ML15062A634

DTE Appeal of Licensing Board Decision on Petitions to Intervene

ML15062A634
Person / Time
Site:	Fermi
Issue date:	03/03/2015
From:	Christinidis J, Reddick D, Repka D, Tanya Smith DTE Electric Company, Winston & Strawn, LLP
To:	NRC/OCM
SECY RAS
References
50-341-LR, ASLBP 14-933-01-LR-BD01, RAS 27333
Download: ML15062A634 (31)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

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

)

(Fermi Nuclear Power Plant, Unit 2) )

APPLICANTS NOTICE OF APPEAL OF LBP-15-5 Pursuant to 10 C.F.R. §§ 2.311(a) and (c), DTE Electric Company (DTE) files, together with an attached supporting Brief, this Notice of Appeal of the Atomic Safety and Licensing Boards February 6, 2015 Memorandum and Order, which granted the requests for hearing of Dont Waste Michigan, Citizens Environment Alliance of Southwestern Ontario, and Beyond Nuclear (Joint Petitioners) and Citizens Resistance at Fermi 2 (CRAFT) in connection with DTEs application for renewal of the operating license for the Fermi Nuclear Power Plant, Unit 2.

Respectfully Submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Darani M. Reddick Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Jon P. Christinidis DTE Electric Company One Energy Plaza Detroit, Michigan 48226 COUNSEL FOR DTE ELECTRIC COMPANY March 3, 2015

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

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

)

(Fermi Nuclear Power Plant, Unit 2) )

APPLICANTS BRIEF IN SUPPORT OF APPEAL OF LBP-15-5 David A. Repka Tyson R. Smith Darani M. Reddick Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Jon P. Christinidis DTE Electric Company One Energy Plaza Detroit, Michigan 48226 COUNSEL FOR DTE ELECTRIC COMPANY March 3, 2015

TABLE OF CONTENTS Page INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................1 GROUNDS FOR REVERSAL OF LBP-15-5.................................................................................2 A. Joint Petitioners Contention 4B Is Inadmissible.................................................... 2

1. Background on the Severe Accident Mitigation Alternatives (SAMA) Analysis .................................................................................... 2

2. Joint Petitioners Raised No Genuine Dispute With the Application .......... 3

3. The South Texas Case Cited By the Board Concerned the Impacts of Severe Accidents, Not SAMAs................................................................. 10 B. CRAFT Contention 2 Was Improperly Reformulated by the Board .................... 12

1. CRAFTs Proposed Contention Did Not Raise a Genuine Dispute With the Application ................................................................................. 12

2. The Contention Admitted by the Board Is Wholly Unrelated to the Contention Pled by CRAFT ...................................................................... 13

3. Even If the Contention Was Properly Reformulated, There Is No Genuine Dispute with the Application ...................................................... 17 C. CRAFT Contention 8 Is Inadmissible................................................................... 21

1. CRAFT Did Not Raise a Genuine Dispute with the Application ............. 21

2. The Board Improperly Augmented the Bases for CRAFT Contention 8 . 23 CONCLUSION ..............................................................................................................................25 i

TABLE OF AUTHORITIES Page ADMINISTRATIVE DECISIONS Arizona Public Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),

CLI-91-12, 34 NRC 149 (1991)..9, 19 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001).......7 Duke Energy Corporation (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1 (2002)....3, 8 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43 (2008)..8 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 71 NRC 704 (2012)2 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1 (2006).16 Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801 (2005).18 Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195 (2003)..7 In the Matter of Andrew Siemaszko, CLI-06-16, 63 NRC 708 (2006)passim Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4),

LBP-09-17, 70 NRC 311 (2009).................................................................................................10 Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998)...19 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation) CLI-02-20, 54 NRC 147 (2002)...18, 20 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-09-8, 69 NRC 317 (2009)..13, 14 Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460 (2008).13 South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), LBP-09-21, 70 NRC 581 (2009).....................................................................................................................11 ii

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-90-7, 32 NRC 129 (1990)...7 STATUTES AND REGULATIONS 10 C.F.R. § 51.53(c)(3)(i)...5 10 C.F.R. Part 51, App. B, Table B-1....passim FEDERAL REGISTER NOTICES 69 Fed. Reg. 2,182 (Jan. 14, 2004)...................16 79 Fed. Reg. 34,787 (June 18, 2014)......1 MISCELLANEOUS NEI-05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis (Nov. 2005).3 NRC Final License Renewal Interim Staff Guidance LR-ISG-2006-03, Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses (Aug. 2007).3 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013)5 NUREG-2105, Vol. 1, Final Environmental Impact Statement for Combined License (COL) for Enrico Fermi Unit 3 (Jan. 2013)..20 iii

March 3, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

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

)

(Fermi Nuclear Power Plant, Unit 2) )

APPLICANTS APPEAL OF LBP-15-5 INTRODUCTION Pursuant to 10 C.F.R. §§ 2.311(a) and (c), DTE Electric Company (DTE) appeals the Atomic Safety and Licensing Board (Board) decision LBP-15-5, dated February 6, 2015. That decision concerns DTEs application to renew the operating license for the Fermi Nuclear Power Plant, Unit 2. The Board found that two sets of petitioners Dont Waste Michigan, Citizens Environment Alliance of Southwestern Ontario, and Beyond Nuclear (Joint Petitioners) and Citizens Resistance at Fermi 2 (CRAFT) each had standing and proffered at least one admissible contention. For the reasons discussed below, DTE appeals the Boards decision admitting three contentions. Both requests for hearing should be denied.

