've been pled. Now, this is really 21 three separate contentions; am I correct?
22 MR. LODGE: Yes.
23 CHAIRMAN FROEHLICH: Okay. The first one 24 involves a wind source, the second a solar source, and 25 the third a combination of wind and solar?
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53 1 MR. LODGE: Correct.
2 CHAIRMAN FROEHLICH: Okay.
3 JUDGE TRIKOUROS: Well, let's see. Where 4 do we start? The key word, at least for me, in all of 5 this is the word base load. The primary reason given 6 why the wind and solar options were not considered 7 that was given in the ER was that they are not base 8 load options. In your pleadings, you used terminology 9 -- I'm referring now to the petitioners -- you used 10 terminology that makes me think that the definition of 11 base load amongst all the parties is not exactly the 12 same. So, for example, I think-your reply at .page 27 13 of your reply you used terminology like wind and solar 14 either as base load or in some combination.
15 MR. LODGE: Yes.
16 JUDGE TRIKOUROS: So you view base load as 17 wind alone? If solar is sitting on the same site as 18 wind, you don't consider that base load? I don't 19 understand your view of base load.
20 MR. LODGE: Well, perhaps we should step 21 back a little bit further. I think that the utility 22 is applying a very distorted concept of base load.
23 Davis-Besse has a lifetime capacity output factor of 24 75 percent that seems to be, more or less, true of the 25 industry, maybe a little bit lower. But when we're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 talking about availability of a base load power plant, 2 the presumption seems to be built in, hardwired into 3 the applicant's ER that Davis-Besse is available 100 4 percent of the time. Unfortunately, repeatedly in the 5 long disturbing history of Davis-Besse,, it's been out 6 for significant portions of time, more than two years 7 related to the corrosion hole.
8 JUDGE TRIKOUROS: Let me stop you because, 9 honestly, I didn't want to get into that discussion in 10 this proceeding. I wanted to get a clear definition 11 of base load, and that definition of base load, as I 12 understand it and I would like to hear arguments if 13 it's not correct, is that for some significant portion 14 of a year, the hours in a year, that 908 or 910 15 megawatts electric are available to the grid for the 16 citizens of Port Clinton to plug in and utilize.
17 That's my understanding of what base load means, so 18 that if one were to offer wind and solar or any other 19 option in place of that it would haveto supply 910 20 megawatts electric for a significant number of hours 21 in a year.
22 MR. LODGE: Correct.
23 JUDGE TRIKOUROS: Is that not the correct 24 definition?
25 MR. LODGE:. That is a correct definition..
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55 1 I would, however, Mr. Trikouros, also. add to that that 2 we're talking about a region of interest that extends 3 from New Jersey into Ohio when we're talking about 4 FENOC. And so we have, in our arguments and factual 5 presentations- talked about having a wide potential 6 dispersal area for wind and photovoltaic. And I.don't 7 want to offend you, but when we're talking about, an 8 output of about 30 percent from wind and 20 percent 9 from photovoltaic compared to a 75 percent type of 10 output from Davis-Besse and, in fact, wind and 11 photovoltaic, if anything, are far more reliable in 12 that if dispersed over an appropriate area they will 13 be producing virtually all the time at some level.
14 We further have posited an alternative, 15 that being compressed air storage which the CEO of 16 FirstEnergy in comments made a couple of years ago 17 observed was an ideal means of providing effectively 18 a systemic battery backup storage during heat 19 generation and overnight generation --
20 JUDGE TRIKOUROS: All right. We're going 21 to get into' all of this in some order. But for right 22 now, I just want to understand that your claim, your 23 contention is that wind alone in contention one, solar 24 alone in contention two, and wind and solar in 25 combination in contention three can provide base load NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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56 1 power to replace Davis-Besse.
2 MR,. LODGE: Yes.
3 JUDGE TRIKOUROS: Are .you limiting it to 4 wind or solar or wind and solar, or are you saying 5 that your contention is a broader contention that 6 ,really the alternative that you're looking at for base 7 load is wind and/or solar and/or compressed air 8 storage and/or fossil fuel backup?
9 MR. LODGE: Yes. That is 10 JUDGE TRIKOUROS: Is that actually your 11 contention? Now, we have to deal with, if we were to 12 admit a contention, what contention would we admit and 13 how would one do an alternatiVes analysis of that 14 contention? I don't think-one can do an alternatives.
15 analysis of. a contention that just says consider 16 renewables. I mean, I think that isn't a specific 17 option that one can do an alternAtives analysis on.
18 So I just want, to understand if your contention is 19 limited- to wind alone or s6lar alone or the 20 combination alonei or is it broader than that?
21 MR. LODGE:: If the panel believes it 22 should be broader, we would certainly concur. I'm not 23 trying .to dodge your question. -I would point out that 24 we have, we articulated the compressed air storage as 25 sort of a systemic means of maximizing what could be C NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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57
ý1 attained from wind and/or photovoltaic, and we further 2 have argued the 2006 7th Circuit Environmental Law and 3 Policy Center decision which involved a nuke plant but 4 is one where in the NRC staff, apparently from the 5 facts you can glean. by reading the Court of Appeals 6 decision which focuses sometimes on other things than 7 what you are looking for, but it appears that the NRC 8 staff relented and, in that case, considered a mix of 9 renewables plus a small natural gas fired plant. So 10 certainly that type of thing is within the 11 contemplation.
12 And to clarify what our position is,. we 13 quibble some with your definition of base load. Our 14 contention is is that FirstEnergy tells us that lights 15 should come on when the switch is flicked and, thus, 16 the presumption has to be that 100 percent of the time 17 there is some available energy. And sowhen we're 18 talking about base load performance, that' backs me 19 into the whole notion of capacity factor and output.
20 Again, our contention is is that, if anything, a wise 21 dispersal of renewables probably is more reliable 22 moment to moment than a large' centralized 23 technologically interesting base load power plant.
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58 1 would lead one to believe that you're really are 2 preferring one contention, not three.
3 MR. LODGE: Okay. Assuming for purposes 4 of argument, yes.
5 JUDGE KASTENBERG: I mean, your contention 6 three basically says what.I told you in one and two.
7 That's three.. So three is really, you know, the 8 union, if you will, of one and two. Even in one or 9 two, there's sort of a mixing of things. Clearly, the 10 discussion about compressed air storage and other 11 storage in general and clearly, in at least one 12 location, you refer to back-up'energy in.the form of 13 fossil fuel. And my understanding of compressed air 14 storage is that it requires a significant amount of 15 fossil fuel, as much as half of what it would be if it 16 were a combustion turbine.
17 So I'm trying to understand really what 18 you're contending, and it doesn't sound to me like 19 you're contending that one could build a wind site and 20 maybe a solar site and that that, in and of itself, 21 would be sufficient to replace the generation energy 22 of Davis-Besse. Your argument says that, but your 23 specific contentions don't.
24 MR. LODGE: I think we accept your 25 proposition with the caveat that when Davis-Besse is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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59 1 offline replacement power has to come from somewhere 2 and either within the FirstEnergy jurisdiction or 3 purchased from elsewhere.
4 JUDGE KASTENBERG: Can you repeat that?
5 I didn't quite hear what you said.
6 MR. LODGE: When Davis-Besse is offline, 7 power has to come from somewhere else entirely, either 8 within FirstEnergy's jurisdiction or from outside.
9 JUDGE TRIKOUROS: We'll take that as a 10 given. Along the lines of the same discussion, I'd 11 like to ask the staff and the applicant do they 12 believe that the contentions as preferred are more 13 than, do. include other combinations other than wind 14 and solar? The discussion is replete with references 15 to storage and other things. What is the staff's I 16 position on. this?
17 MS. MONTEITH: Sorry, your Honor. Are you 18 asking whether you think the way they couch the 19 contention means that they intend it to extend to all 20 renewables?
21 JUDGE TRIKOUROS: Well, we have a 22 contention that just says renewables should be 23 considered as alternatives. It's very general, very 24 unspecific. But we have a lengthy discussion, you 25 know, well over 100 pages of discussion, 77 some odd NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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60 1 exhibits, that are adding a lot to that of putting 2 specifics into that general contention. And I'm 3 trying to understand what are they actually saying in 4 their contention? It's a general contention. There 5 are a bunch of, many specific discussion points.
6 Where do you see that --
7 MS. MONTEITH: Staff had some difficulty 8 with that, as well. The way the contention is phrased 9 for the wind and the solar and the combination, the 10 way the combination incorporates the first two by 11 reference, it seems that they are proposing a large 12 catchall alternatives contention. But as we 13 recognize, it is only really supported with respect to 14 wind power and solar power discussion.
15 JUDGE TRIKOUROS: So the staff does not 16 think that compressed air storage, for example, or 17 storage in general or backup by. fossil fuel is a part 18 of that contention or either of those contentions?
19 MS. MONTEITH: They do raise the issue of 20 storage. I do not believe the contentions discuss 21 backup fossil fuels.
22 JUDGE TRIKOUROS: Well, it does. But 23 we'll get there. We don't have to get there now 24 because we're on a kind of a general level or at least 25 we think it does and I can point to places, perhaps, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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61 1 where it says that. But what about the applicant?
2 Does the applicant view the contentionas being simply 3 limited to wind and solar as stated in the contention, 4 or. is it more than that based on all of the 5 discussions? Certainly, in your answer you address 6 things other than just wind and solar. You address 7 storage issues.
8 MR. POLONSKY: Your Honor, we agree that 9 the petition is not well pled. What we gleaned from 10 those three contentions is that they are three 11 separate contentions, that each of the contentions has 12 at least two.parts. The first contention on wind we 13 read as either connected wind farms or wind connected 14 with CAES, compressed air energy storage. No other 15 energy storage at all. That's the only :one, and 16 that's the only one that's pled with any specificity.
17 Those two, for contention one, they are trying to 18 argue our base load. And I can go into our definition 19 of base load, but let me move to two and three and 20 then I can come back to that.
21 The second contention is solar 22 photovoltaics, not solar parabolic, just solar 23 photovoltaic where sun is converted directly into 24 electricity, and that combined with energy storage, 25 CAES, again, compressed air energy storage. Now, we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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62 1 thi-nk the reason why they cite CAES is because it
.2 appears to be, from their petition, that they didn't 3 understand that up to half of it was fired by natural 4 gas. And so they thought,, we interpret, that that was 5 .a renewable energy-source in some way, that the wind, 6 electricity would cause these turbines to pump air 7 into the storage and that can then be released during 8 peak times and together that-would be base load. We 9 obviously disagree that' they've even met adequate 10 support on that issue.
11 The third contention then is a combination 12 of one and two, so it would be wind, solar, and CAES, 13 and that'.s it. Now, we've pointed out in our answer 14 that CAES is natural gas, 'and under the combination we 15 discuss a combination'alternative in the environmental 16 report. There is no mention or acknowledgment in the 17 petition or the reply that we have that discussion.
18 And the pleading standards require them to identify 19 information in the environmental report that they 20 believe is wrong, we believe, under NEPA and to 21 explain why it should be- changed, and they haven't 22 acknowledged that we have the discussion of 23 combination of alternatives, let alone say why What we.
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63 1 thing that we think now they're articulating. So we 2 don't think that that's an-admissible.*
3 .. JUDGE TRIKOUROS: Well, that's certainly 4 this Board's dilemma in the sense that if a contention 5 were admitted that said wind or solar or andsolar and 6 CAES, it would'have to include natural gas. So it 7 ends up being a combination really no matter how you 8 look at it. Natural gas is a. part of assuming the 9 compressed air.. storage is,, but there are. other 10 considerations of natural gas. as a backup beyond the 11 compressed air storage functionality in the pleading 12 as well. Do you see that at all?
13 MR. POLONSKY: We did not read that into 14 pleading, your Honor, and I think we wouldvigorously 15i say that if that's in there it's still encompassed by 16 what we put in our environmental report. as our 17 combination alternative which they don't address.
18 . JUDGE TRIKOUROS: So your position is that 19 the base load-determination has to be made with wind 20 and/or solar and compressed air storage. Are you 21 limiting it to compressed air-storage or storage in 22 general?
23 MR. POLONSKY: Let me'reiterate what I 24 think I said, just so we're clear, since. you are 25 clearly focusing in on this. It could be connected NEAL R. GROSS "COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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64 1 wind farms by themselves, no energy storage- at all.
2 it could be wind farms connected with energy storage, 3 but that energy storage is only compressed air energy 4 storage, or it could be solar by itself or it could be 5 solar and compressed air energy storage or it could be 6 all three: wind, solar, and compressed air energy 7 storage.
8 JUDGE TRIKOUROS: But no natural gas 9 backup beyond --
10 MR. POLONSKY: Backup? We did not read 11 that into it. Only the natural gas required to fire
- 12. the pumps or turbines affiliated or associated with 13 the CAES.
14 JUDGE TRIKOUROS: Right, okay.
15 CHAIRMAN FROEHLICH: I think this would be 16 an appropriate time to take about a ten,-minute break, 17 but before we do that I'd like for the petitioners to 18 take a look at the Commission's contention pleading 19 requirements, 10 CFR 2.309(f)(1), and there are two 20 things that are really important. It's important 21 that, in a request or at least intervene, you have to 22 set forth with particularity the contentions sought to 23 be raised, and then in 2.309(f) (1)(i), you have to 24 provide a specific statement of the issue of law and 25 fact to be raised or controverted. I'd like you to go NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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65 1 .. over your pleadings with petitioners and isolate for 2 me the specific statement for each of the three 3 contentions that we're talking about: the wind, solar, 4 and what we've been referring to as the combination, 5 and focus this board's attention to where you pled, 6 the specific statements of issues of law and fact to 7 be raised by each of them. I think that has to be our 8 starting point as we go through wind and whatever 9 parameters as Judge Trikouros was alluding to, solar 10 and whatever parameters go with that, and that third 11 contention, the combination. Okay. So we'll stand in 12 recess for. about ten minutes and resume then.
13 (Whereupon, the foregoing matter went off 14 the record at 10:27 a.m. and went back on 15 the record at 10:40 a.m.)
16 CHAIRMAN FROEHLICH: Mr. Lodge?
17 MR. LODGE: Yes.
18 CHAIRMAN FROEHLICH: Were you able to go 19 through contention one and focus more attention on the 20 specific statement of the issue that you're putting in 21 'contention?.
22 MR. LODGE: Yes.
23 CHAIRMAN. FROEHLICH: Thank you.
24 MR. LODGE: I'd like to make a couple of 25 preparatory observations, as I indicated. For NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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66 1 example, in the wake of the corrosion hole incident in 2 2002, Davis-Besse was offline continuously for 25 3 months, approximately. There is no difference between 4 that outage and the use of backup natural gas serially 5 or periodically at the CAES facility. We are talking, 6 and it comes back to our earlier discussion, when 7 we're talking base load I don't think that's a valid 8 term. We're talking 100 percent availability of the
.9 spark. We're not talking about 100 percent 10 availability of Davis-Besse, not 'realistically. So 11 that's the backup observation or the preparatory 12 observation.
13 We posited in the petition wind power, 14 assuming some type of battery backup system, whether 15 compressed air or pumped storage or some type of means 16 of saving power which is what occurs presently 17 presumably, that fossil fuel or nuclear-generated 18 electricity is going to the CAES facility now. We did 19 that for wind, for photovoltaic, and for the 20 combination. I'd like to point out chronologically 21 that, at the time the initial. petition was filed, 22 December 27th, 2010, the Calvert Cliffs decision was 23 not out, which was the decision that, in a new plant 24 application, a COLA, did recognize a mix of 25 renewables. When we filed the reply initially at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 end of January, the Seabrook decision, which does talk 2 of operating license renewal and. consideration of 3 offshore wind as a freestanding base load source, that 4 decision had not yet been issued. I think that came 5 out February 1st.
6 So what we did, what was done by the 7 petitioners at the time of filings was not guided by 8 the happy intervention of two important decisions. We 9 posit in the petition the freestanding with backup 10 with storage capability and explained the existence of 11 CAES as one example of backup storage.
12 CHAIRMAN FROEHLICH: Thank you. Getting 13 back I guess to the question we had before the break, 14 the Board acknowledges that various decisions have 15 been rendered by other boards. I should say at this 16 point that those decisions are not, strictly speaking, 17 binding on us. Only the decision of the Agency would 18 be binding on this board. Further, those decisions 19 -are based on the record that was compiled in both 20 cases and the pleadings as they were filed by the 21 petitioners in those proceedings. What we need to do 22 for this case and the proceeding is to focus on the 23 contentions as pled by the petitioners that are before 24 us and go through the elements of 2.309(f) (1) to make 25 sure that everything that's:required to be there is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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68 1 there, and then we can get, you know, to the merits of
- 2 those contentions.
3 So what I need to do now is to focus on 4 your specific statement of the issue of law or fact to.
5 be raised by contention one, the wind contention. If 6 you could refer me in your pleading, in the petition 7 to that, I think that will be our starting point for 8 the discussion of what's 'base load. What is it?
9 What's contained with the wind as an alternative to 10 Davis-Besse?
11 MR. LODGE: With respect to the wind 12 contention, paragraph 13 on page 10, it is the 13 petitioners' contention that the scope of the
- 14 environmental report or the scope ultimately with the 15 DEIS if it's dictated by the ER is improperly narrowed 16 under NEPA, is improperly narrowed because of an undue 17 focus on. the 1996 GEIS which has been tremendously 18 outdated and that commercial wind can and maybe 19 considered with backup as a freestanding source of 20 base load energy. In support of that, we talk about 21 dispersal, if you will, of commercial wind farms and 22 installations throughout the FirstEnergy jurisdiction.
23 CHAIRMAN FROEHLICH: All right. Now, if 24 we focus on paragraph 13 of your pleading, page 10 of 25 the, original petition, in that paragraph you raise NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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69 S- also the issue of the-need for Davis-Besse as a means 2 of satisfying demand forecasts during the re-licensing 3 period,. Are you bringing into question.what I believe 4 is a Category 1 element?
5 MR. LODGE: No. We are. talking about the 6 fact that the principal source of data appears, to have 7 been the 1996 GEIS. And as the panel can well 8 envision, one cannot make presumptions- on i5-year-old 9, data about anything related to the future.
10ý CHAIRMAN FROEHLICH: Okay.. I-think also, 11 focusing on this, you speak to the re-licensing period 12 2017 to 2037. Do you agree with the applicant that 13 the time frame that we have to be looking at is 14 between now and 2017 --
- 15. MR. LODGE: Yes.
16 CHAIRMAN FROEHLICH: -- and things that 17 come on after 2017 really are- not part of this 18 analysis at..this point?
19 MR. LODGE: Correct. .The way I read that 20 was that it talks, about between: now and 2017. I
' .21 understand what you're inquiring about, sir.
22 CHAIRMAN FROEHLICH: Okay. And so that 23 when the applicant parties cite to... the Carolina 24 Environmental Study-Group decision, 510 F.2d 796 at 25 80,1, NEPA requires-us to consider alternatives as they NEAL R. GROSS' COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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70 1 exist and are likely to -exist. And taking that 2 definition from that case, we're talking about the 3 period now to 2017?
4 MR. LODGE: Correct.
5 CHAIRMAN FROEHLICH: Agreement?
6 MR. LODGE: Yes, sir.
7 CHAIRMAN FROEHLICH: Okay.
8 JUDGE KASTENBERG: Yes, I have a follow-on 9 question to that. To your knowledge, is there any 10 industry, either local or nationally, that could 11 actually do the research analysis, development, and 12 construction of either a wind farm and, I guess for 13 contention two, solar between now and 2017, six years?
14 Would that be feasible in your estimation?
15 MR. LODGE: Well, your Honor, I have extra 16 copies to distribute, but there's a U.S. Department of 17 the Interior news release dated February 7th of 2011 18 which predicts 10,000 megawatts of offshore wind 19 within the next nine years, including on the Great
.20 Lakes.
21 JUDGE KASTENBERG: That is they predict, 22 but, in actuality, from. an engineering perspective, 23 could you actually take a project from today to 2017 24 to completion so that on the day that Davis-Besse's 25 license expires you'd have that energy available, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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71 1 electric energy available?
2 MR. LODGE: Well, FirstEnergy has just 3 bought in the last month or so into 100 megawatts of 4 power from a wind farm being constructed in Putnam 5 County, Ohio which is probably about 80 or 90 miles 6 west/southwest of here. If the gist of your question, 7 your Honor, is is it possible that it can be done, 8 yes. The deployment of wind, wind is, as you probably 9 know, the most rapidly developing source of energy on 10 the planet. It is the most rapidly growing source of 11 energy in the United States. I can't remember the 12 statistic, but somewhere in the pleadings I see the 13 statistics that suggest that it is going up by 30 or 14 40 percent per year incrementally. So things are 15 exploding in that particular area. When we get to 16 photovoltaic, we can talk about Perrysburg, Ohio's 17 FirstEnergy plant, First Solar, which is running 24 18 hours2.083333e-4 days <br />0.005 hours <br />2.97619e-5 weeks <br />6.849e-6 months <br /> a day, 365 days a year, making thin film.
19 JUDGE KASTENBERG: Now, to bring that back 20 to the question that we raised before the break, is 21 this growth considered base load power? How would you 22 consider the growth in wind power, as base load or 23 does it matter in your view?
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72 1 are doing by way of creating backup or -using it for 2 peaking purposes or what. But I think it's fair to 3 say that when a nuclear power plant is offline for a 4 sustained period or even a short period of time, 5 depending on the season, depending on the time of day, 6 depending on the period of outage, the overall length 7 of the outage, that a mix of nuclear, natural gas, and 8 coal and wind is coming in as replacement power. So, 9 essentially, we are talking about wind probably 10 factoring into providing the petitioners' definition 11 of base load power now and rapidly expanding.
12 JUDGE TRIKOUROS: With respect to base 13 load, we need to limit our discussion to what the 14 capabilities are, not the fact that a nuclear plant, 15 specifically Davis-Besse, had a low capacity factor 16 last year. Tha t isn't, I think, the focal point here, 17 no more than if I pointed you to a wind farm somewhere 18 that didn't 'run all year for some reason. I don't 19 think those are-the issues. The issue is that a 20 typical nuclear plant runs over 90 percent- of the time 21 without interruption, and that is considered by the 22 utilities to be a base load generation source. So it 23 gives them 900-plus megawatts 90 percent of the time.
24 That is what has to be replaced. As we said earlier 25 in this hearing, that is what has to be replaced.
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73 1 One would not, in accommodating-a nuclear 2 power plant's downtime, one would not say it',s okay if 3 the plant shuts off next week because I have a wind 4 turbine that would replace that power. Clearly, that 5 isn't the case because one would not know that the 6 wind would be blowing the moment that that plant shuts 7 down, so, therefore, they would have to provide 8 something that they know they could turn on that*.would 9 provide power at that moment.
10 Now, that intermittency. can clearly be 11 overcome by various means, and you mentioned a number 12 of those means. One of them is interconnected wind 13 turbines where the wind is very likely to be blown 14 somewhere along the path of the wind turbines that 15 provide power almost continuously. The other is some 16 sort of compressed air or other' storage that is 17 sitting there ready to have a button pressed and it 18 produces energy.. So that's what we need to focus on 19 is capability, not point to specifics of a plant or a 20 complex that didn't have a high capacity factor.
21 MR. LODGE: With due respect, I have these 22 observations. Number one, it is impossible, it is 23 impossible to ignore history when you are talking 24 about an aging fleet of nuclear power plants. Like my 25 truck, they do not operate as reliably as they age.
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74 1 Number two, it is impossible to ignore the specific 2 history of Davis-Besse in talking about availability.
3 I was incorrect in my earlier factual statement. The 4 average capacity factor between Perry and Davis-Besse 5 is 75 percent, so neither are pushing very closely to 6 that 90 percent availability.
7 Finally, we believe that the argument that 8 the -- no, I've got two more points. The argument 9 that the wind may not be blowing, the sun isn't always 10 shining, is precisely why we talk about backup storage 11 and widespread dispersal, especially throughout a 12 multi-state generated jurisdiction, such as 13ý FirstEnergy's, because our contention is that, indeed, 14 probably the wind is blowing in a harvestable fashion 15 allthe time somewhere.
16 Finally, the Seabrook panel pointed out 17 that the applicant and the NRC staff were expecting 18 two much of the intervention petition, and that is a 19 danger that we caution against. We're not here today 20 to prove utterly and beyond some doubt that wind is 21 absolutely base load energy. It is plausibly, we can 22 show tons of evidence of its rapid expansion as an 23 energy source. We can show certainly established 24 technological evidence of battery type backuip storage 25 methods. We can do the same with solar and with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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75 1 mix, but the point is is that we're- positing- with -a 2 great- deal of study, with a great deal of very, very 3 recent right down to almost today information that 4 suggests that, notwithstanding all the subsidies, 5 notwithstanding all of the things that have propped up 6 the nuclear industry for all these many decades, as 7 opposed to meaningfully expanding into the 8 alternatives. The alternatives are coming to get 9 nuclear-. The alternatives are dropping below the 10 installed kilowatt cost of new nuclear. These things 11 are inevitable. They are marketplace forces at work.
12 So what we are saying today is that with 13 the very recent history,- just the last, well, let's 14 say the 15 years since the GEIS, that the productivity 15 of wind and solar is technologically advancing, it is 16 proliferating, and that we think that there is a 17 terribly narrow scope applied to the ER. We want to 18 avoid that being the case with the DEIS. We're 19 confident that the NRC, as a regulatory- agency,,
20 independent of the industry, will examine in-depth the 21 questions that the panel is asking. We'don't believe 22 we have to prove to some enormous standard that this 23 will happen. We think we have posited more than 24 enough evidence to show that there's a 51 percent 25 chance that it will.
