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Transcript of First Energy Nuclear Operating Company, Davis Bess, Unit 1, November 12, 2014, Pages 713-932
	ML14321A146
Person / Time
Site:	Davis Besse
Issue date:	11/12/2014
From:	; Atomic Safety and Licensing Board Panel
To:	;
	SECY RAS
References
	50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-1200, RAS 26925
	Download: ML14321A146 (221)
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Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION

Title:

First Energy Nuclear Operating Company Davis Besse Nuclear Power Station, Unit 1 Docket Number: 50-346-LR ASLBP Number: 11-907-01-LR-BD01 Location: Rockville, Maryland Date: Wednesday, November 12, 2014 Work Order No.: NRC-1200 Pages 713-932 NEAL R. GROSS AND CO., INC.

Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.

Washington, D.C. 20005 (202) 234-4433

713 1 UNITED STATES OF AMERICA 2 U.S. NUCLEAR REGULATORY COMMISSION 3 + + + + +

4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5 + + + + +

6 ______________________

7 In the Matter of: : Docket No.

8 FIRSTENERGY NUCLEAR : 50-346-LR 9 OPERATING CO. : ASLBP No.

10 (Davis-Besse Nuclear : 11-907-01-LR-BD01 11 Power Station, Unit 1):

12 ______________________:

13 Wednesday, 14 November 12, 2014 15 Rockville, Maryland 16 17 18 BEFORE:

19 WILLIAM J. FROEHLICH, Chairman 20 NICHOLAS G. TRIKOUROS, Administrative Judge 21 DR. WILLIAM E. KASTENBERG, Administrative 22 Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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714 1 APPEARANCES:

2 On Behalf of the U.S. Nuclear Regulatory 3 Commission:

4 BRIAN HARRIS, ESQ.

5 CATHERINE E. KANATAS, ESQ.

6 U.S. Nuclear Regulatory Commission 7 Office of General Counsel 8 Mail Stop: 0-15 D21 9 Washington, D.C. 20555 10 Tel: (301) 415-1392 (Harris) 11 (301) 415-2321 (Kanatas) 12 Email: catherine.kanatas@nrc.gov 13 brian.harris@nrc.gov 14 15 On Behalf of FirstEnergy Nuclear Operating 16 Company:

17 STEPHEN J. BURDICK, ESQ.

18 TIMOTHY P. MATTHEWS, ESQ.

19 of: Morgan, Lewis & Bockius, LLP 20 1111 Pennsylvania Avenue, N.W.

21 Washington, D.C. 20004 22 Tel: (202) 739-5059 (Burdick) 23 (202) 739-5527 (Matthews) 24 Email: sburdick@morganlewis.com 25 tmatthews@morganlewis.com NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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715 1 DAVID W. JENKINS, ESQ.

2 FirstEnergy Service Company 3 76 South Main Street 4 Akron, OH 44308 5 Tel: (330) 384-5037 6 Fax: (330) 384-3875 7 Email: djenkins@firstenergycorp.com 8

9 On Behalf of Don't Waste Michigan:

10 MICHAEL KEEGAN 11 Don't Waste Michigan 12 811 Harrison Street 13 Monroe, MI 48161 14 Email: mkeeganj@comcast.net 15 16 On Behalf of Beyond Nuclear:

17 KEVIN KAMPS 18 Beyond Nuclear 19 6930 Carroll Avenue 20 Suite 400 21 Takoma Park, MD 20912 22 Tel: (301) 270-2209 23 Email: kevin@beyondnuclear.org 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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716 1 On Behalf of Beyond Nuclear, Citizens 2 Environmental Alliance of Southwestern 3 Ontario, Don't Waste Michigan, and the Green 4 Party of Ohio:

5 TERRY LODGE, ESQ.

6 316 N. Michigan Street 7 Suite 520 8 Toledo, OH 43604 9 Tel: (419) 255-7552 10 Email: tjlodge50@yahoo.com 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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717 1 P R O C E E D I N G S 2 9:01 a.m.

3 JUDGE FROEHLICH: Thank you. Please be 4 seated. Okay. Good morning, all. It's November 5 12th, 9:00 a.m., and we're in the Nuclear Regulatory 6 Commission headquarters building in Rockville, 7 Maryland.

8 We're on the second floor, ACRS Conference 9 Room. ACRS stands for the Advisory Committee on 10 Reactor Safeguards, and we thank the ACRS for allowing 11 us to use their hearing room, while the ASLBP hearing 12 room is under renovation.

13 The docket number for this proceeding is 14 50-346-LR, which is the docket in which FirstEnergy 15 Operating Company has filed to renew its facility 16 operating license for the Davis-Besse Power Station 17 Unit 1, for an additional 20 years from its current 18 expiration date of April 22nd, 2017.

19 In accordance with the Board's public 20 notice and order issued October 27th, this oral 21 argument concerns a proposed Contention 7 filed by 22 Beyond Nuclear, the Citizens Environmental Alliance of 23 Southern Ontario, Don't Waste Michigan and the Green 24 Party of Ohio. These are -- collectively we'll refer 25 to as the Intervenors.

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718 1 Proposed Contention 7 is found in 2 Intervenor's Motion for Admission of Contention 7 on 3 worsening shield building cracking and inadequate 4 Aging Management Programs in the shield building 5 monitoring program, which was filed on September 2nd, 6 2014 as supplemented on September 8th, 2014.

7 Intervenors' proposed Contention 7 8 challenges the adequacy of FENOC's shield building 9 monitoring Aging Management Program, as revised by the 10 license application amendment 51. That's FENOC's July 11 3rd, 2014 RAI response.

12 My name is William Froehlich, and I'm 13 chairman of this Atomic Safety and Licensing Board, 14 established for this proceeding. To my right is Judge 15 Nicholas Trikouros. Judge Trikouros has been a full-16 time member of the panel since 2006.

17 He holds a B.S. from Fordham, a Masters 18 from NYU, an advanced engineering degree from the 19 Polytechnic Institute affiliated with NYU, and has 20 over 30 years' experience in the nuclear industry, 21 including serving as an adjunct professor at Rutgers 22 University, where he taught at the graduate level.

23 To my left is Judge William Kastenberg.

24 Judge Kastenberg holds a Bachelors of Science and a 25 Masters of Science in Engineering from UCLA, and has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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719 1 a Ph.D. in Nuclear Engineering from the University of 2 California at Berkeley. For over 40 years, Dr.

3 Kastenberg was a professor in the University of 4 California system.

5 He retired as the Daniel M. Tellep 6 Distinguished Professor of Engineering. He's 7 published numerous journal articles on nuclear safety 8 and risk analysis.

9 As I mentioned earlier, my name is William 10 Froehlich. I'm a lawyer by training and have had 11 about 35 years of federal administrative and 12 regulatory law experience. Because I'm a lawyer, I'm 13 one of the three judges here, I'll serve as chairman 14 of this Board for procedural issues.

15 I'd also like to introduce a few other 16 people from the Atomic Safety and Licensing Board 17 Panel. Our law clerk, who you've probably dealt with 18 by emails is Mr. Sachin Desai. We also have an 19 administrative and logistical support member with us, 20 Karen Valloch, and in the back of the room is Andrew 21 Welkie, who will help manage the audiovisual equipment 22 for this hearing.

23 I'd also like to acknowledge the people 24 from the ACRS, including Alesha Bellinger, Kendra 25 Freeland and Theron Brown. I believe Mr. Brown is in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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720 1 the back room with Mr. Welkie, helping him support the 2 audiovisuals for today's argument.

3 Our court reporter is Daniel Michon.

4 They'll be an electronic transcript made of this oral 5 argument, and copies of that transcript will be made 6 available to the public. They'll also be posted on 7 the NRC website in about a week.

8 At this point, I'd like the parties to 9 introduce themselves. I'd like the lead 10 representative to introduce yourself, state the name 11 of your client, any counsel who might be participating 12 with you in the oral argument, and I believe we'll 13 start with the Intervenors, go to the licensee and 14 then to the NRC staff.

15 MR. LODGE: Very good. Thank you, Judge.

16 My name is Terry Lodge. I am an attorney and counsel 17 of record for Beyond Nuclear, the Citizens 18 Environmental Alliance of Southwestern Ontario, Don't 19 Waste Michigan and the Green Party of Ohio, who are 20 the intervenors in this matter.

21 Seated to my left is Kevin Kamps of Beyond 22 Nuclear, who is going to be a co-presenter along with 23 me. Seated to my right is Michael Keegan of Don't 24 Waste Michigan, who is also assisting today.

25 JUDGE FROEHLICH: Thank you, Mr. Lodge.

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721 1 For the licensee.

2 MR. MATTHEWS: Good morning members of the 3 Board. I'm Tim Matthews of Morgan, Lewis and Bockius, 4 on behalf of the Applicant, FirstEnergy Nuclear 5 Operating Company, FENOC. With me at the counsel 6 table this morning is my partner, Stephen Burdick, who 7 will address the Board's questions related to the 8 proposed safety contention, and David Jenkins, senior 9 corporate counsel at FirstEnergy.

10 Also present with us today are my partner, 11 Kathryn Sutton and several FENOC personnel, including 12 representatives from the Davis Besse Engineering 13 Organization and the License Renewal Project should we 14 need their assistance.

15 JUDGE FROEHLICH: Thank you, Mr. Matthews.

16 And for the staff.

17 MR. HARRIS: Good morning, Your Honor.

18 This is Brian Harris representing the staff. With me 19 today to my left is Cathy Kanatas, who will also be 20 representing the staff today.

21 JUDGE FROEHLICH: Thank you. For any 22 proposed contention to be heard in an evidentiary 23 hearing, an intervenor must timely file that 24 contention. Whether it is timely or not depends on 25 whether it meets the standards in 10 C.F.R. 2.309, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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722 1 old 2.309(f)(2) or the current 2.309(c)(1) test.

2 It has to be based on new information not 3 previously available. It has to materially affect 4 either a safety or environmental issue, and the 5 contention has to be put forward in a timely manner 6 which, according to our prior orders, we define as 7 being put forward within 60 days after the information 8 was available to the public.

9 The crux is whether the Petitioner has 10 shown good cause. If timely, it must also meet the 11 six elements of 10 C.F.R. 2.309(f)(1). A request for 12 hearing, a petition for leave to intervene or a motion 13 to admit a new contention are set forth with 14 particularity the contention sought to be raised.

15 In each contention, the request for 16 petition must provide a specific statement of the 17 issue of law or fact to be raised or controverted, a 18 brief explanation of the basis for the contention, 19 demonstrate that the issue raised in the contention is 20 within the scope of the proceeding, demonstrate that 21 the issue raised in the contention is material to the 22 findings the NRC must make to support the action 23 that's involved, and provide a concise statement of 24 alleged facts or expert opinions which support the 25 petitioner's position on the issue, and on which the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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723 1 petitioner intends to rely at hearing, together with 2 references to the specific sources and documents on 3 which the petitioner intends to rely to support the 4 petition on the issue.

5 And finally, it must provide sufficient 6 information to show that a genuine dispute exists with 7 the licensee on a material issue of law or fact. This 8 information must include references to specific 9 portions of the application that the petitioner 10 disputes, and the supporting reasons for each dispute.

11 On September 2nd, 2014, Intervenors 12 brought a new contention regarding cracking in the 13 shield building that covers the Davis-Besse Unit 1 14 nuclear reactor.

15 Intervenors' new contention alleges that 16 there is new information, primarily in the form of 17 disclosures by FENOC on July 3rd and July 8th, 2014, 18 that indicate the cracking in the Davis-Besse shield 19 building is propagating, and that this is a new 20 concern.

21 Intervenors claim as a result of the 22 plant's aging management -- as a result, the plant's 23 Aging Management Program needs to be revised, to 24 account for this crack propagation, more than has 25 already been done.

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724 1 Intervenors also ask that this alleged new 2 issue be addressed in the Environmental Impact 3 Statement, within the Discussion of Alternatives 4 section and the section dealing with Mitigation 5 Alternatives for severe accidents. The licensee and 6 the NRC staff both oppose the admission of this 7 contention, arguing that no litigable issue exists 8 with FENOC's Aging Management Program or the 9 Environmental Impact Statement.

10 FENOC and the NRC staff also raise 11 timeliness concerns, arguing that Contention 7 was not 12 brought quickly enough after the information was 13 available to the public, and thus this contention is 14 precluded by NRC regulations. Intervenors, of course, 15 do not agree.

16 If any issue -- if any of the parties take 17 issue with how I have just framed this contention, 18 please address that as part of your oral argument or 19 opening statements. So today we'll be talking and 20 probing the intervenors about Contention 7, trying to 21 figure out whether they meet the timeliness and 22 admissibility criteria of 2.309 of the regulations.

23 If they meet the regulatory requirements, 24 we will rule that the contention is admissible, and if 25 they don't, we're obliged to rule that the contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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725 1 is not admissible. After we hear oral argument today, 2 we'll review the pleadings and the transcript of this 3 argument, and issue a written decision, and we intend 4 to get that decision out within the next 45 days or 5 so.

6 As I mentioned earlier, members of the 7 public are free to observe the proceedings today, as 8 in all of NRC's proceedings. But it is only counsel 9 for the parties or their representatives that will be 10 allowed to speak at this oral argument.

11 At this point, if anyone still has their 12 cell phone on, please check, turn it off or turn it to 13 vibrate. If you have any conversations and need to 14 discuss with others, please take them out in the hall 15 during our proceedings.

16 At this point, I'd ask my two colleagues 17 if anything -- if they'd like to add anything before 18 we begin. Judge Trikouros.

19 JUDGE TRIKOUROS: No.

20 JUDGE KASTENBERG: Nothing at this point, 21 thank you.

22 JUDGE FROEHLICH: Okay, all right. As 23 stated in the Board's notice and order scheduling this 24 argument, today's argument will begin with an opening 25 statement of no more than ten minutes in length from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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726 1 each party. The Intervenors will go first, followed 2 by the licensee and then the NRC staff.

3 Each one will get ten minutes to give an 4 uninterrupted opening statement to us. We'll then 5 turn to reviewing the questions of timeliness and the 6 admissibility of the contention that's been filed.

7 After we've asked all of our questions and heard 8 arguments from the parties, each party will get five 9 minutes for closing statements.

10 At this point, I believe we're ready to 11 begin with an opening statement from the Intervenors.

12 MR. LODGE: Thank you. Members of the 13 Panel and parties and representatives, we are in our 14 37th month since the discovery in October 2011 of 15 laminar cracking problems that were visible during a 16 maintenance outage at the Davis-Besse nuclear power 17 station, and specifically around and near an opening 18 that was blasted through the wall for purposes of 19 replacing a reactor head.

20 The cracking controversy has evolved 21 tremendously in 37 months. We are now looking at what 22 appears to be the latest, I guess I would call it Root 23 Cause 3.0, the 2014 explanation for the cracking 24 phenomena. But it's interesting and useful to review 25 historically what the circumstances were.

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727 1 In February 2012, FirstEnergy Operating 2 Company released their initial root cause analysis for 3 the laminar cracking, essentially concluding that the 4 blizzard of 1978 did it, that it essentially caused 5 unusual vulnerability to the outer concrete layers of 6 the shield building at the Davis-Besse reactor, and 7 that moisture over the decades infiltrated the 8 concrete and began to cause, from the freeze-thaw 9 cycle of northwestern Ohio winters, cracking to 10 develop.

11 The consensus of FirstEnergy's consultants 12 at the time was the problem is limited, the problem is 13 solvable, that a good coat of certified coating on the 14 building, which had been omitted or neglected to be 15 added during the construction process in the 1970's, 16 would do it, and now we know that it didn't do it.

17 In July of 2014, FirstEnergy's 18 consultants, in the latest in what we call Root Cause 19 3.0, the apparent cause evaluation, full apparent 20 cause evaluation, indicate that there is now 21 microcracking, an additional type of structural 22 failure in addition to laminar or layered cracking, 23 and that there are going to be possibly continuing 24 difficulties.

25 The company's response in 2012 was to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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728 1 propose a monitoring setup, wherein 20 core bores 2 would be developed at various locations near 3 identified cracks in the building, and that from time 4 to time on a scheduled, but infrequent we believe 5 basis, that there would be tests of the cores.

6 The response after the latest revelation 7 of microcracking and essentially a consensus that this 8 is an aging problem of increasing, potentially 9 increasing seriousness, is to -- is for the utility to 10 have promised that it will initiate three additional 11 core bore drillings at sites on the shield building, 12 which it will identify as being close to visible 13 cracking.

14 We have roughly calculated that the 15 interior and exterior surface area of the shield 16 building is somewhere in the neighborhood of 180 17 square feet. The core bores are, pardon me, 280. The 18 core borings themselves are a few inches across. They 19 penetrate perhaps a foot or less into the structure.

20 So what is proposed by way of a monitoring 21 setup, of a building that was left open and uncovered, 22 unroofed if you will in the early 1970's, and that has 23 some controversy surrounding any protective barriers 24 in its foundation, which would protect the foundation 25 from infiltration and moisture.

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729 1 What we have is a circumstance where 2 roughly a cubic foot of core borings are dispersed on 3 some unknown basis throughout the shield building 4 structure, and are supposed to past muster 5 regulatorily, as an adequate means of monitoring the 6 shield building.

7 This is a passive structure, but a very 8 obviously critical structure. The shield building is 9 approximately 30 inches thick. It is rebar-reinforced 10 concrete. It is supposed to be there to protect the 11 reactor from exterior threats, including tornadoes, 12 including damage from certain types of aircraft 13 accidents.

14 But it also contains a filter containment 15 type of system. So it provides a certain degree of 16 protection of the outer environment from mishaps that 17 might befall the reactor itself. A very critical 18 structure. It is degraded and deteriorated. There is 19 serious issue as to the extent of that.

20 The Intervenors contend that there is far 21 too much ignorance as to the actual status of the 22 structure, that any attempts to simply call a wait and 23 see monitoring effort, especially at this low level, 24 is very insufficient to provide the requisite, 25 adequate assurance that the shield building is going NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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730 1 to perform its original design functions at any 2 adequate level throughout the expected 20 year or 3 anticipated 20 year license extension period.

4 The utility company and the staff have 5 tried in particular to argue that this is simply a 6 current licensing concern. The problem with that 7 argument is that it -- I would suspect that the first 8 day of the 20 year extension period they'll say it's 9 a current licensing concern. It's a day-to-day 10 problem.

11 Well, perhaps three years ago or two and 12 a half years ago, that might have had -- carried some 13 credence. But 37 months into this, with now multiple 14 root cause reports being issued and issued on a slow 15 motion basis I might add, the latest coming rather 16 close to the end of the adjudicatory phase of this 17 license extension, we believe that there are serious 18 questions of whether there are adequate assurances 19 that mere monitoring is going to suffice.

20 The expert opinions that we are relying on 21 are those of NRC staff and FirstEnergy's consultants.

22 We think that more than -- what was called sheer 23 speculation on the Intervenors' part in our multiple 24 filings of 2012, and we've all been together before on 25 those filings, that it was mere speculation and indeed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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731 1 we were castigated at some length for having, without 2 an expert, intentions to parlay FOIA and other 3 information into a contention.

4 But history is proving that mere 5 speculation of 2012 is hard fact and harsh reality for 6 the utility company to deal with in 2014. In sum, 7 this is a matter which must be scrutinized through the 8 adjudicatory process, must be scrutinized by way of 9 relief in the form of much beefier analysis and 10 discussion in the FSAR and the NEPA document, the 11 final Environmental Impact Statement, both in the 12 Consideration of Alternative section, because we 13 believe that the shield building is that big of a 14 problem, that it raises -- its condition raises grave 15 questions as to the continuing feasibility of using it 16 to protect the reactor, and also in the SAMA analysis.

17 The SAMA analysis presumes a pristine 18 structure. This is a uniquely non-pristine structure, 19 unique and admitted as such by FirstEnergy's own 20 consultant in its 2014 report. That's all we have at 21 this point. Thank you.

22 JUDGE FROEHLICH: Thank you, Mr. Lodge.

23 Mr. Matthews.

24 MR. MATTHEWS: Thank you, Judge Froehlich.

25 Good morning again. FENOC appreciates this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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732 1 opportunity to address the Board. The parties appear 2 before you today on a now-familiar issue. FENOC 3 identified and reported its shield building laminar 4 cracks in 2011.

5 FENOC then promptly studied the laminar 6 crack phenomenon, identified its root cause, 7 demonstrate the capability of the shield building to 8 perform its intended functions, developed corrective 9 actions including application of external coating, 10 developed a condition monitoring program to assess the 11 possibility of crack propagation, and updated the 12 shield building design and licensing basis documents.

13 FENOC also prepared an Aging Management 14 Program or AMP for the shield building, to monitor 15 possible changes in the laminar cracks during the 16 period of extended operation, and supplemented its 17 license renewal application appropriately.

18 In 2013, FENOC discovered indication of 19 changes in the existing laminar cracks. This 20 demonstrated that FENOC's monitoring program worked.

21 Using a more indepth inspection tool, FENOC found the 22 preexisting laminar cracks, fine cracks that had not 23 been identified earlier.

24 They also found new cracks in core bores 25 that previously had not shown cracks. Extensive core NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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733 1 bore inspections followed by impulse response testing 2 indicated that the cracked area had expanded. In 3 other words, FENOC identified limited propagation of 4 some of the laminar cracks.

5 As it had previously in 2011 and '12, 6 FENOC identified the condition and promptly reported 7 it, studied it and confirmed the shield building's 8 ability to perform its intended functions. FENOC 9 updated the design and licensing basis documents, 10 identified the root cause of the propagation, and 11 modified its condition monitoring program during the 12 current license term. And again, FENOC revised its 13 Aging Management Program.

14 FENOC concluded that the cause of the 15 laminar crack propagation was ice wedging. Moisture 16 inside the existing laminar cracks froze during severe 17 cold. The coating contributed to the cracks by 18 retaining moisture.

19 FENOC's evaluation found that the laminar 20 crack propagation was very small in relation to the 21 450, approximately 450 foot circumference of the 22 shield building, and over 17 foot reach of each flute 23 shoulder. Volumetric expansion of freezing water from 24 its liquid state to its solid state opened the crack 25 tips a small amount, roughly 0.4 to 0.7 inches on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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734 1 average.

2 Although the existing program elements of 3 the shield building AMP were demonstrated to be 4 effective to monitor the propagation, FENOC further 5 enhanced its existing AMP by adding three more core 6 bores to be checked during each inspection, on top of 7 the existing 20.

8 FENOC specified that the additional core 9 bore locations would be selected the known edge to 10 identify crack propagation. It also extended the 11 period during which inspections would be performed 12 annually, regardless of whether further propagation 13 was identified.

14 FENOC has been open in its identification 15 of the cracks, thorough in its evaluation of the 16 causes, rigorous in monitoring of the condition and 17 appropriate in its enhancements of the Aging 18 Management Program.

19 Obviously, Intervenor disagreed, but we're 20 left to suggest why. Intervenors don't provide any 21 reasons for their disagreement. They suggest instead 22 yet again that this Board should undertake a broad-23 ranging investigation.

24 Intervenors continue to demonstrate a 25 misunderstanding of the role of the Atomic Safety and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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735 1 Licensing Board in the NRC's licensing and license 2 renewal process. As a result, they fail again to 3 state an admissible contention.

4 Intervenors appear to argue that FENOC's 5 discovery of crack propagation somehow vindicates the 6 admissibility of previously rejected contentions. But 7 then, as now, it is the sufficiency of their proposed 8 contention that is at issue, not the crack 9 propagation. The only question before the Board today 10 is this: have the Intervenors timely proposed a 11 contention that satisfied the Commission's contention 12 admissibility requirements?

13 Once again for multiple reasons, they have 14 not. The Commission did not establish this 15 adjudicatory process to stop or hop over licensing 16 process. Rather, the Commission established the 17 adjudicatory process so that members of the public 18 with sufficient knowledge or information to inform the 19 agency's decision-making might have a forum to present 20 that information and to test it.

21 In this way, they enhance the agency's 22 safety mission. Toward that end, the Commission has 23 promulgated very specific contention pleading 24 requirements in its regulation, to clarify and make 25 more efficient this adjudicatory process.

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736 1 First, the Commission made clear that 2 issues presented must be within the scope of the 3 licensing action then under consideration, here 4 license renewal. Second, the NRC regulations require 5 that proposed contentions may not consist solely of 6 vague generalities, but must be specific and clearly 7 stated. They also must be supported by some 8 identified basis statement and grounded in expert 9 opinion or appropriate authority.

10 So too the Commission has defined 11 reasonable timeliness requirements in which to bring 12 proposed contentions. None of this new to the Board 13 or to these intervenors. Both the Board and the 14 Commission have instructed these same intervenor 15 repeatedly on exactly these requirements. Intervenors 16 simply choose to ignore them again.

17 Despite repeated reminders about the 18 limited scope of the NRC's license renewal decision, 19 Intervenors attempt to challenge NRC's information 20 disclosure practices, FENOC's quality assurance 21 program and safety culture, Davis-Besse's current 22 licensing basis, all baseless allegations and all 23 outside the scope of this license renewal proceeding.

24 Despite previous rejections of earlier 25 proposed contentions rooted only in speculation, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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737 1 Intervenors again furnish nothing more. They advance 2 a wide array of hypothetical concerns, and invite the 3 Board to investigate them.

4 Specifically, Intervenors do not identify 5 any purported deficiency in FENOC's shield building 6 monitoring AMP, that would justify the changes they 7 suggest. They cite no inadequacy in FENOC inspection 8 methods, not in the number of core bores monitored or 9 their locations, and not in the frequency with which 10 core bores are monitored.

11 Rather, Intervenors call for more, more 12 testing methods, more core bores, more locations and 13 want the one-year inspection frequency extended 14 indefinitely, regardless of what the inspection 15 results or guidance from the American Concrete 16 Institute Code might suggest.

17 It's fine for Intervenors to want all of 18 these things. But here, before the Commission's 19 ASLBP, merely wanting them is not sufficient.

20 Intervenors bear the burden of stating why FENOC's AMP 21 is not adequate for its purpose, demonstrating a basis 22 for that position and identifying their technical 23 authorities. They've done none of these things.

24 Intervenors also fail to connect their 25 complaints to any new information. To the extent the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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738 1 concerns relate to the ability of the shield building 2 AMP to monitor crack propagation, the proposed 3 contention is untimely as well as unsupported. The 4 AMP has always been about monitoring for changes.

5 The only new information is this: One, 6 the cracks propagated in some areas, and two, the 7 monitoring program worked to identify that change. A 8 fundamental purpose of the AMP, from its introduction, 9 has been to identify any changes in the laminar 10 cracking, including propagation.

11 Intervenors have challenged the AMP before 12 many times and failed each time. FENOC's recent 13 enhancements to the AMP do not render the entire AMP 14 now subject to reattack. The Commission stated the 15 same logical conclusion in its Oyster Creek decision.

16 Also similar to their earlier failed 17 attempts, Intervenors include vague references to a 18 proposed environmental contention related to severe 19 accident mitigation alternative analysis. Here too, 20 they fail for all the same reasons they failed before, 21 because they chose again to ignore the Commission's 22 contention admissibility standards.

23 Intervenors are not unrepresented or 24 inexperienced citizen petitioners. Intervenors are 25 seasoned advocates and active participants in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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739 1 NRC's adjudicatory process. They're aided by multiple 2 experts and very capable experienced counsel.

3 Accordingly, when a burden its theirs to 4 shoulder, as it is here, they must shoulder that 5 burden. We respectfully submit that they have not.

6 FENOC's personnel have worked openly, candidly and 7 thoroughly to address this issue. They have retained 8 independent experts, commissioned testing at multiple 9 respected universities to confirm the conservatism in 10 their analyses.

11 They've responded to multiple rounds of 12 questions from the NRC staff, and diligently enhanced 13 the shield building monitoring AMP. We appreciate 14 this opportunity to respond to your questions, and 15 look forward to today's discussion. Thank you.

16 JUDGE FROEHLICH: Thank you, Mr. Matthews.

17 And for the NRC staff.

18 MS. KANATAS: Good morning, Your Honors.

19 My name is Cathy Kanatas and this Brian Harris. We 20 represent the staff. As Judge Froehlich indicated, 21 this oral argument is about the admissibility of 22 Intervenors' Contention 7. The question is whether 23 Intervenors have met their burden in showing that 24 their contention salsifies the Commission's contention 25 admissibility requirements.

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740 1 The answer to that question is no. Before 2 I summarize why Contention 7 is inadmissible, I would 3 like to make a few points to address Intervenors' 4 assertions, and to put Contention 7 in context.

