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Transcript of Hearing, November 5, 2012 - First Energy Nuclear Operating Company, Davis Besse Nuclear Power Station
	ML12314A247
Person / Time
Site:	Davis Besse
Issue date:	11/05/2012
From:	; Atomic Safety and Licensing Board Panel
To:	;
	SECY RAS
References
	RAS 23728, 50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-1923
	Download: ML12314A247 (237)
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Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION

Title:

First Energy Nuclear Operating Company Davis Besse Nuclear Power Station Docket Number: 50-346-LR ASLBP Number: 11-907-01-LR-BD01 Location: Toledo, Ohio Date: Monday, November 5, 2012 Work Order No.: NRC-1923 Pages 275-509 NEAL R. GROSS AND CO., INC.

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

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

275 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 Company :

10 : ASLBP No.

11 (Davis-Besse Nuclear Power : 11-907-01-LR-BD01 12 Station, Unit 1) :

13 ______________________________:

14 15 Monday, 16 November 5, 2012 17 Toledo, Ohio 18 19 20 BEFORE:

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

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276 1 APPEARANCES:

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

4 BRIAN G. HARRIS, ESQ.

5 CATHERINE KANATAS, ESQ.

6 U.S. Nuclear Regulatory Commission 7 Office of General Counsel 8 Mail Stop 15 D21 9 Washington, D.C. 20555 10 (301) 415-1392 11 On Behalf of the Applicant:

12 TIMOTHY P. MATTHEWS, ESQ.

13 KATHRYN M. SUTTON, ESQ.

14 MARTIN J. O'NEILL, ESQ.

15 STEPHEN J. BURDICK 16 of: Morgan, Lewis and Bockius LLP 17 1111 Pennsylvania Avenue NW 18 Washington, DC 20004 19 (202) 739-5527 20 DAVID W. JENKINS, ESQ.

21 Senior Corporate Counsel II 22 of: FirstEnergy 23 76 South Main Street 24 Akron, OH 44308 25 (330) 384-5037 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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277 1 On Behalf of the Intervenors:

2 TERRY J. LODGE, ESQ.

3 of: Citizens Environmental Alliance of 4 Southwestern Ontario, Don't Waste 5 Michigan, and Green Party of Ohio 6 316 N. Michigan Street 7 Suite 520 8 Toledo, OH 43604 9 (419) 255-7552 10 11 KEVIN KAMPS 12 of: Beyond Nuclear 13 6930 Carroll Avenue 14 Suite 400 15 Takoma Park, MD 20912 16 (301) 270-2209 17 18 MICHAEL KEEGAN 19 of: Don't Waste Michigan 20 811 Harrison Street 21 Monroe, MI 48161 22 (734) 770-1441 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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278 1 Also Present:

2 MATTHEW FLYNTZ, ESQ., Law Clerk 3 ONIKA WILLIAMS, ESQ., Law Clerk 4 BRYCE LEHMAN, NRC, NRR 5 VIKTORIA MITLYNG, NRC, Public Affairs 6 JOHN PARILLO, NRC, NRR 7 KAREN VALLOCH, NRC, ASLBP 8

9 10 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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279 1 P R O C E E D I N G S 2 9:00 a.m.

3 JUDGE FROEHLICH: Please be seated. Good 4 morning. It's Monday, November 5th, 2012, 9:00 p.m.

5 Eastern Time, and we're in Common Pleas Courtroom of 6 the Lucas County Courthouse in Toledo, Ohio.

7 Today's oral argument concerns 8 FirstEnergy's application, Docket No. 50346 LRA, to 9 renew the Davis-Besse Power Station Unit 1 operating 10 license for an additional 20 years, from its current 11 expiration date of April 22nd, 2017. Davis-Besse's 12 site is located in Ottawa County, about 25 miles from 13 this courthouse.

14 In accordance with the Atomic Safety and 15 Licensing Board's Notice and Order issued on September 16 20th, today's oral argument has been convened in 17 response to two motions: First, that FirstEnergy's 18 July 26th Motion for Summary Disposition of Contention 19 4 concerning Severe Accident Mitigation Alternatives 20 (SAMAs), and Intervenors' January 10th, 2012 Motion 21 for Admission of Contention No. 5 on shield building 22 cracking.

23 On November 22nd, the Board supplemented 24 its September 20th Notice and Order by providing the 25 parties potential areas of inquiry, and examples of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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280 1 specific questions that may be asked by the Board 2 during today's oral argument.

3 As previously mentioned, the Applicant 4 here is FirstEnergy. Intervenors in this matter 5 consist of Beyond Nuclear, Citizens Environmental 6 Alliance of Southwestern Ohio, Don't Waste Michigan, 7 and the Green Party of Ohio. We'll refer to this 8 group collectively as the intervenors.

9 Before we begin, I'd like to introduce the 10 members of the Panel, and explain the role just 11 briefly of the Board and address the legal standards 12 in this proceeding.

13 My name's William Froehlich, and I'm 14 Chairman of this Atomic Safety and Licensing Board.

15 To my right is Judge Nicholas Trikouros. Judge 16 Trikouros has been a full-time member of the Panel 17 since 2006. He holds a Bachelor's of Science degree 18 from Fordham University, Master's from NYU, and an 19 advanced Engineering degree from the Polytechnic 20 Institute affiliated with NYU.

21 To my left is Judge William Kastenberg.

22 Judge Kastenberg holds a Bachelor of Science and 23 Master's degree in Engineering from UCLA, and has a 24 Ph.D. in Nuclear Engineering from the University of 25 California at Berkeley. For over 40 years, Dr.

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281 1 Kastenberg was a professor in the University of 2 California system.

3 As I mentioned earlier, my name's William 4 Froehlich. I'm a lawyer by training; had about 35 5 years of federal administrative and regulatory law 6 experience. Because I'm a lawyer and one of the 7 judges here, I'll serve as chairman for this Board for 8 all procedural issues.

9 I'd also like to just introduce a few 10 members who are here from the Atomic Safety and 11 Licensing Board Panel. We have our two law clerks 12 with us today, Mr. Matthew Flyntz and Ms. Onika 13 Williams, over there to my left. Both are attorneys.

14 In addition, we have an administrative and logistical 15 support member with us, Ms. Karen Valloch, who's 16 quietly sitting in the back.

17 With respect to the Board's role in this 18 proceeding, we are three independent administrative 19 judges appointed by the Commission as Licensing Board 20 Panel members. The three of us have been selected to 21 serve on the Licensing Board to preside over any 22 hearing that might be required concerning the Davis-23 Besse license renewal.

24 The Panel's administrative judges don't 25 work for or with the staff, and take no part in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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282 1 staff's licensing application review. Rather, we are 2 charged with deciding whether the procedural issues 3 that arise during the application process are 4 litigable, making determinations whether there's 5 substance or validity, and the grant or conditioning 6 or denial of a requested license.

7 Our decisions on hearing matters are 8 generally subject to review, first by the Commission, 9 that's the NRC commissioners, then by the federal 10 courts.

11 The matters before us during this oral 12 argument deal with a Motion for Summary Disposition, 13 as well as a Motion for Admission of a New Contention.

14 As to the Motion for Summary Disposition, a party 15 seeking summary disposition bears the burden of 16 showing that there is no genuine issue as to any 17 material fact.

18 A material fact is one that may affect the 19 outcome of the litigation, or attempts to resolve any 20 of the issues raised by the parties. In this case, 21 the party that bears this burden is the Applicant, 22 FirstEnergy.

23 The party opposing a Motion for Summary 24 Disposition may not rest upon mere allegations or 25 denial, but must state specific facts showing that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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283 1 there is a genuine issue of material fact remaining.

2 In this case, the intervenors are opposing that Motion 3 for Summary Disposition.

4 The standard for summary disposition is 5 found in 10 C.F.R. 2.710, and 2.710(d)(2) states that 6 "The presiding officer shall render a decision sought 7 if the filings in the proceedings show that there is 8 no genuine issue as to any material fact, and that the 9 moving party is entitled to a decision as a matter of 10 law."

11 FENOC's Motion for Summary Disposition 12 deals with Severe Accident Mitigation Alternatives 13 analysis under the National Environmental Policy Act 14 for Davis-Besse. We will deal with this matter, 15 summary disposition of FENOC's SAMA analysis first.

16 Just so we have our time line laid out, 17 after we discuss the SAMA analysis, we'll move on to 18 the Intervenors' Motion for Admission of that new 19 contention, Contention 5, related to the cracking of 20 the Davis-Besse reactor shield building.

21 Members of the audience, a contention is 22 essentially an argument in the matter that the 23 intervenors would like to raise during the Applicant's 24 relicensing process. The Board will have to decide if 25 that contention should be admitted into the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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284 1 proceeding.

2 There are several factors for determining 3 if a contention should be admitted. One of those 4 factors is whether the motion is timely, and whether 5 -- depending on whether the motion is timely or not, 6 what other factors are used to decide whether it 7 should be admitted.

8 There will be some discussion, I guess, of 9 timeliness factors when we get to the discussion of 10 the Motion for the Admission of Contention 5, and I'll 11 give a little preface when we switch to that part of 12 the hearing.

13 Before we begin, I want to thank the folks 14 here at the Lucas County Courthouse for allowing us to 15 use their facility, especially Donald Colby, the court 16 administrator, and the Honorable Gene Zmuda, whose 17 courtroom he has allowed us to use for this 18 proceeding.

19 I also want to thank David Rodgers, the 20 Director of Court Deputies and others of his staff who 21 provide support for us in this proceeding. There will 22 be an electronic transcript of this entire proceeding.

23 Copies of that transcript will be made available to 24 the public. They'll also be posted on the NRC website 25 in approximately a week.

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285 1 At this point, I'd like the parties to 2 introduce themselves. I'd like the lead 3 representative to introduce yourself, state the name 4 of your client, any counsel who might be participating 5 with you in oral argument today, and I believe we'll 6 start with the Applicant.

7 MR. MATTHEWS: Thank you, Judge Froehlich.

8 Good morning Judge Froehlich, Kastenberg and 9 Trikouros, I am Tim Matthews of Morgan, Lewis and 10 Bockius on behalf of the Applicant, FirstEnergy 11 Nuclear Operating Company, and may it please the 12 Board, it's a pleasure to appear before you here this 13 morning. First Energy appreciates the opportunity to 14 address these important issues.

15 With me at counsel table this morning are 16 David Jenkins, senior corporate counsel at 17 FirstEnergy, and my partner, Kathryn Sutton.

18 Assisting us in argument over the next two days will 19 be Martin O'Neill on the SAMA issue and Stephen 20 Burdick on the shield building laminar cracking issue, 21 both with Morgan Lewis.

22 JUDGE FROEHLICH: And for the Joint 23 Intervenors please?

24 MR. LODGE: Thank you, Judge Froehlich.

25 May it please the Panel, thank you for coming out to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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286 1 Toledo to hear these matters. I understand that we're 2 in the winter season now.

3 JUDGE FROEHLICH: Could you use the 4 microphone please?

5 MR. LODGE: Yes, I'm sorry. Is it on?

6 Thank you. My name is Terry Lodge. I am an attorney 7 and counsel for the sundry intervenors, including 8 Beyond Nuclear, the Citizens Environmental Alliance of 9 Southwestern Ohio, Don't Waste Michigan and the Green 10 Party of Ohio, who are collectively referred to as the 11 Joint Intervenors.

12 With me on my left is Kevin Kamps, who is 13 a representative of Beyond Nuclear and the other 14 intervenors. Behind me is Michael Keegan, who is a 15 representative, a personal representative of the Don't 16 Waste Michigan organization, who will also be 17 assisting us in framing our responses and arguments 18 over the next couple of days.

19 JUDGE FROEHLICH: Thank you, and for the 20 NRC staff?

21 MR. HARRIS: For the NRC staff, I'm Brian 22 Harris. I'm the lead counsel for the Davis-Besse 23 license renewal proceeding. With me at the table is 24 Cathy Kanatas, also counsel for the NRC staff, and in 25 the audience, we have two members from headquarters NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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287 1 staff that are working on the license renewal 2 application for Davis-Besse, John Parillo and Bryce 3 Lehman.

4 JUDGE FROEHLICH: Thank you, counsel.

5 Just a few words of housekeeping before we begin, and 6 a little bit of introductory matters. Housekeeping 7 first. First, turn off your cell phones please. Put 8 them on vibrate. If you have any conversations that 9 are unrelated to our oral argument today, please take 10 them outside in the hallway.

11 The media and the public are welcome to 12 this proceeding. There is a member of the NRC Office 13 of Public Affairs here today, Ms. Viktoria Mitlyng, 14 and feel free to contact her if you have any questions 15 about what goes on here today, or about the 16 proceedings in general.

17 Members of the public are free to observe 18 proceedings today, and all NRC hearings. But only 19 counsel to the parties and representatives will be 20 allowed to speak today, because it is based on their 21 filed pleadings, which the Board has questions.

22 After we hear oral argument today, we'll 23 go back and issue a written decision or ruling. We 24 won't rule today from the bench, either on the Motion 25 for Summary Disposition or the Motion to Admit a New NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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288 1 Contention. But we will issue our decision within 45 2 days of the conclusion of today's or tomorrow's 3 argument.

4 If Contention 4 remains in the case, or if 5 Contention 5 is admitted, we'll schedule further 6 proceedings leading up to an evidentiary hearing. At 7 this point, I'd like to ask my colleagues if there's 8 anything they think we need to add and wish to raise 9 at this point.

10 JUDGE KASTENBERG: No.

11 JUDGE TRIKOUROS: No.

12 JUDGE FROEHLICH: As stated in the Board's 13 Notice Scheduling Oral Argument, today's argument will 14 begin with an opening statement of about ten minutes 15 in length from each party. Since we will hear the 16 argument on the Motion for Summary Disposition first, 17 we will have the Applicant go first, followed by the 18 NRC staff and then the intervenors.

19 Each will get ten minutes to give an 20 uninterrupted opening statement to us. Then the Board 21 will ask its questions on Contention 4. After we have 22 asked all our questions, we will hear oral argument 23 from all the parties. Each party will get about five 24 minutes for a closing statement on the Motion for 25 Summary Disposition.

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289 1 When we get through all of that, we'll 2 begin with Contention 5, and on Contention 5, the 3 Intervenors will go first, followed by the Applicant 4 and then the NRC staff. So we'll begin now with an 5 opening statement from the Applicant, First Energy.

6 MR. MATTHEWS: Thank you, Judge Froehlich.

7 I'm Tim Matthews on behalf of FirstEnergy. For the 8 reasons thoroughly explained by FirstEnergy in its 9 filing, and by the staff in its, the Board should 10 grant FirstEnergy's Motion for Summary Disposition of 11 Contention 4.

12 Similarly, the Intervenors' Motion for 13 Admission of New Contention 5, together with their 14 several supplemental pleadings, all should be denied.

15 Kathryn Sutton and Marty O'Neill will argue the Motion 16 for Summary Disposition and respond to the Board's 17 specific questions identified in the prehearing order.

18 I first would like to take this 19 opportunity to briefly address a couple of themes that 20 cross-cut this entire proceeding, and impact both 21 pending motions. Two recurring themes have resulted 22 in the unnecessarily complicated state of the record 23 before the Board in this proceeding.

24 The first theme is Intervenors' ongoing 25 failure to abide by the requirements of the Commission NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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290 1 and of this Board. The second is the continued 2 absence of any supporting technical bases whatsoever 3 for their arguments. The opinions of counsel, 4 representatives, opinions of politicians and fairy 5 tale excerpts are not adequate substitutes for the 6 requisite bases required by 10 C.F.R. 2.309.

7 As the Commission instructed recently in 8 this proceeding, the COI 1208, repeating its same 9 admonition from its decisions in Seabrook in 2011 and 10 Mill Stone in 2003, I quote "We reserve our hearing 11 process for genuine material controversies between 12 knowledgeable litigants."

13 Intervenors' disregard of governing NRC 14 requirements extends broadly to include the knowing 15 and ongoing disregard of the Commission's consultation 16 requirements under 10 C.F.R. 2.323 Bravo. Non-17 compliance with the procedural pleading requirements, 18 particularly those governing the need to demonstrate 19 good cause for late filed contentions under this 20 Board's initial scheduling order, as well as 10 C.F.R.

21 2.309 Foxtrot and 309 Charlie.

22 Failure to meet substantive contention 23 pleading requirements set forth in 10 C.F.R.

24 2.309(f)(1), especially as the scope, support and 25 material issues in dispute. Even the most basic rules NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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291 1 of decorum before this Board involving baseless and 2 repeated allegations of deceit and alleged coverup by 3 FirstEnergy and the NRC staff.

4 Significantly, Intervenors appear to 5 confuse the role of boards in NRC adjudicatory 6 proceedings. It is not this Board's duty to carry the 7 Intervenors' burden. As the record clearly 8 demonstrate, Intervenors have not shouldered their 9 burden with respect to either of the contentions in 10 the motions before this Board.

11 I'd like to thank the members of the Board 12 for this opportunity to address these themes. I'll 13 turn the balance of our ten minutes to my partner, 14 Kathryn Sutton, who will argue FirstEnergy's Motion 15 for Summary Disposition of Contention 4.

16 MS. SUTTON: Thank you, Tim. Turning to 17 the Motion for Summary Disposition, it's important to 18 put it into context. In responding to FirstEnergy's 19 motion, Intervenors disregarded a basic tenet common 20 to all adjudicatory proceedings. They elected not to 21 answer the motion directly. That would have required 22 expert support.

23 Rather, they elected to argue new issues 24 beyond not only the scope of the motion, but also well 25 beyond the scope of the contention itself. The Board NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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292 1 properly struck that pleading, and Intervenors have 2 provided no basis whatsoever for its reconsideration.

3 In fact, Intervenors' error has 4 consequences here. FirstEnergy's Motion for Summary 5 Disposition is now unanswered and unopposed by 6 Intervenors, and the NRC staff supports the motion.

7 Intervenors should not be permitted now at this 8 hearing to answer the motion, absent a showing of good 9 cause as to why any such answer could not have been 10 made earlier. Any other course by this Board is clear 11 error and contrary to 10 C.F.R. Section 2.307.

12 Now some background on the motion itself.

13 First, as this Board noted in its September 24th, 2012 14 Order granting FirstEnergy's Motion to Strike, the 15 scope of Contention 4, and I quote Your Honor, "is 16 very narrow," end quote.

17 Specifically, it alleges that FirstEnergy 18 has underestimated the amount of radioactive material 19 released in a postulated severe accident, because it 20 used the MAAP computer code to develop the source 21 terms used in its SAMA analysis.