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76 1 .JUDGE TRIKOUROS: And that's understood.
2 The criterion that we're discussing, which I indicated 3 earlier was the major criterion that we're dealing 4 with, is this base load capacity issue. And if wind 5 were clearly a base load alternative, then clearly 6 wind should have been included in,'the'environmental 7 report, along with naturalgas and coal, as a detailed 8 alternative evaluated in a tabular fashion with 9 whatever studies were necessary and evaluations were 10 necessary. That was not done for wind and solar.
11 Clearly, that's your contention, and what we're trying 12 to determine is should it have been done? And the key 13 criterion that we're discussing now is whether, or not 14 indeed it is base load or can be considered base load.
15 What we've determined so far is that if 16 it's a consideration of interconnected wind farms 17 combined with storage, and the only storage that's 18 been discussed at any length is compressed air 19 storage, that' you're claiming that that combination 20 for wind is base load capable.
21 MR. LODGE: Yes.
22 JUDGE TRIKOUROS: For solar, you're 23 claiming something similar, something similar, but in 24 your pleading you specifically mentioned for solar 25 that it does include backup power. I will point you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W; (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
77 1 tothat-in a-moment. Is-that your position that for 2 solar, if we agreed on the wind side of your 3 assertion, for the solar side, is it some sort of 4 combination of solar voltaic with compressed air 51 storage and backup power?
6 MR. LODGE: It is storage plus -- pardon 7 me. It's solar plus a storage mechanism.
8 JUDGE TRIKOUROS: Plus storage.
9 MR. LODGE: Yes.
10 JUDGE TRIKOUROS: Not backup with fossil 11 fuel, other than what's necessary for the compressed 12 air storage?
13 MR. LODGE: Correct.
14 JUDGE TRIKOUROS: Okay.
15 MR. LODGE: Dr. Campana reminds me that it 16 wasn't our obligation to explain all of the nuances of 17 CAES. We were talking about that as an example of 18 backup storage.
19 JUDGE TRIKOUROS: I'm not interested in 20, the details of CAES at all at this stage here.
21 There's'a figure that I believe you provided in your 22 petition, but it's from your Exhibit 2.1, I believe.
23 Figure 3, I think, in your Exhibit 21.
24 MR. LODGE: Do you know what page it's on,'
- 25 sir?
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78 1 JUDGE TRIKOUROS: It may-have-beeninyour 2 petition, as well. It's a study that was done looking 3 at, I guess it was a computer simulation, that was 4 done. It looked at 1500 kilowatts, I guess, as the 5 base for the computer study, although the relative 6 numbers would be the same for 1500 megawatts or 7 whatever. And it shows how much electricity, so to 8 speak, would be available as a function of hours in a 9 year for one wind site, seven wind sites, and 19 wind 10 sites.
11 MR. LODGE: By chance, do you know where 12 that is?
13 JUDGETRIKOUROS: What's that?
14 MR. LODGE: By chance, do you know what 15 page that's on?
16 JUDGE TRIKOUROS: It's Exhibit 21, Figure 17 3. Oh, what page in Exhibit 21? I think it's in the 18 executive summary of Exhibit 21. Yes, it's Figure 3 19 from Exhibit 21, and I believe it's also in your 20 petition.
21 MR. LODGE: Yes, it's in our petition on 22 page 40.
23 JUDGE TRIKOUROS: Okay. I went to the 24 exhibit because I wanted to understand a little more 25 about the figure.
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79 1 MR. LODGE: And what is- your -question, 2 sir? I apologize.
3 JUDGE TRIKOUROS: Well, I want to make 4 sure I understand it. It's your exhibit. It's your 5 information. It shows that the, if we were to talk 6 about base load capacity being something in the range 7 of 60 or 70 percent of the hours in a year, it looks 8 to me like even 19 interconnected wind sites, 19, 9 would provide something on the order of 20 percent of 10 the available energy. In other words, for 1500, if it 11 were megawatts, one would be able to reliably derive 12 on a -base load basis 300 megawatts. So is this 13 saying, in essence, that for these interconnected wind 14 sites that for 910 megawatts one would have to build 15 4,500 installed kilowatts in order for that purpose or 16 perhaps something less with storage? Is this where 17 you're going with this?
18 MR. LODGE: The NREL, we understand, 19 recognizes a 30 percent capacity factor, not 20, just 20 to partially answer your question. You- were asking 21 then what about the storage? What was the latter part 22 of your question, please?
23 JUDGE TRIKOUROS: Well, what I'm saying is 24 the only way that I can understand that it would be 25 considered base load would be if it were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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80 1 interconnected because-that-does provide---a base load,-
2 but it's a small percentage of the installed capacity.
3 So is what you're saying that one would have to build 4 multiples of the Davis-Besse's power capability in 5 order to derive the Davis-Besse power capability? Is 6 this what I would derive out of this?
7 MR. LODGE: Yes. The answer to your 8 question is yes, but we differ, of course, on the 9 capacity numbers.- And what would the multiples be?
10 Would it be 900 kilowatts 365 days a year, 900 11 kilowatts 270 days a year. on average?. That's where we 12 differ. But, yes, of course, with the lower capacity 13 output from wind generators you're going to have to 14 deal with multiples. However, we're looking at the 15 same type of mix of backup offsite energy whenever 16 Davis-Besse is out as we are looking at for a 17 comparable wind array.
18 JUDGE TRIKOUROS: And I think the issue of 19 how much capacity might be further something that's 20 evaluated, if the contention were admitted and one did' 21 a real alternatives analysis, one would have to make 22 those determinations. I'm~not trying, by any stretch, 23 to do that here. I just simply want to understand the 24 figure that you presented, and I think you've answered 25 that question., So it's for reasons like this that I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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81 1 asking you again if yourcontention-is, when yousay 2 wind power, are you talking interconnected wind farms?
3 MR. LODGE: Yes.
4 JUDGE TRIKOUROS: That is. your position?
5 Okay.
6 JUDGE KASTENBERG: I have a question for 7 the applicant. I have a copy of the environmental 8 report, page 7.2-9 where you discuss wind power in the 9 ER. And in your second. paragraph, you say, "Thus, 10 wind power in coastal Ohio along Lake Erie and along.
11 ridge; lines in Pennsylvania ,and West Virginia is a
- 12. feasible alternative to Davis-Besse renewal in 13 theory," and then you go on,, "However, wind power by 14 itself is not suitable for large base load capacity."
15 I guess the first question is how, do you reconcile 16 this statement with what we just heard from the 17 petitioner? I know in your reply you have a pretty 18 extensive response, but I just would like to hear it 19 today. How do you reply to-what --
20 MR. POLONSKY: Sure. Thank you, your 21 Honor. ',In our answer, we articulate that .this first 22 sentence that you've quoted just goes to the fact that 23 we recognize that wind is:blowing in lots of places in 24 Pennsylvania, Ohio, etcetera. That in no way makes 25 wind a base'load power in our estimation, and that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W..
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82 1 why the next sentence simply- says-you still-can't have 2 large base load power. Judge Trikouros, you were 3 commenting before about potentially 77 exhibits that 4 relate to these contentions and,. in fact, the expert 5 affidavit that they provide for the contention, all of.
6 those are, frankly, irrelevant because all of those 7 challenge whether or not we're in class three, class 8 four, class five, how strong the wind blows. And we 9 don't think the Board needs to look at any of those.
10 because we have this statement in here that says,,
11 look, we acknowledge.-the wind blows, but it doesn't 12 mean that it blows at base load capacity. And base 13 load, as we articulate in our answer, is very 14 different
- than what we think petitioners are 15 articulating. We are not saying 100 percent power.
16 That appears no where in our answer. We cite to legal 17 precedent which is, and this comes from the 7th 18 Circuit, energy intended to continuously produce 19 electricity at or near full capacity with high 20 availability. That's in our answer on page 35.
21 In petitioners' own exhibits, Exhibit 11, 22 they have a statement which defines in a glossary what 23 base load is, and their definition is electricity 24 generation on a continuous basis by large-scale power 25 plants.. And finally an ALAB decision wh~ich we cite in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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83 1 our answer on page 35 defines base load as base load.
2 units are designed to run continuously except for 3 maintenance to meet the constant portion of the 4 utility's load. We don't think that there's any 5 attachment that they provided which demonstrates base 6 load power as defined by these, at least a legal 7 precedent for 908 megawatts electric by 2017 in the 8 state of Ohio. And there's a misperception here about 9 what the region of interest is. This is not a new 10 reactor proceeding where the standard typically is 11 where could you put the site within the utility's 12 territory. This is an existing-reactor. We're not 13 moving Davis-Besse as part of the renewal. It's going 14 to be here in Ohio. And the region of interest, as 15 stated on the very first page of Section 7.2 of the ER 16 says that FirstEnergy and its subsidiaries and other 17 participants in the wholesale power market would lose 18 approximately 910 megawatts electric of base load 19 capacity. So it's Ohio and the wholesale competitive 20 market here, it's not New Jersey. This power is not 21 going to New Jersey, and there' s no demonstration that 22 if there was wind power available in New Jersey'that 23 in any way it could be transmitted here.
24 So throwing all the offshore wind farms in 25 the Atlantic Ocean which don't ýexist today, not a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
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84 1 single one, and even if it. could -exist -that's not 2 relevant. It might as well be Germany and the 3 gigawatts of power that they allege is available or 4 soon to be available overseas. It simply is not 5 adequate support to make a genuine dispute of material 6 fact here.
7 JUDGE KASTENBERG: I understood, I think, 8 from petitioner that FirstEnergy is building a wind 9 plant somewhere here in the state of Ohio?
10 MR. POLONSKY: My understanding is that 11 FirstEnergy has agreed to purchase or participate in 12 a wind project for up to, I believe it's 100 13 megawatts.
14 JUDGE KASTENBERG: And would that be used 15 for base load power?
16 MR. POLONSKY: No, your Honor. It's 17 supplemental power.
18 JUDGE KASTENBERG: Supplemental power.
19 And then, last but not least, the last sentence here 20 in that same paragraph where you discuss energy 21 storage, current energy storage technologies are too 22 expensive for wind power to serve as a large base load 23 generator. Is that the criteria that was used 24 basicall'y to rule out -wind energy plus storage, 25 strictly on cost?
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85 1 .. MR. POLONSKY: Well, the energy--storage, 2 let's take a look globally at what compressed air 3 energy storage is. There are very few facilities, and.
4 I think we're talking two or three that even exist in 5 the world simply because this is not something that 6 you can hire Bechtel to build above ground for you.
7 This is a geologic-specific energy storage mechanism 8 that requires an existing cavern somewhere, so it's 9 not like you can just say here's a wind farm, let's 10 put energy storage here. They only exist in very few 11 areas of the country.
12 The fact that there are only two and the 13 first built, according to petitioners, was in the 70s 14 and that they, at maximum, are only 100 megawatts, as 15 pleaded in the petition, I think by itself 16 demonstrates that that is not base load power and it 17 ..argues, frankly, that it's not commercially available.
18 So all of those are reasons why compressed air energy 19 storage, by itself or even in combination, can't 20 provide base load energy. In fact, it's not base 21 load. It's somehow peaking, and that's how it's 22 described in the documents.
23 The only document which I think is.
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86 1 future-looking futuristic document by DOE-NREL. I2 11 2 find the attachment number. Maybe it's 20. And the 3 title of the document itself says it's a concept, and 4 that's what that single page is. It's a concept 5 paper. That is something that FirstEnergy is 6 investigating the feasibility of in the Norton Energy 7 Project. But for purposes of NEPA and the rule of 8 reason, it doesn't mean that it's going to be 9 available by 2017 at 908 megawatts. And even then, 10 it's not going to be base load power. It's 11 supplemental power.
12 CHAIRMAN FROEHLICH: Exhibit 20, what you 13 just cited to, does include the sentence that says, "A 14 base load wind system can produce stable, reliable 15 output that can replace conventional fossil or nuclear 16 base load plant, instead of merely supplementing its 17 output.", Is not this a source, an alleged fact that, 18 as. you know, comes from NREL or DOE National 19 Laboratory that perhaps base load, a base load wind 20 does exist, that you can look at wind as a base load 21 source?
22 MR. POLONSKY: I think the only thing I 23 would change in your statement, your Honor, is that it 24 hypothetically could. And as a concept, which is all-25 this single page is, they're exploring it as a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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87 1 concept. That, as a- matter of-law under NEPA, is 2 remote and speculative. Should it be explored?
3 Absolutely. Is FirstEnergy exploring it? Absolutely.
4 But it doesn't mean that it is in any way a reasonable 5 alternative to re-licensing a 908 megawatt electric 6 plant that will enter its re-licensing period in 2017.
7 CHAIRMAN FROEHLICH: And could I ask the 8 NRC staff to what extent does the NRC staff look at 9 wind or alternative energy sources in the preparation 10 of the EIS?
11 MS. MONTEITH: The NRC staff does look at 12 wind as an alternative in its preparation of 13 supplemental EISs. It's included in the GEIS, so it's 14 been done generically. And in the GEIS, it was 15 determined that it's not a reasonable alternative to 16 license renewal, although it has to be looked at site 17 specifically for license renewal as well. It's looked 18 at in each review, and it's also looked at 19 occasionally in combination with fossil fuel.
20 CHAIRMAN FROEHLICH: Could you just 21 elaborate a little bit to what extent it's reviewed?
22 I mean, is it reviewed to the extent,. for example, 23 that we see in the ER four paragraphs, which says that 24 it'.s theoretically possible but not a feasible -- I 25 mean, how extensively reviewed will this get by the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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88 1 . NRC staff and-the EIS? .
9 2 MS. MONTEITH: If I may answer quickly and 3 then consult with the staff, the ER is used, it's 4 information provided to the NRC for use in the NRC 5 supplemental EIS. .so it looks at an ER, and then 6 typically goes beyond what is phrased in the.ER when 7 they do an SEIS. And if I may have a moment. The 8 staff examination of wind varies considerably by 9 location, so the staff looks at the resources 10 available in the location, the plants undergoing a 11 license renewal review. It looks at information 12 that's currently available, and staff is getting 13 started on its analysis of the Davis-Besse EIS at the
- 14 moment.
15 CHAIRMAN FROEHLICH: And the level of 16 analysis in the EIS, does that differ between a COL, 17 a combined operating license, a renewal, or is it the 18 same level of detail?
19 MR. HARRIS: When we're looking at new 20 reactors, I mean, it is a different case in terms of 21 the scope of the proceeding and how we look at that.
22 I mean, in terms of NEPA, NEPA is relatively all-23 encompassing in terms of having to deal with all the 24 environmental impacts of a particular decision. But, 25 you know, it's also limited by the decision that we're NEAL R. GROSS, COURT REPORTERS AND TRANSCRIBERS AVE., N.W.
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89 1 looking at. So -when we look- at it in the-.scope of-new 2 reactors, and I can't say for sure exactly how new 3 reactors has analyzed it because I don't have a staff 4 person available that can answer that question and I 5 could be happy to provide that at a later date 'if 6 necessary, but they look at wind. And just because 7 the EIS 'that will eventually produce in the 8 supplemental and then in our final may go beyond what 9 the ER is, that doesn't mean that that was necessarily 10 required by NEPA. The staff can and often does try to 11 do a full and thorough analysis for the issues that 12 are raised with that license renewal proceeding.
13 So what we're looking at and trying to 14 decide here is whether or not what's in the ER is 15 sufficient to satisfy NEPA, not necessarily what the 16 staff will eventually produce, if that's going to be 17 of a greater amount than what's currently in the-ER.
18 JUDGE KASTENBERG: Do you know when the 19 updated GEIS will be published?
20 MS. MONTEITH: The revised guide?
21 JUDGE KASTENBERG: The revised, yes.
22 MS. MONTEITH: ' That was published for 23 comment in 2009, and the comment period closed. The 24 staff is currently making revisions to the GEIS and 25 responding and is in the process of responding to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 comments th'at were -raised-when it was publi-shed. So 2 I believe that process, the review process there is 3 nearing completion, but I don't have a specific date.
4 JUDGE KASTENBERG: Are you comfortable 5 with the applicant using the 1996 GEIS knowing what's 6 in the updated version, the revised version?
7 MS. MONTEITH: Well, the revised version 8 isn't done, isn't really available for use at the 9 moment because it's a draft. But I think what this 10 goes to is the fact that the applicant examined wind ii power and decided that it's not a reasonable 12 alternative. If I may, a moment.
13 JUDGE KASTENBERG: They quote the GEIS in 14 that determination.
- 15. MS. MONTEITH: Correct. That is 16 sufficient for the purposes for which it was quoted.
17 When the applicant determined that it's not a 18 reasonable alternative, they weren't required to do 19 more than to provide a brief discussion of the reasons 20 for it having been eliminated. The standards for 21 information contained in that type of discussion is 22 not as strict as if they had considered it a 23 reasonable alternative and then analyzed it under that 24 process. And the standard that I just mentioned 25 briefly discussing the reasons for having been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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91 1 eliminated is CEQ- regulation -CFR- 1502.-14,-which is 2 not binding on the Board because it hasn't been 3 expressly adopted by the Commission but it is entitled 4 to considerable deference.
5 JUDGE KASTENBERG: Thank you.
6 MR. POLONSKY: Your Honor, if I could just 7 add something here. There is an obligation on the 8 applicant to look at new and significant information.
9 We did this. I think the ER is plain on its face that 10 we're not just citing the 1986 GEIS. There are 11 references to 2008 data and citations to USDOE 2009, 12 and this is all on page 7.2-9. So for wind power, 13 we're not simply relying on 1986 data. We have 2009 14 updates, 2008 updates, and so it is not accurate to 15 say that we simply relied on 14-year-old or 15-year-16 old data. That's not true at all.
17 MR. LODGE:' If the petitioners could be 18 heard, the fastest-growing energy source in the United 19 States and on the face of the planet received about 20 the same treatment lengthwise, number of pages, as 21 geothermal was given. 2009 data is not as good as 22 2010 data when the application was submitted. This is 23 a rapidly-changing picture. There is so much reliance 24 and over-reliance on the, 1996 GEIS. It shouldn't even 25 be mentioned because the data is so dated and utterly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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92 invalid. -Technological -advances, _.for- -instance,- .. in 2 solar photovoltaic have reduced the amount of 3 footprint that would be necessary. I won't go into 4 that.
5 I would like to point out that Exhibit' 54
.6 which is in the solar section, but it's a press 7 release dated November 23rd, 2009 from FirstEnergy.
8 It announces the acquisition of the Norton Energy 9 Storage Project, the CAES that we're-talking about..
10 And it mentions that there's essentially an option on 11 a 600-acre underground cavern that can be expanded up 12 to 2700 megawatts of capacity. So we're talking about 13 a very large storage facility. We're talking about a 14 very realistic viable alternative that could, in 15 tandem With solar or wind, be seriously considered.
16 And, again, it is a mistake to require 17 this enormous proof that a word, "base load," which 18 apparently doesn't have common agreement here today, 19 should dictate and govern whether or not these 20 alternatives be considered in a very serious fashion.
21 JUDGE TRIKOUROS: Well, let me comment on 22 that. First of all, that exhibit, it's 49 I believe, 23 Exhibit 49 24 MR. LODGE: Fifty-four.
25 JUDGE TRIKOUROS: Was it 54?
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,93 1 MR..' LODGE: 'Yesf, sir.
2 JUDGE TRIKOUROS: 'It's called the Norton 3 Energy Project, I believe,- that you provided. There 4 is a forward-looking, what they refer to.'as a forward-5- looking statement there that just is replete with 6 don't believe everything I say here,i I'm speculating.
7 So that is a rather difficult document to take on face 8 Value. as there will'be 270.0 megawatts of compressed 9 air storage by this date. They themselves clearly say 10 that that's highly unlikely. In fact,, I think that's 11 the term that they used. But clearly the fact that 12 they did *purchase it and they are moving forward with 13 it has some significance.
14 The applicant makes a point of indicating 15 .,and they said it here and they've said it in their 16 documents that if you look at all -of the exhibits 17 there really are only a few that deal with base load, 18 and I think they've identified four or some number 19 like that. We looked at those, and one of them, for 20 example, you reference as a book by Dr. Makhijani.
21 It's a 290-page book. You offered it.as an exhibit, 22 but you never told .us where to look in there for what 23 you -wanted. to accomplish. You know, it wasn't, I 24 don't think we're under any obligation to search 25 through a 290-page book and speculate as to what it -is.
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94.
1 you wanted-us to look- -at. But-- having., said- that,. I 2 will tell you that there's nothing in there that I saw 3 that indicated any cost effectiveness of compressed 4 air storage, but you offered it for the cost 5 effectiveness .discussion. .. But, again, cost 6 effectiveness, is not a critical -criterion at this 7 stage. It is a more appropriate, criterion for a 8 detailed evaluation but not necessarily at this stage.
9 MR. LODGE: Yes, sir. And that 10 incidentally is the way we feel about the* Norton 11 Storage Project. NEPA does require the examination of 12 feasible alternatives, and certainly feasibility is 13 not a very serious issue here when it comes to the 14 battery.
15 JUDGE TRIKOUROS: Let me ask you has 16 anyone, other than the two that are out there, I think 17 there's one in Alabama and one in Germany, is anyone 18 seriously planning to build a compressed air storage 19 facility in combination with wind and solar that you 20 know of in the U.S.?
21 MR. LODGE: We understand that there's a 22 facility in Iowa that is under some. development.
23 JUDGE TRIKOUROS: And that is a serious 24 plan? I'm talking design, the economic considerations 25 have been made, all of that?
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95 1- MR.- LODGE: - I don't know-if-I-can offer 2 you the SEC warnings.
3 JUDGE TRIKOUROS: Okay. All right. In 4 terms of wind power by 2017 and especially given what 5 we've talked about in terms of the kinds of capacity 6 that one would have to install to approach a Davis-7 Besse replacement level, what makes you believe that 8 it is not speculative to believe that that could be 9 done in six years?
10 MR. LODGE: The same thing that makes it
.11 not speculative to think that within six years some 12 other serious problem might, occur at Davis-Besse, sir.
13 This is all about calculating risk, but that isn't 14 really a very central part of the NEPA consideration.
15 What guarantees we have that Davis-Besse is going to 16 operate at a 75-percent or whatever capacity factor or 17 not have some other more serious cataclysmic problem 18 as occurred in 2002?
19 JUDGE TRIKOUROS: Do you see those two 20 issues as the same?
21 MR. LODGE: Nd, I don't see them as the 22 same.
23 JUDGE TRIKOUROS: Something that happened 24 at Davis-Besse versus --
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96 1 -if it is speculative to- think --that inremental-wind 9 2 and/or photovoltaic is merely some wild speculation, 3 it may 'be some wild speculation to assume the 4 availability in 2017 of Davis-Besse.
5 JUDGE TRIKOUROS: Okay. Well, let's get.
6 something straight. First of all, the Bbardis simply 7 trying to put in perspective the situation that we're 8 dealing with right now with respect to the Davis-Besse 9 license renewal. We make no representation about how 10 great or not great solar and wind are. They may be 11 the greatest thing since ever in the next few years.
12 I don't know. But right now and looking only to 2017 13 and looking at the need to replace base load power, 14 and that is a concept that the utilities function 15 under that is essential to provide electricity when 16 people plug in. I don't think anybody wants to plug 17 in and not have power. So it's an essential concept.
18 It is not something that one could just say, you know, 19 why consider base load?
- 20. MR. LODGE: Correct.
21 JUDGE TRIKOUROS: So looking at 2017 and 22 with everything we've put together in terms of 23 installed capacities, we're talking about the 24 likelihood of putting together an interconnected wind 25 farm, possibly in conjunction with solar photovoltaic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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97 1 -- based--on..-contention- threei--with-a large----amount -of--
2 compressed air storage by 2017, six years from today.
3 So I.'m asking you is that speculative in your mind, or 4 are you saying that that is of virtual certainty that 5 that can be done?
6 MR. LODGE: Yes, sir, there is an element 7 of speculation. Absolutely. I can't tell you what 8 percentage. I can't quantify it. However, it is a 9 feasible, articulated and, in 'fact, very detailed 10 possibility which we believe is encompassed by. the 11 NEPA requirements incumbent on this proceeding.
12 CHAIRMAN FROEHLICH: Let me drop back to 13 Mr. Polonsky, if I could for a moment. If you read 14 Exhibit 20, which we had just spoken about a few 15 minutes ago, that the NREL DOE report study and put 16 that together with the petitioners' exhibit, and I 17 don't have the number handy, of supplying base load 18 power and reducing transmission requirements by 19 interconnected wind farm from the Journal of Applied 20 Meteorology at Stanford. Haven't they put together at 21 least some alleged facts that wind can be viewed as 22 base load power?
23 MR. POLONSKY: Your Honor, the answer is 24 no. The Commission has, in many other proceedings, 25 said that support is not enough because they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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98 1 constantly- say--i-t-. is poor-ly--supported and, therefore, 2 not admissible. So just throwing 'out support 3 obviously is not enough. It has to be adequate 4 support. And under the framework of NEPA, which is 5 the lenses that we are viewing these two documents 6 with, I have a document which is a forward-looking, in 7 fact titled concept paper. It is a conceptual idea.
8 It exists nowhere in the world. And I then have a 9 desktop paper study which, again, is a concept, a 10 forward-looking idea which doesn't currently exist 11 anywhere in the world.
