ML14255A495

NRC Staff Answer to Craft Petition for Leave to Intervene and Request for Public Hearing

ML14255A495
Person / Time
Site:	Fermi
Issue date:	09/12/2014
From:	Harris B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-341-LR, ASLBP 14-933-01-LR-BD01, RAS 26488
Download: ML14255A495 (99)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

DTE ELECTRIC CO. ) Docket No. 50-341-LR

)

(Fermi Nuclear Power Plant, Unit 2) )

)

NRC STAFFS ANSWER TO CITIZENS RESISTANCE AT FERMI 2 (CRAFT)

PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR PUBLIC HEARING Catherine E. Kanatas Brian G. Harris Jeremy Wachutka Joseph Lindell Counsel for NRC Staff September 12, 2014

TABLE OF CONTENTS PAGE INTRODUCTION ................................................................................................................... BACKGROUND ..................................................................................................................... DISCUSSION......................................................................................................................... I. CRAFT Has Established Standing to Intervene On Behalf of Several Individuals ................................................................................................................. A. Representational Standing Has Been Established For Certain Individuals Based on a Proximity Presumption ........................................................................... B. Individual Standing .................................................................................................... II. Contention Admissibility Requirements ..................................................................... III. The Scope of the NRCs Safety and Environmental Review for License Renewal Proceedings ............................................................................................... A. General Overview of Scope of License Renewal Review .......................................... B. The License Renewal Safety Review ...................................................................... C. License Renewal Environmental Review ................................................................. IV. CRAFTs Proposed Contentions Do Not Meet the Admissibility Criteria .................. A. Proposed Contention 1 (Wind Energy Alternative) .................................................. 1. Legal Standards Governing Contentions Challenging Alternatives Analyses in an ER ............................................................................................... 2. CRAFT Does Not Demonstrate That Wind Farms Could Generate Baseload Power in the Near Term ....................................................................... 3. CRAFTs Remaining Arguments Fail to Challenge the ER ................................... B. Proposed Contention 2 (Tribal Notification and Participation in Scoping) ................ 1. CRAFTs Claim That NRC Staff Failed to Notify Several Tribes of Their Opportunity to Request a Hearing is Inadmissible ............................................... 2. CRAFTs Claim that the NRC Staff Illegally Excluded Several Tribes From the Scoping Process Is Inadmissible .......................................................... 3. CRAFTs Claim that the NRC Staff Failed to Notify WIFN Under the NHPA Is Inadmissible .......................................................................................... 4. CRAFTs Claims Regarding the Impairment of the Fishing and Hunting Rights Guaranteed to Several Tribes is Inadmissible ...........................................

ii C. Proposed Contention 3 (Continued Storage) ........................................................... D. Proposed Contention 4 (Challenges to Fukushima Orders)..................................... 1. Challenges To Fukushima Order EA-12-051 and EA-12-049 Raise Safety Issues That Are Outside the Scope of This Proceeding ............................ 2. Proposed Contention 4s Environmental Claims Lack an Adequate Basis and Do Not Raise a Genuine Material Dispute With the License Renewal Application ............................................................................................ a. The NRCs Consideration of Severe Accident Mitigation Alternatives in License Renewal Proceedings ..................................................................... b. CRAFTs SAMA Claims Are Speculative and Do Not Raise a Genuine Material Dispute With DTEs SAMA Analysis ..................................... i. CRAFTs Attempt to Incorporate Fermi 3 Into the Fermi 2 SAMA Analysis Is Contrary to the Commissions Regulations ....................................................................................... c. CRAFT Does Not Specify How the Orders Raise an Environmental Issue Within the Scope of License Renewal ..................................................... E. Proposed Contention 5 (Challenge to Fukushima Order and Category 1 Finding) ................................................................................................................... 1. Challenges to Fukushima Order-EA-12-051 Raise Safety Issues That Are Outside the Scope of This Proceeding .......................................................... 2. Challenges to the Open Matter ISFSI Control of Heavy Loads Raise Safety Issues That Are Outside the Scope of This Proceeding ............................ 3. CRAFTs Challenges to Category 1 Issues Are Inadmissible ............................... 4. Suspension Is Not Warranted Based on CRAFTs Claims ................................... F. Proposed Contention 6 (Challenge to Fukushima Order and SAMA Claim) ..................................................................................................................... 1. Challenges To Fukushima Order EA-12-049 Raise Safety Issues That Are Outside the Scope of This Proceeding .......................................................... 2. CRAFT Does Not Indicate How NAS Report Raises License Renewal Safety Issue ......................................................................................................... 3. Proposed Contention 6s Environmental Claims Lack an Adequate Basis and Do Not Raise a Genuine Material Dispute With the License Renewal Application ............................................................................................ G. Proposed Contention 7 (Buried Pipes/Tanks and Reasonable Assurance Challenge) ..............................................................................................................

iii

1. Claims About Leakage of Radioactive Water are Outside the Scope of This Proceeding................................................................................................... 2. CRAFT Does Not Support Its Claim That the Buried Piping AMPs at Fermi 2 Fail To Provide Reasonable Assurance That They Will Perform Their Intended Function ......................................................................... 3. CRAFTs Challenge to the NRCs Reasonable Assurance Standard is Inadmissible ..................................................................................................... H. Proposed Contention 8 (SAMA Claims: EPZ, Meteorology, MACCS2, and ETE)................................................................................................................. 1. CRAFT Does Not Raise An Admissible SAMA Claim .......................................... a. CRAFTs Challenge to the Size of the EPZ is Outside the Limited Scope of this Proceeding ................................................................................. b. CRAFTs Challenge to the MACCS2 Codes Embedded Meteorological Model Fails to Raise a Material Issue ....................................... c. CRAFTs Challenge to the Economic Consequences is Not Adequately Supported by Facts or Expert Opinion ........................................... i. CRAFTs Economic Consequences Challenge Fails to Raise a Material Issue ....................................................................... ii. The 1982 Sandia Siting Study is Not Suitable for a NEPA Analysis ............................................................................................. d. CRAFTs Challenge of the ETE is Not Material To the Findings That NRC Must Make in This Proceeding................................................................. i. Fermi Conducted a Site Specific Study of ETEs ................................ ii. Fermi 2 Conducted a Sensitivity Analysis on Evacuation Speed and Portion of the Population Evacuating ............................... I. Proposed Contention 9 (Quality Assurance Claims Based on UCS Report) .................................................................................................................... 1. Quality Assurance Claims Raise Current Operating Issues Outside the Scope of License Renewal .................................................................................. 2. Contention 9 Does Not Indicate How Quality Assurance Relates to NEPA or a Deficiency in the LRA ......................................................................... J. Proposed Contention 10 (Quality Assurance Claims Based on Violation) ............... K. Proposed Contention 11 (Public Health Impacts and Mitigation Alternatives) ............................................................................................................ L. Proposed Contention 12 (Thermal Discharges and Algal Blooms) ..........................

iv M. Proposed Contention 13 (Challenge to EPA Radiation Protection Standard) ................................................................................................................ N. Proposed Contention 14 (Request for Reconsideration of Commission Precedent) .............................................................................................................. CONCLUSION .....................................................................................................................

v TABLE OF AUTHORITIES JUDICIAL DECISIONS PAGE U.S. Supreme Court:

Baltimore Gas & Electric Co., 462 U.S. 87 (1983) ................................................................ Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)........................... , U.S. Courts of Appeals:

Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983) ................................................................... California v. Federal Energy Regulatory Commission, 329 F.3d 700 (9th Cir. 2003) ............ Envtl. Law & Policy Ctr. v. NRC, 470 F.3d 676 (7th Cir. 2006) ............................................. Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008) ......................... , , New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) ..................................- 25 -, , , ADMINISTRATIVE DECISIONS Commission:

All Operating Boiling Water Reactor Licensees with Mark I and Mark II Containments: Order Modifying Licenses with Regard to Reliable Hardened Containment Vents (Effective Immediately), All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status: Order Modifying Licenses with Regard to Reliable Spent Fuel Pool Instrumentation (Effective Immediately), CLI-13-2, 77 NRC 39 (2013) ................................................................................................................................. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-08-23, 68 NRC 461 (2008) .................................................................................. , AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006) ................................................................................ Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235 (2009) ...................................................................... , Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs, Unit 3), CLI-09-20, 70 NRC 911 (2009) ..................................................................................................... , , Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012) ........................................................................ , Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __ (Aug. 26, 2014) (slip op.) .................................................. passim

vi Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation), CLI-07-21, 65 NRC 519 (2007) .......................................................................... Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399 (2007) ............................................................................................................. , Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349 (2001) .......................................................................... Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551 (2005) ...................................... , , , DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC

__ (Jul. 17, 2014) (slip op.)................................................................................................... Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419 (2003) .......................... , , Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-20, 54 NRC 211 (2001) .............................................. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1 (2002) .................................................. Entergy Nuclear Generation Co. & Entergy Nuclear Operations (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529 (2009) ............................................ , Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI 14, 71 NRC 449 (2010) ..................................................................................................... passim Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station) CLI-10-11, 71 NRC 287 (2010). ........... , , , Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13 (2007) .......................................... passim Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202 (2010) ......................................... Entergy Nuclear Generation Co., (Pilgrim Nuclear Power Station) CLI 01, 75 NRC 39 (2012) ................................................................................................ , Entergy Nuclear Operations, Inc., (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43 (2008) .................................................................................................................. Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-22, 72 NRC 202 (2010) .................................................................................................................................. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371 (2007) ..................................................................................................................................

vii Exelon Generation Co, LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801 (2005) ................................................................................................... Exelon Generation Co. LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 NRC 377 (2012) ........................................................................ , , Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195 (2003) ........................................................................................................................ , FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393 (2012) ............................................................................... passim Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3 (2001) .................................................................................. passim Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, New Mexico 87174), CLI-01-04, 53 NRC 31 (2001) ..................................................................................................... NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 (2012) ............................................................................................... , , Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481 (2010) .......................................................... , Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427 (2011) ............................................................ , , PPL Bell Bend LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133 (2010) ..................................................................................................................... , Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

CLI-78-1, 7 NRC 1 (1978) .................................................................................................... Sequoyah Fuels Corp. (UF 6 Production Facility), CLI-86-19, 24 NRC 508 (1986) ........................................................................................................................ , South Carolina Elec. & Gas Co. & South Carolina Pub. Serv. Auth. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1 (2010) ................................. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC 437 (2012) ................................................ , , Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151 (2000) .................................................................... , Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1 (1996) .................................................................................................................... Atomic Safety and Licensing Board Decisions:

All Operating Boiling Water Reactor Licensees with Mark I and Mark II Containments (Docket Nos. EA-12-050 and EA-12-051), LBP-12-14, 76 NRC 1 (2012) ............................................................................................................. ,

viii Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-12, 75 NRC 742 (2012) ................................................................................................................... Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008) ................................................................................. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257 (2006) ........................................ Entergy Nuclear Operations Inc. (Indian Point Nuclear Generating Units 2

& 3), LBP-10-13, 71 NRC 673 (2010)................................................................................... Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-14, 68 NRC 43 (2008) ................................................................................................................ FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, 73 NRC 534 (2011) ............................................................................... FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-12-27 76 NRC 583 (2012) ............................................................ , , Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-39, 34 NRC 273 (1991) ................................................................................................... Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), LBP 31, 62 NRC 735 (2005) ........................................................................................................ PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), LBP-09-18, 70 NRC 385 (2009) ..................................................................................................................... South Carolina Elec. & Gas Co. & South Carolina Pub. Serv. Auth. (Virgil C. Summer Nuclear Station, Units 2 and 3), LBP-09-2, 69 NRC 87 (2009) .......................... Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-10-01, 71 NRC 165 (2010) .............................................................................. Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15 (2002) ........................................... Union Electric Co. (Callaway Plant, Unit 1), LBP-14-12, 80 NRC __ (Sept.

8, 2014) (slip op.) ....................................................................................................... , Atomic Saftety and Licensing Appeal Board:

Kansas Gas & Electric Co. (Wolf Creek Generating Station), ALAB-279, 1 NRC 559 (1975) ................................................................................................................... Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487 (1973) ..................................................................................

ix REGULATIONS:

10 C.F.R. § 2.104(a) ............................................................................................................ 10 C.F.R. § 2.202................................................................................................................. 10 C.F.R. § 2.206...................................................................................- 34 -, , , 10 C.F.R. § 2.309....................................................................................................... , 10 C.F.R. § 2.309(c)............................................................................................................. 10 C.F.R. § 2.309(f)(1)(iii) .................................................................................................... 10 C.F.R. § 2.309(f)(1)(iii) ................................................................................................. passim 10 C.F.R. § 2.309(f)(1)(v) ........................................................................................... , 10 C.F.R. § 2.309(f)(1)(v) ................................................................................. , , 10 C.F.R. § 2.309(f)(1)(vi) .................................................................................................... 10 C.F.R. § 2.309(f)(1)(vi) ................................................................................................. passim 10 C.F.R. § 2.309(f)(1)(v)-(vi) ............................................................................................... 10 C.F.R. § 2.309(f)(2) ................................................................................................. , 10 C.F.R. § 2.309(f)(iii)......................................................................................................... 10 C.F.R. § 2.309(f)(iv) ........................................................................................................ 10 C.F.R. § 2.309(f)(v) ......................................................................................................... 10 C.F.R. § 2.309(h) .............................................................................................................. 10 C.F.R. § 2.309(h)(2) ........................................................................................................ 10 C.F.R. § 2.309(i) ............................................................................................................... 10 C.F.R. § 2.314(b). ............................................................................................................. 10 C.F.R. § 2.335....................................................................................................... , 10 C.F.R. § 2.335(a) ............................................................................................................ 10 C.F.R. § 2.335(b) ............................................................................................................ 10 C.F.R. § 2.390(f)(1)(iii) ....................................................................................................

x 10 C.F.R. § 2.802...................................................................................- 30 -, , , 10 C.F.R. § 50.47................................................................................................................. 10 C.F.R. § 50.54(q) ............................................................................................................ 10 C.F.R. § 50.54(s)............................................................................................................. 10 C.F.R. § 50.59................................................................................................................. 10 C.F.R. § 51.1................................................................................................................... 10 C.F.R. § 51.2..................................................................................................................... 10 C.F.R. § 51.20(b)(2) ........................................................................................................ 10 C.F.R. § 51.23...................................................................................- 26 -, , , 10 C.F.R. § 51.23(b) .................................................................................................. , 10 C.F.R. § 51.26(d) ............................................................................................................ 10 C.F.R. § 51.28(a)(5) ........................................................................................................ 10 C.F.R. § 51.28(a)(5) ........................................................................................................ 10 C.F.R. § 51.45(c)............................................................................................................. 10 C.F.R. § 51.53(c)(3)(i) ..................................................................................................... 10 C.F.R. § 51.53(c)(3)(i) ..................................................................................................... 10 C.F.R. § 51.53(c)(3)(ii)(L) ............................................................................................. passim 10 C.F.R. § 51.53(c)(3)(iii) ................................................................................................... 10 C.F.R. § 51.53(c)(3)(iv) ................................................................................................... 10 C.F.R. § 51.53(c)(3)(i)-(ii) ................................................................................................ 10 C.F.R. § 51.95................................................................................................................. 10 C.F.R. § 54.21................................................................................................................. 10 C.F.R. § 54.21(a)(1) ........................................................................................................ 10 C.F.R. § 54.29......................................................................................................... , 10 C.F.R. § 54.29(a) ............................................................................................................ 10 C.F.R. § 54.29(a)(1)-(2) ..................................................................................................

xi 10 C.F.R. § 54.30(b) ............................................................................................................ 10 C.F.R. § 54.4................................................................................................................... 10 C.F.R. § 54.4(a)(1)-(3) .................................................................................................... 10 C.F.R. § 54.4(b) .............................................................................................................. 10 C.F.R. § 54.4................................................................................................................... 10 C.F.R. § 54.4(a)(1)-(3) .................................................................................................... 10 C.F.R. Part 50 ................................................................................................................. 10 C.F.R. Part 50, Appendix B ............................................................................................. 10 C.F.R. Part 50, Appendix E ............................................................................................. 10 C.F.R. Part 51 .....................................................................................- 9 -, , , 10 C.F.R. Part 51, Appendix B ........................................................................... , , 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 ...................................... , , 10 C.F.R. Part 54 .....................................................................................- 9 -, , , 10 C.F.R. § 2.309(a) .............................................................................................................. 10 C.F.R. § 2.309(f) ............................................................................................................... 10 C.F.R. § 2.309(f)(1) ....................................................................................... , , 36 C.F.R. § 800.2(c)(2)(ii) .................................................................................................... 36 C.F.R. § 800.3(f)(3) ......................................................................................................... STATUTES:

5 U.S.C. § 553(c) ................................................................................................................. 5 U.S.C. § 553(e) ................................................................................................................. 16 U.S.C. § 470w(4) ............................................................................................................ 42 U.S.C. § 4331 .................................................................................................................

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

DTE ELECTRIC CO. ) Docket No. 50-341-LR

)

(Fermi Nuclear Power Plant, Unit 2) )

)

NRC STAFFS ANSWER TO CITIZENS RESISTANCE AT FERMI 2 (CRAFT) PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR PUBLIC HEARING INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer to the Citizens Resistance at Fermi 2 (CRAFT) Petition for Leave to Intervene and Request for a Public Hearing (Petition) 1 regarding DTE Electric Co.s (DTE) license renewal application (LRA) for Fermi 2. 2 As discussed below, CRAFT has established standing to intervene in this proceeding on behalf of several individuals. However, because none of the proposed contentions are admissible, the Atomic Safety and Licensing Board (Board) should deny CRAFTs Petition.

1 See Citizens Resistance at Fermi 2 (CRAFT) Petition for Leave to Intervene and Request for a Public Hearing Upon DTE Electrics Request of 20-Year License Extension for the Enrico Fermi 2 Nuclear Reactor (Aug. 18, 2014) (Petition) (Agencywide Documents Access and Management System (ADAMS)

Accession No. ML14231B142).

2 Letter from J. Todd Conner, Site Vice President, dated April 24, 2014, transmitting the license renewal application for Fermi 2 (ADAMS Accession No. ML14121A532) (LRA). The LRA is available at ADAMS Package No. ML14121A554. DTE submitted an administrative amendment to the LRA on June 5, 2014 (ADAMS Accession No. ML14156A237).

BACKGROUND This proceeding concerns DTEs April 24, 2014 application to renew its operating license for Fermi 2 for an additional twenty years from the current expiration date of March 20, 2025. 3 Fermi 2 is a boiling-water reactor (BWR) designed by General Electric and is located near Frenchtown Township, Monroe County, Michigan. The Staff accepted the LRA for review, and published a Federal Register Notice on June 18, 2014, providing a Notice of Opportunity for Hearing. 4 On August 18, 2014, CRAFT filed a petition to intervene proposing fourteen contentions. 5 DISCUSSION As discussed in detail below, CRAFTs Petition should be denied because, while CRAFT has established representational standing for some individuals, it has not submitted an admissible contention.

I. CRAFT Has Established Standing to Intervene On Behalf of Several Individuals A. Representational Standing Has Been Established For Certain Individuals Based on a Proximity Presumption Any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing or petition for leave to intervene and a specification of the contentions which the person seeks to have litigated in the hearing. 6 10 C.F.R. § 2.309(a). An organization, such as CRAFT, may establish representational 3

LRA at 1-1. If the LRA is approved, Fermi-2s new license expiration date would be March 20, 2045. Id. at 1-6.

4 DTE Electric Company; Fermi 2, License renewal application; opportunity to request a hearing and to petition for leave to intervene, 79 Fed. Reg. 34,787 (June 18, 2014).

5 Petition. CRAFT timely filed its petition, but due to technical issues with the NRC Electronic Information Exchange (EIE), it was not served through EIE until August 19, 2014. On August 29, 2014, the Board ordered CRAFT to re-file and serve a copy of its Petition containing page numbers on or before September 4, 2014. CRAFT did so on September 3, 2014. See ADAMS Accession No. ML14246A599.

This answer cites to CRAFTs corrected Petition, dated Sept. 3, 2014.

6 The definition of person in 10 C.F.R. § 2.4 includes public interest groups, such as CRAFT.

standing to intervene if it identifies a member of the organization by name and address who would qualify for standing, shows that the member has authorized the organization to represent his or her interests, and demonstrates that the interest the organization seeks to protect is germane to its own purposes. 7 In license renewal proceedings, a petitioner is presumed to have standing to intervene without the need specifically to plead injury, causation, and redressability if the petitioner lives within 50 miles of the nuclear power reactor. 8 The Commission has explained that this presumption rests on the Commissions finding, in construction permit and operating license cases, that persons living within the roughly 50-mile radius of the facility face a realistic threat of harm if a release from the facility of radioactive material were to occur. 9 In this case, several named members of CRAFT have provided affidavits that establish that they live within 50 miles of Fermi 2, authorize CRAFT to represent them 10 in this proceeding, and raise concerns that are germane to CRAFTs purposes. 11 Therefore, CRAFT has established standing under 10 C.F.R. § 2.309(a) to represent these individuals.