22 Next, FirstEnergy filed its motion in a 23 timely manner. The Board's January 30th, 2012 Order 24 states that all motions in this proceeding, including 25 Motions for Summary Disposition, are subject to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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293 1 deadline specified in Section 2.323(a), and must be 2 filed no later than ten days after the occurrence or 3 circumstance from which the motion arises.

4 Consistent with the Board's Order, 5 FirstEnergy filed its motion within ten days of 6 submittal of its revised SAMA analysis on July 16th, 7 2012. The changes to the SAMA analysis docketed by 8 FirstEnergy relate directly to the core of the 9 Intervenors' contention, that use of MAAP-generated 10 source terms underestimates the true cost of a severe 11 accident at Davis-Besse.

12 Among other things, the revised SAMA 13 analysis incorporates updated MAAP code runs that 14 recharacterize the plant-specific source terms, 15 including the radionuclide release fractions used in 16 the Davis-Besse SAMA analysis.

17 Although FirstEnergy's revised SAMA 18 analysis did not identify any additional cost 19 beneficial SAMAs, the revised MAAP runs, coupled with 20 the other corrections identified in FirstEnergy's July 21 16th filing, increased the total estimated cost of a 22 postulated severe accident.

23 Moreover, in preparing the revised SAMA 24 analysis, FirstEnergy opted to again apply the MAAP 25 code. The MAAP-generated source terms and release NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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294 1 fractions are the parameters that Intervenors allege 2 to have been underestimated in this very proceeding.

3 In addition, FirstEnergy retained two 4 highly qualified experts, Dr. Kevin O'Kula, who is 5 here with us today, Your Honors, and Mr. Grant 6 Teagarden to perform thorough reviews of its SAMA 7 analysis, as well as the Intervenors' challenges to 8 that analysis as set forth in Contention 4.

9 The joint declaration of these experts is 10 based in significant part upon their review of the 11 revised SAMA analysis. Therefore, the motion is both 12 directly tied to the revised SAMA analysis and timely.

13 Moreover, summary disposition of Contention 4 is 14 entirely warranted and will expedite the resolution of 15 this proceeding by eliminating the need for an 16 evidentiary hearing.

17 As explained by FirstEnergy's experts in 18 their joint declaration, and as further corroborated 19 by the staff's expert, Kyle Ross in his affidavit, 20 none of the Intervenors' claims has a technical 21 foundation or even suggests that the MAAP-generated 22 source terms used in the revised Davis-Besse SAMA 23 analysis are invalid or unreasonable for use in a SAMA 24 analysis.

25 Under these circumstances and pursuant to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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295 1 the regulation you've cited Judge Froehlich, Sections 2 2.710 and 2.1205, summary disposition is appropriate 3 as there is no genuine dispute on the material issue 4 of fact.

5 Now going to the material issue of fact, 6 the National Environmental Policy Act or NEPA 7 determines which issues affect our material, and as 8 the Commission stated earlier in this very proceeding, 9 in CLI 12-08, and I quote, "SAMA analysis is a site-10 specific mitigation alternatives analysis under NEPA."

11 That's at CLI 12-08, slip opinion at 17.

12 So the Board's consideration of the issues 13 raised in Contention 4 is governed by NEPA and related 14 case law, and by NEPA's rule of reason. As the 15 Commission ruled in another recent license renewal 16 proceeding, unless an Intervenor shows a potentially 17 significant deficiency in a SAMA analysis, and again 18 I quote "That is a deficiency that could credibly 19 render the SAMA analysis altogether unreasonable.

20 Under NEPA standards, a SAMA-related dispute will not 21 be material to the licensing decision and is not 22 appropriate for litigation in an NRC proceeding." I 23 cite to Pilgrim, CLI 12-01, slip opinion at 25.

24 Such is the case here. As we will explain 25 in response to the Board's questions on this issue, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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296 1 Intervenors' first claim, that the MAAP code has not 2 been validated by the NRC, lacks a factual basis and 3 fails to establish a genuine material dispute.

4 Intervenors do not cite nor could they 5 cite any NRC regulation or requirements indicating 6 that NRC validation of the MAAP code is necessary. In 7 any event, the MAAP4 code used by FirstEnergy has been 8 properly validated by the nuclear safety community, 9 and is well-suited for the application at issue here.

10 Second, Intervenors' next claim that 11 generic PWR source terms contained in NUREG-1465 are 12 more appropriate for use in a SAMA analysis then the 13 plant-specific MAAP-generated source terms used by 14 FirstEnergy in the Davis-Besse SAMA analysis, also is 15 factually unfounded and fails to raise a genuine 16 material dispute worthy of a hearing.

17 For the reasons explained by FirstEnergy 18 and the staff's experts, the use of NUREG-1465 source 19 terms is not a reasonable or even plausible 20 alternative here.

21 Finally, Intervenors' third claim that 22 MAAP generates lower release fractions than those 23 derived and used by NRC in other severe accident 24 studies, such as the 1987 draft version of NUREG-1150, 25 also fails to establish a genuine dispute on a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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297 1 material issue of fact.

2 On these bases Your Honors, FirstEnergy 3 respectfully requests that the Board grant its 4 unopposed Motion for Summary Disposition. Why?

5 Because FirstEnergy has fully discharged its burden to 6 show the absence of a genuine issue as to any material 7 fact. Summary disposition is therefore entirely 8 appropriate, to ensure the just and speedy disposition 9 of Contention 4. No hearing on the merits of this 10 contention is necessary.

11 Thank you, Your Honors, on behalf of 12 FirstEnergy, and we stand ready to proceed.

13 JUDGE FROEHLICH: Thank you, Ms. Sutton.

14 Mr. Harris.

15 MR. HARRIS: Thank you, Your Honor. May 16 it please the Court, over the -- and I'll take a 17 little bit of time to talk about this whole 18 proceeding. But over the course of the next few days, 19 of course we're going to be discussing these two 20 separate issues of the Contention 4 SAMA issues, and 21 the proposed Contention 5, shield building cracking 22 issues.

23 But I want to emphasize, as we discuss the 24 SAMA issue and the motion that's pending before the 25 Board, that as of the current procedural posture, is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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298 1 that as Ms. Sutton emphasized, is that this is an 2 unopposed Motion for Summary Disposition.

3 The effect of the motion being unopposed 4 is that the material facts that were presented by 5 FirstEnergy are deemed to be admitted. So we have to 6 evaluate this motion on those proposed facts.

7 But even if we step back from that 8 procedural posture and examine what Intervenors have 9 suggested in their opposition, is that they presented 10 evidence or they presented an attorney argument for 11 their counter-Statement of Material Facts, citing both 12 FirstEnergy's experts and some members of the staff.

13 But if you examine those members of the 14 staff, they are not PRA experts. They're not SAMA 15 experts, and their statements were taken completely 16 out of context, because they were evaluating the 17 operability of the shield building, but making no 18 comments as to whether or not the SAMA and the SAMA 19 issues that are immediately before the Board were 20 somehow done incorrectly, or the MAAP code would 21 produce incorrect results.

22 The key that I think we need to emphasize 23 is that the shield building, when you examine it, is 24 that it's not credited in the SAMA analysis that 25 FirstEnergy did. So any claims related to how the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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299 1 shield building might affect the MAAP code would not 2 affect the source term, is that the shield building 3 and the annulus is given no credit in the analysis at 4 all, and so it's not material to the actual results.

5 Now had Intervenors in this case hired an 6 expert, someone who could have looked at this, they 7 could have determined this very quickly, instead of 8 just presenting these mere attorney arguments for it.

9 So I just want to emphasize again that this is an 10 unopposed Motion for Summary Disposition.

11 And then turning both back to NEPA, which 12 is of course the rubric that we have to look at SAMA 13 analysis, is that it's not a safety analysis that 14 we're looking at here. It's one done for the National 15 Environmental Policy Act, and that we're not making 16 licensing or safety determinations from it, but we do 17 sometimes discover facts from that actual analysis.

18 But the Commission has been pretty clear 19 in, you know, its recent case law, both in Pilgrim and 20 in Seabrook and here about what the material issue 21 that we must determine when deciding SAMA analysis, 22 and that is whether or not the analysis, as Ms. Sutton 23 said, is entirely unreasonable.

24 But they've sort of given us the guidepost 25 of what that unreasonable should be. It should, would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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300 1 there be another potentially cost beneficial SAMA 2 identified from this alternative methodology or 3 alternatives inputs to the SAMA analysis.

4 I think it's clear here that the use of 5 the MAAP code is not entirely unreasonable, and it's 6 unlikely to produce any new potentially cost 7 beneficial SAMA analysis.

8 One last thing that I wanted to address is 9 that from the Board's Order and the questions, there 10 seems to be a little confusion as to what the staff's 11 witness and his affidavit indicated, of whether or not 12 there is a disagreement between FirstEnergy's experts 13 and the staff's expert, and I think it's --

14 If it was unclear, the staff's expert was 15 not disagreeing with FirstEnergy over the use of 16 NUREG-1465 or 1150 for purposes of a comparing to 17 Davis-Besse's source terms. But the staff's expert 18 tried to explain who those differences and why it was 19 not a good comparison, and identify those issues.

20 For NUREG-1465, there we're talking about 21 a source term that's released into containment into 22 the environment, and there are a lot of physical 23 effects that would reduce or mitigate the actual 24 release into the environment. So the 1465 is a much 25 larger source term than what is normally released into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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301 1 the environment.

2 Then the second thing is he tried to go 3 back and look at the NUREG-1150, both the drafts and 4 what has been done recently, to sort of put Davis-5 Besse source terms, you know, on a apples to apples 6 comparison, looking at both the mean, which is what we 7 use in a SAMA analysis, as opposed to looking at a 8 worse case accident, versus what was a mean in another 9 analysis that was separated over a number of years.

10 When you look at those source terms that 11 are produced for a Davis-Besse SAMA analysis by the 12 MAAP code, they're roughly the same as what you find 13 in the NUREG-1150 on an apples to apples comparison, 14 and very similar to what has been done in the most 15 recent state of the art reactor consequence analysis, 16 a SOARCA produced by the NRC, that it's been 17 finalized, but they're doing a little bit of 18 uncertainty analysis for it right now.

19 With that, we're prepared to answer any 20 questions for the Board.

21 JUDGE FROEHLICH: Thank you. For the 22 Intervenors.

23 MR. LODGE: Thank you, Judge Froehlich.

24 The use of fairy tale, fictitious references was 25 deliberate, with forethought, because we're looking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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302 1 with respect to the SAMA analysis at a problem of 2 fairy tales in, fairy tales out.

3 The problem with the SAMA analysis is that 4 it is number-crunching; it is analysis which does not 5 bear serious linkages to reality. For instance, to 6 not credit the shield building cracking means or 7 implies, at least, that the interscaled containment 8 structure must be airtight.

9 But prior to even filing its motion, 10 FirstEnergy on July 16th filed its correction of 11 errors, in which they notified the Commission and this 12 Board that during reviews of their SAMA analysis, 13 which had been in place for at least two years nearly, 14 that the following five errors were identified.

15 They included an inaccurate land area 16 conversion factor for acres to hectares. It seems to 17 me that the Mars Rover landing was based upon not 18 converting metric to the British system of measurement 19 or vice-versa.

20 Dollar values for Ohio farmland and non-21 farmland were based upon the Ohio tax assessment 22 value, which is only 35 percent of the appraised 23 value. These are odd and very fundamental kinds of 24 mistakes. The escalation of decontamination costs 25 used in the SAMA analysis wasn't performed per NEI, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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303 1 Nuclear Energy Institute guidelines from 2005, using 2 the Consumer Price Index.

3 In other words, somewhat realistically 4 attempting to update damage or loss figures. The use 5 of core inventory isotopic activity instead of 6 isotopic mass in the MAAP software code run didn't 7 reflect updated industry guidance.

8 The wind direction, and this is the most 9 confounding, the Applicant was 180 degrees wrong in 10 its wind assumptions. It was entirely wrong.

11 Calculations in the original SAMA analysis were 12 reflecting wind coming from the wrong direction. So 13 with that record of credibility, we ask that the Board 14 scrutinize the current editions of SAMA very closely.

15 It was difficult in selecting or thinking 16 about this, in terms of literary themes, to decide 17 whether a light-hearted Victorian novel or something 18 perhaps early 20th century by Franz Kafka would be a 19 more appropriate reference.

20 The problem here is that the data does not 21 reflect what we believe to be the reality, that the 22 experts from the Nuclear Regulatory Commission that we 23 cited in our response to the summary disposition 24 motion, were not somehow MAAP or MAACS-2 experts is 25 irrelevant.

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304 1 They were expert engineers who were 2 describing the shield cracking phenomenon in ways that 3 have not been retracted by the Nuclear Regulatory 4 Commission, and that are in the administrative record 5 of this case, which brings me to a couple of final 6 observations.

7 Number one, the Intervenors did file a 8 motion for reconsideration in timely fashion, on the 9 21st of October, which due to technical errors of my 10 computer, I had to square things away with the Help 11 Desk and refile. But it was timely answered by the 12 staff and by FirstEnergy.

13 We respectfully point out that the Board 14 legally has erred in not allowing our answer to the 15 Motion for Summary Disposition to stand. We point 16 out, indeed, that the shield building cracking 17 phenomenon and the problems with corrosion of the 18 inner steel containment are real, and must be taken 19 note of.

20 I admit, as counsel for the Intervenors, 21 that we did not formally move to intervene, or pardon 22 me, move to modify the contention respecting SAMA.

23 However, in numerous instances, in the many cracking, 24 shield building cracking-related filings that we have 25 made in 2012, we have referenced the fact that there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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305 1 are SAMA implications.

2 More than that, even if the Board 3 continues to hold to its position that the Intervenors 4 response has to be stricken from the record, we 5 respectfully request that the Board take 6 administrative or judicial notice of the facts that 7 are in the record respecting the cracking problem, 8 which we believe, as part of the overall body of 9 evidence of this licensing case, is something that may 10 validly be weighed and considered in the Board 11 rendering of its ultimate decision on this contention.

12 We do not believe that contentions are 13 discrete, isolated, separate lawsuit types of 14 pleadings, that the record is one composite record, 15 and we would make the observation that the contentions 16 are more like separate causes of action contained 17 within the same complaint.

18 We respectfully therefore request that the 19 Board reconsider its determination of October 11th, 20 granting the motion to strike, which effectively does 21 remove any substantive argument that has been tendered 22 by the Intervenors, and we further move that 23 alternative to that, that the Board take 24 administrative notice of the facts of record in this 25 proceeding, upon which it may justifiably find that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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306 1 the SAMA analysis does not conform to the requirements 2 of NEPA.

3 The thing about the SAMA analysis is that 4 it is effectively a NEPA disclosure. We understand 5 that it's not a thorough-going safety analysis. We 6 understand that in effect, it's really kind of a punch 7 list of potential economic choices and 8 redeterminations that the nuclear utility might want 9 to consider implementing, changes that they may want 10 to make.

11 But we also believe that underneath that, 12 the duty of the Commission, as the lead federal 13 agency, is to ensure that that analysis is honest, 14 that it is reality-based, and that it doesn't read 15 rather like a fairy tale.

16 The potential failure mechanisms include 17 fuel cladding failures, reactor pressure vessel 18 failures, inner steel containment failures in the 19 shield building. All of these are supposed to or are 20 presumed in the fairy tale SAMA that we are looking 21 at, with containing any serious accident. The problem 22 is that doesn't conform with the known reality. Thank 23 you very much.

24 JUDGE FROEHLICH: Thank you. Thank you, 25 Mr. Lodge. I'd like to begin with you, Ms. Sutton, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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307 1 and it was the first question that we had proposed in 2 our Notice of Oral Argument, and that deals with the 3 relationship between the revised SAMA analysis, the 4 Motion for Summary Disposition and the original 5 contention on this subject that was admitted by the 6 Board and modified by the Commission.

7 I know you alluded to it in your opening 8 statement. I wonder if you could elaborate for us, 9 walk us through the interrelationship between those 10 three documents.

11 MS. SUTTON: Thank you, Your Honor. Mr.

12 O'Neill will do so on behalf of FirstEnergy.

13 MR. O'NEILL: Thank you, Your Honor. This 14 is Martin O'Neill for FirstEnergy. Your Honor, the 15 first question appears to relate to the timing of 16 FirstEnergy's motion. So I hope you can indulge me if 17 I could just comment briefly on that issue first.

18 Now as you know, in its January 30th, 2012 19 Order, the Board construed Section 2.323 of the Rules 20 of Practice to impose a ten-day deadline or window on 21 the filing of all motions in this proceeding, 22 including any dispositive motions.

23 So that requires that any motion be filed 24 no later than ten days after the occurrence or 25 circumstance giving rise to the motion. Although it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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308 1 been our understanding, based on reading of the 2 regulations in other proceedings, that summary 3 disposition motions typically can be filed at any 4 point in a proceeding, subject to certain limitations 5 on the back end, you know, the Board's ruling is the 6 law of the case, and we're obliged to follow it, and 7 we intend to do so and have done so in this case.

8 For that reason, you know, we filed the 9 motion within ten days of the July 16th submittal of 10 the revised SAMA analysis, which for reasons I will 11 explain, we view as an appropriate trigger for the 12 motion.

13 You may recall that last year, the Board 14 had rejected another motion to dismiss filed by 15 FirstEnergy on a different contention, yes, and simply 16 we did not want to meet with the same result here.

17 Understandably, we're very sensitive to the timing 18 issue.

19 With that, and again we, you know, 20 couldn't be assured or didn't want to assume that 21 there might not be other similar opportunities for the 22 filing of this motion. So with that said, I'll turn 23 to the documents.

24 JUDGE FROEHLICH: And now you'll compare 25 the motion with the original contention?

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309 1 MR. O'NEILL: Yes, yes.

2 JUDGE FROEHLICH: Yes, thank you.

3 MR. O'NEILL: The motion, of course, is 4 the summary disposition of Contention 4, and as 5 admitted by the Board and subsequently modified by the 6 Commission, that contention alleges that the FENOC 7 SAMA analysis for Davis-Besse underestimates the 8 amount of radionuclides released into the atmosphere 9 during the postulated severe accident, as a result of 10 FirstEnergy's use of the MAAP computer code.

11 So as the Board acknowledged in its recent 12 decision striking the Intervenors' response, it's a 13 very narrow and focused contention. Now we think that 14 there are at least a couple of circumstances here that 15 given rise and support of our motion, and again this 16 is submittal of the revised SAMA analysis.

17 As Mr. Lodge noted, that analysis 18 corrected a number of -- that submittal corrected a 19 number of errors in the SAMA analysis. Among those 20 errors or adjustments was the inclusion of updated 21 source terms and release fractions, as generated by 22 the MAAP code.