12 CHAIRMAN FROEHLICH: What are you looking 13 at now?
14 MR. POLONSKY: I'm looking at Exhibit 20 15 and 21, which are the NREL storage concepts paper and 16 the supplying base load -and reducing transmission 17 requirements by interconnecting wind farms. None of 18 this suggests that these mechanisms would be in place 19 by 2017, and that is, again, the lense that we need to 20 look at this through. Andbecause of that, they, I 21 believe, and it is explicitly said in our answer, as 22 a matter of law, this is deficient for an admissible 23 contention under NEPA.
24 CHAIRMAN FROEHLICH: Because of the 25 timing?
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99 1 . .. MR. POLONSKY.: . -Because of all of it. The 2 timing, the region of influence, the 908 megawatts, 3 the definition of the proposed action. You can't just 4 look at base load and say, oh, base load. Well, base 5 load at 2 kilowatts is still remote and speculative 6 under NEPA for the proposed action which is .908 7 megawatts by 2017 operating for 20 years as. a base 8 load operating plant.
9 JUDGE KASTENBERG: And the corollary to 10 that is without storage wind power could not be 11 considered base load at all. This all hinges on the 12 feasibility of storage and not necessarily the 13 windmills themselves?
14 MR. POLONSKY: That's the way. we read it, 15 your Honor, because of the definition of base load, 16 which simply defines things as continuously available 17 with high availability. I can go back and look at the 18 exact definition. We cite it on page 35 of our V 19 answer. But wind, by its very nature, is never going 20 to be there. The same way solar power is never going 21 to get there.
22 JUDGE TRIKOUROS: Well, okay. That's an 23, alternative analysis that if one did an alternative 24 analysis on a wind concept one might reach that 25 conclusion. -That's where we are right now, right?
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100 1 . MR. POLONSKY: Your-Honor,-Idon t -look--at 2 this as a contention of omission. A contention of 3 omission would say there's nothing in your ER about 4 this at all, you don't discuss wind, you're blind to 5 the existence of wind power. That's not at all what's 6 here. There is essentially.a page of single-spaced 7 writing *in Section 7.2 of the environmental report 8 discussing wind power. So we've met our legal 9 obligation under NEPA to evaluate at.a very threshold 10 level whether this is reasonable. And if it is a 11 reasonable alternative, only then do you take the 12 spring board into the more detailed analysis. But we 13 have discussed it, and we discussed it at the level 14 that NEPA requires.
15 CHAIRMAN FROEHLICH: In your discussion, 16 that one page at 7.2-9,- you said that wind conditions 17 are variable, energy storage technology is not 18 currently supply to most closely match demand. It was 19 that portion of that sentence that I was not quite 20 sure of. Matching demand, how does that tie in with 21 the definition we're using for base load? It's the 22 second line in the last paragraph.
23 MR. POLONSKY.: I'm sorry.. I'm on page 24 7.2-9. Am I on the wrong page?
25 CHAIRMAN FROEHLICH:
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101 1 paragraph -under wind- on Tab7e--.-2--9. -And--you talk 2 about the wind conditions being variable and energy 3 storage technology that don't-currently allow supply 4 to more closely match demand. And that supply 5 matching demand somehow doesn't sort of, at least in 6 my mind, tie in with our discussion of base load.
7 MR. POLONSKY: The, way I read it,. I think 8 it goes directly to what Judge Trikouros was saying 9 about when the utilities or the regional reliability 10 counsel is trying to figure out when people. will need 11 power and they plug in that electrical, device into the 12 outlet that they will have power. That is supply 13 closely matching demand. And for the same reason that 14 if I want to plug in. and expect power to be there and 15 if I'm relying on wind, it may or may not be there 16 because it does not have high reliability. That is 17 the very reason why it can't be. base load. And I 18 think we've been talking about 20 or 30 percent, 19 whatever it is, reliability. That's~not within the 20 definition of. base load.',*
21 JUDGE TRIKOUROS: In these various 22 documents, there seems to be some confusion as to what 23 different parties mean, and I wanted to ask this 24 question regarding that. Petitioners, in their reply, 25 are addressing actually one of the comments made in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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102 1 the- staff' s- answer, -I-think-i-t- s-on-pages 15., -probably 2 the bottom of 15, top of 16, where the staff says, 3 "The joint petitioners have not provided sufficient 4 information to. show a genuine dispute with the ER's 5 conclusions that solar power and wind power cannot 6 replace Davis-Besse as a source of 910 megawatts 7 electric of base load power by 2017;" The staff 8 suggests that neither solar nor wind can be 9 implemented by 2017 here. Is that staff's position?
10 MS. MONTEITH: It's the staff's position 11 that the petition and the documents that it references 12 do not establish that assertion, that it could be a 13 base load provider of approximately 910 megawatt hours 14 electric by 2017.
15 JUDGE TRIKOUROS: Okay. And the reply 16 from the petitioners goes on to explain how it is 17 physically possible to build a large amount of solar 18 and wind by 2017, physically possible. And your 19 answer just now was not focusing entirely on the 20 physically possible but on what you would accomplish 21 if you did so you were physically building these 22 facilities. Would they be capable of doing the job 23 that we're talking about, namely the base load 24 replacement?
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103 1 the- storage, or-transmission? .
2 JUDGE TRIKOUROS: Well, again, I think the 3 petitioner was addressing the physical possibility of 4 actually constructing something, and I believe that, 5 from your pleading, it sounded like you were saying 6 that it wouldn't be base'load if you built, that you 7 couldn't build enough to be base load. In other 8 words,. when I read the -two I just discerned the 9 difference in, are you saying you-physically couldn't 10 build solar or wind facilities by 2017.physically? I 11 mean, you decided to build X megawatts of solar and 12 wind: You couldn't do that by 2017?
13 MS. MONTEITH: Well, NRC wouldn't be doing 14 that, but we're not, saying that it could not, I.mean, 15 in any situation ever be done. It's possible that it 16 could be done, but the petition and the documents that 17 they're using in support of this information don't 18 actually establish that. They don't even suggest that 19 really. That was the staff's position. If the 20 petitioners could bring forward information to show 21 that this is a -- what was the standard -- likely to 22 exist by 2017 that may answer your question, but, they 23 have not is the staff's position.
24 JUDGE TRIKOUROS:, Okay.
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104 1 contention two,---which -focuses-on'- solar, solar- as- a 2 reasonable alternative. Just for my non-scientific 3 mind, this contention talks about solar electric power 4 or photovoltaics. What is the difference between the 5 two as you use it in paragraph 123 and your 6 contention?
7 MR. LODGE: It's the same.
8 CHAIRMAN FROEHLICH: They're the same.
9 Okay. Sowe're looking at photovoltaic as an offset 10 to energy production from Davis-Besse. And does 11 contention two, photovoltaic, imply you need solar 12 with storage of some sort?
13 MR. LODGE:. Yes, sir.
14 CHAIRMAN FROEHLICH: Okay. Do you say 15 that anywhere in contention two or in your concise 16 statement of the issue that you're putting into 17 dispute, just like we did for contention one?
18 MR. LODGE: I think in the reply we talked 19 about CAES, so the direct answer to your question, 20 sir, is give me a minute and let us look for it, but 21 it certainly is not in the first paragraph. Yes, page 22 71. There's a paragraph beginning on page 70 and 23 number 125 has ..
24 CHAIRMAN FROEHLICH: Is that in the reply?
25 MR. LODGE: Pardon me. It's in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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105 1 origginal-petition.
2, CHAIRMAN FROEHLICH: Okay.
3 MR. LODGE: Paragraph 125 which begins on 4 page 70 but at the bottom in a subparagraph 7 on page 5 71 there's.a discussion of underground, air storage.
6 CHAIRMAN FROEHLICH. All right. And 7 contention two is the contentiohn 'for which you have a 8 declarant Ph.D. physicist, as I recall?
9 MR. LODGE: That is correct.
10 CHAIRMAN FROEHLICH: Okay. And his 11 declaration covered contention two. Does it also 12 apply in any way to contention three, our combination; 13 or is it limited to, the paragraphs stated in his 14 declaration, which I-.believe would keep it to number 15 two?
16 MR. LODGE: Well, I think in terms of it 17 being incorporated into the joint use. deployment of 18 wind and solar over photovoltaic, it certainly could 19 be imputed into that claim, that contention.
20 JUDGE KASTENBERG: I have a question for 21 you, Petitioner.' Regarding solar arrays, do you know 22 of any place in the United States where there's been 23 a base load solar electric generating station that's 24 capable of'generating .something on the order of 900' 25 megawatts?
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106 1 MR. -LODGE-:---....
No,- but- there's an--American 2 Electric Power installation in Wyandotte County, which 3 is approximately not even 60 miles south of here in 4 Ohio which is going to be certainly an example of what 5 volume of electricity can be generated. So no. I 6 mean, the direct answer is no.
7 JUDGE KASTENBERG: Is anybody planning on 8 building a central station solar generating plant in 9 the United States? I know about the facility in 10 Mojave, but I don't believe it's consideredbase load 11 power at all but I may stand corrected.
12 MR. LODGE: First, to be responsive, we're 13 not talking about a single site location that gets 14 into problems associated with climate,,-with weather, 15 with efficiency of the collectors. We're talking 16 about more of a dispersed type of model similar to 17 what wind would be doing, and in terms of the 18 potential for large-scale arrays that could become 19 base load, the first solar factory in Perrysburg, 20 Ohio, as I indicated, is producing thin film 21 essentially 24 hours a day constantly in highly 22 profitable way so far and is generating something on 23 the order of 1200 megawatts per year worth of solar 24 collection capability. So just from that one large-25 scale provider of thin-film photovoltaic collectors, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS.
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107 1 it wou-ld-----be- possible -- feasi-ble,- reasonable .for- the 2 Davis-Besse jurisdiction to. essentially have 3 photovoltaic as a replacement..
4 Incidentally, I'd like to point out that 5 the press release, the joint Department of 6 Energy/Department of Interior February 7th press 7 release talks about 10,000 megawatts installed by 8 2020. And assuming a 30-percent productivity factor 9 from Wind, *we're 'talking, nonetheless, about being 10 able, if a lot of that capacity were being built here, 11 and I'm getting I guess into the combined contention, 12 but we're talking about realistic potential for 13 offshore and onshore wind in the Great Lakes region.
14 And we're talking about onshore photovoltaic, and 15 we're talking about the suppliers are there, certainly I. 16 the unemployed workforce is there, the factors are 17 there. And we're talking about having to prove it to 18 beyond a reasonable doubt. We're talking about 19 articulating very serious alternatives and. having them 20 analyzed, in effect having the Agency acknowledge 21 these very real options so that the public will be 22 informed, which is the environmental democracy goal of 23 NEPA.
24 JUDGE TRIKOUROS: In your reply, you 25 indicate that the solar generation option, which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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108 1 includes- an--integrated----stdrage--unit -not-unlike--the 2 storage regularly used by nuclear and coal plant, 3 would accomplish the purpose of the proposed project, 4 namely. 908 megawatts electric. The petitioners, I'm 5 sorry, you indicate that it would be single-source 6 solar panels that would be located in this vicinity 7 and that there would be no impact on land usage.
8 Excuse me, I have to paraphrase or I'd be sitting here 9 reading.
i0 What do you mean with no impact on -land 11 usage, first of all? And it almost sounds like you're 12 describing a concept where the storage would be almost 13 like a hybrid car that's powering a battery where the 14 engine is powering the battery and not running the 15 dar. I don't understand. It's on pages 20 to 21 of.
16 your petition.
17 MR. LODGE: On page 18, your Honor, the 18 physical footprint of solar is discussed and rooftop 19 installations can reduce the amount of land needed 20 significantly without impairing the use of the 21 buildings underneath the installations. And there are 22 some calculations that talk about Davis-Besse, 23 pointing out, incidentally, Davis-Besse occupies 950 24 core acres. Effectively, the calculations of 18 and 25 19 discuss how rooftop solar probably could be used NEAL R. GROSS.
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109 1 for most -of-.-such -a- 7deploymen-t-. ..
2 JUDGE TRIKOUROS: By 2017?
3 MR. LODGE: Yes.
4 JUDGE TRIKOUROS: You also say this source 5 would utilize storage to provide continuous supply.
6 MR. LODGE: Yes.
7 JUDGE TRIKOUROS: What does that mean?
8 The storage would provide the continuous supply?
9 MR. LODGE: Right, yes. In combination, 10 yes.
11 JUDGE TRIKOUROS: And so I also asked the 12 question why did your original contention not discuss 13 storage indirectly in the statement?
14 MR. LODGE: That's draftsmanship. But it 15 certainly did not address it. Maybe it wasn't as 16 concisely drafted as the panel might like, but it's 17 there.
18 JUDGE TRIKOUROS: Okay. In your petition 19 on page 71 you have a number of claims. Claim number 20 seven indicates that economic resources of energy 21 storage and backup power are available to provide good 22 base load power in conjunction with solar. Now, when 23 I read that, it sounds like you're saying you need 24 solar plus energy storage plus backup power. Am I 25 reading that correctly?
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110
- MR..-LODGE:- -'Yes.-- But- backup-power, as we 2 pointed out, also occurs in the case of Davis-Besse 3 and any nuclear power plant.
4 JUDGE TRIKOUROS: I'm sorry. Say that 5 again.
6 MR. LODGE: Backup power is also necessary 7 from time to time in the case of a nuclear --
8 JUDGE TRIKOUROS: Well, yes.
9 MR. LODGE: Okay. I understand.
10 JUDGE TRIKOUROS: We. had an earlier 11 discussion this morning regarding backup power. We 12 indicated that with compressed air storage you would 13 need fossil energy in fairly large amounts. We put 14 that aside and said beyond that, not just the power 15 necessary to make compressed air storage work, but 16 beyond that would you need any backup power. So this 17 seems to indicate that in order to be a base load 18 situation you need backup power plus storage plus 19 solar. I just want to understand your position.
20 MR. LODGE: Well, while it's there and the 21 wording is unfortunate, it wasn't the petitioners' 22 collective intent to make an argument about backup 23 power being necessary.
24 JUDGE TRIKOUROS: So you did not mean 25 backup power?
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-. MR-. LODGE-:- Well, we postulated- -the-2 compressed air storage as one example of creation of 3 a systemic battery. And to the extent, obviously, to 4 turbo charge a generator, that's part of the example.
5 JUDGE TRIKOUROS: Okay. So it's really 6 compressed air storage. You reference a study, an 7 'NREL report. I think it's your Exhibit 65. And 8 there's a figure El in the executive summary of that 9 exhibit, and you're offering it asa a solar base load 10 consideration, but that figure clearly shows that the 11 impact of the PV solar is only in the-peak of -- could 12 you comment on that? When I look at that figure and 13 I look at the introduction on and off, of solar, it 14 doesn't change.the base power generation. It just 15 changes the -- the peaks stay the same. It's just 16 that the percentage of the peak that's solar shifts.
17 MR. LODGE: It wasn't being offered as" 18 some sort of proof of base load power 19 JUDGE TRIKOUROS: It showed the opposite 20 actually is what my point is. All right. The 21 conclusions and recommendations of that same exhibit 22 indicate, and I'll quote, "Given týhe relatively 23 imnmature'state of analysis of the effects of large-24 scale deployment of PV 0n the grid, it is recommended 25 that, continued efforts be made to devel'0p appropriate NEAL R.,GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.,N.W (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com I
-112 i- -data-setsi--analysis- tools,- and- techniques. *And-we-!re-2 talking about implementing 908 megawatts of base load 3 power in six years. These sound like Ph.D. thesis 4 subjects to me. Could you explain that?
5 MR. LODGE: Dr. Campana, Ph.D., reminds me 6 that there's, nothing wrong with doing continuous 7 analysis, creating a feedback loop of progress that's 8 being made certainly.
9 JUDGE TRIKOUROS: Well, the point I'm 10 trying to make is they're trying to understand the 11 effect of this solar integrated into the grid. It's 12 not something that is old hat. It's new. And as you 13 said, it's. developing rapidly, and we could agree with 14 that. But if we looked at 2017, that's the issue, 15 would there be enough under -- we'd have to build 16 these units and before we build them we would have to 17 do the analyses to understand the effect that they 18 would have when we turned them on, right? We're not 19 just going to guess. And do that by 2017. It sounds 20 speculative, and I'm asking you if, indeed, it is 21 speculative.
22 MR. LODGE: Indeed, there's a speculative 23 quality to it. However, one of the things about 24 solar, happily, is that it's present peaking or base 25 load on the hottest days of the summer, which in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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113 d-1 FENOCs- j-urisdiction- are-the peak usage-days- year-in 2 and year-out. And I think that it is not very 3 speculative to say that there are analyses being 4 conducted now, as with the new American Electric Power 5 array that has been constructed, that there are 6 analyses going on on campus at the University of 7 Toledo for solar equipment. Certainly, there's data 8 being generated constantly and very rapidly and 9 disseminated'very rapidly because it does appear that 10 most of the lights for photovoltaic are green, and 11 it's only going to continue to become less expensive 12 and more feasible rapidly, astronomically.
13 JUDGE TRIKOUROS: Okay, thank you.
14 CHAIRMAN FROEHLICH: All right. I'd like 15 to try to get through the contention three, the 16 combination, before we take a noontime break. And so 17 I'd like to actually start with the staff, if I could.
18 In license renewals and in the preparation of the 19 supplemental EISs, does the staff look at a 20 combination of alternatives as a reasonable 21 alternative and look at it in the more in-depth 22 analysis like the natural gas and coal scenarios in 23 the applicant's EI?
24 MS. MONTEITH: Yes. Again, it's a site-25 specific investigation, so that would depend on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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.114 1 -site-of--the.-pl-ant-7undergoing-a--license-renewa-l- review, 2 but the staff has looked at solar and wind in 3 combination with, I think each and every time a 4 combination with fossil fuel. I think it was met and 5 occasionally been examined as a reasonable 6 alternative.
7 CHAIRMAN FROEHLICH: As a reasonable 8 alternative. So if I looked at like NUREG 1437, 9 Supplement 45 which came out in October 2010 for Salem 10 Hope Creek, in that one, for example, there was' a 11 consideration of offshore winds and renewables 12 amounting to 878 megawatts. Is that right?
13 MS. MONTEITH: I don't have it before me,
- 14. your Honor, but if you have it in front of you that 15 would --
16 CHAIRMAN FROEHLICH: Well, I guess I'm not 17 sure. I looked at it, and if I looked at it 18 correctly, at' least in that instance, the staff 19 considered the combination of alternatives to be a 20 reasonable alternative that was subject to the more 21 in-depth study.
22 MR. HARRIS: I believe that's correct, 23 your Honor, is that we did look at that. But I 24 believe it was also in combination with fossil fuel, 25 so it wasn't just wind power and solar power. It was, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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115 1 1-believe, offshore wind power-.in-combination with 2 coal and natural gas. But.I would want to look at it 3 to make sure, to remind myself of what was in it.
4 MS. MONTEITH: The other factor in that 5 consideration for Salem and Hope Creek and other 6 license renewal proceedings might be the different 7 amount of time between now and the commencement of the 8 license renewal period. So I don't know what that was 9 with Salem and Hope Creek, but there may have been a 10 longer term.
11 CHAIRMAN FROEHLICH: Okay. While you're 12 looking, if you want some homework over lunch, in the 13 South Texas project did the staff look in that 14 instance as a reasonable alternative for a more in-15 depth study a combination of wind with CAES?
16 MS. MONTEITH: Now, that would be a 17 combined license proceeding.
18 CHAIRMAN FROEHLICH: Okay. And is the 19 standard different in a combined license, we touched 20 on this a little earlier, in a combined license 21 proceeding with a renewal?
22 MS. MONTEITH: The standard would be 23 different in the respect that in a license renewal 24 proceeding you have the GEIS and the GEIS' statement
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. - 1 alternative. There- -.is -..-no-... such statement _-to -my-2 knowledge with respect to new combined license 3 proceedings or licensing.
4 CHAIRMAN FROEHLICH: Okay.
5 JUDGE KASTENBERG: I just want to come 6 back to contention number two for the staff. Again, 7 this goes back to the GEIS. In the ER, there are 8 three references under *solar energy to the GEIS to 9 support their argument. Is there anything in the 10 revised GEIS that would undermine their-position that 11 solar is not feasible?
12 MS. MONTEITH: I really can't speak to 13 that, your Honor, because it's actually in the process 14 of being revised right now. So the draft that went 15 out for comment may not even be the version that 16 currently exists.
17 CHAIRMAN FROEHLICH: So I think what 18 you're saying is that you're still really using the I' 19 1996 version of the GEIS until the revisions become 20 final.
21 MS. MONTEITH: Correct. That is the 22, version that is in effect at the moment.
23 CHAIRMAN FROEHLICH: I thank you for your 24 observation on the South Texas COL. I. believe when 25 you look at Salem Hope Creek, that I believe was a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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117 1i A-license--renewal. - . . . . . .
2 MR. HARRIS: Yes, sir, it was a license 3 renewal. I believe, if you look at what. the Salem
.4 plant and Hope Creek, it was an EIS for all three.
5 plants. And I know with Hope Creek, you were looking 6 at something that was really sort of a 20-year, they 7 had come in almost as early as they could in terms of 8 the license renewal process for Hope Creek, so they 9 were looking at a period of 20 years out in terms of 10 Hope Creek.
11 CHAIRMAN FROEHLICH: You're. saying staff 12 considered the offshore wind and renewables amounting 13 to 878 megs to be a reasonable alternative in a 20-14 year time frame?
15 MS. MONTEITH: Yes, for something to be 16 deployed 20 years from the time that the staff 17 considered it.
18 MR. HARRIS: Let me clarify. Salem, 1,I 19 believe, its renewal period is up in the next couple 20 of years, similar to here. Salem 2 is again another 21 few years after that, and Hope Creek basically came in 22 20 years into its original license. So their renewal 23 period, period of standard operations, was 20 years, 24 was really looking at renewing 20 years from, I guess 25 about 2030 something. I don't want to be held to the' NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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118 1 --- -exact date, but -I1can-findý out-what -the--exact date 2 was.
3 CHAIRMAN FROEHLICH: So if you do take a 4 closer look, the earliest plant for license renewal 5 would be how far out and I guess how many megawatts 6 did that, you know --
7 MR. HARRIS: I can find that out for you, 8 your Honor, in terms of when we come back. But I want 9 to emphasize that that EIS was prepared for the re-10 licensing of all three plants. So part of the 11 complicating nature of that is that one of the things 12 to consider was re-licensing one plant versus two 13 plants versus three plants, so you sort of had this 14 kind of step, you know, issue-of trying to deal with 15 all three plants at the same time, which is really not 16 the case here. But I can find the exact dates out.
17 CHAIRMAN FROEHLICH: Although I can't 18 guarantee that therewon',t be:any further questions on 19 the first three contentions, I would propose that we 20 break until -1:30, at which time we'll pick up on the 21 SAMA questions. And we'll stand in adjournment until 22 -that time. 1:30 we'll resume with SAMA.
23 (Whereupon, the foregoing matter went off 24 the record at -12:09 p.m. and went back on 25 the record at 1:30 p.m.)
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119 2 (1:30 p.m.)
3 CHAIRMAN FROEHLICH: Do we have any loose 4 ends from the morning session?
5 MR. LODGE: I just have a request I would 6 like to make of the panel, that if there is time 7 remaining this afternoon before we conclude, my 8 individual representatives of the organizational, 9 intervenors, two of them, would like to make limited 10 statements, if that would be possible. I realize what 11 the order says up to this point.
12 CHAIRMAN FROEHLICH: We'll take that under 13 advisement.
14 MR. LODGE: Thank you.
15 MR. POLONSKY: Your Honor?
16 CHAIRMAN FROEHLICH: Yes?
17 MR. POLONSKY: There is a question about 18 a filing yesterday made by the petitioners. And I i9 didn't know if this was the appropriate time or we 20 table it for later.
21 CHAIRMAN FROEHLICH: Why don't we take it 22 after this session?
23 MR. HARRIS: Your Honor, we had a couple 24 of questions that were pending to the staff when we 25 adjourned. So do you want to start with those now or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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120 1 -... do youu.-want,-to .. I-don't know- if- you-would 1-ike-to
- 2. CHAIRMAN FROEHLICH: If you would like to 3 do it now so that it's in the transcript close to our 4 discussion?
5 MR. HARRIS: Yes, sir. The first thing 6 was the Hope Creek and Salem, the analysis of 7 alternatives that was done in Hope Creek and Salem, I 8 had to put in a few calls because we were. having 9 trouble getting internet connection to actually pull 10 the document down.
11 But the analysis thereis Hope Creek, its 12 relicensing period is 2026, I believe, for Salem.
13 You're really talking in a couple of years.' And that 14 conclusion that you were referencing was to the i5 alternatives if we used some wind power, that that 16 could be used in combination of, you know, the other 17 two nuclear power plants is that that might form a 18 reasonable alternative, especially when you are 19 looking at the very long-term nature of this analysis 20 in.that particular case, which is very different than 21 the short, six-year, time frame that we are looking at 22 here. But it was never wind power could serve as a 23 reasonable alternative to all three of the plants or 24 even, you know, Salem in the next year or two.
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121 1 ..referring.- to, the-. 876--megawatts-... I-_.believe.. is .. the
.2 number that-you had --
3 CHAIRMAN FROEHLICH: Eight seventy-eight.
4 MR. HARRIS: -- 878 megawatts. If you 5 look at that, that is actually more -- that is more of 6 a replacement for Hope Creek than the two Salem plants 7 in terms of the size of the plants that are being 8 replaced there.