5 First, the staff recognizes that the 6 shield building a structure subject to aging 7 management review under 54.21, and that the staff must 8 make a finding that FENOC can adequately manage the 9 effects of aging on the shield building before issuing 10 a renewed license.

11 This is why the staff took the position 12 that Intervenors' Contention 5, which was submitted in 13 January 2012, after the laminar cracking in the shield 14 building was identified, raised an admissible safety 15 contention of omission. At that time, the application 16 did not discuss how any AMP would account for the 17 aging effects of the laminar cracking.

18 However, since April 2012, FENOC's 19 application has provided for a plant-specific AMP to 20 manage the aging effects of the laminar cracks, which 21 are hairline cracks typically less than .01 inches in 22 width. Specifically, the shield building monitoring 23 AMP, which supplements the structures monitoring AMP, 24 provides for the detection of aging effects prior to 25 the loss of shield building intended functions.

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741 1 Second, it is important to note that 2 Contention 7 is not the first time Intervenors have 3 raised challenges to this shield building monitoring 4 AMP. Intervenors' Contentions 5 and 6 made claims 5 related to this AMP. However, those contentions did 6 not point to specific ways in which the AMP was wrong 7 or inadequate, or how it should be improved.

8 Therefore, the Board found that those 9 claims did not raise a genuine material dispute with 10 the application. Finally, the staff recognizes that 11 FENOC has modified the shield building monitoring AMP 12 in response to operating experience and staff 13 questions.

14 As you know, and we heard again today, the 15 monitoring done under the shield building monitoring 16 AMP led to the discovery of new cracks in August and 17 September 2013. Broken rebar was also discovered in 18 February 2014. In response, the staff issued an RAI 19 on April 15th, 2014, asking how the shield building 20 monitoring AMP would address these issues or how it 21 would be modified.

22 FENOC's July 3rd response to this RAI 23 provided modifications to the shield building 24 monitoring AMP. On July 8th, FENOC notified the Board 25 that it had submitted a full apparent cause NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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742 1 evaluation, discussing the root cause of the new 2 cracks. These two submittals are the basis for 3 Intervenors' Contention 7.

4 As Judge Froehlich summarized, to be 5 admitted as a contention, Intervenors must meet two 6 sets of requirements. First, they must show that 7 Contention 7 is based on new and materially different 8 information than previously available and timely 9 filed.

10 Second, Intervenors must show that 11 Contention 7 satisfies the contention admissibility 12 requirements. Intervenors have not made either 13 showing. Therefore, Contention 7 should not be 14 admitted into this proceeding.

15 First, Intervenors have not shown that 16 Contention 7 is based on new and materially different 17 information. Intervenors claim that FENOC's July 3rd 18 submittal is new and materially different information, 19 because it modified the shield building monitoring 20 AMP.

21 Intervenors also claim that the full 22 apparent cause evaluation contains new and materially 23 different information, because it concludes that the 24 cracking propagation is aging-related, which 25 Intervenors claim is a change in FENOC's position from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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743 1 earlier root cause reports.

2 But Intervenors have not shown that this 3 information is new and materially different. Since 4 April 2012, the shield building monitoring AMP 5 accounted for the possibility of an aging-related 6 mechanism, used core bores and visual inspections to 7 monitor, and indicated that inspection frequency and 8 core bore sample size and locations would be 9 reevaluated if changes or any new cracks were 10 identified.

11 These are exactly the types of changes 12 that FENOC did in response to the recent operating 13 experience. They increased the core bores from 20 to 14 23, and increased the inspection frequency to annual 15 inspection to manage the cracks, including the 16 cracking propagation.

17 The full apparent cause evaluation does 18 not change the position taken in the previous root 19 cause reports. The previous root cause reports, which 20 FENOC submitted in February and May 2012, concerned 21 the initial laminar cracking, which was determined to 22 be caused by a combination of three things: The 23 blizzard of 1978, the design of the flute shoulders 24 and the lack of a moisture sealant.

25 The full apparent cause evaluation states NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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744 1 that the findings of the previous root cause reports 2 with respect to the initial laminar cracking are still 3 valid. It then discusses the root cause of the 4 cracking propagation, which was determined to be 5 caused by ice wedging.

6 That requires the combination of three 7 things: pre-existing laminar cracks, water 8 accumulation and freezing temperatures within the 9 cracks. These findings about ice wedging are not 10 materially different information, because the shield 11 building monitoring AMP always contemplated 12 identifying aging effects.

13 Intervenors also incorporate their 14 Contention 5 filings and reference their Contention 6 15 filings in support of Contention 7. But these filings 16 are not new and materially different information.

17 These filings were based on the February 18 and May 2012 root cause reports, FENOC's April 2012 19 shield building monitoring AMP, and documents 20 Intervenors received through FOIA related to the 21 current operation of the plant. All of this 22 information has been considered by this Board and is 23 not new or materially different.

24 Second, Contention 7 is inadmissible 25 because it does not meet the Commission's contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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745 1 admissibility standards. While the staff recognizes 2 that the shield building monitoring AMP is in the 3 scope of license renewal, Intervenors have not raised 4 a genuine material dispute with the AMP.

5 Instead, Intervenors only point to the 6 enhancements in the AMP, and assert that it's 7 inadequate. These type of unsupported claims that do 8 not specify what is wrong or inadequate with the AMP 9 do not raise a genuine material dispute.

10 The rest of Intervenors' safety claims are 11 out of scope arguments about safety culture, current 12 operation, the adequacy of the staff's review, and the 13 current licensing basis of the plant. These arguments 14 were rejected when they were raised in Contentions 5 15 and 6, and they should be rejected again.

16 The license renewal safety review focuses 17 on managing the detrimental effects of aging on 18 certain structures, systems and components. The 19 license renewal safety review explicitly excludes 20 current operating issues.

21 Contention 7 also fails to raise an 22 admissible environmental claim. Contention 7 repeats 23 the claim made in both Contentions 5 and 6, that 24 FENOC's SAMA analysis is deficient, because it does 25 not account for the cracks.

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746 1 While it is true that FENOC had to submit 2 a SAMA as part of the license renewal environmental 3 report, Intervenors offer no support for why the SAMA 4 that FENOC submitted, which concerns beyond design 5 basis accidents and assumes containment failure or 6 bypass, would need to account for the cracks, or how 7 the SAMA is deficient.

8 Likewise, Intervenors do not offer any 9 support for their claim that the discussion of SAMAs 10 in the staff's DSEIS is inadequate. Contention 7 also 11 claims that the alternatives analysis in the DSEIS is 12 deficient, because it does not account for the 13 cracking.

14 Intervenors' argument is premised on the 15 idea that the shield building cannot perform its 16 intended functions, and should be replaced or 17 repaired. This argument is unsupported, and does not 18 raise a license renewal environmental issue. The 19 staff's environmental license review focuses on the 20 potential impacts of 20 years of additional operation.

21 If the shield building cracks prevented 22 the shield building from performing its design basis 23 safety functions, then the plant would have to shut 24 down now until those functions are restored. Any 25 environmental impacts resulting from that are not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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747 1 unique to license renewal.

2 For these reasons, Intervenors have not 3 met their burden of proof, and Contention 7 should not 4 be admitted into this proceeding. Simply pointing to 5 the staff's RAIs or FENOC's responses to those RAIs is 6 not sufficient to trigger an adjudicatory hearing.

7 Thank you, Your Honors.

8 JUDGE FROEHLICH: Thank you, Ms. Kanatas.

9 Let us begin, and I'll begin with you, Mr. Lodge. Let 10 me ask first, the licensee and the staff are not 11 contending that this contention is untimely because it 12 wasn't filed within 60 days of the license renewal 13 application amendment or the FACE report.

14 The argument, I understand from the staff 15 and from the licensee, is that these -- this 16 contention relates to issues that happened well before 17 this report, and therefore it's untimely, more than 60 18 days. Is that correct? Is my understanding correct?

19 MR. BURDICK: Yes, Your Honor.

20 JUDGE FROEHLICH: Also the licensee?

21 MR. BURDICK: Your Honor, this is Stephen 22 Burdick on behalf of the Applicant. I think that is 23 correct. But just to clarify, we make two timeliness 24 arguments. One is under the Oyster Creek principle 25 that Mr. Matthews discussed, that there hasn't been NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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748 1 any material change to the AMP and to the extent there 2 were changes, they were enhancements.

3 But we did make the separate argument that 4 they do identify certain topics that are greater than 5 60 days from before they filed their Contention 7, and 6 so untimely purely for that reason as well. But they 7 were more on the fringes. They weren't their primary 8 arguments.

9 JUDGE FROEHLICH: Okay. So that brings us 10 then to the question of whether the items that are in 11 the FACE report or in the license amendment, are 12 materially different from things that were in the 13 record of this case before that; is that correct?

14 MR. BURDICK: That's correct.

15 JUDGE FROEHLICH: Okay. So Mr. Lodge, 16 then to you. What is materially different in the 17 license renewal application or the FACE report, that 18 would trigger a new contention?

19 MR. LODGE: A new type of cracking, 20 microcracking, is finally conceded. Intervenors were 21 accused of merely speculating that there were other 22 cracks besides laminar. That's been now confirmed by 23 the July 8th, 2014 disclosure made by FENOC to the 24 Board.

25 I might point out that among the things NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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749 1 that we learned at that point in July were that since 2 February of 2012, that FirstEnergy knew that there was 3 a considerable amount of water being identified in the 4 core drillings that they were taking. Then again in 5 2013, there was some note taken of that, but the 6 significance of it was not summarized, brought 7 together into an identifiable explanation of causation 8 until this July 2014 disclosure.

9 So there also was identified in the July 10 2014 disclosure the propagation, the spreading of 11 laminar as well as other cracks. FirstEnergy had 12 decided to use electron microscopic analysis and that 13 is how they began to identify the very fine, sometimes 14 invisible to the naked eye, cracking.

15 So FirstEnergy's knowledge of the problems 16 has been growing, and the public somewhat behind 17 because of the slow pace of disclosures, is learning 18 and filing in the timely fashion, as timely a fashion 19 as can be expected.

20 JUDGE FROEHLICH: If the purpose of an 21 Aging Management Program is to detect changes in 22 matters that will need attention, why does it matter 23 what the cause of the cracking is? If the Aging 24 Management Program's goal is to be alert or be on the 25 watch for changes in cracks.

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750 1 What does it matter what causes or what 2 changes it? Why is that new and significantly 3 different, if again we're talking about the purpose 4 and goal of an Aging Management Program?

5 MR. LODGE: Well since in the last two 6 years, FirstEnergy itself has caused some of the 7 cracking propagation that's present, I would think 8 that that has a few implications for prospective 9 management of the cracking problem.

10 There is now saturation of the outer ten 11 inches of concrete that is apparently conceded not to 12 have existed at the 90 to 100 percent moisture content 13 level prior to the application of the coating to the 14 shield building.

15 The causation has changed. We have 16 multiple causations now being identified. Things 17 started out in 2012 in the initial root cause analysis 18 as some sort of discrete, controlled identification of 19 the cracking problem. Things are being handled.

20 We're going to seal the building. It didn't work.

21 That is a major material disclosure in 2014. I don't 22 know if that fully answers your question, sir.

23 JUDGE FROEHLICH: For the licensee, the 24 discovery of the new cracks or propagation of existing 25 cracks triggered the change or caused the change in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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751 1 the Aging Management Program. Was it this crack 2 propagation or additional cracking that triggered the 3 changes that were made to the aging management 4 program?

5 MR. BURDICK: Your Honor, when FENOC 6 identified the additional or the laminar crack 7 propagation in 2013, they undertook an extensive 8 evaluation, and the result of that included what's 9 found in the apparent cause evaluation, and then that 10 was done not necessarily for this license renewal 11 proceeding.

12 But then as they evaluated it and 13 responded to questions from the NRC staff, they 14 identified some changes, some enhancements that we 15 wanted to make to the shield building monitoring 16 program. So ultimately, there is some connection 17 there.

18 But I think this, as I've listened to the 19 Intervenors' response to this question, I think 20 they're answering the wrong question. The Board asked 21 what is materially different here, and the Intervenors 22 chose the content of Contention 7, the subject matter 23 for Contention 7.

24 As it's worded, and they reproduce it in 25 their original Contention 7 or the amended Contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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752 1 7, it's focused on the shield building AMP, and they 2 identified some challenges to things like the number 3 of inspections, the scope of the inspection and the 4 frequency of the inspections.

5 So they selected that, and here's what we 6 have to look at whether something's materially 7 different, and here it is not. If we go back to when 8 FENOC first submitted the shield building monitoring 9 program to the NRC in April of 2012, it was a 10 monitoring program to look at the laminar cracking, to 11 monitor the core bores in the building with a certain 12 frequency in certain locations, and to see if there 13 was any change in the nature of the cracking, whether 14 it's a lighter crack or a crack in an area that it 15 hadn't been before.

16 The shield building has changed a little 17 bit over time, but only to enhance it. It has not 18 changed. That is still the functioning, is to monitor 19 for any changes in the laminar cracking. So that's 20 where there hasn't been a material difference. This 21 is where we point to, in our brief, to the Oyster 22 Creek case in CLI-09-7, where we believe it's a very 23 similar circumstance.

24 There, the Applicant had an Aging 25 Management Program, and they enhanced it by adding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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753 1 additional inspections, and there both the Licensing 2 Board and the Commission concluded that enhancing a 3 program in that manner did not give a right to file a 4 new contention.

5 You know, the Commission explained there 6 in that case, CLI-09-7, that there just would be no 7 end to these NRC licensing proceedings if we could 8 just add a new contention for convenience during the 9 course of the proceeding based on information that 10 could have formed the basis for a timely contention at 11 the outset of the proceeding.

12 So here, if the Intervenors had a problem 13 with the way we were monitoring for propagation, which 14 hasn't changed, then they should have filed a 15 contention back in April of 2012.

16 MR. LODGE: If I may respond to that, sir.

17 JUDGE FROEHLICH: Yes.

18 MR. LODGE: What if the 2013 cracking 19 propagation had not been identified, because it had --

20 because the frequency was out to two or four years?

21 I think you're seeing very substantial timing changes, 22 sampling timing changes within the AMP, but more than 23 that.

24 The larger picture is is that I think that 25 there's an implicit concession here by the utility and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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754 1 staff, but especially the utility, that they're 2 increasing open to increasingly sophisticated 3 scientific explanations of cracking. The cracks are 4 bigger. The cracks are in new locations.

5 The cracks are propagating in new 6 directions, and there is not just layered or laminar 7 cracking; there's cracking that appears to be 8 penetrating into the outer layer of concrete. There's 9 very significant problems.

10 FirstEnergy's most central difficulty is 11 that they don't know where this will stop or what will 12 stop it. They're monitoring and they're gathering 13 some data. They have not done a comprehensive 14 analysis of the overall structure. They are hoping 15 that it will be sufficient for regulatory muster, for 16 there to be some spot checks, if you will.

17 I repeat: There's massive area that we 18 have cited, the 280,000 square feet, and 23 samples 19 and a cubic foot essentially worth of analysis 20 scattered across the building, but only identified 21 with known cracking.

22 JUDGE TRIKOUROS: One of the themes that 23 I read from the Petitioners' documents is that their 24 concerned that the full extent of the shield building 25 is not being adequately looked at. The focus seems to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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755 1 be more on, you know, what has occurred in the past, 2 and how it will propagate.

3 So I wanted to explore that a little bit.

4 Also, I want to make sure we're all on the same page 5 with the design basis of this thing. As I understand 6 this, this is sort of a secondary containment 7 structure, that annular region between the containment 8 and the shield building wall, that filters any 9 radiation release from the containment by tech spec 10 leakage.

11 It provides biological shielding clearly 12 to anybody outside the shield building, from any 13 neutrons that may come through from the reactor.

14 Also, if there's any tornado or hurricane generated 15 missiles, this shield building is there to protect the 16 containment, right, not the reactor as you indicated 17 earlier. But it's really to protect the containment.

18 MR. LODGE: Ultimately the reactor we 19 believe, but yes.

20 JUDGE TRIKOUROS: Right. For nuclear 21 engineers, containment and reactor are significantly 22 different.

23 MR. LODGE: Sure.

24 JUDGE TRIKOUROS: Okay, and as we said, 25 it's a very large surface area building. When you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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756 1 look at the FACE report, it had mentioned that there 2 were three things that caused the original cracking.

3 One was the -- it was a combination of 4 rebar spacing, high moisture content in the concrete, 5 and subfreezing conditions, which in that -- at that 6 point were brought on by this 1978 blizzard.

7 But those three things are still there, 8 right? We still have the same rebar spacing, 9 etcetera. So it would be difficult for me to believe 10 that cracking couldn't occur pretty much anywhere in 11 this building, laminar cracking. Is that a bad 12 assumption? Is that a bad belief?

13 MR. BURDICK: Your Honor, thank you. So 14 I think it's important to look at that there are two 15 separate causes here.

16 In 2011, when FENOC was performing the 17 hydroblasting through the shield building wall to 18 replace the reactor vessel head, they first identified 19 the laminar cracking, and they did extensive 20 evaluation, and you discuss some of the causes that 21 were identified for the cracking there.

22 One of the causes there, one of the 23 additional causes was a lack, and I believe it was 24 actually the root cause in the root cause evaluation, 25 was a lack of an exterior coating to minimize the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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757 1 amount of water that ingressed into the building.

2 And so FENOC, as one of its corrective 3 actions, applied that coating. So that's kind of the 4 first event. The second event then showed up in 5 August and September of 2013, when FENOC was 6 performing its inspections of the core bores, and in 7 monitoring for any crack expansion or propagation, 8 they identified some propagation scenarios and I'm 9 happy to talk more about that as well.

10 But after that evaluation, they determined 11 it was an ice wedging phenomenon. So I just want to 12 be clear that there is kind of two events. One was 13 the initial laminar cracking, and then the second one 14 is the laminar crack propagation.

15 JUDGE TRIKOUROS: So can you say there's 16 absolutely laminar cracking any place else in this 17 building right now?

18 MR. MATTHEWS: Can I supplement that? The 19 rebar spacing that you mentioned in the PII study 20 related to Contention 5, rebar spacing was significant 21 because it contributed to a stress pattern within the 22 concrete structure. The PII report found that the 23 concrete -- the initial laminar crack progressed to 24 its full length at the time of the 1978 freeze.

25 What's significant is they didn't find, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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758 1 when they looked in 2000 -- the early era, 2011-12, 2 they didn't find evidence of step fracture. When they 3 looked again more recently, after discovering crack 4 propagation, they found evidence of step fracture, but 5 only after the application of the coating.

6 So the hypothetical that you started this 7 discussion with, Judge Trikouros, was that the cracks 8 could be progressing. That's not what FENOC's 9 analysis found. They found an initial step, and then 10 since 2012, evidence of step fracture since. So --

11 JUDGE TRIKOUROS: But that's with respect 12 to that region, where the laminar cracking has been 13 identified to have occurred?

14 MR. BURDICK: And Your Honor, just to 15 clarify on that as well. When FENOC was performing 16 its cause evaluation other inspections back in the 17 2011-2012 time frame, it did look at the entire shield 18 building, to characterize where the laminar cracking 19 was, and it used impulse response technology. I think 20 it took 60,000 plus impulse response readings to cover 21 all the accessible areas of the shield building, to 22 identify where the laminar cracking is.

23 Then based on that, and based on what the 24 cause was, they put together the shield building 25 monitoring program, which uses the core bores to watch NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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759 1 for any propagation, in addition to the other core 2 bores that were used throughout the evaluation. So 3 FENOC did identify where the cracking was on the 4 shield building, but only as part of its management 5 program that looks at the core bores.

6 JUDGE TRIKOUROS: Okay. So you've 7 answered my question, I think, that you did look at 8 the entire shield building using impulse response 9 testing methods, and determined that there was no 10 laminar cracking to be -- that was identified in other 11 portions of the building?

12 MR. BURDICK: So the laminar cracking is 13 in different places of the building. We believe 14 through those activities with the impulse response, as 15 supplemented by other core bores, we were able to 16 characterize where it is. So it is in different parts 17 of the shield building.

18 JUDGE TRIKOUROS: All right. So as of 19 let's say -- what's that document, RCA 1, the first 20 root cause, you've had it characterized. There was no 21 laminar cracking anywhere other than what you 22 identified, and you put in place an AMP, which 23 included 20 core bores to examine those over the aging 24 program. Okay.

25 But the conditions for which the laminar NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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760 1 cracking occurred in the first place are still present 2 over this entire building; is that a correct 3 statement?

4 MR. MATTHEWS: To the extent the rebar 5 spacing that you're -- that we discussed initially, 6 the rebar spacing concern --

7 JUDGE TRIKOUROS: That was one of three 8 criteria.

9 MR. MATTHEWS: Yes. But it's the tight 10 rebar spacing, not rebar spacing generally. That 11 tight rebar spacing has already cracked. It's not 12 subject to recrack.

13 JUDGE TRIKOUROS: In that region. The 14 rebar, I mean the rebar is throughout the building.

15 So it's at that spacing, right?

16 MR. MATTHEWS: The rebar at that spacing 17 is limited to particular areas, the flute shoulders 18 around the main steam line penetrations. The rebar 19 spacing throughout the shield building is at a broader 20 interval. It's not the tight rebar spacing --

21 JUDGE TRIKOUROS: All right. So you're 22 saying that the rebar spacing in other parts of the 23 building is not the same as the rebar spacing where 24 the cracking occurred, and are you further saying that 25 the rebar spacing in the rest of the building would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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761 1 not be conducive to laminar cracking? Is that 2 something you can say or not?

3 MR. BURDICK: I think, you know, just to 4 clarify. There is different rebar spacing around the 5 steam line penetrations and along the top 20 feet of 6 the shield building, and if I recall correctly, the 7 rebar spacing is about six inches between the pieces 8 of rebar.

9 So the root cause evaluation looked at 10 that, and looking at the blizzard of '78 with the 11 sharp drop in temperature, the penetrating moisture 12 with the wind-driven rain and the stresses caused by 13 that event, were enough to cause the stresses, the 14 smaller allowable stress with a six inch rebar to 15 cause the laminar cracking.

16 It did not cause it as extensively in 17 other areas of the shield building. There is some 18 laminar cracking -- or beyond those areas, there is 19 some laminar cracking in the shoulders on the shield 20 building, which is also due to that design feature 21 with the shoulders that are sticking out from the 22 shield building.

23 So those are the areas where the original 24 laminar cracking was limited to, and also where we've 25 seen the, you know, sort of propagation.

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762 1 JUDGE TRIKOUROS: So it was around the 2 flutes?

3 MR. BURDICK: That's right, that's right.

4 But the mechanism is different from back then to the 5 issues raised by the Intervenors in this contention, 6 with the propagation identified in 2013.

7 JUDGE TRIKOUROS: Did the moisture that 8 occurred because of the original laminar cracking, did 9 that moisture penetrate the building as a result of 10 the blizzard, or was that moisture that was always 11 there, but the combination of rebar and cold combined 12 to cause the laminar cracking?

13 MR. BURDICK: My sense a combination of 14 both. But the shield building was designed. There 15 was no coding specification, which would have been one 16 of the -- I think the root cause from that 2011-2012 17 evaluation. So because it didn't have a coating, 18 there was some amount of moisture in the building, 19 just because there was nothing to prevent it from 20 coming in.

21 But I believe that blizzard, then, was 22 able to drive in more moisture at that time, combined 23 with the other factors that Your Honor has mentioned.

24 JUDGE TRIKOUROS: So it's a combination, 25 okay. Can we talk -- I just wanted to get sort of a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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763 1 baseline understanding of things as we ask questions, 2 and of course I wanted to elaborate a little bit on 3 the -- what I think the Petitioners were saying.

4 This moisture that's in this concrete is 5 throughout the entire concrete structure right now; 6 correct? Or well let me ask it that way. I could be 7 more specific.

8 MR. BURDICK: My understanding, there's 9 moisture in the concrete. I believe it's certainly a 10 higher amount of moisture towards the exterior of the 11 shield building. But we believe it is migrating 12 through the building or dissipating through the shield 13 building.

14 JUDGE TRIKOUROS: Okay. So the mechanism 15 by which the root cause reports, or at least one of 16 them said it would dissipate, is -- they refer to 17 absorption and dispersement mechanisms. Could you 18 perhaps -- they never explained that. So you have any 19 explanation for that?

20 In other words, this moisture is 21 disappearing. At least that's what they're saying.

22 MR. BURDICK: I'll try my best, and then 23 someone can correct me and elaborate.

24 JUDGE TRIKOUROS: I understand none of us 25 here are structural engineers, as far as I know.

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764 1 MR. BURDICK: So when -- it was October 2 2012. FENOC sealed the shield building with the 3 coating, applied that coating. There was moisture in 4 the building, because it was -- because there was no 5 coating there before. So once they've sealed that, 6 the shield building, it's preventing additional 7 moisture from coming in. Also, it's preventing 8 moisture from coming out.

9 So there's a finite amount of moisture in 10 there, and through the testing, it's primarily on that 11 outer region of the shield building. But our 12 expectation is that it will dissipate, which I think 13 means migrate through the building. So it's not 14 focused in the area of alignment of cracking, such 15 that that moisture can support the ice wedging, 16 because the ice wedging requires three things.

17 It requires the laminar crack or requires 18 an existing crack which is caused by laminar cracking; 19 requires a freeze event; and then it requires a 20 moisture -- the moisture has to be, I guess, a 21 significant enough concentration to have water at the 22 tip of that laminar crack, such that when you have a 23 freeze event, the water expands and causes the stress.

24 So the belief is that because there's a 25 finite amount of moisture and it will dissipate, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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765 1 it will dissipate to some point where there's not 2 enough water or moisture at that crack tip to cause 3 ice wedging.

4 JUDGE TRIKOUROS: Now when you say 5 dissipate, do you mean that it will migrate towards 6 the annular region between the containment and the 7 shield building on the inside surface of the shield 8 building? I mean that's the only place this water 9 could go, where it can eventually get out of the 10 shield building wall; correct?

11 MR. BURDICK: Your Honor, let me just 12 confer if I can.

13 (Pause.)

14 MR. BURDICK: Thank you, Your Honor, for 15 allowing me to confer. So the answer is yes, that 16 when we discuss the dissipation of the moisture, it is 17 towards the inner region of the shield building, 18 towards the annulus. That's both because of the, I 19 guess the concentration of moisture and there being a 20 relative humidity gradient as well that will cause 21 that moisture.

22 JUDGE TRIKOUROS: So most of the moisture, 23 then, is on the -- is within let's say ten inches of 24 the exterior surface of the shield building? You're 25 saying that's going to disperse towards the inside NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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766 1 surface and eventually dissipate that way?

2 MR. BURDICK: That's correct.

3 JUDGE TRIKOUROS: Okay. One other point.

4 In terms of freezing, I mean this is concrete. It's 5 a thermal insulator effectively. The inside surface 6 of this thing is seeing probably something like 7 reactor building temperatures, I would assume. You 8 know, my memory of PWRs I worked with, it's maybe 120-9 130 degrees in that reactor building, which would get 10 right through that containment and into that annular 11 region.

12 I would imagine the annular region is well 13 over 100 degrees normally. So some big fraction of 14 that shield building is fairly warm. But it wouldn't 15 propagate all the way through where you have a cold 16 outside. So you would have some 2D distribution. I'm 17 just making the -- I'm just trying to make myself 18 understand the heat transfer situation here.

19 So the freezing could only occur on the 20 outside, you know, within let's say, pick a number, 21 ten inches of the outside surface. Is that a fair 22 assumption? Do Intervenors have an issue with that?

23 MR. LODGE: Ten percent is outside 24 surface.

25 JUDGE TRIKOUROS: Freezing can only occur NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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767 1 on the outside, from the outside surface in of some 2 amount of distance, because the other side of this 3 building is very hot, and would propagate in some 4 amount of distance. I know if you deal with 2D 5 distribution, it wouldn't be above freezing except at 6 some region on the outer surface.

7 MR. LODGE: Yeah, correct. We're not 8 prepared to stipulate to adjudicatory facts, but yes.

9 JUDGE TRIKOUROS: Okay. I just want to 10 understand. All right. Do you have any indication of 11 how long it will take for this moisture to leave that 12 building?

13 MR. BURDICK: Your Honor, what the 14 apparent cause evaluation concludes is that it's 15 leaving the building. But as far as the exact time 16 frame, you know, we have not determined that. I think 17 what's -- another thing that's important here, based 18 on this discussion, is the laminar cracking that we've 19 seen is always in the same layer of rebar in the 20 shield building.

21 So it's always -- it's just in the one 22 outer rebar layer. So when we're talking about the 23 laminar cracking from 2011 and also any propagation, 24 it's always in that layer.