23 FirstEnergy did some new MAAP code runs to 24 conform with industry guidance that is specific to the 25 MAAP code version that FirstEnergy used to develop its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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310 1 source terms for the SAMA analysis, and that guidance 2 indicates, it's referenced in the revised SAMA 3 analysis, as MAAP Flash No. 68. But that guidance 4 indicates that users of the code 4.06 should specify 5 the fission product inventory using fission product 6 masses, as opposed to radionuclide activities.

7 JUDGE FROEHLICH: Just so I'm following, 8 that's the fourth element on the list of five?

9 MR. O'NEILL: Yes, yes, yes. So in doing 10 so, FirstEnergy again made a deliberate, conscious 11 decision to retain use of the MAAP code for developing 12 its environmental source terms as used in the SAMA 13 analysis. Again, the MAAP code is the code under 14 challenge in Contention 4.

15 As a result of doing the new MAAP runs, 16 FirstEnergy recharacterized the source terms and 17 release fractions by using radionuclide masses, you 18 know, to specify the fission product inventory. So 19 there were some changes in the actual source terms and 20 release fractions that were used in the SAMA analysis.

21 Again, those are the parameters that the 22 Intervenors have alleged to be underestimated. So we 23 view that as a direct nexus between our July 16th, 24 2012 submittal and the original contention. There's 25 a one to one connection there.

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311 1 The second point I'd emphasize is that as 2 a result of the Board's admission of the contention, 3 FirstEnergy, you know, undertook additional reviews of 4 the SAMA analysis, both internally and then through 5 the retention of two outside experts, Dr. Kevin O'Kula 6 and Grant Teagarden, who have extensive expertise in 7 probabilistic risk assessment, SAMA analysis and use 8 of related computer codes.

9 And you know, during the course of their 10 reviews, they were responsible for identifying some of 11 the needed corrections to the analysis. But they were 12 specifically asked, that's Dr. O'Kula and Mr.

13 Teagarden, to review the Intervenors' specific claims, 14 you know, regarding validation of the code, reliance 15 on NUREG-1465 generic source term values, and then 16 some historical comparisons cited by the Intervenors.

17 But as set forth in their joint 18 declaration, they did a very thorough review of those 19 claims, and ultimately concluded that they lacked 20 technical or factual merit. They also concluded that 21 the use of MAAP is reasonable and appropriate for 22 developing environmental source terms for purposes of 23 a SAMA analysis.

24 And in that regard, I would point the 25 Board to 10 C.F.R. 2.710, you know, which sets forth NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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312 1 the standard for summary disposition, and it states 2 that such motions may be based on not only filings in 3 the proceeding or discovery-related materials, but 4 affidavits, you know, prepared by the parties.

5 In this case, we retained two highly 6 qualified experts to review the claims and prepare 7 such an affidavit, and we view that as a supporting 8 basis for the motion as well.

9 One final point I want to make is there is 10 an additional impetus and level of support provided 11 for our motion in the form of a number of recent 12 Commission decisions that have been issued in 2012 in 13 the Pilgrim, Seabrook and Davis-Besse proceedings, CLI 14 12-05, CLI 12-08 and CLI 12-15, and all of these 15 decisions make very, very clear that SAMA analysis is 16 necessarily a site-specific analysis, that among other 17 things uses plant-specific core radionuclide 18 inventories and source terms, release fractions, 19 meteorological data, etcetera.

20 So while that maybe is not a trigger for 21 the motion per se, it does provide considerable 22 support for one of our overarching arguments here, 23 that reliance on generic source terms values is just 24 not appropriate for a SAMA analysis.

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313 1 question to the first point that you made, having to 2 do with curing the deficiency in the admitted 3 contention, at least by this board and then modified 4 by the Commissioners.

5 If the deficiency is in the MAAP code 6 itself, and then you use the MAAP code to do some 7 additional runs, based on an error, because you used 8 mass instead of activity or activity instead of mass, 9 how does that cure the deficiency in the original 10 contention?

11 That is, you're using a tool that's in 12 question to cure a deficiency that is deficient in and 13 of itself. In other words, it sounds like there's 14 some circular logic in this, at least to me. So I 15 need a better explanation of that.

16 MR. O'NEILL: Well, Your Honor, I think 17 through the expert affidavit or joint declaration of 18 our experts, we've explained why the MAAP code is not 19 a deficient tool. I mean we're not willing to accept 20 that premise or concede it. We don't believe the 21 Intervenors have provided adequate or any support, you 22 know, for the claim that the MAAP code is somehow 23 deficient.

24 I mean the code has been in use for 25 decades, since the 1980's. It's undergone multiple NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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314 1 iterations and revisions. It's been extensively 2 benchmarked and validated by the nuclear safety 3 community against tests, experiments, plant 4 transience, even the TMI-2 core sequence. It's been 5 validated against other computer codes, such as 6 MELCOR, for example.

7 So you know again, I think that is the 8 trigger. We made a conscious decision to retain use 9 of the code because we view it as appropriate and 10 reasonable.

11 JUDGE TRIKOUROS: I'd like to understand 12 what "reasonableness" means. You've quoted the NEPA 13 rule of reason, and I've been having trouble 14 understanding its application with respect to a 15 computer code such as MAAP and SAMA analysis. You're 16 using the word "reasonable" to imply that you can do 17 just about anything. I don't know the boundaries of 18 that.

19 For example, with respect to SAMA 20 analysis, one might say the rule of reason says that 21 you would use a code such as MELCOR rather than MAAP, 22 but that you would apply a non-conservative 23 application of the code. So that where in the safety 24 world you would use the 95-5 kind of criterion, you 25 would use the 50-50 sort of criterion, the mean sort NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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315 1 of criterion.

2 But that the fundamental strength of the 3 code is intact. It's just that you would apply it in 4 a less stringent manner. So I'd like to understand to 5 what extent this rule of reason applies to a severe 6 accident code in this SAMA world.

7 MR. O'NEILL: Your Honor, ultimately we 8 are dealing with some Board legal principles here, and 9 you know, under NEPA. I think you have to bear those 10 in mind, you know, and I think one of the first ones, 11 of course, is that SAMA analysis, again as I just 12 mentioned, is by design a site-specific analysis.

13 You're looking at off site dose and 14 economic consequences, you know, averaged over a 50-15 mile radius region and over the course of the year 16 under different meteorological conditions.

17 But again, it has to be informed by plant-18 specific parameters, and I think the MAAP code is a 19 reasonable tool for that purpose, because it 20 specifically models, you know, the release of 21 radionuclides for containment into the environment 22 using plant-specific information.

23 I mean there is an input parameter file 24 that is very much plant-specific, and again, you know, 25 the Intervenors here have advocated the use of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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316 1 generics or prescriptive source terms from NUREG-1465, 2 developed for an entirely different regulatory 3 purpose. We view that as being unreasonable.

4 Then as you alluded to, you know, SAMA 5 analysis is a NEPA-based requirement. It's not 6 safety-based. So I do agree with you to the extent 7 that while certainly the staff must perform a thorough 8 and independent review, it is a different level of 9 stringency in terms of the review that is performed, 10 you know.

11 Ultimately, the staff is not trying to 12 make a reasonable assurance of safe operation or an 13 adequate protection finding. So again, where you have 14 a code like MAAP that has been subject to independent 15 design review, designed in accordance with Part 50 16 quality assurance requirements, actually used for 17 licensing basis design applications over the years, 18 subject to extensive, you know, benchmarking and 19 validation, I think its use for a NEPA-based SAMA 20 analysis is appropriate.

21 But you know, especially in the SAMA 22 context, because we're dealing with plants that are 23 seeking to review their operating license. So here, 24 we're dealing with a PWR, pressurized water reactor, 25 and there's probably a handful of designs that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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317 1 staff has to be acquainted with or familiar with, and 2 it's a bit different from, you know, a new reactor 3 design, you know, where a MAAP code might be used to 4 support that application.

5 JUDGE FROEHLICH: Actually, your answer 6 sort of raises a question in my mind, and my apologies 7 if it's overly simplistic. There's lots of references 8 here to the site-specificness of this particular 9 analysis. When you talk about site-specific, are you 10 talking about the Davis-Besse plant, the way it was 11 constructed, the way it's built?

12 MR. O'NEILL: Yes.

13 JUDGE FROEHLICH: Its shield building, 14 let's say, its procedures, or site-specific, just the 15 weather in the area and, you know, the size of the 16 source term for the fuel.

17 MR. O'NEILL: A short answer to your 18 question is it's both.

19 JUDGE FROEHLICH: Both.

20 MR. O'NEILL: Because a SAMA analysis 21 ultimately is rooted in probabilistic risk assessment 22 and actually draws from Level 1 and Level 2 PRAs, you 23 know, that are done or have been done for the plant, 24 and that includes very plant-specific information, 25 design information, information about accident NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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318 1 sequences, the core damage frequency, is it a plant-2 specific metric?

3 So it does take all of that into account, 4 but it also does take into account, as part of the 5 Level 3 PRA or the off-site consequences analysis, 6 which uses MAACS-2, it takes into account site-7 specific meteorological data taken from the Met Tower, 8 regional property values, that type of -- among other 9 things.

10 JUDGE TRIKOUROS: In looking at your 11 summary disposition motion, again to FENOC, at I think 12 it was pages 15-16 area, you refer to extensive 13 benchmarking of MAAP, the words like "long been 14 accepted by the NRC for both, for use in both safety 15 and environmental."

16 MR. O'NEILL: Yes.

17 JUDGE TRIKOUROS: MAAP, as I understand 18 it, is typically not considered a safety code. Now 19 can you give me some idea what kind of safety 20 applications we're talking about here? I don't think 21 I've ever seen a FSAR transient analysis that uses 22 MAAP. My sense is it probably would not be something 23 that's licensable.

24 I mean what does that have to -- are you 25 representing MAAP to be a code that is capable of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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319 1 accuracies on the level of a nuclear safety analysis?

2 MR. O'NEILL: Your Honor, I think at some 3 point I'd like to probably confer, and confer with my 4 expert, but I believe that is what we are 5 representing. Again, I'd emphasize that for purposes 6 of this analysis, we're not looking at a licensing 7 basis type analysis.

8 But my understanding is that MAAP is 9 actually was used to support many of the integrative 10 plant examinations, you know, that were done in the 11 80's or possibly into the 90's.

12 JUDGE TRIKOUROS: but those are not 13 safety. I mean those --

14 MR. O'NEILL: Okay, okay. Well, okay.

15 JUDGE TRIKOUROS: Those fall under the 16 same umbrella, I think, as SAMA really does.

17 MR. O'NEILL: They're PRAs, that is 18 correct.

19 MS. SUTTON: Your Honor, may we request a 20 moment to confer with our experts?

21 JUDGE TRIKOUROS: Yeah, thank you.

22 (Pause.)

23 MR. HARRIS: Your Honor, while they're 24 conferring, could I have an opportunity? I'd like to 25 be able to add some insight into this. At least in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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320 1 terms of the use of MELCOR and MAAP, in terms of a 2 safety issue, we see it mostly in the risk-informed 3 type of regulations, where plants were coming in using 4 PRA to be able to avoid a, you know, a more defense 5 in-depth kind of requirement.

6 So I think that's where you're going to 7 see it as sort of a safety analysis. It's risk-8 informed, where they come in to actually alter it in 9 some way.

10 JUDGE TRIKOUROS: Yeah, and that's an 11 interesting interface, that if the code itself could 12 not be qualified on a direct safety basis, you know, 13 design the plant using MAAP, but you turn around and 14 change the design of the plant using a PRA that uses 15 MAAP, it seems incongruous to me. Maybe I'm wrong, 16 but it seems incongruous to me. But --

17 MR. HARRIS: I think part of it is, you 18 know, some of it, you know, are a history too of how 19 we've designed plants, you know, where we've designed 20 both from a deterministic point of view in defense in-21 depth as we want to have, and as we go through our 22 reasonable assurance determination, is that we assume 23 that things will fail, and we want defense in-depth 24 that you wouldn't normally get out of a risk-informed 25 type of analysis.

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321 1 But then once you have this reasonable 2 assurance, in a lot of ways we use risk-informed type 3 of analysis to -- a lot of people sort of describe it 4 as nibbling at the edges of improving safety. We're 5 safe, and now we can improve it this much, or there's 6 really no impact from doing this particular kind of 7 thing.

8 JUDGE TRIKOUROS: Right. So I would agree 9 with this. So what you're saying is that it's the 10 relative application, that a code that doesn't have 11 the great pedigree of a MELCOR, could be very 12 effectively used, not necessarily on an absolute 13 basis, but would be very effective on a relative 14 basis. Is that what you're saying?

15 MR. HARRIS: In general, and I mean to 16 address some of that MAAP and MELCOR that we just 17 bring up, is that MAAP and MELCOR are codes of very 18 similar vintages, in terms of when they were 19 originally developed, and the changes that they've 20 undergone, and that you'll see, you know, in some of 21 what our own experts cited, is that MAAP and MELCOR 22 generally produce, you know, similar results, as MAAP 23 tends to fail, cause core damage quicker and dump the 24 core out onto, into containment faster.

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322 1 you end up with larger source terms, where MELCOR 2 tended to be a little quicker on containment bypass 3 events. It's that they're different, but just to get 4 back to even that sort of safety analysis in the 95th 5 percentile, is that even as part of the analysis for 6 SAMAs, we use uncertainty factors to try to account 7 for some of this, the complexity that's associated in 8 what we don't know.

9 One of those uncertainties is the ratio 10 between the mean source term generated in the 95th 11 percentile, that then is applied to the overall 12 benefits. So we are trying to account for, you know, 13 some of that conservatism, even though it's really 14 meant to be a best estimate analysis.

15 JUDGE TRIKOUROS: After we finish with 16 this question, uncertainty analysis was my next 17 question, so we'll get to that in a second.

18 MR. HARRIS: Yes sir.

19 MR. O'NEILL: Your Honor, I briefly 20 conferred with Dr. O'Kula, and he did confirm 21 something that I had understood previously, that you 22 know, MAAP is really, is typically used. I mean it is 23 a standard code used to support Level 1 and Level 2 24 PRA, to determine accident sequence timing, as well as 25 success criteria.

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323 1 You know, for example, the timing, it may 2 relate to evaluations of time available for operator 3 actions, time of release to the environment, and then 4 system success criteria. An example is, you know, 5 required reactor vessel water injection flow rates to 6 balance decay heat loads.

7 So insofar as it's used to support these 8 Level 1 and Level 2 PRA applications, it is used to 9 support risk-informed, you know, safety decision-10 making at the plant.

11 JUDGE TRIKOUROS: Right. But it's not, 12 your motion seems to imply that it's used directly for 13 safety applications. I didn't know of any. I was 14 very interested.

15 MR. O'NEILL: Well, the other, you know, 16 two examples I think we noted, and this relates to one 17 of your questions, were to certified, excuse me, new 18 reactor design certifications, I think the ABWR and 19 AP-1000, you know. There's evidence from the staff's 20 final safety evaluation reports that the applicants in 21 those cases did use the MAAP code in support of their 22 applications, and was very thoroughly reviewed by the 23 staff.

24 JUDGE TRIKOUROS: For that application, 25 for those Chapter 19, DCD Chapter 19 applications.

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324 1 MR. O'NEILL: Exactly, yeah, yeah.

2 JUDGE TRIKOUROS: Again, you know, go to 3 the other parts of the DCD that are talking about 4 safety design of the plant, you won't see -- you won't 5 hear the name "MAAP" mentioned there, and that's --

6 your written motion seems to contradict that, but --

7 MR. O'NEILL: Well, I apologize if it was 8 inartful language. We certainly didn't mean to --

9 JUDGE TRIKOUROS: Yeah. No, I just want 10 to -- because we're trying to understand here the 11 quality of MAAP versus -- the original contention was 12 MAAP versus some NUREG-1150 analyses, among other 13 things, that used codes that were NRC codes, you know, 14 maybe back in the SCDAP/RELAP world or today MELCOR 15 world.

16 The issue really is how does MAAP compare 17 to those, and really the question is does it matter?

18 Does it really have to compare closely with those?

19 The way I understand your arguments, you're saying 20 that the reasonableness assumption in NEPA says that 21 it doesn't.

22 In other words, there's a two-pronged 23 approach that you seem to be taking, one that says 24 that it's a great tool, and compare against anything.

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325 1 great tool, because it just has to be reasonable. Now 2 I'm not sure which of those is really prevailing. I 3 mean --

4 MR. O'NEILL: I don't think there's 5 necessarily a tension, you know, a specific tension 6 there.

7 JUDGE KASTENBERG: They're not mutually 8 exclusive.

9 MR. O'NEILL: Yeah, they're not, and I 10 think part of the problem is, you know, we're talking 11 about a very complex and sophisticated computer code 12 and we're trying to apply general NEPA principles to 13 it.

14 But you know, there is NEPA case law, 15 including Commission case law, and I believe it's 16 cited in our motion that holds, you know, the 17 methodology that the agency used and by implication an 18 applicant uses, it has to be reasonable, you know, for 19 the intended purpose, and it doesn't even have to be 20 the quote-unquote "best scientific methodology."

21 Now mind you, I would -- I suggest that 22 this is, you know, I don't think being called the best 23 methodology, but I think it more than exceeds the 24 reasonableness test.

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326 1 a question that goes along with this?

2 MR. O'NEILL: Yes.

3 JUDGE KASTENBERG: When you did your IPE 4 and your IPEEE, did you use the MAAP code for that?

5 MR. O'NEILL: I will need to consult with 6 the experts on that one, Your Honor.

7 MS. SUTTON: Yes, Your Honor. We're told 8 yes.

9 MR. O'NEILL: Okay. We are told yes, it 10 is.

11 JUDGE KASTENBERG: So this is a code 12 you're familiar with; you've used it for meeting 13 various NRC requirements?

14 MR. O'NEILL: That is my understanding 15 Your Honor, yes.

16 JUDGE TRIKOUROS: Let's see. In your 17 motion again, perhaps I think it's page 16 of your 18 motion, you're discussing NUREG-1465, and the Board 19 clearly understands the NUREG-1465 applications. I 20 mean we've been told many times by the parties.

21 But we knew that, and however, we're sort 22 of keeping it in here to discuss this reasonableness 23 idea, of what could you use to do a SAMA? What would 24 be acceptable? How far afield could one go, and is 25 MAAP, even with its problems, would it be reasonable?

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327 1 So you're saying in your motion that 2 NUREG-1465, the MAAP would give consistently smaller 3 source terms than NUREG-1465, and I guess the question 4 I have is if one wanted to come in with MAAP to 5 generate an in-containment source term that would be 6 used for Part 100 analysis, would that be an 7 acceptable application of MAAP?