9 In terms of the'South Texas proceeding, 10 from my understanding of the alternatives that were, 11 the reasonable alternatives in South Texas, is that 12 they're somewhat tangentially related because they 13 were really discussing more greenhouse gases, rather 14 than, you know, a pure alternatives analysis and that 15 the Board has dismissed that in relationship to the ER 16 and then again when it was re-followed as another 17 contention for the D sites.
18 So either one of those analyses or i9 challenges is being followed by the South Texas Board 20 I believe is the correct answer.
21 MS. MONTEITH: Can we have a moment?
22 CHAIRMAN FROEHLICH: Yes.
.23 (Pause.)
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122 1 -of Hope Creek- is -- that -it was--aiways-going to be in 2 combination of some other fossil fuel or the actual 3 two other existing plants. I'm not sure if I 4 communicated that incorrectly, but that is what I 5 meant.
6 CHAIRMAN FROEHLICH: Thank you, counsel.
7 At this point we will be referring to the 8 appendix, to the notice of this oral argument or three 9 questions dealing with the SAMA. Judge Kastenberg, 10 you'll be up.
11 JUDGE KASTENBERG: Just to add a little 12 context, I think each of the parties this morning in 13 their five minutes touched on these three questions.
14 And. I certainly appreciate that. And we as a panel 15 felt that to open up this afternoon's questions, which 16 are more of a content level,, that we would want to 17 talk a little bit about context. And that's what 18 these three questions are aimed to do, is to set a 19 context for the more content-oriented questions.
20 And, just to refresh everyone's memory, 21 the first question that we had asked was, how does an 22 applicant appropriately meet *the requirements of 10 23 CFR Part 51 regarding severe accident mitigation 24 analysis? That is, first' 'from the staff's point of 25 view and then the applicant and then the petitioner, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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... 1 what-are-the---elements -that-the staf f looks-for in-an 2 application for a license extension that would 3 satisfy, in your opinion that would satisfy 10 CFR
- 4. Part 51 requirements?
5 MR. HARRIS: Well, the staff is looking 6 for a thorough analysis of the potential types of 7 mitigation that can be done at a' plant. There are 8 sort of two parts to this kind of .. to this analysis 9 as we're looking at what's the baseline risk for the 10 plant absent any mitigation, you know, and what's the 11 core damage frequency and the potential for large 12 early release. And so we need to understand -that 13 initial baseline analysis and whether or not that's 14 providing us reliable data-to compare to the changes 15 in the mitigation.
]16 Then for the actual severe accident 17 mitigation analysis is that at that point, you: are 18 sorting-different mitigations that have been tested at 19 other plants, might be specific to this plant. And 20 each plant is going to be a little different just
.21 because of the nature of the plants and that they have 22 done different amendments.
23 So certain mitigations might not be 24 particularly applicable for Davis-Besse that might 25 have been applicable for Seabrook just because of the NEALR. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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-.1 nature- and-the plants--being-slightly-different.
2 And evaluate those changes on an overall 3 screening analysis to decide which ones have some 4 potential for being cost-beneficial in the overall 5 analysis. That can be informed by changes that have 6 already implemented.
7 Some of those mitigation measures, might be 8 screened out early because they have already occurred 9 at that plant. So it is no longer having to look at 10 whether or not that particular measure was 11 cost-beneficial.
12 And then others that have potential for 13 being cost-beneficial, those will go through a 14 reduction in risk and figure out, if I implement that 15 particular measure, what is the reduction in risk that 16 the plant is going to undergo and then evaluate the 17 economics of that reduction in risk, which is 18 translated from off-site costs. And the off-site 19 costs are made up of the mean population dose plus the 20 cost to clean up the land that is contaminated in the 21 event of an accident. And compare that to the actual 22 cost to implement.
23 And then once you have done that, 24 basically they will do some sensitivity studies. And 25 that is what we are looking for to evaluate whether or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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125 1 - not that--has--been--robustly identified. as potential 92 mitigation measures that might be cost-beneficial.
3 JUDGE KASTENBERG: .Does the staff have any 4 concerns about the methodology that is used to do all 5' of that? In other words, from the staff's point of.
6 view, what do you say.about'methodologies?
7 MR. HARRIS: Generally in terms of how 8 SAMAs have been done throughout the agency or in 9 Davi's-Besse?
10 'JUDGE KASTENBERG: In general, when you 11 are about to do your view.. Clearly,, the applicant 12 comes in. They have',a suite of computer models, 13 computer codes, and so on... Is there any focus at all
- 14 on the modeling?
15 MR. HARRIS: "Excuse me one.:moment, Your 16 Honor.
17 (Pause.)
18 MR. HARRIS: There-is sort of a two-part 19 process Lto this. NRC has approved some regulatory 20 guides in terms of things that we find an acceptable 21 method to do it. So those regulatory guides, you 22 know, are applied against us in terms of whether or 23 not it would be acceptable under our analysis. And 24 NEI guidance has also sort of addressed particular 25 ways to do that.
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- 1. -i-n general, we--try- to evaluate based- on 2 the site itself compared also to other plants to see 3 how other plants have actually done this so that in 4 general, we. don't have a specific issue. It's 5 somewhat driven by the analysis that we are presented 6 in the plant, in the history that we understand with 7 that plant. So those are all things that we would 8 look at or issues that we have .seen.
9 The issue here and part that we really 10 need to understand is that this severe accident 11 analysis has actually been a long process. in terms of 12 this core damage frequency large early release has 13 gone through a significant- amount of- peer review 14' through the IPE process and the IPEEE process. And so 15 that also gives us a lot of confidence in terms of how 16 it has been done.
17 Each of these severe accident mitigations 18 analysis are also peer-reviewed. There are models 19 that they are using to determine these Yhings. So it 20 is getting even more than just the independent eye of 21 the NRC when we are analyzing these particular models 22 that they present to us.
23 MR. POLONSKY: Thank you, Your Honor.
24 The only requirements set forth in the 25 regulations in part 51 is 51.53 (c) (3) (ii) (L) . And all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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... .1 it simply---says is--if you as an- applicant-' have not 2 previously considered severe accident design 3 alternatives of the construction stage, that you now 4 have a requirement to evaluate the SAMAs at the 5 license renewal stage. And it does not prescribe how 6 you go about doing that.
7 And as many regulations as the NRC has, 8 you look the detailed. guidance. out to do that. One of 9 those is NEI 05-01, which has been endorsed by the NRC 10 staff. And there is a Federal Register site that we 11 cite to for that. And FirstEnergy as part of its SAMA 12 analyses generally followed NEI 05-01 in performing 13' its SAMA analysis.
14 The NEI 05-01 identifies certain codes 15 that are the default for use in the industry. And 16 those are the codes that have been used in this case.
17 Layering over that 'is NEPA and, as we V 18 discussed before, the rule of reason. So there is no 19 requirement, and there is Supreme Court case law on 20 this to perform a worst case analysis for mitigation 21 alternatives. And SAMA is, by its very nature, a.
22 mitigation alternative.
23 And so this is an analysis in 24 probabilistic space looking at the mean and not worst 25 case scenarios. And the goal of the SAMA is to
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128 1 determine---what- pdtential--plan--enhancements-may be-2 cost-beneficial to mitigate the effects of a 3 postulated severe accident. And by definition, 4 "severe accident" here we're talking beyond design 5 basis, highly unlikely, low-probability events.
6 The enhancements we are talking about are 7 modifications to plant hardware or procedures or 8 additional training. And when the Commission 9 established this, they anticipated that any hardware 10 changes would not frequently occur and they would be 11 small in nature.
12 JUDGE KASTENBERG; As the staff alluded 13 to, the IPEs and the IPEEEs for Davis-Besse and after 14 performing the IPE and the IPEEE, were there any 15 cost-beneficial modifications that came out of those 16 studies that one could loosely call severe accident 17 mitigation strategies?
18 MR. POLONSKY: I believe there was one.
19 And it was -- if I can confer?
20 JUDGE KASTENBERG*: Sure, sure.
21 (Pause.)
22 MR. POLONSKY: Your Honor, there was one 23 that was identified through a sensitivity study, yes.
24 JUDGE KASTENBERG: Was that implemented at 25 the plant?
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-MR. --POLONSKY: I--would- have to look. I 2 believe it was not but for other reasons. We would 3 have to confirm, and we can do that at a break.
4 MR. O'NEILL: Yes, Your .Honor. Martin 5 O'Neill. One quick question.
6 Were you referring to mitigation measures 7 that were identified as part of the SAMA analysis that 8 FirstEnergy just submitted to the agency or mitigation 9 measures that may have been identified as part of some 10 past?
11 JUDGE KASTENBERG: Some past, the IPE or 12 the IPEEE.
13 MR. O'NEILL': Yes. In that case, I think 14 we would need to confer. We will haveto.
15 JUDGE KASTENBERG: I know in your 16 executive summary, for example, the one ACDC-03 -- I 17 don't recall exactly what that was, but that was part 18 of your SAMA analysis.
19 MR. O'NEILL: Yes.
20 JUDGE KASTENBERG: I think we will come 21 back to that later.
22 MR. O'NEILL: Yes.
23 JUDGE KASTENBERG: But just in the history 24 of PRAs that were done at the plant, had anything come 25 up that was cost-beneficial in the past?
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130 1 .. . MR.--POLONSKY-:- --We'll -have to-get- back-to 2 you, Your Honor.
3 JUDGE KASTENBERG: Okay. Thank you.
4 MR. KAMPS: Your Honor, as this is a NEPA 5 undertaking, the severe accident mitigation 6 alternatives, and given some of the history at this 7 particular plant, we felt that the highest standard 8 should be applied.
9 And that's why in our six subparts onthis 10 contention, we challenged a number of the models that 11 are being used; by F irstEnergy. And one of the 12 refrains that FirstEnergy put in its answer to us is 13 that it's standard in this practice that has been used 14 for a long time.
15 And we in our reply found that not to be 16 a sufficient answer. We feel that the challenges that 17 we have made are legitimate and that they should be 18 addressed.
19 Even though the industry uses these very 20 models and has for a long time, we still have 21 identified problems with these models. And the NRC 22 just now mentioned core damage frequency. And I just 23 wanted to point out that the Three Mile Island 24' precursor event that happened at DavisýBesse in 1977 25 was assigned by NRC itself a seven percent core damage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323-RHODE ISLAND AVE., N.W.
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131 1 probab-ili-ty-,-..
2 And I can cite the document that that is 3 from. It's an NRC Commission document, SECY-05-0192, 4 "Results, Trends, and Insights from the Accident 5 Sequence Precursor Program,." over a time period of 6 1969 to 2005.
7 And the reason I bring it up is that that 8 particular severe accident that was narrowly averted 9 at Davis-Besse in 1977 and was not narrowly averted at 10 Three Mile Island just 18 months later was not 11 foreseen by the industry. It was not foreseen by the 12 NRC. It was missed.
13 And so FirstEnergy has done 167 SAMA 14 analyses, has found none of them cost-beneficial. And 15 the problem that we have with that is that we think 16 that the modeling isn't adequate, is insufficient, and 17 we have detailed in our six subparts why we think that 18 is so. Those are our very challenges that deserve to 19 be heard on the merits.
20 And that was not a lone incident at this 21 facility. Again, the 1985 incident- that I mentioned 22 earlier, the steam generator dryout that left the core 23 without cooling for 12 minutes, that was assigned by 24 the NRC in that same document, a 0.2 percent core 25 damage probability, a 1 in 500 chance, which doesn't NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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132 1 -sound--that- large, but-it -is,. compared to what NRC 2 safety standards are with the 1 in a million often 3 being cited, 1 in 10,000, that kind of range.
4 These are real incidents that took place 5 at this facility. The other one that I mentioned 6 earlier was the corrosion hole, which, again, had not 7 been foreseen. To the extent -- and this was even in 8 the environmental report, where it was admitted that 9 at one time in the industry, such a large breach of 10 the reactor pressure vessel containment layer was so 11 improbable that it was not considered :in severe 12 accident'mitigation alternatives. They had to add it 13 after Davis-Besse experienced this very risk, very 14 narrowly averted in 2002. It was put back into the 15 SAMA radar screen.
16 And that is why we bring up these 17 challenges to the models, because there have been past 18 incidents that were not foreseen.. And we'think that 19 the strongest standard should be brought to this very 20 important issue because the potential consequences are 21 so great and so grave.
22 And that is really .the intention to our 23 understanding of a NEPA SAMA review, is to prevent 24 these disasters from happening by spending a 25 relatively small amount of money to take preventative NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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133 1 measures-before such- an-unthinkable-disaster unfolds.
2 If it can be prevented, it should be prevented.
3 And that is why we find it hard to 4 understand how not a single such mitigative measure 5 has been found cost-beneficial. When you look at the 6 consequences especially, that was another area that I 7 found confusing in- the response, especially from 8 FirstEnergy, was kind of this blurring of risk and 9 consequence. If the probability is 100 percent, if 10 something happens, then the consequence is the 11 consequence. And I think that they have tried to blur 12 or perhaps have been confused about the definition.
13 *Yes, these may be low-probability risks, 14 but if the probability happens, if it is 100 percent, 15 then the consequence is the consequence. And that is 16 ,what our motivation is to guard against.. And that is 4r.-
17 why the challenges, which are at the heart of these 18 six subparts, are all about.
19 JUDGE KASTENBERG: Okay. Thank you.
20 Let's move to the second question that we 21 posed. And that is, at this stage, at the contention 22 admissibility stage, what information do you believe 23 is necessary legally for a petitioner to challenge a 24 SAMA analysis in an ER? We'll start with the- staff 25 again.
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134 1 ...... . MR-. HARRI-S: Well, at this' stage-, because 2 SAMA analysis is fairly complex and sort of 3 flyspecking, very different particular parts of the 4 model, the impact of those particular results is not 5 necessarily cleared from simply taking an issue with 6 this part of the model or that part of the model. And 7 how that. is, all going to interact is that the 8 petitioners need to alleg~e an issue that is specific 9 to Davis-Besse's analysis and the facts that surround 10 Davis-Besse and how that has failed to potentially 11 lead to not identifying a potentially cost-beneficial 12 SAMA is the Commission itself, you know, in commenting 13 on the case going on in -Pilgrim -now in terms of 14 remanning it identified that the issue for SAMA 15 analysis is not how fine the analysis it is and, you 16 know, how much better we %can make the models but 17 whether or not ýthe way it has been done failed to i8 identify a cost-beneficial SAMA.
19 And so when we are looking at whether or 20 not something should be open for hearing, we need to 21 have something that, ties the issues that they are 22 taking with how the SAMA analysis has been done to a 23 potentially cost-beneficial SAMA that has not been 24 identified.
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135 1 really cant -rise--to--that-simply -because it's- not.- a 2 purely linear relationship, they haven't made out 3 their.-burden to establish a litigatable intention.
.4 JUDGE KASTENBERG: As we just heard and we 5 heard this morning in their opening from petitioners 6 that Davis-Besse'has a particular history of events, 7 -- they named three of them -- do you feel that those 8 events are adequately accounted for' in the SAMA 9 analysis? Is that necessary that they be or do the 10 events have to be hypothetical,. as we heard the 11 counsel for the applicant state this morning?
12 MR. HARRIS: I wouldn't want to suggest 13 that the events are-- they are hypothetical in that 14 they haven't occurred; but, you know, the analysis in 15 terms of the particular severe accidents in a normal 16 severe accident mitigation analysis, there is a 17 multitude of accidents that are modeled.
18 And then those accidents themselves are 19 grouped into'smaller bins to sort of account for the 20 particular types of releases that might occur during 21 each one of those accidents with a sort of commonality 22 of release -fraction and core'damage frequency.
23 And so those hypothetical events, the 24 existing accidents, are accounted for in that type of 25 analysis. Aredthey specifically taking into account NEAL R.-GROSS' COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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136 1 the issues-that have-happened historically? No, but-2 they are taking into account how this plant has been 3 I don't want to say operated but the scenic nature of 4 this plant in terms of how this plant is arranged and 5 the way the systems interact' with each other to 6 account for those particular types 'of triggering 7 events that could result in a severeaccident.
8 JUDGE KASTENBERG: 'Yes?
9 MR. HARRIS: I think I've answered.
10 MR. POLONSKY: Your Honor, I would like to 11 start by saying all of the information that 'is being 12 provided orally today should not matter from 13 petitioners unless it was an articulated basis to 14 their petition. And, even if it was stated for the 15 first time and they reply, that is not enough.
16 In fact, 'the very issues that' I am 17 concerned you appear to be relying on about past 18 history were articulated in thereply for the first 19 time we moved to strike. And the Board granted that 20 motion to strike.
21 So, from our perspective, from a legal 22 basis, those are not admitted bases and cannot, be used 23 by the Board in determining the admissibility of any 24 SAMA contention.
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137 1 --- reiterate is as-t-f-or---admissibi-lityi,' because a SAMA 2 analysis, under NEPAis intended to be a site-specific 3 analysis, any support going back to the standards of 4 adequate support need to be based on-this plant and 5 the analysis done for this plant.
6 And then, secondly, because the ultimate 7 decision is whether there are-additional cost-benefit 8 analyses or conclusions and SAMAs themselves that 9 should have been evaluated,' the whole *materiality of 10 the contention is governed by that.
11 And so the genuine dispute prong of 2.309.
12 has to be tied to whether it would genuinely cause a 13 .change in a SAMA, identification of a SAMA, or in the 14 ultimate cost-benefit analysis. -And because it is not 15 necessarily a linear input, where if you increase 16 something here, it comes out with the same increase on 17 the back end, it requires more than just saying, 18 "Here. You need-to use a different model" or "Here.
19 Here is a different input, and you should have, used 20 it.,"
21 That tous is very, nice that they might 22 have another model that they want us to use, but there 23 is no6 egal: requirement. And particularly because we 24 are not in safety space here under the Atomic Energy 25 Act, we are under NEPA space here, rule of reason NEAL R. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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138 1 -applies-..
2 CHAIRMAN FROEHLICH.: How would a
- 3. petitioner do that short of running the SAMA him or 4 herself to know the cost-effectivenessw of any 5 particular change in input? You're saying that it's 6 not a linear thing.
7 MR. POLONSKY: Right, not a linear thing.
8 CHAIRMAN FROEHLICH: But they're alleging 9 that if you change these inputs, you would have a 10 cost-beneficial result at the other end of it. Short 11 of running it, how would they 'convince you or this 12 Board ultimately that those SAMAs are worth looking at 13 or worth changing?
14 MR. POLONSKY: Your Honor, I don't even 15 get there because facilely the arguments to me don't 16 add up to a genuine dispute. So -I don"t even need to 17 go to what would they need to demonstrate.
18 And I am talking generalities. Let me use 19 an example: terrain effects. The Gaussian plume 20 model doesn't take into account terrain effects. I 21 don't need anyone to run that for me to know that this 22 doesn't apply to Davis-Besse because any terrain 23 effect contention that was cut and pasted from a 24 different geography' and a different topography 25 necessarily has to be changed for the fact that this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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139 1 is a flat area.-- And so there is- no genuine dispute- if 2 you simply are cutting and pasting an argument related 3 to SAMAs are terrain effects.
4 Another one would be the NUREG-1465 5 argument related to source term. It is a generic 6 source term. This SAMA is a site-specific analysis.
7 So to simply say, "Let's take that source term and 8 let's use that," you know, it misses the whole point 9 of what a SAMA analysis is.
10 So I am not asking them to put that into 11 a model and run that source term out to its 12 conclusion. I'm saying, "Board, you don't even need 13 to contemplate that because that is a generic source 14 term." And here we have a Site-specific one.
15 In addition, that particular document on 16 its face -- again, you don't need to take my word for 17 it. You can read it. On its face, it says, "We do 18 not take into account fission removal mechanisms,"
19 which means there is no core spray taken into account, 20 there is no passive deposition of radionuclides 21 occurring, there is no concrete air-core interactions.
22 Those three are all articulated in that document as 23 not being considered.
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140
-it is a-site-specific analysis.; And 1465 was writ-ten 2 for generic use for application to a specific site.
3 So we are not asking that they plug it in.
4 We're just asking the Board to look facilely at what 5 they provided. And we think it's pretty clear that 6 those are not supported, documents that don't provide 7 adequate support for an admissible contention.
8 JUDGE KASTENBERG: Your response. to 9 question number 2?
10 MR. KAMPS: Okay. Could you repeat the 11 question?
12 JUDGE KASTENBERG: Your question is, from 13 your point of view, at the contention admissibility 14 stage, which is where we are, what information do you 15 think is necessary legally -- legally has been pointed 16 out several times -- for a petitioner to challenge, in 17 this case yourself, a SAMA analysis in an ER? What do 18 you believe you need to show for us to admit a 19 contention at this stage?
20 MR. KAMPS: I think, as I sort of alluded 21 to previously, there are serious flaws with the models 22 that FirstEnergy used for its SAMA analyses. And so 23 what we need to do legally is to show that these flaws 24 are significant enough that they really should be 25 addressed in this proceeding. They should be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W.
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141 1 .questioned.. They should-be-analyzed.
2 And I am glad that the NRC staff mentioned 3 Pilgrim Watch, the intervenor at the Pilgrim, 4 Massachusetts license extension proceeding, because I 5 did not give them credit enough at the time of our 6 petition. But we have very much benefitted from their 7 ground-breaking work, which was also used at the 8 Seabrook license extension proceeding. And I did give 9 credit for this. This is seven lines into our 10 contention on the SAMA where I said, "Petitioners 11 acknowledge and give credit to Friends of the .Coast 12 and New England Coalition for their ground-breaking 13 work on the SAMA contention's conception, to which 14 petitioners are deeply indebted."
15 So the reason I bring that up is that 16 FirstEnergy repeatedly in the written submissions and 17 now today several times has used the term "cut and 18 paste"' for our work on those contentions.
19 And they have admitted that it's a highly 20 technical area. And so has NRC staff. Yes, it is 21 highly technical. And because of our limited 22 resources, we very much at the time of the December 23 27th filing of this petition depended on the work that 24 had previously been done at Seabrook, but I assure you 25 that I spent a tremendous amount of time translating NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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142 1 - that- work-to apply- to--the--Davis-Besse site. .
2 And one example I can give of that is the 3 sea breeze effect. At Seabrook, the intervenors there 4 in my opinion very carefully and comprehensively 5 demonstrated that there is a sea breeze effect at 6 Seabrook Nuclear Power Plant in the New Hampshire 7 coast of the Atlantic that will dramatically increase 8 the dose to radiation of the population because the 9 dynamic is -that the radiation clouds will stay intact, 10 will stay concentrated as they go out to sea, and then 11 the sea breeze effect will bring them right back onto 12 land in a concentrated form.
13 And that very dynamic is at play here at 14 Davis-Besse. Here's called the Great Lakes effect, 15 the. lake breeze effect, instead of the sea breeze 16 effect, but the Great Lakes are regarded as inland 17 seas. And the same dynamic is happening here.
18 And so it was brought up earlier in the 19 proceeding today, how can it be that a radiation cloud 20 will both disperse and remain concentrated? This is 21 an example of that.
22 The assumptions in the SAMA analyses done 23 by FirstEnergy are that a radiation cloud going out to 24 sea,- so to speak, over Lake Erie will dissipate. And 25 the population doses downwind will be within NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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143 1 acceptable-levels, permissible- levels.
2 Well, that is not the case. And that is 3 our very challenge in subpart D of our contention.
4 The sea breeze could very well bring a concentrated 5 cloud of radioactive gases and particles back to 6 shore, be it in Toledo, be it in Cleveland, and that 7 will be a concentrated dose.
8 And so the legal requirement, to answer 9 your question, is that we show that there were serious
.10 flaws in these models. I gave one'example. It is our 1i subpart D on the Gaussian straight-line plume 12 analysis, the lack of enough data points because they 13 only use one weather tower at Davis-Besse itself.
14 And I think that' in my opinion, we have 15 shown that there is a problem here. For example, the 16 Davis-Besse weather tower on site can only have data 17 for that one site, but it is not cognizant of the sea 18 breeze effect elsewhere on Lake Erie. So if the sea 19 breeze effect is carrying winds from a part of Lake 20 Erie into Toledo, the Davis-Besse weather-monitoring 21 station could easily miss~that because it only knows 22 what is happening at Davis-Besse.
23 And so there are examples that I give to 24 try to convey to you that I think we have met a legal 25 requirement. This is the National Environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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144 1 Policy--Act. This- is a very serious--question,--how-to 2 mitigate into a severe accident, a Davis-Besse 3 catastrophic radioactivity release. How can we spend 4 a relatively small amount of money now to prevent 5 something this. unthinkable from happening? And here 6 is a huge.issue that has gotten inadequate or maybe no 7 considerations so far in the environmental report.
8 And that is one example that I give. And we had five
_9 others.
10 JUDGE KASTENBERG: I think we will get to 11 those shortly. That kind of is a lead-in to the third 12 question, really, which is at the heart of the issue, 13 I think. And that is, which we have kind of outlined 14 in our third question, are there plausible scenarios 15 or a factual allegation in this case that if the input 16 data were changed in the SAMA analysis accordingly, 17 the conclusions drawn from the cost-benefit analysis 18 would change.
19 So, in other words, suppose this effect 20 were taken into account and you look at the list of 21 mitigation alternatives that the applicant analyzed.
22 And because of the models that they use and the 23 cost-benefit that they use, they felt that the 24 cost-benefit wasn't there.
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145 1 point.- If one-were- -to-make--the--changes-that- you 2 suggested and took into account the effect that you 3 just mentioned, would some of these mitigation 4 schemes, whether they be hardware or training or 5 operations or whatever, show something differently?