Specifically, these individuals are:

CRAFT REPRESENTATIONAL STANDING Jessie James Gloria F. Eggleston Kenneth Fink Sally C. Fink Pauline DeBussey Collins Margaret M. Tim Esther A. Marcus Jacob Roark David H.

7 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007).

8 Entergy Nuclear Operations, Inc., (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008).

9 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs, Unit 3), CLI-09-20, 70 NRC 911, 917 (2009)

(citing LBP-09-4, 69 NRC at 183).

10 Jessie Pauline Collins seeks to represent CRAFT pro se, and other intervenors in this proceeding. Petition at 1. The Petition includes a notice of appearance and a declaration providing the basis of her authority to act on behalf of CRAFT. 10 C.F.R. § 2.314(b).

11 Petition at 1-2; Standing Declarations (ADAMS Accession Nos. ML14231B143;ML14231B145).

Gistinger Greenhoof Schonoberger Leland H. Stephan C. James Sherman Jennifer Stowell Nina Stowell Scott Seczawa Tom Stowell Craig Toeffer Thomas R. Zerafa B. Individual Standing In the affidavits provided by named members of CRAFT and individual members of affected Indian tribes, each affiant states that if CRAFT cannot intervene as his or her representative, the affiant seeks to intervene individually. As discussed above, named members of CRAFT who live within approximately 50 miles of Fermi 2, authorize CRAFT to represent them, and raise concerns that are germane to CRAFTs purposes, can be represented by CRAFT. The individual members of affected Indian tribes, however, do not appear to be members of CRAFT. Therefore, those individuals cannot be represented by CRAFT. 12 Moreover, these individual members of affected Indian tribes do not have automatic standing 13 because they are not a Federally-recognized Indian Tribe 14 seeking party status. 15 Some of these individual tribal members, as well as a member of CRAFT, however, have demonstrated individual standing because their affidavits indicate that they live within 50 miles of Fermi 2 and are therefore entitled to a proximity presumption. These individuals are:

Individuals With Proximity-Based Standing Russ Blackbird Carla Collins Keith Dayson Eva Kennedy Yvonne Moore James Aquash 16 12 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007).

13 See Petition at 10.

14 http://www.bia.gov/cs/groups/public/documents/text/idc006989.pdf (providing current list of Federally-recognized tribes in the United States).

15 See 10 C.F.R. § 2.309(h).

16 It appears that James Aquash is a member of CRAFT and not a member of an affected Indian tribe.

Other individual tribal members are not entitled to standing based on a proximity presumption because the Petition and affidavits do not indicate that these individuals live within 50 miles of Fermi 2 or that the individuals have frequent contacts with the area affected by the proposed facility. 17 To establish proximity-based standing based on frequent contacts, the petitioner must show that it frequently engages in substantial business and related activities in the vicinity of the facility, engages in normal, everyday activities' in the vicinity, has regular and frequent contacts' in an area near a licensed facility, or otherwise has visits of a length and nature showing an ongoing connection and presence, but standing is not presumed where contact has been limited to mere occasional trips to areas located close to reactors. 18 Ultimately, the petitioner must provide enough detail to allow the Board to distinguish a casual interest from a substantial one. 19 While the petition and affidavits indicate that these individuals are members of tribes that have treaty rights to hunt, fish, and gather foods in the Lake Erie Western Basin, 20 they do not indicate the nature of the treaty rights, the frequency with which they hunt, fish, or gather in the area of the Fermi 2 nuclear reactor, their future intent or plans to do so, or any details to indicate that there is a substantial interest at stake. An assertion of tribal hunting rights alone does not demonstrate frequent contacts for standing purposes. Thus, proximity-based standing has not been shown for:

17 Calvert Cliffs, CLI-09-20, 70 NRC at 915-16; see PPL Bell Bend LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 138 (2010).

18 Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation), CLI 21, 65 NRC 519, 523-24 (2007) (footnotes omitted); see also PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), LBP-09-18, 70 NRC 385, 402 (2009) (no proximity-based standing when petitioner failed to supply more specific information regarding the frequency, nature, and length of his contacts within the proximity zone), aff'd, CLI-10-7, 71 NRC at 139; Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 26 (2002) (no proximity-based standing when petitioner demonstrate[d] only occasional contact with the zone of harm).

19 Bell Bend, CLI-10-7, 71 NRC at 139.

20 Petition at 2. See, e.g., Affidavit of Eric Angell.

No Proximity-Based Standing: Individual Tribal members Phyllis Anderson Eric Angell Nicole Angell Derek J. Calvin Ballew Bailey Jefferson Ballew Madalene Big Prettyrock Madalene C. Christina IV Bear Big Bear Big Bear Buschlen Joel Buschlen Jennifer George Mandy Elmer Leticia Flores Cottrelle Elmer Teresa Johnson Brian Loney Robert C. Judith A. Michelle Memberto Nedeau Reyna Paul Georgianna Emily Warren Tone Monee Shananaquet Walkington Winchester Zapata Onyleen Zapata Likewise, proximity-based presumption has not been shown for Gayle Bachert, because the Petition and affidavit do not show that she lives within approximately 50 miles of Fermi 2 or that she has frequent contacts with the area affected by Fermi 2. 21 Because proximity-based standing has not been demonstrated for these individuals, the individuals must demonstrate their standing under contemporaneous judicial concepts of standing. 22 Under this framework, each individual or organization must establish that:

(1) [he/she] has suffered or will suffer a distinct and palpable injury that constitutes injury-in-fact within the zones of interests arguably protected by the governing statutes (e.g., the AEA, 42 U.S.C. §2011 et seq., NEPA, 42 U.S.C. §4321 et seq.); (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision. 23 These individuals have also not demonstrated standing because they have not demonstrated a particularized harm resulting from the renewal of Fermi 2s license. Instead, they have only raised a generalized concern that the license extension would affect the quality 21 Calvert Cliffs, CLI-09-20, 70 NRC at 915-16; see Bell Bend, CLI-10-7, 71 NRC at 138. The address provided in her affidavit was 16355 Jefferson, Hastings MI 49058 which is approximately 113 miles from Fermi 2. The affidavit provides no details about her contacts with the Fermi 2 site.

22 See Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP 1, 71 NRC 165, 176 (2010) (noting that the Commission applies contemporaneous judicial concepts of standing to determine whether an individual or organization is an interested person under Sec. 189a. of the AEA).

23 See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996); Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-10-01, 71 NRC 165, 176 (2010).

of their life because discharges from Fermi 2 would make several unspecified species of plants and animals inedible, or somehow adversely affect their health and safety, or claim that an accident on the scale of Fukushima is a concerning risk. 24 II. Contention Admissibility Requirements In addition to establishing standing, to intervene in a license renewal proceeding, a petitioner must also submit at least one admissible contention. The legal requirements governing the admissibility of contentions are well-established and set forth in 10 C.F.R.

§ 2.309(f) of the Commissions Rules of Practice. Specifically, in order to be admitted, a contention must satisfy the following requirements:

(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the 24 See, e.g., Affidavits of Phyllis Anderson, Eric Angell, Nicole Angell, Derek J. Bailey, Calvin Ballew, Jefferson Ballew IV, Madalene Big Berar, Prettyrock Big Bear, Madalene C. Big Bear, Christina Buschlen, Joel Buschlen, Jennifer Cottrelle, George Elmer, Mandy Elmer, Leticia Flores, Teresa Johnson, Brian Loney, Robert C. Memberto, Judith A. Nedeau, Michelle Reyna, Paul Shananaquet, Georgianna Walkington, Emily Warren, Tone Winchester, Monee Zapata, Onyleen Zapata, and Gayle Bachert.

requestor/petitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petition disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.

(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicants environmental report . . .

10 C.F.R. § 2.309(f)(1)-(2). The requirements governing the admissibility of contentions are strict by design. 25 Thus, they have been strictly applied in NRC adjudications, including license renewal proceedings. 26 III. The Scope of the NRCs Safety and Environmental Review for License Renewal Proceedings As noted, to be admissible, contentions must be within the scope of the proceeding.

CRAFTs contentions raise both safety and environmental claims; therefore, the Staff will briefly discuss the scope of its safety and environmental review in license renewal proceedings.

A. General Overview of Scope of License Renewal Review The Commissions regulations in 10 C.F.R. Part 54 27 limit the scope of a license renewal proceeding to the specific matters that must be considered for the license renewal application to 25 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

26 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).

be granted. Pursuant to 10 C.F.R. § 54.29, the Commission considers the following standards in determining whether to grant a renewed license:

A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:

(a) Actions have been identified and have been or will be taken with respect to the matters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:

(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).

(b) Any applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied.

(c) Any matters raised under § 2.335 have been addressed.

These standards, along with other regulations in 10 C.F.R. Part 54, and the environmental regulations related to license renewal set forth in 10 C.F.R. Part 51 and Appendix B, 28 establish the scope of issues that may be considered in a license renewal proceeding. The failure of a proposed contention to demonstrate that an issue is within the scope of the proceeding is grounds for its dismissal. 29 27 See generally, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991);

Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995).

28 Part 51 of the NRCs regulations contains the agencys implementation of NEPA. 10 C.F.R. § 51.2.

29 10 C.F.R. § 2.309(f)(1)(iii); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 567 (2005).

The Commission has provided guidance for license renewal adjudications regarding which safety and environmental issues properly fall within or beyond its license renewal requirements. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 &

4), CLI-01-17, 54 NRC 3, 6-7 (2001). Specifically, the NRC conducts a technical review pursuant to 10 C.F.R. Part 54, to assure that pertinent public health and safety requirements have been satisfied. Id. at 6. In addition, the NRC performs an environmental review pursuant to 10 C.F.R. Part 51 to assess the potential impacts of twenty additional years of operation. Id.

at 6-7. 30 NEPA requires that agencies take a hard look at environmental consequences; NEPA does not mandate particular results. 31 Further, NEPAs requirements are tempered by a rule of reason. 32 Importantly, regardless of whether a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses. Therefore, for license renewal, the Commission has found it unnecessary to include a review of issues already monitored and reviewed as part of ongoing regulatory oversight processes. Id. at 8-10.

30 Under Part 51, the NRC must prepare an environmental impact statement (EIS) for license renewals. 10 C.F.R. § 51.20(b)(2). As the Supreme Court explained, preparing an EIS furthers the policies of NEPA in two ways: (1) It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts and (2) [I]t also guarantees that the relevant information will be made available to the larger audience, and thus provides a springboard for public comment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

31 Robertson, 490 U.S. at 349 (internal quotations omitted).

32 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010).

B. The License Renewal Safety Review The Commission clearly indicated that its license renewal safety review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation. Turkey Point, CLI-01-17, 54 NRC at 10 (quoting 60 Fed. Reg. at 22,469). For example, the Commission has held that emergency planning issues are not within the scope of license renewal because [e]mergency planning is, by its very nature, neither germane to age-related degradation nor unique to the period of extended operation. Millstone, CLI-05-24, 62 NRC at 560-61. Further, the Commission stated that: Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review; for our hearing process (like our Staffs review) necessarily examines only the [safety] questions our safety rules make pertinent. Turkey Point, CLI-01-17, 54 NRC at 10.

With respect to the safety review, the Commission has provided significant guidance on the structures, systems, and components within the scope of license renewal, as well as the intended functions of those structures, systems, and components that require aging management review in CLI-10-14. 33 Therein, the Commission stated, aging management review for license renewal does not focus on all aging-related issues, but rather, on structures and components that perform passive intended functions that are of principle importance to safety. 34 The Commission explained that 10 C.F.R § 54.4(a)(1)-(3) defines the general scope of license renewal safety review, 35 and further stated that 10 C.F.R. § 54.29, which lists the 33 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449 (2010).

34 Id. at 454.

35 Id. at 455.

standards for issuance of a renewed license, does not expand the scope of license renewal aging management review beyond the intended functions outlined in § 54.4. 36 C. License Renewal Environmental Review In addition to its safety review, the NRC performs an environmental review pursuant to 10 C.F.R. Part 51 to assess the potential environmental impacts of twenty additional years of operation. 37 Contentions raising environmental issues in a license renewal proceeding are similarly limited to those issues which are affected by license renewal and have not been addressed by rulemaking or on a generic basis. Turkey Point, CLI-01-17, 54 NRC at 11-12. In 10 C.F.R. Part 51, the Commission divided the environmental requirements for license renewal into generic and plant-specific components. Id. at 11. The Generic Environmental Impact Statement (GEIS) contains Category 1 issues for which the NRC has reached generic conclusions. 38 Id. Applicants for license renewal do not need to submit analyses of Category 1 issues in their Environmental Reports, but instead may reference and adopt the generic findings. Id. Applicants, however, must provide a plant-specific review of the non-generic Category 2 issues. Id. Category 1 issues "are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings." Id. at 12; 39 see 10 C.F.R.

§ 51.53(c)(3)(i)-(ii).

36 Id. at 462.

37 Turkey Point, CLI-01-17, 54 NRC at 6-7.

38 NUREG-1437, Rev. 1 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, (June 2013) (ADAMS Accession No. ML13106A241). To qualify as a Category 1 issue, an environmental issue must meet three criteria. First, the environmental impacts associated with that issue must apply to all plants or groups of plants. Second, those impacts must have a single significance level across all plants. Finally, additional plant-specific mitigation measures must not be likely to be sufficiently beneficial to warrant implementation. In the 2013 GEIS, which applies in this proceeding, the Commission changed the categorization of a number of issues from the previous GEIS (i.e., the 1996 GEIS, available at ADAMS Accession No. ML040690705). See GEIS at 1 1-35 (summarizing these changes).

39 In Turkey Point, the Commission recognized that even generic findings sometimes need revisiting in particular contexts. . . . In the hearing process, for example, petitioners with new information

The Commission recently reiterated this principle, and specified that the GEIS Category 1 conclusions, which are expressly incorporated into Part 51 regulations, generally may not be challenged in a license renewal proceeding unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding. 40 Thus, challenges to Category 1 issues, like challenges to all of the Commissions regulations, are outside the scope of NRC adjudications. Moreover, claims of new and significant information with respect to Category 1 issues cannot be litigated in individual proceedings. 41 Consequently, a party seeking to litigate a Category 1 issue or challenging a determination in Table B-1 in a license renewal proceeding must seek a waiver of the Commissions regulations, pursuant to 10 C.F.R. § 2.335. 42 These clear procedural rules have been upheld in the First Circuit 43 and do not substitute for or impact in any way the other non-adjudicatory channels through which the NRC receives and considers claims of new and significant information. 44 showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, CLI-01-17, 54 NRC at 12.

40 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-22, 72 NRC 202 (2010); Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (2007) (footnotes omitted), reconsid. denied, CLI-07-13, 65 NRC 211, 214 (2007).

41 In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, CLI-01-17, 54 NRC at 12. When a claim of new and significant information applies to many plants that are subject to a generic rule, the appropriate solution is a petition for a new rulemaking rather than a grant of a waiver. Vermont Yankee, CLI-07-3, 65 NRC at 20-21.

42 Turkey Point, CLI-01-17, 54 NRC at 12, 22-23.

43 See Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008).

44 E.g., license renewal applicants environmental report, public comments on a draft supplemental EIS, and rulemaking petitions. See Massachusetts v. United States, 522 F.3d at 127; Exelon Generation Co. LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 386 (2012) (citing CLI-07-3, 65 NRC at 18 n.15,20).

IV. CRAFTs Proposed Contentions Do Not Meet the Admissibility Criteria In this instance, CRAFT is represented pro se by Ms. Collins. 45 The 10 C.F.R. § 2.309(f)(1) requirements still apply to pro se petitioners and a deficient pleading may not be justified on the basis that it was prepared without the assistance of counsel. 46 For the reasons discussed below, none of CRAFTs contentions meet all of the 10 C.F.R. § 2.309(f)(1) criteria. 47 Therefore, CRAFT has not submitted an admissible contention and its Petition should be denied.

A. Proposed Contention 1 (Wind Energy Alternative)

CRAFTs Proposed Contention 1 states that wind energy is a viable alternative and alleges that DTEs Environmental Report (ER) 48 does not adequately evaluate the full potential for renewable energy sources, such as wind power, to replace the loss of energy production from Fermi 2, and to make the license renewal request from 2025 to 2045 unnecessary. 49 CRAFT maintains that the ERs analysis concluding that wind power is an unreasonable alternative is insubstantial and incorrect. 50 For the reasons discussed below, Contention 1 45 Thus, the same high degree of specificity as is expected by petitions drawn by counsel experienced in NRC practice is not expected here. Kansas Gas & Electric Co. (Wolf Creek Generating Station), ALAB-279, 1 NRC 559, 576-77 (1975).

46 Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973).

47 A contention must comply with every requirement listed in 10 C.F.R. 2.309(f)(1) to be admissible. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008).

48 Appendix E of DTEs Application for Fermi Unit 2 License Renewal: Applicants Environmental Report Operating License Renewal Stage Fermi 2 (ER) (located at http://www.nrc.gov/reactors/

operating/licensing/renewal/applications/fermi.html).

49 Petition at 4. Although the contention initially suggests that it challenges the ERs analysis of all renewable energy alternatives to Fermi 2, CRAFTs arguments relate to wind power alone.

50 Id. Specifically, CRAFT points to portions of the ER that suggest that interconnected wind farms could approach base-load capacity and that offshore wind farms eliminate some of the obstacles associated with land based wind farms.

should be denied because it lacks an adequate factual basis and does not raise a material dispute with the ER. 51

1. Legal Standards Governing Contentions Challenging Alternatives Analyses in an ER An applicant is required to include in its ER an analysis that considers and balances . . .

the environmental impacts of alternatives to the proposed action, and alternatives available for reducing or avoiding adverse environmental effects. 52 An applicants alternatives analysis is not required to discuss every conceivable alternative to the proposed action. Rather, NEPA requires only consideration of feasible, nonspeculative, and reasonable alternatives. 53 In defining the scope of alternatives that must be considered by an applicant, the Commission has held that an ER need only consider the range of alternatives that are capable of achieving the goals of the proposed action. 54 Moreover, a reasonable energy alternative is one that is currently commercially viable, or will become so in the near term. 55 The Commission has repeatedly rejected contentions regarding the adequacy of an alternatives analysis because the petitioners did not sufficiently demonstrate that the proposed alternative could achieve the goals of the proposed action. In the Summer combined license (COL) proceeding, the Commission rejected claims that an applicant did not sufficiently analyze wind, solar, and biomass alternatives because the petitioners did not challenge the applicants 51 10 C.F.R. §§ 2.309(f)(1)(v), (vi).

52 10 C.F.R. § 51.45(c).

53 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-14, 68 NRC 43, 95 (2008).

See also Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735, 753 (2005); City of Carmel-by-the-Sea v. Dept of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997).

54 Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, New Mexico 87174), CLI-01-04, 53 NRC 31, 55 (2001).

55 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 397 (2012); NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 342 (2012).

conclusion that the alternatives would not be able to generate base-load power. 56 The Commission further observed that general assertions, without some effort to show why the assertions undercut findings or analyses in the ER, fail to satisfy the requirements of Section 2.309(f)(1)(vi). 57 In the Seabrook license renewal proceeding, the Commission held as follows:

[T]o submit an admissible contention on energy alternatives in a license renewal proceeding, a petitioner ordinarily must provide alleged facts or expert opinion sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternate technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power. 58 Likewise, in the Davis-Besse license renewal proceeding, the Commission dismissed a contention challenging in part the ERs analysis of wind power on the same grounds as in Seabrook. 59

2. CRAFT Does Not Demonstrate That Wind Farms Could Generate Baseload Power in the Near Term DTEs ER makes clear that the goal of the present action is the relicensing of Fermi 2 to generate approximately 1170 MWe of baseload power for an additional twenty years of operation. 60 The NRC generally defers to an applicants stated purpose so long as that 56 South Carolina Elec. & Gas Co. & South Carolina Pub. Serv. Auth. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010).

57 Id.

58 Seabrook, CLI-12-5, 75 NRC at 342.

59 Davis-Besse, CLI-12-8, 75 NRC at 401. CRAFT states that it relied on the wind power alternative contention crafted by Beyond Nuclear in the Davis-Besse license renewal proceeding in formulating its arguments. Petition at 4. The Commission held that this exact contention was inadmissible.