8 MR. O'NEILL: I certainly believe it's 9 something that can be done, Your Honor, in terms of 10 generating or developing that in-containment source 11 term. But for what specific purpose are we -- for 12 compliance with Part 100?

13 JUDGE TRIKOUROS: Well, you know, is there 14 an interchangeability between -- is there any 15 interchangeability between 1465? I mean could one do 16 a SAMA analysis using a 1465 source term? The answer 17 --

18 MR. O'NEILL: Is no.

19 JUDGE TRIKOUROS: No.

20 MR. O'NEILL: I mean you couldn't do what 21 I would refer to as a meaningful, realistic best 22 estimate type SAMA analysis by using generic, 23 prescriptive source terms from 1465.

24 JUDGE TRIKOUROS: And yet -- go ahead.

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328 1 that when you were given your original license to 2 operate, that your site boundary exclusion ratings and 3 so on were all based on the old TIB-14844 source term?

4 I assume --

5 JUDGE TRIKOUROS: The 1962 --

6 JUDGE KASTENBERG: --all reactors of your 7 generation, and clearly that postulated release, when 8 PRA came of age, that postulated release, both from a 9 regulatory perspective and from a scientific 10 perspective, was no longer adequate.

11 And so there's two tracks. One is the NRC 12 development through 1150 and 1465 and on and on, and 13 then there's the industry approach through your 14 consultants, Fauske Associates and EPRI and so on and 15 so on.

16 I think in your opening statement, I think 17 you kind of alluded to the fact that at least your 18 consultant tried to use apples to apples comparison 19 between the two, and maybe that might have been part 20 of our confusion in terms of why your consultants seem 21 to differ.

22 But you know, this is science, this is 23 physics, and so somewhere along the way, all of these 24 should agree to some degree. They should all agree; 25 is that not right? I mean we've got, you know, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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329 1 radionuclides. We've got containments. We have 2 sister plants and brother plants and so on, and there 3 must be some agreement somewhere along the line.

4 Could we get maybe some --

5 MR. HARRIS: This is Brian Harris of the 6 staff. I mean I think that's what -- that is sort of 7 what our expert was trying to do, is sort of to show 8 roughly MAAP and MELCOR.

9 There's actually a code used by a European 10 plant, ASTEC. These are basically the three source 11 codes, the codes used to develop source terms for 12 accidents, and that they have service, some more 13 vintage.

14 They've been improved over the years, and 15 that when you look at comparative accidents, because 16 you have to realize that we're not just talking about 17 one accident scenario; we're talking about multiple 18 accident scenarios. So NUREG-1465 is really talking 19 about one really bad accident, you know.

20 So that would give you, a source term in 21 containment that where one accident, but I believe 22 there are 34, I think here.

23 JUDGE KASTENBERG: Thirty-five, I think.

24 MR. HARRIS: Thirty-five. Thirty-five 25 accidents there. So that's, I mean that's not, you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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330 1 know, it's only going to give you one, and then you 2 still have to account for how is it going to get out 3 of containment, which is accident-specific --.

4 So I mean just because I have a source 5 number in containment, I really need to know how that 6 accident progressed, to figure out, well how is going 7 to actually escape into the environment? When you 8 look at it on this mean and the actual spread of the 9 accident source terms, is that you actually see that 10 they're roughly comparable, even when you look at 11 other plants, which you know, NUREG-1150 was site-12 specific.

13 But you're in sort of the same sort of 14 ballpark, you know, for similar types of plants for 15 those scenarios. NUREG-1465, I think, is much more 16 troubling, because it's generic. It was for, you 17 know, two different source terms, one for all PWRs and 18 one for all BWRs, you know.

19 If an applicant came in with 1465, we 20 would be asking lots of questions about why are you 21 using this and not a site-specific source term.

22 JUDGE TRIKOUROS: In your motions, various 23 locations, discusses NUREG-1465 and in terms of it not 24 taking into account removal mechanisms in its source 25 term. I just wanted to get this straight. The source NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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331 1 term for NUREG-1465 does not take into account removal 2 mechanisms.

3 But there is -- my understanding is 4 there's ample allowance for someone applying NUREG-5 1465, to take advantage of removal mechanisms, and in 6 fact NUREG-1465 specifically mentions all the removal 7 mechanisms that one could take advantage of, and in my 8 experience, whenever my department did anything like 9 that, it did that, it did it twice with NUREG-1465.

10 We did take advantage of removal 11 mechanisms. I believe that everybody does, frankly.

12 So you know, the motion, the words in the motion were 13 a little confusing to me in that sense, in that sense, 14 that NUREG-1465 does allow for a removal mechanism.

15 But you wouldn't know that necessarily by reading your 16 motion.

17 MR. HARRIS: I mean NUREG-1465 does, you 18 know, suggest that you could do it, that they were 19 trying to do it for each plant. So each plant, those 20 removal mechanisms are different.

21 JUDGE TRIKOUROS: Right.

22 MR. HARRIS: So you have to take into 23 consideration your plant. But you also have to sort 24 of realize the purpose of it, which was, you know, 25 really the Part 100 requirements in terms of, you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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332 1 know, what's the design basis leakage that your 2 containment can withstand.

3 JUDGE TRIKOUROS: Right.

4 MR. HARRIS: You know, there are removal 5 mechanisms for in-containment release. But then 6 there's also this removal mechanism for the torturous 7 path that it has to actually get out to the 8 environment too, that's not just the design basis 9 leakage path.

10 JUDGE TRIKOUROS: Right, okay. Yeah, I 11 understand. I just wanted just to get that on the 12 record, that okay.

13 Another thing that came up in the motion, 14 and was with respect to the fact that the initial 15 contention was referring to analyses that were done 16 many years ago, and it says, one of the sections, I 17 think maybe it's page 18 of your motion, says that 18 because it was done over ten years ago, that it was 19 using simpler versions of the codes and different 20 assumptions, that it would be expected to show 21 differences.

22 I was waiting for the next part of that, 23 which is today, it wouldn't, you know. You said ten 24 years ago you would have expected it. You never said 25 "today, you wouldn't." I mean would you today? If NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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333 1 you did a comparison of MAAP and MELCOR today, would 2 you see a difference?

3 MR. O'NEILL: Your Honor, just one 4 clarification. I think when we refer to the ten 5 years, we were saying we were comparing the code, you 6 know, that had been developed or was in operation ten 7 years ago, versus one that was, you know, more 8 recently developed and is in operation today.

9 In other words, you know, it's not the 10 apples-apples comparison. You're trying to compare a 11 newer code that's understandably benefitted from 12 insights, you know, gained over time and it's been 13 improved.

14 And so, you know, you might see some 15 differences in the results generated by that code, 16 versus the results generated by an older, less 17 sophisticated code. So I just wanted to clarify that 18 point.

19 But with respect to your second question, 20 I don't think we do expect to see significant 21 differences between say contemporaneous versions of 22 MAAP and MELCOR, and I think studies have borne this 23 out. I think it's discussed in some detail in Kyle 24 Ross' affidavit, the staff's expert's affidavit.

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334 1 against each other pretty extensively, and certainly 2 they've seen some discrepancies. But as Mr. Ross 3 testified, that are well within the uncertainties of 4 the physics models, you know, what have you.

5 JUDGE TRIKOUROS: Well, I guess we'll get 6 to this at some point.

7 JUDGE KASTENBERG: I have a whole series, 8 but on a slightly different series of questions. But 9 it's on a different track.

10 JUDGE TRIKOUROS: Okay. Well go ahead, go 11 ahead.

12 JUDGE KASTENBERG: So I wanted to just 13 come back to your opening statement. I think there 14 were two points that you made, and the way I 15 characterize them, one is more textual and the other 16 is more content, and at least as I view your motion, 17 I see there are two aspects to it. One is more 18 contextual and one is more content-oriented.

19 I think these kind of questions that we 20 were just addressing are more on the content side, and 21 on the context side, what I'm interested in, I think 22 you may have said this, the word "trigger." That is, 23 what would trigger a motion for summary disposition?

24 The way I understand your argument is that 25 in your reviews of your SAMA analysis, you found these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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335 1 six errors, and one of them is the use of core 2 inventory isotopic activity was used instead of 3 isotopic mass. Your reviewers found this error, and 4 at least I want to just understand. That is the basis 5 of the trigger in which ten days later you submit your 6 motion for summary disposition; is that right?

7 MR. O'NEILL: I think from the textual 8 standpoint as you put it, yes. But also, as I pointed 9 out, you know, our experts performed the review in 10 response to the issues raised in the contention, and 11 generated an affidavit based on that, and typically an 12 affidavit of that sort could contain a basis for a 13 summary disposition motion in an NRC adjudication.

14 JUDGE KASTENBERG: I mean I -- let me say, 15 if this were a proceeding on the merits, assuming you 16 had not filed this and some time down the road we 17 would have a proceeding on the merits on the 18 contention, I fully understand the use of your experts 19 and they come in and rebut the contention, as modified 20 by the Commission.

21 But in such a hearing as this, that's 22 where I'm a little uncertain as to the validity of 23 that argument. That is, you found an error, you made 24 some corrections, and you have some experts now that 25 come in to tell us how great the MAAP code is, and it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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336 1 may very well be great, and certainly at least some of 2 us have been in this field for a long time and 3 appreciate what MAAP does and what it doesn't do.

4 But I need a bridge between the trigger 5 and your motion, that puts it on a little more solid 6 ground for me. Can you do that?

7 MR. O'NEILL: Okay, Your Honor. Yeah, and 8 I think again, as a result of identifying the need, 9 you know, to run the new, to prepare the new MAAP code 10 runs, you know, we ultimately revised the source 11 terms, you know, the release fractions that are under 12 challenge.

13 I mean those are the specific parameters 14 that are under challenge, and they have been modified 15 and, you know, to us that is a direct nexus, I mean, 16 to the contention. I mean the parameters that they're 17 alleging that are underestimated are in play, and 18 again we made the decision to apply the MAAP code 19 again. We view it as an appropriate tool.

20 And with all due respect Your Honors, I 21 think that the need for a trigger per se is very much 22 a function or an artifact of the Board's ruling, that 23 2.323 applies or governs, and that we must file the 24 motion within ten days of the trigger. I mean I've 25 been involved in a number of NRC proceedings, Subpart NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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337 1 L, Subpart G over the years, and we've routinely filed 2 summary disposition motions at different phases in the 3 proceeding, you know, based again in part on filings 4 in the proceeding or, you know, expert affidavits that 5 were prepared specifically to address the issues 6 raised in the contentions.

7 JUDGE KASTENBERG: Did you have a comment 8 on that?

9 MR. HARRIS: Let me see if I can help. I 10 mean in some ways, to step back and look at what 11 summary disposition is normally used for, in just any 12 kind of court proceeding. It's a method that when all 13 the parties, when the facts are not in dispute, which 14 is what you normally use in, you know, a hearing, 15 where we're going to have a hearing on the merits, is 16 to determine what the facts are.

17 Is it the way when there are no disputes 18 as to the facts, to be able to decide the issue 19 without having to, you know, without having to do 20 that. So it is a unique sort of way to avoid having 21 to have a hearing, when no one disputes the facts, 22 which is what we have at this point.

23 So at this point, you know, you could 24 decide it either way, because the facts aren't in 25 dispute. But you know, in terms of the trigger, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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338 1 have, you know, the Board indicated when they were 2 first ruling that DSEIS may be a trigger when you can 3 refile this, the Motion for Alternatives, which is no 4 longer before the Board.

5 But I would have a tough time sitting here 6 saying that when our DSEIS is issued, that necessarily 7 we're going to make any substantive -- I'm not saying 8 that we're not going to make any substantive changes, 9 but that the source terms would be changed in some 10 material that would suggest that you can file then, is 11 why you shouldn't have filed when you first changed 12 the source terms.

13 So I have a tough time figuring out when 14 you can file a summary disposition after them making 15 the change to their source terms.

16 JUDGE KASTENBERG: I have more of a 17 content question. On changing isotopic activity 18 instead of isotopic mass, in one of your footnotes, 19 you talk about -- this is on page six, footnote 33, 20 that when you made all of these changes, your maximum 21 achievable benefit increased from 1.357 million to 22 2.053 million dollars.

23 Is that just -- is that the change for all 24 corrected errors, and could you back -- if it is, 25 could you back out the change just due to the error in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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339 1 isotopic activity instead of isotopic mass? I mean 2 how big would that, you know, big effect did that 3 have?

4 MR. O'NEILL: Well, Your Honors, you are 5 correct, that that change was due to the combined 6 effect of all the corrections that were made.

7 JUDGE KASTENBERG: Well, I'm asking you.

8 MR. O'NEILL: Yeah, yeah. No, I 9 understand. I'm just saying I agree with you on that 10 point. In terms of backing out the defective source 11 term per se is probably beyond my capabilities or 12 bailiwick. You know, I think we did see changes in 13 the individual, you know, source term release 14 fractions.

15 But I think some actually increased, 16 others decreased. I think we saw, you know, more of 17 an increase in some of the late, you know, containment 18 failure release categories. You know, the MAAP flash 19 guidance suggested that using the radionuclide could 20 lead to substantial underestimation.

21 I don't think that's really what we saw.

22 I mean I think we maybe saw, you know, a slight 23 increase. I don't know if I can really quantify it, 24 but so there was some increase in the overall source 25 term. But certainly that increase in the estimated, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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340 1 the maximum achievable benefit was due to some of the 2 other factors too, like the escalation of the 3 decontamination costs, for example.

4 JUDGE KASTENBERG: You know, the 5 difference between mass and activity is the half life 6 basically.

7 MR. O'NEILL: Uh-huh.

8 JUDGE KASTENBERG: Right, and the half-9 lives of these radionuclides span several orders of 10 magnitude. So I would expect correcting the error 11 would have given you a bigger spread. Now you may get 12 pluses and minuses from these other corrections, of 13 course.

14 MR. O'NEILL: When you say "a bigger 15 spread," you mean --

16 JUDGE KASTENBERG: Between your original 17 calculation and your final calculation.

18 MR. O'NEILL: Yeah. I'm not sure I would 19 describe it certainly as negligible, but I can't 20 quantify it specifically myself.

21 JUDGE KASTENBERG: Is that something in 22 your Attachment 5, and I looked through it, that's 23 where you submitted all of your revised results?

24 Would I find it in there if I looked for it?

25 MR. O'NEILL: I think the, you know, all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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341 1 of the specific release fractions, I probably need a 2 moment to get back to you on that one, Your Honor. I 3 know some of it's in the underlying Level 3 PRA 4 documentation. I just can't recall if it made its way 5 into the actual revised SAMA analysis, or the revised 6 RAI responses.

7 JUDGE KASTENBERG: Are you going to confer 8 with your experts?

9 MR. O'NEILL: Yeah.

10 (Pause.)

11 MR. O'NEILL: Your Honor, thank you for 12 the opportunity to confer with Dr. O'Kula and other 13 folks on this issue, but I do understand from my 14 discussions with them that as is pointed out in the 15 motion, we're principally concerned with the cesium 16 and iodine release fractions.

17 I mean those are the dominant 18 radionuclides when it comes to effects, cross-effects, 19 and on average, across the 34 release categories, we 20 actually did see somewhat of a decrease in the iodine 21 and cesium release fractions. Dr. O'Kula advised me 22 that, you know, of the 34 release categories, I think 23 1.3, 2.2 and 8.2 were really the dominant players.

24 We did see somewhat of a decrease in 25 Release Category 1.3 and 2.2 with respect to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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342 1 cesium and iodine release fractions. I would note 2 that the actual release fraction data is in table, ER 3 Table 3.3-13, and I know that appears in a revised 4 SAMA analysis, yes.

5 JUDGE KASTENBERG: So I would find that 6 in, I think it was Attachment 5 that has the --

7 MR. O'NEILL: Yeah, Attachment 5, and I 8 can get back to you with the citation, but I know 9 there's another table in there too that shows the 10 release category, severity of releases. I'm probably 11 not using the proper terminology, but it's, you know, 12 list percentages of cesium and I think hydroxide, you 13 know, for each of the release categories.

14 We did see, you know, some changes in the 15 percentages there, I think consistent with what I just 16 said, and you know, some decreases.

17 JUDGE KASTENBERG: And the question of 18 what percent that plays in the change from 1.3 million 19 to 2 million, do you have any sense of that? Do the 20 experts have a sense?

21 MR. O'NEILL: I think I understand from 22 past discussions that it's probably less than five 23 percent, to answer your question. Is that -- they're 24 nodding their heads.

25 JUDGE KASTENBERG: About five percent.

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343 1 Which of these corrections, then, was the largest 2 contributor to the change in dollars?

3 MR. O'NEILL: Again, I'll need to confer 4 with them. I don't want to misspeak.

5 JUDGE FROEHLICH: Mr. O'Neill, perhaps 6 this would be a good time for us to take a morning 7 break of about ten minutes. In that time, it doesn't 8 cut into too much of the time, and you can consult 9 with your experts and we'll do that after the break.

10 MR. O'NEILL: Yes.

11 JUDGE FROEHLICH: Is that acceptable?

12 Let's stand in recess for ten minutes and pick it up 13 from here. Thank you.

14 (Whereupon, the above-entitled matter went 15 off the record at 10:27 a.m. and resumed at 10:43 16 a.m.)

17 JUDGE FROEHLICH: Please be seated. Mr.

18 O'Neill, were you able to consult?

19 MR. O'NEILL: Pardon me?

20 JUDGE FROEHLICH: Were you able to 21 consult?

22 MR. O'NEILL: Yes. Yes, Your Honor.

23 Thank you again for your patience, in allowing me to 24 do that. I think I did get some clarification 25 relative to Judge Kastenberg's question, and I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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344 1 we can do this by looking at the mean public dose risk 2 and off-site public dose risk, and then the mean off-3 site economic cost, which are assuming metrics of 4 interest, across all 34 release categories.

5 And when we look at it, the cause is 6 changed by the use of the mass-based MAAP code source 7 terms, and even by the changed meteorological data 8 were fairly small. In fact, they caused a slight 9 decrease in the mean public dose by about roughly five 10 percent.

11 But yet as we know, we did see a 12 significant increase in the overall maximum achievable 13 benefit, and that was dominated really by the economic 14 parameters. So really those first three, I think, 15 changes that related to the land area conversion 16 factor, the Ohio farmland and non-farmland values 17 using the SAMA analysis, and then the escalation of 18 the decontamination cost to 2009 dollars. There, I 19 think we saw almost a doubling of the OECR, off-site 20 economic cost risk.

21 JUDGE KASTENBERG: And again, are these 22 all in your Appendix 5, Supplement 5? Are they all 23 described, or did you just all do a back of the 24 envelope calculation right now?