6 Would the results of the analysis change, do you 7 think? And on what basis would you be able to say 8 that they would change?.
9 And that gets to the heart of the matter, 10 I think. And we will hear from all parties, but we 11 will start with you.
12 MR. KAMPS: Well, I think that is why we 13 cited the CRAC 2 report, Consequences of Reactor 14 Accident Consequences, which shows that at 15 Davis-Besse, the potential consequences of a 16 catastrophic radioactivity release are in the tens of 17 thousands of fatalities and injuries.
18 I can give the specific numbers. The 19 property damages are in the range of $185 billion in 20 current dollar values.
21 So what that shows is that this kind of 22 catastrophic radioactivity release has to be prevented 23 at all costs. We can't afford something like this 24 happening on the edge of the drinking water supply for 25 millions and tens of millions of people downstream.
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146 1 So-I think-, gi-ven-that-understanding,-that-2 these catastrophic consequences have to be avoided.
3 And I think that, as we indicated in our petition and 4 in our combined reply, there are a number of SAMAs 5 that could come into play as cost-beneficial when you 6 look at consequences like this, consequences this 7 large.
8 JUDGE KASTENBERG:, But, if I understood 9 you correctly a few moments ago,- you said that 10 basically what this whole analysis is about is the 11 fundamental question, do I spend real money today to 12 protect against an accident in the future that may or 13 may not happen, regardless of the consequences? Isn't 14 that the fundamental question?
15 MR. KAMPS: Not regardless of the 16 consequence but cognizant of the potential 17 consequence.
18 JUDGE KASTENBERG: So in your view, you 19 would leave out the probability that that accident 20 would occur?' Is that right?
21 MR. KAMPS: No, not entirely. We also 22 challenge the probability determinations. That was 23 another attack on us by certainly FirstEnergy that we 24 were -- it is my word -- enemies of probability 25 determinations. We are not enemies of probability NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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147 1 .. determinations..--. We are-enemies. of. faulty probability 2 determinations.
3 And that is why I have cited the history.
4 I think the history is instructive, that these 5 probabilities of a hole in the head, of a steam 6 dryout, steam generator dryout, of the TMI precursor 7 event, the probabilities at that time before those 8 events happened were either nonexistent. This could 9 not happen. It is not possible that this.could happen 10 or, else, the probabilities were determined to be 11 very, very small. Reality showed something quite the 12 opposite of that.
13 The nuclear power industry, Davis-Besse in 14 particular, is not alone in this kind of mistake. The 15 space shuttle program has had this kind of mistake 16 where something like a launch explosion is considered 17 a one in 100,000 chance of happening or less until it 18 happens, the 25th launch into the program. Now, all 19 of a sudden, it's a 1 in 25 chance.
20 So I think expert judgment has its 21 limitations. It is-very much relied upon in the SAMA 22 area. And that is why we are doing our best to point 23 out the problems with the various models, the MACCS2, 24 the MAAP, the lack of monitoring data.
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148 1 require a lot more than a single anemometer at the 2 Davis-Besse site. It's a dynamic area of research in 3 meteorology. That is why I cited the studies that 4 were cited at Seabrook, to show that there is 5 recognition that on the Atlantic, it is going on and 6 that it applies here. I cited the National Weather 7 Service as an expert body that recognizes the Great 8 Lakes sea breeze.
9 So I think that, in my opinion, we have 10 met the legal requirement to show that there are real 11 problems here, the consequences being' so huge they 12 have to be avoided. And the probabilities are also in 13 dispute. We have disputed that in one of our 14 subparts.
15 JUDGE KASTENBERG: Brian?
16 MR. HARRIS: If you change the inputs 17 enough and setting aside the actual --
18 JUDGE KASTENBERG: I think we used the 19 word "plausible," not just setting aside but plausible 20 inputs here.
21 MR. HARRIS: Let me address, sir, the lake 22 breeze effect, you know, shortly, as the general 23 petitioners were discussing, sort of the lake breeze 24 effect and that -they. would want to have more 25 meteorological monitoring stations to analyze the lake NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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149 1 breeze effect.,
2 And if our purpose here was to understand 3 the three-dimensional flow of the lake breeze effect, 4 maybe that would be an appropriate way to go about 5 studying how the lake breeze effect works along the 6 Lake Erie coast or shoreline.
7 But what we are trying to analyze here is 8 the expected value over a number of different accident 9 scenarios occurring under unknown conditions at an 10 unknown time and come up with -- we use the mean. I 11 think it also probably would be applicable to sort of 12 talk about the expected value of this particular 13 accident given the risk, the probability, and the 14 consequences, that we're not .just looking at one or 15 the other.
16 We really need to look at both because we 17 are trying to make a decision now in the near term of 18 whether or not this particular mitigation measure is 19 going to account for the riskthat we are seeing from 20 this particular accident scenario.
21 If we make small changes to a particular 22 to address lake breeze effect is that those changes 23 really need to be such that they would move the mean 24 to be able to make something cost-beneficial.
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150 1 doesn't account for the three-dimensional motion of 2 the lake breeze effect doesn't mean that it always is 3 underestimating the consequences or always 4 overestimating the consequences.
5 Depending on when that accident would 6 occur, you know, and how the lake breeze is set up, at 7 times it is going to overestimate; it because it is 8' going to assume that it is an on-shore' flow and take 9 it on shore, where the lake breeze effect would 10 eventually actually take it back out over Lake Erie, 11 instead of continuing it on the Gaussian plume. At 12 other times it may underestimate it a little bit, but 13 these balance out for the most part.
14 And so you only really have small changes 15 that really are unlikely to affect the mean that we 16 are really interested in in terms of a severe accident 17 mitigation analysis. And so' that is really the key 18 issue of what we are looking at.
19 So, you know, I'm not saying that there 20 are not any potential scenarios that, given enough 21 time, that maybe there could be an issue. We have 22 seen it in other plants, where the inputs that were 23 put into the MACCS analysis, we have had to reanalyze.
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151 1 the case here. It is that those inputs were very 2 wrong in terms of how the weather was input into it, 3 not merely we disagree with sort of the edges of° how 4 this analysis is being done.
5 JUDGE KASTENBERG: Would it.be safe to say 6 that, in summary, what you are saying is that you 7 don.'t foresee that any changes to the analysis, as you 8 have seen it so far, that something would jump out and 9 you would say, "Oh, my gosh. We missed this one. It 10 would have been cost-beneficial"?
11 MR. HARRIS: Right now, no. I mean, we 12 are just starting looking, going through that 13 analysis. So, I mean, we are still looking at the 14 SAMA analysis and evaluating it, but there is nothing 15 that we have seen so far *that would make us believe 16 that there has been a cost-beneficial analysis; that 17 may be missed.
18 That is not to say that as we look`at it 19 deeper, there may be issues that we want to have the 20 applicant address through the fact that we are still 21 reviewing this license review. And so there is the 22 RAI process.
23 And we may ask additional, questions, but 24 that doesn't mean that the analysis as it was done was
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152 1 of the decisions that- they make so that we can
- 2. evaluate what occurred. But nothing stands out now as 3 being necessarily wrong that would result in the 4 identification of another cost-beneficial SAMA.
5 MR. POLONSKY:. Your Honor, the standard--
6 and I'm reading into your question number 3 about "Is 7 it plausible?" That language seems to come from a 8 Pilgrim CLI decision, where the Commission used the 9 word "genuinely" plausible.
10 That inclusion of an additional factor or 11 use of other assumption or model may, change the 12 cost-benefit conclusions for the SAMA candidates 13 evaluating.. And I would suggest that is essentially 14 another way of saying it has to be a genuine dispute, 15 not just, a dispute, and it has to have adequate 16 support, not just some support.
17 The ultimate answer is no, *we don't think 18 that they have met that standard. The petitioners' 19 starting premise -- and albeit recognize that they cut 20 and pasted this from another proceeding from another 21 petitioner who crafted all of this -- is notice 22 bleeding. They essentially come right out and say 23 that in the SAMA portion of the petition and that they 24 don't need to identify all of the bases. And I think 25 that handicaps them.
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153 1 They have now provided a petition where 2 they really don't explain the support for everything 3 that they have because they are under the 4 misperception that they can do it later in the 5 proceeding.
6 And especially here, unlike the other 7 proceedings where they may have had an actual expert 8 who opined about the locale and the SAMA analysis that 9 was done for that site in that geography, we don't 10 have that here.
11 There is no expert affidavit at all 12 supporting all of this. And PRAs and SAMA analyses 13 are, as we said before, very specialized, detailed, 14 probabilistic analyses and require some familiarity 15 with the MACCS2 code in order to understand why what 16 you are throwing out could potentially have a change 17 without running the model. And that is not here. It 18 is just not present.
19 JUDGE KASTENBERG: So do I take that to 20 mean that, from your perspective, changing to answer 21- the question directly' changing any of the parameters 22 in any of these models, you don't believe that one of 23 the. mitigation schemes that were in that, in the 24 report, would be cost-beneficial is what you are 25 saying.
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154 1 MR.. POLONSKY: I don't get to that 2 question yet, Your Honor.
3 JUDGE KASTENBERG: I guess what is 4 happening is that I am looking at it from a technical 5 point of view and you are looking at it from a legal 6 point of view. And since we are in two different 7 paradigms, we are not going to be able to come to some 8 place here where we are both being understood. Is 9 that a fair thing to say?
10 MR. POLONSKY: I can't tell what lens you 11 are looking through, Your Honor, but your telling me 12 it's a technical one, I would suggest that'the legal 13 one prevails here because we are in a legal 14 proceeding. But I could help merge the two so we are 15 not ships passing in the night?
16 Let me give you an example: bananas.
17 Bananas have some radioactivity in them. And if I 18 were to come forth and say, "We should use bananas as 19 the source term for the Davis-Besse reactor because I
- 20. think you should. And I think it will result in a 21 change to the dose ultimately at the end" and you ask 22 me, "Mr. Polonsky, is that reasonable, what 23 petitioners are alleging about bananas?" and I said, 24 "No, it's not reasonable," "Is it plausible?" I don't 25 know. I'm not a technical person. Anything is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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155 1 plausible, but that is not the admissibility 2 contention standpoint.
3 That is why.I don't get to this yet about 4 whether it is plausible because it is not genuinelyy 5 plausible. And that is not adequate support.
6 JUDGE TRIKOUROS: Well, it would be if 7 Brookhaven National Lab did a study that said bananas 8 cause a worse outcome than cores.
9 JUDGE KASTENBERG: Beryllium growing 10 sources, yes.
i1 MR. POLONSKY: But no. Your Honor, I 12 would disagree because Brookhaven would be looking at 13 this from a generic basis and wouldn't, be looking at 14 Davis-Besse as a specific site and saying, are bananas 15 what is inside the core? Is that the core inventory 16 of Davis-Besse?
17 *And if Davis-Besse's core has less 18 radioactivity than bananas, then bananas aren't 19 appropriate to use. And if bananas somehow create the 20 worst case scenario for a release, well, I'm back to 21 the U.S. Supreme Court's decision in Metho Valley that 22 says, "I don't need to under NEPA look at the 23 worst-case scenario. I look at reasonable scenarios 24 using a rule of reason."
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156 1 Brookhaven or NUREG-1465. I can hold it up there.
2 Maybe even peer-reviewed, God forbid. But they're not 3 adequate support for a SAMA analysis at Davis-Besse.
4 JUDGE TRIKOUROS: Okay; Well, when we get
- 5. to that actual discussion, we will 6 (Laughter.)
7 JUDGE TRIKOUROS: We won't mention bananas 8 at that point.
9 CHAIRMAN FROEHLICH: I think what we 10 should do now is look at contention 4 and itsI guess 11 six subparts. Now, petitioner, when you framed this 12 contention, is this one contention or are we looking 13 at six separate contentions here?
14 MR. KAMPS: Well, I framed it as one 15 contention, but it certainly have subparts. And then 16 FirstEnergy, for one, actually named them as 17 independent individual contentions. I hadn't done 18 that, but they're interrelated in many instances. So 19 that's the approach I took.
20 CHAIRMAN FROEHLICH: Okay. I think it 21 probably would be productive for us to take it step by 22 step and perhaps the six individual segments seriata.
23 Now, you say in your petition at page 104 24 that FENOC used the probabilistic modeling Q 25 underestimates the depths of injuries and economic 0 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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157 1 impact. likely from a severe accident by multiplying 2 consequence values, irrespective of their amount, with 3 very low probability numbers where consequence figures 4 appear minimal.
5 Does that sum-up I guess this portion or 6 this part of your contention?`
7 MR. KAMPS: Right. That was our overview.
.8 CHAIRMAN FROEHLICH: That's the overview.
9 Well, I guess I want to raise now what the Commission 10 has told us to do in the Pilgrim case in CLI 10-11.
11 And the Commission said there that the use of 12 probability-weighted consequences is the way to 13 proceed. This is the way you go about this.
14 MR. KAMPS: Well, my read of the arguments 15 thus far is that the focus has really been on the 16 probability. And so that is why we bring up the 17 consequences. If the probability is 100 percent, then 18 the consequence will unfold in the real world. And so 19 that is why some of these mitigations are very 20 cost-effective compared to those kinds of 21 consequences. I gave some numbers earlier for CRAC 2.
22 So that is what we are getting at; is for 23 a little bit of investment now, just one example would 24 be better monitoring-of the sea breeze but also other 25 meteorological conditions in this area and the general NEAL R. GROSS.
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158 1 region.
2 It would not Only benefit understanding of 3 where the radioactivity would go so that we would 4 better understand how bad population-doses could be
- 5. but would also benefit evacuation planning, emergency.
6 preparedness. So that is. a very wise investment.
7 I don't have the figures. We could 8 probably track them down as to how much it would cost.
9 to install those kinds of weather-monitoring stations 10 in the area. There is already one at the Toledo 11 Airport that was cited in' another part of the 12 environmental, report but was not cited in the SAMA 13 section of the environmental report. So FirstEnergy 14 already knows this data exists. They even cited it, 15 but they didn't use it in the SAMA analyses.
16 So we see some very cost-effective minimal 17 costs that could be invested in to take some very real 18 steps towards better protecting the public.
19 And it's the probability -- like I tried 20 to say before, some of these incidents that have 21 really happened we're seeing as impossible before they 22 happen. But they actually happened. So there is a 23 real dispute about these probability, determinations.
24 CHAIRMAN FROEHLICH: Now, in the A portion 25 of this contention, you state at page 108 that FENOC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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159.
1 failed to model intentional acts in its analyses of 2 external events. Is this part of contention 4A?
3 MR. KAMPS: It's a part. It's not the 4 primary part. It is a part of it, though.
5 . CHAIRMAN FROEHLICH: But doesn't the 6 Commission tell us in Pilgrim.2 that NEPA imposes no 7 legal duty on the NRC to-consider intentional acts in 8 renewal applications? Again, they also quote there 9 the Oyster Creek CLI decision.
10 MR. KAMPS: Well, yes, but it really 11 bewilders the petitioners because, like I have been 12 saying, the consequence unfolding from a probability 13 of 100 percent, a terrorist attack is an intentional 14 undertaking.
15 And, as Dr. Edmund Lyman from Union of 16 Concerned Scientists pointed out in the Riverkeeper 17 intervention against the Indian Point license 18 extension, this assumption that accidents somehow 19 provide an envelope for what would happen during a 20 terrorist attack doesn't make sense to us.
21 Dr. Lyman pointed out that it would be 22 intentional, it would be by design. And so, even 23 maximum credible accidents would not encompass what 24 could happen in such an event, such a terrible event.
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160 Commission we find lacking. That's why we raise them 2 yet again.
3 JUDGE KASTENBERG: I'm just curious. From 4 the 'staff's point of view, are intentional malicious
.5 acts, whether they be insider or outsider, handled in 6 other venues in a classified space,. in dealing with 7 plant protection and related issues?
8 MR. HARRIS: In terms' of they are handled 9 in a different portion of our current oversight. They 10 are handled as.a current opprating issue. And a lot of that information is protected from disclosure,-but 12 it is part of this security analysis.
13 It grew up somewhat. outý of 'the 9/11 14 terrorist event in'terms of actions that ,each of the 1'5 plants had to take to increase the robustness of their 16 security apparatus for that.
.1 17 But the Ctommission has been clear, at I.
- 18 least in terms of license renewal, that it has not --
19 terrorist-events are not part of the environmental 20 impact statement that needs to be'analyzed.
21 That being said, in the GEIS, the 22 Commission has actually commented ahd discussed the 23 tefrorist.events',for this particular issue and found.
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161 1 for -- give me one second, Your Honor; I am trying to 2 remember exactly how the language was but that it 3 is adequately accounted for in the GEIS and that you 4 need no further analysis, that it --
5 JUDGE KASTENBERG: So the staff would hold, 6 that it is outside the purview of hearings such as 7 this?
8 MR. HARRIS: Yes, sir.
9 JUDGE KASTENBERG: Basically that is the 10 bottom line?
11 MR. HARRIS: It is outside the scope.
12 Yes, sir.
13 CHAIRMAN FROEHLICH: Let's move on to the 14 B portion of this. And I guess embedded in the B 15 portion is the references to the spent fuel pool 16 storage. That is a category 1 issue. It says, "All 17 spent fuel accidents are generic." And, therefore, 18 this is something we can't get into.
19 Am I missing something? Why did you 20 include in this reference to the spent fuel accidents 21
- 22. MR. KAMPS: Well, .I mean, I heard --
23 CHAIRMAN FROEHLICH: spent fuel pool?
24 MR. KAMPS: Yes.
. 25 CHAIRMAN FROEHLICH: I'm sorry.
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162 1 MR. KAMPS: I'm sorry. Why did we include 2 the pool issue?
3 CHAIRMAN FROEHLICH: Yes.
4 MR. KAMPS: Okay. Well, I heard the NRC 5 staff say earlier that this. GEIS is under review but 6 that the current one applies right now. And that is 7 unfortunate for those of us -- our members, our 8 supporters who live in this vicinity at Davis-Besse 9 because this proceeding is underway right now before 10 a new GEIS comes out.
11 And I, certainly hope'that the NRC will 12 recognize in the new GEIS that the irradiated nuclear 13 fuel storage pool is at a plant that is 40 years old 14 going to contain many hundreds of tons of high-level 15 radioactive waste.
16 So in that sense, it's more significant 17 than event he reactor core in terms of, for example, 18 the, amount of cesium-137 that is there,, highly 19 volatile. It could be released maybe up to 100 20 percent in the event of a fire in the pool.
21 So those kinds of issues need to be 22 addressed in a license extension proceeding because at 23 the 40-year point, the pool is going to be packed to.
24 capacity way beyond original design capacity. It is 25 .a tremendous risk.
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163 1 And so we raised it because for us who 2 live in this vicinity downwind of that pool, it is a 3 very real risk. There could be some actions taken-to 4 mitigate that risk.
5 Backups to the emergency cooling system 6 when you. bring up the overflow storage, the dry-casks, 7 there could be very simple mitigative measures taken 8 to protect them against terrorist attacks, anti-tank 9 weapons that require line of sight to fire. You could 10 simply build an earthen berm, which isn't that.
11 expensive.
12 Unfortunately, all of this has been taken 13 off the table in this proceeding. And it is kind of-14 leaving us in the lurch because we are the ones at 15 risk of these not only accident scenarios but 16 terrorism scenarios.
17 They are not being addressed. You can see 18 it with your own eyes at Davis-Besse.- There are no 19 berms protecting the dry casks. And that's why we 20 raise these things, because they are very real risks 21 with catastrophic potential consequences that should 22 be addressed by the agency whose mission is to protect 23 public health and safety.
-24 Can I take a moment, please?
25 CHAIRMAN FROEHLICH: Sure.
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164 1 . (Pause.).
2 MR. KAMPS: Thank you.
3 So my attorney called my attention to the 4 Pilgrim proceeding, where it has been determined that, 5 even though a category 1 GEIS issue may be in play, 6 that new and significant information calls for further
.7 analysis. And this issue that I raise of the pools 8 being filled way beyond original design capacity 9 presents that kind of information.
10 This is the situation at Davis-Besse right 11 now, where there is over 550, well over 500, closer to 12 600 metric tons of waste at the site, most of it still 13 in the pools.
14 The practice, unfortunately, by the 15 company -- and it's allowed by the NRC -- is to leave 16 the pools full and only remove as much as is needed to 17 make room for thenew waste coming out of the core.
18 So this maximizes risks. And those are the kinds of 19 risks that need to be addressed.
20 Another mitigative measure, again very 21 low-cost relatively. We implore the company to simply 22 accelerate the dry cask storage and to put in 23 hardening, like I mentioned, earthen berms to make 24 this pool risk go away, at. least to an extent.
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165
- 1. *being.-neglected. It is all being ruled out of order, 2 out of scope. No matter which proceeding we show up 3 at, it's out of scope.
4 CHAIRMAN FROEHLICH: Well, the 5 out-of-scope argument, doesn't that count from the 6 Pilgrim 1 decision, CLI 10-11, which says specifically 7 that the spent fuel pool issues are outside the scope, 8 that all spent fuel- pool accidents are generic?
9 That's what Pilgrim 1 holds, doesn't it?
10 MR. KAMPS:' The decision that we are 11 citing is Lic-ensing Board Panel 06-24, 64 NRC 257 12 dated 2006.
13 CHAIRMAN FROEHLICH: Okay. And that is an 14 LBP decision. That is another board, right? And you 15 realize that this Board is not bound. by what that, 16 other board did, but we are bound by what the 17 Commission does in the CLI decisions. Yes? You 18 understand?
19 MR. KAMPS: I understand.
20 CHAIRMAN FROEHLICH: Okay.
21 MR. KAMPS: I think we have made our 22 point, too, though, about the risks and the simple 23 steps to mitigate those risks, cost-effective steps..
24 CHAIRMAN FROEHLICH: Thank you.
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166 1 not Davis-Besse has high-density. racks in their spent 2 fuel pool or are they original low-density racks?
3 MR. KAMPS: I think they're very-density 4 racks. We're talking approaching the reactor core in 5 density in the pool. So that is why the mitigative 6 measures of.boric acid solution in the water, boric 7 metal sleeves between the 'fuel rods to prevent 8 criticality in the pool, that's how densely packed the 9 Davis-Besse pool is., which contributes to the danger 10 of if there is a loss of water, whether due to 11 accident or attack, that -fuel is not going to be 12 air-cooled. It's too densely packed.
13 So I mention a cost-effective step would 14 be simply to go back to that low-density configuration 15 that you mentioned., That was the original design.
16 And the overflow would then.-go into dry casks, which 17 would haveto be fortified to prevent attacks on them.
18 But those are relatively inexpensive steps to take to 19 prevent the kind of catastrophes that could be 20 unleashed in -an accident or an attack.
21 JUDGE KASTENBERG: I will just ask the 22 staff, hasn't this issue been dealt with before, the 23 question on the long-term density, the high-density 24 reacting unit?
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167 1 mean,- each plant when they need to change from a 2 low-density to a high-density, they would have to come 3 in for a license amendment, which is noticed for 4 potential hearings. So there was an opportunity to 5 address that particular kind of issue when they made 6 those changes to the spent fuel pool.
7 I think it's clear here that the 8 Commission has in multiple cases, most recently in 9 Pilgrim, simply said that spent fuel pool accidents 10 are not part of license renewal. 'You know, it's ii clear.'
12 JUDGE KASTENBERG: So, in essence, what 13 petitioners are asking -the Board to do is to override 14 the commissioners in that sense.
- 15. MR. KAMPS: The buck's got to stop 16 somewhere, Your Honor.
17 CHAIRMAN FROEHLICH: We're going to move 18 on to 4B.
19 JUDGE. TRIKOUROS: 4B. Your wording is 20 "Minimization of the, amount of, the potential amount 21 of, radioactive released in a severe. accident." Those 22 are your-words in the petition.
23 MR. KAMPS: Can you repeat that?
24 JUDGE TRIKOUROS: That, of -course, is 25 referring to page 104, where you state,. "Minimization O " NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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168 1 .of-the. potential amount of 'radioactive released. in a 2 severe accident."
3 MR. KAMPS: Thank you.
4 CHAIRMAN FROEHLICH: Judge Trikouros?
5 JUDGE TRIKOUROS: This NUREG-1465,.
6 addressing-the applicant, you make a statement in your 7 answer. I believe it's on page 96.
8 MR. POLONSKY: Yes. I am there.
9 JUDGE TRIKOUROS: You-are basically saying 10 that NUREG-1465 is not applicable because it basically-11 calculates in-containment release, not release to the 12 environment.
13 I mean, just for the sake of correcting 14 this, that, what you say, is true, but the analyses 15 that we are talking about in SAMA, that is an integral 16 part of the process.
17 The SAMA analysis starts with 'an intact 18 core and then goes all the way through all the 19 processes, including in-containment release, out to.
20 the releases to the environment.
21 And people who do this for a living, 22- mostly at national labs, came up with the concept of 23 NUREG-1465, I guess, based on, NUREG-1465, based on,.
24 TMI lessons learned, technical lessons learned. And 25 codes like the source term code package and MELCOR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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169 1 should in the progression of analysis be able to 2 duplicate the in-containment release portion analogous 3 to the requirements of NUREG-1465.
4 So I would think your statement, while 5 technically correct, it is applicable I think to this 6 bigger picture analysis of SAMA releases.