60 ER at 7-1 (stating that the purpose of the proposed action is to continue plant operations for the license renewal term; otherwise 1170 MWe of baseload power would not be available to meet DTEs needs).

purpose is not so narrow as to eliminate alternatives. 61 Generation of baseload power is an acceptable purpose for a licensing action and has been determined to be broad enough to permit consideration of a host of energy generating alternatives. 62 The ER concludes that wind power is not a reasonable alternative because of the lack of adequate wind resources in the DTE service area, the significant shortcomings of wind as a base-load energy source, the lack of convenient energy storage options, and the impacts to land use and natural resources. 63 To demonstrate the existence of a material dispute with the ER, a petitioner must provide sufficient information to dispute the conclusion that wind cannot reasonably be expected to provide a replacement for 1170 MWe of baseload power in the near term. 64 To the extent that CRAFT even alleges that wind power can generate baseload power in the near term to replace Fermi 2, CRAFT does not provide facts or an expert opinion to support the assertion. Moreover, CRAFT does not raise any specific, factually based challenges to the ERs conclusions. For these reasons, CRAFT does not provide an adequate factual basis for the Contention or raise a material dispute with the ER as required by 10 C.F.R. §§ 2.309(f)(1)(v)

& (vi).

First, CRAFT claims that DTEs wind power analysis is inadequate, but never explains why it is deficient. CRAFT instead attempts to prove that the ER itself acknowledges the viability of a wind power alternative. 65 CRAFT points to one sentence in the ER that states, Whereas a single wind farm generation unit would not provide consistent power generation, 61 South Carolina Elec. & Gas Co. & South Carolina Pub. Serv. Auth. (Virgil C. Summer Nuclear Station, Units 2 and 3), LBP-09-2, 69 NRC 87, 110 (2009).

62 Envtl. Law & Policy Ctr. v. NRC, 470 F.3d 676, 684 (7th Cir. 2006).

63 ER at 7-10.

64 Seabrook, CLI-12-5, 75 NRC at 342; Davis-Besse, CLI-12-8, 75 NRC at 401.

65 Petition at 4.

multiple wind farms scattered within a reasonable region and interconnected together via the grid may potentially provide power generation that could approach base-load capacity. 66 Petitioner appears to allege that the ERs rejection of a wind power alternative must be erroneous because the ER itself acknowledges that multiple, interconnected wind farms could generate power approaching base-load capacity. Yet CRAFT fails to note that the next sentence in the ER dispels such a possibility. The ER continues, However, there may be times when the wind energy may not be sufficient to maintain grid stability or to provide consistent base-load power generation. 67 Thus, the ER does not maintain that wind power is a viable alternative for base-load power generation, and in fact concludes that there are significant shortcomings regarding the reliability of wind as a base-load energy source. 68 CRAFT then cites another sentence from the ER that states, Placing wind farms offshore eliminates some of the obstacles encountered when siting wind farms on shore and limits conflicts with other planning interests. 69 Once again, CRAFT appears to argue that the ER itself acknowledges that offshore wind farms are a viable alternative to Fermi 2s relicensing, which renders its rejection of wind power erroneous. However, the ER makes no such claims as to offshore wind powers viability. To the contrary, the sentence following the one cited by CRAFT explains that when wind farms are placed offshore, other impacts are created, including influence on birds, marine life, hydrography, and marine traffic. 70 The ER then proceeds to detail those impacts. 71 The ER unambiguously rejects wind power as a viable 66 ER at 7-7.

67 Id.

68 Id. at 7-10.

69 Id. at 7-8.

70 Id. at 7-8.

71 Id. at 7-8 through 7-9.

alternative for generating 1170 MWe of base-load power in the near term. CRAFT does not provide any evidence to the contrary, and does not support its assertion that DTEs analysis of wind power is insubstantial.

Next, CRAFT objects to the ERs references to the EIS prepared by the NRC Staff for the Fermi 3 COL application in its discussion of wind power. In CRAFTs view, it seems unlawful to use the same study from one licensing proceeding case to another. 72 However, CRAFT cites no legal authority for this view. Furthermore, DTE did not rely only on the Fermi 3 EIS in preparing the ER for Fermi 2. The ER references the Fermi 3 EIS in the final paragraphs of its analysis of wind power. 73 In the earlier portion of the wind power analysis, the ER analyzes wind power independent of the conclusions in the Fermi 3 EIS and cites a wide range of sources. 74

3. CRAFTs Remaining Arguments Fail to Challenge the ER CRAFTs other Contention 1 claims do not dispute the ER at all. CRAFT cites an article in which DTE states that it plans on increasing its reliance on wind power and that it has built 400 MW of wind generation capacity since 2009. 75 Similarly, CRAFT references DTEs 2013 10-K filing with the U.S. Securities and Exchange Commission in which DTE explains that it plans to generate 10% of electricity sold to Michigan retail customers from renewable sources, including wind. 76 But CRAFT does not explain how these sources render the ERs analysis deficient.

72 Petition at 5.

73 ER at 7-9 through 7-10.

74 Id. at 7-7 through 7-9.

75 Petition at 5.

76 Id. at 8.

CRAFT devotes several paragraphs to explaining that wind power has less environmental impacts on humans than nuclear power, particularly because nuclear plants have radiological impacts and risks. 77 CRAFT points to carbon releases during the uranium mining, milling, processing and enrichment stages, as well as the need for emergency planning zones and security at nuclear plants, none of which is needed for wind farms. 78 Yet these claims do not challenge the ERs analysis.

Last, Petitioner maintains that because of dramatically changing circumstances in the regional energy mix, the need for Fermi 2 must be re-evaluated. 79 Petitioner does not explain how the regional energy mix is changing or why these changes require a re-evaluation of the need for Fermi 2. Moreover, a challenge to the need for power during the license renewal period is outside the scope of the proceeding. 80 B. Proposed Contention 2 (Tribal Notification and Participation in Scoping)

CRAFTs Proposed Contention 2 states:

To ensure that all Native American tribes and bands and First Nations have adequate notification by NRC of the proposed Fermi 2 licensing extension and environmental review proceedings, as due to them under applicable treaties, laws, and regulations; and to ensure that individual tribal members interests are represented whether their tribal government intervenes or not on their behalf. 81 77 Id. at 8-9.

78 Id.

79 Id. at 5.

80 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP 13, 73 NRC 534, 556-57 (2011), affirmed in relevant part, 75 NRC at 393 (2012); 10 C.F.R. § 51.53(c)(2)

(a license renewal ER is not required to include discussion of need for power.). Under 10 C.F.R.

§ 2.335(a), this and other rules and regulations of the Commission are not subject to challenge in any adjudicatory proceeding in the absence of a waiver.

81 Petition at 9.

For the reasons discussed below, Contention 2 should be denied because it is outside the scope of the proceeding and does not raise a material dispute with DTEs application. 82

1. CRAFTs Claim That NRC Staff Failed to Notify Several Tribes of Their Opportunity to Request a Hearing is Inadmissible CRAFT asserts that the NRC Staff failed to notify the Walpole Island First Nation (WIFN) and several other First Nations and Indian Tribes of their right to intervene in the Fermi 2 license renewal proceeding. 83 However, this claim is not a dispute with the applicant on a material issue of law or fact and is outside the scope of this proceeding. That WIFN and other tribes were not aware of the hearing opportunity is unrelated to the content and conclusions of DTEs ER or UFSAR. 84 For this reason alone, Proposed Contention 2 is inadmissible.

Furthermore, NRC regulations do not require the Staff to provide particularized notice of hearing opportunities to individual persons. Rather, when the NRCs receipt of an application triggers hearing rights, the Secretary of the Commission publishes a notice of hearing in the Federal Register. 85 Notice of an opportunity to request a hearing on the Fermi 2 LRA was published in the Federal Register on June 18, 2014. See 79 Fed. Reg. 34,787. Publication of a Federal Register notice is constructive notice to all who wish to petition to intervene in an NRC proceeding, and is legally adequate. 86 The Staff need not do more. 87 82 10 C.F.R. §§ 2.309(f)(1)(iii), (vi).

83 Petition at 9-10.

84 10 C.F.R. § 2.309(f)(1)(vi) (a petitioner must demonstrate a material dispute with the application); 10 C.F.R. § 2.309(f)(2) (contentions must be based on documents or other information such as the application, safety analysis report, or environmental report).

85 10 C.F.R. § 2.104(a).

86 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 62 NRC 551, 565 & n.60 (2005); California v. Federal Energy Regulatory Commission, 329 F.3d 700, 707 (9th Cir. 2003) (Publication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance, except those who are legally entitled to personal notice.).

2. CRAFTs Claim that the NRC Staff Illegally Excluded Several Tribes From the Scoping Process Is Inadmissible CRAFT asserts that the NRC Staff violated its regulations by failing to invite WIFN and several other First Nations and Indian Tribes to participate in the scoping process for the Fermi 2 DSEIS. 88 Again, this claim does not dispute anything in DTEs application and is therefore inadmissible in this proceeding. 89 In essence, CRAFT asserts that the NRC Staff failed to follow regulations, not that any document filed by the applicant is deficient.

In any event, the NRC Staff did not violate its regulations. When the NRC Staff determines that it will prepare a SEISwhich it does for license renewal applicationsit publishes a notice of intent to prepare the SEIS in the Federal Register and conducts a scoping process if desired. 90 When the NRC Staff conducts a scoping process, it must invite all interested members of the public, affected state and local agencies, and public interest organizations to participate, including any affected Indian tribe. 91 The NRC published such a notice regarding the Fermi 2 LRA on June 30, 2014. See 79 Fed. Reg. 36,837.

CRAFT maintains that WIFN and other Canadian First Nations were affected Indian tribes under the regulation, and that the NRC Staff should have invited them to participate in 87 If WIFN or another tribe wishes to petition to intervene in the proceeding, they may do so, although the requirements for contentions filed after the deadline may apply. See 10 C.F.R. § 2.309(c).

CRAFT appears to suggest that should WIFN or other tribes petition to intervene, they would have automatic standing in the proceeding. This is incorrect. An Indian Tribe has automatic standing only if it is Federally-recognized in the United StatesWIFN is notand the facility at issue is located on the Indian Tribes land. 10 C.F.R. § 2.309(h)(2). Fermi 2 is not located on any tribes land. A tribe that wishes to petition to intervene must follow the requirements in 10 C.F.R. § 2.309(d) and demonstrate standing either by proximity presumption or judicially recognized principles of standing.

88 Petition at 10-11.

89 10 C.F.R. § 2.309(f)(1)(vi).

90 10 C.F.R. § 51.26(d).

91 10 C.F.R. § 51.28(a)(5).

the scoping process. 92 CRAFT, however, misreads § 51.28(a)(5). As the Licensing Board in the Fermi 3 COL proceeding recently explained 93 in response to a contention submitted on behalf of WIFN, § 51.28(a)(5) is limited by the fact that the NRC's NEPA regulations do not apply to . . . any environmental effects which NRCs domestic licensing and related regulatory functions may have upon the environment of foreign nations. 94 WIFN and all other First Nations are tribes residing in Canada. NEPA does not require the NRC staff to consider the environmental effects on foreign nations. Therefore, the NRC was not required to specifically invite WIFN or other Canadian First Nations to participate in the Fermi 2 license renewal scoping process. 95 More importantly, the scoping process and meetings were properly noticed in the Federal Register.

3. CRAFTs Claim that the NRC Staff Failed to Notify WIFN Under the NHPA Is Inadmissible CRAFT claims that the NRC Staff should have contacted WIFN pursuant to the National Historic Preservation Act (NHPA). 96 But like the other claims made in Contention 2, this is unrelated to DTEs application, outside the scope of the proceeding, and therefore inadmissible.

CRAFT points to letters that were sent to several Indian tribes in July 2014 regarding the Fermi 2 license renewal application affording them the opportunity to provide advice on religious and 92 Petition at 10.

93 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-12, 75 NRC 742, 754-55 (2012).

94 10 C.F.R. § 51.1.

95 The scoping comment period ended on August 29, 2014. 76 Fed. Reg. at 36,837. Once WIFN and other First Nations were notified by CRAFT of the scoping process, they could have submitted comments before the deadline. Additionally, WIFN and other First Nations still have an opportunity to provide comments pursuant to Section 106 of the NHPA. See 36 C.F.R. § 800.3(f)(3) (The agency official shall consider all written requests of individuals and organizations to participate as consulting parties and, in consultation with the SHPO/THPO and any Indian tribe upon whose tribal lands an undertaking occurs or affects historic properties, determine which should be consulting parties.).

96 Petition at 11.

cultural properties pursuant to the NHPA. 97 CRAFT maintains that WIFN should also have been provided the opportunity to raise its concerns regarding historic properties because they are neither Canadian nor American, but live in between the two countries on unceded lands. 98 This claim raises no dispute with any documents submitted by DTE in its application.

Additionally, the NRC Staff was not required to specifically notify WIFN under the NHPA.

Pursuant to Section 106 of the NHPA, before issuing a license, the NRC is required to consult with any Indian Tribes which attach[] religious and cultural significance to historic properties that may be affected by the issuance of the renewal license. 99 However, the NHPA only applies to Federally recognized tribes in the United States. 100 WIFN is not a U.S. Federally recognized tribe. 101

4. CRAFTs Claims Regarding the Impairment of the Fishing and Hunting Rights Guaranteed to Several Tribes is Inadmissible Finally, CRAFT claims that the renewal of Fermi 2s license will impede hunting and fishing rights guaranteed to several nearby Indian tribes by federal treaties. 102 Once again, this claim does not dispute anything in DTEs application, and is outside the scope of this proceeding. Moreover, CRAFTs arguments are vague. CRAFT refers to radiological and toxic chemical releases from Fermi 2 that would likely reach and negatively impact WIFNs food 97 Petition at 11.

98 Id.

99 36 C.F.R. § 800.2(c)(2)(ii).

100 16 U.S.C. § 470w(4) (Indian tribe or tribe means an Indian tribe . . . which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.).

101 See Bureau of Indian Affairs, Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 79 Fed. Reg. 4748, 4748-4753 (2014) (not listing WIFN).

102 See Petition at 10-13.

supply, 103 but does not explain specifically what those releases are, or the basis for the assertion that they will impact WIFNs food supply. Petitioner claims that WIFN has scientific data regarding degrading impacts upon the fish, wild game, and migratory birds its community fishes and hunts that could be contaminated by the continued operation of Fermi 2, 104 but does not explain what that data demonstrates. CRAFTs claims lack an adequate factual basis and are inadmissible. 105 C. Proposed Contention 3 (Continued Storage)

CRAFTs Proposed Contention 3 states:

In brief, the U.S. NRCs existing moratorium on licensing and renewal actions as part of the ongoing Waste Confidence rulemaking process unequivocally precludes the possibility of the NRC Commission granting issuance of License Renewal in the Matter of the Fermi 2 License Renewal Application (hereinafter LRA). 106 This contention is based on the vacatur and remand to the NRC of its 2010 update to the Waste Confidence Decision and accompanying temporary storage rule. 107 Waste confidence undergirds certain NRC licensing decisions, including power reactor license renewals. 108 Therefore, the New York courts vacatur left a gap in the agencys NEPA analyses for certain licensing actions, including power reactor license renewals. 109 Given this gap, the Commission 103 Id. at 11-12.

104 Id. at 12-13.

105 10 C.F.R. § 2.309(f)(1)(vi).

106 Petition at 13-14.

107 New York v. NRC, 681 F.3d 471, 478, 481-82 (D.C. Cir. 2012) (holding that the NRC must include an evaluation of failure to secure permanent disposal, as well as an improved analysis of spent fuel pool leaks and spent fuel pool fires).

108 See Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 66 & n.5 (2012) (citing 10 C.F.R. § 51.23(b)(2012); See Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 6)

(explaining how Waste Confidence undergirds certain licensing reviews).

109 Id.

granted petitions to suspend final licensing decisions in power reactor license renewal proceedings, among others, until the completion of the Commissions action on the remanded Waste Confidence proceeding. 110 The Commission also directed that over twenty continued storage contentions filed at or near the time of the 2012 vacatur be held in abeyance, pending the Commissions further direction. 111 However, CRAFTs contention should not be held in abeyance or admitted at this time.

Instead, it should be rejected as an impermissible challenge to the Commissions regulations. 112 In response to the courts ruling in New York, the Commission directed the Staff to institute a rulemaking to revise the agencys generic determination on the environmental impacts of continued storage of spent nuclear fuel. 113 On August 26, 2014, the Commission completed its action on the remanded Waste Confidence proceeding by adopting a revised rule at 10 C.F.R. § 51.23 and associated Generic Environmental Impact Statement for Continued Storage of Spent 110 See Calvert Cliffs, CLI-14-08, 80 NRC __, __ (2014) (slip op. at 5-6). See CLI-12-16, 76 NRC 63, 66 & n.5 (citing 10 C.F.R. § 51.23(b)(2012)).

111 See Calvert Cliffs, CLI-12-16, 76 NRC at 66; Calvert Cliffs, CLI-14-08, 80 NRC __ (slip op. at 5). Like CRAFTs contention 3, each of these contentions asserted that the NRCs NEPA analyses were deficient given the remand and that the NRC could not issue the license in the proceeding. See, e.g.,

Intervenors Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Proposed Fermi 3 Nuclear Power Plant (July 9, 2012), at 4.

112 See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI 20, 52 NRC 151, 165-66 (2000) (noting that a petitioner in an individual adjudication cannot challenge generic decisions made by the Commission in rulemakings). 10 C.F.R. § 2.309(f)(1)(iii) (requiring contention to be within the scope the proceeding to be admissible).

113 See Staff RequirementsCOMSECY-12-0016Approach for Addressing Policy Issues Resulting from Court Decision to Vacate Waste Confidence Decision and Rule (Sept. 6, 2012); Staff Requirements - SECY-13-0061 - Proposed Rule: Waste Confidence - Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) at 1-2 (Aug. 5, 2013 (ADAMS Accession No. ML13217A358). See also Calvert Cliffs, CLI-14-08, 80 NRC __ (2014) (slip op. at 6) (noting that direction was to develop a generic environmental impact statement [GEIS] to identify the environmental impacts of continued storage, address the issues raised by the court, and support an updated rule.). See New York, 681 F.3d at 480

([W]e see no reason that a comprehensive general analysis would be insufficient to examine on-site risks that are essentially common to all plants.).

Nuclear Fuel (NUREG-2157). 114 The revised rule (1) revises the Commissions generic determination regarding the environmental impacts of the continued storage of spent nuclear fuel beyond a reactors licensed life for operation and prior to ultimate disposal and (2) concludes that NUREG-2157 generically determines the environmental impacts of continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor. 115 In CLI-14-08, the Commission held that the revised 10 C.F.R. § 51.23 and associated NUREG-2157 cure the deficiencies identified by the court in New York, and stated that the rule satisfies the NRCs NEPA obligations with respect to continued storage for renewed reactor licenses. 116 As directed by 10 C.F.R. § 51.23(b), the impacts assessed in NUREG-2157 are deemed incorporated into an EIS for a license renewal application and are not subject to litigation in individual licensing proceedings. 117 In view of the issuance of the revised 10 C.F.R.

§ 51.23 and associated NUREG-2157, the Commission lifted the suspension on all final licensing decisions for affected applications, which would include Fermi 2s LRA, as of the effective date of the final rule. 118 Importantly, the Commission also determined that several 114 The Commission directed the Staff to publish the final rule in accordance with the Staff Requirements Memorandum. The rule will become effective 30 days after publishing.

115 See Memorandum to Mark A. Satorius, NRC EDO, from Annette L. Vietti-Cook, NRC Secretary,

Subject:

Staff Requirements - Affirmation Session, 10:00 a.m., Tues., Aug. 26, 2014, Commissioners Conference Room, One White Flint North, Rockville, Maryland (Open to Public Attendance) at 2 (Aug. 26, 2014) (ADAMS Accession No. ML14237A092). See also Union Electric Co.

(Callaway Plant, Unit 1), LBP-14-12, 80 NRC __ (Sept. 8, 2014) (slip op. at 2-3). The Staffs evaluation of the potential environmental impacts of continued storage of spent fuel presented in NUREG-2157 identifies an impact level, or a range of impacts, for each resource area for a range of site conditions and timeframes. The timeframes analyzed in NUREG-2157 include the short-term timeframe (60 years beyond the licensed life of a reactor), the long-term timeframe (an additional 100 years after the short-term timeframe), and an indefinite timeframe (see Section 1.8.2).

116 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 5 n. 8).

117 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 9 & n.27).