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345 1 included in Attachment 5, but you know, there probably 2 are some data that, you know, were in an underlying 3 Level 3 PRA calculation document.

4 JUDGE KASTENBERG: Thank you for being 5 responsive. I appreciate it.

6 MR. O'NEILL: You're welcome. Thank you.

7 Just one clarification for the record too. We had 8 referred to a couple of tables in Attachment 5, and 9 one was E.3-13. The other one, I believe I referred 10 to was Table E.3-6, Release Severity Source Term 11 Release Fraction, and I referred to it as containing 12 percentages of cesium hydroxide. It's actually cesium 13 iodine. It's just a clarification.

14 JUDGE TRIKOUROS: Okay, moving on.

15 There's a statement made in the Motion for Summary 16 Disposition that says that "Intervenors do not explain 17 what they mean by an independent validation, or why 18 such a validation by the NRC is a prerequisite to an 19 applicant's use of the MAAP code."

20 Then it does on to discuss something to 21 the effect that codes are not validated, but specific 22 applications are validated, and it goes on to refer to 23 a letter that was written from NRC, Gary Holahan to 24 EPRI, I think it was Ted Marston, and it's identified 25 as one of your 48 attachments. I think it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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346 1 Attachment 22.

2 MR. O'NEILL: That's correct, Your Honor.

3 JUDGE TRIKOUROS: And that letter seems to 4 be referring entirely to using MAAP for licensing 5 purposes, not at all for the purposes we're talking 6 about in this proceeding. Is that correct? Is that, 7 my interpretation of that letter correct?

8 MR. HARRIS: Your Honor, just to -- that's 9 coming from the new reactors, in terms of that letter.

10 So yes, it's related to the new reactors, and 11 licensing of new reactors. So not really directly 12 related to license renewal use.

13 JUDGE TRIKOUROS: Right. Well more 14 specifically, I think the letter is referring to 15 whether it be licensing, new reactors or licensing 16 existing reactors, it's referring to licensing 17 applications. It's referring to design basis 18 licensing applications, rather than to severe accident 19 applications, because it does go --

20 It later goes and differentiates, and says 21 "With respect to severe accidents, you know, after it 22 says all the things that it says about licensing," and 23 in fact it says "in the reactor licensing process."

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347 1 submittals that rely on MAAP for severe accident 2 applications, when we consider a technical review 3 appropriate."

4 So the world of MAAP in severe accident 5 applications seems to be totally different from the 6 world of MAAP in the reactor licensing process. So 7 the NRC really is saying in this letter that they may 8 not even review it, right?

9 I mean they'll determine what's 10 appropriate, what isn't appropriate, and apply that 11 resource on a case-by-case basis basically, is what I, 12 how I read that.

13 MR. HARRIS: I mean the NRC staff does 14 review it, and you know, we do have limited resources 15 in terms of what we do review. But in this particular 16 case, we have, you know, gone through those resources 17 to look at that. Traditionally in the U.S., I believe 18 plants have used MAAP consistently for this purpose.

19 So MAAP is what we see, in terms of severe accident 20 mitigation analysis for source terms from all the 21 operating fleet --.

22 JUDGE TRIKOUROS: And you know, based on 23 this exhibit or this attachment to the motion, its 24 level of quote-unquote "validation" required is not --

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348 1 depending on what the staff reviewers believe is 2 necessary for that particular application; is that 3 correct?

4 MR. HARRIS: Yes, that's correct. I mean 5 it's very dependent on, you know, what the use of it 6 is. To step back to new reactors, where this is, you 7 know, has more context, is that new reactors 8 rulemakings, they tend to be somewhat iterative, in 9 terms of the severe accident an CDF.

10 So they run this; they identify things 11 that, you know, are design improvements that they can 12 make. And of course once you make that change, then 13 the analysis that you did for severe accident 14 mitigation now is no longer valid. You need to run it 15 again.

16 So you get to these sort of iterative 17 steps as they continue to make design changes, to 18 account for things that they identify. But licensed 19 reactors are different, you know, because we've 20 already built the plants.

21 They exist as they are, and so they're not 22 really subject to -- I mean they are subject to design 23 improvements that might be potentially beneficial, but 24 for the most part, and even the Commission indicated 25 in NEPA rule discussing the requirement to do SAMA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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349 1 analysis, that didn't expect to see anything other 2 than sort of minor procedural changes.

3 That has been, and historically what we 4 found as we reviewed 73 of these, is that it's really 5 just minor procedural changes that tend to be cost 6 beneficial.

7 JUDGE TRIKOUROS: Okay now -- okay. I 8 understand. Now specifically with respect to the 9 Davis-Besse SAMA analysis, and I'm not sure who the 10 appropriate party is, the staff or FENOC, what level 11 of review did the staff apply to that?

12 MR. HARRIS: The staff, you know, has, you 13 know, gone through their, you know, for two reasons.

14 The staff's review, in this particular case, because 15 of the contention, has been somewhat bifurcated. We 16 have our normal review for producing the EIS, which is 17 done by Pacific National Labs.

18 They have looked at the source terms, 19 because we have asked them to look at the source 20 terms, as a result of the contention being admitted.

21 That's one of the things that they have been 22 reviewing, and that will be reflected in our EIS when 23 it's published.

24 But, and of course we're now going through 25 the revision. But for purposes of being able to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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350 1 prepare summary disposition, we went out to Sandia 2 National Laboratories, for their expertise on MAAP and 3 MELCOR, to be able to look at just this specific issue 4 that's in this contention of did MAAP produce source 5 terms, because that's a much more narrow issue than is 6 the SAMA analysis acceptable.

7 But did we produce the right source terms, 8 and were they anonymously low or large? So that's 9 what Mr. Ross has done, was to compare the source 10 terms that were produced by Davis-Besse with the 11 issues that were raised in the contention, and to try 12 to show really a fair perspective of what those source 13 terms were and why we think those source terms are 14 acceptable.

15 JUDGE TRIKOUROS: Well, okay. I have a 16 question on that specifically in a little bit. But 17 with respect to the staff review, in these types of 18 applications, it appears to me, based on the 19 information presented to us, that the staff review is 20 one of reasonableness. It looks at the source term --

21 It looks to me that they look at the 22 source terms and say are these reasonable source 23 terms, because they certainly did not ask for the 24 input deck apparently, or if they did, they certainly 25 didn't review it with the level of carefulness that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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351 1 the FENOC consultant did, and or they would have found 2 the mass activity issue.

3 So the whole -- can it be said that the 4 level of review that the staff requires with respect 5 to such analyses, SAMA analyses, technical review, is 6 one for reasonableness, rather than the rigor 7 associated with the licensing. They describe the 8 rigor in this Attachment 22 for licensing.

9 MR. HARRIS: I would agree that the level 10 of review, in terms of NEPA basis, we're supposed to 11 take a hard look. So we're looking at it under this 12 reasonableness standard.

13 I would disagree that we didn't find it.

14 We were still in our review when they revised it. We 15 were still conducting our review. We hadn't published 16 our DSEIS. This is one of the things that we were 17 looking at, and they, you know, we hadn't asked those 18 RAIs.

19 So I can't say that we didn't, we wouldn't 20 have found it in our review. I'm just saying that at 21 that point, you know, we hadn't gotten all the way 22 through that point.

23 MR. O'NEILL: Can I add one point, Your 24 Honor?

25 JUDGE TRIKOUROS: Sure.

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352 1 MR. O'NEILL: I mean I would agree that, 2 you know, the standard is one of reasonableness. In 3 fact, it's completeness and reasonableness, and you 4 know, certainly preparing for oral argument, you know, 5 I did review some applicable staff guidance, and one 6 of those documents is NUREG-1555, Standard Review Plan 7 for Environmental Reviews for Nuclear Power Plants, 8 Supplement 1.

9 Section 5.111 addresses SAMA analysis 10 specifically, and it says the staff's assessment 11 focuses on the completeness and reasonableness of the 12 applicant's SAMA analysis, methods and assumptions.

13 You know, it says among other things, the staff will 14 look at the site and station-specific factors, core 15 damage frequency, large release frequency, dose 16 consequences, you know, among other things.

17 JUDGE TRIKOUROS: All right.

18 MR. O'NEILL: Just a reference point.

19 JUDGE TRIKOUROS: All right. So I'd like 20 to ask the Intervenors a question at this point.

21 We've been excluding you from the majority of this up 22 until now. But you've heard some of these discussions 23 that have been going on here this morning.

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353 1 would get significantly more technical than we are 2 discussing here. Your contention was initially 3 preferred based on Seabrook, if I remember correctly.

4 It was a Seabrook issue that was, that you brought 5 into Davis-Besse.

6 When the summary disposition motion was 7 filed, you did not specifically address any of the 8 statements. You did not address the facts that were, 9 you know, identified, that were identified as not in 10 dispute by FENOC and also then individually addressed 11 by the NRC staff.

12 Let's assume for the sake of argument, and 13 only for the sake of argument, that we were to not 14 grant the motion for summary disposition. Do you feel 15 that you would be able to defend your position in a 16 hearing on this subject?

17 It's a very esoteric subject, and I think 18 what we've done so far is just barely touched the 19 surface of how esoteric it really is, and you know --

20 and there are many people to my knowledge who are 21 knowledgeable.

22 MR. LODGE: We understand, as much as 23 anyone here does, the complexity of the contention, 24 and the complexity, in fact, of the entire SAMA area.

25 We would be prepared to defend it. We would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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354 1 prepared; we anticipate being able to possibly 2 identify people not necessarily who are experts, but 3 who have expertise, who would be able to assist us in 4 preparing for cross-examination of the expert 5 witnesses that would be designated by the licensee or 6 the Commission.

7 JUDGE TRIKOUROS: May I ask why you didn't 8 bring those resources to bear in responding to the 9 Motion for Summary Disposition directly, with respect 10 to the issue of MAAP versus NRC codes, in terms of --

11 MR. LODGE: We believe that our original 12 filing was pretty strong, that essentially at this 13 stage, at the summary disposition stage, it was not 14 our burden to have to get very far into matters of 15 substance. Further, we also believed that the 16 response we did make was of very central importance 17 and significance legally.

18 JUDGE KASTENBERG: May I ask a question 19 along those lines?

20 JUDGE TRIKOUROS: Go ahead.

21 JUDGE KASTENBERG: I have a question along 22 those lines. In your opening statement, it sounded to 23 me, at least, that you were asking the Board to 24 broaden the contention, by -- I can't recall the exact 25 words you used, but that this was a much more complex NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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355 1 question regarding SAMA analysis.

2 In your answer, you brought up the 3 question of the containment cracking and so on, and is 4 that -- did I read you correctly, that that's 5 basically what your approach is, is that you can't 6 really look at a very narrow issue, but you really 7 have to look at a larger question when you're dealing 8 with SAMA analysis? Was that the thrust of your 9 statement?

10 MR. LODGE: I don't want to appear 11 disagreeable, although I'm accused of that 12 occasionally. What we are -- what our position is is 13 not that we are attempting to broaden the scope of the 14 contention. We believe that there is serious 15 unexamined data, which is not reflected nor 16 incorporated into the analysis as it presently 17 appears.

18 I'm not trying to be tricky or anything of 19 the sort. If your question is are we trying to 20 broaden the scope of the contention, we do not believe 21 so.

22 We believe that it is the responsibility 23 of the applicant to make the showing that the 24 integrity of its underlying data set is complete, that 25 the NEPA, the disclosure aspect required by NEPA is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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356 1 honestly met, that in response to Judge Trikouros' 2 earlier questions, that the standard of reasonableness 3 has been appropriately encompassed within the SAMA 4 analysis. We don't believe that that has happened.

5 JUDGE KASTENBERG: And just to take it one 6 step further, we as a Board narrowed your original 7 contention, and then the Commission further narrowed 8 it, and at least at first blush it feels like now 9 you're sort of like the Bernoulli effect, you know, 10 that there's kind of a broadening of a continued 11 narrowing of the contention. It sounds like there's 12 a broadening of that.

13 MR. LODGE: Let me have one moment, 14 please.

15 (Pause.)

16 MR. LODGE: I believe if the Intervenors 17 could be accused of anything, it would be that we're 18 having difficulty getting past the facts on the ground 19 at the plant.

20 The question that I believe Judge 21 Trikouros and Judge Froehlich kind of followed upon 22 was this whole issue of whether or not appropriate 23 plant-specific information has been taken into account 24 in making, producing the SAMA candidates.

25 We think that the selective use of some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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357 1 plant-specific parameters but not others does not 2 appear under NEPA to be reasonable. So again, yes, 3 we're getting very narrow and then getting into a 4 broad area at that point of narrowness.

5 MS. SUTTON: Kathryn Sutton for the 6 Applicant, Your Honor. May I just make a standing 7 objection at this point, further to the opening 8 remarks, that we believe that any further answer to 9 the motion at this point is late and must be 10 demonstrated by the good cause showing, per 2.307.

11 That's a standing objection, Your Honor. I just need 12 to make it for the record.

13 JUDGE FROEHLICH: So noted. Continue, Mr.

14 Lodge.

15 MR. LODGE: That's all I have in specific 16 response to Judge Kastenberg.

17 JUDGE FROEHLICH: So that maybe the 18 questioning along this line will go more smoothly, and 19 you'll be able to see where the Board is going. As we 20 understand this and we have the contention before us, 21 there are basically three bases which the Intervenors 22 have set forth, which challenge the SAMA contention.

23 I believe I hear you saying that you are 24 still of the opinion that there is something missing 25 in response to those three bases. Do I understand you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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358 1 perspective correctly?

2 MR. LODGE: Yes.

3 JUDGE FROEHLICH: What is it that the 4 Intervenors believe is missing from the SAMA 5 contention, as narrowed by the Commission, at this 6 point?

7 MR. LODGE: Well first of all, there was 8 something of a game-changer in the form of the July 9 16th filing, with the correction of a lot of very 10 fundamental errors by the Applicant.

11 JUDGE FROEHLICH: Could you speak up?

12 MR. LODGE: I'm sorry, I'm sorry.

13 JUDGE FROEHLICH: I'm having a little 14 difficulty hearing you.

15 MR. LODGE: We do believe that the --

16 we're into the problem of the unknown unknowns, that 17 this is, as I said earlier, this is a garbage-18 in/garbage-out issue to the Intervenors. This is a 19 question of whether or not the SAMA analysis actually 20 reflects the realities.

21 As I say, NEPA is procedural. NEPA 22 requires honest, fair disclosure. NEPA requires the 23 agency to show the public that it has asked the tough 24 questions of the applicant, and that those answers are 25 in some way reflected in the NEPA document.

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359 1 We believe that that has not occurred, 2 that that process, if anything, has only begun with 3 the serious changes that were noted by FirstEnergy on 4 July 16th in their changes. Mr. Harris had said that 5 plants exist as they are a few minutes ago. That 6 means that a plant with perhaps very extensive 7 cracking problem or extensive corrosion problems in 8 its steel containment, must be taken as it is.

9 JUDGE TRIKOUROS: Mr. Lodge, I think we 10 need to reiterate, though, that that is not the 11 subject of Contention 4. Contention 4 simply is 12 dealing with the generation of accident source terms 13 using MAAP versus the potential use of another code 14 other than MAAP.

15 That's really where this Board is going, 16 and we cannot and will not depart from that, from the 17 exact focus of that contention. The shield building 18 is not part of that. It is part of Contention 5, and 19 we will be spending a lot of time on that. But not, 20 it is not part of Contention 4.

21 You didn't make it part of Contention 4.

22 I reiterate what I had said earlier, that you know, we 23 have been discussing nothing here other than 24 reasonableness of the MAAP code, more legal than 25 technical I would say. The question of MAAP-generated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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360 1 source terms versus other codes such as MELCOR is a 2 highly complex, highly technical, highly esoteric 3 subject, and we need to be, feel confident that if we 4 were to go down that road, that there would be a 5 multi-party proceeding.

6 You've assured us that there would be, but 7 I just want to make it very clear that that is 8 critical to all of this. I mean one has to be able to 9 defend the things that they contend, when they start 10 this process rolling.

11 All right. So the, continuing. In the 12 motion, again it talked about this idea of a PRA 13 consensus model, and referring to a 2006 EPRI report, 14 and I believe the appropriate parts of that were 15 provided in the attachments, where it specifically 16 says "The MAAP code, Version 4.05 and later as a 17 consensus model suitable for use in evaluation of PRA 18 success criteria."

19 I just don't understand how that's 20 pertinent to the question of MAAP-generated source 21 terms. Is there some connection that I should know 22 about, because the consensus model that's specific, I 23 think it was Attachment 23. The consensus model in 24 Attachment 23 seems to be specific to its use for 25 success criteria, and you know --

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361 1 Which has nothing to do, or at least 2 nothing directly to do with source term. So I wasn't 3 sure where you were going with that. Can you help me 4 with that?

5 MR. O'NEILL: Your Honor, I mean I think 6 from a very broad perspective, we were just first 7 trying to point out that the MAAP code does have 8 applications with safety implications or safety 9 significance, you know, one of those being the 10 development of the success criteria.

11 I just thought to some extent that speaks 12 to the reasonableness of a code, you know, for use 13 within the context of a SAMA analysis. But I mean I 14 think there is an indirect relationship. I believe 15 that the SAMA analysis is, you know, as we set forth 16 in the joint declaration, rests upon the Level 1 and 17 Level 2 PRAs, you know, and the MAAP code was used, I 18 think, in portions of those analyses.

19 So even if we put aside the source term 20 issue, I mean indirectly it is supporting the SAMA 21 analysis.

22 JUDGE TRIKOUROS: Okay. Well the, you 23 know, I just want to point out that success criteria 24 are very -- unlike a design analysis, where you want 25 to know the pressure to within a percent or less, very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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362 1 accurately. Let's say as an example success criteria 2 are more of a forgiving thing. You're asking broader 3 questions, you know, will the fuel heat up at all or, 4 you know, you might have success if there's a range of 5 answers, you know.

6 The accuracy of the method in success 7 criteria is not so critical as it is in other areas.

8 I just want to make sure we're on the same page there.

9 MR. O'NEILL: Okay.

10 JUDGE TRIKOUROS: All right. I've got 11 some more, if I can continue. Now the two other 12 attachments that you provided of the 48 were 47 and 13 48, specifically dealing with the staff's plant-14 specific review of two DCDs, specifically ABWR and the 15 AP-1000. I think Attachment 47 was the ABWR.

16 In the staff's review, they did say that 17 they approved the methodology, which was MAAP 18 methodology. I will point out that the MAAP they 19 approved was the MAAP of the generation ten plus years 20 ago that, you know, people are saying -- you 21 specifically are saying that, you know, it was too 22 old, okay, but the AP-1000 review was much newer, as 23 we all know.