25 So I think, you know, this freezing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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768 1 question is also important is that some of -- because 2 of the design of the structure with the shoulders, 3 some of the locations of the laminar cracking are such 4 that they're -- that they are much deeper than other 5 locations, because of the slant of the shoulder.

6 So we did see that, and that's discussed 7 in the apparent cause evaluation. Some locations may 8 only see one freeze event in a winter, and others may 9 see more. So as it dissipates inward, you know, 10 that's when the risk of this laminar crack propagation 11 decreases.

12 JUDGE TRIKOUROS: But does the AMP make 13 the assumption that new laminar cracking will not 14 occur anywhere else in this building?

15 MR. BURDICK: Yes.

16 JUDGE TRIKOUROS: That's the concern of 17 the Petitioners.

18 MR. BURDICK: Yes. There's no basis to 19 assume that additional laminar cracking will occur.

20 Now I'm distinguishing that from any laminar crack 21 propagation. I think that's -- that's -- that's an 22 unknown, because it depends on many different 23 variables, including these ones that we've discussed.

24 That's one of the key reasons why this 25 shield building monitoring program is a monitoring NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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769 1 program, is to monitor this. You know, we understand 2 the nature of the laminar crack propagation, the ice 3 wedging phenomenon. We understand what happened in 4 the winters behind us. So putting these together, 5 we've developed a monitoring program, and that's why 6 we believe it's appropriate.

7 JUDGE TRIKOUROS: Well for example, does 8 the AMP require impulse response testing of the whole 9 building at some frequency?

10 MR. BURDICK: It does not require it, 11 although there are statements in there that we can 12 supplement the core bore inspections with additional 13 methods, if appropriate. That's why when we monitor 14 the core bores, I'm sure we'll talk more about their 15 locations and we'll certainly explain that.

16 But the AMP requires the monitoring of 17 these core bores, and then it's watching for whether 18 there's -- for the uncracked areas, whether there's 19 new laminar cracking, and if there's core bores in 20 cracked areas, whether there's a change in the nature 21 of that cracking.

22 If anything is identified, then that will 23 be further investigated under the monitoring program, 24 to determine if any additional options are needed.

25 JUDGE TRIKOUROS: But the focus is what is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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770 1 the regions that are cracked now. That's the focus.

2 The focus is not to identify any new cracking. I mean 3 the Intervenors point out that, you know, it's X years 4 before this laminar cracking was found. It's not an 5 invalid point. There's a lot more building.

6 MR. BURDICK: Well, it's -- to this 7 question, it's a combination. You know, certainly all 8 these factors factored into our decision as to the 9 number of core bores and their locations. Some of 10 this is discussed on the docket in the November 2012 11 RAI, where we explain the location of the 20 core 12 bores.

13 But what we determined, based on our 14 investigation and impulse response testing, was the 15 laminar cracking was more focused on the southern 16 exposure of the building, and also, as Mr. Matthews 17 explained, on the top 20 feet of the building around 18 the main steam line penetration.

19 So we've selected the 20 core bores before 20 this latest revision, to ensure that we covered many 21 of those areas where the laminar cracking was most 22 prevalent. But also some other regions, including the 23 flutes and other regions, just to ensure -- to look 24 for any other areas.

25 But the purpose of identifying the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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771 1 locations is to perform a representative sample of the 2 shield building to inspect. I would also point out 3 that although the shield building monitoring program 4 has not been put into place, a very similar program 5 has been in place under our maintenance rule, under 6 the Part 50 license, that there's very similar 7 inspections.

8 And in fact it worked in a sense that it 9 identified the laminar crack propagation, and I think 10 is another indication of the reasonableness of using 11 a monitoring program.

12 MR. MATTHEWS: I think also, if I may, 13 Judge Trikouros, to your point, with the discovery of 14 the initial cracking, FENOC went out and did survey 15 the whole building exactly as you're discussing, with 16 numerous core bores and complete circumferential 17 impulse response testing, and developed its 18 understanding of where the cracking --

19 JUDGE TRIKOUROS: Is that the 80 core 20 bores that they referred to in the RCA 1?

21 MR. MATTHEWS: 80 or 82.

22 MR. BURDICK: So the impulse response --

23 yeah, there's not a core bore, of course. I think 24 that was 60,000 plus locations. I think there's more 25 than 80 core bores or there had been throughout the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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772 1 investigation. But right now, I think there are 80 2 core bores that are in the building.

3 MR. MATTHEWS: But to your point, the AMP, 4 as originally proposed, was to assess -- we originally 5 looked at where cracking might be, to discover the 6 extent of the problem and develop the cause. From 7 that, the AMP then looked at where cracking was, to 8 see whether it was changing. There was no reason to 9 go back and look at the other places that were 10 uncracked.

11 When crack propagation was discovered, 12 FENOC modified the AMP in the areas of propagation.

13 There was no reason, and there's been none asserted, 14 why FENOC should go back and reevaluate the entire 15 building now or elsewhere.

16 Now FENOC did do more extensive core bore 17 testing in response to this discovery of propagation, 18 and did some impulse limited, more limited than the 19 entire building impulse response testing. But there's 20 been no indication and certainly no reason advanced 21 why an entire diagnostic of the entire building is 22 called for, either now or at any frequency going 23 forward under a monitoring program.

24 JUDGE TRIKOUROS: So basically, FENOC has 25 the ability at any time to go and look at all of these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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773 1 core bores and make a very thorough investigation of 2 this building. They don't want to be committed to 3 that in the AMP; is that the way I read this? The AMP 4 is basically 23. They run from 20 to 23.

5 MR. BURDICK: I would explain it this way, 6 that we don't think it's necessary, that the core bore 7 monitoring or the shield building monitoring program 8 uses core bores for a representative sample. So we 9 believe that the 20 that we discussed, plus the 10 additional three are appropriate, and satisfy all the 11 requirements for a license renewal.

12 But you're correct. You know, as we did 13 in 2013, there are others we can look at if we need 14 to, if there's, for example, an indication. But we're 15 not committing to that. We don't think we need to.

16 Judge Trikouros, if I may too, we've been 17 discussing a lot of the technical aspects of these 18 issues, and the shield building AMP. I just want to 19 emphasize, that I think we've gotten into way more 20 detail than have been provided in Contention 7 itself.

21 I note that this Board has made the point 22 to these Intervenors in I believe both the Contention 23 5 and Contention 6 orders, is they have to provide the 24 support for the contention themselves in their 25 pleading. The Board -- and so that's our argument.

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774 1 We can't supplement their arguments for them and 2 develop, you know, some support.

3 So I just want to make that point and make 4 it clear on the record. You know, we're going to be 5 on what was in the record.

6 JUDGE TRIKOUROS: But I wanted to make 7 sure that I understood the lay of the land, so to 8 speak, because you know, we're not going to reach a 9 decent decision if we have an unclear understanding of 10 what it is that we're evaluating here.

11 MR. HARRIS: Your Honor, for the staff, if 12 I may add one thing, because I think it's also very 13 easy to get confused with the terminology here when 14 we're talking about cracking and the laminar cracks 15 and then the cracking propagation, that we're really 16 talking about two different things.

17 It's been a long time since we discussed 18 the laminar cracks in a lot of detail. One of the 19 things that they found was with the laminar cracks is 20 that it actually split through the aggregate in the 21 concrete. So it was not, you know, what you would see 22 with your ice wedging, when it seems to go around the 23 laminar cracking.

24 So people sometimes, when you talk about 25 the cracks, is that we're really talking about two NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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775 1 different mechanisms at the point, and that you can 2 see the difference in the force. I'm sure we can go 3 into detail, but I think it's important that we sort 4 of distinguish between the laminar cracking and the 5 propagation that we're seeing now, so that we don't 6 get confused on the record as to what -- which one 7 we're talking about.

8 JUDGE FROEHLICH: Maybe this would be a 9 good point for me to follow up with you or with the 10 licensee. The purpose of the Aging Management Program 11 is to discover cracks, as I understand it, and in the 12 course of its operation, certain laminar cracks were 13 found.

14 It's kind of addressed this -- the Aging 15 Management Program as it exists, discovered or 16 confirmed propagation of the laminar cracking.

17 Correct me when I make a mistake here.

18 And also, we have come across a phenomena 19 of ice wedging, which leads to microcracking. Can you 20 please explain to me the propagation portion of the 21 laminar cracks, and how microcracking fits in either 22 to the propagation or to the original laminar cracking 23 that the AMPs are detecting?

24 MR. BURDICK: Certainly. Thank you, Your 25 Honor. Just to be fair, the purpose of the shield NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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776 1 building monitoring program is focused on just the 2 laminar cracking, to look for changes in the nature of 3 that cracking and some other issues such as the 4 coating.

5 But as far as cracking, it's focused on 6 the laminar cracking and just to be clear here, the 7 program itself, it talks about laminar cracking and 8 says we will monitor for cracking, changing material 9 properties, lost material concrete. So but here it's 10 focused on laminar cracking.

11 The laminar cracking is really just 12 referring to the cracks along this outer rebar layer.

13 So in 2011, that was -- what was found is this laminar 14 cracking along the outer rebar layer. When we're 15 talking about cracked propagation, all we're talking 16 about is that same laminar cracking just expanding.

17 So it's continuing to expand. But it's 18 still a laminar crack, but the 23 identification was 19 when we talk about --, it's just propagation that 20 laminar cracking. Microcracking is a whole separate 21 type of cracking. So it's not directly tied to the 22 cause of the ice wedging or vice-versa.

23 Microcracking is discussed in the apparent 24 cause evaluation, was identified in some of the 25 investigations where we withdrew a core from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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777 1 shield drilling and analyzed it. I think one thing 2 that needs to be clear is when we talk about 3 microcracking, it's really to support the conclusion 4 that there was ice wedging, because the microcracking 5 is an indication that there's moisture in the building 6 at that area.

7 Because what microcracking is is the 8 concrete, totally separate from this laminar cracking, 9 has very small pores in it. So when those pores have 10 moisture in it and you have a freeze event, then that 11 moisture in those pores will expand as it freezes, and 12 the microcracks are minuscule cracks coming from those 13 pores.

14 So when we talk about microcracking in the 15 apparent cause evaluation, it's just to show that 16 there was water transport to where the laminar 17 cracking is, to provide that moisture that's needed as 18 one of the three prongs for ice wedging.

19 JUDGE FROEHLICH: Microcracks are part of 20 the laminar cracks?

21 MR. BURDICK: No.

22 JUDGE FROEHLICH: Okay. You want to try 23 again?

24 MR. BURDICK: I understand. It's 25 confusing here. To have ice wedging, there has to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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778 1 moisture at that laminar crack. So before we talk 2 about microcracking, you just have to have moisture at 3 that laminar crack. If you have water at that cracked 4 tip, it freezes. That will cause some expansion of 5 that water at the crack tip, causing some stress, and 6 that can propagate the laminar crack, and so that is 7 the ice wedging mechanism.

8 Microcracking is completely separate. It 9 was something that was identified during our 10 evaluation, and was an indication that there was water 11 in the shield building, that would have reached the 12 laminar cracking.

13 So it's a separate mechanism. It was just 14 an indication that there's water in the shield 15 building, and it was one of the things we looked at in 16 our failure methods analysis and the cause evaluation, 17 that supported our conclusion that there was ice 18 wedging. There's two separate things.

19 MR. MATTHEWS: It's not a separate failure 20 mode of the concrete.

21 JUDGE FROEHLICH: Okay.

22 MR. MATTHEWS: At least as identified at 23 Davis-Besse, that has not been a concern.

24 JUDGE FROEHLICH: And is your allegation 25 different than that? It's not a separate mode or it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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779 1 is a separate mode.

2 MR. LODGE: It is a separate mode.

3 JUDGE FROEHLICH: You're suggesting it is?

4 MR. LODGE: Yes. Microcracking can 5 proceed radially, as opposed to laminar, which is more 6 on the order of layered -- more tied, I would say, 7 probably to the presence of the rebar.

8 There are a number of responses we have.

9 I first think that it is somewhat interesting that 10 even though the staff and the FirstEnergy have argued 11 vigorously that best not incorporate by reference our 12 2012 filings, we're talking about facts from the 2012 13 filings that were raised.

14 Thus proving that history is highly 15 relevant to trying to figure out and get a grasp of 16 what the future looks like in the shield building.

17 There are many sources of moisture infiltration into 18 the shield building, which date back to the 70's and 19 to the construction of the building and the fact that 20 it was left open for approximately three years, and 21 that even in 1976, there were cracks that were 22 identified on the roof of the shield building.

23 Davis-Besse has, of course, had a history 24 of boric acid leakage within the shield building, and 25 water vapor and water leakage. So there are some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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780 1 sources also from the sand bucket region.

2 We established from FOIA and other 3 internal FOIA documents from the NRC that the concrete 4 was sub-par and that particularly the concrete that it 5 is in contact with or near the ground level of the 6 shield building may be developing its own problems.

7 There are barrier degradation difficulties, that 8 there's lot of water source problems here.

9 The discussion of the impulse testing is 10 problematic because from what we discerned, that 11 occurred before they applied the coating. So it would 12 seem to us that those test results may be completely 13 out the window and useless at this point, that there 14 has been damage identified and now admitted by FENOC 15 since that time, and apparently attributable to the 16 fact of sealing the building, very very decades 17 belatedly.

18 The microcracking is far different. As 19 Mr. Harris pointed out, the laminar cracks may have 20 actually sheared through aggregate. The microcracks 21 may be working their way around the more solid or more 22 integral portions of the concrete.

23 But the problem with the microcracking is 24 that it is very capable of penetrating radially, 25 inward from outside inward on the shield building.

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781 1 Just one moment, please. I have notes. FirstEnergy 2 has a policy that 1/16th inch surface cracks aren't 3 even required to be repaired, meaning that there's a 4 conscious determination to allow pathways for moisture 5 to remain open as pathways.

6 It is somewhat remarkable to note that the 7 decision that's taken place just in the last half hour 8 or so actually suggests very strongly that there 9 should be an adjudication. So that instead of 10 listening to unsworn representations of counsel after 11 they've talked with their respective experts and 12 engineers, and you know, that they're simply saying 13 things that they're told, we can hear from those 14 experts and engineers, and ask our own questions of 15 them.

16 I think that this is a very complicated 17 issue, that once again 23, you know, an additional 18 three bore holes is not a significantly useful 19 informational device. But it does constitute an 20 admission that there are some big changes that have 21 now been discovered, and now are admitted.

22 JUDGE TRIKOUROS: With respect to the 23 dissipation, the dissipation mechanism is not 24 discussed in -- I just want to make sure -- is not 25 discussed in the reports. We were just -- we were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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782 1 sort of thinking out loud, if you will, where water 2 might be able to go.

3 I mean it's rational, but it's not in the 4 report. So I want to put that on the record.

5 MR. BURDICK: The reports talk about 6 water, potential water sources, and then that those 7 potential water sources are no longer available, 8 because of the sealing of both the shield building 9 walls and the shield building dome.

10 So I think with respect to dissipation, it 11 does discuss that there's a finite amount of water, 12 and there is some discussion about the humidity in the 13 internal. So I think there is some support, even if 14 it's not discussed in excruciating detail.

15 JUDGE TRIKOUROS: Okay. Umm, I guess I 16 was going to ask the question later, but maybe I 17 should bring it in now.

18 (Off mic comments.)

19 JUDGE KASTENBERG: I appreciate your 20 comment before about it's so easy to slip into 21 technical discussions, because they're interesting.

22 But I just wanted to clear one thing up on the 23 timeliness issue that Judge Froehlich started at the 24 very beginning.

25 I just want to get a sense of something, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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783 1 because clearly Petitioners claim that the contention 2 is timely, and NRC staff made an opening statement and 3 an argument that it's not timely. And as I read the 4 licensee's submittal or pleading, you are kind of in 5 the middle, I guess.

6 It says here "Parts of Contention 7 are 7 untimely," which leads me to believe that there are 8 parts that are timely. So maybe we could kind of 9 complete the discussion about timeliness before we get 10 into the discussion of the technical questions and 11 other issues regarding -- procedural issues. But 12 maybe we can complete the discussion on timeliness.

13 So where do we stand? We have it's not 14 timely, we have it's timely and we have it's partially 15 timely. Some parts are timely and some are not. So 16 perhaps a statement from each party on this, and maybe 17 we can go on to other things.

18 MS. KANATAS: I'm happy to make a 19 statement. Again, the standard in both 2.309(f)(1) 20 and yes, it applies here, is that it's new and 21 materially different. So while something might be new 22 in terms of 60 days from the time filed, it also to be 23 timely has to be materially different.

24 I think that is the crux of staff's 25 position, that none of the information cited to in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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784 1 Intervenors' Motion to Admit and Amend is materially 2 different, and that it does not support the 3 contention, and also that there were indications 4 previously in the 2012 AMP that these type of 5 modifications would be made, as well as the Contention 6 5 and 6 filings, which have already been considered by 7 the Board.

8 So that really -- it's the "and materially 9 different" portion, I think, that we primarily focus 10 on.

11 JUDGE KASTENBERG: So your argument is 12 based on the idea that it has to be both, timely and 13 material?

14 MS. KANATAS: Yes, yes.

15 JUDGE KASTENBERG: Not just timely or 16 material?

17 MS. KANATAS: Yes, correct, correct.

18 JUDGE KASTENBERG: Got it.

19 MS. KANATAS: And it must support the 20 proposed contention, and in our mind, none of the 21 information supports admissibility of the contention.

22 MR. HARRIS: And just to add some facts to 23 that, looking at some of the AMPs, and as they've been 24 modified over the years, things like ice wedging and 25 these kind of freeze-thaw cycles and crack propagation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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785 1 were contemplated in FENOC's response as early as 2 April 5th, 2012, that you know, there could be freeze-3 thaw cycles that could affect these.

4 So these are all things that they would 5 look at, and now that they've found it, they've made 6 it more explicit in their AMP, you know, to look at 7 these things, now that you're seeing the propagation 8 that they contemplated in the AMP originally.

9 MR. BURDICK: Thank you. Let me try to 10 clarify our position here. I think the reference to 11 different parts of Contention 7 are untimely was 12 because we have multiple arguments for why different 13 information is untimely.

14 So as discussed in our answer on pages 54 15 through 56, we identify certain topics discussed 16 throughout the Contention 7, the original and the 17 amendment, where they refer to documents or 18 information that were available more than 60 days 19 prior to the submission of Contention 7.

20 So there are some arguments that fall into 21 that category, things like discussing an Inspector 22 General report from 2002. So things that were just 23 simply old information, things like the 2012 and 2011 24 emails on the design and licensing basis that just 25 don't satisfy it for that 60-day reason.

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786 1 But certainly they filed their contention 2 within 60 days a couple of documents. So, you know, 3 we can't say that there aren't some new facts in 4 there. But what we do say, I think consistent with 5 the staff, that there isn't any material new 6 information in those documents.

7 For that part of our argument, I'd point 8 the Board to pages 52 through 54. So I think 9 collectively, the contention is untimely. The 10 confusion was we were making multiple arguments, not 11 just the one. Just to reemphasize, I think our 12 primary argument that we start with on timeliness 13 issues is this one that I mentioned earlier about the 14 Oyster Creek.

15 This contention is really challenging the 16 revisions to the shield building AMP that were made on 17 July 3rd, 2014, and as the staff just explained now 18 and we explain in our briefs as well, the Commission 19 and the Oyster Creek Licensing Board concluded that 20 adding additional inspections or other types of 21 enhancements to an Aging Management Program does not 22 provide a new opportunity.

23 So that's the focus of our argument. I 24 think that's the key point with respect to timeliness.

25 JUDGE FROEHLICH: Okay. You have the last NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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787 1 word on this.

2 MR. LODGE: Thank you. As I understand, 3 the staff's point is gee whiz, FirstEnergy promised, 4 when they formulated their AMP, that they would stay 5 open to new information and maybe develop some new 6 data, and perhaps change their approach if there were 7 reasons to change their approach.

8 That's fine. That's a pledge. That is 9 not an act. What has happened in the interceding time 10 is that there is new evidence, there are new facts, 11 there is new scientifically verifiable, objective 12 information, and that information points in a new root 13 cause direction.

14 It points in the direction of an 15 inescapable conclusion that the cracking phenomenon is 16 ongoing, is not over, and is not solved, is not 17 perhaps conceptually completely understood yet.

18 So yeah. We were partly within the 60-day 19 limit because we're pointing out is these earlier 20 promises to stay open to changing the AMP, and there, 21 yes, concededly have been some minor changes to the 22 AMP in terms of changing the schedule of doing 23 analysis work.

24 But what the bigger problem is is that 25 there is totally insufficient knowledge, based on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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788 1 changing conditions, based on the changing conditions 2 caused in large part by the coating of the shield 3 building. So the problem here is we're quite timely.

4 The Intervenors raised this -- we made the 60-day 5 limit, but we made the evidentiary limit.

6 The public has not known of the 7 considerable moisture infiltration problem. Nobody 8 knows what the dissipation rate is going to be, how 9 long it will take, what the winters are going to be 10 like and how much further damage will occur before 11 there is, I guess for want of a better word, 12 equilibrium again achieved to the 65 percent humidity 13 level or whatever you want to call it.

14 But the problem is is that we're 37 months 15 into this, and we're still having these new revelatory 16 discussions and discoveries, new propagation, new 17 cracking and new methodologies for that cracking to 18 occur. So I think it's quite untimely.

19 JUDGE FROEHLICH: Mr. Lodge, I think 20 you've outlined a number of the new elements. Could 21 you address, I guess, the staff's perspective, that 22 there's nothing materially different in these new 23 elements, because I believe that was their point. Not 24 that there are new, issued new facts that are coming 25 to light.

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789 1 But the second part of that, I guess, 2 according to what the staff had said, is that they 3 have to be materially different from what was 4 previously in the record.

5 MR. LODGE: Well the previous 6 understanding was that there was a finite -- that we 7 have identified the laminar cracking, we've identified 8 the source, and we're going to slap a coat of paint on 9 it, for want of a better word, high quality coating 10 material, and we're going to change the penetration 11 ability, of the resistance, if you will, of the shield 12 building.

13 Well, that's all been done and as part of 14 a -- what's turning out in retrospect to look like an 15 experiment, there are new implications for it. That's 16 different. Please remember also, Your Honor, we're 17 talking about when did the public -- when was the 18 public finally let in on this information, and that 19 did not occur until July.

20 It may be two years old or two and a half 21 years old, but it is -- it cannot be something which 22 becomes the fault of the Intervenors for simply not 23 knowing it. It is materially different because we 24 have a new cause articulated by FirstEnergy's 25 consultants, not by the public.

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790 1 We have propagation spreading identified.

2 So the new, materially new information is is that this 3 is ongoing. It ain't fixed. It is not stopped. It 4 has not been curbed, and I repeat. It may also not be 5 fully understood. There are welcome and increasingly 6 sophisticated scientific analyses that are starting to 7 appear in PII's writing.

8 But the thing is is that yes, there's 9 considerable material difference between what we know 10 as of July of this year, versus what we knew even in 11 the spring of this year.

12 JUDGE FROEHLICH: But Mr. Lodge, I mean 13 let me just tell you what we have to deal with in our 14 decision. If the previous AMPs had, you know, Content 15 A in them and this July AMP has Content A plus B in 16 it, the fact that there's a B in it doesn't mean that 17 you have the legal right to go back and question the 18 A part, which was available two or three times earlier 19 in years.

20 Now that's what we're being told, is that 21 that is not admissible. You never submitted a 22 contention that criticized A before, even though it 23 was available.

24 MR. LODGE: June 4th, 2012 we did, Your 25 Honor, and we -- understand our contention is is that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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791 1 they don't know enough to be making the judgment calls 2 they're making. This is -- particularly the earlier 3 calls apparently were grossly erroneous, and I am 4 operating from 20-20 hindsight here.

5 But we did critique the AMP before. It 6 was terribly insufficient; it wasn't really fully 7 investigatory. The response at the time, and I'm 8 willing to accept the Board's decision at the time.

9 But the response at the time was "Hey, man. We've 10 done all these impulse tests; we have been all over 11 this building."

12 But there's been a lot of change since 13 that time, much of it initiated by the utility itself, 14 and now a certain number of chickens are coming home 15 to roost, and it is creating new problems. They 16 actually could also be because of the more 17 scientifically capable investigatory method of 18 electronic microscopy. They may actually simply be 19 identifying things that could have been identified had 20 that technique been used in 2011-2012.

21 But there's also propagation on top of 22 that. There is new cracking besides. So I simply 23 repeat. We're talking about a wait-and-see monitoring 24 effort that is revealing new information, and the 25 utility's saying "hey, the plan works. We're finding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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792 1 this stuff, and in fact we're going to now go to an 2 annual basis for a while."

3 But they do not have a knowledge base of 4 the status of the entire building, and they're looking 5 at new changes. It is not enough to say that we're 6 going to keep looking at this for the remaining two 7 and a half or three years of license activity under 8 the 40-year license, and then we'll just continue 9 keeping an eye on things.

10 There's no plan for mitigation. There is 11 some discussion of how the building is out of 12 compliance with this licensing basis. I don't see how 13 that gets -- how that passes muster and justifies a 14 20-year extension at this point.

15 JUDGE FROEHLICH: We're going to talk more 16 about these others as this day progresses.

17 JUDGE KASTENBERG: Thank you. I just 18 wanted to follow up on something that Mr. Harris said 19 before about the ice wedging, that there was some 20 indication that there might be ice wedging in a pre-21 2014 report. Could you point us to where we could 22 find that?

23 MR. HARRIS: It is in a letter response, 24 the July 3 modifications. No, that's not the right 25 one.

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793 1 MS. KANATAS: Uh-uh.

2 MR. HARRIS: There is -- FENOC had 3 provided a number of responses to RAIs related to the 4 Aging Management Program. There is an April 5, 2012 5 response, and that ML number is ML12097A520, and in 6 the enclosure to it, it discusses cracking of concrete 7 from freezing water that has permeated the concrete.

8 It's monitoring the surface condition, the 9 bore holes, the core bore samples and changing crack 10 conditions and by visual inspection. So this is one 11 of the things, one of the things that they were 12 monitoring from the initial AMP, you know.

13 As we continue to go through this, this 14 same sort of language appeared in other responses and 15 November 2012, 20-2012. That ML number is ML 16 12331A125. It had very similar language in an 17 enclosure. That can be found in Enclosure A, page 8 18 of 12. These are letters that FENOC sent in in 19 response to RAIs.

20 Then when you get to the final one, and of 21 course some of that becomes more explicit in terms of 22 not just being in these enclosures; they're talking 23 about now that we have this crack propagation, we're 24 going to be trending it, you know. Whereas before 25 with those responses, there was not any indication of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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794 1 propagation.

2 So you know, it was one of those things 3 you don't need to explicitly say, I should trend the 4 crack when I don't expect to find any crack.

5 JUDGE KASTENBERG: Right.

6 BH So it's just -- it's one of those 7 that's almost implicit in what they were monitoring, 8 that as soon as you find it, you need to trend it.

9 MS. KANATAS: And if I may, Your Honor, 10 getting at the timeliness issues in response to some 11 of what Intervenors just said, to the extent that 12 they're talking about this new cracking being 13 materially different, it was the subject of their 14 Contention 6.

15 So it was August and September 2013, and 16 the subject of Contention 6. So to the extent that 17 they're talking about the full apparent cause 18 evaluations ice wedging, as Mr. Harris just said, 19 multiple submittals from 2012 and through these years 20 have indicated that ice wedging aging effects may be 21 identified, including ice wedging, and that ice 22 wedging could affect rebar and coating effectiveness.

23 To the extent that this is an issue about 24 compliance with the current licensing basis, that's 25 clearly outside the scope. Therefore does not support NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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795 1 admissibility and gets at that materiality prong of 2 timeliness. Thank you.

3 MR. BURDICK: Judge Froehlich.

4 JUDGE FROEHLICH: Yes?

5 MR. BURDICK: Can I make one more point on 6 the timeliness before we move off this topic? You 7 know, I've heard from their Petitioners in their 8 explanation a few times today. They talk about how we 9 didn't think there would be propagation.

10 There is some discussion about it in our 11 root cause evaluation, that we didn't expect 12 propagation from I think it's thermal fatigue. But 13 regardless of that, we put in -- in 2012, we 14 deliberately put in the shield building monitoring 15 program to monitor exactly for propagation, to look 16 for these types of incidences, events.