118 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 7). The Staff recognizes that it cannot make a final licensing decision on renewing Fermi 2s operating license until the effective date of the final rule and until it accounts for the revised rule and NUREG 2157, among other things. Id.

at 3.

proposed continued storage contentions pending before it 119 were inadmissible because they were the subject of general rulemaking by the Commission [and] may not be litigated in individual license proceedings. 120 For the same reason, the Commission directed the Boards to reject the continued storage contentions that had been held in abeyance. 121 Likewise, this Board should reject CRAFTs Proposed Contention 3, consistent with the Commissions decision in CLI-14-08. 122 Both the text of Proposed Contention 3 and its stated bases impermissibly attack the Commissions findings in the revised 10 C.F.R. § 51.23 and NUREG-2157. For example, CRAFT points to Appendix G of the Waste Confidence DGEIS 123 and questions why the NRC would allow for continued storage in spent fuel pools for up to 60 years after the end of the licensed operating life of a reactor. 124 CRAFT asserts that this timeframe is too long 125 and uncertain. 126 However, the New York court specifically directed the 119 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 10) (noting pending continued storage contentions in William States Lee, Grand Gulf, Shearon Harris, Comanche Peak, and North Anna combined licensing proceedings).

120 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 10); id. at 9 n.27.

121 The Commission noted that two contentions filed in the Indian Point license renewal proceeding should not be dismissed because [t]hese proposed contentions appear to include issues beyond the scope of the Continued Storage Rule. Id. at 10. See Union Electric Co. (Callaway Plant, Unit 1), LBP-14-12, 80 NRC __, __ (Sept. 8, 2014) (slip op. at 4) (Callaway Board finding waste confidence contention that was held in abeyance inadmissible and dismissing it from the license renewal proceeding).

122 See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI 20, 52 NRC 151, 165-66 (2000) (noting that a petitioner in an individual adjudication cannot challenge generic decisions made by the Commission in rulemakings). 10 C.F.R. § 2.309(f)(1)(iii) (requiring contention to be within the scope the proceeding to be admissible).

123 See Staff RequirementsSECY-13-0061Proposed Rule: Waste ConfidenceContinued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (Aug. 5, 2013) (ADAMS Accession No. ML13217A358);

Proposed Continued Storage Rule, 78 Fed. Reg. at 56,776; Draft Waste Confidence Generic Environmental Impact Statement, 78 Fed. Reg. 56,621 (Sept. 13, 2013). See Calvert Cliffs, CLI-14-08, 80 NRC at ___ n. 6 (slip op. at 4) (discussing change in title from waste confidence to continued storage).

124 Petition at 14.

125 Id. (The Petitioner contends that sixty years is a long time to live on the edge.).

NRC to analyze indefinite storage of spent nuclear fuel. 127 The Commission directed the Staff to analyze this issue generically, which the New York court recognized was an appropriate way to consider the issue. 128 The Commission adopted the revised rule at 10 C.F.R. § 51.23 and provided supporting analyses in NUREG-2157. Thus, CRAFTs challenges to the rule and supporting analyses are not subject to challenge in this proceeding.

Similarly, CRAFTs attacks on the spent-fuel pool fire analyses supporting the revised rule are not subject to challenge in this proceeding. Specifically, CRAFT asserts that the analyses in the Waste Confidence DGEIS, in particular Appendix F, are anemic, and were prepared by a B-team. 129 While CRAFT might not like the credentials of the Staff 130 who prepared the analyses in the Waste Confidence DGEIS, these analyses have been finalized in NUREG-2157 and have been adopted by the Commission as the basis for the revised 10 C.F.R.

§ 51.23. Pursuant to 10 C.F.R. § 51.23(b), these findings are deemed incorporated by rule into this proceeding. 131 CRAFT had the opportunity to raise its concerns with the Waste Confidence DGEIS 132 during the robust public comment period that included an extensive campaign of 126 For example, CRAFT contends that there can be no genuine confidence until such time as continued storage has a defined and available endpoint with no ambiguity or open-endedness. Petition at 15. CRAFT also contends that a public hearing should be held to address the unaddressed issue of financial accountability to the public taxpayers and utility ratepayers, who deserve a seat at the table on the issue of whether to assume new, additional, and uncertain future long-term liabilities. Id. at 13.

127 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012).

128 See New York, 681 F.3d at 480 ([W]e see no reason that a comprehensive general analysis would be insufficient to examine on-site risks that are essentially common to all plants.).

129 Petition at 14.

130 In particular, CRAFT takes aim at the educational background and/or experience of the preparers of that chapter. See Petition at 14 (contending that none of the three individuals listed as the preparers for Appendix F on spent fuel pool fires is genuinely qualified to competently and adequately address the complexity of this issue.).

131 Petition at 14.

132 See, e.g., Petition at 14 (Many DGEIS Preparers have twenty or more (20+) years of relevant experience, but, unfortunately, all of the listed experts who prepared the analysis of spent fuel pool fires

public meetings across the United States. 133 As part of this process, the Staff considered over 33,000 comment submissions and recorded approximately 1,600 pages of public meeting transcripts, 134 including comments from many of the petitioners who submitted continued storage contentions like CRAFTs Contention 3 following the 2010 vacatur. However, these challenges are outside the scope of this license renewal proceeding. To the extent that CRAFT seeks to litigate these issues in a site-specific fashion, CRAFT must seek and obtain a waiver of the rule. 135 CRAFTs Proposed Contention 3 also seeks other regulatory action by the NRC. For example, CRAFT requests an ASLB recommendation to the Commission to extend the moratorium until all legal appeals through the federal courts have been exhausted or resolved. 136 However, the Commission effectively rejected this request in CLI-14-08. As discussed above, in CLI-14-08, the Commission lifted the suspension on final licensing actions as of the effective date of revised 10 C.F.R. § 51.23. In doing so, the Commission recognized the publics interest in this matter, but noted that the public, including petitioners like CRAFT, were afforded the opportunity to participate in the continued storage rulemaking proceeding. 137 Therefore, the Board should not grant CRAFTs request.

CRAFT also seeks regulatory action with respect to the expedited transfer of spent fuel storage. Specifically, CRAFT contends that there can be no genuine confidence until such dramatically fail this seniority test. Thus, it seems to the Petitioner that a travesty is occurring in plain sight, and the Petitioner is taking this opportunity to clearly express grave concern.).

133 Calvert Cliffs, CLI-14-08, 80 NRC __ (Aug. 26, 2014) (slip op. at 6).

134 Id. at n. 35.

135 To the extent that CRAFT believes the issues it raises are generic, it can submit a petition for rulemaking. See 10 C.F.R. § 2.802.

136 Petition at 13.

137 Calvert Cliffs, CLI-14-08, 80 NRC __ (Aug. 26, 2014) (slip op. at 11).

time as the NRC initiates regulatory action to require licensees to expedite the transfer of spent nuclear fuel from active wet storage (pools) to passively-safer dry storage systems. 138 It appears that CRAFT seeks to suspend a decision on the Fermi 2 license renewal until a rule or other action is taken regarding the expedited transfer of spent fuel from wet to dry storage.

Notably, the Commission recently considered a joint petition to suspend reactor licensing decisions pending the resolution of a petition for rulemaking regarding the environmental impacts of high-density pool storage of spent fuel and mitigation measures. 139 The Commission denied the motion to suspend, citing to the Staffs studies and recommendations on the issue.

The Commission noted the high standard for suspension and held that the petitioners did not meet that standard. Likewise here, CRAFT has not shown compelling circumstances requiring the Commission to suspend a final licensing decision in this proceeding.

D. Proposed Contention 4 (Challenges to Fukushima Orders)

CRAFT's Proposed Contention 4 relates to DTEs response to two NRC orders issued following the Fukushima Daiichi accident. First, CRAFTs Proposed Contention 4 states that, with respect to NRC Order EA-12-051, "Order Modifying Licenses with Regard to Reliable Spent Fuel Pool (SFP) Instrumentation," March 12, 2012. (Order EA-12-051) 140:

(1) the Applicant has failed to provide the NRC Staff with an acceptable final configuration of the offsite [Alternating Current (AC)] power supply, including sources, routing and termination points (transmission corridor) for each channel/circuit, so the Staff may conclude that the channels/circuits are independent (physically separate commensurate with the hazard) from a power supply assignment perspective, for the purpose of ensuring reliable and uninterrupted 138 Petition at 15. See id. (claiming that such regulatory actions would be very politically viable in light of the Fukushima accident and aftermath). CRAFTs claims about bogus generic reactor and storage design criteria are challenges to the current licensing basis and therefore outside the scope of this proceeding. Id.

139 See DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC __, n.1 (Jul. 17, 2014) (slip op.) (citing Feb. 27, 2014 petition to suspend and rulemaking petition regarding environmental Impacts of High-Density Pool Storage of Spent Fuel and Mitigation Measures (Feb. 27, 2014).

140 ADAMS Accession No. ML12054A679.

electric power for the Fermi Nuclear Reactor, Unit 2, within and as part of the inseparable context of the same Applicants active and pending Fermi, Unit 3 COLA as submitted 141 and (2) the Applicants pending arrangement explicitly violates the Acceptance Criteria of the Mitigating Strategies Directorate (NRR) Audit Plan to Review Licensee Submittals in response to the Commissions issuance of Orders with regard to Beyond-Design-Basis External Events (BDBEE) mitigation response and recovery actions. 142 Next, CRAFTs Proposed Contention 4 cites to NRC Order EA-12-049 Order Modifying Licenses with Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events (BDBEE) 143 (Order EA-12-049) and claims that:

In the context of Fukushima Lessons Learned, and presuming the Fermi, Unit 3 COLA as it actively stands, the Petitioner raises the issue of safety margins for multi-unit events, including Design-Basis Threats and Events (DBT) as well as Beyond-Design-Basis External Events (BDBEE). Indeed, multi-unit risks and uncertainties include unexpected events, accidents or occurrences, which may produce synergistic, compounding and emergent scenarios involving catastrophic failure of mission-critical systems. The Petitioner submits that the Applicants Severe Accident Mitigation Alternatives (SAMA) analysis, ER and overall License Renewal Application (LRA) hastily fail to comprehensively analyze reasonably foreseeable risks, consequences and mitigation alternatives to the extent required by NEPA or even by the NRCs own guidelines. 144 CRAFTs Proposed Contention 4 is labeled as an environmental contention. 145 However, the contention raises both environmental 146 and safety issues. 147 For the reasons 141 Petition at 15-16.

142 Id. at 16.

143 ADAMS Accession No. ML12054A736. This order required a phased approach for mitigating beyond-design-basis external events. See Attachment 2 of Order EA-12-049 for the requirements, which were to be completed no later than two (2) refueling cycles after submittal of the overall integrated plan, as required in Condition C.1.a, or December 31, 2016, whichever comes first. Order at 7-8.

144 Petition at 15-16.

145 Id. at 15 (environmental contention 4).

146 Id. at 17 (asserting that DTEs SAMA analysis is deficient).

147 See, e.g., Petition at 16 (asserting that there are significant safety flaws in the design of the Fermi offsite AC power transmission system). See also id. at 17 (In the context of Fukushima Lessons Learned, and presuming the Fermi, Unit 3 COLA as it actively stands, the Petitioner raises the issue of

discussed below, CRAFTs Contention 4 does not raise an admissible safety or environmental license renewal claim. Therefore, CRAFTs Proposed Contention 4 should be denied.

1. Challenges To Fukushima Order EA-12-051 and EA-12-049 Raise Safety Issues That Are Outside the Scope of This Proceeding CRAFTs Proposed Contention 4 expresses a concern that DTE failed properly to respond to the NRCs immediately effective Order EA-12-051. Order EA-12-051 provides that holders of operating licenses issued under 10 C.F.R. Part 50:

shall have a reliable indication of the water level in associated spent fuel storage pools capable of supporting identification of the following pool water level conditions by trained personnel: (1) level that is adequate to support operation of the normal fuel pool cooling system, (2) level that is adequate to provide substantial radiation shielding for a person standing on the spent fuel pool operating deck, and (3) level where fuel remains covered and actions to implement make-up water addition should no longer be deferred. 148 Similarly, CRAFT cites to immediately effective Order EA-12-049 and raises the issue of safety margins for multi-unit events, including Design-Basis Threats and Events (DBT) as well as Beyond-Design-Basis External Events (BDBEE). 149 Order EA-12-049 requires holders of Part 50 operating licenses to implement strategies with increased capacity to implement protective actions concurrently at multiple units at a site to address the potential for more widespread effects of beyond design basis external events. 150 The Staff agrees with CRAFT that both of these orders apply to DTE, a holder of a part 50 operating license. 151 And DTE is seeking to renew that Part 50 operating license. 152 safety margins for multi-unit events, including Design-Basis Threats and Events (DBT) as well as Beyond-Design-Basis External Events (BDBEE).).

148 Attachment 2 to EA-12-051, 1.

149 Petition at 17.

150 EA-12-049 at 6.

151 Petition at 15 (noting that order pertains to Fermi, Unit 2).

However, Order EA-12-051 and EA-12-049 do not discuss any aspect of license renewal or impose any requirements based on the renewal of a Part 50 license. Instead, the orders modified the previous licensing basis, and became part of the current licensing basis (CLB) for Fermi 2. 153 Thus, CRAFT's claims that DTE has not properly responded to the orders and that DTE fails to meet current requirements and acceptance criteria 154 are not admissible because CLB compliance is not within the scope of a license renewal proceeding pursuant to 10 C.F.R.

§§ 54.30(b), 2.390(f)(1)(iii). 155 The Commission has made clear that if a petitioner has safety concerns that go to the adequacy of the plant's current licensing basis, the proper forum to raise such a challenge is a petition under 10 C.F.R. § 2.206 for NRC action on the license. 156 Further, the orders, which were issued over two years ago, provided information sufficient to inform the licensee or any other person adversely affected by the order of his or her right to demand a hearing on the order. See, EA-12-051 at 11; EA-12-049 at 10. 157 Thus, to 152 See LRA.

153 EA-12-049. The orders establish dates for compliance based on refueling outages. At this time, Fermi 2 is not required to be in full compliance with the orders.

154 For example, CRAFT asserts that the offsite AC power transmission system is flawed because it is susceptible to various single-failure events such as tornadoes. Petition at 16 (quoting Limited Statement for ASLB Hearing on Proposed Fermi New Reactor by Farouk D. Baxter, Docket 50-033-COL (Oct. 21, 2013) (available at ADAMS Accession No. ML13294A355) (Baxter Statement).

155 See e.g. Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI 7, 69 NRC 235, 270-271 (2009) (discussing how meeting acceptance criteria associated with the current licensing basis is beyond the scope of a license renewal proceeding).

156 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3, and 4), CLI-01-17, 54 NRC 3, 23 (2001). CRAFT does not like the 10 C.F.R. § 2.206 process. See, e.g., Petition at 3-4. However, the Commission has recently affirmed the validity of the process. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC 437, 439-40 (2012).

157 See 10 C.F.R. § 2.202. With respect to a hearing on an order, a third party such as CRAFT would have standing where the terms of the order, as written, would harm the third party. All Operating Boiling Water Reactor Licensees with Mark I and Mark II Containments: Order Modifying Licenses with Regard to Reliable Hardened Containment Vents (Effective Immediately), All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status: Order Modifying Licenses with Regard to Reliable Spent Fuel Pool Instrumentation (Effective Immediately), CLI-13-2, 77 NRC 39, 46 (2013).

the extent CRAFT felt it was adversely affected by either order, it could have demanded a hearing on the order. However, concerns about these immediately effective CLB orders are not appropriately raised in a 10 C.F.R. § 2.309 hearing related to license renewal.

2. Proposed Contention 4s Environmental Claims Lack an Adequate Basis and Do Not Raise a Genuine Material Dispute With the License Renewal Application Proposed Contention 4 is framed as an environmental contention and asserts that the Applicant's ER is deficient in several respects. However, each of CRAFTs challenges is too vague and unsupported to raise an issue suitable for litigation. Therefore, CRAFTs claims are inadmissible.

a. The NRCs Consideration of Severe Accident Mitigation Alternatives in License Renewal Proceedings CRAFT states that DTEs Severe Accident Mitigation Alternatives (SAMA) analysis, ER and overall license renewal application (LRA) hastily fail to comprehensively analyze reasonably foreseeable risks, consequences and mitigation alternatives to the extent required by NEPA or even by the NRC's own guidelines." 158 SAMAs are an aspect of the environmental license renewal review. 159 Thus, certain license renewal applicants, including DTE, are required to consider SAMAs in the ER prepared in connection with their license renewal application. 160 Mitigation alternatives or SAMAs refer to safety enhancements such as a new hardware item The issue for a hearing on an order is whether the order should be sustained or denied. Bellotti v. NRC, 725 F.2d 1380, 1382 (D.C. Cir. 1983).

158 Petition at 16-17.

159 The SAMA analysis is not a safety review performed under the Atomic Energy Act. The mitigation measures examined are supplemental to those we already require under our safety regulations for reasonable assurance of safe operation. Entergy Nuclear Generation Co., (Pilgrim Nuclear Power Station) CLI-12-01, 75 NRC 39, 57 (2012).

160 See 10 C.F.R. § 51.53(c)(3)(ii)(L) (noting that ER must provide a consideration of alternatives to mitigate severe accidents if the staff has not previously considered such alternatives for the plant in a NEPA document). See also Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 290 (2010) reconsideration denied, CLI-10-15, 71 NRC 479 (2010).

or procedure intended to reduce the risk of severe accidents. 161 The SAMA review ensures that any plant changes - in hardware, procedures, or training - that have a potential for significantly improving severe accident safety performance are identified and assessed. 162 In short, the SAMA analysis evaluates a number of potential accident progression sequences (scenarios) and the possible safety enhancements that may reduce the risk of those accident scenarios. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station) CLI-10-11, 71 NRC 287, 291 (2010). The analysis determines whether particular SAMAs would sufficiently reduce risk - e.g., by reducing frequency of core damage or frequency of containment failure - for the SAMA to be cost-effective to implement.

Id. Thus, the analysis is inherently probabilistic. Id. If the cost of implementing a particular SAMA is greater than its estimated benefit, the SAMA is not considered cost-beneficial to implement. Id. Importantly, the Commission has explained that in a highly predictive analysis such as a SAMA analysis, there are bound to be significant uncertainties, and therefore an uncertainty analysis is performed. 163 The NRC Staffs obligation regarding SAMAs under NEPA and Part 51 is met by taking a hard look at those SAMAs identified as potentially cost beneficial. 164 Only those SAMAs that are cost-beneficial and bear on adequately managing the effects of aging need be implemented as part of the license renewal safety review, pursuant to 10 C.F.R. Part 54. 165 161 Pilgrim, CLI-10-11, 71 NRC at 290-91.

162 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &

2), CLI-02-17, 56 NRC 1, 5 (2002); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC __ (2012) (slip op. at 17).

163 Pilgrim, CLI-12-01, 75 NRC at 58.

164 Entergy Nuclear Operations Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-10-13, 71 NRC 673, 679 (2010).

165 Pilgrim, CLI-10-11, 71 NRC at 294.

b. CRAFTs SAMA Claims Are Speculative and Do Not Raise a Genuine Material Dispute With DTEs SAMA Analysis The Staff recognizes that SAMAs are a Category 2 issue that must be discussed in DTEs ER. 166 However, CRAFTs vague SAMA claim does not raise a litigable issue. In explaining another SAMA contention, the Commission noted that it has long stressed that NRC adjudicatory hearings are not EIS editing sessions. 167 Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated. 168 Thus, the Commission has stated that the ultimate concern for a SAMA analysis is whether any additional SAMA should have been identified as potentially cost beneficial, not whether further analysis may refine the details in the SAMA NEPA analysis. 169 The Commission has explained that when it comes to admissibility of SAMA contentions, the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA. 170 Unless a petitioner sets forth a supported contention pointing to an apparent error or deficiency that may have significantly skewed the environmental conclusions, there is no genuine material dispute for hearing. 171 166 See Table B-1 (noting that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives).

167 Entergy Nuclear Generation Co. & Entergy Nuclear Operations (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 533 (2009) (internal quotations omitted).

168 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 &

2), CLI-03-17, 58 NRC 419, 431 (2003) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 353 (1989) (alteration in original)).

169 Pilgrim, CLI-09-11, 69 NRC at 533.

170 Davis-Besse, CLI-12-08, 75 NRC 393, 406 (2012) (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC 301, 323-24 (2012).

171 Id. (internal citations omitted).

DTEs ER contains a SAMA analysis, 172 as required by 10 C.F.R. § 51.53(c)(3)(ii)(L).

While CRAFT vaguely references it in this contention, 173 CRAFT does not indicate how this analysis is unreasonable, 174 incorrect, 175 or otherwise fails to meet NEPAs hard-look requirements. 176 Therefore, CRAFTs challenge to the adequacy of the ER does not raise a genuine material dispute with the application or meet the specificity requirements in 10 C.F.R. § 2.309(f)(1)(vi).