24 Would the conclusion that they reached in 25 Attachments 47 and 48 be generically applicable to a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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363 1 Davis-Besse plant, a Davis-Besse designed plant?

2 You've used the argument in other -- I'm just 3 elaborating on the question a little bit. You've used 4 the argument to say that other things are not in your 5 favor. Other things are not applicable because they 6 were not a Davis-Besse specific plant.

7 In this particular part of your motion, 8 you're taking the exact opposite position. So I just 9 wanted to hear what you had to say about that.

10 MR. O'NEILL: Your Honor, again I would 11 not suggest that the conclusions that are generically 12 applicable to Davis-Besse. I mean I think we wanted, 13 we pointed those out as kind of illustrative examples 14 of cases in which the staff actually has reviewed and 15 accepted an applicant's use of the MAAP code, for a 16 safety-based or safety-related application, you know, 17 that being certification of a new reactor design.

18 JUDGE TRIKOUROS: I mean for example, 19 perhaps we could ask the experts here. Does the MAAP 20 code specifically deal with once-through steam 21 generator designs, which is unique to Davis-Besse as 22 opposed to the ABWR, which of course is a totally 23 different plant, or the AP-1000, which has a U tube 24 steam generator design?

25 MR. HARRIS: Your Honor, I'll give you a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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364 1 preliminary answer, but I may have to get back to you, 2 just to be able to contact my expert at Sandia. But 3 I believe it does handle both, you know, once-through 4 steam generators and U tubes. But I want, I really 5 need to confirm that with the Sandia expert.

6 JUDGE TRIKOUROS: Okay.

7 (Off record discussion.)

8 JUDGE TRIKOUROS: All right. I believe it 9 was in that same evaluation that we just talked 10 about, and also I believe the same argument has been 11 made about license renewals, that in reviewing license 12 renewals the staff has said they like the methodology 13 of a MAAP/MAACS combination, MAACS-2 I guess nowadays.

14 Do you know if the staff did any 15 confirmatory analyses in coming to that conclusion for 16 either the DCDs or the --

17 MR. HARRIS: Well, with respect to the 18 DCDs, I think that, you know, probably the best way to 19 look at it is that it's informative of, you know, the 20 use of MAAP in license renewal, but not -- that it's 21 not necessarily dispositive, is that we look at it, 22 you know, on a site-specific basis.

23 So just because you picked MAAP, doesn't 24 mean that you used it right. So now even if MAAP 25 works, you still could have put incorrect inputs into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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365 1 it and you come up with an anonymous result. So it's 2 not merely a function of the MAAP code, but how that 3 code was implemented.

4 In terms of license renewals, as I had 5 previously stated, all the plants, all the U.S. plants 6 use MAAP for generating their Level 1 and Level 2, 7 generating the source terms that would be put into the 8 MAACS-2 code. So those have been looked at, but I 9 cant' tell you that in a particular one, that there 10 was -- that that particular issue was analyzed in 11 detail.

12 The thing is that the SAMA are peer-13 reviewed; they are reviewed by PNNL. So they are 14 updated from time to time. So they're getting a lot 15 of different eyes to look at it, because of course the 16 plant does its SAMA analysis. Its PRA is peer-17 reviewed, you know, by experts in the field.

18 We looked at it. We tend to actually send 19 it out to either PNNL or Sandia to review it. So 20 you've had a number of different people review the 21 process, and to the extent that we had identified 22 something that would be, make us tend to think that it 23 was not giving us good results, I would imagine that 24 it should have been identified by this point.

25 JUDGE TRIKOUROS: Okay. Now your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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366 1 Attachment 48 is very persuasive with respect to this, 2 because it does specifically say, if I remember 3 correctly, that the staff did confirmatory analyses 4 using MELCOR, if I remember correctly, and found that 5 they would reach the same conclusions as MAAP.

6 MR. HARRIS: And I think that's actually 7 what Mr. Ross also testified to, in terms of the 8 analysis that's been done by -- in his affidavit that 9 he swears to, that analysis has been done between MAAP 10 and MELCOR, looking at both specific effects, that 11 they're very similar, and that yes, if you look at any 12 particular accident scenario, because of the slight 13 differences in the thermohydraulic and physics models, 14 you may get a slightly different answer.

15 But then you're looking at, you know, 16 almost an average of this. When you get to MAACS-2 17 being a Level 3 PRA, we're talking 34 source term 18 groups, not 34,000 source terms that could be 19 generated from whatever accident it is. That gets 20 sort of pushed together, and you get some averaging 21 and to smear that together, there are small 22 differences in the thermohydraulics models for a SAMA 23 analysis.

24 JUDGE TRIKOUROS: Right. That's key for 25 SAMA, right?

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367 1 MR. HARRIS: Right.

2 JUDGE TRIKOUROS: Okay. I wanted to talk 3 a little about uncertainty analyses now. The 4 Commission has said that, you know, they recognize 5 there are areas of inaccuracy in all of these tools, 6 and that they specifically require uncertainty 7 analyses for the purposes of accommodating those, you 8 know, error bands.

9 Is it the position of the staff and FENOC 10 that these uncertainty analyses further add -- well, 11 what is the role of the uncertainty analyses, as far 12 as the reasonableness of using MAAP in a SAMA 13 analysis? Start with FENOC.

14 MR. O'NEILL: This is Martin O'Neill again 15 for the Applicant. Your Honor, I think that the 16 sensitivity studies really tend to kind of investigate 17 the sensitivity of the results, of certain changes in 18 modeling assumptions or inputs.

19 You know, I think as we've explained in 20 our filings, that FENOC followed the NEI-0501 Revision 21 A guidance, and you know, that recommends performance 22 of certain sensitivity analyses, to try to gauge the 23 effect on the ultimate cost benefit results. They 24 tend to focus on individual parameters, maybe discount 25 rates or sometimes site-specific parameters like NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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368 1 evacuation time estimates.

2 So trying to gauge the impact of specific 3 inputs, and we're really not, you know, looking at the 4 Board's question here, Question 5. I don't think 5 you're trying to analyze results of using different 6 codes per se.

7 JUDGE TRIKOUROS: Okay. Go ahead.

8 MR. HARRIS: When you look at this, we 9 have a couple of different things that are done in the 10 SAMA analysis, that some people might classify as a 11 sensitivity or uncertainty.

12 We have the uncertainty that we apply 13 that's a ratio between the mean of the source term to 14 the 95th percentile of the source term produced by 15 MAAP or MELCOR. In Davis-Besse's case, I believe that 16 was a ratio of 1.45.

17 You also have an external events factor 18 that we also apply, because the PRA analyses internal 19 events and based on, you know, analysis, you know, 20 from going back to IPE and IPEEE, we have a good feel 21 for what the external events multiplier is.

22 So that also gets added into the benefit 23 that you might derive from the MAACS-2, and I think in 24 Davis-Besse that's 5.6. But then there's a 25 sensitivity analysis, where we're really looking at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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369 1 various input parameters, as Professor O'Neill said, 2 discount rates, evacuation times that could also 3 impact what that, the overall.

4 When the NRC writes its EIS, we take this 5 uncertainty, including the external events factor, 6 sensitivity cases. So anything that would be 7 potentially cost beneficial, even under the higher 8 discount rates, you know.

9 As we take -- whether it's potentially 10 cost beneficial under the baseline or after the 11 sensitivity, including the uncertainty, you know, we 12 would consider that potentially cost beneficial. So 13 there is a level of conservatism that's trying to 14 account for the uncertainty in the analysis overall.

15 JUDGE KASTENBERG: When I think of 16 uncertainty analysis, I think of some kind of a 17 probability distribution function, and then doing some 18 Monte Carlo simulation and so on. I gather that's not 19 what you're talking about here?

20 MR. HARRIS: There are -- different parts 21 of this are different. So if you look at the 22 uncertainty associated with the source terms, for the 23 ratio from the 95th percentile to the median, you do 24 have a distribution there. So you do, you know, that 25 -- so you have a statistical distribution there.

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370 1 When you look at MAACS-2 overall, in terms 2 of the results because of the weather averaging, which 3 I think again gets to a little bit more of the 4 uncertainty that we're discussing, is that we run 5 multiple weather trial for the same accident, taking 6 from the local file, and that produces a distribution 7 of the impact of a particular accident.

8 If you look at that particular curve or 9 the distribution of that, it's actually a log normal 10 curve. It's not your standard bell curve. So the 11 mean produced from an accident scenario tends to be 12 about the 70th, 75th percentile, somewhere in there.

13 I mean it varies from plant to plant.

14 So the mean is not at the 50th percentile 15 when you look at the overall SAMA analysis. So the 16 uncertainty there is we use the source term to try to 17 capture the uncertainty of the overall analysis. But 18 you have to realize that even when we get to the SAMA 19 analysis, there's uncertainty in the weather. So that 20 is all getting rolled into this particular issue.

21 JUDGE KASTENBERG: So but then in the end, 22 if I understood correctly then, you know, as I read in 23 Attachment 5, you then use what the old civil 24 engineers used to do, and put a safety factor in 25 there. That's your --

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371 1 MR. HARRIS: I think that's a good 2 description of what goes on when you take, you know, 3 we try to account for different discount rates, in 4 terms of the time value of money, different evacuation 5 times. Some plants have chosen to, you know, evaluate 6 no evacuation.

7 So people basically would stay in the 8 plume, and get exposed to the plume, instead of being 9 evacuated out of its way, to try to identify issues 10 that, you know, that in case our estimates are wrong, 11 we have properly accounted for them, to give us a 12 reasonable answer at the end.

13 Then when the staff, we consider at the 14 end, you know, if it was cost-beneficial under the 15 sensitivity analysis, we tend to treat it -- we treat 16 it as a potentially cost beneficial mitigation matter.

17 JUDGE KASTENBERG: Would you like to 18 comment on that?

19 MR. O'NEILL: Yes. Your Honor, I mean I 20 understand that the use of the 95th percentile core 21 damage frequency uncertainty factor that Mr. Harris 22 described can be pretty significant. It can increase 23 -- and I understand this from talking to Dr. O'Kula.

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372 1 know, three to four.

2 JUDGE TRIKOUROS: Your July 16th 3 submittal, I think one of the things it clearly shows 4 is the importance of the analyst, in using, in doing 5 these analyses, and something which the sensitivity 6 analyses really weren't designed to accommodate, but 7 you could certainly argue that they do, to some 8 extent.

9 But the importance of the analyst is very 10 critical, and based on what we've been talking about 11 here in many of these questions, the analyst in SAMA 12 space is not really looked at with the scrutiny that 13 would be given in a design or licensing space. I 14 think that's a fair statement. I think your 15 Attachment 22 certainly defends that statement.

16 I believe that the MAAP code, many of the 17 people who run MAAP in the industry, I think, are PRA 18 practitioners, not necessarily thermohydraulics or 19 severe accident experts. I would not be surprised if 20 many people who run that didn't know what activity 21 runs first.

22 I mean it is a fast-running, simple code, 23 and that's why it's been so popular, because a vast 24 array of people, I believe can use this code. Not 25 necessarily the experts in the organization, or even NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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373 1 an organization without experts can use MAAP. Is this 2 acceptable within the range of the reasonableness 3 criteria of NEPA, that that -- it's understood that 4 this is the situation, but that it's still reasonable?

5 MR. HARRIS: Well, I think it's not the 6 analyst that -- I mean it's the results. When you're 7 looking at NEPA, you're really looking at what's the 8 output of the results.

9 So I mean yes, is it possible that, you 10 know, the analyst who's running MAAP was not, you 11 know, as technically savvy as someone who's, you know, 12 been doing with the MAACS-2 code, which tends to be 13 even a much smaller portion of the population out 14 there in terms of discussing it?

15 It's possible, but the issue is what are 16 the results, not necessarily how qualified the analyst 17 was, you know, and I don't want to say that the 18 analyst wasn't qualified. I don't know. Is that 19 addressing your question? Maybe I don't understand 20 your question.

21 JUDGE TRIKOUROS: Well, I'm not sure what 22 you're telling me. Are you telling me that it's an 23 accident that a good answer comes out of it? Or I 24 mean --

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374 1 saying. I'm just saying that I don't think that the 2 issue to be decided is a function of the analyst the 3 ran code, because you have the analyst that ran the 4 code, you have the people that reviewed the outputs, 5 you know. Is it -- did it produce reasonable results?

6 In this case, it appears to have produced 7 reasonable results when you compare it to the state of 8 the art today, when you compare it to MELCOR today.

9 I mean the staff's witness is a thermohydraulics 10 expert, so --

11 JUDGE TRIKOUROS: So are you telling me 12 that the reasonableness review that's given to these 13 analyses, and I think we've established that that is 14 sort of the level of review.

15 It's reasonable, a reasonableness review, 16 would transcend then any particular analyst issues 17 such as that July 16th submittal, identified 18 specifically in the case of Davis-Besse?

19 MR. HARRIS: I think that's the right 20 answer. I mean when we do this, we're kind of looking 21 for a best estimate analysis. So could there be 22 errors? They were caught, you know. Theirs that were 23 made were caught.

24 If you look at the activities, I know that 25 the -- of course Intervenors described the changes as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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375 1 significant, but it wasn't a major change in terms of 2 the actual source terms, in terms of the overall 3 output.

4 So I guess I'm not discounting that, but 5 it's not necessarily -- it's not dispositive of this 6 issue. The issue is did we produce acceptable source 7 terms for the SAMA analysis that we did. So I don't 8 think you can look at it in isolation.

9 JUDGE TRIKOUROS: So one could say with 10 respect to the analyst issue if you look at a SAMA 11 that was done was MAAP, versus a SAMA that was done 12 with MELCOR, given the complexities and highly 13 unforgiving nature of MELCOR, and the fact that very 14 few people can actually run that code successfully, 15 that the analyst issue between the two codes that 16 were, let's say, the initial contention codes, where 17 they differ, the analyst part of that would be sort of 18 a wash, or at the very least, MELCOR would be likely 19 to produce higher analyst errors than MAAP. Is that 20 a fair statement?

21 MR. HARRIS: I don't know that I can 22 confirm that, because I've not personally ever run 23 MELCOR. So I'm not sure how bad MELCOR is compared to 24 MAAP. Taking Your Honor's suggestion of the level of 25 detail required, assuming that, there's probably more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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376 1 room for that.

2 I mean each one requires different inputs.

3 In fact, that's some of the reasons why people who 4 have prepared MAAP and MELCOR sort of suggested there 5 are some differences when you look at a particular 6 accident, is that you have to control for the 7 different ways MAAP models versus MELCOR.

8 So just taking your numbers from MELCOR 9 into the MAAP code isn't going to get you a comparable 10 result, because it models the accident slightly 11 differently.

12 But when you look at the end, you know, 13 when you look at specific effects, separate effects 14 within there that the models have been very good 15 comparison, and that when you look at the overall 16 results, the results are very good comparisons.

17 JUDGE TRIKOUROS: And would you say that 18 all of this fits under the umbrella of reasonableness?

19 MR. HARRIS: For SAMA purposes, yes. It's 20 under the umbrella of reasonableness. If we were 21 doing it for something else, we would have to apply 22 the appropriate level there. But we're underneath it 23 here.

24 JUDGE KASTENBERG: I wanted to just 25 clarify a couple of items that are in your motion and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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377 1 some statements that you made earlier. In the revised 2 SAMA, do you still come to the same conclusion that a 3 portable diesel battery charger for the DC system is 4 still the one that looks like it might be cost 5 effective?

6 MR. O'NEILL: Yes, Your Honor. That's 7 correct.

8 JUDGE KASTENBERG: That's correct. Would 9 it be right to assume that the dominant accident 10 sequence that this is to mitigate would be a station 11 blackout? Is that what shows up in your analyses? I 12 see all these nods.

13 MR. O'NEILL: My supporting cast is 14 nodding yes, Your Honor, so I will --

15 JUDGE KASTENBERG: Would that be correct?

16 MR. O'NEILL: Yes, yes.

17 JUDGE KASTENBERG: Okay, good. So now I 18 want to come back to NUREG, which I have here, part of 19 NUREG-1465, and a comment that you made about that it 20 only looks at one accident sequence, or one --

21 MR. HARRIS: It gives you a source term 22 that's generic for PWRs and BWRs. It's not, you know, 23 it's not tracing a particular accident through. So 24 MAAP generates a lot of different sort of 25 circumstances.

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378 1 JUDGE KASTENBERG: Well, what I'm 2 concerned about is that in Table 3.2 in the report, 3 they list the number of accident sequences for 4 different PWRs, and in particular they pick out 5 several that were in NUREG-1150, so basically it's the 6 same analysis.

7 But in addition, they added Oconee, which 8 I believe is a very similar plant to Davis-Besse, is 9 that not right? I see a lot of nodding heads back 10 there also, but --

11 MR. HARRIS: Yes, Your Honor.

12 JUDGE KASTENBERG: So it's a similar 13 plant, and they use the TMLB prime sequence, which is 14 station blackout?

15 MR. HARRIS: Uh-huh, yes sir.

16 JUDGE KASTENBERG: That's in here. Yeah, 17 they do. For Oconee they look at two. They look at 18 a LOCA and they look at station blackout.

19 So why wouldn't I be able to use, for the 20 results from Oconee, as a measure, to see the 21 appropriateness of the source term that is being used 22 for Davis-Besse as a check, rather than just 23 discarding this in its entirety and say well, you 24 know, this has no relevance. When I look at it, it 25 seems to me that there is some relevance, so --

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379 1 MR. HARRIS: I guess the issue there is 2 that we're looking for releases to the environment.

3 So the source term calculated in 1465 is a release 4 into containment.

5 JUDGE KASTENBERG: but again, as Judge 6 Trikouros pointed out before, there's a whole chapter 7 in this report devoted to containment mechanisms, 8 different mechanisms in containment that certainly one 9 could use, to ensure that the Davis-Besse source terms 10 are at least in the right ballpark, rather than just 11 discounting this.

12 MR. HARRIS: I wouldn't disagree with you, 13 but I think that that would, it wouldn't -- that if 14 you went back and looked at Oconee at the time, and 15 figured out the source term that they had, and how 16 does that plant compare to Davis-Besse, first you have 17 to validate that the source term released into 18 containment is comparable.

19 Just because it's the same design doesn't 20 mean that you have the same amendments. So each 21 plant, you know, over the years has changed their 22 design basis from making amendments. So not every 23 plant's going to act the same. They could have, from 24 IPE and IPEEE and I can't tell you now whether or not, 25 you know, the improvements that they may have made NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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380 1 were different.