BACKGROUND On April 24, 2014, DTE submitted an application to renew the Fermi 2 operating license. The NRC published the Notice of Hearing and Opportunity to Petition for Leave to Intervene on June 18, 2014.1 Joint Petitioners and CRAFT filed timely petitions to intervene on August 18, 2014.2 The Board issued its decision with respect to the hearing requests on February 1

79 Fed. Reg. 34,787.

2 Petition for Leave to Intervene and Request for Hearing of Dont Waste Michigan, Citizens Environmental Alliance of Southwestern Ontario, and Beyond Nuclear (Joint 1

6, 2015. After narrowing and reformulating the proffered contentions, the Board found Joint Petitioners Contention 4B and CRAFTs Contentions 2 and 8 to be admissible.

GROUNDS FOR REVERSAL OF LBP-15-5 A. Joint Petitioners Contention 4B Is Inadmissible

1. Background on the Severe Accident Mitigation Alternatives (SAMA) Analysis To comply with the National Environmental Policy Act (NEPA), the NRC has assessed the environmental impacts of severe accidents for all license renewals, and determined those impacts to be SMALL.3 However, license renewal applicants still must consider severe accident mitigation alternatives if they have not been considered previously for the site in question.4 SAMA analyses are conducted under NEPA to determine whether there are any plant-specific cost-beneficial mitigation alternatives that would reduce the impacts of a severe accident.5 SAMA analyses examine plant-specific severe accident progression sequences and scenarios to evaluate the degree to which specific mitigation measures may reduce the risk (by reducing the probability or the consequences) of an accident scenario.

Pet.); Citizens Resistance at Fermi (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 (CRAFT Pet.).

3 10 C.F.R. Part 51, App. B, Table B-1. Similarly, the NRC has determined that, for license renewals, the environmental impacts of onsite storage of spent fuel - including spent fuel accidents - is a Category 1 issue with SMALL impacts. Id.

4 Id.

5 See generally Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-12-15, 71 NRC 704, 706-707 (2012) (explaining the purpose of SAMA analyses).

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To identify SAMAs that may be cost-beneficial, DTE relied upon NRC-endorsed industry guidance.6 DTE estimated the net value of each SAMA and considered whether the costs averted outweigh the cost of the enhancement. Consistent with applicable guidance, DTE calculated the averted costs as including public exposures, offsite economic costs, occupational exposures, onsite cleanup and decontamination, and replacement power costs.7 As NEPAs requirements are subject to a rule of reason, so too are SAMA analyses conducted to satisfy NEPA.8

2. Joint Petitioners Raised No Genuine Dispute With the Application Proposed Contention 4 stated:

Fermi 2 and Fermi 3s safety and environmental risks due to common mode failures, and the potential for mutually initiating/exacerbating radiological catastrophes, involving the common Transmission Corridor (TC) shared by both units reactors and pools, have been inadequately addressed in DTEs Fermi 2 License Renewal Application (LRA) and Environmental Report (ER). Also, the cumulative impacts associated with the proposed new Fermi 3 reactor cannot be excluded from DTEs Fermi 2 LRA and ER as remote or speculative, for it is DTEs own proposal, and is advanced in the Fermi 3 COLA proceeding. Such environmental and safety analysis is required on this unique local problem specific to Fermi 2 and 3. It can, and must, be dealt with in Severe Accident Mitigation Alternatives (SAMA) analyses, and must be treated as Category 2 Issues in NRCs forthcoming Draft Supplemental Environmental Impact Statement (DSEIS), as required by NEPA and the AEA.9 6

NEI-05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis (Nov.

2005), endorsed by NRC Final License Renewal Interim Staff Guidance LR-ISG-2006-03, Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses (Aug. 2007).

7 NEI-05-01, Rev. A at 16-22; ER at Section D.1.5.4.6.

8 Duke Energy Corporation (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1, 12 (2002).

9 Joint Pet. at 35.

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Consistent with the basis for the contention, Joint Petitioners argument in support of admissibility was focused principally on the impacts of a severe accident involving a common initiating event at Fermi 2 and Fermi 3, such as a loss of offsite power. For example, they argued:

In addition to the significantly increased risks represented by a breakdown phase reactor (the age-degraded Fermi 2 General Electric Mark I BWR) being located immediately adjacent to a break-in phase reactor (the new, untested Fermi 3 ESBWR), both reactors will be vulnerable to disruptions in the Transmission Corridor, which will, de facto, function as a single TC which is common to both reactors.

Thus from 2025 to 2045, both Fermi 2 and Fermi 3 would be dependent on offsite electricity flowing through the same TC, for both the primary Alternating Current (AC) electricity supply needed to run safety and cooling systems on both reactors, as well as both safety-significant high-level radioactive waste (HLRW) storage pools.

Whether the initiating scenario involves a terrorist attack, act of sabotage, natural disaster (such as an earthquake or tornado), fire and/or explosion at Fermis various connected electrical switchyards, an airplane crash during takeoff from or landing at the nearby Detroit Metro airport, a disruption of the common TC for Fermi 2 and Fermi 3 could unleash a common mode failure serving as a severe accident precursor at Fermi 2 and/or Fermi 3.

The common TC shared by Fermi 2 and Fermi 3 represents a serious violation of the NRCs defense-in-depth on its face. DTE should have addressed such issues in the Fermi 3 COLA, ER, and FSAR, but did not.

The NRC Staff should have addressed such issues in the Fermi 3 EIS and FSER, but did not. And now, DTE omits to address these issues in the Fermi 2 LRA, ER, and FSAR, while the NRC Staff should address them in the Fermi 2 DSEIS and FSER. NEPA and the AEA require nothing less.10 The Joint Petitioners support for its contention also included a lengthy discussion of potential severe accidents, including reference to the impacts of a loss of offsite power at 10 Id. at 36, 38.