17 So it functioned, and that's really our 18 timeliness argument here, is we had a program in 19 place. Part of the discussion of the Commission in 20 the Oyster Creek decision that I referenced earlier 21 was they referred to some of the Licensing Board's 22 discussion of, you know, why you shouldn't be allowed 23 to keep doing this, that if the Petitioners have a 24 problem with this enhanced program that has additional 25 inspections, you know, a shorter or a larger NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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796 1 frequency, then they should have had a problem with 2 the earlier monitoring program and should have 3 challenged it then. So that's really our argument 4 here.

5 JUDGE FROEHLICH: Did the earlier program, 6 the AMP deal or address the microcracking?

7 MR. BURDICK: The shield building 8 monitoring program has never been designed to address 9 microcracking itself. Instead, there's a separate 10 AMP, the structures monitoring AMP, that addresses 11 other types of cracking within concrete structures, 12 including microcracking.

13 JUDGE FROEHLICH: Yeah. I think certainly 14 the answer, looking at the FACE report, quotes 15 something. It says "Performance International 16 concluded in RCA 1 that the general determination, it 17 was not likely to propagate." That was the original 18 conclusion.

19 "Note that in RCA 1, ice wedging was not 20 considered because it had not been known to be 21 involved in concrete crack initiation." So basically 22 they didn't know. Now they know.

23 MR. BURDICK: And Your Honor on that 24 point, we're not disputing that. We acknowledge that 25 in that document. But our point is notwithstanding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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797 1 that conclusion, we still put in a shield building 2 monitoring program to monitor for propagation, and it 3 functioned. It identified the propagation.

4 So that's from a timeliness perspective is 5 our argument there, consistent with the Oyster Creek 6 case.

7 MR. HARRIS: And Your Honor, just to 8 address the microcracking a little bit, microcracking 9 is somewhat inherent on all concrete structures, you 10 know, because there is water present in them. So any 11 structure that's getting a freeze-thaw cycle, that was 12 true when we started this proceeding a long time ago, 13 that you know, microcracking is an inherent part of 14 any large concrete structure.

15 MS. KANATAS: In the FACE, the Full 16 Apparent Cause Evaluation discusses this on page 63 of 17 98. The presence of moisture is inherent in any 18 concrete structure, and as in the case of the shield 19 building, it was not believed to pose any challenges 20 to the coating effort.

21 JUDGE FROEHLICH: Okay. Well, what I'd 22 like to do is take about a ten minute break at this 23 point, and collect our notes, and I'm going to get 24 into the contention itself and move away from some of 25 the timeliness and groundbreaking -- the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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798 1 groundbreaking or the initial portions of this.

2 So let us stand in recess for just ten 3 minutes. We'll resume against 11:00 a.m. Thank you.

4 JUDGE TRIKOUROS: I just have a couple of 5 preliminaries I hadn't finished before and I want to 6 -- this deals with which parts of the shield building 7 were originally coated. There seems to be some 8 confusion and I wanted to make sure I understood that.

9 As I can determine from looking at RCA1, the portion 10 below grade of the shield building was waterproofed 11 back in the '70s and also the dome of the shield 12 building back in '76, I believe. Is that correct?

13 MR. BURDICK: Let me check on the dome, 14 Your Honor.

15 (Pause) 16 MR. BURDICK: Thank you, Your Honor. For 17 below grade there is a waterproof membrane that's 18 around the shield building walls that are below grade.

19 The dome, there was some evidence of some coating 20 applied prior to 1976, however, the dome and the 21 above-grade walls were all re-coated in -- or coating 22 was applied in October of 2012 as a corrective action 23 from RCA1.

24 JUDGE TRIKOUROS: So the dome was also 25 coated at that point? Nothing was done below grade NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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799 1 though, right?

2 MR. BURDICK: Just there was a waterproof 3 membrane, but not the same type of coating about, yes.

4 JUDGE TRIKOUROS: I just wanted to read 5 from the root cause report. It says, "The shielded 6 building dome lacks susceptibility to the causal 7 factors for concrete cracking found in the 8 architectural flute shoulders involving waterproof 9 coating on the exterior surface." It says, "The 10 discontinuities, stress concentration factor and the 11 intermediate radial reinforcing steel and high-density 12 reinforcing steel. Therefore, only the remainder of 13 the accessible above-grade exterior wall of the shield 14 building should be examined similar to those." Is 15 that where we are and this is correct?

16 MR. BURDICK: That's correct from the --

17 the conclusions in that RCA1 document was it was the 18 shield building walls and portions of those that are 19 susceptible to the laminar cracking that was 20 identified at that time. And then no laminar cracking 21 was identified except for in those areas of the shield 22 building wall above grade.

23 JUDGE TRIKOUROS: Does the AMP exclude 24 these areas, specifically the dome and the below-grade 25 or do you know if they've ignored and just --

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800 1 MR. BURDICK: Because there was no laminar 2 cracking identified in the dome and their conclusion 3 was it's not susceptible. It's excluded from the 4 extent that the Shield Building Monitoring Program is 5 monitoring for additional crack propagation. That 6 same Shield Building Monitoring Program also covers 7 the coatings. And so the coating applied to the 8 shield building dome in October 2012 is covered by 9 that AMP.

10 JUDGE TRIKOUROS: Okay. Thank you.

11 JUDGE KASTENBERG: So I wanted to get now 12 more to the technical aspects of the contention as 13 proffered by petitioners. And first is the question 14 of the containment, the concrete structure itself.

15 And in your answer you summarize the function of the 16 structure. You said, "As stated in the LRA the shield 17 building is a concrete structure surrounding the 18 containment vessel. It is designed to provide 19 biological shielding during normal operation and from 20 hypothetical accident conditions."

21 So I'm curious about the hypothetical 22 accident conditions. And can you say whether that 23 includes both design-basis accidents of a hypothetical 24 nature and/or what used to be called Class 9 or 25 beyond-design-basis, which I think now are called NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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801 1 severe accidents? So can you clarify what you 2 actually mean by "hypothetical accident conditions?"

3 MR. BURDICK: Certainly. The shield 4 building, given that it is a two-and-a-half foot thick 5 wall with concrete with rebar in it, provides some 6 amount of biological shielding no matter what just 7 because of its nature. Any radiation would be 8 directed out the wall. Some of that would be 9 mitigated by the wall. And so I think this discussion 10 here is certainly during regular operating conditions, 11 but also would provide some protection.

12 Let me check though, if you'd like, Judge 13 Kastenberg, whether there are specific accidents that 14 are accounted for. I don't know that level of detail.

15 MR. HARRIS: Your Honor, I might be able 16 to add something to that while he's checking. At 17 least in terms of the technical requirements for the 18 reactor is we're dealing with what are traditionally 19 called design-basis accidents in terms of their 20 intended functions, so these severe accidents, what 21 used to be called Class 9 accidents or beyond-design-22 basis accidents. So where this tends to get 23 overlapped is when we start looking at severe accident 24 mitigation analysis. Its intended function would be 25 for the design-basis accidents required as part of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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802 1 regulations which do include some beyond-design-basis 2 accidents: station blackout, ATWIZ, those kind of 3 things.

4 But in general I think for what you're 5 referring to the severe accidents that are account for 6 in the SAMA don't actually take any credit for the 7 concrete shield building.

8 JUDGE KASTENBERG: That's where I was 9 going with this line of questioning. Thank you.

10 MR. MATTHEWS: I'd add one caveat there, 11 Judge Kastenberg. And that is correct, with the vast 12 majority of the SAMA the analysis assumes that there 13 is no shield building in the release path. There are 14 some SAMA for interfacing system loss of coolant 15 accidents where you have penetrations through. And so 16 in small-break LOCA analysis there are some that 17 consider the flow path there, the flow path up through 18 the shield building vent, a very small considerate in 19 the SAMA analysis. But that is the existence of a 20 vent path, not the exterior laminar coating.

21 JUDGE KASTENBERG: Yes. So, reflecting 22 back on your SAMA analysis, I guess the way I would 23 phrase the question is do you take credit for the fact 24 that the shield building is there or is not there? In 25 other words, did it enter at all into any of your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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803 1 consequence calculations in your SAMA?

2 MR. MATTHEWS: And I'm not clear whether 3 it's the consequence -- the maps or the max piece of 4 it. I'm not a SAMA expert.

5 JUDGE KASTENBERG: I get that.

6 MR. MATTHEWS: But for a small subset of 7 the small-break LOCA accidents, the interfacing system 8 there is credit for the pathway between the 9 containment and the shield building. So it's a 10 qualified yes. There is some consideration of it.

11 It's interesting, but as a contention of 12 omission there's no suggestion why cracking on the 13 exterior surface of the shield building is in any way 14 relevant to the analysis. There's no discussion of 15 what's wrong with it. There's not even a reference to 16 the analysis itself, whether it's the identification 17 of AMPs, the screening of AMPs, the assessment of 18 AMPs, the cost benefit evaluation of the AMPs.

19 There's no reference to any of that. Just SAMA as if 20 it were some incantation that trumps the contention 21 admissibility rules.

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804 1 in some material way. There's nothing there. It just 2 says SAMA should be considered and they invite the 3 Board to conduct some investigation. So on the 4 threshold matter is the contention sufficient?

5 There's nothing there to assess. The discussion we 6 are having or started to have is more on the merits of 7 it, and cracking would have no effect on the SAMA 8 analysis.

9 JUDGE KASTENBERG: Thank you. Well, 10 perhaps we should ask Mr. Lodge to --

11 MR. LODGE: Thank you. The incantation is 12 that a couple of NRC engineers projected in 2011 that 13 there was a possibility in the event of a minor 14 earthquake or a heat event within the containment of 15 the reactor that there could be a serious, if not 16 massive, collapse of a lot of the shield building 17 material down to a thickness of perhaps three or four 18 inches in the inner rebar layer. That has not been 19 discussed. There certainly are some questions about 20 the loss of the filtering action that is performed by 21 the building. It's not simply mumbling SAMA as though 22 it were something sacred and indecipherable, although 23 it is both of those things, too.

24 JUDGE KASTENBERG: Can you tell me is 25 there any indication in your pleadings as to what you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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805 1 think the effect of the cracks would be or the 2 collapse would be on the SAMA analysis itself, how it 3 might actually change the result? Is there anything 4 in what you've submitted to us?

5 MR. LODGE: Well, you mean besides the 6 obvious fact that perhaps 90 percent of the concrete 7 function to protect from outside missiles and that 8 sort of thing would be gone? I mean, I think that 9 there's a certain obvious problem that would occur.

10 There's also the opportunity of, as we 11 said I think at page 14 of our reply on October 10th 12 -- we cite an NRC engineer who talks about if there 13 were loss of concrete FACE material, that there could 14 be a collapse of the rebar. And if you're talking 15 about a collapse of the rebar in the direction of the 16 containment, the containment is an inch or an inch-17 and-a-half thick steel shell with its own corrosion 18 problems, incidently, and I haven't heard or seen 19 anything that suggests that it would be strong enough 20 to hold up a significant hundreds-or-thousands-of-21 tons-kind of collapse of shield building material onto 22 it.

23 JUDGE KASTENBERG: But how would you 24 envision, given that scenario, that the reactor itself 25 would still be operating at that point?

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806 1 MR. LODGE: How would I envision it would 2 still be operating?

3 JUDGE KASTENBERG: Yes, I think we heard 4 staff say this morning that in extended operation of 5 the plant that if for some reason the concrete vessel 6 reached the point where it's no longer function-able, 7 the reactor would have to be shut down. And in a 8 shutdown state how would you envision a severe 9 accident taking place?

10 MR. LODGE: I think a severe accident took 11 place at one of the reactors at Fukushima that shut 12 down, too. I think shutdown reactors certainly can 13 pose some problems if there is a massive failure such 14 as we're talking about. And this is not to dodge it, 15 but under NEPA the responsibility of the public, of 16 the intervenor, is to raise the unconsidered 17 potential, not to necessarily explain every nuance of 18 what might happen as a result of the scenario. I 19 think that there would be some serious problems 20 occasioned by destroying a reactor that's in a 21 shutdown state, or damaging it.

22 (Off microphone comments) 23 MR. LODGE: That's true, too. My friend 24 points out that an earthquake could potentially cause 25 a very rapid, if not sudden, collapse of a perhaps NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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807 1 operating nuclear reactor.

2 JUDGE KASTENBERG: And do you have any 3 data to indicate that earthquakes are an important 4 external event for Davis-Besse?

5 MR. LODGE: In 2012 -- it's in the record 6 some place, but in one of our filings we identified a 7 document as V1, which actually does talk about that.

8 MR. MATTHEWS: Judge Kastenberg, if I 9 might respond? The intervenors point to some staff 10 emails, internal discussions in the deliberative 11 process that they've referred to in the previous 12 iteration of the contention that have no connection to 13 propagation. So we're untimely in the first instance.

14 But coming again to those points, they're 15 internal discussions that are in conflict with the 16 staff's ultimate conclusion. The staff, to its 17 credit, was looking very hard at FENOC's analysis.

18 FENOC's analysis concluded that the shield building 19 was capable of performing its intended functions. The 20 structural integrity, even discounting a conservative 21 discount for the rebar, was still able to perform its 22 intended function. It was able to withstand the 23 seismic qualifications, the seismic requirements.

24 The staff came to that same conclusion.

25 And the staff as recently as May of this year NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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808 1 reiterated that same conclusion at looking at the 2 analysis. The laminar cracking phenomenon has not 3 impacted the shield building in the way the 4 intervenors suggest. And all they ride on is an 5 internal staff deliberation. Even it were timely, 6 there's no basis for it.

7 And to your point do they identify 8 anything wrong with the SAMA analysis or suggest how 9 it would change, I think the omission in the answer 10 answers it.

11 MS. KANATAS: And I would add to what was 12 just said. In support of Contention 5, when these 13 claims about internal emails that the staff was having 14 in relation to the restart of the reactor, there were 15 mis-characterizations that were just repeated. And I 16 would just point to the affidavit of Abdul Sheikh that 17 was submitted as part of the Contention 5 filings, 18 which we discussed two years ago at oral argument when 19 these claims were raised before. And again, they do 20 have to do with the ability of the plant to restart.

21 And as Mr. Matthews just indicated, the 22 shield building is classified and designed as a 23 seismic class 1 structure, which means that it is 24 designed to remain capable of performing its functions 25 even during and following a design-basis or safe NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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809 1 shutdown earthquake event. And as Judge Kastenberg 2 alluded to, if the shield building was determined not 3 to be operable, it would have to shut down. And when 4 a plant is shut down, the gaseous effluents and direct 5 radiation levels within the plant are significantly 6 reduced. Thank you.

7 MR. LODGE: Judge Kastenberg, just to 8 answer your question, in what I'm guessing to be 9 approximately 1983 the ACRS raised some serious 10 questions in a document called, "Licensing Basis 11 Seismic Ground Motion Concern." We identified it in 12 connection with one of our 2012 filings as Exhibit 13 B/1. I'd be happy to provide it if you want to make 14 a copy.

15 JUDGE TRIKOUROS: I guess since we got 16 into design-basis analyses, we might pursue that a 17 little bit.

18 Okay. First of all, in the May 12th, 2014 19 inspection report it indicates that FENOC had 20 completed two calculations presumably to reestablish 21 the design-basis of the shield building. And I guess 22 the inspectors looked at those calculations. Do you 23 know what the status of the NRC review of those 24 calculations is?

25 MR. HARRIS: I believe there is one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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810 1 unresolved item. I don't believe it's the actual 2 calculations, but one of the methods that they used.

3 I can't really comment too much further on that 4 because it's still being under consideration within 5 the staff in terms of that, what they submitted.

6 JUDGE TRIKOUROS: Okay. Well, as I 7 understand it, again, just from the material in the 8 record, there's a method of spherical shells that 9 apparently is what the USAR calls for for the design-10 basis calculation for the shield building. I believe 11 these calculations were done using ANSYS, a modern, 12 more computer-oriented calculation. And from what I 13 can see, it's a URI. What is that?

14 MR. HARRIS: Unresolved item.

15 JUDGE TRIKOUROS: Unresolved issue, or 16 item, right. So what does that mean?

17 MR. HARRIS: Let me try to sort of start 18 a little bit earlier. There are two things: When a 19 plant finds a condition of a component that is 20 different than it was built to is it -- it can be in 21 a degraded condition. And so one of the first things 22 plants do is to do an operability determination to 23 determine whether or not the plant as it currently 24 exists can meet its intended functions.

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811 1 you can use a different method of analysis to show 2 that it would still be able to meet all of its 3 intended functions as opposed to the analysis of 4 record. Then when they've gone back to go to 5 reestablish the design-basis, you have to look at sort 6 of the analysis of record and in terms of how that all 7 fits together.

8 One of the unresolved items, as you 9 mentioned, is what was originally done back before we 10 had modern computers to do a lot of this analysis was 11 really sort of a spherical hoop analysis looking at a 12 section instead of a more finite element analysis that 13 you can now do with these. And so that's the 14 unresolved item of how that should be used in terms of 15 reestablishing the design-basis.

16 JUDGE TRIKOUROS: Well, then let's assume 17 that -- I mean, certainly ANSYS -- somebody would 18 argue ANSYS is a better method than the old method, 19 but would that require a license amendment? And I 20 guess my is is do you know if there going to be a 21 license amendment request issued?

22 MR. HARRIS: I do not know if there will 23 be a license amendment request issued. I'm not sure 24 that that's contemplated at that time. That's part of 25 what the staff is currently looking at right.

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812 1 JUDGE TRIKOUROS: Do you have any insight 2 into that?

3 MR. BURDICK: No, I agree with what I've 4 heard. But just to provide a little more background 5 on this, this May 2014 inspection report relates to 6 the efforts that came out of a corrective action from 7 RCA1. And so at that time back in 2011-2012 FENOC, in 8 talking to the staff, determined that the plant was 9 operable but non-conforming, and then had the 10 corrective action then, then developed this design 11 evaluation that Your Honor has raised. And so, FENOC 12 went through the process of significant testing and 13 developing this evaluation.

14 And then FENOC; the way the process works, 15 looked at its existing licensing basis and design-16 basis and updated its design-basis documents to 17 incorporate this new design evaluation that relies on 18 these test results and everything. And so it did 19 that, and through its processes determined a license 20 amendment was not needed. But then now is discussing 21 with the NRC. So I think that's where we're at is 22 there's still ongoing inspection and discussions as to 23 what happens.

24 But I think what's key to point out here 25 is this question though is part of the current NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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813 1 licensing basis and outside the scope of this 2 proceeding. I know the intervenors raised questions 3 about FENOC's compliance with the current licensing 4 basis and design-basis in a number of different places 5 and we've argued; I think it's in our answer at pages 6 40 to 44, or 42 to 46, that that's outside the scope.

7 And I think that's true of this question as well.

8 Regardless of whether a license amendment is 9 ultimately determined we need it, that's going to be 10 separate and apart from this license renewal 11 proceeding.

12 JUDGE TRIKOUROS: But as of this moment 13 the design-basis of the shield building has not been 14 reestablished?

15 MR. BURDICK: From FENOC's perspective it 16 has been reestablished. So all these activities after 17 the root cause evaluation of 2012 led to FENOC 18 updating its updated safety analysis report of USAR.

19 So that now includes discussion of laminar cracking 20 including this design evaluation. So from FENOC's 21 perspective it has updated its licensing basis.

22 And additionally, in 2013 after 23 identification of laminar crack propagation, FENOC did 24 a similar exercise, looked at its design-basis 25 evaluation to first ensure that the additional NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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814 1 propagation identified fell within that design 2 evaluation, but then again updated the USAR to provide 3 some additional discussion of the laminar crack 4 propagation event.

5 So again, I think the key point is from 6 FENOC's perspective it has updated the design-basis 7 and licensing basis to address laminar cracking and 8 laminar crack propagation. And it's under the Part 50 9 inspection process.

10 JUDGE TRIKOUROS: Well, in terms of 11 contention admissibility the AMP would have to make 12 some conclusions regarding design-basis acceptability 13 if more cracks were found in the course of the AMP, 14 implementing the AMP. In the period of extended 15 operation now I'm talking about. Are those 16 investigations considered current licensing basis even 17 within the extended licensing period associated with 18 the AMP?

19 MR. BURDICK: Let me explain it this way:

20 So the definition of current licensing basis is in 10 21 CFR 54.3, and that includes regulations, commitments, 22 but also the updated safety analysis report. So from 23 our perspective this design evaluation is within the 24 updated safety analysis report and so it is part of 25 the current licensing basis.

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815 1 The Aging Management Program then is 2 separate from that in the sense that the standard for 3 license renewal in 10 CFR 54.29 assumes that that 4 current licensing basis goes into the period of 5 extended operation, but then changes are made as part 6 of the license renewal process to ensure that any 7 aging effects during that period of extended operation 8 are managed in a way to ensure the intended function.

9 So we've proffered, we've put forward this 10 Shield Building Monitoring Program as part of the 11 license renewal. If something were identified as part 12 of that monitoring, certainly we would not be 13 prohibited from looking at our current licensing basis 14 to look to see if there's something that's at issue 15 there, but that alone does not pull the design 16 evaluation into the license renewal. It's still part 17 of the current licensing basis.

18 JUDGE TRIKOUROS: So if something is 19 discovered, additional cracks are discovered as part 20 of the AMP implementation in the period of extended 21 operation, I'm assuming then they're referred to the 22 plant's Corrective Action Program? There's nothing in 23 the MAP that says here's what we're going to do other 24 -- and I don't even think it says Corrective Action 25 Program. But in any event, from my experience, it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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816 1 would have to go to the plant's Corrective Action 2 Program.

3 MR. BURDICK: That's correct.

4 JUDGE TRIKOUROS: Which would then apply 5 the licensing basis methodology for evaluation?

6 MR. BURDICK: That's correct and --

7 JUDGE TRIKOUROS: Whatever is agreed to in 8 all of this would become then the current licensing 9 basis, right?

10 MR. HARRIS: I think that's generally 11 right. You're sort of looking at acceptance criteria 12 for what you find. Those cracks, are they large 13 enough to no longer meet the acceptance criteria for 14 the design? And then you would have to figure out how 15 to either show that the building was still operable, 16 basically similar to what was already done now, or 17 what kind of repairs you might have to make in light 18 of what you discovered at that point. But that's true 19 of every Aging Management Program.

20 JUDGE TRIKOUROS: So there's nothing 21 different in the period of extended operation then 22 today?

23 MR. HARRIS: In terms of the acceptance 24 criteria? That's correct.

25 JUDGE TRIKOUROS: Right, and except for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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817 1 the requirement to do the AMP investigations, which 2 really today there's a requirement to evaluate that 3 building as well. I just want to make sure I 4 understand the --

5 MR. BURDICK: And, Judge Trikouros, just 6 two points: One is if the renewal license issues as 7 requested, then the AMP does become part of the 8 current licensing basis, or the licensing basis at 9 that time. And so they're working together. And so 10 my comments earlier were to distinguish what's part of 11 this proceeding, as part of the license renewal 12 review. But when you're actually in the period of 13 extended operation, that's all your licensing basis, 14 and so they're certainly working a function.

15 And I'd just point out in our July 3rd 16 revision to the AMP -- and actually this has been in 17 there the whole time, but it does specifically mention 18 that if the acceptance criteria are not met, then the 19 indications or conditions will be evaluated under the 20 FENOC Corrective Action Program. And so that is the 21 process.

22 JUDGE TRIKOUROS: So that's good.

23 MR. BURDICK: Yes.

24 JUDGE TRIKOUROS: And that Corrective 25 Action Program would implement the current licensing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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818 1 basis analytical methods for doing that analysis?

2 MR. BURDICK: So if something were 3 identified as part of the Shield Building Monitoring 4 Program, and there are certain criteria -- and all of 5 this has been in here, but it talks about a 6 discernable change. So if we were to identify a 7 widening of a crack or additional propagation in the 8 laminar direction crack; so some change, then we would 9 put that into our Corrective Action Program. And that 10 would drive us to look at the design evaluation, of 11 course, just to make sure that it's still appropriate.

12 JUDGE TRIKOUROS: Okay.

13 MR. HARRIS: And, Judge Trikouros, just to 14 indicate how long that's been in there, it was 15 actually -- originally that same language about the 16 Corrective Action Program was in their April 5th, 2012 17 response under the acceptance criteria. It's on pages 18 13 and 14 of, 15 and it's the enclosure that's 19 attached to that response. I mentioned the ML number 20 before, which is ML12097A520. But it says basically 21 if the acceptance criteria is met, then the 22 indications or conditions will be evaluated under 23 FENOC's Corrective Action Program.

24 JUDGE TRIKOUROS: All right. Okay. So I 25 think I understand how that works.

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819 1 I just wanted to ask, Mr. Lodge, do you 2 have any problems with what we just discussed?

3 MR. LODGE: We do. I'm going to defer to 4 Mr. Kamps to respond.

5 MR. KAMPS: Just big picture, we're over 6 three years into this cracking phenomenon, going back 7 to October of 2011. And we were promised, for 8 example, at the town hall meeting in Oak Harbor, Ohio 9 at the high school that current licensing basis would 10 be restored. I believe it was by December of 2012 at 11 that point. We've cited in our recent filings that 12 there is an interplay that was admitted to between 13 current licensing basis and license renewal 14 application. There's a lot of overlap. It's 15 incredible that we're this far into this discussion, 16 three-plus years, and we're still talking about it.

17 And I would refer you back to what we've 18 cited by reference, our 2012 filings, which would be 19 the July and perhaps also the August, those three 20 filings, where based on the FOIA return, which is 21 right here, it was very apparent from October-November 22 2011 that the staff, whose emails we have cited 23 repeatedly for all these years, were very concerned 24 about the loss of current licensing basis at Davis-25 Besse.

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820 1 And what was really incredible to us was 2 the morning of the confirmatory action letter that 3 allowed the rushed restart, December 3rd of 2011, 4 there were still questions being asked by NRC staff.

5 And they were abruptly stopped. The call was issued 6 and the plant has been operating ever since with 7 problem after problem piling up that we've cited. And 8 this seems to be the way things have gone these past 9 several years. This is going to continue on into the 10 license extension.

11 And that is our objection. It's very 12 loose. The definitions are very loose. The 13 commitments are very loose. I heard FirstEnergy's 14 attorney say that impulse response testing could be 15 deployed, if need be, but there's no commitment to do 16 that. It's a very amorphous moving target that we're 17 dealing with. And that's why I emphasize those 18 initial responses to the severe cracking, which we now 19 have established FENOC has admitted is worsening 20 significantly, which was denied previously. So I 21 refer back to those initial responses by NRC staff 22 that this is a serious problem. And it has been 23 pushed off. The can has been kicked down the road 24 repeatedly for years now.

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821 1 to that. I appreciate your concern, but if I read 2 your contention literally, that's not what your 3 contention is about. At least the way I read it, the 4 crux of your contention is that the AMP itself is 5 inadequate. And you cite scope or location, you cite 6 frequency, you cite number of bore holes and so on.

7 That's the heart of your contention. And I appreciate 8 your concern of this other matter, but I don't see 9 that in the way you've stated this contention.

10 MR. KAMPS: We've certainly --

11 JUDGE KASTENBERG: Am I misinterpreting 12 what you've written here?

13 MR. KAMPS: I think so. We've certainly 14 raised the interplay between current licensing basis 15 and the license renewal application. I thought I just 16 heard FirstEnergy's attorney admit that there is that 17 interplay, that these commitments in the AMP are a 18 part of the current licensing basis. Once April 23rd, 19 2017 arrives, what is currently a future commitment 20 during the license extension under the Aging 21 Management Program will then become a part of the 22 current licensing basis.

23 So these splitting of hairs that are going 24 to allow this license to be renewed is what concerns 25 us, that there's no firm commitment, that those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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822 1 impulse response tests that seem to be a part of the 2 possibility that haven't been done since cracking 3 propagation was admitted to, or perhaps even occurred, 4 will ever happen. We don't know the status of the 5 shield building in the current moment and we're not 6 sure that we ever will under these loose commitments, 7 which are no commitments at all.

8 JUDGE KASTENBERG: Do you have a response 9 for that?

10 MR. BURDICK: Well, so first of all, the 11 description of -- I guess my description of the 12 current licensing basis and license renewal simply 13 describing how it works in the license renewal 14 regulations at 10 CFR Part 54, Section 54.29 discusses 15 the current licensing basis in the standard for 16 license renewal. And then Section 54.30 specifically 17 addresses that the staff's review should not cover the 18 current licensing basis. If something comes up 19 related to the current licensing basis, then I direct 20 it to their NRR folks that address the current 21 operating.

22 So I was not making any revelation here.

23 Simply describing the regulations. And just point out 24 here, too, in this proceeding under 10 CFR 2.335 the 25 intervenors are not permitted to challenge the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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823 1 regulations, if that's what they're trying to do here.