Moreover, CRAFTs bare assertion that consideration of a multi-unit event would affect the outcome of alternatives considered by the applicant 177 is inadmissible. As discussed below, there is no requirement to conduct a site-level SAMA analysis.

i. CRAFTs Attempt to Incorporate Fermi 3 Into the Fermi 2 SAMA Analysis Is Contrary to the Commissions Regulations CRAFT appears to assert that Fermi 3 must be considered in a site-level SAMA analysis for Fermi 2s license renewal proceeding. 178 In other words, CRAFT argues that Fermi 2s SAMA analysis is inadequate unless it explicitly considers Fermi 3. The Commissions rules regarding SAMA analysis are not so prescriptive as to require any particular method or set of events to be considered.

172 ER at 4.9.3.4.

173 In Proposed Contention 8, discussed below, CRAFT makes additional claims regarding the Fermi 2 SAMA analysis.

174 Davis-Besse, CLI-12-08, 75 NRC 393, 406 (2012) (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC 301, 323-24 (2012).

175 Id.

176 Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1

& 2), CLI-03-17, 58 NRC 419, 431 (2003) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989) (alteration in original)).

177 See Baxter Statement.

178 Petition at 17.

The rule does not provide particular requirements for a SAMA analysis, just that a consideration of SAMAs be included in the license renewal ER if such consideration has not previously been included in a NEPA document. See § 51.53(c)(3)(ii)(L). As the Commission explained, the purpose of § 51.53(c)(3)(ii)(L) is not to prescribe by rule the scope of an acceptable consideration of severe accident mitigation alternatives for license renewal [or] to mandate consideration of alternatives identical to those evaluated previously. 61 Fed. Reg. at 28,481. Instead, the Commission described how applicants could use different approaches, including quantitative approaches, in performing SAMA analyses. Id.

For example, the Commission explicitly stated that a site-specific Level 3 PRA was not required to determine whether an alternative under consideration was cost-beneficial. Id.

Instead, the Commission explained that it would review each severe accident mitigation consideration provided by a license renewal applicant on its merits and determine whether it constitutes a reasonable consideration of severe accident mitigation alternatives. Id. at 28,481-

82. Moreover, the Commission recognized that the NRC would continue to study severe accidents generically and at other facilities in those intervening years, updating the agencys understanding of severe accident progression and risks as well as identifying new SAMA candidates. Id. at 28.481. Neither the rule nor Commission precedent requires an applicant to use the most up-to-date methodology to perform SAMA analyses. See Pilgrim, CLI-10-11, 71 NRC at 315. In light of the non-prescriptive rule and the above Commission precedent, CRAFT does not indicate why DTEs SAMA analysis is unreasonable or deficient for not including Fermi

3. Thus, this portion of CRAFTs claim is inadmissible because it lacks an adequate basis and does not raise a genuine material dispute.

To the extent that CRAFT is seeking to have an additional SAMA analysis performed for Fermi 3, it is contrary to the Commissions regulations. As the Commission recently made clear,

10 C.F.R. § 51.53(c)(3)(ii)(L) requires a plant to conduct only one SAMA or severe accident mitigation design analysis (SAMDA). 179 As part of the COL proceeding, Fermi 3 has conducted a SAMDA analysis, as required by § 51.53(c)(3)(ii)(L). While that COL proceeding is not complete, no contentions remain that challenge the Fermi 3 SAMDA analysis. Thus, admitting CRAFTs Proposed Contention 4 would allow CRAFT to collaterally attack the Commissions regulations on this point and avoid the Commissions waiver requirements. Thus, this portion of the proposed contention is inadmissible, absent a waiver.

c. CRAFT Does Not Specify How the Orders Raise an Environmental Issue Within the Scope of License Renewal Likewise, CRAFT does not indicate how any claimed failure to implement Order EA 049 or Order EA-12-051 relates to an environmental concern or a deficiency in the LRA. 180 To have Proposed Contention 4 admitted for hearing, CRAFT is required by 10 C.F.R. § 2.309(f)(1)(vi) to provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, and to include references to specific portions of the ER that the petitioner disputes and the supporting reasons for each dispute. Because CRAFT has not done so, Proposed Contention 4 should be denied.

E. Proposed Contention 5 (Challenge to Fukushima Order and Category 1 Finding)

CRAFTs Proposed Contention 5 is titled Spent Fuel Pool Instrumentation is Deficient and it states that:

The Petitioner requests a public hearing to consider the following Contention pertaining to U.S. NRC Commission Order EA-12-051, 179 10 C.F.R. § 51.53(c)(3)(ii)(L); 42 U.S.C. § 4331. Limerick, CLI-12-19, 76 NRC at 386 (holding that 1989 SAMDA conducted as part of Limericks operating license application was a SAMA for purposes of 10 C.F.R. § 51.53(c)(3)(ii)(L) and that therefore the applicant was not required to include a SAMA in its license renewal ER); See also Part 51 Amendments, 61 Fed. Reg. at 28,481; GEIS at 4-160.

180 A cursory search of the ER reveals that EA-12-049 is mentioned more than twenty times.

E.g., ER at D-10 (discussing, in the context of LSOP, "the plant response to order EA-12-049 ... includes upgrading the Acts of Nature procedure and providing equipment, additional procedural steps, and training to mitigate an extended loss of AC power.").

Order Modifying Licenses with Regard to Reliable Spent Fuel Pool (SFP) Instrumentation, March 12, 2012 (ML12054A679)[.][181]

Further, Proposed Contention 5 asserts that DTEs ER should be revised based on new and significant information. 182 Specifically, CRAFT asserts that:

DTEs ER fails to adequately address several factors identified by previous studies, other expert bodies, and real world nuclear accidents. The following issues needing to be addressed by DTE were brought to public attention by Dr.

Gordon R. Thompson to the NRC on the June 2013 draft, Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S.

Mark 1 Boiling Water Reactor.[183]

Proposed Contention 5 is labeled an environmental contention. 184 However, it raises both environmental and safety issues. For the reasons discussed below, Proposed Contention 5 does not raise an admissible safety or environmental license renewal issue; therefore, it should be denied.

1. Challenges to Fukushima Order-EA-12-051 Raise Safety Issues That Are Outside the Scope of This Proceeding Like CRAFTs Proposed Contention 4, Proposed Contention 5 raises challenges to the adequacy of Order EA-12-051 and DTEs implementation of that order. CRAFT asserts that the Order is materially relevant to the standard by which to properly judge the adequacy of the Applicants [AMP] program 185 and claims that verified, full completion of [the] Order 181 Petition at 17.

182 Id. at 19.

183 Id.

184 Id. at 17.

185 Id. at 18.

implementation at the Fermi Nuclear Reactor, Unit 2, must be a prerequisite for issuance of a License Renewal. 186 These arguments are inadmissible because CRAFT offers no support for the proposition that Order EA-12-051 is within the scope of this individual license renewal proceeding or in any way related to the findings that the Staff must make in this license renewal proceeding. As discussed above, Order EA-12-051 does not discuss any aspect of license renewal or impose any requirements based on the renewal of a Part 50 license. Instead, the Order modified Fermi 2s previous licensing basis, and became part of the CLB for Fermi 2. 187 Thus, challenges related to this order are challenges to the current licensing basis of the facility and are outside the scope of this proceeding. 188 The Commission has made clear that if a petitioner has safety concerns that go to the adequacy of a plant's current licensing basis, the proper forum to raise such a challenge is a petition under 10 C.F.R. § 2.206 for NRC action on the license. 189 Further, the Order provided information sufficient to inform the licensee or any other person adversely affected by it of his or her right to demand a hearing on the Order. See Order EA-12-051, at 11. 190 Thus, to the extent CRAFT felt it was adversely affected by the Order, it 186 Id. See also id. at 19 (requesting an ASLB ruling and recommendation supporting full fleet wide implementation and compliance with already-issued, existing and open Commission Orders prior to the issuance and approval of any new licensing or relicensing action, including, specifically, the [Fermi 2]

LRA.).

187 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 8-9 (explaining that the current licensing basis includes orders).

188 Id. CRAFT also does not indicate how any claimed failure to implement Order EA-12-051 relates to an environmental concern or a deficiency in the LRA. Thus, to the extent that CRAFT raises environmental issues with respect to its Order EA-12-051 claims, they do not meet 10 C.F.R. § 2.309(f)(1)s requirements.

189 See Turkey Point, CLI-01-17, 54 NRC at 23. See also Sequoyah Fuels Corp. (UF6 Production Facility), CLI-86-19, 24 NRC 508, 513 (1986). CRAFT does not like the 10 C.F.R. § 2.206 process.

Petition at 3-4. However, the Commission has recently affirmed the validity of the 10 C.F.R. § 2.206 process. San Onofre, CLI-12-20, 76 NRC 437, 439-40 (2012).

190 See supra n. 157 (discussing standards for hearing on an order).

could have demanded a hearing on the Order. However, concerns about this immediately effective Order that is modifying the facilitys CLB are not appropriately raised in a license renewal hearing under 10 C.F.R. § 2.309.

2. Challenges to the Open Matter ISFSI Control of Heavy Loads Raise Safety Issues That Are Outside the Scope of This Proceeding Proposed Contention 5 also requests a hearing to discuss the Open Matter of ISFSI Control of Heavy Loads (fuel loading and handling procedures and acceptance criteria) with regard to lack of seismic qualification of remedial welds on 5th-floor vertical beams, structural integrity of the associated crane and supporting superstructure, and the safety margins for reliable transfer of spent fuel from wet storage to dry storage (from SFP to dry casks). 191 CRAFT asserts that this matter must be completely remedied as a prerequisite for issuance of a License Renewal because it is materially relevant to the Applicants aging management plan program. 192 Again, CRAFT does not explain how this argument is within the scope of this license renewal proceeding. 193 Instead, this appears to be a challenge that Fermi 2s current design is inadequate. Claims regarding the adequacy of the facilitys current 191 Petition at 19.

192 Id.

193 See 10 C.F.R. § 54.21 (stating that aging management plans are only required for structures and components within the scope of 10 C.F.R. Part 54 as delineated in 10 C.F.R. § 54.4). See also, Turkey Point, CLI-01-17, 54 NRC at 9-10 (In establishing its license renewal process, the Commission did not believe it necessary or appropriate to throw open the full gamut of provisions in a plant's current licensing basis to re-analysis during the license renewal review; instead, a plants current licensing basis is effectively addressed and maintained by ongoing agency oversight, review, and enforcement and the scope of the Staffs license renewal safety review, and the subsequent hearing process regarding this review, is limited to the renewal review on plant systems, structures, and components for which current regulatory activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation.). See also, id. at 13 (The Commission reasonably chose to focus its AEA-based Part 54 safety review on the potential detrimental effects of aging, instead of treating license renewal as the occasion for a broad-based reassessment of all operational safety issues.).

licensing basis are not within the scope of the license renewal review. 194 To the extent CRAFT believes there is a current safety problem with the Fermi 2 design, it should petition under 10 C.F.R. § 2.206 for NRC action on the Fermi 2 license. 195 While CRAFT does not believe that this process is a viable alternative, 196 the Commission recently affirmed its validity. 197 CRAFTs claims also fail to meet 10 C.F.R. § 2.309(f)(1)(v) because the Petition provides no citation to specific facts or expert opinions to support its assertion that there is an Open Matter of ISFSI Control of Heavy Loads. Additionally, the Petition does not refer to specific portions of the Application to demonstrate that there exists a genuine dispute with the Application as is required by 10 C.F.R. § 2.309(f)(1)(vi). Thus, this portion of Proposed Contention 5 is inadmissible.

3. CRAFTs Challenges to Category 1 Issues Are Inadmissible Proposed Contention 5 also raises challenges to Category 1 environmental findings.

Specifically, CRAFT argues that new and significant information exists which should have been discussed in the Applicants ER with respect to onsite spent fuel storage. 198 The Commission has made generic findings regarding the environmental impacts of the onsite storage of spent nuclear fuel. 199 The Commission has also ruled that this generic determination encompasses 194 Turkey Point, CLI-01-17, 54 NRC at 23 (The Commission denied claims [that] go to the adequacy of the plants current licensing basis because they are not within the scope of the license renewal review.).

195 Id. (If the petitioner genuinely knows of a serious current safety problem resulting from the design of the Turkey Point facility, he should petition under 10 C.F.R. § 2.206 for NRC action on the Turkey Point license.).

196 Petition at 3-4. CRAFT also does not believe that the rulemaking process is a viable option.

Id. However, these claims essentially challenge the Commissions regulatory framework and are therefore inadmissible challenges to rules.

197 San Onofre, CLI-12-20, 76 NRC at 439-40.

198 Petition at 19-20.

199 See 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1. The LRA cited the Commissions Table B-1, Appendix B to Subpart A finding of SMALL. LRA at 4-63. As explained above, the

spent fuel accident risks and their mitigation. 200 Thus, 10 C.F.R. § 51.53(c)(3)(i) states that,

[t]he environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in appendix B to subpart A of this part and 10 C.F.R. § 51.53(c)(3)(iii) states that no consideration of alternatives for reducing adverse impacts is required for Category 1 issues either. 201 DTE complied with these regulations by incorporating the Commissions generic Category 1 findings with respect to onsite spent fuel storage in its ER. 202 Further, DTEs ER discussed whether any new and significant may bear on the applicability of this Category 1 finding at Fermi 2, as required by the Commissions regulations. 203 DTE concluded that the Commissions onsite spent fuel storage finding was applicable to Fermi 2. 204 CRAFT claims that the ER is deficient because it did not include as new and significant information comments by Dr. Gordon R. Thompson on the June 2013 draft of Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor; specifically, comments having to do with the hazards of partial pool Commission has adopted a revised rule, which continues to treat this issue as a Category 1 issue. As explained in NUREG-2157, the impacts for on-site spent fuel storage are SMALL during the license renewal term. These impacts have been generically determined by rule for all plants and are not challengeable in this proceeding absent a waiver.

200 Turkey Point, CLI-01-17, 54 NRC at 21.

201 Id. at 11-12. See also Baltimore Gas & Electric Co., 462 U.S. 87, 101 (1983) (Administrative efficiency and consistency of decision are both furthered by a generic determination of these effects without needless repetition of the litigation in individual proceedings, which are subject to review by the Commission in any event.).

202 LRA at 4-63.

203 10 C.F.R. § 51.95. See Turkey Point, CLI-01-17, 54 NRC at 11 (noting that for Category 1 issues, the applicant must still provide additional analysis in its Environmental Report if new and significant information may bear on the applicability of the Category 1 finding at its particular plant.).

204 LRA at 4-63 (no new and significant information was identified as it relates to onsite storage of spent nuclear fuel, and further analysis is not required).

drainage, spent fuel pool fires, and concurrent reactor accidents. 205 CRAFT also discussed hazards from spent fuel pool leaks and faulted the LRA for not comparing information regarding the radiation release from spent fuel pool accidents to the radiation release from cask ruptures. 206 CRAFT thus concludes that the LRA is incomplete without a proper investigation of the physics and chemistry of pool fires. 207 This argument is per se out of the scope of this license renewal proceeding because spent fuel storage is a generic, Category 1 finding and challenges to such Category 1 findings, even those asserting new and significant information, cannot be entertained in individual license renewal proceedings absent a waiver request under 10 C.F.R. § 2.335(b). 208 CRAFT does not request such a waiver or otherwise demonstrate the existence of special circumstances that would justify the granting of such a waiver in this proceeding. Therefore, pursuant to 10 C.F.R. § 2.309(f)(1)(iii), CRAFTs argument is inadmissible.

205 Petition at 19.

206 Id. at 19-20.

207 Id. at 20.

208 Turkey Point, CLI-01-17, 54 NRC at 12 (In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule. . . . Petitioners with evidence that a generic finding is incorrect for all plants may petition the Commission to initiate a fresh rulemaking. See 10 C.F.R. § 2.802. Such petitioners may also use the SEIS notice-and-comment process to ask the NRC to forgo use of the suspect generic finding and to suspend license renewal proceedings, pending a rulemaking or updating of the GEIS.); see also id. at 16 (Generic Category 1 issues are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings.); Pilgrim, CLI-07-03, 65 NRC at 22 ([W]hatever the ultimate fate of the [petitioners] new information claim, admitting the [petitioners] contention for an adjudicatory hearing is not necessary to ensure that the claim receives a full and fair airing.); Exelon Generation Co.,

LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 384 (2012) (summarizing a previous Commission ruling in which it upheld the rejection of a contention as an improper challenge to the Commissions regulations because the Commission found that the new and significant information requirement in 10 C.F.R. §51.53(c)(3)(iv) did not override, for the purposes of litigating the issues in an adjudicatory proceeding, the exclusion of Category 1 issues in 10 C.F.R. §51.53(c)(3)(i) from site-specific review. Specifically, [a]djudicating Category 1 issues site by site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS. Therefore, a waiver is required to litigate any new and significant information relating to a Category 1 issue.) (quoting Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 21 (2007)).

4. Suspension Is Not Warranted Based on CRAFTs Claims CRAFT appears to seek to suspend licensing until the Staff further considers the issue of expedited spent fuel transfer. 209 However, CRAFT has not addressed the suspension standards or indicated why suspension is warranted. Notably, in a different proceeding, assertions almost identical to CRAFTs were considered and rejected by the Commission as a reason for suspending licensing actions. 210 Likewise, the Board should reject any purported suspension request made in CRAFTs Petition.

F. Proposed Contention 6 (Challenge to Fukushima Order and SAMA Claim)

Like CRAFTs Proposed Contentions 4 and 5, Proposed Contention 6 claims that DTEs response to NRC Order EA-12-049 211 is inadequate. 212 In particular, CRAFTs Proposed Contention 6 cites to a November 2013 NRC inspection report 213 and a July 24, 2014 National Academy of Sciences (NAS) report and contends that:

(a) the Fermi 2 LRA substantively fails to incorporate the analyses, recommendations and conclusions of the NAS study; and, (b) the NRC has not completed an anticipated comprehensive analysis and review of the NAS study in order to determine the best response and course of action; therefore, the above incongruous circumstances must be reconciled as a prerequisite for license renewal in order to necessarily maintain the values of credibility and intellectual honesty as a non-negotiable standard for LRA Safety Reviews, generally and specifically. 214 209 Petition at 20.

210 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC __, __ (slip op. at

12) (Feb. 27, 2014).

211 ADAMS Accession No. ML12054A736. This order required a phased approach for mitigating beyond-design-basis external events. See Attachment 2 of Order EA-12-049 for the requirements, which were to be completed no later than two (2) refueling cycles after submittal of the overall integrated plan, as required in Condition C.1.a, or December 31, 2016, whichever comes first. Order at 7-8.

212 Petition at 20-21.

213 Id. at 21.

214 Id.

Further, Proposed Contention 6 contends that:

The Applicants Fermi 2s ER is inadequate and materially deficient because it fails to accurately and thoroughly provide a Severe Accident Mitigation Alternatives (SAMA) analysis that comprehensively addresses the well-known and unresolved design vulnerability of the GE Mark 1 BWR pressure suppression containment system, and any associated severe accident consequences. 215 CRAFTs Proposed Contention 6 is labeled as an environmental contention. 216 However, the contention raises both environmental 217 and safety issues. 218 For the reasons discussed below, CRAFTs Proposed Contention 6 does not raise an admissible safety or environmental license renewal claim and should be denied.

1. Challenges To Fukushima Order EA-12-049 Raise Safety Issues That Are Outside the Scope of This Proceeding Once again, CRAFTs Proposed Contention 6 expresses a concern that DTE failed properly to respond to the NRCs immediately effective Order EA-12-049. 219 In particular, CRAFT is concerned with Fermi 2s response to a loss of offsite station power (LSOP) or a station blackout (SBO). 220 Order EA-12-049 requires holders of Part 50 operating licenses to implement strategies with increased capacity to implement protective actions concurrently at multiple units at a site to address the potential for more widespread effects of beyond design basis external events. 221 215 Id. at 22. In support of this contention, CRAFT cites to the NAS Report and an NRCs Operation Center Fukushima Transcript (ADAMS Accession No. ML12052A108). Id. at 20.

216 Id. at 20 (environmental contention 6).

217 Id. at 22 (asserting that the Applicants Severe Accident Mitigation Alternatives (SAMA) analysis is deficient).

218 See, e.g., Petition at 21 (asserting that no license extension be considered until all these safety items are in place.).

219 Id. at 20-21.

220 Id. at 20, 21-22.

221 EA-12-049 at 6.

As noted above, Order EA-12-049 applies to DTE, a holder of a part 50 operating license. 222 And DTE is seeking to renew that Part 50 operating license. 223 However, Order EA-12-049 does not discuss any aspect of license renewal or impose any requirements based on the renewal of a Part 50 license. Instead, the order modified the previous licensing basis, and became part of the CLB for Fermi 2. 224 Thus, CRAFT's claims that DTE has not properly responded to the order are not admissible because CLB compliance is not within the scope of a license renewal proceeding pursuant to 10 C.F.R. §§ 54.30(b), 2.390(f)(1)(iii). 225 As is made clear by CRAFTs Petition, the NRC is currently and actively inspecting DTEs compliance with the order; 226 this is being done separate and apart from any license renewal safety review.