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Fukushima.11 Joint Petitioners speculated that a large-scale radiological release from either Fermi 2 or proposed Fermi 3 could cause the entire site to be evacuated leaving the reactors to meltdown and spent fuel pools to catch fire.12 However, as noted above, the environmental impacts of severe accidents and onsite spent fuel pool storage have been generically determined to be SMALL and those impacts cannot be litigated in individual license renewal proceedings absent a waiver of Commission rules.13 And, in challenging Fermi 2s compliance with NRC requirements relating to offsite power and diesel generators (i.e., that the transmission corridor represents a violation of defense-in-depth), Joint Petitioners raised a current licensing basis issue, not an aging issue within the scope of license renewal.

In an effort to link the contention to an admissible issue with the SAMA analysis, Joint Petitioners pointed to several SAMAs in DTEs analysis related to the loss of offsite power.

But they never claimed that DTE overlooked any potential SAMAs (cost-beneficial or otherwise) relevant to offsite or onsite power, nor did they identify any specific dispute with DTEs conclusion that the listed SAMAs were not cost-beneficial. Instead, Joint Petitioners stated only that the cost of implementing certain SAMAs identified by DTE relating to offsite power represents a few days worth of net profit at Fermi 2 and that others were even significantly 11 Id. at 44-48.

12 Id. at 38. Joint Petitioners made no reference to control room habitability, 10 C.F.R. § 50.54(hh), or other emergency planning measures much less argue that these measures would be ineffective.

13 10 C.F.R. App. B, Table B-1; 10 C.F.R. § 51.53(c)(3)(i). As a Category 1 issue, no discussion of spent fuel pool mitigation is necessary because the NRC has determined that additional plant-specific mitigation measures are not likely to be sufficiently beneficial to warrant implementation. NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) at S-7.

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less expensive fixes.14 These imprecise and irrelevant claims regarding the relative costs of implementing various SAMAs fall far short of the specific factual assertions and evidence necessary to demonstrate a genuine dispute and thereby support an admissible SAMA contention. That failing should have ended the Boards inquiry.

Nevertheless, the Board found a portion of the contention to be admissible. After deciding that the contention attacked DTEs SAMA analysis from both a common mode failure and mutually exacerbating catastrophe perspective, the Board admitted only the latter portion of the contention.15 The Board renamed this portion of the contention Joint Petitioners Contention 4B, and restated it as: [t]he Fermi 2 [SAMA] analysis fails to evaluate the impact that a severe accident at Fermi 2 would have on the operation of the proposed nearby Fermi 3.16 In other words, the reformulated contention alleges that DTE omitted the potential for a severe accident at Fermi 2 to damage Fermi 3, potentially rendering some of the SAMAs cost-beneficial. But this contention (even as reformulated by the Board) fails to establish a genuine dispute with the ERs SAMA analysis.

First, the premise underlying the contention is too speculative to meet the standards for admissibility in 10 C.F.R. § 2.309(f). The Fermi 3 unit has not even been licensed, much less constructed. Even if the unit is licensed, the timing of when it will be constructed and operated is not settled. And even then, Joint Petitioners (and the Board) fail to explain how an 14 Joint Pet. at 49.

15 LBP-15-5 at 25, 31. The Board concluded that the common mode failure portion of the contention was inadmissible, in part because the scenario postulated (complete loss of all power at Fermi 2 and 3) was highly unlikely. Id. at 22. This same rationale applies with equal, if not greater force, to the mutually exacerbating catastrophes portion of the contention.

16 Id. at 26.

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accident at Fermi 2 would cause operational impacts at Fermi 3. The only support for the contention is the Joint Petitioners generalized reference to the accident at Fukushima Daiichi, without any explanation of how a similar accident scenario may occur at Fermi 2 and the yet un-built Fermi 3.17 Neither Joint Petitioners nor the Board pointed to any specific accident scenario much less the probability of such an event occurring linking the effects of an accident at Fermi 2 to operations at Fermi 3 or challenging the conclusions of the SAMA analysis.18 Conclusory statements and unsupported speculation cannot support an admissible contention.19 Moreover, under the NEPA rule of reason, the ER is not required to consider remote and speculative events, such as the highly-improbable and speculative sequence of a severe accident at Fermi 2 causing a severe accident at Fermi 3.20 There is therefore no genuine dispute with the application on a material issue.

17 Joint Pet. at 38.

18 Joint Petitioners never acknowledge, much less engage, the differences between Fermi 2 and Fermi 3 or their supposed impact on the Fermi 2 SAMA analysis. For example, the ESBWR spent fuel pool design at Fermi 3 is different from the Mark I BWR design at Fukushima in that the ESBWR spent fuel pool is located entirely below grade. In addition, the ESBWR is a passive plant with a minimum 72-hour coping capability for core, containment, and spent fuel pool cooling with no operator action required.

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

(explaining that bare assertions and speculation are insufficient to demonstrate a genuine dispute with the application).

20 In determining whether a particular accident scenario is reasonably foreseeable, the low probability of an accident in quantitative terms is key. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-90-7, 32 NRC 129, 131 (1990).

The Fermi 2 core damage frequency (CDF) including external events used in the SAMA analysis is 1.65E-05 per year. See ER at D-65 (internal event CDF of 1.5E-06/year multiplied by external event factor of 11). The CDF for the ESBWR design is 1.65E-08 per year. ESBWR Final Safety Evaluation Report, Chapter 19 (ADAMS Accession No. ML110130034). The combined probability of both events occurring is therefore far less than the accident probability considered to be remote and speculative in other NRC proceedings. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 387-88 (2001) (upholding a licensing board 7

Second, Joint Petitioners failed to meet the standard for an admissible SAMA contention under Commission precedent. A petitioner must approximate the relative cost and benefit of a challenged SAMA in order to be granted an adjudicatory hearing.21 In doing so, a petitioner must present some notion of a difference in the results and provide at least some ballpark consequence and implementation costs should the SAMA be performed.22 Here, Joint Petitioners simply asserted, without support, that the consequences of such catastrophes are far greater than DTE is willing to acknowledge.23 Joint Petitioners did not provide any notion of a difference in results had the impacts on Fermi 3 been included in the SAMA analysis claiming only that the cost of implementing certain SAMAs relating to offsite power represents a few days worth of net profit at Fermi 2.24 Joint Petitioners also made no effort to engage in the SAMA analysis to explain how its arguments would affect the SAMA evaluation other than their vague and unsupported comparison to Fermi 2 profits.