7 MR. POLONSKY: Your Honor, we do point out 8 other reasons on this page.
9 JUDGE TRIKOUROS: I understand. I 10 understand.
11 Let's see. Again, to the applicant, you 12 indicate that -- again, I believe this is page 97 of 13 your answer. It says, "In addition to -- petitioners 14 haveprovided no facts or expert opinionto establish 15 that FirstEnergy has used the MAAP code -improperly or 16 that the use of alternative source terms would have 17 resulted .in the identification of additional 18 potentially cost-beneficial SAMAs.
19 I guess we talk about this under the 20 general questions, but the same issues came up in the 21 Yucca Mountain contentions, where there was a request.
22 to deny all admissibility of essentially every 23 contention because the petitioners could not redo all 24 the Yucca Mountain analyses' that would lead to a 25 conclusion of whether or not the dose that sometime in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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170 1 the next millennia are met.
2 And in some cases this I think is one 3 of them with complex analyses like these that you 4 can't logically expect the petitioner to be able to 5 say that if you had a ten percent change in the 6 in-containment release source term, that would result 7 in X person rem. That would translate into $87 of 8 averted costs and, therefore, no potential 9 modification would be cost-beneficial.
10 That would be extremely challenging for 11 them to do and I think enormously impractical since 12 the number of people who could do these types of 13 things are very few.
14 *But it is correct that there.has been, to 15 my knowledge, no challenge to any input assumption or 16 any input or utilization of any code. And I wanted to 17 verify that with the petitioners. This is correct?
18 You are not challenging the utilization of 19 the MAAP code in terms of the way that it was used, 20 the input parameters, the assumptions that were used, 21 any supporting calculation? You are not attacking 22 that?
23 And I understand you are also not 24 attacking that with respect to any other code, 25 including the MAACS2 code. Is that correct?-
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171 1 MR. KAMPS.: Well-, I think the NUREG-1465 2 issue,' where NRC staff are able to find several times 3 over more radioactive source term involved in a severe 4 accident, we do challenge FirstEnergy's choice of 5 using a different code-that is much lesser.
6 JUDGE TRIKOUROS: I understand. You are 7 challenging the choice of the code. You are not 8 challenging the manner inwhich'the code was utilized.
9 MR. KAMPS: We do challenge the choice of 10 the code.
11 JUDGE TRIKOUROS: Okay. I just wanted to 12 make sure that there's no mistake there, that this is 13 exactly the nature of the challenge.
14 - MR. POLONSKY: Judge:-Trikouros?
15 CHAIRMAN.FROEHLICH: Go ahead.
16 MR. POLONSKY: Again we're not asking the.
17 petitioners to run the model. We think that the 18 document that they *have supplied on. its face, 19 NUREG-1465, does not call into question anything in a 20 SAMA analysis because it is a generic source term and 21 SAMA analysis is a site-specific one.
22 -So-the core inventory, the starting core 23 inventory, ought, to be what is at the reactor, not 24 some generic core inventory. "And the source t'erm 25 ought to be the source term as. articulated through NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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172 1 analyses specific to the plant.
2 And then, most importantly -- and we talk 3 about this on page 96 in the footnote, "NUREG-1465 4 does not take into account fission product deposition 5 and removal mechanisms."
6 And so, of course, it is going to have a 7 much -higher source term to the environment because 8 core spray and deposition and,,_ concrete-rad 9 interactions are nowhere in this document. They leave 10 it to the people who are running' the models to 11 identify site-specific in-containment fission removal 12 mechanisms.
13 JUDGE TRIKOUROS: Right. And the analysis 14 that is done is not done with NUREG 1465. The 15 analysis that they are referring'to, a BNL study that 16 looked at MAAP versus source term code package and 17 MELCOR. Today it's not source term code package or 18 MELCOR system. It's MELCOR. But at the time it was 19 source term code package and MELCOR, comparing it to 20 MAAP for, I believe, Catawba,. the Catawba plant in 21 North Carolina or South Carolina, and pointing out 22 that the releases were about a factor Of three or four 23 different in the direction of source term code package 24 being higher releases than MAAP.
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173 1 that was. reached by the .NRC. or ,their contractors at 2 the national labs in the development of the, analyses 3 for NUREG-115.0. And there they basically reached the 4 same conclusion. They attributed the result to the 5 code difference.
6 I mean, that was -- I don't know that that 7 really is'. the case because these analyses are so 8 complex that it is very different to just nail down 9 exactly what the difference is, you'know, or where the 10 difference' is,' But at the level they looked at it, 11 they concluded that it 'was the utilization of the 12 code.
13 I mean, 'clearly the BNL .MAAP, MELCOR-,
14 let's say, comparison came to the same conclusion as 15 the NUREG-1150. So one might argue 'that there is 16 something there. And those two references, if I 17 understand correctly, were provided by petitioners.
18 And, again', this, is .one of those :chains' 19 that has come down. "from *.'-Indian',Point of other 20 proceedings, but that doesn't invalidate the issue.
21 Still the issue..is still the issue..
22 MR. POLONSKY: Your Honor, we understood 23 that analysis to have'been done'for a different plant,:
24 for an ice condenser plant, and that *there may not
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174 1 .going on. at Davis-Besse and how the Davis-Besse 2 analysis looked before.
3 JUDGE TRIKOUROS: Well, I disagree with 4 that. The processes that you were talking about, the 5 removal mechanisms are factored into these analyses, 6 whether they are done for an ice condenser plant or a 7 PWR or a BWR, for that matter. I mean, they do take 8 into account removal mechanisms like sprays or 9 whatever happened to be at that plant.
10 So the one case was an ice condenser, I 11 understand, but the other I don't know if it was an 12 ice condenser plant. But I don't think it was. And 13 the conclusions were the same.
14 And, whereas, NUREG-1465 doesn't identify 15 removal mechanisms necessarily or doesn't account for 16 removal-mechanisms, the source term code package and 17 MELCOR do. And MAAP does.
18 So any analysis, they do for any plant 19 would include. removal mechanisms. And, yet, two.
20 different plants, two different researchers, two 21 different studies came out with the same conclusion 22 that there was a factor of three or four difference.
23 The significance. of that is another question, but 24 these are just the facts.
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175 1 the-petitioners, NUREG-1I50 and the comments -that were 2 made to get from the draft to the final do indicate 3 that there were no uncertainty analyses done in any of 4 the risk consequences.
5 The reason they gave -- it's interesting.
6 -- was that it says, *"The NRC staff recognizes that 7 there are signi.ficant uncertainties in the consequence 8 estimates due to uncertainties in modeling and in 9 input data."
.10 The reason they didn't do any uncertainty, 11 analysis was because of time constraints. So they ran 12 out of time, maybe money. And they didn't do 13 uncertainty analysis.
14 So clearly-there is uncertainty in these 15 analyses. And the petitioners are pointing that out 16 in their petition.
17 You indicate in your answer -- I'm trying 18 to find out where. I don't have the reference, but 19 you say, "The MAAP code is widely used by utilities to 20 quantify accident progression and source terms in the 21 plant-specific IPEs and PRAs for a variety 'of 22 regulatory purposes." Oh, I'm sorry. It's on page 98 23 of your answer.
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176 1 contention or cause us to deny or not admit this 2 contention?
3 MR. POLONSKY: Your Honor, the way you are 4 interpreting I guess NUREG-1150, it would not.
5 JUDGE TRIKOUROS: The way you said that.
6 obviously implies that you disagree with the way I am 7 interpreting it. Perhaps you could elaborate on that.
8 MR. POLONSKY: I had a different 9 interpretation of NUREG-1150. I think we have already 10 had a discussion about those differences and views.
11 And so I caveat my answer that way, Your Honor.
12 JUDGE TRIKOUROS: All right. That's fine.
13 JUDGE KASTENBERG: What's the difference 14 between the results of NUREG-1150 and the results of 15 NUREG-1465- in your view? As far as I recall, 16 NUREG-1150 did take into account containment safety 17 functions in terms of mitigating source terms. I'm 18 not sure about NUREG-1465.:
19 When you refer to source term, are you 20 talking about fission product, release fractions from 21 the fuel in a core melt accident, or are you talking 22 about source terms when postulating a failure of 23 containment to the atmosphere? So what do you mean by 24 a source term?
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177 1 question, Your Honor, in. the technical realm.
2 JUDGE KASTENBERG: Okay.
3 MR. POLONSKY: When we looked at those 4 documents, we did not believe that they adequately 5 supported an admissible contention for the Davis-Besse 6 SAMA analysis.
7 .. JUDGE KASTENBERG: Okay. That is your 8 bottom line.
9 MR. POLONSKY: Your Honor, I think we have 10 already articulated that the core inventory is 11 site-specific and the source term derived from that is 12 site-specific and what eventually gets released to the 13 environment is site-specific. I'm not sure there is 14 much more to be said.
15 Thank you.
16 JUDGE TRIKOUROS:. I have a question for 17 the next piece. This is for the petitioner. Your 18 part C says, "Use of an outdated and inaccurate proxy, 19 the MAACS2 code, MAACS2 computer program to perform 20 its SAMA analysis." And we have heard today and in 21 the staff and applicant's response, answer to you this 22 is an industry standard code that is continually under 23 development.
24 So my question to you is, on what basis
. 25 would you say that the MAACS2 code is outdated and
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178 1 .. inaccurate proxy. given that it is -an industry 2 standard.
3 MR. KAMPS: Can I take a moment?
4 JUDGE TRIKOUROS: What?
5 MR. KAMPS: Can I take one moment?
6 JUDGE TRIKOUROS: Sure.
7 (Pause.)
8 MR. KAMPS: I just wanted to take a moment 9 to refresh my memory. Well, some of the specific 10 challenges we have to the MAACS2 code is its lack of 11 quality assurance allegation. So we are very 12 concerned about that.
13 We cited one of the formulators of the 14 code, Mr. Channon, who pointed out that the MAACS2 15 code is not nuclear quality-assured because it was 16 really intended to be used for research purposes and 17 not for licensing purposes. So that is a concern that 18 we have.
19 Another specific concern that we have is 20 that the MAACS2 code makes a false assumption about 21 indoor doses over long periods of time, that indoor 22 doses of radiation would be zero when, in fact, they 23 would be equivalent to. the outdoor dose over long 24 periods of time.
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179 1 that. Can- I stop you for one- second in. the broader 2 question that you are answering?
3 MR. KAMPS: Sure.
4 JUDGE TRIKOUROS: You make that statement 5 that the code incorrectly assumes the indoor dose is 6 zero. And you go. on to talk about the 'later-stage 7 issue. Where are you getting that from?
8 MR. KAMPS: I think we are getting it just 9 from the common sense understanding that dust 10 particles and being resuspended in the air would find 11 their way indoors, as opposed to simply staying put.
12 JUDGE TRIKOUROS: Well, there are.two ways 13 that you have of introducing information that we'would 14 admit. One is expert studies. The other is expert 15 opinion. Do either of those fit this?
16 MR. KAMPS: Well, just to be frank, when 17 we lack the resources of time or money to provide 18 those things, we did our best. And I think that over 19 long periods of time, it is being shown at Chernobyl, 20 for one thing, that the radioactive hot spots are 21 moving around with the wind and with the water. And 22 they will eventually find their way wherever wind and 23 water go, which is everywhere.
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180 1 . . assumption.. And so we simply made the statement.
2 The FirstEnergy said that we had 90 days, 3 I think they said, 'to file this petition. I think 4 it's more like 60 days. The Federal Register notice 5 was on October 25th. Our deadline was December 27th.
6 So in 60 days, we did our best. As I have 7 mentioned, we have relied heavily on colleagues at the 8 Seabrook proceeding and the Pilgrim proceeding as well 9 as Indian Point.
10 And for a detail like this, we simply did 11 our best. We didn't have the time or the resources to 12 track down an expert for that particular subject, but 13 I think in a merits-based hearing, that we could 14 address those kind of questions.
15 JUDGE KASTENBERG: I certainly appreciate 16 that, but when you make a statement on page 115 that 17 a further defect is there is no explanation of how the 18 code works, just assumptions, and how it interacts 19 with long-term dose accumulations and', yet, you seem 20 to know how it works, how could you have it: both ways 21 that there is no explanation of anything and, yet, you 22 seem to be somewhat intimately familiar with the dose 23 calculations?
24 MR. KAMPS: A point that we --
25 JUDGE KASTENBERG: What is happening here?
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181 1 .. MR. KAMPS:. A point that we make later 2 here in the petition itself or I think in the combined 3 reply is that we are somewhat familiar with what is in 4 the users' manual and what is not in the users' 5 manual. And so we see gaping holes, questions not 6 resolved. And that is the kind of challenge that we 7 are bringing to this.
8 As I have already stated, the consequences 9 are so significant that we have to apply. And this 10 will come up, in part 4F, which is using the mean, 11 instead of the 95th percentile. It is another example 12 of the highest level standard should be applied to 13 these questions. And they are just not being applied 14 to them. So the lack of nuclear quality assurance to 15 this model is of great concern to us, severe accidents 16 being so significant it seems common sense to us that 17 they should be held to such a standard..
18 And so these, questions, that was why we 19 filed these contentions, was to try to address these 20 questions in a hearing, where we have the ability to 21 do so in terms of time and being able to reach out to 22 experts.
23 CHA-IRMAN FROEHLICH: So, then, at pages 24 115-116, your discussion of the MAACS2 code is 25 discussed. Your challenge is, in effect, that it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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182 1 -hasn't been QA and, further, that there. are some 2 alleged facts or expert opinion that would support a 3 need to have a QA. or perhaps that there are some 4 alleged facts or expert opinion saying:.that it. makes 5 no sense to use it. Is that what I amnto get from --
6 MR. KAMPS: Well, yes, the alleged expert 7 opinion on our side of things is from one' of the 8 formulators of the code in the first place, Mr.
9 Channon, who I believe was the developer of the 10 FORTRAN computer code that went into it, who made that 11 very point himself, that the lack of nuclear quality 12 assurance is not appropriate given that this is now 13 being used for licensing purposes and not for research 14 purposes.
15 CHAIRMAN FROEHLICH: Okay. And to get to 16 that step, is there a requirement that it be QA? Is 17 there some regulation', some guideline, some anything 18 that says that in order to use the MAACS code,' as it 19 has been used, it needs to be QA for purposes of 20 license renewal?
21 MR. KAMPS: I think the context that this 22 is severe accident mitigation'alternatives, to me it 23 would seem logical that nuclear quality assurance 24 should be applied to that.
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183 1 -. seen that. Is there any-requirement. with respect to 2 which code is used in a SAMA analysis? And assuming 3 one is picked, do you know of any requirement to have 4 some sort of a nuclear safety grade quality assurance 5 program implementation on it?
6 MR. POLONSKY: Judge Trikouros, no to the 7 first question. The regulation is silent about how 8 you go about performing a SAMA analysis. However, the 9 guidance that was primarily relied upon here, 'NEI 10 05-01, identifies the MAACS2 code as the default code 11 that had been endorsed by the NRC.
12 As for quality assurance, again, this is 13 not a safety analysis. It is not a deterministic 14 analysis, it is. not looking at the worst case scenario 15 or being used for emergency planning. So there is-no 16 QA requirement on this. This is a NEPA analysis. And 17 the rule of reason governs.
- 18. JUDGE TRIKOUROS: I would like to ask the 19 NRC the same question.
20 MR. HARRIS: Can I address the quality 21 assurance first and then'come back to that question?
22 If you look at the exhibit that they actually 23 provided, petitioners take issue with the -quality 24 assurance program that was applied to the MAACS2 code 25 and that they think it should have been applied to a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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184 1 .licensing-basis code.
2 Here we are dealing in environment 3 analysis. This is not a licensing basis code. It is 4 being done under NEPA. And it was quality-assured.
5 It was just not quality-assured to the standard that 6 they suggest and which their own document says should 7 be used for a licensing basis code.
8 So it's not that it wasn't 9 quality-assured. It is that it is being used for a 10 different purpose. And for a different purpose, it is IL subject to different requirements. And that is simply 12 null.
13 Judge Trikouros, could you repeat your 14 question just in terms of so I can answer the rest of 15 it?
16 JUDGE TRIKOUROS: Well, is there any 17 particular requirement for which code to utilize; in 18 other words, and then the quality assurance question?
19 MR. HARRIS: Well, the regulations don't 20 spell out a particular code that must be utilized by 21 the applicant. So the applicants are free to conduct 22 their severe, accident mitigation analysis in the 23 manner that they find most appropriate for their 24 plant.
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185 1 the _MAACS2 code. So that is- one code.-that- we have 2 found acceptable.
3 JUDGE TRIKOUROS: I will also point out 4 that the acronym MAACS, the first letter in that is 5 MELCOR, which is the code that in your petition, you.
6 are using as the argument against MAAP. So, you know, 7 there's a lot of interconnections here that you need 8 to be aware of.
9 CHAIRMAN. FROEHLICH: All right. Let's 10 move now to the Gaussian plume issue. I think that's 11 E in the contention. And it's "The contended space, 12 the use of the inappropriate air dispersion model, the 13 straight-line Gaussian plume, the meteorological data 14 input did not accurately predict the geographic 15 dispersion and disposition of radionuclides at 16 Davis-Besse Great Lakes shoreline location."
17 And, as I understand it, petitioner, you 18 are faulting the'study here because of the use of the 19 ATMOS model. Is that correct?
20 MR. KAMPS: .Yes.
21 CHAIRMAN FROEHLICH: Okay. And what is it 22 about the ATMOS model that you find objectionable?
23 MR. KAMPS: The NRC staff earlier spoke of 24 one dimension versus three dimensions. And I think 25 when you look at the sea breeze effect on the Great NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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186 1 Lakes, that-that is a three-dimensional phenomenon,'
2 very much so, with great significance to this 3 Davis-Besse question. So a one-dimensional model is
.4 lacking, to begin with, when you are talking about 5 something like the sea breeze.
6 In addition, the ATMOS model is challenged 7 when it comes to terrain effect. And so there 'are 8 river valleys, and there are hilly terrains in the not 9 too. distant locale of Ohio and other parts that would 10 challenge this model to be accurate.
11 So we have cited not only the studies that 12 were cited at the Seabrook proceeding about the.
13 significance of sea breeze to radiological releases, 14 but we have also cited the equation of sea breeze with 15 Great Lakes breeze as shown by the National Weather 16 Service as well as by another Ph.D., Keith Hidor, that 17 this effect does take place here. And so those are 18 challenges to ATMOS that it is not ableý to live up to 19 the real situation on the ground here at Davis-Besse.
20 Another challenge that we put forth is, 21 again, it has been discussed previously, but that is 22 the single anemometer at the Davis-Besse site, being 23 insufficient in terms of really representing in one 24 sense one data point in a very complex meteorological 25 reality in this vicinity.
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187 i . .Again, it. would be relatively inexpensive 2 to establish more monitoring, especially considering 3 that some already exists. FirstEnergy-knows it exists 4 at the Toledo Airport. National Oceanographic and 5 Atmospheric Administration has monitors in the area.
6 So they have taken a big shortcut on these 7 SAMA analyses by not even including those data points.
8 So they are potentially missing very significant 9 information in terms of, as I described, radioactive 10 clouds, which under this Gaussian plume straight-line 11 model would appear to go out into Lake Erie and then 12 dissipate and disperse and delude and be of no concern 13 or lesser concern actually remaining concentrated 14 because of a lack of any terrain features on the lake 15 to break up that cloud, returning to land with the sea 16 breeze, very concentrated.
17 It could end up in Toledo downtown, 18 Cleveland downtown.., It depends on how the sea breeze 19 dynamic plays out. And this company does not 20 understand it. They have not done the research to 21 determine the realities of that situation., So I think 22 this is a really good example of how changes in the 23 inputs could 1ead to very significant changes in the 24 results of the SAMA analyses.
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188
- 1. brings to our attention at least two studies. That's 2 Zager and Endevine study. What do those studies Say, 3 if anything, about Great Lakes sea breezes?
4 MR. 'KAMPS: I think the point that I was 5 trying to make with that is that the sea breeze, as 6 shown at the Seabrook proceeding, is a very 7 significant , radiological dynamic. And it can be 8 equated to here.
9 There is a well-established body of 10 scholarship on the Great Lakes sea breeze that could 11 be brought into play into this proceeding. And it has 12 been inadequately treated in the environmental report.
13 ' JUDGE TRIKOUROS: I mean, I don't know 14 that it is a misconception here, -but there may be a 15 misconception. The premise' that a 1-D simplistic 16 model will give lower doses than a more elaborate 17 model is sort of an implicit assumption going on here.
18 That is often'not the case. In fact, in 19 nuclear reactor design work, often when the results 20 are not acceptable, they are too high, parties might 21 go or licensees might'go to a three-dimensional super 22 Cadillac code and do something very realistic and find 23 answers that are actually more reasonable.
24 In this particular case, you reference a 25 study. And, again, you gave us this study. It is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W..
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189 1 .. -called a "Comparison of Average Transport- and 2 Dispersion Among a Gaussian, a Two-Dimensional, and a 3 Three'Dimensional Model." I am particularly 4 interested in the three-dimensional model, which you 5 have mentioned would be better.
6 It says, "The study was performed in an 7 area with smooth or favorable terrain and persistent 8 winds, although with structure in the form of 9 low-level, nocturnal jets, and severe storms. In 10 regions with complex terrain, particularly if the 11 surface wind direction changes with height, caution 12 should be used when those situations occur." This was 13 done by Lawrence Livermore. It was :a 2004 study. You 14 introduced it on page. 127 of your petition, your 15 original petition.
16 I looked at the results in that study.
17 They're clearly made available in the study. For out 18 to 20 miles, MAACS2 gives much higher doses than the 19 3-D code.
20 From 20 miles out to 50 miles, it gives 21 doses that. are 85 percent of the doses of the -- you 22 know, there's a Cadillac 3-D code. I would say that 23 is an extraordinarily good representation. So MAACS2 24 may, in fact, give higher doses than a lot of the 25 assertions that you are making should be used.
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190 1 I -also point out to. you ,that-- I think 2 it's called AERMOD. AERMOD and CALPUFF are the two 3 codes. AERMOD is a Gaussian model, just like MAACS2.
4 Now, it may have another level of 5 dimensionality to it. I am not sure. I think it 6 does. But it is basically a Gaussian plume model. It 7 is steady state, just as MAACS2 is steady state. .And 8 AERMOD is identified as the code of preference for the 9 EPA. I think they even say, "Don't use CALPUFF unless 10 you can demonstrate that, for some reason, AERMOD 11 doesn't work." Then it gives some warnings about 12 utilizing CALPUFF.
13 There are documents out there that say not 14 very nice things about CALPUFF and give warnings on 15 when to use and when not to-use them.
16 So nothing is cut and dry here by any 17 stretch of the imagination. It may appear so, but 18 it's not.
19 In your petition at page 118, -- I think 20 it's paragraph 199 -- and I believe Mr. Harris brought 21 this up earlier, but you say that site-specific 22 meteorological conditions at Davis-Besse's location 23 shows that the assumptions of a steady state 24 straight-line plume is inappropriate.
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191 concentrated *than modeled -and extend over.-a- larger 2 area. While I was struck the same way, the
.3 concentration times the area is the total volume released from *the source. So if that is the same 5 amount, you can't be more concentrated and have -a 6 wider area at the same 'time and have it in a wider 7 area at the same time, which is physically impossible.
8 MR. KAMPS: What I was trying to 9 articulate and didn't do a very good job of was 10 describing this sea breeze effect of the concentrated 11 cloud going out over the lake, not dispersing, as was 12 assuming, into the ether and going away but, rather, 13 staying concentrated and then returning to the land in 14 a concentrated form. That's what I was trying to 15 articulate.
16 JUDGE TRIKOUROS: Yes. And, again, I am 17 not an expert on MAACS2, -but I don't know that when 18 the wind changes,. which it does account for wind 19 change, it wouldn't just: start moving because it's 20 back.
21 I don't know if it does. I don't think it 22 does that, but I don't know for sure how it would.
23 But it does seem to give some pretty conservative.
24 doses relative.to a 3-D model, which does.do that. So 25 I don't know.
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192 1 .......... .-Now, underneath, I guess we_ have already 2 ascertained that there is no problem with utilization
.3 of MAACS code, of that one-dimensional Gaussian 4 distribution assumption. Is that correct?
5 MR. POLONSKY:' Yes, Your Honor.
6 JUDGE TRIKOURQS: Now, the other point to 7 be made is that in your assertions, you are saying 8 that you shouldn't use MAACS2, you should use other 9 methods. And your assertion is other methods are 10 better than MAACS2, meaning they would give higher 11 doses. That is where you are.
12 And you say that-- let's see. This is on 13 page 37 of your revised reply. You say that "The 14 methods joint petitioners recommend" -- so you are 15 recommending methods to be used -- "are applicable 16 because with straightforward modifications to 17 incorporate nuclear radioisotope decay rates, they can 18 produce theý fields of concentration values' and 19 deposition rates needed for radiation dosage 20 calculations."
21 I think that Professor Kastenberg would 22 agree that -those are not straightforward 23 modifications. . That probably would take five years to 24 do. And I'm talking about people that worked with the 25 NRC staff and the national lab people trying to do
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193
-_1 that.-
2 So what was the basis of your saying that 3 you believe that those would be straightforward 4 modifications? I mean, you yourself mentioned QA. -I
- 5. mean, the requirements are enormous on'modifying the 6 computer code to be used. for even these types of 7 calculations.
8 And one would have to change the coding of 9 the code. They would have to verify that all of the 10 other models that are already in there work correctly, 11 that they weren't disturbed in any way.