2 This is simply describing how the process works.

3 MR. KAMPS: I found the citation I was 4 referring to. It's page 12 of our October 10th, 2014 5 filing. It's footnote No. 5 where we point to NRC 6 regulations that show that current licensing basis and 7 license renewal application overlap, have interplay, 8 have an interchange. And that's our concern.

9 JUDGE TRIKOUROS: All right. Well, let me 10 ask the NRC, or the staff, the current obligation of 11 Davis-Besse with respect to -- first of all, let me --

12 I prefer to use the term "design-basis of the shield 13 building," but the current licensing basis is a 14 broader a thing and certainly would include the AMP in 15 the extended period of operation. I don't think 16 that's anything new.

17 But in any event, would the license 18 renewal for this plant be issued if the design-basis 19 of the shield building were not adequately 20 established, I guess is my question.

21 MR. HARRIS: That's a big question because 22 in terms of what do you really mean by "adequately 23 established?" If the shield building could perform 24 its intended functions, then -- and met its design-25 basis, whether that was the -- or the design-basis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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824 1 when it was built. or if it was modified through 2 either the 50.59 process or through a license 3 amendment, then yes, you could issue the license 4 renewal. But in terms --

5 MS. KANATAS: Sorry. Assuming that we 6 also found that FENOC's AMP adequately managed the 7 aging effects as well.

8 MR. HARRIS: Yes.

9 JUDGE TRIKOUROS: Right now the shield 10 building is operable but non-conforming.

11 MR. BURDICK: Our view, we have updated 12 our design-basis documents to address both the laminar 13 cracking and the laminar crack propagation. So we 14 have updated. That is our design-basis. So it's part 15 of our updated safety analysis report. It's in the 16 Part 50 inspection process, but that doesn't change 17 the fact that that has been updated.

18 JUDGE TRIKOUROS: Right, but there's an 19 existing unresolved issue regarding the method of 20 analysis that was used.

21 MR. BURDICK: I don't think it's the 22 method of analysis. I think it's a process question.

23 It's not a substantive question about whether the 24 design evaluation was sufficient. It's almost a 25 licensing question or a process. Did we go through NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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825 1 our process as far as looking at the prior approvals 2 of the ANSYS, too. But based on the conclusion of 3 that inspection report I don't think there is a 4 substantive question here. It's just a process 5 question. But it still doesn't change the fact that 6 our design-basis addresses the propagation and the 7 laminar cracking.

8 MR. MATTHEWS: And it's a question, not a 9 finding. It's an unresolved issue, not an inspection 10 finding. It's not an apparent violation. It's a 11 question the staff had.

12 JUDGE TRIKOUROS: Right. I understand.

13 So there is a design-basis calculation using i would 14 say an advanced method of analysis that shows that the 15 design-basis of the shield building is intact with all 16 of the current cracking information included in the 17 analysis. The staff review of that in the inspection 18 of it indicated that they thought that that was 19 correct, that that conclusion was correct. However, 20 the method that was used didn't conform to the method 21 that was originally used in the UFSAR, and therefore 22 a URI was identified. Is that a correct statement?

23 MR. HARRIS: If you're talking about this, 24 that's the right way to describe it. That unresolved 25 item is in -- as FENOC just described it, it's sort of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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826 1 a process question of how should that be put into the 2 FSAR. And it's a complicated question with some of 3 those codes and who has authority to approve different 4 uses of it.

5 JUDGE TRIKOUROS: So back to my original 6 question now, in this context will that URI have to be 7 resolved before the license amendment gets issued?

8 MR. HARRIS: Can you give me one second.

9 (Pause) 10 MR. HARRIS: Your Honor, I don't believe 11 that the unresolved item would have to be finalized 12 somehow some way before we could issue the license 13 amendment contingent on all the other findings that 14 have to be made.

15 JUDGE TRIKOUROS: So it's falling under 16 the umbrella of COB?

17 MR. HARRIS: Yes, Your Honor.

18 JUDGE TRIKOUROS: Okay.

19 JUDGE FROEHLICH: Mr. Kamps, a moment ago 20 you referred the Board to I guess footnote 5 on page 21 12 of your pleading.

22 MR. KAMPS: Yes.

23 JUDGE FROEHLICH: And I just took a look 24 at that. How does point (b) support the argument 25 you're making? 54.30(b).

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827 1 MR. KAMPS: Well, as we have been from the 2 beginning in 2010, we've been focused on the 2017 to 3 2037 time period. So we've been accused by both 4 FirstEnergy and NRC staff that we're concerned about 5 current operations. We certainly are. We're very 6 concerned about them. But the basis of our 7 contentions throughout have been on the license 8 extension period.

9 And so what I'm hearing today is that 10 current licensing basis commitments under AMPs become 11 current licensing basis on April 23rd of 2017. And so 12 we're certainly going to challenge them. It's a part 13 of our contention's theme. I mean, it's throughout 14 this section F of our October 10th filing. Footnote 15 No. 7 is also relevant. The entire section is 16 relevant. The reason that I brought up the late 2011 17 internal NRC emails is to emphasize the significance 18 of the loss of current licensing basis. And I think 19 it's very telling that here we are three-plus years 20 later and this is still unresolved, very much so, and 21 appears that that will continue. If I heard you 22 correctly just now, Mr. Harris, that will continue 23 indefinitely into the future.

24 JUDGE FROEHLICH: Mr. Harris, how does 25 paragraph (b), Section 54.30 support the argument that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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828 1 this is within the scope of license renewal.

2 MR. HARRIS: It doesn't. It doesn't 3 support that this was in the scope of the license 4 renewal. It's the shield building. For hypothetical 5 purposes if the shield building was non-conforming or 6 degraded or out of compliance, that is an issue for 7 current licensing basis inspection and 2.206 8 petitions, not for license renewal. The scope of 9 license renewal is limited to managing the aging 10 effects through AMPs or TLAAs, or some combination of 11 those structure systems and components that are 12 passive.

13 JUDGE TRIKOUROS: Okay. Let me just ask 14 this: If you decide that the new method is an 15 acceptable method for doing the design-basis analysis 16 for Davis-Besse shielding, would the applicant then 17 have to file a license amendment request to modify the 18 USAR to include that method as the new method?

19 MR. HARRIS: Well, I think -- and I don't 20 want to put words into FENOC's mouth -- is that 21 they've indicated that they think that they have 22 updated it already through the 50.59 process. That is 23 part of what the staff is looking at in terms of when 24 we went out to inspect that process. So through 50.59 25 you can make changes to your FSAR that are -- and I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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829 1 don't want to quote or paraphrase that -- or not --

2 there's a big long list of how you go through that 3 process, but in terms of -- it sort of turns on safety 4 significance of whether or not that should require a 5 license amendment. So that is what the staff is 6 concentrating on.

7 MR. MATTHEWS: 50.59 allows different 8 methods if they have been previously accepted by the 9 staff. Judge Trikouros, I'm sure you've seen from the 10 inspection report FENOC looked at where the NRC had 11 accepted the ANSYS code and FENOC relied on that. The 12 staff has a question, or the inspection report 13 identified a question as to whether those were 14 appropriate, whether those were sufficiently formal 15 rigorous staff approvals in those applications for a 16 licensee to use it in this application. So the staff 17 is evaluating that question.

18 JUDGE TRIKOUROS: Well, how does the USAR 19 get updated? You just update it every two years and 20 say here's the new method?

21 MR. MATTHEWS: It's supported by a 22 detailed 50.59 evaluation. And that was a part of the 23 staff's inspection.

24 MR. BURDICK: The USAR is a licensee-25 controlled document. And if we identify some sort of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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830 1 update that we want to make or need to make, then we 2 go through a process, follow the regulations in 10 CFR 3 50.59 to see if that's something that we can make on 4 our own. There are certain screening criteria. If 5 it's a tech spec change, for example, we need a 6 license amendment. There's other things it can screen 7 out. Then if it passes that screening, we look at 8 these eight factors. If none of those are tripped --

9 there are certain ways that we control that document.

10 And then we provide reports to the NRC staff on --

11 JUDGE TRIKOUROS: My understanding is if 12 you use an entirely new method to do an analysis in 13 the FSAR that that isn't a simple 50.59 pass-through.

14 Now my understanding may be incorrect, but that USAR 15 says you're going to use method A. You've done the 16 analysis using method B. Are you saying the staff 17 doesn't have to review your analysis at all? Because 18 that's what --

19 MR. MATTHEWS: 50.59 allows applicants to 20 us methods previously accepted by the staff in 21 addition to the one identified in your license -- or 22 design-basis. Under 50.59 it evaluated the screening 23 review, the review of the evaluation. Under the 24 evaluation the regulation allows the licensee to apply 25 methods that have been accepted for use by the staff.

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831 1 JUDGE TRIKOUROS: Now the inspector 2 looking at that said that this method of analysis has 3 been used in the past but never with tracks like this.

4 So that's part of this URI, I believe.

5 MR. MATTHEWS: That's correct.

6 JUDGE TRIKOUROS: And I'm trying to 7 understand how this whole thing closes, because I 8 think the petitioners are concerned about this. So, 9 so far we haven't determined the closure point.

10 MR. HARRIS: I think I now understand a 11 little bit more of what you're asking. It could close 12 in a number of different ways. The unresolved item 13 could be closed in basically a follow-up to the 14 inspection report that could find; and I'm not 15 prejudging, I'm not saying what we will find, that 16 there method of updating the FSAR through 50.59 was 17 allowable under the regs.

18 It could also find that using 50.59 to 19 update that analysis was not acceptable in the regs 20 and that there was some sort of violation in terms of 21 updating that way and that it would actually have 22 required a license amendment. And then the 23 expectation would be that they would submit a license 24 amendment under those situations. But it is an issue 25 that requires some amount of work on the staff to sort NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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832 1 of trace through this in terms of that particular 2 part.

3 I think ANSYS -- and you probably can see 4 from the inspection report, it was used in the ESBWER 5 analysis. It was used in one of the new reactors 6 analysis in terms of being approved in new reactors.

7 And that's some of where FENOC is citing to the 8 staff's previous approval of ANSYS for this kind of 9 structural analysis. And that's what the staff is 10 working through right now.

11 JUDGE TRIKOUROS: So one of the closure 12 paths would include a license amendment that's filed?

13 MR. HARRIS: It could. Yes, Your Honor.

14 JUDGE TRIKOUROS: Right. In which case 15 then the intervenors would have the opportunity to 16 file a contention regarding that follow-up?

17 MR. HARRIS: Right. Now, the intervenors 18 also under 50.59, even if we closed it as it was an 19 acceptable allowance, they could still file a 2.206 20 petition that they're somehow outside the scope of 21 their license. I mean, they're not foreclosed from 22 challenging that change.

23 MR. KAMPS: Could we respond at some 24 point?

25 JUDGE TRIKOUROS: Yes.

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833 1 MR. KAMPS: Just the 2.206 process is a 2 black hole by design, apparently. I mean, our expert 3 Arnie Gundersen who's with us here on the steam 4 generator replacement at Davis-Besse in 2013-2014 5 confirmed that something on the order of 1 in 200 6 2.206 petitions have ever succeeded. So we don't have 7 the resources to waste on dead end by-design 8 processes.

9 The other rebuttal I'd like to put out 10 there is on the 50.59 itself. That was really at the 11 heart of our intention against the steam generator 12 replacement in light of the debacle at San Onofre.

13 And so the overlap of these concerns at Davis-Besse 14 are pretty astounding when you start to add up the 15 cracking of a Crystal River, the steam generator 16 experiment of a San Onofre. We've got it all going on 17 at Davis-Besse all at the same time. And in the very 18 tight strict by-design constraints of an LRA 19 proceeding we tried to raise our concerns.

20 We also raise our concerns about current 21 operations every chance we get. We raised our 22 concerns about high-level radioactive waste in the 23 Nuclear Waste Confidence Hearing in Perrysburg. But 24 I think we have an abundance of concerns right in this 25 LRA proceeding that deserve a hearing and have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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834 1 deserved a hearing for three years at this point.

2 JUDGE FROEHLICH: Okay. Thank you.

3 Anymore?

4 JUDGE KASTENBERG: Not on that subject.

5 Given the time we might have before lunch 6 or so to begin a discussion of what I consider the 7 heart of your explicit proffered contention which has 8 to do with location, which is scope or location of the 9 bore holes, the number of bore holes, frequency of 10 inspection and the possibility of other means of 11 examination, which is to me at the heart of this, at 12 least as you explicitly stated it, could you kind of 13 summarize for me -- what basis do you have that the 14 scope, frequency and number are inadequate? What's 15 the technical basis, or at least enough of a basis 16 that would lead us to conclude that this was 17 admissible? Given all the other considerations aside, 18 why this would be admissible? On what basis would you 19 argue that this is admissible?

20 MR. KAMPS: Well, we've mentioned already 21 today that the surface area of the shield building is 22 280,000 square meters. Square feet. Square feet.

23 You have to add to that 30 inches of thickness of 24 thickness of the shield building. All that adds to a 25 very large volume structure. And we're talking about NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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835 1 before the cracking propagation 20 bore holes to try 2 to monitor the situation with the cracking. After 3 cracking propagation is admitted to and acknowledged 4 by FirstEnergy because of evidence that it's 5 happening, a 15-percent increase, 3 more bore holes on 6 a very small sample size.

7 And we've made this point for years now 8 that this exclusive focus on sub-surface laminar 9 cracking is already very limited. We've raised many 10 other forms of cracking that have been documented in 11 this proceeding. Today the micro-cracking has been 12 raised, the risk of radial-oriented cracking, the 13 synergisms between these various forms of cracking, 14 some of which in the course of this proceeding were 15 made public, things like August 1976, cracking at the 16 dome, pre-blizzard of 1978.

17 So the reason that we need a diversity of 18 testing methodologies. We've talked about the impulse 19 response testing being dated at this point. That was 20 a snapshot at a certain point in time. That was years 21 ago now. Cracking is worse now. What does that look 22 like across the full structure?

23 Back in 2012 we talked about the risks of 24 micro-cracking. And back then CTL Group, a contractor 25 for FirstEnergy, had identified micro-cracking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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836 1 shallow in the wall, at a shallow level. And now it's 2 getting some acknowledgement in the PII Face report of 3 July 2014. But our concerns about the risks remain 4 about the synergisms of these various forms of 5 cracking that can only be detected if they're looked 6 for.

7 And I think that given that -- the phrase 8 that's used by both FirstEnergy and I think also by 9 NRC is this is a unique operating experience, a unique 10 operating experience in all of industry and that the 11 ramifications of that, if you're not looking for -- if 12 you're not curious about what could be happening. And 13 the July 2014 FACE report is a good example of this.

14 The worsening cracking was not expected even though 15 earlier today Mr. Harris said that some of these risks 16 were within the realm of possibility in 2012. Things 17 like freeze/thaw was on the radar screen.

18 In fact, the heart of our July and our 19 especially our two filings in July of 2012 were based 20 on the FOIA returns where NRC staff had 27 areas of 21 inquiry about other root causes that could be at play.

22 And that's another part of our bafflement at the 23 disinterest in root cause. Because if there had been 24 more concern about the possibilities, then perhaps 25 this rush to seal the building would have been better NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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837 1 thought through.

2 So my colleagues also want me to raise the 3 issue of the potential of the shield building 4 initiating an accident itself. I mean, the question 5 was raised earlier, Mr. Kastenberg, about the reactor 6 being shut down when the shield building failure 7 happens. And we want to get the point out there that 8 the shield building's collapse itself could be the 9 initiator of an operating reactor accident. So that's 10 why we've called for diversity of testing. The small 11 increases in number of tests are insufficient.

12 The frequency. Again, we made that point 13 earlier that if this lax attitude in the license 14 renewal period of every couple years, every four years 15 were to have been in play in the last couple of years, 16 the cracking growth would have been missed. We 17 wouldn't know about it and that the material change 18 that's happened since 2012 is before FirstEnergy and 19 NRC denied that cracking would get worse. They said 20 it happened in 1978. It's not going to get worse. In 21 2013 it was detected as getting worse. And finally in 22 July of 2014 it was explained the likely apparent 23 cause as to why.

24 So more interest, more curiosity, more 25 concern over the risks in the last few years could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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838 1 have averted further damage to the building. I think 2 it's fair to say it's ironic that the only corrective 3 action, actual action that's been taken, the sealing 4 of the building, actually worsened the situation.

5 Didn't make it better.

6 JUDGE KASTENBERG: Before we ask the 7 licensee, I appreciate your argument, and to me it 8 feels like a rather set of general statements, and yet 9 your wording of the proffered contention is somewhat 10 specific regarding scope, frequency and sample size.

11 What in your view might be an adequate scope, 12 frequency and sample size? What would you actually 13 base a change on?

14 MR. LODGE: Can we take a moment?

15 JUDGE KASTENBERG: Sure.

16 (Pause) 17 MR. LODGE: One more moment, sir. Sorry.

18 (Pause) 19 MR. LODGE: We're trying to find the 20 location where we made the point, but in one of our 21 probably September filings, and probably September 22 8th, we made the point that there was no statistical 23 significance of doing 23 samples in an area this 24 large, in a potential problem area of the magnitude 25 that we have been talking about this morning. And I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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839 1 guess we are not in a position to give you an express 2 number of what would be an adequate investigation.

3 And part of the reason is is that the intervenor's 4 position is that there has not been a comprehensive 5 investigation that identifies factually objectively 6 the status of the entire shield building. What you 7 have is this wait-and-see --

8 (Off microphone comments) 9 MR. LODGE: Ah, our first filing, 10 September 2nd, page 20, where we made the point that 11 the significance of the cracking problem demands that 12 there be --

13 JUDGE TRIKOUROS: This is page 20 of your 14 initial pleading?

15 MR. LODGE: Yes, of our September 2nd 16 filing, that a mere increase of three core bores to 23 17 is completely inadequate because there's not 18 statistical significance to the sampling methodology 19 that FirstEnergy is using. FirstEnergy has a wait-20 and-see approach without understanding clearly, after 21 three years, the scope of the problem. You have 22 microscopic cracking that is in all likelihood going 23 to be continuing to expand and no longer be 24 microscopic while other microscopic cracking develops 25 in and around those areas, but you don't know what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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840 1 areas of the shield building are affected.

2 There's an enormous circularity in the 3 arguments that I hear. We hear that the root cause 4 problem in 2012 was identified as the blizzard of '78 5 and there is a very dramatic explanation of why that 6 has to be the cause, that it enveloped the shield 7 building in a 360-degree storm with all kinds of high 8 wind penetration. But then we hear this morning that 9 it was more directional, or that it may been that 10 instead of comprehensively affecting the building that 11 the blizzard of '78 only caused laminar cracking that 12 we've seen. So you have this utility postulation 13 that, trust me, we have found everything.

14 It was wrong in 2012. The solution was 15 obviously flawed, the one corrective action that was 16 taken. And at some we believe the Licensing 17 Board must accept the proposition that there is not 18 enormous credibility that can be attributed to an 19 investigation of this very limited magnitude.

20 Again, they took perhaps thousands of 21 impulse types of readings, then did the coating of the 22 building and changed everything. So what is the value 23 of that data set now after the winter of 2013-2014?

24 What is the prospective potential for another vortex-25 type of weather setup in future winters? And in fact, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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841 1 maybe it's not even the vortex setup that one must 2 worry about. It's the climate change-induced mild 3 winters that have sharp periods of freezing 4 interspersed with sharp periods of thawing.

5 The PII report, the July 2014 disclosure 6 talks a lot about how the cracks extend with a 7 freeze/thaw type of cycle about five-and-a-half inches 8 a year. And when they use 0.4 inches and 0.7 inches, 9 we're calculating maybe they're discussing what, 10 to 10 13 freeze/thaw kinds of events per year? Ten degrees 11 penetrates a lot deeper into the building, depending 12 on how prolonged of a cold snap that is, than thirty-13 one degrees would. But those are tons of unknowns 14 that have not been discussed.

15 Finally we're discussing ice wedging, but 16 what I'm seeing is that it's sort of now caused the 17 latest -- it's the latest explanation, it's the latest 18 rationale. But there's not redirecting that knowledge 19 into meaningful future projections and understanding 20 how much of the shield building is affected today and 21 how the building will be affected from April 23rd, 22 2017 on into the deeper future.

23 MR. KAMPS: And just real quickly to 24 follow up on that, the discussion of the deep 25 penetration of the freezing into the shield building NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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842 1 wall I wanted to mention because Mr. Trikouros earlier 2 had said that concrete has an insulative property, but 3 one of those 27 areas of inquiry in 2012 the NRC staff 4 raised and brought to our attention in the first place 5 was the poor quality, the subpar; as Mr. Lodge 6 referred to it earlier, quality of the Davis-Besse 7 shield building concrete to begin with, which has a 50 8 percent thermal diffusivity poor quality. The freeze 9 is able to get deeper into the concrete of the shield 10 building.

11 And as was mentioned; we could get into so 12 much more detail in a hearing, another detail that 13 hasn't come out yet is that the annular space of the 14 shield building, I think it goes against the scenario 15 that Mr. Trikouros painted earlier of the shield 16 building wall being heated to a certain extent or a 17 certain depth outward. Actually that annular space is 18 preventing the heat buildup in the wall to the point 19 where FirstEnergy has to install heaters in the 20 annular space to heat up the annular space. And many 21 of those, half of those heaters don't work, are 22 malfunctioning. So I think it's wrong to think that 23 heat is traveling outward and preventing the freezing 24 from traveling inward. I think especially given the 25 winter last year that the freezing of that shield NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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843 1 building wall probably went very deep into that 30 2 inches.

3 JUDGE KASTENBERG: Does the licensee have 4 any comments regarding petitioner's statements?

5 MR. BURDICK: Of course.

6 JUDGE TRIKOUROS: I'm sure.

7 (Laughter) 8 JUDGE TRIKOUROS: Why do I ask? Yes, go 9 ahead.

10 MR. BURDICK: We've heard a lot of topics 11 here just now from the intervenor, a lot of different 12 topics, and some of them sounded familiar and I think 13 are at least raised their pleadings, but a lot of them 14 are new, especially towards the end here talking about 15 how the coating changes the impact or I guess the 16 value of the earlier impulse response, things like 17 climate changed-induced changes, these 27 inquiries, 18 the poor quality. I think it's pore, P-O-R-E or --

19 anyway, I think a lot of these topics are found 20 nowhere in Contention 7.

21 And so just the first point I wanted to 22 make is this oral argument is here to look at whether 23 the contention as already submitted by the intervenors 24 is admissible. And they submitted the original 25 contention, they submitted and amendment and I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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844 1 some errata to that. It's to determine whether that 2 is admissible. So they're simply not permitted to 3 bring up new topics here at this oral argument to try 4 to support their contention.

5 And I won't belabor the point because I 6 think it's pretty standard, but let me just provide 7 just on the record in response just one quotation from 8 a Commission case. And this is an LES case, CLI 04-9 35, 60 NRC 619. And there the Commission said, 10 "Allowing contentions to be added, amended or 11 supplemented at any time would defeat the purpose of 12 the specific contention requirements by permitting the 13 intervenors to initially file vague and unsupported 14 and generalized allegations to simply recast, support 15 or cure them later." And I think that's what they're 16 trying to do here when given this opportunity. I 17 understand they're responding to a question by the 18 Board, but they're just simply not permitted to bring 19 in this new information.

20 Let me also on the contention 21 admissibility front -- we discuss this in extensive 22 detail in our answer, but one of the largest, most 23 significant deficiencies of this contention is they 24 fail to provide the alleged facts or expert opinion 25 that are required by 10 CFR Section 2.309(f)(1)(5),

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845 1 and they also fail to demonstrate a genuine disputed 2 material issue, fact or law under Section 3 2.309(f)(1)(6). And we discuss that in detail. But 4 I think as we've listened to the intervenors describe 5 their contention, that's only been emphasized.

6 If I were to summarize their arguments, 7 they claim laminar cracking is bad and then they claim 8 you need to do more. There is no explanation for why 9 what we proposed in this Shield Building Monitoring 10 Program is insufficient or much less that it's not 11 enough to satisfy the NRC's license renewal 12 requirements. Instead, they're just claiming you need 13 more without providing that basis or that specificity.

14 This Board has rejected I think in both Contentions 5 15 and 6 in part because of the bare assertions and 16 speculations that the intervenors provided in those 17 contentions. That same conclusion applies here as 18 well. They simply provide conclusory statements on 19 these issues.

20 I'm happy to talk through any of these 21 topics in more detail, but I think some of them are 22 fairly obvious. In the section where they talk about 23 additional testing techniques, they provide one 24 sentence that identifies eight different possible 25 testing mechanisms, but there's absolutely no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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846 1 discussion as to why they apply here, why they would 2 do more than we're doing, why they would be 3 preferable. One of them is even impulse response 4 testing. Well, we've done impulse response testing.

5 A couple others are electronic testing, or I think 6 there's ultrasonic testing. They don't explain why 7 are those different? What are they really talking 8 about as doing with those? Why are those better than 9 impulse response testing that we have done?

10 They identify some different testing to 11 look at I guess the quality of the concrete such as 12 the strength testing or tensile testing, pull testing 13 or creep test. They mention all of those, but again 14 they don't explain why that would help us to monitor 15 for laminar crack propagation. And in fact we have 16 done some of those testings throughout our evaluations 17 as we were looking at the quality of the concrete, but 18 now when we understand the mechanism, they don't 19 explain why should we be doing those things to look at 20 if there's propagational laminar cracking.

21 The same with chemical testing. They 22 mention chemical testing. Don't explain why what 23 we've done in the past is not sufficient or why that 24 is necessary to monitor for laminar crack propagation.

25 Instead it's just the bare assertions and conclusory NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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847 1 statements.

2 Your Honor, I guess I'll take your lead 3 whether you want me to try to walk through all of the 4 subject matters they have identified, but I think --

5 JUDGE KASTENBERG: Not necessary, but I do 6 have a follow-up question, I guess. Do I understand 7 correctly that the choice of frequency, number and 8 location is -- that you used the American country 9 society as the guide, that they have a standard and 10 that you use their standard to determine?

11 MR. BURDICK: So for frequency we sort of 12 looked at -- I think it's ACI report 349.3R, which 13 actually recommends a five-year inspection cycle. And 14 so we make the point in a few places, but including 15 our most recent response, we're actually shorter than 16 that. And so that factors into acceptability of our 17 frequency.

18 JUDGE KASTENBERG: So you feel you're 19 being conservative compared to this so-called accepted 20 standard?

21 MR. BURDICK: Yes, especially with 22 frequency.

23 JUDGE KASTENBERG: And the other question, 24 I think you referred to it as it's a standard that has 25 to do with concrete chimneys or concrete cylinders, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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848 1 think? Is that what you call it? A chimney? A 2 concrete chimney?

3 MR. BURDICK: I'm trying to recall if I 4 said anything specific on that.

5 JUDGE KASTENBERG: Well, I think in your 6 pleading you talk about that the standard applies to 7 concrete chimneys.

8 MR. BURDICK: Oh, I think that's right 9 that the shield building is a chimney-type structure.

10 There's nothing that's unique in the sense that it's 11 a cylinder, that it's reinforced concrete and steel.

12 And so we have looked at some of the standards for 13 those types of structures, and that factored into our 14 building of the AMP.

15 JUDGE KASTENBERG: And the standard just 16 talks about frequency and not about number and not 17 about location?

18 MR. BURDICK: I think it does talk about 19 frequency. Let me check with my --

20 (Pause) 21 MR. BURDICK: Your Honor, so with respect 22 to the ACI code, our understanding is we used the --

23 just for the frequency, that there's not a specific 24 location or number of inspections specified in that 25 code, is my understanding.

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849 1 With respect to the location of the 2 inspections, some of that is discussed in a November 3 2012 RAI response when we first specifically 4 identified that we would do 20 inspections. And as 5 part of that we looked at where the laminar cracking 6 was most prevalent in the shield building. And some 7 of this is -- I mentioned earlier that there was more 8 prevalence on the southern exposure, and some of that 9 is due to the weather during the winter, that I think 10 the wind is prevailing in that direction, in addition 11 to on the top, the 20 feet, and then around the main 12 steam line penetrations because of the rebar 13 configuration. So we looked at that.

14 And there are some statements in the 15 record, for example, that we have core bores that we 16 inspect on I think 8 of the 10 shoulders that are on 17 that kind of southern exposure. And just to ensure 18 that we encompassed, we encompass a large percentage 19 of that. And so most of the core bores, or many of 20 them are done in pairs where one is un-cracked and one 21 is in a cracked area. And then there are some as well 22 in the flutes and then in that 20 feet and by the main 23 -- so we have done a representative sample for that 24 20. So we believe that it reflects the different 25 types of cracking around -- or different locations of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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850 1 laminar cracking in the building.