In its attempt to fill the gaping holes in Joint Petitioners claims, the Board inappropriately supplemented Joint Petitioners arguments. For example, the Board argued that the costs of a severe accident at Fermi 2 would increase if the impact on Fermi 3 is included in the analysis, making it genuinely plausible that some SAMAs could become cost-beneficial.25 determination that an accident sequence with a probability conservatively estimated at 2.0E-07 per year was remote and speculative under NEPA).

21 McGuire, CLI-02-17, 56 NRC at 11-12.

22 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 104-05 (2008).

23 Joint Pet. at 53.

24 Id. at 49.

25 LBP-15-5 at 31. This argument was never made by Joint Petitioners.

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The Board pointed to two SAMAs that it reasoned, based on the moderate cost of the enhancement, might become cost beneficial when considering impacts to Fermi 3.26 Specifically, the Board called out SAMA 203 (improving emergency diesel generator (EDG) maintenance procedures to decrease unavailability over time) and SAMA 176 (developing a procedure to open the door to the EDG building upon the high temperature alarm). The Board hypothesized without any support or reference to the contention itself that SAMA 203 could become cost-beneficial if impacts to Fermi 3 were considered, because the enhancement was estimated to cost $50,000, while the benefit was $16,474. Similarly, the Board speculated that SAMA 176 could also become cost-beneficial upon consideration of Fermi 3 impacts, since the enhancement was estimated to cost $200,000, while the benefit was $61,477.

The Boards reformulation of the contention to raise new issues and its reliance on information and arguments not made by Joint Petitioners to flesh out a contention is clearly erroneous. A board may not redraft an otherwise inadmissible contention into an admissible one, nor can it provide the basic threshold information required for contention admissibility.27 The arguments made by the Board could and should have been made by Joint Petitioners in their proposed contention, but were not. In particular, Joint Petitioners did not provide any reason to consider it genuinely plausible that including Fermi 3 impacts in the SAMA analysis would more than triple the benefit of each SAMA such that they would become cost-beneficial. It is the petitioners responsibility to provide a ballpark assessment of consequence and SAMA implementation costs, not the Boards. Here, Joint Petitioners lodged no complaint about the 26 Id.

27 In the Matter of Andrew Siemaszko, CLI-06-16, 63 NRC 708, 720-21 (2006) (citing Virginia Elec. and Power Co. (North Anna Power Station, Units 1 and 2), LBP-84-40A, 20 NRC 1195, 1199 (1984)); Arizona Public Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

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replacement power costs used in the SAMA analysis or the costs associated with an extended shutdown of Fermi 3. Regardless, conclusory assertions that the benefits of a SAMA are three times greater than those presented in the SAMA analysis without any reference to the SAMA methodology or underlying data falls far short of demonstrating a genuine dispute required to support an admissible contention.

3. The South Texas Case Cited By the Board Concerned the Impacts of Severe Accidents, Not SAMAs In admitting Joint Petitioners Contention 4B, the Board cited another licensing boards decision in the South Texas combined license adjudication.28 The Board claimed that its decision was consistent with the South Texas decision.29 The purported analogy is tempting on a superficial level; however, an examination of the South Texas decision demonstrates that the two decisions are fundamentally different. In South Texas, the petitioner proffered a contention alleging that the [i]mpacts from severe radiological accident scenarios on the operation of other units at the [South Texas Project] site have not been considered in the Environmental Report.30 28 A nearly identical contention also was admitted in the Comanche Peak combined license adjudication. Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), LBP-09-17, 70 NRC 311, 368-69 (2009).

29 LBP-15-5 at 29. The South Texas decision was not cited by Joint Petitioners.

30 The South Texas petitioner claimed that:

[t]he STP Environmental Report at Chapter 7 deals with severe accidents but has no discussion or analysis of the impact of a severe radiological accident at any one of the four units as it would impact the other remaining three units. There is no discussion or analysis of how operations at undamaged units would be continued in the event that the entire site becomes seriously contaminated. Moreover, there is no discussion of how the other units would be protected in the event of a major fire or explosion at one of the other units.

Petition for Intervention and Request for Hearing, dated April 21, 2009, at 46.

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The South Texas Board admitted the contention, reasoning that NRC guidance suggested that an ERs severe accident evaluation should consider events arising from causes external to the plant (i.e., one unit affecting another unit).31 But, the contention in South Texas generally challenged the applicants analysis of the impacts of a severe accident; it did not specifically challenge the applicants SAMA analysis.32 Applications for combined licenses must analyze the impacts of a severe accident in their ERs, but for license renewal applications, those impacts already have been generically determined to be SMALL.33 Thus, to the extent there is an analogy to be drawn to South Texas, that case would suggest that proposed Contention 4 should be construed as a contention about the impacts of a severe accident at Fermi 2 (including on Fermi 3).34 But, because the impacts of severe accidents have been assessed generically, those impacts cannot be challenged in this license renewal proceeding. The Board should have denied proposed Contention 4 outright.

31 South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), LBP-09-21, 70 NRC 581, 620 (2009).

32 In fact, the South Texas SAMA analysis did not discuss the impacts on the proposed units from a severe accident at the existing unit, something that was neither challenged by the petitioner nor the South Texas Board. South Texas Project Units 3 & 4 Combined License Application, Environmental Report, Rev. 10, Sec. 7.3 Severe Accident Mitigation Alternatives, dated Oct. 23, 2013 (ADAMS Accession No. ML13311B841).