12 And then the entire radioactive world of 13 modeling has to be put in there in terms of the 14 transport of the radioactive material, the decay in 15 transport, deposition issues, you know, and all the 16 doses that are associated with thai. It is a huge 17 undertaking. And, again, hardly very few people could 18 do such a --
19 MR. KAMPS: The only point I would make is 20 that we are in 2011 and this license extension would 21 not begin until 2017. So I-think there is some time 22 to do that kind of work. I wanted to respond to 23 something you said earlier about the three-dimensional 24 versus the one-dimensional, that there was a fairly 25 significant percentage difference between the doses, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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194 1 ... further distances. So that kind of makes-our point 2 that there should have been multiple models utilized 3 to. see what the differences are.
4 There are -- as we have alleged, as we 5 have challenged, -there are weaknesses to the 6 straight-line Gaussian plume, one-dimensional approach 7 that need to be addressed, especially with the sea 8 breeze. That is very much a three-dimensional 9 phenomenon that needs to be looked at.
10 So I think that the quality assurance 11 could be carried out. The development of stronger, 12 more realistic models could be carried out with more 13 data points. Again, the presence of already existing 14 weather-monitoring stations, simply the data needs to 15 be utilized. It is a point we made repeatedly in our 16 combined reply, I believe, that research is not 17 required.
18 Like there was a challenge. There was an 19 attack on our filing that we were calling for a 20 research project to be undertaken. And now, really, 21' a lot of these models that we cite from the various 22 agencies, EPA you mentioned, DOE, they exist already.
23 Research isn't really needed. These 24 models could be utilized to compensate for the 25 weaknesses and the particular model that FirstEnergy NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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195.
.-has chosen to -used. You asked,. -is. it blocked from 2 being used? It's not. But it's also not required to 3 be used. And we have made that point as well. It's 4 not an NRC mandate that this particular model be used, 5 but it is widely used, despite its weaknesses.
6 JUDGE TRIKOUROS: Well, I` believe that 7 while it is not mandated, it is recommended. That is 8 -a big difference, I know, but -- and I believe the 9 applicant mentioned NEI 05-01. That is the 10 recommended methods used.
11 MR. KAMPS: One of. the arguments that 12 FirstEnergy presented that I found really concerning 13 was that this has been widely used' for decades. And, 14 yet, at the same time they quote the NRC.Commission as 15 saying that it's state-of-the-art, that it's 16 cutting-edge, that it is what is currently used.
17 I am concerned about that having been used 18 for decades part and the contradiction with it is the 19 cutting edge, it is what is used now. I think that 20 meteorology has developed significantly in those 21 decades. The sea breeze and the articles we cite from 22 the Seabrook proceeding show that something that was 23 less understood decades ago is much better understood 24 now and needs to be brought into this proceeding.- And 25 it hasn't been. It has been inadequately addressed.
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196 1 ..... MR. O'NEILL: Your Honor, I.still have one 2 point. I think it is important to understand that the 3 MAACS code has evolved. Originally it started out as 4 MAACS and was probably derived from a prior code, 5 perhaps CRAC. I don't recall exactly.
6 It's modified. The improvements were 7 made, became MAACS2.' The agency continues to use it.
8 And we mention this in our brief as part of the Soarka 9 [**3:19:00] project in the, severe accident consequence 10 analysis. And NRC and DOE and Sandia continue to 11 update the code. So I don't think it's fair just to 12 --
13 JUDGE TRIKOUROS: Right. I understand.
14 And there is a difference in the subcontention. One 15 is, one contention is, basically saying, "MAACS2 is 16 the inappropriate code to use." The other is saying 17 that the one steady state, one directional Gaussian 18 plume distribution model is inappropriate. So there 19 is a distinction. We make a distinction between 20 MAACS2 and, the subcontention that's dealing with that 21 particular ATMOS module, which you --
22 MR. HARRIS: Your Honor?
23 JUDGE TRIKOUROS: And I don't know --
24 MR. HARRIS: If I could make one point 25 because you referred to the ATMOS model as a NEAL R. GROSS COURT REPORTERS.AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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197 i onerdimensional. steady state. Andit'.s not quite 2 steady state. The direction is steady state, but it 3 still uses -- it adjusts whether or not precipitation 4 is occurring, the ability class of thelwind.
5 So it's not purely steady state as that 6 once it is released, it goes out in a particular 7 direction and nothing changes. The direction doesn't 8 change, but a lot of the other sort of atmospheric 9 variables do change.
10 JUDGE TRIKOUROS: Correct. Sort of 11 quasi-transient?
12 MR. HARRIS: Yes, sir.
13 JUDGE TRIKOUROS: Let's see. This tightly 14 concentrated plume that you were speaking about 15 earlier would remain concentrated until the wind blows 16 it onto the land. This is from your petition, I 17 believe at page 121, paragraph 205.
18 MR. KAMPS: Which paragraph? Page 121.
19 JUDGE TRIKOUROS: One twenty-one, 20 paragraph 205.
21 MR. KAMPS: Yes.
22 JUDGE TRIKOUROS: And your basis for 23 saying that is that of the report by Dr. -- is it 24 Bayea? Bayea? Is that the pronunciation? It's a 25 report that you wrote to the Massachusetts Attorney NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS.
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. . .. ... 1 . ...General., I , think.. . . .. ... . .
2 MR. KAMPS: Well, there were actually --
33 throughout our filing, there were other studies on the 4 Atlantic Seaboard, in addition to EAS that explained 5 the phenomenon. And the way that it would work is 6 because the land heats up during the day, the hot air 7 rises, cooler air from the lake would then rush in to 8 that void. And so it creates a cycling, effect, which 9 is reversed at nighttime.
10 And so what that can do is it can allow 11 for a radioactive plume to go out over the lake and be 12 sucked back in over the land in a very concentrate.
13 way. And that is why this issue was so often brought 14 up in the Seabrook proceeding., And I think' it 15 deserves equal attention in this proceeding because of i16 theequivalency on this lake shore.
17 JUDGE TRIKOUROS: This is an effect that 18 would be applicable to any dispersion model, right, 19 not necessarily MAACS2 but the effect is the effect.
20 MR. KAMPS: Well, it is a reality that 21 this model does not capture. And that is why we are 22 so concerned about the --
23 JUDGE TRIKOUROS: I understand. Are there 24 any models that you know of that do capture it?
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199 1 .... would. like toQ explore further in. the hearing on the 2 merits. We did cite the different options out there 3 at various agencies as possibilities. It is a 4 separate point, but you had mentioned some distances 5 before where certain models were more accurate at 6 certain distances or gave different results. And I 7 wanted to bring up that --
8 JUDGE TRIKOUROS: I never said "more 9 accurate," but --
10 MR. KAMPS: I'm sorry?
11 JUDGE. TRIKOUROS: I never said "more 12 accurate."
13 MR. KAMPS: Gave different results.
14 JUDGE TRIKOUROS: They are different. In 15 a code-to-code analysis, one is different from 16 another. There is a presumption that -the more 17 sophisticated code is more correct. It is a 18 presumption. There is no experimental data here, as 19 far as I know. I mean, maybe these 'codes do have 20 empirical support, but that is not what we were 21 addressing. We were addressing code-to-code 22 variations.
23 MR. KAMPS: The point that I was going to 24 point out here, it's from page 118,' paragraph 200.
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200 1 .. -Gaussian plume-.to predict the dispersion..of .a plume.
2 beyond 32 miles.
3 And so kind .of to reiterate what I said 4 before. I think with six years.. before license
.5 extension, given the opportunity for this very 6 proceeding to go into *the merits of a hearing, we 7 could stop to make some of those comparisons between 8 different models to try. to better understand how the 9 radioactive plume would behave.
10 We think we argued here that'the Gaussian 11 plume, straight-line Gaussian plume model, 12 one-dimensional., does not capture the reality of the 13 situation here at Davis-Besse.. So the hearing would 14 allow for some of that model-to-model comparison, 15 which we tried to defend in our filings, both the 16 petition and the. combined reply, where we defended 17 mathematical comparisons between models. So that 18 better understanding can be arrived at. That is 19 really what we are trying to get at.
20 We are not really, you know, trying to 21 sell a product that this model is better than this 22 model, but it would be nice to know as closely as we 23 can what the reality is. here at DaviszBesse because 24 the context is trying to protect the public from 25 radioactive releases. So it is a very important NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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201
__1 - context, that's why our. concern.,
2 JUDGE TRIKOUROS: Your petition at page 3 132, you say, "The DOE, too, recognizes the 4 limitations of the straight-line Gaussian plume model.,
5 They say, for example, that- Gaussian models are 6 inherently flat earth models and perform best over 7 regions of transport, where there is minimal variation 8 in terrain. Because of this, there is inherent 9 conservatism. If the environs have a significant 10 nearby building, stall vegetation, or grade 11 variations, not taking into account the dispersion 12 parameterization."
13 *So you say there is inherent conservatism 14 if there are buildings, vegetation, grade variations?
15 That didn't make sense to me when I saw that. Were 16 you trying to say that MAACS2 was more conservative?
17 It's hard to believe that, that you're saying that.
ý18 MR. KAMPS: Yes. I'm sorry for the 19 confusing language. It's confusing to me right now.
20 The conservatism would be an accounting for those 21 terrain effects. And I have kind of -- what I have 22 written here is very confusing in that regard.
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202 L - that'-s lacking in this model. And we made.this-point.
2 in the petition. There are terrain effects in this 3 vicinity that' could complicate this model. And it 4 would mean that it would not capture the reality.
5' So, for example, the river valleys, there 6 are hilly, forested river valleys, like the Cuyahoga 7 River Valley in the vicinity; that we think that that 8 model will not capture the significance of those 9 terrain effects on the land. And, like I said, the 10 lake is perhaps even more significant in this regard 11 in the concentration of the cloud remaining intact to 12 be blown into a natural area, for example..
- 13. So I agree with you this is confusing the 14 way it is written.
15 JUDGE TRIKOUROS: Remember what I said 16 earlier. Sometimes the simple model gives higher 17 doses than the more complex model. So part of the 18 problem with not having expert opinionis supporting 19 your contention. We can't really address those 20 issues. And we are not here looking at the merits, 21 but we want to make sure that there is something to 22 litigate. And it's at a hearing.
23 MR. KAMPS: Well, during the introduction, 24 it was mentioned that at the Seabrook proceeding, the 25 licensing board there recognized the merits and has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.,W.
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203 admitted- this. version contention on -the -sea breeze 2 one-dimensional --
3 JUDGE TRIKOUROS: I'm aware of. that.
4 Okay.
5 I think this is my last one on.D. This is 6 the petitioners' revised reply at 36. The question is 7 going to be. for the applicant. The petitioner 8 indicates that -- let's see. They're referring to 9 utilization of. meteorological data at various 10 locations other than just the on-site met tower, I 11 believe. You say, "The numerical computations based 12 upon numerical weather prediction techniques would
- 13 compute wind fields appropriate for modeling 14 dispersion over a much larger geographic area than a 15 single measurement site at Davis-Besse itself can 16 appropriately provide for." It is your revised reply 17 at page 36 at the bottom.
18 I guess my question to the applicant was, 19 why weren't meteorological data from other locations 20 not utilized, like Toledo Airport? They typically 21 have met data. I guess you mentioned a few others in 22 your petition. I don't remember.
23 MR. POLONSKY: Your Honor, from what I 24 understand, the ATMOS model only allows for input for 25 a single year from a single location. And so multiple NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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204 1 .. years.were.collected..from.Davis-Besse.. One was.us.ed 2 for the analysis. Another year was used for a 3 sensitivity study.
4 But I think,-as you pointed out, ATMOS is 5 a module embedded in MAACS. This is not an occasion 6 where we can do Chinese menu. We will take that model 7 here and put it into here. It 'is just not currently 8 physically possible or computationally possible. And 9 the Commission identified this very inter-beddedness 10 in its Pilgrim decision, CLI 10-22, where it said, 11 "Notably, there are practical constraints on the 12 degree to which the meteorological modeling can be 13 altered in the MAACS2 code, which is the most current 14 established code for NRC SAMA analysis. As Pilgrim 15 Watch states, the straight-line Gaussian floor model 16 is embedded in the MAACS2 code.* Therefore, it is not 17 possible simply to plug in and run a different 18 atmospheric dispersion model in the MAACS2 code to see 19 if the SAMA cost-benefit analysis would change. The 20 three modules, ATMOS, EARLY, and CHRONC, in the MAACS2 21 code are integral parts of the code."
22 JUDGE TRIKOUROS: Yes. And I --
23 MR. POLONSKY: So that is why they only 24 used one year. And that is why they only used from 25 one location.
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. JUDGE TRIKOUROS: - And -I certainly. agree 2 with that, but that isn't really the question. The 3 question is the met data is input to MAACS. It is 4 input to ATMOS. It is input to these subroutines that 5 are in the code. So the met data at Toledo Airport 6 could have been utilized just as easily as the met 7 data from this site.
8 MR. POLONSKY: I think it was the rational 9 response to what you are modeling. We don't know 10 whether the -- we know what the meteorology is at our 11 site because we can control that information. And we 12 are, in fact, modeling a release 'from our site. So it 13 made sense to'use site-specific met data to model the 14 release from our site.
15 JUDGE TRIKOUROS: Would there be any 16 reason to believe that if you had used Toledo Airport 17 met data or other local met data that you would have 18 had a different answer?
19 MR. POLONSKY: No,' but that's a technical 20 question, Your Honor. And it's a hypothetical one.
21 JUDGE TRIKOUROS: Fine. Let me just ask 22 the staff. Do you have a problem with the fact that 23 they only used Davis-Besse met data, rather than -- is 24 there any requirement that you know of to --
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206 I know__of. In'fact, the>,Lawrence..Livermore..s.tudy-that 2 you were *discussing, part of the reason :that that 3 study was done was to look at models that could take 4 -additional' meteorological data, adapt LODI, which is 5 a Lagrangian code model, 'which I don't. think we need 6 to go into here, you know, what is the difference of
.7 it.
- 8. You know, that takes a lot more data in 9 terms Of being able to run. And so if you look at 10 those conclusions that were made there:, out at 15
'11 miles, I think there, were certain point's where MAACS2 12 varied by a factor of 2 on just that one point along 13 that 50-mile radius.
14 And it outperformed two other NRC codes 15 that we use for emergency planning purposes, RASCAL 16 and RATCHET, which are more, similar to .the CALPUFF, 17 you know, in terms of how it models meteorological 18 data. So some of that has been addressed already.
19 And: so we are comfortable with a single meteorological 20 weather station based on the, analysis. that 'we have 21 done.
22 JUDGE TRIKOUROS: So, really, the NRC does 23 haveadditional -- ADAPT/LODI 'I think are the code you 24 mentioned, the code combinant. That is the one I was 25 referring to, actually, when I said that MAACS gave NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W..
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-1 higher.results- for the first 20. or zso-miles; 2 MR. HARRIS: That is correct.
3 JUDGE TRIKOUROS.: which surprised me, 4 actually.
5 MR. HARRIS: I think, though, you'll see 6 that with MAACS almost the~dominant -- when you look' 7 at sort of dominant factors of consequences, that they 8 tend to be :closer to the plant itself, just the way 9 the modeling is done. A lot of,, that I believe 10 probably is not something we really need to go into 11 here.
12 JUDGE TRIKOUROS: And,. again, it's tothe 13 extent that we move, into the merits in this 14 discussion,, merits are, not going to be a determining 15 factor for us. A minimal showing on the part of the 16 petitioners would be sufficient.
17 I know that I have maybe gone deeper into 18 the merits in this discussion than I should perhaps, 19 but that is not going to be a major consideration.
20 CHAIRMAN FROEHLICH: We've been at this 21 now for over two hours in our afternoon session. What 22 I would like to do is take a ten-minute break, limit 23 it to ten minutes. After that we will come back and 24 take 4E and 4F, leaving time for- any comments that ti 25 applicant ýhas bh the February, 28th filing. And then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS, 1323 RHODE'ISLAND AVE., N.W.
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-1 we will go to closing-argument.,_which-will be..limited 2 to five minutes per party.
3 Now, in response to your request to have 4 the individuals you represent, Steve, if youwant them 5 to speak, that will come from your five minutes of 6 closing argument. That will leave the choice to you.
7 We will resume in ten minutes, about ten 8 minutes to 4:00. Thank you.
9 (Whereupon, the foregoing matter went off 10 the record at 3:37 p.m. and went back on the record at 11 3:48 p.m.)
12 JUDGE KASTENBERG: So we're going to move 13 on to part E of contention 4. And this question is 14 for you, petitioners. On page 142 of your petition, 15 you take issue with the use of $2,000 per person-rem.
16 Population dose averted is the way I understand it, 17 saying it is "based on a deeply flawed analysis." So
.18 can you tell us what in your opinion is specifically 19 wrong with~or flawed about using $2,000 per person-rem 20 in the cost-benefit analysis?
21 MR. KAMPS: Yes. 'I think one indication 22 that perhaps we are on to something is that this is 23 under review at the, NRC staff level is my 24 understanding. One of the important points that we
( 25 make is that health costs being a significant part of.
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209 1 the-.economic- costs that- could- result- -from- a.
2 radioactive release from a severe accident, that 3 certain assumptions by FirstEnergy are flawed, are 4 wrong. The value of a lost lift, for example, is 5 underestimated.
6 I think another important point.that needs 7 to be addressed is revelations from the NAS BEIR 7 8 report, "Biological Effects of Ionizing Radiation,"
9 again into the devil and detail of these analyses and 10 assumptions that at low doses of radiation, there is 11 a supra-linear harm caused to people who experience 12 those doses.
13 So the person-rem conversion factor needs 14 to undergo reevaluation. And the economic harm will 15 likely increase once that evaluation is finalized.
16 JUDGE KASTENBERG: Do you think it will go 17 up to what? Any idea what it should be?
18 MR. KAMPS: I really can't hazard a guess 19 on that.
20 JUDGE KASTENBERG: Do you have any 21 comment? Well, I know you do. You had it in your 22 reply note.
23 MR. HARRIS: Do you mean in regards to the 24 $2,000 per person-rem?
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210 1.... person-rem, yes. . ...
2 MR. HARRIS: It is true that the staff is 3 looking into that as to what it may eventually be. I 4 mean, that is still in the review process. And when 5 they make that determination, it will be -- let me 6 just verify one thing.
7 Yes. So.if they are going to change it, 8 imean, it would be published in areg guide, which 9 would have an opportunity for notice and comment in 10 terms of whatever that eventual- number is. if it is 11 changed. But that is not to say that it will change 12 because that is part of the regulatory process that is 13 ongoing.
14 And I don't want to commit the staff that 15 that is going to change because that is something that 16 is being done. It's ongoing now.
17 JUDGE KASTENBERG: Under review?
18 MR. HARRIS: Right.
19 JUDGE KASTENBERG: Let me just ask the 20 petitioner, do you know why $2.,000 of person-rem was 21 chosen in the first place or where this whole concept 22 comes from to use dollars per person-rem as the 23 measure of converting the results of an accident to'a 24 dollar value for human life?
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211 i not ... I just *know that it is _dated at. -this -point,.
2 especially with BEIR 7 in 2005, not only confirming 3 that previous BEIR reports were accurate, that any 4 exposure to radiation is harmful, but actually finding 5 that at low dose levels, there is a supra linear harm.
6 It's not a linear harm. It's greater than linear at 7 low doses.
8 So that is a current development. It is 9 now six years old, but it is something that needs to.
10 be reflected in this outdated $2,000 per person-rem.
11 And I think, you know, that one answer to 12 give you would be that it is a way to account for 13 large numbers of people being exposed to 14 radioactivity, as opposed to an individual's 15 experience.
16 Perhaps there is more known in a sense 17 about individuals and what might happen to them. We 18 are talking about large clouds of radioactivity 19 growing over long distances downwind, exposing large 20 numbers of people to varying doses.. And so this is an 21 attempt to try to capture what happens out there in 22 reality when, actually, it is going to be very 23 *difficult to figure that out because of the chaos that 24 will ensue in terms of public health.
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212 1 -one,- actually. And that is why..we are trying.so. .hard 2 to get these models to be more accurate, to be taken 3 more seriously by not only the company but even the 4 safety regulator because our ability to damage human 5 health and life is so much further along than our 6 ability to even understand that damage once it has 7 happened.
8 And it is often said that these impacts 9 will simply disappear into the'. static of cancer 10 happening anyway. Well, that to my mind is very 11 tragic that, for example, epidemiology cannot even 12 figure out how much cancer was caused by this major 13 radioactivity release at Chernobyl, for example, 14 because it is lost in the static.
15 So this is a feeble attempt to try to 16 determine how bad the damage will be. And we need to 17 do a lot better job. And that is really the basis for 18 our intervention on this.
19 JUDGE KASTENBERG: On this issue.
20 MR. HARRIS: Judge Kastenberg, could I add 21 one other thing, too? Right now the NRC has 22 contracted with the National Academy of Sciences in 23 terms of looking at the cancer related to low-level 24 radiation. So, I mean, that's another study that is 25 currently ongoing at the NRC itself.
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213 1 - So there., is .an opportunity, to. challenge 2 those kinds of conclusions, sort of from that study as 3 it goes through its *appropriate administrative 4 process.
5 JUDGE KASTENBERG: I want to just ask a 6 follow-on question to this, but I will address it to 7 the staff. So $2,000 per person-rem or any dollars 8 associated with person-rem averted might be. the 9 measure in which to evaluate any lists of candidate 10 options for SAMA?
11 MR. HARRIS: That is part of the 12 evaluation. So you have the dose that is averted.
13 And that makes up some of the off-site costs. But 14 that doesn't make up all of the off-site costs. You 15 also have the costs associated with decontamination.
16 Plus, you also have the -on-site costs 17 associated with the cleanup of a hypothetical accident 18 at Davis-Besse; So some of the on-site costs involve 19 things like replacement power in terms of providing 20 -that.
21 So it is one cost. It is not the cost 22 that we evaluate on it. So it makes up a small 23 portion of this overall evaluation.
24 JUDGE KASTENBERG: In the Commission 25 safety goals, I think you expressed them earlier in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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214
.1 generality with respect to core damage frequency and 2 large early release fraction. Presumably the concern 3 with large early release fraction has to do with the
.4 huge fatalities. Is that correct?
5 MR. HARRIS:. I believe that's correct.
6 And I believe that that's why we are so concerned 7 about the early release, as opposed to the more 8 long-term release.
9 JUDGE KASTENBERG: Right. So how do you 10 account for early fatalities in the cost-benefit 11 formula as compared to a long duration release in 12 which you normally look at latent fatalities?
13 MR. HARRIS: Well, I think there the issue 14 is that we are really looking at the expected value 15 from this particular accident scenario. So trying to 16 determine if this particular person dies in a SAMA 17 analysis from their exposure is a different issue than 18 what we're trying to look at, what is the expected 19 value occurring over this particular type of accident 20 at a particular time. And we are not exactly sure how 21 the meteorological conditions will exist at that time.
22 So looking at it, it's something that sort 23 of has come up as we're looking at mixing emergency 24 planning. You know, should we make the decision to 25 evacuation a person versus whether or not this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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215
. 1 .- particular- mitigation-. -measure- is. -cost-beneficial.
2 Those two things~are not equivalent.,
3 You know, trying to determine how much 4 dose this one particular person got is.not what we're 5 really interested in in terms of a SAMA analysis., We 6 are interested in.it in terms of public health but not.
7 -for purposes of analyzing a SAMA. What we are trying 8 to find is the mean value of the population dose for 9 the model domain.
10 And that $2,000 accounts for the fact that 11 it could be one person getting 100 rem versus one 12 person getting 2 rem is that, you know, the more --
13 you know, but in terms of the overall value of the.
14 mean, it is the same, whether it is 100 people getting 15 .1 rem or one person getting 10 rem.
16 JUDGE KASTENBERG: Yes. Now, in that
- 17. analysis, how do you factor in early fatalities or do 18 you when it comes to a SAMA analysis? I guess that is 19 the question.
20 MR. HARRIS: Excuse me one second here.
21 (Pause.)
22 MR. HARRIS: Your Honor, I believe it is
.23 all incorporated in the selection of that $2,000 per 24 rem. So it's not a separate consideration that is
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216 1 ..-release fraction... So that-s the. best. answer- I. can 2 give you.
3 JUDGE KASTENBERG: So that would say that 4 you are using the $2,000 per person-rem as a surrogate 5 for all health effects basically?
6 MR. HARRIS: Yes. Yes, Your Honor.
7 JUDGE KASTENBERG: Okay.., Okay. This is 8' for petitioners. On page 146,, paragraph 213, you 9 refer to CRAC or CRAC 2 as a "1982 Sandia National
.10 Laboratory report."
11 MR. KAMPS: Yes.
12 JUDGE KASTENBERG: I couldn'.t find it.
13 And we have resources. And so we're curious to know, 14 what is the report that you are actually referring to?
15 Is it a users' manual for the original CRAC code or is 16 there some other report that has the word "CRAC" in 17 the title or is --
18 MR. KAMPS: Well, it stands for 19 Calculation of Reactor Accident Consequences.
20 JUDGE KASTENBERG: That I know.
21 MR. KAMPS: CRAC 2. It was commissioned 22 by' the NRC, was carried, out by Sandia National 23 Laboratories. There was an effort by the NRC to not 24 publish the report', to not make thereport public, but 25 Congressman Edward Markey of Massachusetts held a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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217
-1. hearing on Capitol Hill .at which the report was made
.2 public and provides figures for peak early deaths, 3 peak, early injuries; latent cancer fatalities, and 4 property damage for each of the operating reactors in 5 the United States as well as at the time-- this is 6 the early '80s -- proposed reactors that never got 7 built. But Davis-Besse is on that chart. And so 8 those figures are --
9 JUDGE KASTENBERG: But could you give us 10 the correct title of the report? I guess that is what 11 I am asking.
12 MR. KAMPS: I may have not gotten the 13 title correct, Your Honor, but I refer to it as the 14 CRAC 2. calculation of reactor accident consequences.