As discussed above, if a petitioner has safety concerns that go to the adequacy of the plant's current licensing basis, the proper forum to raise such a challenge is a petition under 10 C.F.R. § 2.206 for NRC action on the license. 227 Further, the order provided information sufficient to inform the licensee or any other person adversely affected by the order of his or her right to demand a hearing on the order. See EA-12-049 at 10. 228 Thus, to the extent CRAFT felt it was adversely affected by the order, it could have demanded a hearing on the order.

222 Petition at 21 (noting that order pertains to Fermi, Unit 2).

223 See LRA.

224 EA-12-049.

225 See e.g. Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI 7, 69 NRC 235, 270-271 (2009) (discussing how meeting acceptance criteria associated with the current licensing basis is beyond the scope of a license renewal proceeding).

226 Petition at 21 (citing NRC Staff Evaluation for list of open items and confirmatory items).

227 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3, and 4), CLI-01-17, 54 NRC 3, 23 (2001). See also Sequoyah, CLI-86-19, 24 NRC 508. CRAFT does not like the 10 C.F.R. § 2.206 process. See Petition at 3-4. However, the Commission has recently affirmed the validity of the process. San Onofre, CLI-12-20, 76 NRC at 439-40.

228 See supra n. 157 (discussing standards for hearing on order).

However, concerns about these immediately effective CLB orders are not appropriately raised in a 10 C.F.R. § 2.309 hearing related to license renewal.

2. CRAFT Does Not Indicate How NAS Report Raises License Renewal Safety Issue CRAFT contends that the July 24, 2014 NAS Report 229 identifies Significant New Unknown and Unanalyzed Conditions directly pertaining to 230 Fermi 2. CRAFT argues that the NAS report is inherently within the Scope of the Fermi 2 LRA safety review. 231 However, CRAFT does not cite to any particular provision in the report. 232 It is not for the Board or the parties to divine what issue CRAFT seeks to litigate. CRAFT must specify its concern and identify a particular deficiency in the application. Because CRAFT has not done so, Proposed Contention 6 lacks an adequate basis and fails to raise a genuine material dispute.

Moreover, CRAFT has not shown that Proposed Contention 6 is within the scope of the Staffs license renewal safety review. As discussed above, the license renewal safety review is focused on aging management for structures and components that perform passive intended functions that are of principle importance to safety. 233 The NAS Report examined the causes of and lessons learned from the 2011 Fukushima Daiichi accident. As discussed in the NAS Report, the NRC implemented orders following the Fukushima accident (e.g., Order EA-12-049 and Order EA-12-051). Those orders were immediately effective and do not concern license renewal. Therefore, contrary to CRAFTs claim, the NAS Report is not inherently within the scope of the license renewal safety review.

229 National Research Council. Lessons Learned from the Fukushima Nuclear Accident for Improving Safety of U.S. Nuclear Plants. Washington, DC: The National Academies Press, 2014.

230 Petition at 21.

231 Id.

232 Instead, CRAFT only submits it into the docket. Id.

233 Entergy Nuclear (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 454 (2010).

Further, CRAFT has not provided any basis for why the NRC must complete an analysis and review of the NAS study 234 or how this affects the Staffs safety review or the Staffs ability to make a decision on the DTE LRA 235 Similarly, CRAFT does not indicate how or why the LRA is deficient for not considering this report. Therefore, CRAFTs claims lack an adequate basis and fail to raise a genuine material dispute with the applicant.

3. Proposed Contention 6s Environmental Claims Lack an Adequate Basis and Do Not Raise a Genuine Material Dispute With the License Renewal Application Proposed Contention 6 is framed as an environmental contention and asserts that the Applicant's ER is deficient. For example, CRAFT claims that DTEs ER fails to provide a SAMA analysis to address the "well-known and unresolved design vulnerability of the GE Mark 1 BWR pressure suppression containment system." 236 As discussed above, the Staff recognizes that SAMAs are a Category 2 issue that must be discussed in DTEs ER. 237 However, DTEs ER contains such an analysis. 238 CRAFT does not indicate how this analysis is unreasonable, 239 incorrect, 240 or otherwise fails to meet NEPAs hard-look requirements. 241 Therefore, CRAFTs challenge to the adequacy of the ER 234 Petition at 21.

235 Id. (asserting that the above incongruous circumstances must be reconciled as a prerequisite to license renewal).

236 Id.

237 See Table B-1 (noting that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives).

238 In fact, the ER analyzes SAMAs related to LSOP and SBO. SAMA 014 addresses installation of an additional, buried off-site power source, SAMA 026 concerns burying off-sire power lines, and SAMA 016 concerns installing tornado protection of the gas turbine generator (CTG). ER at D-112, D-132 to D-133.

239 Davis-Besse, CLI-12-08, 75 NRC 393, 406 (2012) (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC 301, 323-24 (2012).

240 Id.

does not raise a genuine material dispute with the application or meet the specificity requirements in 10 C.F.R. § 2.309(f)(1)(vi).

Likewise, CRAFT does not indicate how any claimed failure to implement Order EA 049 relates to an environmental concern or a deficiency in the LRA. A cursory search of the ER reveals that EA-12-049 is mentioned more than twenty times. E.g., ER at D-10 (discussing, in the context of LSOP, "the plant response to order EA-12-049 ... includes upgrading the Acts of Nature procedure and providing equipment, additional procedural steps, and training to mitigate an extended loss of AC power."). To have Proposed Contention 6 admitted for hearing, CRAFT is required by 10 C.F.R. § 2.309(f)(1)(vi) to provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact, and to include references to specific portions of the ER that the petitioner disputes and the supporting reasons for each dispute. Because CRAFT has not done so, Proposed Contention 6 should be denied.

G. Proposed Contention 7 (Buried Pipes/Tanks and Reasonable Assurance Challenge)

CRAFTs Proposed Contention 7 states that:

The Aging Management program proposed in the DTE Electric Company (hereafter, DTE) license extension application for the Fermi 2 nuclear reactor is inadequate because (1) it does not provide for adequate inspection of all systems and components that may contain radioactively contaminated water and (2) there is no adequate monitoring to determine if and when leakage from these areas occurs. Some of these systems include underground pipes and tanks which the current aging management and inspection programs do not effectively inspect and monitor. 242 Proposed Contention 7 makes two primary claims: (1) DTEs AMP for buried pipes and tanks described in the UFSAR does not inspect and monitor underground pipes and tanks 241 Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1

& 2), CLI-03-17, 58 NRC 419, 431 (2003) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989) (alteration in original)).

242 Petition at 23.

carrying radioactive water in a manner adequate to prevent radioactive water from leaking into the groundwater and causing adverse effects to human health; 243 (2) DTEs AMP for buried pipes and tanks does not provide reasonable assurance that the effects of aging will be managed such that buried pipes within scope will perform their intended functions during the period of extended operation. 244 CRAFT also claims that the NRCs reasonable assurance license renewal standard is inadequate. 245 For the reasons discussed below, these claims are either outside the scope of license renewal or lack an adequate factual basis and should therefore be denied.

1. Claims About Leakage of Radioactive Water are Outside the Scope of This Proceeding CRAFT maintains that the AMP for buried pipes and tanks carrying radioactive water is not sufficient to detect leaks caused by corrosion. 246 CRAFT states that this claim is material to the license renewal proceeding because leakage of radioactive materials into the groundwater could significantly impact health and safety. 247 CRAFT correctly maintains that many buried pipes and tanks, including those for the fuel oil system, the station blackout diesel generation system, the fire protection system, and the water inflow piping are subject to AMPs and are among the SSCs within the scope of license renewal. 248 However, CRAFTs contention is inadmissible because the issue it raises regarding these SSCs is outside the scope of license renewal. 249 243 Id. at 23-24.

244 Id. at 24-25.

245 Id. at 25.

246 Petition at 24.

247 Id.

248 Id. at 23.

249 10 C.F.R. § 2.309(f)(1)(iii).

The scope of the license renewal safety review is narrow; it is limited to plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures and components that are subject to an evaluation of time-limited aging analyses. 250 Pursuant to 10 C.F.R. § 54.21(a)(1), for each structure or component requiring an aging management review, a license renewal applicant must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the [CLB] for the period of extended operation. 251 Section 54.21 does not require each structure and component within the scope of license renewal to be the subject of a far-reaching evaluation encompassing all aspects of the CLB. 252 While most systems have more than one function, the applicant need only demonstrate that a particular SSCs intended function will be fulfilled. Those intended functions are listed in 10 C.F.R. § 54.4(a)(1)-(3) and include matters such as maintaining the integrity of the reactor coolant pressure boundary and complying with fire protection regulations. 253 CRAFTs concerns revolve around the leakage of radioactive water into the groundwater, which is a public health issue, not a safety issue related to the intended function of 250 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &

2), CLI-01-20, 54 NRC 211, 212 (2001).

251 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 456 (2010) (emphasis added).

252 Id. at 461-62.

253 Id.; 10 C.F.R. § 54.4(a)(1)-(3); § 54.4(b). In one portion of Proposed Contention 7, CRAFT appears to maintain that the adequacy of an AMP should be judged not by whether it prevents a design-basis failure, but by whether it ensures that the CLB will be maintained during the period of extended operation. Petition at 25. However, this is an incomplete portrayal of NRC regulations. As explained above, the NRC Staff looks at whether an AMP ensures that an SSC will perform its intended function during the license renewal term. Preventing design-basis failure is among those intended functions, but an SSCs intended function is not necessarily limited to preventing design-basis failure. See § 54.4(a)(1)-

(3). On the other hand, the scope of license renewal is not so broad to encompass assuring that a plants CLB will be maintained at all times. While true that a plant must always be in compliance with its CLB, compliance is an ongoing operational issue subject to NRC regulation and inspection. Pilgrim, CLI-10-14, 71 NRC at 462-63.

an otherwise in-scope SSC. In the Pilgrim license renewal proceeding, the Commission held that a nearly identical claim was inadmissible because it raised an ongoing operational issue. 254 The Commission explained as follows:

[The petitioners] concern goes to the adequacy of the NRCs regulatory oversight process for assuring compliance with our existing radiological dose limits and other current licensing basis requirements. Through the regulatory process, which includes plant inspections, notices and guidance to licensees, and enforcement actions, the NRC takes a host of measures to improve the ability to timely detect and correct inadvertent leaks to assure compliance with public dose limits. This is an ongoing operational issue involving existing facilities regardless of whether those facilities are seeking or will seek license renewal. 255 Because the leakage of radioactive water is an ongoing operational issue unrelated to an SSCs ability to perform its intended safety function (i.e., provide pressure-retaining boundary so that sufficient flow at adequate pressure is delivered), the Commission held that such claims are outside the scope of license renewal. Therefore, CRAFTs claim is outside the scope of this proceeding and is inadmissible. 256

2. CRAFT Does Not Support Its Claim That the Buried Piping AMPs at Fermi 2 Fail To Provide Reasonable Assurance That They Will Perform Their Intended Function CRAFT challenges DTEs AMP for buried pipes and tanks, alleging that it fails to provide reasonable assurance that effects of aging will be managed such that the buried piping will continue to perform its intended function. 257 CRAFT argues that the AMP for buried piping must be enhanced with: (1) a more robust inspection system; (2) cathodic protection; (3) a base line 254 Pilgrim, CLI-10-14, 71 NRC at 461.

255 Id.

256 CRAFT also fails to explain why the NRCs ongoing regulatory oversight is insufficient to ensure that any discharge of radioactive materials into the groundwater remains within regulatory limits.

CRAFT mentions the need for adequate monitoring wells, but does not describe why the monitoring wells currently in use are ineffective. Petition at 23; see infra at n. 267. In short, CRAFT fails to provide an adequate factual basis for its claims.

257 Petition at 24-25.

inspection prior to license extension; and (4) an effective monitoring well program. 258 As explained above, a license renewal applicant is required to demonstrate that it will manage the effects of aging on an SSC such that the SSC will be able to fulfill its intended function. 259 Therefore, CRAFT raises issues within the scope of license renewal. However, CRAFTs claim is inadmissible because it lacks an adequate factual basis. 260 Specifically, CRAFT merely asserts that DTEs buried piping AMP is deficient; CRAFT does not explain why it is deficient.

CRAFT suggests enhancements, but does not explain why they are necessary or support its assertions with expert opinion. Moreover, some of the enhancements suggested by CRAFT are already part of the buried piping AMP.

DTE devotes a section of its UFSAR to the management of buried and underground pipes during the period of extended operation. 261 The UFSAR describes the buried piping program as follows:

The Buried and Underground Piping Program is a new program that will manage the effects of aging on the external surfaces of buried and underground piping within the scope of license renewal. The program will manage aging effects of loss of material and cracking for the external surfaces of buried and underground piping fabricated of aluminum, carbon steel, gray cast iron, and stainless steel through preventive and mitigative measures (e.g., coatings, backfill quality, and cathodic protection) and periodic inspection activities during opportunistic or directed excavations. 262 The UFSAR explains that Fermi 2 utilizes a cathodic protection system, which is inspected and tested annually. 263 The USFAR further provides that DTE will periodically test soil for corrosivity, and that its program is consistent with Revision-2 of the Generic Aging 258 Id. at 25.

259 10 C.F.R. § 54.21(a)(1).

260 10 C.F.R. § 2.309(f)(1)(vi).

261 USFAR Section B.1.4, Buried and Underground Piping, at B-25.

262 Id.

263 Id. at B-25 and B-27.

Lessons Learned (GALL) report. 264 Finally, the UFSAR details several inspections and tests examining the coating on buried pipes. 265 None of CRAFTs claims meet the specificity requirements for admission. First, CRAFT desires a more robust inspection system for buried pipes, but does not explain why the current inspection system is deficient or what a more robust inspection system would entail. Second, CRAFT wants buried pipes to have cathodic protection; yet, as noted above, cathodic protection is already being utilized. Third, CRAFT asks for a base-line inspection prior to relicensing, but does not explain why the base-line inspection that DTE already performed and states it will perform is insufficient. As explained in the UFSAR, DTE already examined several sections of buried piping for corrosion and degradation. 266 CRAFT provides no specific information indicating that what DTE has done and plans to do is insufficient. Last, CRAFT asks for an effective monitoring well program. However, CRAFT does not explain what an effective program would entail, and how it would differ from the monitoring well program already in place. 267 Thus, CRAFTs claims are the type of bare assertions that the Commission has found do not raise a genuine material dispute with the application.

3. CRAFTs Challenge to the NRCs Reasonable Assurance Standard is Inadmissible To issue a renewed license, the NRC must find reasonable assurance that the effects of aging will be managed such that activities authorized by the renewed license will continue to 264 Id. at B-25.

265 Id. at B B-27.

266 Id.

267 The ER states that 93 monitoring wells are currently on-site and are used in a variety of monitoring and assessment programs, including the NEI groundwater protection program and the radiological environmental monitoring program among others. ER at 3-66. Petitioner does not explain how these wells should be utilized to ensure that buried pipes fulfill their intended function during the period of extended operations.

be conducted in accord with the plants CLB. 268 CRAFT argues that because the NRC has the burden of proving reasonable assurance by a clear preponderance of the evidence, the Commission must better define reasonable assurance. 269 Otherwise, CRAFT argues that there is no way for the NRC to determine that reasonable assurance has been met by a clear preponderance of the evidence. 270 CRAFTs claim is not germane to this proceeding. If CRAFT desires the Commission to define reasonable assurance, it may file a petition for rulemaking pursuant to 10 C.F.R.

§ 2.802. However, the Commission held in the Pilgrim proceeding that reasonable assurance need not be defined. 271 The Commission explained that there is no applicable statutory or regulatory ground to require establishing a particular level of assurance for reasonable assurance. 272 The Commission stated as follows:

Like the Atomic Energy Acts standard of adequate protection, the reasonable assurance determination need not be reduced to a mechanical verbal formula or set of objective standards, but may be given content through case-by-case applications of the Commissions technical judgment, in light of all relevant information. 273 CRAFT asks for a definition of reasonable assurance, but the Commission has already declined to define it further.

H. Proposed Contention 8 (SAMA Claims: EPZ, Meteorology, MACCS2, and ETE)

CRAFTs Proposed Contention 8 states:

The Applicants Fermi, Unit 2 LRA Environmental Report (ER) and SAMA analysis are materially deficient in that the input data 268 See 10 C.F.R. § 54.29(a) & (a)(1)-(2).

269 Petition at 25.

270 Id.

271 Pilgrim, CLI-10-14, 71 NRC at 465-66.

272 Id. at 465.

273 Id. at 465-66.

concerning evacuation time estimates (ETE) and economic consequences are incorrect, resulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for under NEPA. 274 Proposed Contention 8 raises several challenges to DTEs SAMA analysis, including challenges to evacuation time estimates, the economic consequence modeling, the meteorological modeling, and the use of the MACCS2 code. 275 For the reasons discussed below, CRAFTs Proposed Contention 8 fails to raise an issue within the scope of this proceeding or material to the findings that the NRC must make, and thus, is inadmissible.

1. CRAFT Does Not Raise An Admissible SAMA Claim As discussed above, pursuant to 10 C.F.R. § 51.53(c)(3)(ii)(L), DTEs ER must provide a consideration of alternatives to mitigate severe accidents. DTEs ER contains such an analysis. 276 CRAFTs Proposed Contention 8s primary challenge to the SAMA analysis is that the Emergency Planning Zone (EPZ) for Fermi should be expanded from a 10-mile radius to a 50-mile radius. 277 Based on this asserted expansion, CRAFT argues that (1) the meteorological model used by the MACCS2 code is inappropriate, (2) the 1982 CRAC2 studys results should be substituted for the analysis provide by Fermi, (3) the evacuation time estimates are incorrect, and (4) the economic consequences are underestimated. 278 For the reasons discussed below, CRAFT has failed to raise an issue within the scope of license renewal, failed to support its 274 Petition at 25.

275 Id. at 25-27.

276 Mitigation alternatives or SAMAs refer to safety enhancements such as a new hardware item or procedure intended to reduce the risk of severe accidents. Pilgrim, CLI-10-11, 71 NRC at 290-91.

The SAMA review ensures that any plant changes - in hardware, procedures, or training - that have a potential for significantly improving severe accident safety performance are identified and assessed.

Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 17, 56 NRC 1, 5 (2002).

277 Petition at 26.

278 Petition at 26-27

contention with adequate facts or expert opinion, or tied its assertions to any deficiency in DTEs ER. Therefore, CRAFTs Proposed Contention 8 should be denied for failing to satisfy 10 C.F.R. § 2.309(f)(iii), (iv), and (v).

a. CRAFTs Challenge to the Size of the EPZ is Outside the Limited Scope of this Proceeding CRAFTs challenge to DTEs SAMA analysis is premised on and inseparable from its arguments that the EPZ should be expanded from a 10-mile radius to a 50-mile radius. 279 For example, CRAFT states:

[A] variable trajectory model and larger EPZ go hand-in-hand.

Thus, while the Applicants SAMA analysis assumes a 10-mile EPZ probabilistic model, the Petitioner contends that a 50-mile EPZ would be more realistic and appropriate starting point Fermi, Unit 2s location . 280 Similarly, CRAFT argues that the ETE are unrealistically low because they rely on a 10-mile EPZ. 281 CRAFTs emergency planning zone arguments are outside the scope of this license renewal proceeding. The Commission has concluded that the adequacy of existing emergency preparedness plans need not be considered anew as part of issuing a renewed operating license. 282 Rather, the adequacy of emergency planning including the size of the EPZ is a safety issue that is evaluated by the Commission on an ongoing basis as part of its oversight of operating reactors under 10 C.F.R. Part 50. 283 279 Petition at 26.

280 Id.

281 Id.

282 Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,967 (Dec. 13, 1991) (1991 Statement of Consideration).

283 The requirements for maintaining, implementing, and revising emergency preparedness programs for licensed nuclear power plants are governed by the NRCs regulations in 10 C.F.R. Part 50.

See 10 C.F.R. §§ 50.47, 50.54(q), 50.54(s) through (u), and 10 C.F.R. Part 50, Appendix E.