Only later, after the applicant voluntarily revised its ER to evaluate the impacts that a severe accident at one unit would have on a co-located unit, did the intervenors allege that the revised Severe Accident Mitigation Design Alternatives analysis underestimated the cost of replacement power. Intervenors Contentions Regarding Applicants Proposed Revision to Environmental Report Section 7.5S and Request for Hearing, dated Dec. 22, 2009. As noted, Joint Petitioners lodged no complaint about the replacement power costs used in the SAMA analysis or the costs associated with an extended shutdown of Fermi 3.

33 10 C.F.R. Part 51, App. B, Table B-1.

34 The contention in South Texas is akin to Joint Petitioners Contention 4 as originally pled both contentions focused on the impacts that a severe accident at one unit would cause at the other unit(s), if, for example, the entire site had to be evacuated.

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B. CRAFT Contention 2 Was Improperly Reformulated by the Board

1. CRAFTs Proposed Contention Did Not Raise a Genuine Dispute With the Application As originally pled by CRAFT, Contention 2 alleged that the NRC did not notify numerous Native American tribes, bands, and First Nations in the area of concern about the the environmental scoping public comment opportunity for the proposed extension of the Fermi 2 nuclear reactor license.35 As framed by CRAFT, the purpose of this contention was 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.36 CRAFTs proposed contention did not dispute or even cite any specific portion of the application even though all properly formulated contentions must challenge specific portions of the application to establish a genuine dispute on a material issue of law or fact.

CRAFT also provided no expert or other factual support for its assertion that DTE (as opposed to the NRC Staff) must notify or consult with Native American tribes or First Nations.37 Only in its Reply, after DTE and the NRC Staff noted this fatal flaw in their answers to the Petition, did CRAFT point to any portion of the ER it contended was deficient.38 Even then, as explained 35 CRAFT Pet. at 9.

36 Id. at 9 (emphasis added).

37 DTE in fact sent a letter to the Walpole Island First Nation notifying them of the planned license renewal and seeking information on issues to be addressed in the license renewal review (ER at 3-200; ER at Attachment C). DTE received no response.

38 Combined Reply of Citizens Resistance at Fermi 2 (CRAFT) to NRC Staff and DTE Electric Co. Answers to CRAFTs Petition for Leave to Intervene and Request for a Public Hearing, dated Sept. 19, 2014, at 21-22 (CRAFT Reply).

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further below, the portion of the application disputed by CRAFT (environmental justice) was unrelated to and did not support the original contention (notification to tribes).39 CRAFT Contention 2 was therefore inadmissible at the outset for failing to demonstrate a genuine dispute with the application on a material issue.

2. The Contention Admitted by the Board Is Wholly Unrelated to the Contention Pled by CRAFT Despite the obvious flaws in the contention as pled by CRAFT, Contention 2 was reformulated and admitted by the Board. While a board may reformulate contentions to eliminate extraneous issues or to consolidate issues for a more efficient proceeding, a boards ability to reformulate contentions is not unconstrained.40 The Boards admissibility analysis must determine whether the contention is admissible as submitted41 because the burden of showing whether the contention meets contention admissibility standards lies with the petitioner.42 Only after determining the admissibility of a contention may a board then reformulate a contention for purposes of clarity, succinctness, and a more efficient 39 The NRC filed a motion to strike CRAFTs late attempt to lodge a specific dispute with the ER. NRC Staff Motion to Strike Portions of CRAFTs Reply, dated Oct. 2, 2014.

DTE supported this motion (DTE Electric Company Response to NRC Staff Motion to Strike Portions of CRAFTs Reply, dated Oct. 14, 2014), which the Board denied in LBP-15-5. The Board concluded that CRAFTs original contention was about a failure to address impacts on Walpole Island hunting and fishing rights based on the Preface to CRAFTs contentions. LBP-15-5 at 43-44. The majority of the Board disagreed with Judge Arnold, who concluded that the contention was not about hunting and fishing in the area or an omission from the ER, but rather about an alleged lack of notification.

Id. at 44, citing Separate Opinion at 1.

40 Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460, 482 (2008) (emphasis omitted).

41 Siemaszko, CLI-06-16, 63 NRC at 720 (emphasis in original).

42 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-09-8, 69 NRC 317, 325 (2009).

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proceeding.43 A board cannot redraft an inadmissible contention to cure deficiencies and thereby render it admissible.44 The original contention proffered by CRAFT was entitled, Walpole Island First Nations Exclusion From Proceedings.45 As stated above, the sole purpose of this contention, as proposed by CRAFT, was to ensure proper tribal notification and representation. CRAFTs entire discussion of Contention 2 was centered upon the necessity of notifying tribes of the proceeding so as to ensure that the tribes treaty rights are protected.46 Yet, between initial submittal and the Board decision, the contention morphed from a process-based concern about tribal notification and participation to a broad challenge to the ERs assessment of the impacts of tribal hunting and fishing rights. The Board reformulated the contention as:

The ER failed to consider whether members of the Walpole Island First Nation would be negatively affected by the renewal of the Fermi 2 operating license due to impacts on tribal hunting and fishing rights, especially with respect to the potential for the consumption of contaminated foods.47 DTE acknowledges that CRAFTs Petition and supporting standing declarations from tribal members mention tribal hunting and fishing rights. For example, tribal member standing declarations noted the tribes rights to hunt and fish in the vicinity of Fermi 2 and the members concern that wildlife was inedible because of contamination from Fermi 2.48 But the 43 Siemaszko, CLI-06-16, 63 NRC at 720-21 (citing Virginia Elec. and Power Co. (North Anna Power Station, Units 1 and 2), LBP-84-40A, 20 NRC 1195, 1199 (1984)).