15 And perhaps I don't know the whole history 16 of this report, whether it was never published in a 17 final form but the figures are certainly available.
18 That is what we are citing, are the figures.
19 Or Davis-Besse., I mentioned them earlier 20 in the proceeding today. The figures that I have for 21 Davis-Besse are peak early fatalities, 1,400 peak 22 early injuries of 73,000 peak cancer deaths, which 23 would be latent cancer deaths of 10,000, and a dollar 24 figure --
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218 1 record, could you tell-us where you are -reading from.
2 or where we can find these statements?
3 MR. KAMPS: Consequences of Reactor 4 Accident, CRAC 2, Report," "NRC and Sandia studied 5 meltdowns/risks at U.S. nuclear plants in 1982." So 6 this is from a website, which has a chart, the figures 7 in which were drawn from the CRAC 2 report.
- 8 CHAIRMAN FROEHLICH: And this is not an 9 exhibit that you attached and that the website is not 10 a link that was in your pleading?
11 MR. KAMPS: I believe that we did include 12 the figures as an exhibit. We did include the figures.
13 CHAIRMAN FROEHLICH: Would you tell us 14 which exhibit it is? Because we were trying to find 15 this --
16 MR. KAMPS: Yes.
17 CHAIRMAN FROEHLICH: particular 18 document and see what you were looking at. We weren't 19 able to locate it.
20 MR. KAMPS: I only cited it by name, Your 21 Honor, now that I am looking at page 146.
22 MR. POLONSKY: Your Honor, in our answer, 23 we asked for a citation. And, in the reply, they 24 simply said, "Everybody knows what CRAC 2 is." They 25 still didn't identify it in the reply.
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-1 1--would.suggest under NRC.precedent, you-2 have no obligation to go on a needle in a haystack 3 hunt for this. And they were obligated to attach it 4 as an exhibit or at least if it was a publicly 5 available document provide an adequate cite. And they 6 have not done so.
7 MR. KAMPS: What I said in my defense was 8 that since this report was commissioned by the NRC and 9 carried out by Sandia National Laboratory, which is a 10 Department of Energy subagency, that I would assume 11 that the Nuclear Regulatory Commission itself would 12 have access to that document and as a licensee, that 13 the FirstEnergy would also have access to it.
14 JUDGE KASTENBERG: Well, again, is there 15 something in your pleading that -- did you find it?
16 It's just what it says here. So there is no linkage, 17 no attachment, no --
18 MR. KAMPS: No. I'm sorry. I didn't --
19 JUDGE KASTENBERG: -- other than just your.
20 words "CRAC 2"?
21 MR. KAMPS: I didn't provide it. I should 22 have provided at least a link to this website, which 23 is where we procured the information from.
24 JUDGE KASTENBERG: Is staff aware of which 25 report they are referring to?
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220 1 MR. HARRIS: -I'Lm sorry,- Your Honor?
2 JUDGE KASTENBERG: Are you aware of which 3 report they are actually referring to?
4 MR. HARRIS: We're generally aware.of the 5 report. And from what I understand,, it was an 6 extremely conservative study in terms of consequences.
7 But we weren't able to locate it based on their 8 representation of it.
9 JUDGE KASTENBERG: Fair enough.
10 MR. KAMPS: What I did say, Your Honor, I 11 believe there was media coverage of the release of the 12 report under forced testimony by Congressman Markey.
13 So that could be cited if we need to track down this C 14 report, but it certainly is amongst our colleagues 9 15 around the country often cited to get some idea of how 16 bad an accident could be at a nuclear power plant.
17 That is why it is so familiar to us.
18 We often cite the figures from this 19 report. We did it at, for example, the Palisades 20 license extension proceeding.
2i JUDGE TRIKOUROS: Well, I can just tell 22 you that I had trouble with 4E in terms of finding 23 authority for your statements. The applicant pointed 24 out specific statements that you made that indicated C
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-1 to-get--that--ironed--out- right now-....
2 The applicant answer on page 118 3 identifies 7 items. I don't think they meant them to 4 necessarily be comprehensive, And they. indicate that 5 you present no document or expert opinion to support 6 any of these general assertions or adequately explain 7 the materiality to the Davis-Besse SAMA analysis, 8 including any alleged affect on the cost-benefit 9 analysis results.
10 Was there a key document that one could 11 point to that provided authority for your statements?
12 Because you use terminology like "The users' guide 13 described decontamination processes as plowing and 14 firehosing." And then you say, "We know that CERLA, 15 EPA, and local authorities would not, allow use of 16 those methods."
17 I don't know what "We know" means. There 18 is no --. I couldn't find any place where you pointed 19 me to that says, "Here is where it says they wouldn't 20 allow those methods."
21 MR. KAMPS: I think, again, just the 22 notion of firehosing radioactive contamination deeper 23 into the groundwater supply is a nonstarter for most 24 people. So that is kind of the point that we were 25 trying to make.
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222 S- ... Iff-emergency contingencies-were. going -to 2 take such shortcuts on environmental,.protection, 3 public health protection, then I think there would be 4 a real backlash, not just politically but from common 5 citizens.
6 JUDGE TRIKOUROS: Well, my understanding 7 just from reading the material that was provided by 8 all of you was that those particular activities, while 9 they were credited for reducing dose from direct dose, 10 they were assuming that all of the radioactive 11 material got into root system and increased the dose 12 from ingestion so that just a transfer of dose from 13 direct dose proximity dose to ingested dose, but they 14 weren't passing that material out into the water.
15 And, as far as I know, it was being held at the root 16 systems.
17 Now, this is not my area of expertise. So 18 I'm not entirely comfortable with it. But, you know, 19 you indicate that, you know that EPA, for example, 20 would not allow that. I don't know. I mean, from my 21 point of view, that's just a statement that's 22 unsupported.
23 MR. KAMPS: I guess perhaps I should have 24 worded it we certainly hope that EPA would not allow 25 this to happen. I mean, that is the kind of thing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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223 1 that. has_ happened, in the Chernobyl..region.
2 So areas of land that were declared 3 nuclear sacrifice zones, guess what, 25 years later 4 are being used as farmland again under the 5 dictatorship of Belarus, at least, so not only there.
6 Ukraine as well, which is regarded as a democracy now, 7 is allowing tourists into the area.
8 So we would hope that the authorities in 9 charge of protecting public health and safety and the 10 environment wouldnot allow for suchshortcuts to take 11 place. I guess I could put it like that.
12 I would hope that NRC wouldinot allow such 13 things.
14 JUDGE TRIKOUROS: You indicate in your 15 petition, your revised reply, that "Joint petitioners, 16 unlike FENOC, fully understand the rule of reason.
17 NEPA does not allow or find reasonable the applicant's 18 decision to use outdated technologies and assumptions 19 in their analyses. Joint petitioners' alternative 20 methods are available and in use by other federal 21 agencies, industries, and parties." That is on page 22 35 of I guess, if I said that, your revised reply.
23 Are these methods similar to what we were 24 talking about earlier, that these methods would
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224 1 .these..off.=,the-shelf-methods that youare_.referring..to?.
2 MR. KAMPS: The latter,. the off-the-shelf, 3 where we said that further research is not required.
4 And we gave a listing --. I could track it down -- of 5 different federal agencies and the different models 6 that they use for airborne pollutants; for example, 7 EPA and DOE. So they are ready to go alternatives.
8 JUDGE TRIKOUROS: Are there any other 9 comments on that from anyone?
10 MR. HARRIS: Your Honor, 'in reference to 11 the EPA model, the EPA is not doing a severe accident 12 analysis of those models. So those models, even if 13 you implemented them, wouldn't actually address 14 whether or not we are finding a cost-beneficial 15 analysis. It's a different atmospheric transfer 16 model. It's not a severe accident model.
17 JUDGE TRIKOUROS: Okay. I mean, maybe I 18 don't need to talk about this right now.
19 The petitioner indicates that "Cleanup 20 costs generally increase dramatically for standards 21 more stringent than 500 mr per year. However, 22 currently a cleanup standard is not agreed upon by NRC 23 and EPA. It appears to range from 15 'millirem to 5 24 rem per year," pretty big range.
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225 1 -a.. particular*-standard..that..was. utilized? .
2 MR. POLONSKY: I would have to check.
3 What page are you on of the -- is it the reply?
4 JUDGE TRIKOUROS: Petitioners' original 5 petition at 193 and 194, not page but paragraph, 6 paragraphs 193 and 194.. The bottom of 193 is.talking 7 about the range from 15 mr to 5 r.
.8 'MR. KAMPS: Your Honor, are you referring 9 to paragraphs 193 and 194 of the petition?
10 JUDGE TRIKOUROS: Yes, 193 and 194.
11 MR. POLONSKY: Your Honor, I'm being told 12 that the information that you are seeking was taken 13 directly from NUREG-0184. So whatever is embedded in 14 NUREG-0184, that is what was used for this part of the 15 SAMA analysis by FirstEnergy.
16 JUDGE TRIKOUROS: Okay. And I just wanted 17 to ask the NRC staff. This isn't the first time that 18 the NRC and the EPA disagreed. Is there any 19 consideration here with respect to the differences 20 between the NRC and the EPA? FENOC is bound by the 21 NRC entirely?
22 MR. HARRIS: In order" 'to meet our 23 regulations, they have to meet. our 'standards. In 24 terms of in the event of a severe accident, whether or 25 not the EPA, FEMA, or NRC because I believe most of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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-I this. came from.a:.particular.report that. was published 2 towards the beginning or towards the end of last year 3 from a report where a lot of this information came out 4 from a FOIA, came out in a FOIA request, is that that 5 is a separate issue in terms of it's- not really 6 conjugant to license renewal, the applicant needs to 7 meet the license renewal standards.
8 But whether or not in the event of an 9 accident, whether the EPA standard or FEMA or the NRC 10 is going to be the lead agency and what the eventual 11 cleanup standard there would be is a different 12 problem. It's more of not an emergency planning 13 problem but an actual accident cleanup issue.
14 JUDGE TRIKOUROS: Okay. :So the actual 15 standard -- if this were to happen, the actual 16 standard that would be applied is not determinable at 17 this minute?
18 MR. HARRIS: Well, the EPA is looking at 19 their organic legislation, the NRC looking at its 20 organic legislation. We have different requirements 21 in terms of the dose in terms of how they have 22 regulated that. You can see some of that in municipal 23 water plant requirements in terms of their doses 24 versus where we look at off-site dose consequences.
25 So they don't have to be the same for.
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227 1 .different.-purposes .. The- -thing'-about -cleanup- is-that.,-
2 though the NRC has responsibility for regulating a 3 nuclear power plant, we are not really the agency that 4 has all of the resources necessarily to respond to an 5 accident, that FEMA has a lot more expertise in that 6 kind of response. So it's going to be a shared joint 7 responsibility. So I, think it's really not pertinent 8 to this particular analysis of what was used in the 9 SAMA.
10 JUDGE TRIKOUROS: The problem is that it 11 is pertinent in the sense that we are trying to decide 12 if there is an averted cost that would justify a plant 13 modification -r a procedural. modification or training 14 modification.
15 MR. HARRIS: Right. And I wouldn't 16 disagree with that, but I think that what you have to 17 realize when you look at something like this is that 18 if I said it, what I have to clean it up to, you know, 19 the amount of dose that I am going to say is okay 20 before someone can rehabit that, you know, move back 21 into that area, is that there will be more costs to 22 clean up that particular spot. But I have avoided 23 more dose.
24 On the other hand, if I shift it the other 25 way, I will have incurred more dose, but I will also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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.1 have .incurredless_ co~st.:in-the.-:cleanup.. .
2 JUDGE TRIKOUROS: Yes. Okay. All right.
3 Well, this is analogous to the $2.,000 argument.
4 MR. HARRIS: Yes, Your Honor.
- 5. JUDGE TRIKOUROS: Okay. That's all.
6 CHAIRMAN FROEHLICH: We're rapidly wearing 7 out our welcome here'in the Ottawa County Courthouse.
8 My questions that .I had dealing with 4F 9 revolved-around reliance on Pilgrim 1 and CLI 10-11.
10 We discussed that earlier this afternoon.
11 I'll ask if my colleagues have any 12 questions on 4F. So, with that, Mr. Polonsky, you had 13 an issue that you wanted to raise concerning the 14 February 28th filing.
15 MR. POLONSKY: Yes. Since then, frankly, 16 there. was another thing that I probably need to close 17 the loop on, IPE and IPEEE, --
18 CHAIRMANTFROEHLICH: Now is the time.1 19 MR. POLONSKY: -- for you, Judge 20 Kastenberg. So probably now is the time.
21 CHAIRMAN FROEHLICH: Yes, sir.
22 MR. POLONSKY: Yes. Why don't I start 23 with the IPE/IPEEE? Several .changes were, past tense, 24 implemented under these other evaluations for IPE and 25 IPEEE, including procedural guidance and training to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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229 1 prolong battery life. in the event .ofAC or DC power.
2 losses; i.e., shedding of DC loads; two, procedural 3 guidance on refilling the borated water storage. tank 4 following a steam generator tube rupture;-- three, 5 procedural guidance during. the station blackout diesel 6 generator operation, specifically moni-toring fuel oil 7 levels; four, moving flammable gas cylinders that were
- 8. found" stored near flammable liquids ,and providing 9 training and developing a new program on industrial 10 safety; and, fifth, moving. gas cylinders and- providing 11 upgraded mountings to minimize fire-seismic 12 interactions.
13 -So when we got to looking dt* SAMA 14 candidates; the intent had been that these were 15 already implemented when we did that SAMA study.
16 I do also have a correction. I cited 17 NUREG-0184. It is NUREG-BR 0184'. I figured you knew 18 that but just, for the'record.-
19 And then, finally, yesterday there was-a 20 supplement that was provided, a notice that 21 petitioners filed in the proceeding. -And, -although 22 FirstEnergy has no objection to any party filing a
- 23. notice with the Board of significant legal or some 24 other factual issue, we do have an objection in the 25 way this was filed.
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....... .. .. . .1 In-particular, ...ins-tead-.of,-.just :-alerting.
2 the Board that the Seabrook decision had come out, 3 which, frankly, we assumed you knew anyway, they went 4 into five pages of legal argument, supplemental legal 5 argument. They did not contact us beforehand to ask 6 us if they could do that. They have not fashioned 7 this as additional legal argument or. fashioned it as 8 a motion. .And, procedurally, we have no right to
.9 reply to this.
10 We are requesting orally that this be 11 stricken and that- they be asked to refile a notice 12 simply attaching the Seabrook decision if that is what 13* they want to do.
14 CHAIRMAN FROEHLICH: Any response?
15 MR. LODGE: We believe that the Board has 16 the inherent ability to winnow through and determine 17 what is wheat and what is chaff. We respectfully 18 disagree with the characterization, but we would be 19 happy to simply refile the decision.
20 However, I gathered from our discussions 21 today that this Panel is probably rather aware of the 22 Seabrook case.
23 CHAIRMAN FROEHLICH: Let me just say this 24 about that. The Board is aware of the February 15th
( 25 issuance of LBP 11-02. We will use that to the extent.
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231 it is helpful to-us....We. also-point. out that. this-ais....
2 a board decision, one that is not binding on this 3 Board, and that we will disregard any of the extra 4 material that came with the filing or the notice of 5 the fact that is at issue.
6 What we would'like' to do now is move into 7 closing argument, beginning with the applicant; then 8 the NRC staff; lastly, from the petitioner. Please 9 limit *your comments to five minutes. And we will 10 close the record of this oral argument.
11 MR. POLONSKY: Thank you, Your Honor.
12 Before 1989; a petitioner could cut and
.13 paste a contention from another proceeding and provide 14 no expert support and have a Board admit that 15 contention as an admissible contention. Those days 16 are over, but petitioners are acting like they are 17 still here.
18 It is apparent that petitioners want to 19 explore alternatives or'research alternative models to 20 support these contentions only after the.contentions 21 are admitted.
22 NRC proceedings are not to be fishing 23 expeditions where you see what you can bring' home only 24 after' conducting discovery. The burden is on 25 petitioner to articulate at this stage of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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232 1 proceeding an-admissible-contention.. That -contention.
2 may only require a minimal showing, as was stated in 3 the 1989 policy, statement, but it is very clear that 4 that minimal showing is framed by the admissibility 5 provisions of 2.309(f) (1) and Commission precedent.
6 These provisions require adequate support to show that 7 a genuine dispute of material'fact or law is present.
8 For, energy alternatives, it requires only 9 reasonable and feasible alternatives available in this 10 case before 2017 that would be at 908 11 megawattsi-electric in Ohio and that it would be base 12 load, power for 20 years. The three contentions 13 petitioners propose do not meet the standard for the 14 reasons we articulated today.
15 For SAMA, a minimal showing requires 16 adequate support that it is genuinely plausible that 17 the new factor or other assumption may -change the 18 cost-benefit conclusions for the SAMA candidates 19 evaluated. And because SAMA is our site-specific 20 alternatives, the adequate support that is required 21 under the. regulations must have a nexus to 22 site-specific parameters.
23 Petitioners' six SAMA contentions either 24 challenge Commission-level precedent, present generic 25 issues, that do not apply to Davis-Besse, present NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. :
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233 1 issues- perhaps -applicable...to._other plantsbutnotto 2 Davis-Besse. And in no case do petitioners articulate 3 a nexus to a genuinely plausible change to the 4 cost-benefit analysis of Davis-Besse SAMA analysis.
5 Finally, the Board has already ruled that 6 historical operations at Davis-Besse are not part of 7 :the contention. Indeed, you have stricken that from 8 the record. Accordingly, the focus in this proceeding 9 is forward-looking using NEPA's rule of reason to 10 fashion reasonable non-speculative energy -alternatives 11 and site-specific SAMAs developed using mean values 12 and averaging potential consequences.
13 For these reasons, FirstEnergy urges the 14 Board to deny the petition in its entirety. Thank you.
15 CHAIRMAN FROEHLICH: Thank you.
16 NRC staff?
17 MR. HARRIS: Your Honor, the joint 18 petitioners' contention that they advance, first 19 dealing with the alternatives analysis, is that the 20 petitions and the alternatives that the joint 21 petitioners advance need to address the purpose of the 22 license-renewal, which is to provide approximately 910 23 megawatts-electric of base load power.
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234 don't.show-that..base-load-power-wouldbe-.likely.t.obe 2 available by 2017, that is not a reasonable 3 alternative for relicensing Davis-Besse.
4 With solar, I think the issue is very 5 clear, that the solar, documents only show peaking load 6 demand. As such, they are simply not going to provide 7 base load power in the way that Davis-Besse could 8 provide base load power for the 910 megawatts.
9 With wind, I want to address one thing 10 that was brought up a little earlier on exhibit 21, 11 which talked a little bit about base load power from 12 wind. That exhibit itself shows that there is no wind 13 providing base load 'power as of the time of writing 14 that particular analysis and that it was merely a 15 speculation that at some point in the future, unknown 16 future, there might be a way 'to provide base load 17 power.
18 Many of the exhibits cited by petitioners 19 related to wind power really are looking at periods 20 beyond 2017. And to the extent they look at periods 21 beyond 2017, it, is simply not appropriate' for a 22 reasonable analysis.-
23 Finally, turning to the SAMA analysis, as 24 we found out from our discussions, SAMAs by their very 25 nature are very complicated. And simply making a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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235 1 -small change.here-does-not-necessarily-result.Ain-that-2 same kind of change somewhere else in the analysis or 3 even a change in the conclusion.
4 And we have been looking at this talking 5 about mean values and expected values.' But we have 6 also been mixing this with, well, if we use a more 7 modern or newer atmospheric transfer model, it might 8 have a different result under a particular 9 meteorological condition, you know.
10 But we are not comparing MACCS2 and ATMOS 11 to a particular single event but to the average of all 12 of these events occurring at some unknown time. And 13 to the extent that none of these issues go to whether 14 or not that would change, it simply hasn't raised an-15 admissible contention.
16 CHAIRMAN FROEHLICH: Thank you.
17 Petitioners?
18 MR. HARRIS: Thank you.
19 For the first two minutes of our five 20 minutes, Anita Rios, whodis Co-Chair of the Ohio Green 21 Party, will make a statement. Thank you.
22 MS. RIOS: Thank.you for allowing me to 23 speak. I hope you. can hear me. My voice doesn't 24 carry that well. ýIf you want me to use that device, 25 I certainly will.
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-1 -..-Okay. We'_reokay-? ... Mynameis Anita-Rios-..
2 And, as Terry mentioned, I am Co-Chairý of the Green 3 Party of Ohio, but I am here today~because I was born 4 and raised in Toledo, Ohio. I raised my children in 5 Toledo, Ohio. I graduated from the University of 6 Toledo, And I care about Toledo. It's my home. I 7 hope I die in Toledo.
8 And I am here today because I think this' 9 is an opportunity for all of us to get it right., for 10 the NRC, for FirstEnergy, for you all, and for us. I 11 am here because it is my responsibility as a citizen 12 to speak up and say this is not acceptable, it is not 13 acceptable, but we do not address what is. It is not 14 acceptable that we use the GEIS that is so dated that 15 it is probably not applicable anymore..
16 And this is the time. This is the time 17 when we must step forward and do something better 18 because what is at risk? It's not all the litigation 19 and all of the rules and the bureaucracy that we have 20 been talking about today. It is me. It.is my home.
21 It is.,my family. So I hope you will all make the 22 decision about what to do today.
23 MR. LODGE: And, finally,' we certainly 24 recognize that this panel is not controlled by the 25 determination made-in the Seabrook case. However, at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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237 1.i pages- 25-of-68-and-2_of_68_inthe__Seabrook__decision, 2 there is some extremely well-stated reasoning that we 3 certainly ask the Panel to consider.
4 In, challenging admissibility and I'm 5 talking now the first three contentions .-
6 unfortunately, the, applicant and the staff seem to 7 have confused the merits of the contention with the 8 adequacy of the pleading. The fact that an 9 interconnected system of offshore wind farms or 10 on-shore wind farms or photovoltaic electricity or a 11 combination of wind and solar is -a reasonable 12 alternative is the merit issue.
13 This. Panel has in discussion today 14 repeatedly reminded all of us that it understands the 15 distinction. We are asking for a trial' on the merits 16 to determine whether these are reasonable 17 alternatives.
18 So when we are alleging the need for 19 further, study of an alternative, the reasonableness 20 determination is the merits and should only be decided 21 after the contention is admitted.
22 With respect to the timing, the six and a 23 half-year infill, let's call it, the relevant time 24 frame, as the Panel has acknowledged today, is stated 25 in the. Carolina Environmental Study Group decision.
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238 1 - -The --obligation- i-s--to-- consider.--alternativesas_:_they_ ._..
2 exist and are likely to exist. The petitioners have 3 demonstrated a likely. They have demonstrated far 4 more than the minimal factual showing that should 5 ensure that these three contentions are admitted for 6 hearing.
7 The problem, as I kept mentioning this 8 morning, is that there. is a confusion and a danger in 9 going to -- in deciding whether-or not we win today.
10 We haven't had a chance to develop all possible expert 11 documentation and testimony. We haven't had a chance 12 to put on.a trialon the merits. We are asking. for 13 that. We have made and articulated a-showing that we 14 believe is deserving of admitting these three 15 contentions.
16 With respect to the SAMA contention, our 17 argument is simply that nuclear poses the need for 18 SAMAs.. Photovoltaic and wind do not.
19 Thank you.
20 CHAIRMAN FROEHLICH: Thank you.
21 At. this point I would like to thank the 22 parties, the courthouse officials, and the Court 23 Reporter for the session today. As a Board, we found 24 the arguments helpful.
25 We remind all parties that this is just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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239.
1 -- argument............ This. -will help us-to-determine- whether 2 these contentions will be admissible into the record.
3 if contentions should be admitted at a 4 future date, the Board would schedule limited 5 appearance opportunities for members of the public to 6 speak to the Board on any admitted contentions, but 7 let's not get ahead of ourselves.
8 Again I want to thank all of the parties 9 for their well-reasoned and helpful argument. And 10 this Board intends to issue its decision within 11 approximately 45 days from now.
12 We will have a transcript. It should be 13 out within a week or so.. Opportunity will be provided 14 for any transcript corrections that may be necessary.
15 And, with that, my colleagues, do you have 16 any final comments?
17 JUDGE KASTENBERG: No other than to thank 18 everyone. Thank you..
19 CHAIRMAN FROEHLICH: At that point, then, 20 we will close the record of this oral argument. I ask 21 that you take with you any papers, bottles, cans that 22 you brought with you. And I thank you all. We stand 23 adjourned:
24 (Whereupon, the foregoing matter was 25 concluded at 4:34 p.m.)
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CERTIFICATE'
~'
This is to certify that the, attached proceedings
'I before the United States Nuclear Regulatory Commission
-~
yit in the matter of: Davis-Besse Nuclear Station FirstEnergy Nuclear Name of Proceeding: Hearing I-.
Docket Number: 50-346-LR
~ ASLBP Number: II-907-01-LR-BDO1 Location: Port Clinton, Ohio 0 were held as herein appears, original transcript thereof for the file and that. this is of the United the States Nuclear Regulatory Commissiontaken by me and,
.thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the
- transcript is a true and accurate record of the foregoing proceedings.
To ias Walter Official Reporter Neal R. Gross & Co., Inc.
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