2 The three that came about was related to 3 our identification in 2013 of the laminar crack 4 propagation. When we did the investigation, we looked 5 at all 80 core bores that are in the building once we 6 identified the propagation. I think we did 91 7 inspections in those 80, so some we inspected more 8 than once. And we identified that there were eight 9 locations where there was some amount of new 10 propagation, some new laminar cracking due to 11 propagation, due to this ice wedging.

12 In three of those locations the 13 propagation was in plain with existing laminar 14 cracking. So the laminar cracking is not an exactly 15 straight line, but some of it's weaving through the 16 rebar. And so it's not a perfect line. So we found 17 a couple places where there was kind of an offshoot of 18 the crack. Well, because that has no impact on our 19 strength calculation for the shield building, we 20 didn't do special or additional inspection for those 21 locations, because it's also where there's existing 22 cracking.

23 So then that left us with five places.

24 Two of those places were already bound by existing 25 core bores from the population of twenty. And so that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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851 1 left us with three new locations of laminar crack 2 propagation. So those are the three that we've added 3 that go from 20 to 23. So we certainly have a basis 4 for doing that. And so we're inspecting that.

5 And here the AMP makes it very clear that 6 we put in these three new core bores into locations 7 that are un-cracked. We'll monitor for any cracking.

8 But these three there's a very specific commitment in 9 the Shield Building Monitoring Program. If there is 10 more propagation, these three will always be -- this 11 will be moved and added so there's always one on the 12 leading edge of any propagation, if there is 13 propagation.

14 JUDGE KASTENBERG: Is all this described 15 in the AMP?

16 MR. BURDICK: I think it describes the new 17 three and how these will be at the leading edge of the 18 concrete. So that's the explanation. And then I 19 believe some of the RAI responses, including the July 20 3rd have a little more description about the basis for 21 the three, and in addition a more recent RAI response.

22 JUDGE KASTENBERG: So one way; correct me 23 if I'm wrong, I could summarize what you've said is 24 that you have some rationale behind how you determine 25 the number, location and frequency?

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852 1 MR. BURDICK: Certainly, yes.

2 JUDGE KASTENBERG: Without stipulating 3 whether that's a good rationale or not, but you have 4 some process that you're following to determine 5 number, frequency and location?

6 MR. BURDICK: That's correct.

7 MR. LODGE: Judge Kastenberg, if I may 8 respond to that? Conceptually what's going on is 9 FirstEnergy is chasing the cracking. They are not out 10 in front of the cracking. And our contention is that 11 they must be out in front of the cracking.

12 I've got the ACI reference open here. The 13 problem is that the frequency presumes that you may 14 have the beginnings of degradation, but it's time to 15 start monitoring at some frequency level to make sure 16 that things don't get worse.

17 Reading from chapter 6, which I believe 18 was the cited -- it has a little table which contains 19 that five-year frequency business in the ACI Committee 20 report, quote, "The established frequencies should 21 also ensure that any age-related degradation is 22 detected in an early state of degradation and that 23 appropriate mitigative actions can be implemented."

24 The one mitigative action that was 25 implemented has turned out to be a mistake and has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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853 1 serious flaws, and in fact was something to which the 2 intervenors objected or mentioned as a potential 3 problem back in 2012 before the coating took place.

4 So the problem is is that the ACI 5 Committee report presumes not pristine conditions, but 6 not degraded with visible cracking present. It's fine 7 that there are inspections going on, but we contend 8 that the objective analysis of the entire structure 9 now is what is warranted, what is indicated. So the 10 ACI report should not be deemed very persuasive by 11 this Panel.

12 MR. HARRIS: Your Honor, just --

13 JUDGE KASTENBERG: Follow-up comment to 14 that by either staff or --

15 (Simultaneous speaking) 16 MR. HARRIS: Your Honor, my colleague will 17 follow up, but just for matters of keeping an adequate 18 record, can we have intervenors sort of indicate which 19 ACI report they were reading from?

20 JUDGE KASTENBERG: Oh, I'm sorry. Yes, 21 thank you very much.

22 MR. LODGE: One second here. It's ACI 23 349.3R-02. I think that was the -- it may have been 24 the one that was cited.

25 MS. KANATAS: Whenever -- staff would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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854 1 obviously like the opportunity to comment on the 2 challenges to the AMP, but certainly whenever.

3 MR. BURDICK: Just real quick if I can 4 make a correction to something I said earlier. Just 5 when I was describing these core bores that will be 6 used and will ensure the leading, I said that the 7 three -- the specific ones, but it's really three of 8 the five. So it's a sample of three of the five where 9 there was additional laminar cracking. So just to 10 correct the record.

11 On this ACI report issue, I think from a 12 contention admissibility perspective, again this is 13 new information. So if they wanted to use this to 14 support their Contention 7, then they should have 15 submitted it in their Contention 7. And so they can't 16 supplement the record here. And I understand some of 17 this was responding to questions, but this cannot be 18 a basis for a new contention.

19 But as we discussed from the ACI report, 20 we were using it as support for our frequency. And we 21 have the five-year frequency, as we talked about in 22 the ACI report. We're actually starting with an 23 annual frequency, which is much more conservative.

24 And then with respect to the location and 25 number of core bores, it's not directly the ACI NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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855 1 report. It's other things that we've relied upon. So 2 even if this was a timely argument, I don't see why it 3 provides any basis for their contention.

4 JUDGE KASTENBERG: Would you like to 5 comment?

6 MS. KANATAS: I'll just cover the points 7 that I think haven't been covered. In terms of 8 specific challenges to the shield building monitoring 9 AMP, I think first a question that Judge Kastenberg 10 raised earlier about it seems that intervenors' 11 concern is that the AMP is inadequate because the July 12 8th submittal admitted that cracking propagation is 13 age-related. But there's no indication in the 14 Contention 7 of why the root cause of the cracking 15 propagation would impact the staff's license renewal 16 findings or why the shield building monitoring AMP, 17 which monitors cracks through multiple inspections 18 over the period of extended operation, is inadequate.

19 As we've repeated since 2012 in the 20 Contention 5 filings, the staff's Aging Management 21 Review focuses on managing the functionality of 22 structures and systems and components, not identifying 23 and mitigating aging mechanisms. So again, while 24 intervenors obviously have a problem with the full 25 apparent cause evaluation's conclusions, they don't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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856 1 tie their concern with anything material to the 2 staff's license renewal decision.

3 Again, I think we've already covered that 4 testing frequency is called woefully inadequate and 5 intervenors request that annual inspections be 6 conducted, but in fact the July 3rd modifications 7 changed the inspections to annual inspections every 8 year for a minimum of four years starting in 2015, and 9 annual inspections would continue if aging effects 10 were identified. So this doesn't raise a genuine 11 dispute with the shield building monitoring AMP 12 because they're asking for something that's already 13 provided and they're also not indicating why what is 14 provided is inadequate.

15 We've already covered the core bores.

16 They make a few other claims to other 17 AMPs. For example -- or I guess this is actually 18 still Shield Building Monitoring Program. On page 31 19 of their Contention 7 they say that there needs to be 20 a comprehensive sealant AMP. So presumably they're 21 talking about the coating.

22 The parameters monitored an inspected 23 element of the Shield Building Monitoring Program 24 includes visual monitoring of condition of coatings at 25 five-year intervals. For loss of protective NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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857 1 effectiveness with quantitative accepted criteria 2 based on ACI 349.3R the coating will be replaced every 3 15 years. So again, the only claim is that a 4 comprehensive sealant AMP is needed, but one is 5 provided and there's no indication of why what is 6 provided is not comprehensive or adequate.

7 Likewise, at page 27 intervenors claim 8 that there's an astounding deficiency in the aging 9 management of the rebar. It appears that intervenors 10 are challenging FENOC's plans to manage the age-11 related degradation of the rebar. The LRA provides 12 for visible inspection of the rebar and it seems as if 13 intervenors are saying that a measurement technique 14 should be used, but there's no indication of what 15 measurement technique or why a visual examination on 16 an opportunistic basis is inadequate.

17 The staff continues to ask questions and 18 I think some of -- Mr. Kamps has alluded to the fact 19 that the staff does not just take what is given to it 20 without a questioning eye. And for example, the 21 staff's most recent RAI was September 29th. I believe 22 that's the date. And the most recent response from 23 FENOC was October 28th. And in that response FENOC 24 provided further justification for the adequacy of the 25 opportunistic visual inspection.

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858 1 So finally, as in Contention 6, Contention 2 7 raised anticipatory changes. Specifically the 3 motion to admit at page 2 intervenors said that they 4 seek to litigate the adequacy of FENOC's anticipated 5 modifications to the shield building monitoring and 6 structures monitoring AMP. The Board in its 7 Contention 6 order indicated that anticipatory 8 challenges are inadmissible. And so I'd just like to 9 note those. Thank you.

10 JUDGE FROEHLICH: My colleagues tell me 11 that they're hungry. I think what we'll do now is 12 take an hour for lunch. When we return we will 13 continue with the questioning, although we will focus 14 on the legal and factual foundations of the contention 15 going to the issue of whether there's a genuine 16 dispute here.

17 Just for parties that have been concerned, 18 obviously the decision on this is going to be based on 19 the pleadings that have been filed so far and the 20 regulations which apply to contention admissibility.

21 This is oral argument. We are here just to answer 22 questions and supplement the understanding of what's 23 in the filed pleadings.

24 So with that, we'll adjourn until 1:45.

25 (Whereupon, the above-entitled matter went NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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859 1 off the record at 12:35 p.m. to reconvene at 1:45 p.m.

2 this same day.)

3 JUDGE FROEHLICH: Well be back on the 4 record. Mr. Trikouros.

5 JUDGE TRIKOUROS: Am I up?

6 JUDGE FROEHLICH: Yes, youre up.

7 JUDGE TRIKOUROS: There was an SER. I 8 guess there was a question of whether or not this 9 cracking problem should be addressed in the EIS and 10 the SER contention. But it did say EIS. I have the 11 question of the SER.

12 Are you going to address this at all?

13 MR. HARRIS: It depends on the nature of 14 the cracking problem. There are a couple of ways that 15 something like this might be addressed in the EIS.

16 Theres what we talked about before in terms of SAMA 17 analysis. Should it be addressed in the SAMA 18 analysis? And what weve indicated is that this 19 cracking phenomenon really doesnt have any impact on 20 the SAMA analysis in terms of the overall consequences 21 of what would be considered a potential cost 22 beneficial mitigation measure.

23 You could I think from reading their 24 contentions that they would suggest that you should 25 account for the cost rebuilding/repairing the shield NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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860 1 building. And that would be addressed in the EIS.

2 But normally we would only do those things. Thats not 3 an alternative issue. We would do that under 4 refurbishment should FENOC decide at some point and 5 indicate that its going to do some sort of that major 6 reconstruction activity. So this kind of thing would 7 not normally impact or do something that would be 8 addressed in the EIS. Just the fact that there are 9 cracks.

10 JUDGE TRIKOUROS: Now the 2013 SER did 11 address cracking. Is there at least as of that time 12 going to be any additional supplementation of that or?

13 MR. HARRIS: I believe that there will be.

14 There is the potential for some additional 15 supplementation. The staff is still going through 16 that analysis and hasnt fully made up its mind in 17 terms of supplementing. The staff does try to update 18 and supplement as things are finalized. The cracking 19 is likely to be addressed in an updated supplement to 20 the SER.

21 JUDGE TRIKOUROS: But there are no firm 22 plans to do it. Its just youre thinking about it.

23 MS. KANATAS: I believe theres a schedule 24 to do that currently.

25 JUDGE TRIKOUROS: Oh you are?

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861 1 MS. KANATAS: Yes, I believe so.

2 MR. HARRIS: I dont --

3 MS. KANATAS: Oh no. Im sorry. There 4 might not be a firm schedule, but it -- I dont 5 believe the -- No.

6 MR. HARRIS: Theres not a firm schedule 7 to do that. The staff is looking at that to 8 supplement, but has not made a decision to supplement.

9 But theyre going through all the process of figuring 10 out whether to supplement.

11 JUDGE TRIKOUROS: Okay. All right. Now 12 I just had a few questions regarding the pleadings, 13 things I didnt quite understand. And if youll bear 14 with me, Ill try and get that done.

15 In the petition on pages 18-19 regarding 16 the issue of new cracks that might develop, Im 17 talking about the initial Intervenors petition. Is 18 there a basis to conclude that no new cracks will 19 develop in other areas? Is that a going in 20 assumption? We sort of dealt with that this morning 21 but.

22 MR. BURDICK: Yes, the ice wedging 23 phenomenon identified in 20.13 requires an approval of 24 any laminar cracks. So any propagation would be at 25 the location of an existing laminar crack.

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862 1 JUDGE TRIKOUROS: Right. But youre 2 making the assumption that given what youve done so 3 far that there wont be any laminar cracks developing 4 elsewhere.

5 MR. BURDICK: Thats correct. And some of 6 that is based on our 20.13 investigation of that 7 laminar crack propagation where we looked at all 80 8 core bores and identified exactly the population of 9 core bores with additional laminar crack propagation.

10 We also did some impulse response testing at that time 11 to confirm those results. And based on that the 12 laminar cracking propagation that would happen 13 potentially due to ice wedging would be limited to the 14 existing laminar crack propagating.

15 JUDGE TRIKOUROS: Okay.

16 MR. MATTHEWS: Judge Trikouros, your point 17 though, your question, and this may have been a 18 background question but it kind of flips the argument 19 that contention should say a basis what the reason is 20 to believe or to suspect that there might be cracking 21 in these other places.

22 JUDGE TRIKOUROS: I think the contention 23 --

24 MR. MATTHEWS: The contention is you 25 shouldnt expect cracking before. So you cant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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863 1 believe anything is kind of the basis of the 2 contention.

3 JUDGE TRIKOUROS: Right. I think the 4 contention though is arguing that the laminar cracking 5 had existed for a long time before you realized it and 6 that it might occur somewhere else and that the amp 7 didnt seem to them to be adequate to assure that 8 cracking anywhere else would be discovered.

9 MR. MATTHEWS: Its the might occur 10 somewhere else that is about basis in the contention.

11 JUDGE TRIKOUROS: Right.

12 MR. MATTHEWS: And as my partner indicated 13 FENOC did have a basis for identifying what it had.

14 The point was the question seems to flip the burden.

15 JUDGE TRIKOUROS: Yes, I understand. The 16 staff is okay with that.

17 MS. KANATAS: Im sorry. The staff is 18 okay with --

19 JUDGE TRIKOUROS: Theres a presumption 20 that the laminar cracking that occurred in the flute 21 shoulder areas would have to be monitored in the AMP, 22 but that there wasnt a need to go and look on a 23 regular basis for cracking elsewhere, laminar cracking 24 that might develop elsewhere in the shield building.

25 Is that the staffs understanding?

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864 1 MS. KANATAS: That is.

2 JUDGE TRIKOUROS: All right. And clearly 3 the Intervenors are not happy with that.

4 All right. Well, theres a whole series 5 of pages in the petition that deal with that. I dont 6 think I need to go any further into that. Okay. This 7 is on page 31, bottom 31, top 32 of the petition. It 8 says -- It actually starts FENOC has done nothing to 9 address the shield building cracking. That 10 paragraph.

11 But at the center of that it says, Even 12 without flaws or degradation, however, FENOC has not 13 established that the whitewash coating, the exterior 14 of the shield building, actually insulated the side 15 wall thickness against freezing and thawing 16 temperatures. Was it the Intervenors thoughts that 17 that coating was some sort of a thermal barrier? Is 18 that why you asked that?

19 MR. LODGE: May I ask again? Where is 20 that? Is that from the September 2nd filing?

21 JUDGE TRIKOUROS: Yes.

22 MR. LODGE: And its on pages?

23 JUDGE TRIKOUROS: Thirty-two. Yes, its 24 31.

25 MR. LODGE: Sorry.

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865 1 JUDGE TRIKOUROS: It was at 31-32, bottom 2 of 31, top of 32.

3 MR. LODGE: All right.

4 JUDGE TRIKOUROS: Its the top of page 32.

5 MR. LODGE: The answer to your question --

6 JUDGE TRIKOUROS: That statement was on 7 the top of 32.

8 MR. LODGE: I see that. Thank you. The 9 answer to your question, sir, is that may have been a 10 poor choice of words. It was not my contemplation in 11 writing that that it insulates thermally rather than 12 seals the wall against --

13 JUDGE TRIKOUROS: All right. So given 14 that it read like thermal insulation, its not.

15 MR. LODGE: No.

16 JUDGE TRIKOUROS: All right. Then thats 17 fine. Thank you.

18 In your motion to amend and supplement.

19 MR. LODGE: Thats September 8th.

20 JUDGE TRIKOUROS: Yes.

21 MR. LODGE: Okay.

22 JUDGE TRIKOUROS: You refer to the 23 consideration of alternatives as well as in the SAMA.

24 This consideration of alternatives, are you referring 25 to alternative power sources other than Davis-Besse?

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866 1 MR. LODGE: Yes.

2 JUDGE TRIKOUROS: And is it based on the 3 presumption that shield building may not be viable and 4 the plant would have to be shut down?

5 MR. LODGE: Correct. The economics, yes.

6 JUDGE TRIKOUROS: All right. We never did 7 talk about the details.

8 JUDGE KASTENBERG: Just as a follow-on to 9 that though, what you mentioned in terms of 10 alternatives not necessarily for the power plant, but 11 alternatives in terms of mitigating the cracking. Are 12 we talking about the same thing?

13 MR. HARRIS: No, I think were talking 14 about the same thing. But youve got two different 15 things. Youve got the SAMA which is a different part 16 of the EIS and then you have the Consideration of 17 Alternatives which was also alternative power 18 production.

19 JUDGE KASTENBERG: Right.

20 MR. HARRIS: Which the way I understand 21 the contention to be written is that the Intervenors 22 want us to consider the added cost of having to do 23 something with the shield building when youre 24 comparing it to other alternative energy sources.

25 JUDGE KASTENBERG: Is that correct?

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867 1 MR. HARRIS: And Im not trying to put 2 words in their mouths.

3 JUDGE KASTENBERG: I appreciate that. But 4 I was going to come back to that a little bit later.

5 But since its brought up now, can we be a little more 6 precise about what it is that were talking about in 7 terms of alternatives and costs?

8 MR. LODGE: I think the response to his 9 interpretation is that it wasnt our intention. Our 10 intention was SAMA considerations based on whatever 11 presumptions go into how the shield building is 12 treated in this severe accident mitigation analysis 13 and alternatives to a continued use of Davis-Besse 14 because of the non-functioning shield building.

15 PARTICIPANT: If I might, Judge 16 Kastenberg.

17 JUDGE KASTENBERG: But are you saying 18 both?

19 MS. KANATAS: Yes.

20 JUDGE KASTENBERG: It sounds to me like 21 youre mixing two ideas together, two separate things 22 together. Im still confused. Its your contention.

23 MR. LODGE: Right.

24 JUDGE KASTENBERG: So what are we 25 evaluating here, alternatives to Davis-Besse or the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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868 1 cost of alternatives of to dealing with the shield 2 building?

3 MR. LODGE: NEPA calls for both. So I 4 guess it is both. Im just trying to recall what must 5 have been in my mind when I was drafting that.

6 JUDGE KASTENBERG: We certainly cant 7 recall it for you.

8 (Laughter) 9 MR. LODGE: Unfortunate, it may be 10 unanimous.

11 JUDGE KASTENBERG: Did you want to say 12 something here?

13 MR. MATTHEWS: Thank you, Judge 14 Kastenberg. Obviously, from our pleadings, theyre a 15 contention. But we understood it as suggesting that 16 we had not considered the environmental analysis, both 17 the Applicants and the staffs. We had not 18 sufficiently considered the no-action alternative, not 19 relicensing Davis-Besse.

20 And if that is part of the contention, (1) 21 its timely. It could have been when cracking was 22 first identified. (2) Its not specified. Theres no 23 reference to the no-action alternative that is clearly 24 discussed in both EER and the FSIS. There is no basis 25 articulated as to why whats there is not sufficient NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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869 1 authority, any of the other 2.309 criterion. It 2 doesnt address any of them.

3 And the same would be true even if the 4 Intervenors now tell us that it means refurbishment.

5 (1) They havent articulated that to the point where 6 anyone here in the room who had studied it interpreted 7 it clearly that way. And again timely, no basis, no 8 authority, doesnt meet any of the criterion for an 9 admissible contention.

10 MR. LODGE: Your Honor, I maybe have found 11 the tiebreaker here. On page 19, we state that the 12 Cracking phenomenon must be identified, analyzed and 13 addressed within the SEIS for the license renewal both 14 as part of the SAMA analysis and as part of the 15 Consideration of Alternatives to a 20 year operating 16 license extension. So no-action alternative I think.

17 JUDGE TRIKOUROS: Bear with me because a 18 number of these actually got resolved during the all 19 mornings conversation. So Im trying to just skip 20 over them.

21 JUDGE KASTENBERG: While you do that I 22 have a different question or do you want to just keep 23 going?

24 JUDGE TRIKOUROS: Well, go ahead.

25 JUDGE KASTENBERG: I just want to hone on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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870 1 this question of whether or not ice wedging is new or 2 old so to speak and whether or not in your view ice 3 wedging and freeze/thaw are the same thing. In other 4 words, my understanding is that there were words to 5 the effect that freeze/thaw was a possible phenomena 6 for cracking and that ice wedging was something that 7 came much later. If you could just clarify that since 8 you had mentioned this a number of times and since at 9 least as I understand it in the contention this is an 10 important part of the argument that this is timely.

11 So I just want to kind of hone in on that and be 12 clear.

13 MR. HARRIS: Right, and I think we ought 14 to step back a little bit from aging management 15 programs just before I addressed that. Aging 16 management programs like this theyre designed to 17 monitor some particular event. And theyre fairly 18 agnostic as to what the cause of the crack 19 propagation. Theyre measuring it. Theyre trimming 20 it. Really in a lot of ways it doesnt matter for 21 purposes of being able to monitor the cracking and 22 whether or not the building can meet its intended 23 function what is driving that growth in the crack.

24 For ice wedging, the same thing. Also 25 with freeze/thaw cycle. For a crack to propagate you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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871 1 need a pre-existing crack. You need some form of 2 stress concentrator at the end of that crack. And in 3 the case of ice wedging, its the water being there 4 frozen, expanding and creating that stress at the end 5 of that crack that causes this to open up and continue 6 to grow further.

7 The freeze/thaw cycle, as long as all 8 concrete buildings do have water in them and they 9 maintain water and they never really fully dry out 10 completely, youre going to have this kind of crack 11 propagation any place where you have water that can 12 collect in a crack. It will be able to grow. One of 13 the things that they were monitoring for was that 14 freezing of water that has permeated the concrete and 15 specifically they were looking at. And this is 16 referring back to the April 5, 2012 RAI response that 17 I had mentioned previously.

18 The parameters that theyre monitoring 19 when theyre talking about cracking in concrete from 20 freezing of water is the surface condition of the core 21 bores which is different than the laminar cracking, 22 the core bore samples, and the change in the crack 23 conditions in the core bores. And Ive added in the 24 core bores, but I mean the change in the crack 25 conditions. It was looking at freeze/thaw cycles in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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872 1 those particular cracks which is a function of ice 2 wedging. I look at that as freeze/thaw is a much 3 bigger description that includes the ice wedging 4 phenomena.

5 JUDGE KASTENBERG: Is that a -- I 6 appreciate thats the way you look at it. But is that 7 something that I can find in any of the documents?

8 MR. HARRIS: It is in the documents. Its 9 on potential --

10 JUDGE KASTENBERG: That explains that?

11 MR. HARRIS: That freezing thawing is ice 12 wedging?

13 JUDGE KASTENBERG: That ice wedging is 14 contained within the definition of --

15 MR. HARRIS: No, I dont think that there 16 is something thats explicit in there that says ice 17 wedging is the same as the freeze/thaw cycle. I dont 18 believe theres any language in the responses that 19 makes that.

20 MS. KANATAS: And, Judge Kastenberg, just 21 to add, I think one of the key points, too, of what we 22 keep reiterating of why the full apparent cause 23 evaluation does not constitute materially different 24 information is that Intervenors repeatedly claim that 25 its the admission of an aging mechanism that brings NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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873 1 this into the scope. But this has been within the 2 scope. I mean as Im pointing to the same page on the 3 April 5, 2012 AMP which says potential aging 4 mechanisms. So its always contemplated a potential 5 aging mechanism even though it was put in place 6 following the laminar cracking which was determined 7 not to be the result.

8 JUDGE KASTENBERG: You would say that if 9 some new aging mechanism is discovered a year from now 10 it would never qualify as new information because 11 youve got a blanket statement.

12 MS. KANATAS: No, I dont think thats 13 what Im saying. I think its more of the assertion, 14 first the assertion, that the fact that there was an 15 aging mechanism at all brought this into the scope.

16 And I think thats a direct quote from their pleading.

17 And our position was always that regardless of the 18 mechanism how the laminar cracks would be managed, the 19 aging effects, was within the scope. And thats why 20 we initially said there was an omission which was then 21 mooted by the April 5, 2012 AMP which when submitted 22 indicated that it would be looking for potential aging 23 mechanisms.

24 And as Mr. Harris was describing, while 25 the freeze/thaw phenomenon doesnt explicitly say this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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874 1 is ice wedging, its looking for similar --

2 MR. HARRIS: And let me add just a little 3 bit to that and I hate to sort of go back and forth is 4 that the aging management programs arent designed to 5 figure out necessarily the mechanism of particular 6 aging. Its designed to manage the impact of that 7 aging on the ability of the shield building in this 8 case to meet its intended function. So the aging 9 management program was never built to go this is ice 10 wedging or some other crack developing.

11 Its designed to be able to show that the 12 shield building will still meet its intended function.

13 The materiality of whats driving the crack really 14 doesnt affect whether or not the aging management 15 program could be effective.

16 Now could there be some aging mechanism 17 out in the future that we discover that might change?

18 Its a possibility. But Im not sure. In this case, 19 I dont think it is.

20 JUDGE TRIKOUROS: But its more than that.

21 Theres a presumption that there wont be cracking 22 elsewhere. I mean didnt we just discuss that?

23 MR. BURDICK: Just to be clear, there is 24 a presumption that the ice wedging mechanism will not 25 exist in places that theres no laminar cracking. So NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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875 1 I think I agree with the staff of what theyre saying 2 about the alternative purpose of the shield building.

3 Its always been a monitor for any changes in the 4 laminar cracking. And thats regardless of the 5 specific mechanism. In 2013, we specifically 6 identified the ice wedging mechanism. And one of the 7 requirements for that is to have a pre-existing 8 laminar crack. So its a very specific mechanism 9 there.

10 Just to clarify, too, in the apparent 11 cause evaluation, we looked at a number of different 12 failure modes and similar process in the RCA1. We did 13 treat ice wedging as its own mechanism separate. We 14 looked at a few other freeze/thaw mechanisms. They do 15 have similarities as far as theyre both dealing with 16 moisture in the concrete and freezing of that water.

17 And ice wedging is a very specific 18 mechanism where you do have this pre-existing laminar 19 crack and its at the freeze event with the moisture 20 in the building thats causing to propagate. And 21 freeze/thaw refers to other things as well or refers 22 to mechanisms such as the micro-cracking we talked 23 about earlier. Its a different mechanism, but 24 theyre related as theyre both dealing with water 25 thats freezing in the concrete.

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876 1 JUDGE TRIKOUROS: Are there other 2 structures, monitoring AMPs, that deal with the 3 broader expanse of the shield building?

4 MR. BURDICK: The shield building 5 monitoring program specifically focuses on the laminar 6 cracking, but it also covers things like the coating 7 on the exterior of the surface. There is also a 8 structure monitoring which is not a plant-specific one 9 but covers all in-scope structures on site, too. And 10 thats the AMP that would address microcracking.

11 There are certain inspections to look for evidence of 12 microcracking, spalling or things like that.

13 JUDGE TRIKOUROS: It comes up in the 14 pleadings in multiple places. The concern is youre 15 not looking for any new cracking. Youre monitoring 16 all the existing cracking. Your entire program is 17 based on making sure that theres no propagation of 18 the existing cracking.

19 What Im trying to understand is is there 20 a requirement to look for any new cracking on this 21 building.

22 MR. BURDICK: I think the answer is no.

23 You know our evaluations, our testing, our inspections 24 all identified the laminar cracking in 2011. And that 25 was a set amount. We concluded that that cause still NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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877 1 holds it. There was a set amount of laminar cracking.

2 Now in 2013 weve identified this one mechanism, this 3 ice wedging, that could cause that to propagate. So 4 were watching monitoring for that.