44 Id. at 720-21; Shearon Harris, CLI-09-8, 69 NRC at 323-327.

45 CRAFT Pet. at 9.

46 Id. at 9-13.

47 LBP-15-5 at 37.

48 See., e.g., Decl. of Phyllis Anderson (July 5, 2014).

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concerns regarding hunting and fishing were not offered as the basis for the contention. CRAFT only used the concerns to argue that, because tribal members have treaty rights to hunt and fish, they have standing and should have an opportunity to participate in the proceeding. As CRAFT stated:

Given that numerous species of fish, wild game, and migratory bird consumed as food by Walpole Island First Nation sped [sic] a part of their life cycle at or near the Fermi 2 site, whether in the surrounding surface waters or on land, Fermi 2s radiological, toxic chemical and thermal pollution negatively impacts the food supply of the Walpole Island First Nation. Such negative impacts certainly require NRC to notify Walpole Island First Nation of its right to participate and opportunity to provide public [sic] upon the continued operation of the Fermi 2 proposal during the scoping proceeding.49 CRAFTs own explanation therefore demonstrates that the contention as admitted bears no relationship to the contention as originally pled.

The Boards strained explanation with which Judge Arnold disagreed in his separate opinion reasons that the hunting and fishing claims were pled as part of Contention 2 because they are mentioned in the Preface to CRAFTs Petition (not in its discussion of Contention 2).50 The Board pointed to the Prefaces statements that:

The Issues raised in each of the following Contentions are integrally relevant and Material to these proceedings. . . . The deficiencies highlighted in these Contentions have enormous independent health and safety significance. The Applicants LRA and associated analyses as part of the AMP and ER have material deficiencies to an extent that could significantly jeopardize (impact) public health and safety.51 The Board relied on this vague, generalized statement of concern to conclude that Contention 2 was, in fact, about the ERs inadequate assessment of public health and safety issues (rather than 49 CRAFT Pet. at 10 (emphasis added).

50 LBP-15-5 at 44.

51 Id. (emphasis in original) citing CRAFT Pet. at 3.

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a notification or participation issue). This is a stretch too far. Although the Commission generally treats pro se litigants more leniently than litigants with counsel,52 this allowance does not override the basic standards for contention admissibility. The very purpose of those standards is to ensure that the issues are framed and supported concisely enough at the outset to ensure that the proceedings are effective and focused on real, concrete issues.53 CRAFTs contention addressed each of the admissibility criteria specifically, and its focus on the issues of notice and consultation is apparent from the text of the contention (emphasis added below):54 A. Purpose of Contention 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 B. Statement of the Issue it seems that NRC did not notify numerous Native American tribes, bands, and First Nations in the area of concern.

C. Statement of Issues of Law NRC has legal obligations under the National Environmental and Fact to be Raised Policy Act (NEPA) to notify affected Native American tribes of pending significant proposals and actions, such as a license extension which would allow the Fermi 2 reactor to operate another 31 years.

D. Brief Explanation of the NRC has never notified the Walpole Island First Nation, a Basis for the Contention mere 50 miles from the Fermi 2 reactor site, of the opportunity to provide public comments during the environmental scoping proceedings.

52 See Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 45 n.246 (2006) (citing U.S. Enrichment Corp. (Paducah, Kentucky Gaseous Diffusion Plant), CLI-01-23, 54 NRC 267, 272 (2001)).

53 Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,189-90 (Jan. 14, 2004).

54 CRAFT Pet. at 9-13.

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E. Demonstration That the Walpole Island First Nation would be an affected Indian tribe, Issue Raised by the Contention should Fermi 2 be allowed to operate another 31 years.

is Within the Scope of the ***

Proceeding and Material to the Such negative impacts certainly require NRC to notify Findings the NRC Must Make Walpole Island First Nation of its right to participate and to Support its Licensing opportunity to provide public upon the continued operation of Decision. the Fermi 2 proposal during the scoping proceeding. For this reason, Walpole Island First Nation and other affected First Nations not notified by NRC should be granted at least sixty days to submit public comments.

In addition, given the native impacts upon such treaty rights as hunting and fishing near the Fermi 2 nuclear reactor site, especially in Lake Erie, all the affected tribes of Michigan, Wisconsin, Oklahoma, Ontario, and beyond should have been notified by NRC of their opportunity to intervene against the Fermi 2 license extension with relevant contentions. NRC should notify the tribes of their rights and opportunity, and provide them at least sixty days in which to submit petitions to intervene and contentions.

F. Concise Statement of Facts CRAFT has carefully reviewed NRC correspondence with or Expert Opinion Relied on to Native American Tribes, and identified a number of First Show the Existence of a Nations, including Walpole Island First Nation, that NRC Genuine Dispute with the failed to notify. Petitioner also communicated with Applicant and the NRC Walpole Island First Nation officials to verify that NRC Regarding the Adequacy of the notifications had not taken place.

License Extension Application.

At bottom, the Board exceeded its discretion by plucking bits and pieces from CRAFTs pleadings in an attempt to assemble an admissible contention where one did not otherwise exist.55

3. Even If the Contention Was Properly Reformulated, There Is No Genuine Dispute with the Application Even as reformulated, the contention lacks an adequate factual or expert basis to support its admission. First, CRAFTs Petition and Reply never mention subsistence practices.

Nor does CRAFT cite the specific conclusions in the ER relating to subsistence practices in the 55 Siemaszko, CLI-06-16, 63 NRC at 720-21.