In establishing the requirements for license renewal, the Commission explained that: Through its standards and required exercises, the Commission ensures that existing plans are adequate throughout the life of any plant even in the face of changing demographics and other site-related factors. Thus, these drills, performance criteria, and independent evaluations provide a process to ensure continued adequacy of emergency preparedness in light of changes in site characteristics that may occur during the term of the existing operating license, such as transportation systems and demographics. There is no need for a licensing review of emergency planning issues in the context of license renewal. 284 Thus, to the extent that CRAFT is challenging the adequacy of the 10-mile EPZ, it is beyond the scope of this limited proceeding and inadmissible. Similarly, to the extent that CRAFTs other challenges are inseparably linked to expansion of the EPZ, they are also inadmissible.

b. CRAFTs Challenge to the MACCS2 Codes Embedded Meteorological Model Fails to Raise a Material Issue CRAFT asserts that a variable trajectory plume distribution model is more realistic and appropriate for the Fermi site than a straight-line Gaussian model would be due to the Fermi sites lakeshore and riverside location . 285 CRAFTs only support for this assertion is a declaration provided by Dr. Bruce Egan in support of the State of New Yorks petition to intervene in the Indian Point license renewal proceeding. 286 However, CRAFT fails to raise a material issue.

As expected from a declaration created nearly 7-years prior to the DTEs SAMA analysis submission, Dr. Egans declaration does not discuss the Fermi 2 site, its meteorology, or DTEs 284 1991 Statement of Consideration, 56 Fed. Reg. at 64,966.

285 Petition at 26. CRAFT suggests that the Gaussian plume model should be replaced with Raddose-V. Raddose-V is used primarily as an emergency planning tool to help make decisions regarding evacuations and sheltering during an actual emergency. The Commission has emphasized that in highly technical analyses like SAMA there is always a different model or input that could be used but the issue for litigation is whether the analysis provided is wholly unreasonable. Davis-Besse, CLI 08, 75 NRC at 398.

286 Petition at 26 (citing Declaration of Bruce A. Egan, Sc.D. (November 27, 2007) (ADAMS Acc.

No. ML073400193)).

SAMA analysis. CRAFT provides no explanation, no facts, and no expert opinion linking Dr.

Egans declaration or its conclusory assertions regarding the meteorology to the Fermi 2 site or SAMA analysis. The Commission has recently addressed contention admissibility with respect to challenges to the Gaussian plume model used by the MACCS2 code. In Davis-Besse, the Commission reversed the Boards decision to admit a similarly unsupported challenge to Davis-Besses SAMA analysis. 287 The Commission emphasized that At the contention admissibility stage, it is Petitioners burden to come forward with factual or expert support for their argument that could have altered the SAMA analysis to show significantly greater accident consequences and, as a result, significantly different cost-benefit results. 288 In particular, the Commission emphasized the importance of petitioners providing factual and expert support for the contention that is relevant to the actual plants location. The Commission stated:

We recognize that the technical nature of SAMA computer modeling issues may make for some difficult decisions for the Board at the contention admissibility stage. But here, we can find no basis on which to initiate an adjudicatory proceeding.

Petitioners provided neither factual support specific to the [plants]

location, nor expert opinion to indicate that the plume model used for the analysis overlooked either notable lake effects or other meteorological phenomena that may have significantly altered the Davis-Besse SAMA analysis results. 289 The Commission determined that petitioners unsupported challenge in Davis-Besse was far too generalized to show a genuine material dispute with the [plants] SAMA analysis. 290 287 Davis-Besse, CLI-12-08, 75 NRC at 417.

288 Id. at 407 and 417. In Seabrook, the Commission deferred to the Boards decision to allow a challenge to the meteorological modeling because the factual support relied on by petitioners analyzed the New England coast, where Seabrook is located. Thus, petitioner, there, provided some minimal connection between its assertions and the plants analysis.

289 Davis-Besse, CLI-12-08, 75 NRC at 416.

290 Id. at 417.

CRAFTs assertions regarding the Gaussian plume model for Fermi 2s SAMA analysis contain even less factual and expert support than the contentions filed in Davis-Besse. As such, this portion of Proposed Contention 8 should be rejected as a generalized attack on the SAMA analysis that does not raise a genuine dispute.

c. CRAFTs Challenge to the Economic Consequences is Not Adequately Supported by Facts or Expert Opinion CRAFT asserts that Fermi 2s SAMA analysis of economic consequences is unreasonable because MACCS and MACCS2 are not a proper diagnostic tool. 291 CRAFT bases this claim on the declaration of David Chanin in the Pilgrim license renewal proceeding. 292 CRAFT proposes that the proper tool for economic consequences can be found in the 1982 CRAC2 report. 293 Neither claim supports an admissible contention.

i. CRAFTs Economic Consequences Challenge Fails to Raise a Material Issue The only support for CRAFTs assertion that the MACCS2 code is inappropriate for evaluating economic consequences is a thin declaration by David Chanin. 294 Mr. Chanins declaration consists of four substantive paragraphs. 295 The sole impact of the declaration is for Mr. Chanin to affirm that, at the time of the declaration, he still believed his responses to questions on a MACCS2 code user support forum are correct. 296 It is clear that Mr. Chanins declaration does not specifically address Fermi 2s SAMA analysis or economic consequence 291 Petition at 27.

292 Id.

293 Id.

294 Id.

295 Chanin Declaration ML071840568 at 208 (May 27, 2007) (Declaration part of larger document).

296 Id.

conclusions. 297 Instead, Mr. Chanins comments were addressed to earlier versions of the MACCS2 code than the version used in Fermi 2s SAMA. In fact, Mr. Chanin, in response to one request, stated that he had thought about ways to improve the performance of the economic model but had not personally found a method he thought would be acceptable. 298 Mr.

Chanin did not review Fermi 2s method and CRAFT has provided no factual support or expert opinion specifically identifying any error with the economic consequences as calculated by DTE.

As the Commission has explained, simply claiming that another input or model should be used is not sufficient to raise a litigable SAMA claim. Unless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety enhancements are cost-effective to implement. 299 CRAFT has not done so or indicated how the Fermi 2 SAMA analysis is unreasonable. 300 Instead, CRAFTs contention amounts to unsupported speculation that is insufficient to raise an admissible issue suitable for resolution in litigation. Thus, this portion of Contention 8 is inadmissible.

297 Id.

298 Id. at 213.

299 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 75 NRC 39, 57 (2012).

300 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 75 NRC 39, 57-58 (2012)(It always will be possible to conceive of yet another input or methodology that could have been used in the SAMA computer modeling, and many different inputs and approaches may all be reasonable choices. The SAMA analysis is not a safety review performed under the Atomic Energy Act. The mitigation measures examined are supplemental to those we already require under our safety regulations for reasonable assurance of safe operation.).

ii. The 1982 Sandia Siting Study is Not Suitable for a NEPA Analysis CRAFT asserts that Sandia Siting Study 301 supports its claims regarding underestimated economic consequences. 302 CRAFT appears to argue that if the numbers developed in the Sandia Siting Study 303 were scaled from 1982 dollars to current dollars, they would be appropriate for use in the SAMA analysis. 304 However, CRAFT does not identify any specific portion of the economic consequences analysis as containing an error or providing any indication of how the analysis would change if corrected. Thus, this challenge, like the meteorological challenge, represents an unspecified generalized complaint regarding the MACCS2 code. These generalized complaints cannot support an admissible contention and are unsuitable for resolution by litigation. 305 Further, the Sandia Siting Study is not suitable for use in a SAMA analysis. The study states that consequence magnitudes calculated using these source terms may be significantly overestimated because the largest source terms neglected or underestimated several depletion mechanisms, which may operate efficiently within the primary loop or the containment. 306 The studys selection of source terms along with other assumptions and methods resulted in a worst-case type of analysis that does not fairly accomplish the purpose of 301 Sandia National Laboratories, Technical Guidance for Siting Criteria Development, (Sandia Siting Study) (1982) (ADAMS Accession No. ML12090A788). The Petitions reference to Sandia National Laboratory's CRAC-2 Report, "Calculation of Reactor Accident Consequences," (1982), Petition at 27, is not entirely clear and the document was not provided.

302 Petition at 27.

303 It is important to note that CRAFTs reliance on the Sandia Siting Study contradicts its supposed complaints regarding the use of Gaussian plume model in the MACCS2 code. The CRAC2 code used to produce the 1982 study relied on a meteorological model substantially similar to Gaussian plume model implemented in Fermi 2s analysis.

304 Petition at 27.

305 Davis-Besse, CLI-12-08, 75 NRC at 417.

306 Sandia Siting Study at 1-3.

a SAMA analysis (i.e., to provide a best estimate of severe accidents under unknown conditions at unknown times in the future). The Commission has explained that [a] SAMA analysis is neither a worst-case nor a best-case impacts analysis. 307 Moreover, NEPA does not require particular results 308 or use [of] the best scientific methodology, and NEPA should be construed in light of reason if it is not to demand virtually infinite study and resources. 309 The Commission has cautioned that [o]ur boards do not sit to flyspeck environmental documents or to add details or nuances. 310 CRAFT has not identified what, if anything, is wrong with Fermi 2s SAMA analysis. As the Commission has stressed, it is not sufficient for a petitioner challenging a SAMA analysis to simply assert a deficiency or suggest different inputs or alternative models; 311 instead, a petitioner must point with specificity to specific portions of the analysis as being entirely unreasonable. 312 Because CRAFT has not done so, this portion of Proposed Contention 8 is inadmissible.

307 Pilgrim, CLI-10-11, 71 NRC at 38.

308 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989).

309 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station), CLI-10-11, 71 NRC 287, 315 (2010).

310 Exelon Generation Co, LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005) (citing Systems Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005)(footnote omitted)).

311 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit1), CLI-12-08, 75 NRC 393, 406 ([a] contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted.).

312 Id. (stating that intervenors must show why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate.).

d. CRAFTs Challenge of the ETE is Not Material To the Findings That NRC Must Make in This Proceeding CRAFT also challenges the evacuation time estimates (ETE) used in Fermi 2s SAMA analysis. 313 Specifically, CRAFT asserts that the ETE do not account for (1) the larger required EPZ, (2) larger shadow evacuations, (3) a required evacuation for everyone within 10 miles of the plant regardless of potential radiation exposure, (4) serious delays in the evacuation. 314 As discussed above, CRAFTs challenge to the size of the EPZ is outside the scope of this limited license renewal proceeding. To the extent that CRAFT argues that the ETE are incorrect because the EPZ should be larger, those issues are also outside the scope of this proceeding.

For each of the other issues, CRAFT has failed to adequately support with either facts or expert opinion its claims regarding the ETEs. Thus, this portion of Proposed Contention 8 should be denied.

i. Fermi Conducted a Site Specific Study of ETEs A site-specific analysis was conducted to determine appropriate ETEs for Fermi 2. 315 The study concluded that the average network evacuation time would be 12.8 m/s, and for an additional level of conservatism, the SAMA analysis base case used 10 m/s. 316 CRAFT does not indicate where Fermi 2s analysis erred in developing these site-specific numbers. Thus, like its other challenges, CRAFTs challenges to this SAMA input are inadmissible because CRAFT does not indicate why the input is incorrect, identify any errors in the analysis, or indicate why the SAMA is unreasonable.

313 Petition at 26.

314 Id.

315 Fermi ER at D-97.

316 Id.

ii. Fermi 2 Conducted a Sensitivity Analysis on Evacuation Speed and Portion of the Population Evacuating In addition to conservatively estimating the evacuation speed, DTE also conducted two sensitivity studies on evacuation parameters for Fermi 2 that are not acknowledged in CRAFTs Petition. For evacuation speed, Fermi 2 varied the evacuation speed by 50% of the base case, analyzing both 5 m/s and 15 m/s. 317 For this 50% increase in evacuation speed, the dose risk changed by slightly more than 1%. 318 This 50% variation in evacuation speed fully accounts for the potential of construction and snow delays. Fermi 2 also varied the portion of the population evacuating. The sensitivity case compared evacuations based 90% and 99.5% in relation to the base assumption of 95% of the population. For this maximum 5 percent variation, the dose risk changed by less than 0.3%. In other words, the SAMA analysis provided by DTE is relatively insensitive to changes in the ETE. CRAFT offers only a general disagreement with the inputs used in the Fermi 2 SAMA. CRAFT has not indicated how the specific analysis performed by DTE erred. Thus, this portion of Proposed Contention 8 is also inadmissible.

For the reasons discussed above, CRAFTs Proposed Contention 8 consists of generalized challenges to the SAMA analysis, raises issues outside the scope of license renewal, and is unsupported by adequate facts or expert opinion. Thus, Proposed Contention 8 is inadmissible in its entirety for failing to meet 10 C.F.R. § 2.309(f)(iii), (iv), and (v).

I. Proposed Contention 9 (Quality Assurance Claims Based on UCS Report)

CRAFTs Proposed Contention 9 states:

The Petitioner requests a public hearing 319 to consider the following Contention pertaining to a fundamental and egregious failure of Safety-Related Quality 317 Fermi ER at D-97.

318 Id. at D-100.

319 In particular, CRAFT requests a public hearing to seek an ASLB ruling and recommendation demanding a comprehensive reassessment modeled according to the principles of 10 C.F.R. § 50.59.).

Petition at 29.

Assurance which occurred during a 20-year period from 1986 to 2006 at the Fermi Nuclear Power Plant, Unit 2 and which remains unresolved to this day in the eye of the public, thus warranting a fresh, hard look as part of any credible NEPA Review or Safety Review Process associated with the Fermi, Unit 2 LRA; and, therefore, the Petitioner respectfully argues that this Item is well within the Scope of Consideration for the LRA Review and is Material to the proceeding. 320 CRAFTs Proposed Contention 9 is labeled as an environmental contention. 321 However, the contention raises both environmental 322 and safety issues. 323 For the reasons discussed below, CRAFTs Proposed Contention 9 does not raise an admissible safety or environmental license renewal claim. Therefore, CRAFTs Contention 9 should be denied.

1. Quality Assurance Claims Raise Current Operating Issues Outside the Scope of License Renewal While Proposed Contention 9 is labeled an environmental contention, it concerns quality assurance, which is a safety matter. Quality Assurance criteria for nuclear power plants are provided in 10 C.F.R. Pt. 50, Appendix B. Appendix B provides that Quality Assurance:

comprises all those planned and systematic actions necessary to provide adequate confidence that a structure, system, or component will perform satisfactorily in service.

QA includes quality control, which comprises those quality assurance actions related to the physical characteristics of a material, structure, component, or system which provide a means to control the quality of the material, structure, component, or system to predetermined requirements.

CRAFT claims that there is a fundamental and egregious failure of Safety-Related Quality Assurance which occurred during a 20-year-period from 1986 to 2006 at [Fermi 2] and which remains unresolved to this day. 324 In support of this claim, CRAFT cites to a Union of 320 Petition at 28.

321 Id. (environmental contention 9).

322 Id. (asserting that a NEPA hard look must be done given quality assurance concerns).

323 See, e.g., Petition at 28 (asserting that there is a fundamental and egregious failure of Safety-Related Quality Assurance).

324 Id.

Concerned Scientist Report 325 and asserts that this report documents an inexcusable fiasco involving [DTE] and the U.S. NRC in tandem 326 related to DTE using the wrong answer key when testing the emergency diesel generator protection safety system. 327 Given this fiasco, CRAFT claims there is gross negligence, incompetence, and pervasive mismanagement at DTE. 328 CRAFT states that the root-cause of this fiasco remains unresolved and continues to constitute a systemic failure of regulatory oversight. 329 CRAFTs claims amount to a challenge that Fermi 2 is unsafe to operate currently 330 and/or during the period of extended operation based on past operational experience. The Commission has found that such safety culture contentions are outside the scope of license renewal, as they impermissibly raise issues that are relevant to current plant operation and are being addressed by the NRC's established and ongoing oversight activities. 331 Thus, these safety culture claims, like claims raising current safety issues, are inadmissible.

As the Commission has noted license renewal should not include a new, broad-scoped inquiry into compliance that is separate from and parallel to [our] ongoing compliance oversight 325 Futility at the Utility: How Use of the Wrong Answer Key for Safety Tests Went Undetected for 20 Years at Fermi Unit 2, David Lochbaum, Director, Nuclear Safety Project, Union of Concerned Scientists (USC), Feb. 2007. Petition at 29.

326 Petition at 29.

327 Id.

328 Id.

329 Id.

330 Current safety issues are beyond the scope of a license renewal proceeding. See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-12-27 76 NRC 583, 609 (2012)

(citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10 (2001)).

331 See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 484 (2010); see also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 433-435 (2011); Davis-Besse, LBP-12-27, 76 NRC at 610-611.

activity. 332 The license renewal rule was developed to exclude from review conceptual issues such as operational history, quality assurance, quality control, management competence, and human factors, in favor of a safety-related review focusing on maintaining particular functions of certain physical systems, structures, and components. 333 The Commission has found that litigation of the safety culture contention in license renewal proceedings would necessitate just such an analysis of the conceptual issues that the Commission had clearly excluded from review. 334 Thus, contrary to CRAFTs claim, the alleged poor management 335 oversight of Fermi 2 by DTE336 does not fall within the scope of this license renewal proceeding. 337 To the extent CRAFT believes there are existing operational issues at Fermi 2 that warrant immediate action, its remedy is to file a § 2.206 petition.

Proposed Contention 9 is also outside the scope of this proceeding to the extent it asserts that the Staffs regulation of Fermi 2 is deficient. 338 The Staff's performance and official conduct is to be accorded a presumption of legitimacy. 339 "The NRC has not, and will not, litigate claims about the adequacy of the Staffs safety review in licensing adjudications. 340 To 332 Prairie Island, CLI-10-27, 72 NRC at 490.

333 Diablo Canyon, CLI-11-11, 74 NRC at 435 (internal cites omitted, emphasis removed)

(emphasis added).

334 Prairie Island, CLI-10-27, 72 NRC at 491.

335 The Staff notes that both licensees and the Staff are afforded a presumption of regularity.

336 Petition at 29 (stating that the contemptible executives and officers of DTE Electric Co. will surely shirk their individual and corporate responsibility).

337 Id. at 28 (asserting that Contention is well within the scope of license renewal).

338 Id. at 29.

339 See All Operating Boiling Water Reactor Licensees with Mark I and Mark II Containments (Docket Nos. EA-12-050 and EA-12-051), LBP-12-14, 76 NRC 1, 7 (2012) (quoting United States Dep't of State v. Ray, 502 U.S. 164, 179 (1991)).

340 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 (2008) (citing Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14,

the extent CRAFT believes there are existing operational issues at Fermi 2 that warrant immediate action, its remedy is to file a § 2.206 petition. 341

2. Contention 9 Does Not Indicate How Quality Assurance Relates to NEPA or a Deficiency in the LRA Proposed Contention 9 is framed as an environmental contention and asserts that faulty quality assurance remains unresolved and warrants a fresh, hard-look under NEPA. 342 However, CRAFT does not indicate how any claimed quality assurance failure relates to an environmental concern or a deficiency in the LRA. In fact, CRAFT does not cite the ER at all in its proposed contention or point to any portion of the LRA. Instead, CRAFT offers only general speculation about undetected process flaws and problems. The Commission has made clear that contentions based on bare assertions and speculation will not be admitted. 343 Therefore, Contention 9 is inadmissible for failing to provide sufficient supporting information. 344 J. Proposed Contention 10 (Quality Assurance Claims Based on Violation)

Like Proposed Contention 9, Proposed Contention 10 is based on a claim that there is faulty quality assurance at Fermi 2. Specifically, Proposed Contention 10 states:

The Petitioners forward-looking, long-term confidence in the Applicant/Licensee has been severely compromised by a recent incident at the Fermi Nuclear Power Plant, Unit 2, which resulted in the U.S. NRC putting DTE Electric Co. on probation for significantly violating the NRCs security requirements at a Greater than Green level, thus initiating an escalated enforcement action. The regulatory compliance violation happened during a February 2014 inspection that could have resulted in unauthorized and unmonitored access to a protected area, according to an NRC report. As a result of the investigation and finding, Fermi, Unit 2 will move down in the plant ranking system from the licensee response column to the regulatory response column for the rest of this year (2014). The 2004) (citing Curators of the University of Missouri, CLI-95-1, 41 NRC at 121-22, and prior agency rulings holding same)).

341 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 11, 74 NRC 437 (2011).

342 Petition at 28.

343 See, e.g., Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

344 10 C.F.R. § 2.309(f)(1)(v).

irony is that the probationary period is ongoing concurrently, even as DTE pushes forward with the Fermi, Unit 2 LRA as well as the Fermi, Unit 3 COLA. 345 Thus, CRAFT points to an NRC enforcement action 346 and claims that this violation represents a fundamental Quality Assurance deficiency reflected in the Applicant/Licensees incomplete License Renewal Application. 347 CRAFT claims that this issue deserves further analysis and reevaluation at a higher level of scrutiny than is currently being applied by the NRC Staff. 348 Thus, CRAFT requests that the Board assert and effectively promote a safety culture at the NRC. 349 Proposed Contention 10 should be dismissed as it raises safety issues that are outside the scope of this license renewal. CRAFTs claims amount to a challenge that Fermi 2 is unsafe to operate currently 350 and/or during the period of extended operation based on past operational experience. The Commission has found that such safety culture contentions are outside the scope of license renewal, as they impermissibly raise issues that are relevant to current plant operation and are being addressed by the NRC's established and ongoing oversight activities. 351 Thus, these safety culture claims, like claims raising current safety issues, are inadmissible.