5 Other cracking on the shield building, it 6 would be covered by the structures monitoring AMP 7 which has not been challenged by the Intervenors here.

8 So if theres some, for example, surface cracking 9 thats identified through an inspection, its covered 10 by the structure monitoring AMP and not this AMP.

11 JUDGE TRIKOUROS: Does the staff agree 12 with that? That the broader expanse of the shield 13 building cracking is part of another AMP.

14 MR. HARRIS: Thats correct, Your Honor.

15 The structure monitoring AMP would cover the things 16 like spalling and those kind of issues. Those kind of 17 inspections for the surface monitoring of the crack is 18 that the shield monitoring AMP was designed to look at 19 this particular event.

20 MR. LODGE: If I may respond on behalf of 21 the Intervenors. Judge Kastenberg, in direct response 22 I think to your initial question, in the full apparent 23 cause evaluation at page four of 80, it says, 24 Contributing to the ice wedging cause is application 25 of the coating to the shield building. I would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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878 1 remind the panel that the coating application occurred 2 approximately from August to October 2012 references 3 therefore to April 2012 AMPs. They didnt anticipate 4 they were going to have a problem with that particular 5 mitigation step and did.

6 Furthermore, the difficulty here is that 7 we have articulated in our pleadings and in discussion 8 earlier today the fact that there are other transitory 9 points for water, for moisture, into the annular space 10 as well as into the exterior of the building and down 11 through the walls. The shield building vacuum 12 propagation was enhanced, worsened, by the application 13 of the coating. The water is trapped. Were hearing 14 discussions of it dissipating, no particular analysis 15 of that, no expertise that is explaining exactly that 16 is going to happen and what the anticipated timetable 17 would be nor if there are any other mitigations set to 18 be taken.

19 We believe that ice wedging certainly 20 existed. I cant find the reference. But weve also 21 seen some mention I think in some FENOC document that 22 basically says in industrial concrete types of 23 applications this sort of problem is not well 24 identified or discussed.

25 (Off microphone comments)

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879 1 Yes, the geological says no ice wedging, 2 but it hasnt come over into industrial engineering.

3 It may or may not be true. It may or may not be an 4 accurate statement, but its a 2014 statement I think 5 if Im recalling it. I guess its in the 98 page 6 document from July 2014.

7 The point is its new. Ice wedging may 8 have existed as an academic phenomenon. As it does 9 cause damage to the shield building it is new and 10 recent in terms of it being disclosed publicly.

11 JUDGE KASTENBERG: Any other comments on 12 ice wedging?

13 (No verbal response.)

14 JUDGE TRIKOUROS: Okay. Again, in the 15 original petition -- Im sorry. This is the motion to 16 amend. It looks like its on page eight. Its a 17 statement that says PII concludes that a review of 18 engineering analysis documentation developed following 19 the initial laminar crack condition demonstrated that 20 the shield building remains structurally adequate for 21 the controlling load cases and is in compliance to the 22 current design and licensing bases. This is theyre 23 quoting the FACE report, right?

24 MR. LODGE: Yes.

25 JUDGE TRIKOUROS: And Intervenors make the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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880 1 statement This statement is highly suspect and 2 probably false. Is there any basis for making that 3 statement or?

4 MR. LODGE: Yes. In the next paragraph, 5 we begin to explain in numerous comments by NRC staff 6 people relating to whether or not the shield building 7 conforms to its current design licensing bases. The 8 very next paragraph referenced to the Timothy Riley 9 email as one example.

10 JUDGE TRIKOUROS: Now we talked about this 11 this morning. And I was thoroughly satisfied with it.

12 I talked about the different paths. Do you still 13 believe that this is highly suspect and probably 14 false?

15 MR. LODGE: Yes. I dont think the 16 discussion this morning completely forecloses a 17 conclusion that perhaps the agency believes that 18 theres a conformance to current design and licensing 19 bases. You have a severely degraded building and as 20 I say an open-ended causation problem.

21 Incidentally, one other thing which we 22 didnt discuss this morning is that there are 23 significant out-of-plumb -- and we have mentioned this 24 in the pleading somewhere -- portions of the shield 25 building. It is not considered to be within plumb for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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881 1 any longer runs than a few inches or a few feet at a 2 time. And when youre talking about something that 3 huge with that type of enormous density and weight, 4 that can be a very significant problem especially if 5 you have cracking phenomenon starting to crop up.

6 JUDGE TRIKOUROS: But you dont have any 7 separate analysis that youd --

8 MR. LODGE: No.

9 JUDGE TRIKOUROS: You dont have anything 10 like that.

11 MR. LODGE: Our evidence is based upon --

12 JUDGE TRIKOUROS: Have you actually looked 13 at the calcs they were talking about? Were those 14 available to you? Those werent put before you or 15 anything like that, right?

16 MR. KAMPS: Weve been displeased with the 17 FOIA response to be honest with you.

18 JUDGE TRIKOUROS: All right. I think we 19 can go on from here. Okay. This has to do with --

20 This is your Intervenor motion on page 11. It has to 21 do with the fact that there are no corrective actions 22 being implemented in the AMP basically. And it 23 indicates that there would be a pass-through to the 24 corrective action program.

25 I would like to understand what your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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882 1 problem is with that. You didnt -- I dont think 2 you elaborated on it, at least, not according to my 3 notes. What is your problem with their AMP not having 4 a corrective action program or not having any defined 5 corrective actions and a pass-through to the 6 corrective action problem? What is your issue there?

7 You seem to identify it as an issue but.

8 MR. KAMPS: Is this page 11 of the initial 9 petition?

10 JUDGE TRIKOUROS: No, the motion.

11 MR. BURDICK: September 8th.

12 JUDGE TRIKOUROS: No, the motion.

13 MR. LODGE: The current -- Even though in 14 the FACE evaluation, PII talks about how mitigating 15 steps being taken are monitored and revising the path 16 or pattern of monitoring depending on what the 17 monitoring showed. We think thats a plan to have a 18 plan. Its a return to our position that this is a 19 wait and see and see as little evil as possible in the 20 shield building until some new problem develops. The 21 utility is chasing the problem and not leading toward 22 some realistic analysis of what the status is and what 23 to do next.

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883 1 and now weve got a micro-cracking problem. Its 2 possible the Intervenors wouldnt even be here. But 3 you have some analysis being done of the shield 4 building, application of the coating. Whoops, new 5 problems have cropped up and looks like we may have 6 caused them. And our solution is simply to engineer 7 15 percent expansion of the core borings and see what 8 happens. See what happens next. I dont think -- We 9 dont think collectively that that is a prudent way to 10 proceed with a license extension.

11 JUDGE TRIKOUROS: Okay. But my question 12 is dealing specifically with your comment that dealt 13 with not having corrective actions in the AMP. Its 14 a criticism of the AMP if you will. And you have a 15 problem with the pass-through to the corrective action 16 program.

17 Perhaps I could turn to the staff and the 18 Applicant to ask the question. Is it typical for an 19 AMP to include corrective actions in the body of 20 itself?

21 MR. BURDICK: Your Honor, were confused 22 by the use of corrective actions. If the Intervenors 23 are saying that the AMP should have identified 24 additional corrective actions that we should have 25 taken in response to the laminar cracked propagation, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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884 1 Im not sure thats quite correct. Once we saw the 2 laminar crack propagation, we performed evaluation.

3 We performed the full apparent cause evaluation. In 4 there we identified certain corrective actions. Now 5 some of those corrective actions resulted in revisions 6 to the shield building monitoring program. Thats 7 kind of one issue.

8 But certainly AMPs do utilize the 9 corrective action program. In fact, one of the ten 10 attributes of AMPs is the corrective action program.

11 And so thats certainly fundamental to the age 12 management program.

13 JUDGE TRIKOUROS: So is it typical to 14 include a section on corrective actions in that other 15 than to say it goes into the corrective action 16 program?

17 MR. HARRIS: I think typically with the 18 majority of the AMPs that they call send it to the 19 corrective action program for the plant and they dont 20 necessarily create a separate corrective action 21 program for that particular AMP.

22 JUDGE TRIKOUROS: All right. So your 23 comment that says there should be a corrective action 24 thats your opinion basically. Youre not quoting any 25 authoritative. Im just trying to understand you.

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885 1 MR. LODGE: I understand, sir. Its fair.

2 I think the answer to your question is yes. But were 3 mindful under Commissioner Jaczkos observation one 4 time that once you grant a license theres very little 5 further control that you have and certainly from a 6 public perspective, an Intervenor perspective, any 7 further problems that might crop up from the same line 8 of shield building cracking I can see the solution 9 will be to 2.206 petitions. And that is a highly 10 unsatisfactory type of method because it doesnt 11 reflect any potential for directly participating in 12 the regulating decisions.

13 JUDGE TRIKOUROS: All right. Well, I 14 think I understand where youre coming from now. It 15 wasnt clear when I read it just in a vacuum. You 16 indicate that theres a 0.4 to 0.7 inch crack growth 17 presumption probably in the FACE report I assume.

18 MR. LODGE: Yes, it is.

19 JUDGE TRIKOUROS: And which will lead to 20 you indicate 10.8 inches of additional cracking for 21 two years.

22 MR. LODGE: Yes.

23 JUDGE TRIKOUROS: I think here then -- I 24 wasnt sure where you were going with this. My 25 question really would be what are the implications of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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886 1 this with respect to the design basis of the plant.

2 In other words, if one reestablishes the design basis 3 of the plant today, how does this comment factor into 4 that in terms of two years from now or four years from 5 now, that sort of thing. Does their design basis have 6 to be reevaluated to account for crack growth? How 7 does that work?

8 MR. BURDICK: The Aging Management Program 9 as its written in the acceptance criteria, first you 10 look for if there are any changes in the nature of the 11 cracks and certain issues if identified can go into 12 the corrective action program. Part of that is also 13 to look at the design basis evaluation just to make 14 sure that its acceptable with respect to what youre 15 seeing with cracking.

16 The design basis evaluation weve 17 discussed. That FENOC is completing with its 18 contractor. Its a strength calculation that looks at 19 some of the design basis events. So it addresses kind 20 of the design basis of these issues. But there is 21 certainly significant margin in that document. So 22 certainly FENOC if it identifies any cracking it will 23 consider that. But its a very conservative large 24 margin design evaluation.

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887 1 to assess whether it is within the design basis that 2 exists. Its not to go out and reestablish the design 3 basis. There is margin in the design basis to assess 4 whether it does. Again, to your question, a very 5 legitimate question and we appreciate the opportunity 6 to answer it. But the burden here, the Intervenors 7 havent said why its not. They havent said whats 8 wrong with our calculation or any of the analysis of 9 why the AMP is insufficient, why that period of 10 checking after each winter is not sufficient.

11 JUDGE TRIKOUROS: I understand. Okay.

12 But the comment was made by you to what end? To say 13 theres going to be something wrong in two years? You 14 never really to my memory and to my notes gave us the 15 end point of that comment. Youve made that statement 16 that I just read and then that was it. There was no 17 development.

18 MR. LODGE: One moment. Im just thinking 19 it over here.

20 JUDGE TRIKOUROS: This is in your motion 21 on page 12.

22 PARTICIPANT: Top of page 12.

23 JUDGE TRIKOUROS: Yes, top of page 12.

24 MR. LODGE: Well, the context of it was 25 that we were referring to the two years, actually more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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888 1 than two years time, during which the fact of the 2 propagation was kept rather quiet and certainly wasnt 3 known to the public to us as Intervenors and talking 4 about --

5 Essentially this is the apparent damage 6 that has happened during that stretch of time. It was 7 a credibility problem on the utilities part in terms 8 of this being a very serious problem three years ago 9 that was seriously litigated throughout 2012 with 10 additional information and revelations.

11 And then to learn in 2014 that indeed 12 during the period of time that we were litigating in 13 2012, FENOC knew that there was a propagation problem 14 cropping up. Thats rather astonishing. And thats 15 the context in which that comment is made.

16 JUDGE TRIKOUROS: Okay.

17 MR. LODGE: Once again, we think that its 18 a problem that the management of the problem is 19 designed to minimize the problem.

20 MR. BURDICK: Your Honor, I do take some 21 issue with this claim. And they make a similar one in 22 their contention seven document that somehow we were 23 withholding information from this Board, from the 24 parties. Its simply not true and they have not 25 identified any facts.

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889 1 I certainly take issue with them claiming 2 theres some credibility. In some of their documents, 3 they claim that weve concealed information. Weve 4 been through this before and it was in the reply to 5 contention five where they made similar claims of our 6 active concealment and fraudulent nature. And we 7 moved the Board to strike that and the Board did and 8 instructed them to not make these statements.

9 So I think were hearing these statements 10 again. And theyve presented no basis for that, only 11 speculation. Certainly, I take issue with that.

12 JUDGE TRIKOUROS: Okay.

13 MR. KAMPS: Id like to respond briefly.

14 February of 2012 FirstEnergy knows that theres water 15 in the bore holes. We would have been very interested 16 in that information. In fact, with six filings that 17 year, we were very engaged on these issues. And the 18 only explanation for why that information was not 19 revealed until July 8, 2014 comes in the PII FACE 20 report which said that the belief was that the water 21 was atmospheric, that it was finding its way in from 22 the outside, which was hard to understand because 23 those bore holes were effectively sealed with caulking 24 and with plugs.

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890 1 report that FirstEnergy realized that the water may be 2 internal to the walls. But it was deemed to be of 3 such a small quantity that it couldnt be significant.

4 And now we know because of the FACE report that its 5 quite significant.

6 And the significance is that -- Im 7 referring back to Abdul Sheikh and Pete Hernandez back 8 when cracking was first discovered -- they were 9 worried about collapse of the shield building. They 10 werent worried about architectural impacts to the 11 shield building. They were worried about structural 12 integrity of the shield building.

13 And weve raised those emails numerous 14 times. But the two and a half year delay and the 15 revelation of this information we find very 16 significant given the engagement of everybody who is 17 sitting in this room at that time. How is that not 18 material information to be shared through discovery.

19 There are monthly discovery disclosures. There was no 20 document.

21 MR. BURDICK: Your Honor, thats simply 22 incorrect. There are no monthly discovery disclosures 23 in this proceeding.

24 MR. KAMPS: Documents that arise each 25 month are announced to the other parties. But it took NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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891 1 two and a half years for this information to be 2 shared.

3 JUDGE FROEHLICH: I believe hes referring 4 to admitted contentions.

5 MR. BURDICK: Yes. And theres nothing in 6 the contention on this.

7 JUDGE FROEHLICH: That provision which you 8 refer places an obligation upon parties to disclose 9 documents relevant to admitted contentions. I guess 10 the perspective of the Applicant here is that since 11 there was no admitted contention at that point in time 12 there was no monthly disclosure requirement. Is that 13 correct?

14 MR. BURDICK: Thats correct. And the 15 Petitioner just read our explanation for the water in 16 the core bores. I dont think we need to say anything 17 more about that. But certainly concealment was not 18 part of that.

19 JUDGE FROEHLICH: I think we should move 20 on.

21 JUDGE TRIKOUROS: Okay. Im satisfied 22 with that. I dont have any other comments on the 23 motion or on any other issues that I wanted to 24 understand. Im going to go onto the Applicants 25 answer. Most of my issues have been resolved on this.

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892 1 So thats good.

2 I do have one question though on FENOCs 3 answer, page 41. The Intervenors use a term full 4 spectrum investigation. And I would just like to 5 understand what full spectrum investigation means. Is 6 this something specific that we dont understand or?

7 MR. LODGE: No.

8 JUDGE TRIKOUROS: No, okay.

9 MR. LODGE: It does mean the global 10 investigation of the nature and extent of cracking.

11 JUDGE TRIKOUROS: Is this some specific --

12 MR. LODGE: Its not an engineering term, 13 sir.

14 JUDGE TRIKOUROS: Its not something that 15 -- All right. Thats fine.

16 All right. This is a SAMA issue, but I 17 think weve cleared up for SAMA.

18 With respect to the difference between 19 this July 3rd AMP which is the AMP that you have 20 specifically wrote a contention on and previous AMPs.

21 In the Applicants answer on page 52, they say The 22 Commission and the licensing board also agreed that an 23 enhancement to an AMP should not be considered new 24 information to support a new contention. We touched 25 on this earlier this morning. The staff made exactly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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893 1 the same comment if I remember correctly.

2 Could you tell us how the information from 3 this July 3rd AMP and the FACE report basically 4 validated that comment if in fact there is something 5 new and significant about the July 3rd AMP?

6 MR. LODGE: What page is that on, sir?

7 Fifty-three?

8 JUDGE TRIKOUROS: Fifty-two. This is the 9 FENOC answer on page 52.

10 (Off microphone comments) 11 MR. LODGE: Im sorry. Is it -- I just 12 want to read the comment if I may. Is it 51 of the 13 PDF or is it the actual page 52?

14 JUDGE TRIKOUROS: I believe its the 15 actual page 52.

16 MR. LODGE: Okay.

17 (Off microphone comments) 18 JUDGE TRIKOUROS: Its in the first 19 paragraph under A.

20 MR. LODGE: We understand the principle 21 that making some changes in the AMP does not create 22 some litigation opportunity. But that isnt the gist 23 of our contention. The gist of our contention is that 24 there are -- somehow were not done with the matter of 25 identifying root cause. And it is difficult if not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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894 1 possible to conclude at this point that the cracking 2 is actually going to cease. It is somehow going to be 3 frozen at whatever level. Poor choice of words, but 4 that its going to stop and not worsen over time.

5 We were not -- Were quibbling with the 6 inadequacy of the AMP, but we are quibbling because 7 the underlying basis is considerably more troubling 8 than we believe is justified by three additional bore 9 holes and a little bit more frequent analysis being 10 performed.

11 We think that the root cause is a marked 12 departure from the earlier explanations of the 13 cracking. And the new root cause, the new improved 14 root cause, basically suggests that it is probably 15 going to be a continuing phenomenon that continues 16 indefinitely certainly into the 20 year period. Its 17 not at an end.

18 Therefore, the AMP is not adequate. I 19 understand that -- Were not saying you made changes 20 to the AMP. Therefore, we should be allowed to have 21 an admitted contention. Were saying there are 22 dramatic new explanations being offered and 23 essentially new points being conceded as to the aging 24 relatedness of this and the revelation that the 25 mitigation didnt work and in fact caused more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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895 1 problems.

2 JUDGE TRIKOUROS: So its the FACE report 3 new information.

4 MR. LODGE: Yes.

5 JUDGE TRIKOUROS: Regarding the new 6 mechanism that you view that as a --

7 MR. LODGE: Correct. And that is a 8 misread by FirstEnergy of the thrust of our 9 contention.

10 JUDGE TRIKOUROS: Okay. I dont have any 11 more questions on the FENOC answer. These issues came 12 up and I really would like to understand them.

13 The NRC staff answer on page 20, you make 14 the statement that The root cause is not 15 determinative of the shield building monitoring AMPs 16 adequacy. So youre saying theres no connection 17 between the root cause and the AMP actions.

18 MR. HARRIS: Yes, Your Honor. In fact, we 19 made those statements back the last time we were about 20 this is the mechanism for the cracking in a program 21 like this where youre monitoring and trending and 22 comparing it to acceptance criteria is not necessarily 23 going to tell you whether or not the AMP is adequate.

24 The idea is not to arrest. You dont have to arrest 25 the cracking. You have to make sure that the shield NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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896 1 building maintains its functions. And that does not 2 require arresting the cracking.

3 JUDGE TRIKOUROS: And would the root cause 4 have any effect on the type of analysis that you do?

5 For example, whether you use just visual observations 6 or what you refer to as enhanced optics, wouldnt the 7 root cause be determined if it were that as well? I 8 mean, do you really see theres no connection between 9 the root cause and the AMP?

10 MR. HARRIS: There is some connection. So 11 if you had some cracking that was not visible that you 12 could not monitor and trend, of course, then a visual 13 inspection would probably be insufficient. Yes, in 14 principle, you can.

15 In this case for the shield monitoring AMP 16 were looking at the cracking propagation from this 17 where you have it. Its been detected by visible.

18 Youre able to see it in trend the growth of those 19 cracks. In this case, youre able to measure that 20 trend. I dont know that the ice wedging would impact 21 whether or not the monitoring of the crack growth is 22 material to whether or not the AMP or the laminar 23 crack propagation is adequate.

24 JUDGE TRIKOUROS: For me, this is related 25 to the comments made by the Intervenors regarding the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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897 1 need for additional testing evaluation methods.

2 Whatever methods are in the AMP, they have to be able 3 to see cracks regardless of the root cause. And the 4 question is in many cases its just visual. And its 5 not clear to me how that plays out.

6 MR. HARRIS: That would be true of almost 7 any structure is that there are lots of places in any 8 structure that youre not looking at. These 9 challenges could have been brought up before. This is 10 not a function of the crack propagation in terms of 11 monitoring for other cracks that are not visible.

12 That was true when they first discovered 13 it. It was true when they first put the AMP in place.

14 Those issues have been around since we started 15 discussing this issue.

16 JUDGE TRIKOUROS: Right. And the comments 17 were not made by the Intervenors regarding the 18 structures AMP in general. They were made 19 specifically regarding the shield building AMP which 20 is specifically geared toward certain root cause in a 21 sense. So I just wanted to make sure I understood why 22 you said that. Thats all.

23 MR. HARRIS: Theres no evidence that 24 there are cracks -- In terms of those cracks, the 25 Intervenors havent put forward anything that would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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898 1 suggest that the cracks, those laminar cracks, that 2 were characterized by the impulse response testing, 3 the core bores, that they havent been located and 4 they cant be found by visual inspection. That there 5 is some crack that were missing somewhere.

6 JUDGE TRIKOUROS: So, Applicant, do you 7 agree that the adequacy of the AMP is not related to 8 the root cause?

9 MR. BURDICK: Yes. And I think this goes 10 back to some of our earlier discussion that the shield 11 building monitoring program was put into place to 12 address this laminar cracking. And its focused on 13 the laminar cracking and to see if there are any 14 change in the nature of that cracking.

15 When it was implemented or I should say 16 when it was submitted in April 2012, it already did 17 that. It still focused on the laminar cracking to see 18 if there were any changes in its nature. That hasnt 19 changed in 2013. There have been some enhancements, 20 but still its looking for changes in the nature of 21 the laminar cracking.

22 JUDGE TRIKOUROS: If the AMP finds 23 something, then a root cause is usually done to 24 evaluate whats causing the problem. Then isnt it 25 true that the AMP would then be modified to reflect NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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899 1 anything learned from the root cause? I mean the 2 statement that theyre just totally distinct I just 3 dont understand.

4 MR. BURDICK: If any of the acceptance 5 criterion in the AMP are I guess affected, if they see 6 a change in the width of a crack or the expansion of 7 the crack into an uncracked area, then certainly FENOC 8 would investigate that. It may not require a root 9 cause. It depends on what they find.

10 But theyre investigate to look if 11 anything needs to change. Just like in 2013, still 12 the purpose and whats monitored and the focus on 13 laminar cracking didnt change in those circumstances.

14 JUDGE TRIKOUROS: All right. So where the 15 Intervenor has claimed that you need additional 16 testing methods, your position is that your current 17 testing methods are adequate. But that you would 18 implement new testing methods if there was an 19 observation of something new.

20 MR. BURDICK: I dont know.

21 JUDGE TRIKOUROS: Im trying to 22 understand.

23 MR. MATTHEWS: Judge Trikouros, were here 24 today because the monitoring program worked. It 25 identified changes in the crack. It identified crack NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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900 1 propagation. That was under the maintenance rule 2 program in the current period that is functionally 3 similar to the AMP and now identical. It found it and 4 put it in the corrective action program. Under 5 appendix B corrective action program, there was an 6 evaluation of the issue.

7 JUDGE TRIKOUROS: It found it because you 8 used enhanced optics.

9 MR. MATTHEWS: Yes.

10 JUDGE TRIKOUROS: I mean that 11 specifically.

12 MR. MATTHEWS: In the current program.

13 Even in our monitoring program, we used advanced 14 optics. Then when we identified indications of 15 cracking it was put in several condition reports into 16 the corrective action program. In the corrective 17 action program, then all the appendix B sections that 18 I think youre referring to all applied.

19 FENOC assessed whether this should be a 20 low tiered evaluation, whether it was an apparent 21 cause, whether it was root cause. This was a full 22 apparent root cause or full apparent cause evaluation.

23 Nonetheless, they used a contractor who did a root 24 cause to help support their apparent cause. And they 25 did extentive condition which they decided to do, a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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901 1 more comprehensive core bore evaluation, look at all 2 the core bores.

3 In those areas where they suspected there 4 could be possibility of crack propagation, they did 5 impulse response testing which is not the same, not 6 better, than core bore. Its another datapoint. It 7 tells you something different about the concrete, not 8 necessarily that its cracked. But its an 9 indication. They used that.

10 So the short answer to your question is 11 yes. They would use the corrective action program to 12 evaluate what further methods would be necessary to 13 identify the cause and the extent of condition.

14 But can we tell you today sitting here 15 that if we found this crack they would do this many 16 more core bores or this area for the analysis that 17 might have to do with impulse response testing or 18 chemical testing or whatever else they might do? We 19 cant say that. It would be addressed under the 20 corrective action program appropriately as it was.

21 And thats why were here.

22 MR. HARRIS: And, Your Honor, I think 23 maybe to clarify. What we were intending to say when 24 we were talking about the relationship of the cause of 25 cracking to the AMP was the method for the cracking is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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902 1 not determinative of the adequacy of the AMP. Whereas 2 you could determine the adequacy of the AMP without 3 necessarily knowing the method of cracking.

4 Now does that feed into how fast the crack 5 may be growing? Whats the particular mechanism in 6 terms of when you might challenge the acceptance 7 criteria? Of course. Should you feed that 8 information in as they did? Of course. But what 9 were saying is you can determine the adequacy of the 10 AMP simply because the mechanism -- a new mechanism 11 has been identified.

12 JUDGE TRIKOUROS: Okay. Im just trying 13 to correlate here the comments made by the Intervenors 14 that there should be additional methods of 15 investigation identified. And the fact that the AMP 16 itself pretty much says visual I believe I dont think 17 there is any -- Id have to pull it out and look at 18 it. But I dont see -- Theres a lot of visual 19 inspection using an ACI-approved method.

20 And yet here in this situation we had a 21 very astute consultant, PII, who chose to look at the 22 bore holes using an enhanced optics method which 23 identified the additional cracking only because of 24 that and then preceded to identify an additional root 25 cause, namely ice wedging.

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903 1 MR. MATTHEWS: Judge Trikouros, theres 2 just a small factual piece of that thats flip. FENOC 3 used the enhanced method and identified the cracking 4 and referred to PII. And the PII used other methods.

5 JUDGE TRIKOUROS: I stand corrected.

6 MR. MATTHEWS: But FENOC on its own.

7 JUDGE TRIKOUROS: Okay. Thats good to 8 know. So FENOC chose to use an enhanced optics method 9 and found the crack. Thats good. But the point is 10 that if they hadnt the cracks would have gone 11 undiscovered or so it appears by reading whatever is 12 in front of me.

13 MR. MATTHEWS: And they have until the 14 next core bore inspection.

15 JUDGE TRIKOUROS: Again, Im just trying 16 to relate this to the comment that were dealing with, 17 the contention that were dealing with, that is 18 addressing the need for additional methods of 19 investigation with respect to the AMP.

20 MR. MATTHEWS: But I think were flipping 21 it again, Judge Trikouros. They havent said why we 22 should expect cracking anywhere else other than on the 23 fringe of the existing laminar crack. We have 24 identified why the crack grew in those areas and 25 through the ACE explained that. They just said they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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904 1 want these other testing methods in other areas but 2 not why its necessary. Why thats a deficiency of 3 the shield building AMP or the structures AMP or any 4 AMP? They havent told us why thats necessary at 5 all.

6 I understand your question why is FENOC 7 comfortable. But we dont need to look in other 8 places.

9 JUDGE TRIKOUROS: I agree that the comment 10 is very broad and broadly applied. Use other methods 11 and they mention -- you mention five or six. But you 12 dont identify one in particular or two in particular.

13 Theres truth to that.

14 MR. MATTHEWS: And FENOC is not sticking 15 its head in the sand. FENOC has evaluated all the 16 core bores they had in response to this. They went to 17 all 80 and checked. They have a structure monitoring 18 AMP.

19 Theres just no reason to suspect that 20 this laminar cracking phenomena may pop up somewhere 21 else. The building is not coated. So there wont be 22 wind driven rain into it to cause that saturation in 23 these other areas. The rebar is not at that spacing 24 in these other areas. Without that, FENOC doesnt 25 have a reason to start drilling holes all over the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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905 1 shield building or any other building.