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vicinity of the site. The only portion of the ER disputed by CRAFT (and not raised until its Reply) are the statements on p. 4-60 that [t]here are no location-dependent disproportionate impacts affecting minority and low-income populations and [t]hus, no disproportionate impact on minority or low-income populations would occur from the proposed action of renewing the Fermi 2 OL.56 But CRAFT never identifies any impacts that it alleges to be disproportionate or that differ from those to the general public.57 And, CRAFT conspicuously does not dispute the more relevant conclusion directly preceding these statements, that [n]o subsistence practices were identified in the vicinity of the Fermi siteand no documented subsistence plant-gathering or hunting in the vicinity of the Fermi site.58 Nor does the letter from the Chief of the Walpole Island First Nation, Dan Miskokomon, dispute any portion of the ER.59 That letter simply reiterates the First Nations desire to ensure that its treaty rights are protected, not that DTE has failed to analyze the projects impacts on those rights.60 The Board found that reformulated Contention 2 raised a genuine dispute with the application because the ER, which states that there is no documented subsistence fishing in 56 CRAFT Reply at 21-22.

57 In NRC practice, [t]he essence of an environmental justice claim . . . is disparate environmental harm. Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation) CLI-02-20, 54 NRC 147, 153 (2002). CRAFT provided no specific examples of disproportionately high or adverse impacts on members of that community to counter the ERs conclusion. Mere assertions that there may be impacts or that a more detailed review is needed are not sufficient. Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 810 (2005).

58 ER at 4-60. This is further evidence that the contention pled by CRAFT was not about the ERs assessment of impacts on hunting and fishing rights.

59 Letter from D. Miskokomon, Walpole Island First Nation, to A. Macfarlane, NRC, Fermi 2 Nuclear Reactor License NPF-43 Extension Application (Sept. 22, 2014).

60 Mr. Miskokomons concerns are therefore consistent with the original contentions focus on notice and an opportunity to participate.

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Lake Erie and [n]o subsistence practices near Fermi 2, contradicts CRAFTs claim that the Walpole Island First Nation hunts and fishes near Fermi 2 for subsistence consumption.61 This explanation is flawed.

First, CRAFT did not raise these arguments. Instead, the Board improperly supplemented the bases for CRAFTs arguments. The Commission has explained that, although a board may appropriately view a contention in a light that is favorable to petitioners, it cannot do so by ignoring the contention admissibility requirements, such as the requirement to identify support for a contention.62 Here, the Board made arguments and considered information that was not provided by CRAFT in its proposed contention. This runs afoul of the principle that a Board may not supply the missing pieces of a contention that otherwise fails to meet admissibility standards.63 Even if the reformulated contention were one of omission, CRAFT never asserted that the ER wholly failed to assess the impacts on tribal members hunting and fishing rights.

This argument was raised sua sponte by the Board, even though it is CRAFTs burden to come forward with an admissible contention.64 Second, CRAFT never alleged that members of the Walpole Island First Nation would be impacted in a manner different from the general population. While the Walpole Island First Nation may have hunting and fishing rights in the vicinity of Fermi 2, CRAFT never claimed that Walpole Island members engage in subsistence practices in Lake Erie or that their 61 LBP-15-5 at 39, citing ER at 4-60. Subsistence practices are distinct from hunting and fishing for recreational purposes or to supplement ones primary diet.

62 Palo Verde, CLI-91-12, 34 NRC at 155.

63 Id.

64 See Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).

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use or consumption levels differ from others that hunt near Fermi 2 or fish in Lake Erie.65 Nor did CRAFT identify disproportionately high and adverse impacts on the Walpole Island First Nations members from Fermi 2 operations.66 CRAFT posits no concrete link or specific mechanism by which Fermi 2 operations, such as discharges into Lake Erie, could impair the Walpole Island members consumption of fish or wildlife.67 To be admissible, an environmental justice contention must, at a minimum, allege a disproportionate impact on a minority or low-income population. CRAFT made no such assertion in its proposed contention.

In the end, CRAFT wholly failed to dispute the ER or allege disproportionately high and adverse impacts that could support an admissible contention, and the Board improperly supplied a new basis for a contention that otherwise failed to meet the Commissions stringent admissibility standards. Contention 2 is inadmissible.

65 Neither CRAFT nor Mr. Miskokomon mention subsistence practices in Lake Erie.

Moreover, the ER is consistent with the NRC Staffs previous conclusions in the FEIS for the Fermi 3 combined license application that [t]he review teams investigation and outreach did not identify any unique characteristics or practices among minority or low-income populations that might result in physical or environmental impacts on them that were different from those on the general population. NUREG-2105, Vol. 1, Final Environmental Impact Statement for Combined License (COL) for Enrico Fermi Unit 3 (January 2013) at 4-97.

66 Agencies are to consider environmental justice implications only when disparate environmental effects are high and adverse. Private Fuel Storage, CLI-02-20, 54 NRC at 153.

67 The absence of any allegation of disproportionate impact from Fermi 2 on Walpole Island members is particularly problematic because the Walpole Island First Nation, to whom the reformulated contention is confined, is located 50 miles away on Lake St. Clair. ER at 3-19. Lake St. Clair is upstream from Fermi 2 and separated from Lake Erie by the Detroit River.

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C. CRAFT Contention 8 Is Inadmissible

1. CRAFT Did Not Raise a Genuine Dispute with the Application As admitted by the Board, Contention 8 alleges that [t]he SAMA cost-benefit calculation is incorrect and thus inadequate because it did not properly account for the Canadian population within the 50-mile affected area of a Severe Accident.68 This is a modified version of the contention proffered by CRAFT, which asserted that DTEs SAMA analysis was materially deficient in that the input data 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.69 In explaining the contention, CRAFT alleged that DTEs cost calculations were inadequate because they did not account for cities and towns within 50 miles of the site, including Metro Detroit (MI), Ann Arbor (MI), Monroe (MI), Toledo (OH) and Windsor (ON).70 In response to CRAFT Contention 8, DTE made clear that the ER and SAMA analysis specifically accounted for the population within 50 miles of the site, including Detroit, Ann Arbor, Monroe, and Toledo.71 The portion of the ER cited by DTE clearly explains that

[t]he total population within a 50-mile radius of Fermi was estimated for the year 2045 including transient population and that Michigan, Ohio, and Ontario Canada tourism data was 68 LBP-15-5 at 60.