2 But the fact that they chose to implement 3 a mitigation measure from IPE or IPEEE that's 4 different than what Oconee chose to implement, that 5 their risk profile has changed drastically. So it 6 would be possible to go back and look at that, but it 7 becomes very challenging to look at it, you know. Why 8 should I look at something that's 20 years old, when 9 I can look at the plan as it exists now.

10 Then you have the whole issue of well, 11 what are the containment, the ways that, you know, 12 that containment may fail, because at first, you know, 13 what are they crediting in their SAMA analysis? In 14 Davis-Besse, they don't credit the shield building, 15 you know, or any of the impacts of the shield building 16 in terms of mitigating a release.

17 So it's not totally without worth to look 18 at it, but I think that it would be very difficult to 19 draw and go "I'll just use Oconee's" and go "that's 20 acceptable for Davis-Besse." The staff would have 21 serious reservations, if someone just took another 22 plant from somewhere else and took their source terms, 23 you know.

24 We want to know how their procedures and 25 their plant components, the way they've installed it, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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381 1 will impact the source term that they get, and the 2 plants, even of similar designs and similar vintages, 3 over the last 30 to 40 years, they've departed from 4 being the same.

5 So you would have -- as Mr. Ross said, I 6 mean you could try to account for these different 7 types of mechanisms that would remove contaminants out 8 of it, if you took Oconee's and put it into Davis-9 Besse's containment. But I'm not sure that you're 10 getting a very good, you would get a reasonable source 11 term from that because, you know, which accident 12 scenario, the timing of the accident, when the 13 procedures.

14 Those are very important to figure out, to 15 figure out what the initial source term that's going 16 to be released. You know, timing of when the vessel 17 would breach, containment spray kind of issues, how 18 much flooding might be in, on the floor mat, those are 19 all, those are some more plant-specific than just 20 trying to substitute theirs.

21 So it gives us an idea that yes, we're in 22 the ballpark, and that's one of the things the staff 23 does try to do, is to look. Does this source term 24 compare to source terms that we received from other 25 plants? And the same thing, we do that with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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382 1 mitigation measures.

2 We tend to ask well, why didn't you try 3 this mitigation measure because we've seen another 4 plant, you know, use that mitigation measure and it 5 was potentially cost beneficial. So we do try to use 6 that experience that the staff has generated from 7 looking at all these things, to account for these 8 things.

9 But I think it's that, trying to compare 10 an in-containment source term that's 20 plus years old 11 to, you know, a source term that's released to the 12 environment. It's probably not really worthwhile as 13 a way to expend the resources to do that. It's not 14 going to tell you very much.

15 JUDGE KASTENBERG: Does FENOC want to 16 answer this?

17 MR. O'NEILL: Yeah. I mean I think we 18 fully recognize that there were, you know, seven 19 plants that were, you know, considered in developing 20 the accident phases or release phases in NUREG-1465, 21 as well as the source term information.

22 But again, I have to echo what Mr. Harris 23 said, you know. It is ultimately a plant-specific 24 SAMA analysis, and I think in our motion, there's a 25 very apt quote from the Commission.

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383 1 There would be very little point in doing 2 a, you know, site-specific SAMA analysis if you just, 3 you know, adopted wholesale generic source term 4 values. The thing is 1465, it's true. I agree 5 wholeheartedly that it discusses fission product 6 retention mechanisms.

7 But it doesn't actually attempt to 8 quantify them, and that's exactly what the MAAP code 9 does, and it does it on a plant-specific basis, taking 10 into account design features, containment sprays, 11 ventilation systems.

12 JUDGE KASTENBERG: One last question about 13 1465. In your motion, you make a statement that this, 14 I'm not exactly sure; I don't have the exact wording 15 of your statement, but it's something like well, this 16 is only -- this doesn't apply to current generation 17 reactors. It only applies to future reactors, and 18 that's part of your argument.

19 Yet when I read it, basically there is a 20 statement in here. It says, in the abstract, it says 21 "This revised source term is to be applied to the 22 design of future light water reactors." but as far as 23 I can tell, this is not a regulatory requirement.

24 This is just, I would assume these 25 authors, wherever they reside, I'm not sure if they're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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384 1 the staff or one of the national laboratories, come to 2 the conclusion that well, you know, use it for future 3 reactors and so on and so forth.

4 So I guess my question to you is is there 5 a regulatory requirement, that you can't use this for 6 existing reactors, or what's the basis for the 7 statement that this is not applicable to existing 8 reactors when seven of the reactors in here are all 9 existing reactors?

10 So again, it seems like kind of a circular 11 argument to me. Maybe you can uncircular it for me.

12 MR. HARRIS: Your Honor, I mean it's 13 voluntary for existing reactors, I believe, under 14 50.76, where existing -- 67, I'm sorry. I flipped the 15 number, 50.67, that they can choose to use it going 16 forward, and of course we do offer, you know, the 17 reactors themselves can come up with alternate source 18 terms, you know, as a possibility.

19 So but plants that had, were licensed 20 before that go back to --

21 JUDGE KASTENBERG: That's TID 14844?

22 MR. HARRIS: Yes sir.

23 MR. O'NEILL: Your Honor, I think in our 24 case, we were reacting to that express language, you 25 know, that it makes a reference to future reactors.

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385 1 JUDGE KASTENBERG: but there's no 2 technical or regulatory reasons why you couldn't, if 3 you wanted to use it. I think that's the point.

4 MR. HARRIS: but there's no requirement 5 for them to use it. We can't make them adopt NUREG-6 1465.

7 JUDGE KASTENBERG: Right, I got it.

8 JUDGE TRIKOUROS: Okay. Now getting to 9 the affidavit, the Dr. Ross affidavit from the staff, 10 the statement is made that, I believe this is on pages 11 12 to 13 of the affidavit, that the -- once the source 12 terms were compared on a consistent basis, now this is 13 referring to MAAP versus -- the FirstEnergy MAAP 14 analysis versus NUREG-1150.

15 MR. HARRIS: Right.

16 JUDGE TRIKOUROS: "Once the source terms 17 were compared on a consistent basis, including looking 18 at the entire statistical distribution of the source 19 term and the type of accident, it is apparent that the 20 source terms generated by FirstEnergy using [MAAP]

21 therefore are comparable with NUREG-1150, and actually 22 produced higher amounts of the key radionuclides of 23 concern in some accident calculations."

24 MR. HARRIS: Your Honor, I mean I would 25 point to page 13, which has the nice chart, you know, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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386 1 sort of comparing the -- cesium and iodine tend to be 2 the most dominant, you know, nuclides for off-site 3 dose and for off-site economic impact. So you know, 4 it has those two sort of roughly compared for mean and 5 median and the percentile.

6 JUDGE TRIKOUROS: Right, and so you're 7 using this as an argument that MAAP gives, is 8 conservative relative to the NRC codes used in 1150, 9 or are you using this as an argument to argue that 10 it's reasonable to use MAAP?

11 MR. HARRIS: We're using it as an argument 12 that it's reasonable to use MAAP, and we're reacting 13 to, you know, the identification in draft NUREG-1150, 14 where Intervenors had pointed out to -- there had been 15 section in it discussing that MAAP generated in 16 obviously low source terms.

17 But of course, that didn't carry over into 18 the final version of NUREG-1150. So we wanted to put 19 into perspective, because if you look at the draft, it 20 appears that they took a -- not a worse case accident 21 but a very bad accident, and then compared it to the 22 mean, which when you do that, you just can't --

23 there's not, you can't learn anything by sort of 24 comparing one particular accident scenario from a 25 group of accidents.

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387 1 JUDGE TRIKOUROS: Which then really goes 2 to the reasonableness argument?

3 MR. HARRIS: Right. So yes. It's the 4 reasonableness argument, that it produces, you know, 5 essentially the same source terms when you look at 6 BWRs and look at the full spectrum of accident 7 scenarios.

8 JUDGE TRIKOUROS: Okay, and could you just 9 give us some quick idea of what was done, with the 10 words "consistent basis." What, could you give me 11 some idea what that was?

12 MR. HARRIS: If you look back at the draft 13 NUREG-1150, I believe it was comparing Sequoyah to 14 Catawba, in terms of the runs and just let me get --

15 just one second. When you looked at it, there were 16 different accident scenarios that they were comparing, 17 and in terms of the MAAP, they were looking at a 18 source term group instead of a particular accident 19 output.

20 So what Mr. Ross did is he went back to 21 look at the data, because the data's in the final 22 NUREG-1150, in terms of these source term groups, and 23 then plotted the full spectrum of the source terms 24 produced in the NUREG-1150, and then also took the 25 source terms that were used in Davis-Besse and plotted NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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388 1 them on that same graph.

2 In this particular case, he was looking, 3 I believe, at the long-term station blackout source 4 terms for the chart that's on 13. Does that --

5 JUDGE TRIKOUROS: Okay. If I were to ask 6 you if that same consistent basis analysis were done 7 for other plants SAMAs, would you say that the answer 8 would be consistently the same?

9 MR. HARRIS: I mean there would be 10 variations between plants. I mean it's not that 11 they're all going to produce the same. But then he 12 went to do the SOARCA analysis, which looks at Surry 13 and Peach Bottom, and again the Davis-Besse numbers 14 came out roughly the same.

15 So now at that point, we've looked at five 16 plants over 20 plus years that were PWRs, and they 17 produced similar results. So I wouldn't say -- I 18 wouldn't want to say that they're going to be 19 identical.

20 JUDGE TRIKOUROS: So the combination of 21 MAAP-producing source terms so they're consistent with 22 other codes, in combination with the required 23 sensitivity analyses?

24 MR. HARRIS: Do you mean uncertainty or 25 sensitivity?

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389 1 JUDGE TRIKOUROS: Well, the uncertainty 2 analyses are expressed by the sensitivity studies that 3 are done, right?

4 MR. HARRIS: There are two separate parts.

5 The uncertainty is applied to both the baseline and 6 then to the actual sensitivities. So we have 7 uncertainty, that's that ratio from the 95th 8 percentile to the mean, plus the external events 9 factor, which is applied to both the baseline analysis 10 and the sensitivity analysis, and then we do separate 11 sensitivity analysis from the baseline.

12 JUDGE TRIKOUROS: Okay. Well, I was 13 referring more to the sensitivity analyses that are 14 done, in combination with your assertion that if you 15 look at things on a consistent basis, MAAP produces 16 results that are comparable to other codes, which goes 17 directly to the initial contention.

18 MR. HARRIS: Right.

19 JUDGE TRIKOUROS: And you're telling us 20 that that is -- that shows that MAAP is a reasonable 21 code to use for NEPA?

22 MR. HARRIS: Yes sir. Yes. It's a 23 reasonable code for the purpose we're using it here.

24 JUDGE TRIKOUROS: All right.

25 JUDGE FROEHLICH: We've had quite a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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390 1 discussion, I guess, of the reasonableness of the 2 source term. One of the three bases, for lack of a 3 better word, in the admitted contention. I know that 4 there was the subject raised, that these codes have 5 not been adequately validated.

6 I'd like to -- well maybe I should have 7 Mr. Lodge give me the thrust of what you're looking 8 for, I guess, for validation. What kind of regulatory 9 requirement, that there be some specific sort of 10 validation, or are you looking to challenge the fact 11 that this code hasn't been widely benchmarked?

12 Could you just elaborate a little bit more 13 on the validation aspect of the admitted contention 14 basis?

15 MR. LODGE: Mr. Kamps is going to answer.

16 JUDGE FROEHLICH: Oh, thank you.

17 MR. KAMPS: Thank you. I think the thrust 18 is, and it gets back to a lot of the discussion we've 19 been listening to, is we are concerned that the most 20 conservative approach be taken. That's why we pointed 21 to NUREG-1465 in certain regards.

22 So the validation that we're looking for 23 is a reality-based realization as to how bad the 24 source term could be, the actual release into the 25 environment that actually blows on the wind and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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391 1 actually flows with the water, enters the food chain.

2 So validation, that's why we're looking 3 for independent validation, and we're concerned that 4 even NRC does not provide that independent validation.

5 That's why we're bringing these criticisms to the 6 codes that are being discussed.

7 Unfortunately, there's not a code that 8 exists, that accurately is depicting what can happen 9 in Davis-Besse. Already, the cracking of the 10 containment has been ruled out of scope, corrosion of 11 the steel containment vessel.

12 So we are concerned that validation would 13 include actual independence applied to these codes, 14 and the most conservative code possible. That's why 15 we brought up what we have in this contention.

16 JUDGE FROEHLICH: I assume the Applicant 17 and staff have a different definition of validation?

18 MR. O'NEILL: Yes, Your Honor. As I 19 mentioned before, I think for purposes of a NEPA 20 review, you know, we're looking at the completeness 21 and reasonableness of the assessment. I mean I think 22 we tend to gain some insights from the safety arena 23 and V&V or validation and verification in that context 24 tends to focus on the correctness and suitability of 25 the code, you know.

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392 1 Are we using the correct code for the 2 application in hand, and was the code properly 3 developed, you know, for that purpose.

4 MR. HARRIS: And Your Honor, just to touch 5 on it, NEPA's not a worst case analysis. So if you 6 take all, if you make it as conservative as possible, 7 we've sort of gone outside the realm of NEPA, where 8 we're trying to conduct a reasonable analysis and 9 anticipate what's going to happen to really a worst 10 case analysis that, you know, is really inappropriate 11 for a NEPA discussion in this particular case.

12 In terms of validation, Mr. Ross 13 identified a number of articles where people have 14 looked at MAAP and MELCOR and on the thermohydraulic 15 effects. It's very difficult. There's not a lot of 16 severe accidents that have been experienced, even in 17 light of what's recently occurred.

18 So MAAP, you know, MELCOR has been 19 validated against what TMI has done, and they're in 20 the process of looking at that even in Fukushima, in 21 terms of I believe MAAP has been used by TEPCO and the 22 Japanese, looking at trying to validate the source 23 terms and see if they would produce the right source 24 terms for that.

25 But when you look at them, you know, on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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393 1 these separate effects, we found that they're roughly 2 comparable. So to the extent that we can benchmark it 3 against real events, you know, it has been benchmarked 4 against the events that we would experience. But we 5 look at, we tend to look at more isolated issues 6 within the code to validate and benchmark, because you 7 don't have a lot of comparisons.

8 JUDGE TRIKOUROS: Well, let me -- so let 9 me get -- we went through each of these attachments, 10 and some questions got generated. But let me address 11 Attachment 20 for a moment, with respect to what we 12 just heard.

13 You know, Attachment 20 is dealing with 14 all of the benchmarks that were done for the MAAP 15 code, and you know, apparently there are many, many of 16 them. But two points I just wanted to, two questions 17 I want to ask regarding that.

18 Number one, were those all -- was there 19 independence at all in any of that, or was it -- were 20 they done by a party that would not be considered 21 independent, such as FAI, for example? Were there 22 other -- I haven't -- you didn't offer that up as a --

23 MR. HARRIS: I was concentrating more on 24 what Mr. Ross, you know, the independent articles. I 25 think in terms of the MAAP application guidance, it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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394 1 does list all that. But I think I would tend to want 2 to defer to FirstEnergy to answer who did the peer 3 reviews for that.

4 MR. O'NEILL: Your Honor, it's my 5 understanding during the kind of initial development 6 of the codes, there was definitely some --

7 JUDGE TRIKOUROS: That what?

8 MR. O'NEILL: The design review of the 9 code, I thought our experts testified to that effect.

10 In terms of who exactly, you know, offered to carry 11 out all the validation or V&V type efforts in that 12 attachment, I do not know. I'd have to, again, go 13 back and review it myself.

14 JUDGE TRIKOUROS: The Attachment 20 15 specifically, you know, refers to the MAAP4 16 benchmarking in the code manuals that come with the 17 code. They all refer to Level 1 phenomena. Clearly 18 what we're speaking about here is Level 2 phenomena.

19 What would you -- what argument would you make for 20 that? Do the Level 1 phenomena benchmarking help us 21 at all in understanding the reasonableness of the use 22 of MAAP?

23 MR. O'NEILL: You know again, I think to 24 the extent that the SAMA analysis draws from Level 2 25 PRAs, I mean I think that's a relevant consideration.

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395 1 You know, I also point back to, you know, the recent 2 state of the art for reactor consequences analysis 3 assessment in the comparison that Mr. Ross provided in 4 his affidavit.

5 I think that's a very on point comparison 6 because it involves, you know, again two contemporary 7 codes, MAAP4 and MELCOR, and comparable plant designs.

8 I think the Davis-Besse and the Surry PWR, and you 9 know, we see reasonable agreement.

10 JUDGE TRIKOUROS: Okay.

11 (Off record discussion.)

12 JUDGE FROEHLICH: It see it's approaching 13 the noon hour. My colleague tells me he has more 14 questions on a slightly different line. This might be 15 an appropriate time to take a luncheon recess. I 16 would propose an hour, if that's satisfactory and 17 sufficient for everyone, and I would say that we'd 18 come back at five minutes after 1:00 and continue with 19 Contention 4.

20 (Whereupon, at 12:02 p.m., a luncheon 21 recess was taken.)

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396 1 A F T E R N O O N S E S S I O N 2 12:02 p.m.

3 JUDGE FROEHLICH: Please be seated. We'll 4 be back on the record. You want to go?

5 JUDGE TRIKOUROS: Please. Well, I think 6 we're almost done here with summary disposition, but 7 one of the attachments that was submitted with the 8 motion was Attachment 44. It was a paper in Nuclear 9 Engineering and Design magazine. It dealt with a 10 severe accident analysis of a PWR station blackout 11 with the MELCOR, MAAP4 and SCDAP/RELAP-5 code.

12 So it was a comparative analysis, and I 13 guess it gave reasonable comparisons. But it made a 14 statement, it's on page 130 of the paper. It made a 15 statement regarding MAAP4.

16 It said "MAAP4 has been shown to produce 17 credible results for several severe accident 18 scenarios, despite relatively poor spatial 19 nodalizations, and run times two or three orders of 20 magnitude, two or three orders of magnitude shorter 21 than those of MELCOR and SCDAP/RELAP-5.

22 "However, many aspects of MELCOR are not 23 publicly available, such as details of the models, and 24 there is interest in why such a seemingly simpler code 25 can perform so well." This has come up many times, a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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397 1 very simple code, easy to run, runs enormously fast, 2 three orders of magnitude. It's 1,000 times faster 3 than MELCOR, is being used to do everything, every 4 single aspect of reactor analysis, for the most part, 5 other than anything neutronic, I think.