2 JUDGE TRIKOUROS: All right. I think Im 3 okay with all the rest. Just for my own information, 4 the contentions five and six material, while we did 5 not admit those contentions for a variety of reasons 6 that we documented, what is your position regarding 7 the availability of that material for this contention?

8 MS. KANATAS: Certainly, it is 9 Intervenors right to incorporate by reference past 10 filings. But that doesnt excuse Intervenors from 11 having to meet the contention admissibility standards 12 and indicate at this point since were now almost four 13 years past the deadline for initial petitions for 14 intervention how that information is new and 15 materially different and how it supports admissibility 16 by raising a genuine material dispute with the 17 application within the scope of the proceeding.

18 And they did not do that. They simply 19 repeated their arguments that theyve raised these 20 concerns before and theyve possibly should have been 21 admitted before and that they show that theres a 22 problem. But they dont -- Thats not enough I mean.

23 So its certainly not our position that 24 they cannot cite to past pleadings. But again it 25 doesnt excuse the need to tie those pleadings to a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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906 1 specific, adequately supported challenge to the 2 application as it stands now.

3 JUDGE TRIKOUROS: I understand. Okay.

4 But theres no problem with looking at that 5 information and making a determination as to how it 6 might or might not impact this.

7 MS. KANATAS: Well, its for the -- This 8 is not -- Certainly, we can look at what they filed in 9 their pleadings in support of their contentions. Its 10 not for the staff or the Board or anyone else to build 11 a contention for them. They have proposed certain 12 claims based on those filings. And we are here. It 13 is our position that they have not demonstrated that 14 those filings raise a dispute.

15 JUDGE TRIKOUROS: Right. Now I 16 understand. Any comments on that?

17 MR. BURDICK: I agree with that. Their 18 contention is certain building requirements. We 19 talked about them multiple times today. There are 20 timeliness requirements. Those all have to be 21 satisfied for that information as well.

22 So there is a burden on the Intervenors to 23 demonstrate it is timely. If theyre raising the 24 document to make an argument that they could have made 25 back when the information first became available then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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907 1 that would be untimely. And if they try to use it, 2 for some reason it is timely and they try to use it, 3 they still have to meet the six other contention 4 admissibility factors including providing the alleged 5 facts and expert opinion or identifying the genuine 6 dispute. So they cant just cite the information or 7 incorporate it and assume that meets that hurdle.

8 They still have to demonstrate it. And thats 9 certainly one thing they have not done is try to pull 10 the argument together.

11 JUDGE TRIKOUROS: Okay. Now I have a 12 question on the Intervenor reply on -- It would be on 13 page four. I dont quite understand what you said 14 that 10 CFR 54.29 -- Im sorry. It says FENOC and 15 the NRC staff has made conjectural arrangements 16 commencing in 2017 to be predicated upon information 17 learned about the cracking FirstEnergy has not yet 18 identified much less absorbed. I didnt understand 19 that.

20 (Off microphone comments) 21 MR. BURDICK: Judge Trikouros, I think it 22 might be on the top of page 15 of the reply.

23 JUDGE TRIKOUROS: Yes.

24 MR. LODGE: Sorry. I didnt realize you 25 were still looking for it. It is the first full NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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908 1 sentence.

2 JUDGE TRIKOUROS: Okay. Sorry. I had the 3 wrong reference there. Could you explain that to me?

4 MR. LODGE: Yes sir. I apologize. This 5 is again draftsmanship.

6 JUDGE TRIKOUROS: Of what?

7 MR. LODGE: Of the meaning of that 8 statement was that FirstEnergy is proposing aging 9 management plan arrangements commencing for the 20 10 year renewal period based upon unknown unknowns. That 11 essentially until theres a baseline set of data 12 established as to the cracking status of the overall 13 shield building that to come up with in 2014 with an 14 aging management plan for 2017 is fatuous. Thats 15 what we meant.

16 JUDGE TRIKOUROS: Okay. All right. On 17 page 16, you make the statement Contention 7 must be 18 adjudicated by the Board not as a determination of the 19 adequacy of present CLB activities but to ascertain 20 whether there was reasonable assurance that the 21 present CLB efforts will tandem into the obligatory 22 shield building CLB activities. Perhaps you can give 23 me a little more on that.

24 MR. LODGE: We were respecting the fact 25 that it is by regulation not permissible to litigate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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909 1 what is done by way of corrective action or the things 2 related to continuing license basis between now and 3 April 22, 2017. But we believe its incumbent on the 4 Board in terms of an adjudication to determine whether 5 the continuing licensing basis activities in the 6 extension period are in any way logically related to 7 whatever happens over the next two and a half to three 8 year period.

9 Weve haggled a lot today about the hands-10 off circumstance over continuing license regulatory 11 activity between now and the end of the four year 12 period in our very limited recourse to question or 13 challenge that. But the FirstEnergy approach has been 14 to treat this as a day-to-day management problem.

15 We contend that so long as there is a lack 16 of comprehensive understanding of the status of the 17 structure that they get that pass. It would be a 18 different picture and it might even make the 19 Intervenors go away if there were comprehensive 20 knowledge of the status of the shield building. We 21 believe that after the coating was applied which was 22 a big game changer that thats a very different 23 circumstance which has apparently caused additional 24 cracking.

25 And Id like to take this opportunity to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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910 1 point out that from 1978 until 2011 either because 2 they werent visible or because they werent being 3 looked for cracking was not noticed. Were talking 4 about the blizzard of 78 setting up the preconditions 5 for the cracking to commence and have to presume that 6 it was under way continuously through 2011.

7 In 2002, there was a maintenance breach of 8 the shield building. The cracking is not noticed.

9 Perhaps it was not visible. But it existed. It had 10 to exist in some form. The deterioration was 11 happening.

12 So were talking about decades where 13 cracking is not identified. And then we sort of get 14 into this anecdotal phase where in 2011 in a 15 maintenance breach circumstance laminar cracks are 16 noticed. And there is an investigation performed.

17 And even if you were to concede that the 18 impulse testing done at that time were done and it was 19 relatively comprehensive it was not the -- it 20 certainly was not exactly the best available 21 technology. But even if it were, the later technology 22 that has been applied has shown that theres 23 microcracking that has not been identified.

24 Our point is that this panel has to --

25 Certainly, we think it is relevant to look at what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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911 1 plan is right now, the aging management is at this 2 moment. But you have to make inferences as to its 3 adequacy during the 20 year period that would follow 4 if an extension were to be granted. And based upon 5 historical cracking, I think that theres a lot of 6 data thats missing that would be very necessary for 7 consideration in that proceeding.

8 (Off microphone comments) 9 JUDGE TRIKOUROS: Okay. Im done with my 10 questions regarding the pleading. Just again to 11 understand this a little better, laminar cracking 12 appears the winter of 78. Does ice wedging not occur 13 from that point forward or does it occur?

14 MR. BURDICK: There is no evidence of ice 15 wedging prior to when it was identified in 2013.

16 JUDGE TRIKOUROS: Prior to what?

17 MR. BURDICK: Prior to when it was first 18 identified in 2013. So our conclusion from the root 19 cause evaluation in 2011-2012 was that there was the 20 one event laminar cracking that was by the 78 21 blizzard. Only through that event and the design of 22 the shield building that caused one laminar cracking.

23 So it was only after that point when the ice wedging 24 occurred. So after -- In the last couple of years.

25 JUDGE TRIKOUROS: What is it about the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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912 1 last couple of years thats different.

2 MR. BURDICK: So the apparent cause 3 evaluation identifies the attributing cause as 4 coating. So theres the application of the coating to 5 the shield building. So theres no evidence that 6 there was any ice wedging before application of that 7 coating.

8 MR. MATTHEWS: Retrospectively to see if 9 there had been indications of step fracture prior to 10 2012 and did not find indications of step fracture 11 which would be indicative of ice wedging.

12 JUDGE TRIKOUROS: So really applying the 13 coating did it.

14 MR. MATTHEWS: The ACE concluded that was 15 a contributing cause.

16 JUDGE TRIKOUROS: Yeah, Ive had trouble 17 understanding. Im not a structural guy, but Ive had 18 trouble understanding why applying the coating would 19 cause that to happen.

20 MR. MATTHEWS: And that same analysis 21 affirmed the evidence earlier of the initial freeze as 22 causing one continuous crack and not the suggestion 23 thats been tossed out here without basis that its 24 some type of living phenomena.

25 JUDGE TRIKOUROS: Okay.

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913 1 JUDGE FROEHLICH: At this stage, I would 2 propose that we take a ten minute break. If people 3 would please correct your closing arguments, well 4 hear them in the order of staff, the Licensee, closing 5 finally with the Petitioners. Then well call it a 6 day. Well take ten minutes and then proceed directly 7 to closing arguments. Off the record.

8 (Whereupon, the above-entitled matter went 9 off the record at 3:13 p.m. and resumed at 3:26 p.m.)

10 JUDGE FROEHLICH: On the record. Start 11 from the top.

12 MS. KANATAS: Okay. Thank you, Your 13 Honors. This oral argument is about the admissibility 14 of Contention 7. Have Intervenors met their burden in 15 submitting an adequately supported contention that 16 raises a material, genuine dispute with FENOCs Davis-17 Besses license renewal application and meets the 18 Commissions standards for contentions filed after the 19 deadline for petitions to intervene.

20 The answer to that question is no.

21 Intervenors proposed Contention 7 should not be 22 admitted to this proceeding because Intervenors have 23 not shown that the contention is based on new and 24 materially different information or that the 25 contention raises a genuine material dispute with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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914 1 FENOCs license renewal application. In support of 2 Contention 7, Intervenors incorporate all of their 3 Contention 5 filings and provide a history of the 4 shield building issues that led to the filing of 5 Contention 6.

6 While the staff recognized that Contention 7 5 raised a single admissible safety claim at the time 8 it was filed, that claim was mooted by FENOCs 9 submission of a shield building monitoring AMP. Since 10 April 2012, FENOCs application has included plant 11 specific shield building monitoring program to monitor 12 the shield building cracking during the period of 13 extended operation.

14 Intervenors claim that changes made to 15 this AMP by FENOCs July 3, 2014 submittal are new and 16 materially different information. Intervenors also 17 claim that the full apparent cause evaluation contains 18 new and materially different information given its 19 conclusions on ice wedging. However, Intervenors have 20 not shown that the changes made to the AMP or the 21 conclusions in the full apparent cause evaluation are 22 new and materially different information.

23 The shield building monitoring AMP always 24 contemplated the possibility of an aging mechanism and 25 increasing monitoring and augmenting inspections if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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915 1 new cracks were identified. And this is exactly what 2 FENOC did in response to operating experience.

3 Intervenors could have and did raise challenges that 4 the scope, method and frequency of the testing was 5 inadequate prior to this September. But those 6 previous challenges were rejected. Under Oyster 7 Creek, Intervenors attempts to challenge the 8 augmented shield building monitoring AMP must fail.

9 In terms of the coating being a 10 contributing cause to the crack propagation, the 11 Intervenors do not indicate why this suggests 12 inadequacy in the monitoring proposed by the shield 13 building monitoring AMP. Likewise, while Intervenors 14 might incorporate by reference their previous filings 15 on the shield building, that does not excuse them from 16 showing how that information is new and materially 17 different.

18 Intervenors do not indicate how any of the 19 information in the Contentions 5 or 6 filings is new 20 or materially different. Instead Intervenors repeat 21 arguments considered and rejected by the Board and 22 suggest that the Board was wrong to reject them in the 23 first instance.

24 This rehash of previous arguments does not 25 support admissibility of Contention 7. Even assuming NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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916 1 the Board finds that Contention 7 is based on new and 2 materially different information, Contention 7 should 3 still be found inadmissible. Intervenors have not 4 shown that the Contention 7 satisfies the Commissions 5 contention admissibility standards.

6 Intervenors challenges to the shield 7 building monitoring AMP while in scope do not raise a 8 genuine material dispute with the application.

9 Intervenors only point to enhancements made to the AMP 10 and assert without support that more is needed, more 11 core bores, more monitoring, more tests or they raise 12 nonspecific and nonsupportive challenges that other 13 AMPs are inadequate. This is not enough to trigger an 14 adjudicatory hearing.

15 The rest of Contention 7 safety claims are 16 issues that are outside the scope of this limited 17 proceeding such as current operating issues, safety 18 culture claims and challenges to the staffs review.

19 This Board has made clear that these issues are not to 20 be adjudicated in this license renewal proceeding.

21 Even assuming these claims were in scope, Intervenors 22 claim that basis.

23 Intervenors do not explain why using facts 24 or expert opinion the shield building cracks impact 25 the shield buildings ability to perform its intended NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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917 1 functions. Likewise, Intervenors environmental 2 claims do not satisfy the Commissions contention 3 admissibility standards because their lack of support 4 and specificity and do not raise a genuine material 5 dispute with FENOCs environmental report and the 6 staffs draft environmental impact statement.

7 Intervenors assert that the SAMA is 8 inadequate, but Intervenors offer no support for this 9 assertion and do not point to any specific portion of 10 the SAMA or the DSEIS or indicate how those analyses 11 are inadequate. Likewise, Intervenors claim that the 12 alternatives analysis is inadequate, but do not 13 specify how the analysis is flawed. Instead 14 Intervenors claim that the shield building must be 15 repaired because it is not able to meet its design 16 basis functions.

17 But Intervenors do not offer support for 18 these claims or explain how using facts or expert 19 opinion the shield building cracking are connected to 20 an environmental impact that is relevant to the 20 21 more years of operating the plant. Therefore, it is 22 clear the Intervenors believe there are errors or 23 deficiencies in FENOCs license renewal application.

24 Intervenors have not indicated some significant link 25 between a claim deficiency and the health and safety NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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918 1 of the public or the environment.

2 While the staff has not made its findings 3 on the shield building monitoring AMP, Intervenors 4 have not raised a support of genuine dispute with the 5 AMP. The staff continues to review the shield 6 building monitoring AMP. FENOCs October 28, 2014 7 response to the staffs September 29th RAI and may ask 8 additional questions.

9 But this does not give rise to an 10 evidentiary hearing. The RAI process is routine and 11 customary in licensing reviews. To admit a contention 12 into this proceeding, Intervenors must do more than 13 point to FENOCs responses and claim that they are 14 inadequate.

15 In closing, Id like to repeat a point 16 that I opened with. The staff recognizes that the 17 shield building is a structure within the scope of 18 license renewal and that is subject to aging 19 management review. The staff also recognizes that the 20 shield building performs important design basis 21 functions. The staff will not issue a renewed license 22 unless and until it finds that FENOC has met all 23 applicable requirements. Thank you.

24 JUDGE FROEHLICH: The Licensee.

25 MR. MATTHEWS: Thank you, Judge Froehlich.

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919 1 FENOC appreciates this opportunity to address the 2 Board today. Id like to recognize the zeal of the 3 Intervenors, the efforts on the part of the NRC staff, 4 staff counsel and also recognize the obvious effort of 5 the Board to dig into these issues so that we can have 6 this constructive discussion I think we had today.

7 As Judge Froehlich noted in his opening 8 remarks this morning, the only purpose for which were 9 here this morning or today is to discuss the 10 timeliness and sufficiency of the Intervenors 11 proposed contention. We touched on a lot of things, 12 but thats the only reason were here.

13 As both the staff and FENOC explained in 14 their written briefs and discussed further today, the 15 Intervenors have not. The proposed contention should 16 not be admitted.

17 With respect to timeliness, the 18 Intervenors have not identified any materially 19 different, new information in FENOCs revised aging 20 management program or the full apparent cause 21 evaluation. FENOC has always been focused on 22 identification of any observable change in the laminar 23 cracks. The methods specified in the AMP worked. The 24 challenge is now to those inspection methods are 25 untimely.

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920 1 Improvements practices in the AMP, 2 improvements in the AMP, do not open the entire AMP to 3 new attack as the Commission and the Board found in 4 the Oyster Creek proceeding.

5 With respect to sufficiency of the 6 proposed Contention 7, Intervenors also failed to meet 7 the requirements specified in 10 CFR 2.309(f)(1).

8 Many of the topics contained in the contention fall 9 well outside the scope of the license renewal 10 proceeding.

11 Most of those we have not spent time on 12 today addressing safety culture or NRC disclosure 13 practices. But we did spend some time on current 14 licensing basis, again outside the scope of license 15 renewal. In fact, theyre specifically excluded from 16 license renewal under the sections of regulation we 17 talked about today.

18 To the extent Intervenors do refer to 19 FENOCs aging management program at all, they fail to 20 satisfy the requirements of 309(f)(1). They never, 21 not in their initial contention, not in the amended 22 contention, not in the reply brief and not here today 23 identified any reason, any basis, to say why FENOCs 24 AMP is not adequate for its purpose.

25 They dont say why they believe monitoring NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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921 1 of core bores is insufficient. Even in the face of 2 the demonstrated success, the identification of crack 3 propagation is why were here today. They dont 4 identify any deficiency in the scope, method, 5 frequency, number or location of our inspections.

6 They say they want all of these aspects 7 expanded, but do not say why the enhancements FENOC 8 has already submitted are not sufficient. When 9 pressed today, they identified none.

10 Of course, without having identified any 11 deficiency nor have they identified supporting basis, 12 either expert opinion or other technical authority, 13 again pressed today, they found none. They have not 14 demonstrated how their concerns or curiosities as they 15 characterized them impact any finding the staff must 16 make in order to issue a renewed license.

17 Theres been some discussion today about 18 other concrete failure mechanisms such as freeze/thaw 19 or microcrack. Intervenors never challenged the 20 structures AMP. If they had, that too would have been 21 without basis and probably untimely, but they did not.

22 This discussion today does not cure that deficiency.

23 The shield building monitoring AMP, there 24 was a couple of housekeeping issues Id like to 25 address in this. The shield building monitoring AMP, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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922 1 there was a question about limited to visual 2 inspection. And, Judge Trikouros, I think it was 3 yours. I think youll see that its not limited to 4 visual inspection. At page four of six, its visual 5 inspection supported by a nondestructive evaluation as 6 appropriate.

7 Similarly, the parallel program in the 8 current period took us to impulse response testing as 9 a nondestructive evaluation technique. So it is 10 certainly not -- FENOC is not constrained to visual 11 testing.

12 It does in fact refer indications to the 13 corrective action program. And the corrective action 14 program as the Commission recognized when 15 incorporating or continuing the current license basis 16 and the renewal term is sufficient for a monitoring 17 AMP.

18 FENOC has extent of condition evaluation, 19 extent of cause evaluation and its appropriate 20 developed correction actions under that appendix B 21 program. So there should be no concern about the 22 adequacy of the corrective action program to address 23 concerns, issues, technical changes should they be 24 identified.

25 There was also a reference today to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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923 1 thermal conductivity of the shield building and 2 whether we should be concerned about the depth of 3 freezing. I think youll see in the original root 4 cause that you discussed earlier today, Judge 5 Trikouros, at page 26, paragraph four they discuss the 6 properties of the concrete and conclude that the 7 thermal conductivity of the shield building was within 8 the acceptable range.

9 With respect to the proffered 10 environmental contention, whether we call it the SAMA 11 contention, the no alternative or other, that 12 contention failed for all the same reasons I addressed 13 related to safety basis. And I wont repeat them.

14 There have been some suggestions today 15 that FENOC doesnt understand the status of the shield 16 building without basis. But those statements fall 17 into a pattern of tax on FENOC, the men and women of 18 FENOC. Its not the three attorney sitting at the 19 table. There are hard-working people at FENOC who 20 study these issues who have evaluated the condition of 21 the shield building, have looked at the calculations, 22 have assessed the calculations, answered the NRCs 23 questions. Theyve been very open. Theyve been very 24 honest.

25 Were here today because of the hard work NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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924 1 they did in identifying it, studying it and revising 2 the AMP. Those kinds of suggestions are without basis 3 and I wanted to bring that to the Boards attention.

4 There are real people behind these allegations that 5 are thrown around.

6 To that point, Intervenors challenge a lot 7 of things. They make allegations about the shield 8 building AMP. They make allegations about FENOC 9 disclosing information. They make allegations about 10 the staffs review. They even seem to be making 11 allegations about the Boards earlier decisions.

12 One thing they havent really looked at is 13 the sufficiency of their own contention and explain 14 today why it should be admitted. For the reasons, 15 weve discussed in our briefs and here today, the 16 proposed Contention 7 should be rejected in its 17 entirety. Again, we appreciate this opportunity to 18 address you.

19 JUDGE FROEHLICH: Thank you.

20 MR. LODGE: Thank you. Lets dispose of 21 the simple issues first. We timely filed. We timely 22 filed within 60 days. Actually, it was 62 days, but 23 that was because of the Labor Day holiday. I didnt 24 take Labor Day off.

25 The timeliness requirements were met. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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925 1 new and material information. I guess theres no new 2 and material information if you ignore the damaging 3 revelation that coating the shield building worsened 4 the problem. That is new and material information.

5 The unanswered end of that, however, is 6 now what? What happens to the saturation status of 7 the outer 10 inches apparently 360 degrees around the 8 shield building? Weve adequately supported in a 9 timely fashion with material new information our 10 contention.

11 And there is some very hard working people 12 no doubt at FirstEnergy. Intervenors question the 13 direction of those efforts. We still havent heard 14 that theres been a comprehensive analysis of the 15 entire shield building.

16 And let me explain something. You heard a 17 little while ago the representations of FENOCs 18 counsel about ice wedging. Ice wedging -- and Im 19 reading from the FACE analysis -- requires the three 20 following conditions to occur: a preexisting crack, 21 water present in the crack at localized saturation, an 22 ice wedge cycle that contains a freezing condition.

23 So explain for me how it could be that there was no 24 ice wedging until they coated the shield building.

25 You had at some point laminar cracking.

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926 1 You had subsurface laminar cracking. So you had 2 preexisting cracks. And you had water. And you had 3 freezing and thawing. So how can it be that were 4 sitting here haggling as lawyers making 5 representations to the Board as to engineering or 6 scientific conclusions that we kind of have no 7 business making instead of adjudicating this thing.

8 I almost wanted to slip notes to the 9 Licensing Board as to cross examination questions to 10 ask counsel just to inquire behind that conclusory 11 assurance that FirstEnergy is giving you that Oh no.

12 Theres no ice wedging until we identified it from the 13 2012-2013 debacle" 14 In fact, I appreciate, the Intervenors 15 appreciate, the intensive scrutiny that the Board has 16 applied to this issue and before today and in 2012.

17 Were not trying to relitigate the findings that Board 18 rendered in 2012. We are simply trying to make sure 19 that the record contained the historic data, the FOIA 20 request of the facts. And the Board has certainly 21 reflected that it has gone back into the historic 22 filings and the historic facts which are quite 23 important and relevant to understanding things today.

24 PII has called the shield building 25 situation unique. And indeed when you think how could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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927 1 it possibly be that more than 35 years after the 2 building is constructed someone apparently looks at 3 old specs and realizing Oh my God. We didnt coat 4 the shield building and then has to reconstruct how 5 it came to be that there were laminar cracks.

6 But the problem that follows upon that is 7 that FirstEnergy confined its investigation to laminar 8 and sublaminar cracking. The Intervenors did not 9 confine their analysis, their arguments and their 10 facts to merely laminar cracking. And we have been 11 proven, weve been vindicated, to some extent by what 12 has happened and the discoveries made with better 13 technology and the error made by FirstEnergy in 14 coating the shield building.

15 The ACI monitoring advice does not cover 16 the situation. I think that was pretty clearly shown.

17 And finally I often -- Ive done a lot of 18 summary judgment and summary disposition litigation in 19 my career as have a lot of attorneys. And probably as 20 Judges, your eyes glass over as mine do when you read 21 the recitations of standards and what you may and may 22 not consider in the course of determining whether or 23 not to admit a contention.

24 And I found my admittedly rather 25 boilerplate discussion of contention admissibility NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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928 1 requirements at the end of I think our reply that was 2 filed October 10th. But I think these words mean 3 something. We have gone way into this issue today.

4 We have explored it through the helpful discussions, 5 arguments and points made by all of the attorneys 6 sometimes with the advice of experts.

7 But the threshold admissibility 8 requirements of a contention should not be turned into 9 a fortress to deny intervention. And thats the 10 Power Authority of the State of New York was the most 11 recent recitation I could find of that from 2000 CLI-12 00-22. But the principle has been elaborated and 13 applied since the mid 70s.

14 Theres not a requirement on us, on the 15 Intervenors, on the Petitioners, today to have made 16 our substantial case at this stage. And very many 17 times during the course of the dialogue today, Ive 18 had the distinct impression that were being held to 19 this standard of proof beyond a reasonable doubt.

20 We have demonstrated from expert engineers 21 and perhaps other specialties in the employ of the NRC 22 and FirstEnergy a continuing history of -- I should 23 say a continuing saga that perhaps as Ive said before 24 may not be concluded even now. We have three 25 different root causes. I agree and admit that there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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929 1 is synergistic effect probably among some of those 2 causal factors.

3 But today isnt the day when you as the 4 jurists in this proceeding weigh the evidence and 5 decide whether or not the Intervenors should be 6 rewarded by a chance to go to trial or punished by 7 being denied that opportunity. Today is simply the 8 opportunity the Board has made for us to articulate in 9 detail what our respective positions are.

10 We believe that we arent called upon to 11 make our case. Were here to indicate what facts or 12 expert opinions that were relying on and we have 13 articulated a contention that we believe must be 14 adjudicated. That contention is that there are safety 15 -- SER and NEPA implications which were spelled out 16 but at least explained and mentioned and referenced in 17 the contention wording itself. There are Atomic 18 Energy Act implications.

19 The problem with the shield building is 20 that it is being treated as though its pristine.

21 That despite incremental, damning evidence that there 22 is a deterioration going on notwithstanding the 23 warnings of engineers on the Commissions own staff 24 that there could be a crisis that there could be a 25 very serious problem, notwithstanding new cracking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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930 1 actually caused by the utility company itself, these 2 are surmountable obstacles that simply can be ignored 3 because right now that building is standing and it 4 looks like its performing its function. Therefore 5 the aging management plan up to the this point has 6 been a success.

7 I appreciate that the aging management 8 plan has identified further problems. Our concern 9 however is that there is not an end to the 10 identification of the damage that is being done that 11 is on going nor what the future holds in terms of 12 identification of new causes that follow upon new 13 problems. We respectfully request that the panel 14 admit Contention 7 and that this matter be allowed to 15 go to trial. Thank you.

16 JUDGE FROEHLICH: Thank you. At this 17 point, the Board would like to thank all parties for 18 their arguments today. The answers that were given 19 will be helpful to the Board deciding the 20 admissibility of this contention. The Board will take 21 the transcript of this argument together with the 22 pleadings that have been filed in this docket and hope 23 that we show our decision before the end of the year.

24 I want to thank the ACRS for allowing us 25 to use the facilities while the ASLBP courtroom is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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931 1 being refurbished. I want to thank our court reporter 2 for his work today.

3 If there is nothing further, thank you 4 all.

5 MR. HARRIS: Your Honor, transcript 6 corrections.

7 JUDGE FROEHLICH: Transcript corrections.

8 We should have the transcript I believe within a week.

9 I consider just a day or perhaps one week to peruse it 10 and submit any transcript corrections. Will that be 11 acceptable to the parties?

12 MR. HARRIS: Your Honor, that may be. I 13 would mention that Mr. Lodge and both Ms. Kanatas and 14 I have an argument next week at Fermi. So that might 15 impact our ability to turn that around very quickly 16 depending on what day that came out.

17 JUDGE FROEHLICH: Why dont we make it 18 seven days from when it comes out and Fermi is an 19 argument one day.

20 MS. KANATAS: The 20th.

21 JUDGE FROEHLICH: Next Thursday.

22 MS. KANATAS: Yes. Well be traveling on 23 the 19th and returning on the 21st.

24 JUDGE FROEHLICH: Proposed date for 25 transcript corrections, counsel?

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932 1 MS. KANATAS: Happy Thanksgiving. No.

2 Your Honor, Ill leave it to you.

3 (Off microphone comments) 4 JUDGE FROEHLICH: Whats the Monday after 5 Thanksgiving?

6 JUDGE TRIKOUROS: December 1st. Does that 7 work for everyone?

8 MR. LODGE: Sure.

9 MR. MATTHEWS: Fine.

10 JUDGE TRIKOUROS: For transcript 11 corrections. Theyre very controversial. December 12 1st for transcript corrections.

13 MS. KANATAS: All right. Thank you.

14 JUDGE FROEHLICH: Thank you. We are 15 adjourned.

16 (Whereupon, at 3:54 p.m., the above-17 entitled matter was concluded.)

18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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