69 CRAFT Pet. at 25.

70 Id. at 27.

71 DTE Electric Company Answer Opposing Petitions to Intervene and Requests for Hearing, dated Sept. 12, 2014 at 45 (citing ER Section D.1.5.2) (DTE Answer)

(emphasis added).

21

used to calculate a transient population to increase permanent population to account for transient populations.72 These statements establish that the entire population within 50 miles of the site including the Canadian population was considered in the SAMA analysis. Yet, the Board inexplicably focused on the fact that DTE did not specifically mention Windsor, Ontario, which is a suburb of Detroit, in the list of cities considered in the SAMA analysis.73 The Board erred when it considered this supposed omission in DTEs Answer to be sufficient to establish a genuine dispute.74 The cities listed in DTEs Answer were merely examples nothing in DTEs language suggests that it was an exhaustive list, which it was not.

In fact, when the issue came up at oral argument, counsel for DTE unequivocally stated (Tr. at 210) that the Fermi 2 SAMA analysis accounted for populations, including Canadian populations, within 50 miles of Fermi 2:

JUDGE SPRITZER: Okay. So DTE did include Canadians within 50 miles in its estimated cost of a severe accident?

MR. SMITH: Absolutely.

Because CRAFT failed to raise a genuine dispute with the application, Contention 8 is inadmissible.

72 ER at D-95 (emphasis added); see also ER at 3-245 (explaining how DTE projected permanent and transient populations in Ontario, Canada, including references and sources of data).

73 LBP-15-5 at 59.

74 The Board states that DTE has neither acknowledged nor explained why the population of Windsor is absent from the SAMA analysis, and thus CRAFT has identified a genuine factual dispute with the applicant. Id. at 60. But, as DTE stated in its Answer, the SAMA analysis did in fact consider Canadian populations. See DTE Answer at 45 (citing ER Section D.1.5.2).

22

2. The Board Improperly Augmented the Bases for CRAFT Contention 8 In order to find Contention 8 admissible, the Board relied on portions of the ER and other information that were never cited by CRAFT. For example, the Board pointed to Table 3.10-1 of the ER, Cities or Towns Located Totally or Partially Within a 50 Mile Radius of Fermi 2, and reasoned that because that table does not include any Canadian cities, there is a genuine dispute over whether Canadian populations were considered in the SAMA analysis.75 This table was never cited by CRAFT, yet the Board relied on it in admitting the contention.

Moreover, this table was produced in the context of the ERs analysis of environmental justice issues it is not directly relevant to the SAMA analysis and does not override the clear statement in the SAMA analysis discussion that all populations within 50 miles were considered.

Similarly, the Board challenged Table D.1-22, Estimated Population Distribution within a 50-Mile Radius, and relied on information regarding the population of Essex County, Ontario neither of which was ever mentioned by CRAFT.76 In the Boards estimation, because of the low population numbers NE and ENE of the site (reflected in Table D.1-22), the SAMA analysis must not have considered the population of Essex County, and therefore, raised a genuine dispute regarding whether the Canadian population had been properly considered.77 75 LBP-15-5 at 59.

76 Id., citing Census Profile: Essex County (Census Division), Ontario, Statistics Canada (2011), http://www.12.statcan.gc.ca/census-recensement /2011/dp-pd/prof/index.cfm.

77 Id. at n.331. As stated in the ER (at D-95), all populations within 50 miles were considered. The ER explains that the projected population in 2045 generated by the computer program SECPOP2000 within 50 miles of the site is 6,055,678, and that the distribution of the 2045 total population is summarized in Table D.1-22. ER at D-95 (emphasis added). This total population figure is consistent with numbers used elsewhere in the ER. See, e.g., ER at 3-245 (projecting the total population, including transient populations, within a 50-mile radius to be 6,055,850 in 2045). Although the total population considered in the SAMA analysis accounts for both the U.S. and Canadian populations within 50 miles, the computer program distributed that population within the 23

But, this line of reasoning was never put forth by CRAFT. The specific references supporting admission of the contention were generated in the first instance by the Board not the petitioner. The Board overstepped its discretion by supplementing the contention with bases not offered by CRAFT.

In sum, the admission of CRAFT Contention 8 should be reversed. By confirming that the entire population within 50 miles of the site (U.S. and Canadian) was considered in the SAMA analysis, DTE clearly answered the alleged deficiency lodged by CRAFT. There was no genuine dispute with the application. Compounding this failure, the Board relied on arguments not made by CRAFT, giving the appearance of a dispute where one did not otherwise exist. DTE should not be penalized for not responding in full to arguments never made by the petitioners.

U.S. sectors, which generated a conservative estimate on public doses in the case of a severe accident. In other words, certain sectors in Table D.1-22 do not appear to reflect a Canadian population because that population was allocated among U.S. sectors.

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CONCLUSION For the foregoing reasons, the Commission should reverse the Boards decision regarding the admissibility of contentions in LBP-15-5. The Petitions should be denied.

Respectfully submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Darani M. Reddick Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Jon P. Christinidis DTE Electric Company One Energy Plaza Detroit, Michigan 48226 COUNSEL FOR DTE ELECTRIC COMPANY Dated at Washington, District of Columbia this 3rd day of March 2015 25

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

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

)

(Fermi Nuclear Power Plant, Unit 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANTS NOTICE OF APPEAL OF LBP-15-5 and APPLICANTS BRIEF IN SUPPORT OF APPEAL OF LBP-15-5 in the above captioned proceeding have been served via the Electronic Information Exchange this 3rd day of March 2015.

Respectfully submitted,

/s/ signed electronically by Darani M. Reddick Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 COUNSEL FOR DTE ELECTRIC COMPANY DC:769519.5