345 Petition at 30.

346 See EA-14-022: Final Significance Determination of a Greater than Green Finding and Notice of Violation; NRC Inspection Report No. 05000341.2014407; Fermi Power Plant Unit 2 (Cover Letter Only

& Encl. 1) (ADAMS Accession No. ML14150A041). Petition at 30.

347 Petition at 30.

348 Id.

349 Id.

350 Current safety issues are beyond the scope of a license renewal proceeding. See Davis-Besse, LBP-12-27 76 NRC at 609 (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10 (2001)).

351 See Prairie Island, CLI-10-27, 72 NRC at 484; see also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 433-435 (2011; Davis-Besse, LBP-12-27, 76 NRC at 610-611.

Proposed Contention 10 is also outside the scope of this proceeding to the extent it asserts that the Staffs regulation of Fermi 2 is deficient. 352 As discussed above, the Staff's performance and official conduct is to be accorded a presumption of legitimacy. 353 "The NRC has not, and will not, litigate claims about the adequacy of the Staffs safety review in licensing adjudications. 354 The NRCs mission as an independent agency is to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment. CRAFTs suggestions that the Staff is not doing enough to do so are not litigable in this proceeding.

Proposed Contention 10 also does not raise an admissible environmental claim. CRAFT claims that an open item related to the enforcement action requires a fresh, hard look. 355 But CRAFT does not indicate how closing out this open item, or any claimed quality assurance failure, relates to an environmental concern or a deficiency in the LRA. In fact, CRAFT does not cite the ER at all in its proposed contention or point to any portion of the LRA. Instead, CRAFT offers only general speculation that somehow DTEs license renewal application does not comply with NEPA. 356 The Commission has made clear that contentions based on bare 352 Petition at 30.

353 See All Operating Boiling Water Reactor Licensees with Mark I and Mark II Containments (Docket Nos. EA-12-050 and EA-12-051), LBP-12-14, 76 NRC 1, 8 (2012) (quoting United States Dep't of State v. Ray, 502 U.S. 164, 179 (1991)).

354 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 (2008) (citing Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004) (citing Curators of the University of Missouri, CLI-95-1, 41 NRC at 121-22, and prior agency rulings holding same)).

355 Petition at 30.

356 The Petitioner respectfully calls upon the ASLBto challenge those who advocate for less than the highest standard ofenvironmental compliance. Id.

assertions and speculation will not be admitted. 357 Therefore, Proposed Contention 10 is inadmissible for failing to provide sufficient supporting information. 358 K. Proposed Contention 11 (Public Health Impacts and Mitigation Alternatives)

CRAFTs Proposed Contention 11 states:

The Petitioner contends that the Applicant's ER fails to consider new and updated public health data, unavailable at the time of issuance of the original Operating License; further, the Petitioner contends that the Applicant fails to adequately consider Mitigation Alternatives which could significantly reduce the alleged significant environmental and public health impact of Fermi, Unit 2 operations. Therefore, the Petitioner invokes NEPA requirements and contends that further analysis is called for. 359 The thrust of CRAFTs argument is that the ER does not adequately analyze new information regarding the radiological impacts on public health from continued operation of Fermi 2 or consider mitigation alternatives. CRAFT supports the contention with articles and studies that it claims to demonstrate the adverse public health effects of nuclear power plants. 360 Nonetheless, CRAFTs claims are inadmissible because they challenge a generically determined Category 1 issue and are therefore outside the scope of this proceeding. 361 As explained above, the Commission has limited contentions raising environmental issues in license renewal proceedings to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis. 362 Generic findings, codified in NRC regulations as Category 1 issues, are not subject to challenge absent a waiver of their 357 See, e.g., Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

358 10 C.F.R. § 2.309(f)(1)(v).

359 Petition at 30.

360 Id. at 26-27.

361 10 C.F.R. § 2.309(f)(1)(iii).

362 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 11 (2001).

application in a particular adjudicatory proceeding. 363 A claim of new and significant information is not enough to bring generic Commission determinations within the scope of a license renewal proceeding. 364 Adjudicating Category 1 issues site-by-site based merely on a claim of new and significant information would defeat the purpose of resolving generic issues in a GEIS. 365 Instead, a waiver must be submitted and granted. 366 CRAFT has not submitted or been granted a waiver. Instead, CRAFT cites a report by Joseph J. Mangano submitted to the NRC which claims dramatic increases in cancer and other mortalities in Monroe County, where Fermi 2 is located, since the plant began operations several decades ago. 367 CRAFT also asserts that other studies around the world have found elevated incidences of cancer associated with proximity to nuclear power plants. 368 Finally, CRAFT notes that Fermi 2 emits radioactive isotopes during its normal operations and that in 1993, it discharged two million gallons of slightly radioactive water into Lake Erie. 369 However, none of these arguments are within scope. Radiation exposure to the public is a generically determined Category 1 issue that cannot be challenged in a license renewal proceeding. 370 Petitioners assertion that it has new and updated public health data is not a license to 363 See 10 C.F.R. § 2.335(a); Turkey Point, CLI-01-17, 54 NRC at 16.

364 Entergy Nuclear (Vermont Yankee Nuclear Power Station) CLI-07-03, 65 NRC 13, 21 (2007),

affd, Massachusetts v. NRC, 522 F.3d 115, 120-21 (1st Cir. 2008).

365 Vermont Yankee, CLI-07-03, 65 NRC at 21.

366 Id.

367 Petition at 31.

368 Id. at 32.

369 Id. at 31-32.

370 10 C.F.R. Part 51 Appx. B, Human Health (stating that the effects of radiation exposure to the public during the period of extended operation is a Category 1 issue, and that those effects, which will be small are expected to continue at current levels, and would be well below regulatory limits.).

challenge the Commissions generic determination absent a waiver. 371 CRAFT has not sought a waiver or discussed in its motion how its claims would meet the NRCs stringent waiver standards. 372 For the same reason, CRAFTs claim that the ER does not consider unspecified mitigation alternatives 373 is inadmissible. Aside from failing to explain what mitigation alternatives DTE should have considered, CRAFT cannot challenge the ERs analysis of public radiation exposure because it is a Category 1 issue.

Additionally, CRAFT appears to raise issues related to Fermi 2s discharge of tritium into the groundwater. 374 For example, CRAFT asserts that Fermi 2 emits more tritium into the groundwater than many other plants. 375 To the extent that CRAFT is alleging that the ER does not sufficiently analyze the effects of tritium on groundwater resources, its claim does not impermissibly challenge NRC regulations, because the effects of releasing radionuclides into groundwater is a Category 2 issue that must be addressed in the ER. 376 However, CRAFT does not explain why the ERs analysis is insufficient or how it should be improved. Therefore, CRAFTs claim lacks an adequate factual basis and fails to raise a material dispute with the ER. 377 371 Vermont Yankee, CLI-07-03, 65 NRC at 21.

372 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60.

373 Petition at 30.

374 Id. at 31 375 Id.

376 See 10 C.F.R. Part 51, Appx. B, Table B-1, Groundwater Resources.

377 10 C.F.R. § 2.309(f)(1)(vi). In the ER, DTE acknowledges that there have been inadvertent releases of radioactive materials into the groundwater. ER at 4-23. Nonetheless, DTE concludes that low-level concentrations of tritium detected were below the REMP [radiological environmental monitoring program] lower limit of detection (LLD) of 2,000 picocuries per liter (pCi/L), and less than one-tenth of EPA's drinking water limit of 20,000 pCi/L. Id.

L. Proposed Contention 12 (Thermal Discharges and Algal Blooms)

CRAFTs Proposed Contention 12 concerns the ERs treatment of thermal discharges from Fermi 2. CRAFT asserts that the ER fails to analyze the extent that Fermi 2s operations contribute to the growth of toxic algae blooms. 378 Related to its allegations concerning algal blooms, CRAFT also appears to challenge the extent of Fermi 2s thermal discharges in general. 379 The Staff opposes the admission of Contention 12 because it lacks an adequate factual basis. 380 To the extent that CRAFT challenges Fermi 2s thermal discharges, that issue is outside the scope of this proceeding. 381 DTE discusses toxic algal blooms in the ER in the context of the cumulative environmental impacts of Fermi 3s construction and the continued operation of Fermi 2 into the license renewal period. 382 DTE reports that no algal blooms of Lyngbya or other nuisance species have been reported at the site due to Fermi 2's operation and associated NPDES-permitted wastewater discharges. 383 DTE concludes that the operation of Fermi 2 and the proposed construction and operation of Fermi 3 is not expected to increase the potential for algal blooms in the vicinity of the site or increase the potential for establishment or survival of nuisance algal species in Lake Erie. 384 CRAFT does not explain, with any degree of specificity, why DTEs analysis is insufficient.

378 Petition at 32-33.

379 Id.

380 10 C.F.R. § 2.309(f)(1)(v)-(vi).

381 10 C.F.R. § 2.309(f)(1)(iii).

382 ER at 4-23.

383 Id.

384 Id.

CRAFT maintains that the exact and precise extent to which Fermi 2 thermal discharges produce toxic algal blooms is unknown and unanalyzed. In making this claim, CRAFT appears to allege that the ER should have further considered the role of Fermi 2s operations in the growth of these algal blooms. However, CRAFT provides no evidence to support this contention. CRAFT states that thermal pollution from nearby power plants is a known contributing factor to the conditions which produce toxic algal blooms and consequent hypoxic dead zones, 385 but does not explain which power plants it refers to nor does Petitioner detail these plants role in producing algal blooms. Likewise, CRAFT references a NOAA satellite image of Lake Erie from August 2014 to illustrate how severe the algal bloom crisis has become, 386 but does not explain how the map should be interpreted or how it relates to Fermi

2. CRAFT never explains what information regarding algal blooms the ER failed to include or how the ER should have analyzed the matter further. Similarly, CRAFT asserts that the ER fails to consider mitigation alternatives, 387 but does not explain what mitigation measures should have been considered.

CRAFTs other supporting evidence is not relevant to algal blooms at all. 388 CRAFT cites a paragraph from the Fermi 3 EIS that states, Thermal discharges from Fermi into the circulation water system and Lake Erie have the potential to increase the growth of thermophilic organisms. These microorganisms could give rise to potentially serious human concerns, particularly at high exposure levels. 389 CRAFT may be trying to argue that the NRC Staff has 385 Petition at 33.

386 Id.

387 Id. at 32.

388 Id. at 33.

389 NUREG-2105, Environmental Impact Statement for the Combined License (COL) for Enrico Fermi Unit 3: Final Report, at 2-232 (Jan. 2013) (ADAMS Accession No. ML12307A172).

itself acknowledged the dangers of algal blooms. CRAFT, however, confuses the growth of algal blooms with a different issue, the growth of disease-causing microorganisms that could have an effect on human health. 390 Thus, the evidence cited by CRAFT is irrelevant to the claim regarding algal blooms.

CRAFT notes that the Governor of the State of Ohio recently declared a state of emergency because of a clean drinking water supply issue. 391 However, CRAFT does not explain the relationship between drinking water and algal blooms, or for that matter, the significance of a drinking water issue to this proceeding. CRAFT merely wonders to what extent continued operations at Fermi 2 contributed to the drinking water problem and speculates that routine thermal discharges from the plant add cumulative stress to the fragile ecosystem of Lake Eries shallow western basin and shoreline. 392 Earlier, CRAFT also noted that Fermi 2s thermal discharge into Lake Erie averages 18 degrees (F) above ambient lake temperature 365 days per year. 393 To the extent that, in these two statements, CRAFT is challenging the quantity of Fermi 2s thermal discharges into Lake Erie, that issue is outside the scope of this license renewal proceeding. The Environmental Protection Agency (EPA), not the NRC, sets and regulates thermal discharge limits. 394 390 CRAFT does not allege that DTE failed to analyze microbiological hazards in its ER. In any event, DTE was not required to do so. Although microbiological hazards to the public are a Category 2 issue, it is only applicable to plants with cooling ponds, canals, or cooling towers that discharge to a river.

See 10 C.F.R. Part 51, Appx. B, Table B-1, at Human Health. Fermi 2 has cooling towers, but is adjacent to Lake Erie, not a river. See ER at 2-3. See also ER at 3-241 (noting that Fermi 2 is not among the plants listed in the GEIS whose discharges may enhance the growth of thermophilic organisms).

391 Petition at 33.

392 Id.

393 Id. at 32.

394 The Commission has long held that it has a very limited role in the administration of Clean Water Act provisions, including Section 316 of the act, which relates to thermal discharge limits. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 385-87 (2007) (Congress has severely limited our scope of inquiry into

In sum, CRAFTs Proposed Contention 12 is inadmissible because it lacks an adequate factual basis, fails to raise a material dispute with DTEs application, and challenges matters outside the scope of this proceeding. 395 M. Proposed Contention 13 (Challenge to EPA Radiation Protection Standard)

In Proposed Contention 13, CRAFT asks the Board to recommend to the Commission to issue an order independently assessing EPAs radiation protection regulations. 396 CRAFT maintains that current EPA regulations for exposure to radiation do not sufficiently protect children, particularly infants. 397 Proposed Contention 13 is outside the scope of the proceeding. 398 The Commission has no authority to order the EPA to make any changes to its regulations, nor can the Commission issue an independent assessment of those regulations. If CRAFT is concerned about the adequacy of EPA regulations, it can petition the EPA for rulemaking, or comment on an existing proposed rule. 399 N. Proposed Contention 14 (Request for Reconsideration of Commission Precedent)

CRAFTs Proposed Contention 14, requests a public hearing before the ASLB Panel to respectfully Appeal for Reconsideration a misguided previous ruling which is described in this section 316(a) determinations. All we may do is examine whether the EPA or the state agency considered its permit to be a section 316(a) determination. If the answer is yes, our inquiry ends.);

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 28 (1978)

(NRC should not go behind EPAs determinations on water quality). This is because EPA and the relevant states grant such permits, not the NRC. Id.

395 10 C.F.R. § 2.309(f)(1)(iii), (v), (vi).

396 Petition at 34.

397 Id.

398 10 C.F.R. § 2.309(f)(1)(iii).

399 See 5 U.S.C. § 553(c) (the public has an opportunity to comment on a federal agencys proposed rule); 5 U.S.C. § 553(e) (a federal agency must provide interested persons the right to petition for the issuance, amendment, or repeal of a rule.).

Contention and which pertains directly and materially to the Scope of this relicensing action. 400 The rulings that CRAFT appears to want to have reconsidered are Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP 23, 64 NRC 257, 280-300 (2006) and the Commissions confirmation of this ruling in Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station); Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007).

These rulings found that under the Commissions regulatory framework, a challenge to the NRCs generic Category 1 determination of environmental impacts from the onsite storage of spent nuclear fuel for the period of extended operation, including spent fuel accident risks and their mitigation, is per se outside the scope of an individual license renewal proceeding and will not be entertained absent a 10 C.F.R. § 2.335 waiver. 401 Instead, such an argument can only be made as part of a 10 C.F.R. § 2.802 petition for rulemaking. 402 As the Commission stated, Fundamentally, any contention on a Category 1 issue amounts to a challenge to our regulation that bars challenges to generic environmental findings. There are, however, procedural steps available to make such a challenge. A rule can be waived in a particular license proceeding only where special circumstances . .

. are such that the application of the rule or regulation . . . would not serve the purposes for which the rule or regulation was adopted. [10 C.F.R. 2.335(b).] In theory, Commission approval of a waiver could allow a contention on a category one issue to proceed where special circumstances exist.

Here, the [petitioner] does not argue that unique or unusual characteristics of the Pilgrim and Vermont Yankee facilities undermine the GEISs generic determinations . . . .[403]

400 Petition at 34-35.

401 See Pilgrim, CLI-07-03, 65 NRC at 16.

402 Id. at 16-17.

403 Id. at 20.

The Commission concluded that, Adjudicating Category 1 issues site by site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS. 404 The Commission also confirmed its Turkey Point ruling that, no discussion of mitigation alternatives is needed in a license renewal application for a Category 1 issue. 405 Instead, license renewal applicants need only to discuss mitigation alternatives with respect to Category 2 issues. 406 The Commission noted that there are various procedures in place for considering new and significant environmental information outside of the adjudicatory process and, therefore, admitting the [proffered] contention for an adjudicatory hearing is not necessary to ensure that the claim receives a full and fair airing. 407 Thus, [t]he NRCs procedural rules are clear:

generic Category 1 issues cannot be litigated in individual licensing adjudications without a waiver. 408 Absent a waiver, any petitioner wishing to attack the agencys rule on such an issue must petition for a generic rulemaking. 409 CRAFT argues that these Commission holdings are contrary to the Commissions rules. 410 Repeating the arguments of the petitioners in Turkey Point and Pilgrim, CRAFT argues that, under Appendix B to Subpart A of 10 C.F.R. Part 51, Table B-1, spent fuel pool accidents should be categorized as severe accidents, a Category 2 finding, and not as onsite storage of 404 Id. at 21.

405 Id.

406 Id. at 21.

407 Id. at 22.

408 Id.

409 Id. The First Circuit has upheld this Commission practice. See Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008).

410 Petition at 35.

spent nuclear fuel, a Category 1 finding. 411 Thus, according to CRAFT, as a Category 2 finding, this issue could be argued in individual license renewal proceedings without a waiver of a generic rule. 412 Based on this assertion that spent fuel pool accident risks and their mitigation is properly a Category 2 issue, CRAFT then argues that the Applicants ER is insufficient because it does not address severe accident mitigation alternatives with respect to the risks and consequences associated with onsite storage of high level radioactive waste . . . especially, spent fuel pool water loss and fires. 413 This argument fails for several reasons. First, a request for reconsideration by the Board of Commission decisions is not a proper subject for a contention. 414 Second, as discussed above, binding Commission precedent is directly contrary to this argument. Finally, the license renewal GEIS explicitly addresses this argument. 415 Specifically, the GEIS recounts the petitions for rulemaking that argued that the NRC incorrectly characterized the environmental impacts of high-density spent fuel storage as insignificant in the 1996 GEIS 416 It states that the NRC had reviewed these petitions and concluded that its findings related to the storage of spent nuclear fuel in pools . . . remain valid. 417 It concludes that, therefore, the onsite storage of spent fuel is properly classified as Category 1. 418 CRAFT has not submitted a waiver and 411 Id.

412 Id.

413 Id. at (unnumbered) 35.

414 See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-39, 34 NRC 273, 282 (1991).

415 NUREG-1437, Revision 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 1-28 (June 2013) (ADAMS Accession No. ML13106A241) (2013 License Renewal GEIS).

416 Id.

417 Id.

418 Id. at 1-29.

the rule has not been suspended or altered as part of a rulemaking proceeding. 419 Thus, Proposed Contention 14 should be denied.

Finally, the only statement in Proposed Contention 14 that is allegedly unique to Fermi 2 and not a generic issue is that:

As a consequence of several re-racks implemented as part of an extremely misguided, NRC endorsed policy, the Fermi, Unit 2 spent fuel pool currently stores approximately twice the amount of spent fuel as it was originally designed to hold (4600 vs. 2300 design), resulting in a precariously vulnerable condition which must be actively managed at all times.

Petition at 35. However, this statement could not serve as the basis for a contention because its apparent concern with high-density spent fuel pool storage has already been discussed by the GEIS420 and because it advances an out-of-scope argument against the current regulation of Fermi 2 as opposed to an argument with aging management during the period of extended operation.

419 See Pilgrim, CLI-07-03, 65 NRC at 17-18.

420 See 2013 License Renewal GEIS, at 1 1-29. See also NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 6-85 (May 1996) (1996 License Renewal GEIS) (finding with respect to expanding fuel pool capacity that [r]adioactive exposures, waste generation, and releases were evaluated and found to be incrementally small. The only nonradiological effluent is additional heat rejected from the plant. This additional heat is small compared to the total rejected by the rest of the plant, and it will have a negligible effect on the environment. The risks due to accidents and their environmental effects are found to be not significant.).

CONCLUSION For the reasons set forth above, the Board should deny CRAFTs Petition.

Respectfully submitted, Signed (electronically) by Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of Signature: September 12, 2014

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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DTE Electric Co. ) Docket No. 50-341-LR

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(Fermi Nuclear Power Plant, Unit 2) )

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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO CITIZENS RESISTANCE AT FERMI 2 (CRAFT) PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR PUBLIC HEARING, dated September 12, 2014, have been filed through the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, this 12th day of September, 2014.

/Signed (electronically) by/

Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date: September 12, 2014