6 Is there any comment on that, regarding 7 its use for SAMA?

8 MR. HARRIS: I'm not sure how to comment 9 on that. I mean there's --

10 JUDGE TRIKOUROS: It's your -- you 11 submitted this, I didn't.

12 MR. O'NEILL: Right. If that's a softball 13 maybe. Well, no. I mean, you know, its seems the 14 code has, you know, been very effective, I can't speak 15 to why it performs so much more efficiently or faster.

16 But it certainly seems that if it's achieving 17 reasonable, comparable results to MELCOR, then it's 18 reasonable for use in the SAMA analysis.

19 JUDGE TRIKOUROS: It seems like a free 20 lunch. It's just interesting. I understand. I mean 21 it's been run by a lot of people in a lot of 22 applications, and it does seem to give credible 23 answers and to date, there apparently has not been any 24 major issue associated with it. But I was wondering 25 if that has any, if that has any impact on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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398 1 reasonableness argument.

2 MR. HARRIS: Your Honor, I don't think it 3 has any impact on the reasonableness argument. But I 4 think it goes back to our atmospheric dispersion and 5 the Gaussian plume model, which I believe when we were 6 first here, talking about how simple the Gaussian 7 plume model is, that is produces reasonable results 8 for, especially for the purposes that we're using.

9 You don't need necessarily a 3D Lagrangian 10 tracking model to figure out where the contamination's 11 going. So there's a limit to how far do you need to 12 go to get an answer that's reasonable, and refining it 13 at the, you know, 9th significant digit may not be 14 really that important. I don't want to say that it's 15 at the 9th, but --

16 JUDGE TRIKOUROS: Yeah. So really these 17 SAMA analyses that we're talking about are really both 18 forgiving, in the sense that the tool you would use to 19 perform these analyses doesn't have to have the 20 analytical rigor of a MELCOR, for example, and can be 21 set up to be fairly easy to run. Is that really the 22 answer that comes out of this, that the forgiving 23 nature of these SAMA analyses perhaps?

24 MR. HARRIS: Right, and I think the 25 Commission sort of highlighted that too, in terms of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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399 1 what we're trying to look at, is that we're really 2 looking for something that would change the outcome of 3 the analysis at the end, and what we're arguing about 4 right now is really sort of an intermediary step. So 5 just because there's some variation there doesn't mean 6 that it actually will impact appreciably which ideas 7 are going to become cost beneficial.

8 JUDGE TRIKOUROS: Yeah. But this paper 9 that you gave us apparently came out with a very good 10 answer for your case, but you know, made it clear that 11 they didn't quite understand why, which I thought was 12 interesting.

13 MR. O'NEILL: Yeah. But I think, you 14 know, functionally it could be too, and the MAAP code 15 being a proprietary code, and I don't know if the 16 studies had access to all the assumptions. But --

17 JUDGE TRIKOUROS: I suspect that if they 18 had access to it, that they might -- no, I think they 19 might not have the answer they think. But no, that's 20 interesting. At this point, that's just speculation 21 anyway. All right.

22 (Off record discussion.)

23 MR. HARRIS: Your Honor, I just wanted to 24 clarify something I said I was going to check on 25 later, is that we had asked about whether the MAAP NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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400 1 code models once-through steam generators, and it is 2 capable of modeling once-through steam generators.

3 It's not solely confined to U tubes.

4 JUDGE TRIKOUROS: Capable of modeling a 5 once-through steam generator?

6 MR. HARRIS: Yes. I believe it's --

7 JUDGE TRIKOUROS: Yeah.

8 MR. HARRIS: --you know, either a module 9 or the way they put in the inputs. But it has been 10 done to model once-through steam generators before.

11 JUDGE TRIKOUROS: I understand that it's 12 been done.

13 MR. O'NEILL: I did confirm with our 14 experts that was in fact done for the Davis-Besse code 15 runs.

16 JUDGE TRIKOUROS: I guess the last thing 17 we wanted to put on the record was the discussion 18 about benchmarking versus validation. Could you each 19 address that? I know in your submittals to, in your 20 motion, you specifically use the word "benchmarking" 21 with respect to MAAP, that MAAP has been quote-unquote 22 "extensively benchmarked."

23 The Intervenors have been raising the 24 issue of independent validation. Could you say 25 something about the differences between that, if there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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401 1 are any?

2 MR. O'NEILL: Your Honor, I mean I think 3 that the statements that we made used the terms 4 interchangeably. But I mean benchmarking, you know, 5 at least in my understanding, is when you attempt to 6 compare, you know, two comparable quantities or codes, 7 you know. How do they compare in kind of modulating 8 or simulating the same type of phenomena.

9 You know, a good example, I guess in the 10 case of MAAP is that, you know, it's been compared to 11 MELCOR in a number of different studies, as well as to 12 transient data and the TMI-2 core sequence event. You 13 know, it's been benchmarked against that.

14 You know, the staff's expert, Mr. Ross, 15 actually said well, MAAP4 maybe had not been validated 16 by the NRC, you know. It has been extensively 17 benchmarked. I mean I think he used that term as 18 well. It's not entirely clear to me what the 19 Intervenors are defining as validation, you know, 20 whether they envision the undertaking of a formal NRC-21 funded study.

22 But that is not the agency's normal 23 practice, as Mr. Harris pointed out. You know, they 24 have limited resources and they tend to review use of 25 codes, whether it's in the design licensing basis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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402 1 contracts or the SAMA analysis contracts on a case-by-2 case basis.

3 MR. HARRIS: For the NRC, we sort of 4 treated this validation and benchmarking to be 5 slightly different things. It appeared to us, and I 6 don't want to put words in the Intervenors' mouth, 7 that they were looking for it to be someone to have 8 signed off "yes, you can use MAAP or MELCOR for this 9 particular purpose," sort of wanted the NRC to do 10 that.

11 Whereas benchmarking is comparing it 12 against, and you can compare it against other models, 13 you can compare it against known data for 14 benchmarking. You know, as we've discussed a lot, 15 benchmarking has been done a lot between the models.

16 It's been done on separate effects.

17 So various thermohydraulic effects would 18 then -- we've done that particular kind of stuff. So 19 we were trying to answer the benchmarking question, 20 which seems more appropriate, because we're normally 21 not in the business of saying that this particular 22 model, especially for NEPA purposes, is the model to 23 use.

24 JUDGE TRIKOUROS: Okay. So what you're 25 saying is that for safety purposes, licensing design NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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403 1 basis purposes, codes that are used for that, for 2 those analyses tend to be validated methods for 3 utilization in those analyses?

4 MR. HARRIS: I think in general, yes. You 5 look at it for like the pressure temperature limits, 6 the codes that they used to develop those for each of 7 their fueling cycles, are codes that have been signed 8 off through safety evaluation reports, and then the 9 licensees generate the appropriate pressure 10 temperature limits for that particular refueling 11 cycle, as an example.

12 It doesn't mean that a plant couldn't come 13 in with an alternative code to try to justify 14 something. It would just require more review than one 15 that has been previously approved.

16 JUDGE TRIKOUROS: Okay. So for NEPA 17 purposes, all that is required is that the staff 18 approve the code for that SAMA analysis application?

19 MR. HARRIS: I wouldn't say it, that we 20 approved the code for that particular application.

21 It's that, you know, for under NEPA purposes, it's a 22 reasonable review and a hard look. So what we're 23 looking at is not the code, but the results, you know.

24 So we're trying to generate, and I understand that 25 those are not completely separate, you know.

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404 1 But we're trying to disclose what's the 2 expected consequences of an accident. We're not 3 trying to approve the code.

4 JUDGE TRIKOUROS: but you are saying that 5 the code need not be valuated for use in a NEPA-6 related SAMA analysis?

7 MR. HARRIS: That's correct.

8 JUDGE TRIKOUROS: And that in your -- in 9 the FENOC Motion for Summary Disposition and in the 10 NRC staff answer, the word "approved" is used fairly 11 often, in the sense that it's been approved for 12 license renewal application, SAMA analysis for license 13 renewal has been approved for the AP-1000 DCD. The 14 word "approved" shows up.

15 MR. HARRIS: It may have been inartfully 16 drafted if we used "approved." I think we were really 17 trying to say that it has been used previously, and 18 the results have been found to be acceptable in those 19 cases. So it's not a generic approval.

20 JUDGE TRIKOUROS: So would you say it's 21 adequate?

22 MR. HARRIS: Yes.

23 JUDGE TRIKOUROS: Maybe that's the right 24 word, that from your viewpoint, it's adequate?

25 MR. HARRIS: Yeah. Yes sir.

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405 1 JUDGE TRIKOUROS: All right. So they 2 specifically say we approve the use of the MAAP/MAACS-3 2 combination. So maybe they're not approving the 4 code; they're approving the use of the code, of the 5 MAAP code with respect to MAACS-2; is that what you're 6 saying, that there's a different --

7 They're not approving the code in the 8 sense of having validated it, but they're approving 9 the code for utilization for that purpose?

10 MR. HARRIS: It's been -- I guess it would 11 be it's been accepted in other license renewals for 12 generating source terms that gave us a reasonable SAMA 13 analysis. So MAAP is fairly early. I mean it's a 14 Level 1, Level 2 and really when we're looking at the 15 SAMA analysis, we are looking out here at this Level 16 3 expected value of the accident.

17 So it has been accepted for use in 18 previous license renewals using the MAAP-generated 19 source terms, in combination of MAACS-2 or MAACS, 20 depending on, you know, which plant, and I'm not sure 21 whether or not the plant's -- one of the earlier 22 plants may not have been on MAACS as opposed to MAACS-23 2. But it's not an approval of MAAP generally.

24 JUDGE TRIKOUROS: All right, okay.

25 JUDGE FROEHLICH: And the Intervenors, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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406 1 would you like to speak to this issue?

2 MR. LODGE: The issue of validation?

3 JUDGE FROEHLICH: Validation versus 4 benchmarking.

5 MR. LODGE: Well, we looked up the term 6 "valid," and the first definition is "sound, just and 7 well-founded." The second definition is "producing a 8 desired result." We believe that you might be arguing 9 different definitions here.

10 We believe that the computer code is a 11 tool, but it is a tool that is reliant on the 12 information that is incorporated into it, and it can't 13 go beyond -- it doesn't know more than the human 14 beings who are supplying the data.

15 For instance, you can get a result if you 16 put in the wrong wind direction or the right wind 17 direction, and the code simply delivers the result.

18 It delivers a desired result either way. It crunches 19 the numbers. Pardon my arts and crafts background, 20 but what I continue to see here is that the 21 Intervenors are outside the looking glass.

22 JUDGE TRIKOUROS: Well, Mr. Lodge, I mean 23 wind directions can be any direction. It's like a 24 spellcheck or checking the word that is an existing 25 word, but happens not to be the word you meant. It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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407 1 can't find that.

2 MR. LODGE: Right.

3 JUDGE TRIKOUROS: And similarly here, 4 since wind directions can be in any direction, you put 5 in a wind direction the tool doesn't know what you 6 meant.

7 It knows that it, you know, it doesn't 8 have anything to throw it out with, you know, so to 9 speak. So I'm not sure where you're going with that.

10 The tool couldn't possibly know what the true wind 11 direction is for that application.

12 MR. LODGE: Which is exactly our point.

13 If indeed, as Mr. Harris indicates, they don't really 14 have -- the NRC is not in a position, nor expected to 15 validate the code, but to validate the results 16 obtained from it. Our contention, essentially our 17 argument is that the results are not reliable because 18 they are incomplete. They do not rely on the data.

19 Mr. Harris also indicated that it's not 20 just reasonableness that we're talking about 21 underneath that. We are talking about the hard look, 22 and the hard look is not present in a rather esoteric 23 skew of candidates, only one of which seems to be cost 24 beneficial, but which is not inclusive of a much, we 25 think, a larger field of potential candidate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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408 1 scenarios.

2 JUDGE TRIKOUROS: I guess I'd like to hear 3 the staff and FENOC comment on the hard look comment 4 that Mr. Lodge just made.

5 MR. HARRIS: I mean, Your Honor, a hard 6 look is that we've taken a look. It is one of the, 7 you know, available codes. There are not very many 8 codes. We look at this is not something that you can 9 simply, you know, sit down and go "I think the 10 accident" without running some sort of analysis and go 11 "This is what I think's going to occur."

12 I need to generate information, you know, 13 to be able to look at these low probability events, 14 and how they're going to potentially impact the 15 environment. So we need to one, have looked at it, 16 done a reasonable analysis of it, to identify what the 17 issues are. We have some limitations in terms of what 18 we do. We try to account for that in terms of its 19 uncertainty, and that's the hard look.

20 We also, I mean we also ask them to 21 evaluate, you know, additional SAMA candidates that 22 have been evaluated elsewhere, that other plants have 23 identified as potentially cost beneficial. Those are 24 the kind of things that we do.

25 We do ask questions about, you know, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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409 1 inputs that they've done, you know, the cost that 2 they've suggested, and you know, normally we also will 3 ask for additional sensitivity studies related to the 4 SAMAs, where we've seen those issues in other plants.

5 There's not a lot more that you can do, in 6 terms of trying to do this analysis in any other way, 7 you know. They don't seem to point to an error. I 8 mean he just suggested that -- Mr. Lodge just said 9 that there are other SAMA candidates that, you know, 10 could be put into cost beneficial.

11 Intervenors in other proceedings, I 12 believe in Limerick, identified SAMA candidates that 13 they thought were potentially cost beneficial. Here, 14 we're left with nothing.

15 MS. SUTTON: Your Honor, Kathryn Sutton 16 for the Applicant. In addition, just from a purely 17 legal basis, I think Mr. Harris has described what the 18 staff does in terms of its hard look. But there's 19 some very important case law from the United States 20 Supreme Court, New York v. Kleppe, 429 U.S. 1307 and 21 1311.

22 It says "While agencies are required to 23 take a hard look, an EIS does not have to be so all-24 encompassing in scope that the task of procuring it 25 would be well nigh impossible." I think that's in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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410 1 large part what NRC is being asked to do here.

2 In addition, the Commission itself has 3 said in the Pilgrim case from 2010, I know there's 4 many; CLI 10-11, there will always be more data that 5 could be gathered or could be analyzed. But agencies 6 enjoy the discretion to draw the line and move forward 7 with decision-making, and we think that's what called 8 for here.

9 JUDGE FROEHLICH: That concludes the 10 Board's questions, at least up until this point, on 11 Contention 4. We have put in our notice to the 12 parties that we would like to hear closing arguments 13 on this, limited to approximately five minutes.

14 It would be helpful to us, in your closing 15 arguments, if you could address the standards under 10 16 C.F.R. 2.710, Motions for Summary Disposition, and 17 address whether or not there are any genuine issues of 18 material facts that remain, and with that, that focus 19 or direction, if you could address the three bases 20 that the Commission has accepted and set forth for 21 hearing, that they would allow to go forward to 22 hearing, but for the Motion for Summary Disposition.

23 The Board must find as its responsibility 24 to make sure that the high standard for summary 25 disposition is met, based on both the motion itself NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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411 1 and the answers that were filed, even in the case 2 where an answer was filed and was ultimately not 3 accepted.

4 I don't know if it would be helpful to the 5 parties if you want to take ten minutes to collect 6 your thoughts on this and then proceed with closing 7 statements, or if you would prefer to go to it now?

8 MR. HARRIS: Speaking for the staff, I 9 think ten minutes would be appropriate.

10 JUDGE FROEHLICH: Okay. My colleagues 11 suggest 15, so that we can bring this to closure.

12 JUDGE TRIKOUROS: I want to say for 13 cogency.

14 JUDGE FROEHLICH: Okay, thank you. Then 15 we'll take 15 minutes, and we'll resume with closing 16 arguments on the Motion for Summary Disposition of 17 Contention 4.

18 (Whereupon, the above-entitled matter went 19 off the record at 1:32 p.m. and resumed at 1:50 p.m.)

20 JUDGE FROEHLICH: Please be seated. We'll 21 be back on the record. Since the Applicant, the 22 proponent of the motion, has the right to close, we'll 23 hear first from the Intervenors.

24 MR. LODGE: Thank you members of the Panel 25 and opposing counsel. We would like to thank NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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412 1 FirstEnergy for correcting the multiple problems with 2 their original SAMA analysis by the July 16th, 2012 3 correspondence.

4 The question that comes to mind is as 5 FirstEnergy was going to all of the trouble of making 6 those corrections, which were critical corrections to 7 me, how is it that one would not include serious 8 analysis and discussion and inclusion of the status of 9 the shield building in that analysis?

10 This morning we heard references to 11 conformance with licensing basis. It's our 12 understanding that Davis-Besse, as to its shield 13 building, is out of conformance with its licensing 14 basis, and in fact on December 8th, 2011, Abdul 15 Sheikh, an NRC engineer, said "Davis-Besse's shield 16 building has not been designed for containment 17 accident, pressure and temperature."

18 It's also our understanding that 19 FirstEnergy is not required until next month, until 20 December 2012, to explain how the implementation of 21 what I gather is an aging management plan, will 22 restore the plant to its licensing basis.

23 Judge Trikouros made reference to the 24 "forgiving nature" of these SAMA analyses. The 25 Intervenors are concerned about the unforgiving nature NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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413 1 of an unanticipated or not fully anticipated accident 2 scenario. If the wind blows thataway, that's the 3 direction to Cleveland. If it blows this way from 4 Davis-Besse, it's toward Toledo. If it blows that 5 way, it's Detroit; that way, it's Columbus. These are 6 not distant places.

7 The data matters. The reality that is 8 reflected in the data, which is then encoded and 9 analyzed, matters considerably. So you do need to 10 know which way the wind blows. When there's 11 discussion of the probability risk assessment, 18 12 months or so ago no one would have imagined what the 13 probability would have been that there would have been 14 three reactors exploding in Japan, or a spent fuel 15 pool teetering on the edge at the same installation.

16 What were the probabilities before several 17 of the famous or infamous problems and accidents at 18 Davis-Besse, such as the hole-in-the-head problem in 19 2002? What was the probability of that? It was very 20 low. Probability risk assessments only talk about 21 frequency. They do not talk about timing or 22 propensity for something to go wrong.

23 What was the probability two months or 24 three months ago at Oconee that a whistleblower would 25 step up of hard evidence of a severely degraded dam NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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414 1 upstream that could well engulf Oconee in a flood, and 2 destroy many of its operability features?

3 So probability risk assessment, 4 statistical analysis is useful, but only up to a 5 point. When you're talking about the mean, the mean 6 doesn't exist. It's an average. It is a compilation 7 of all of the possibilities. So the worse scenario, 8 worse scenarios are balanced out by the less worse 9 scenarios.

10 But if the scenarios are not all 11 encompassed within the analysis, what's the analysis 12 really worth? We respectfully request the following 13 things: That summary disposition be denied as to 14 Contention 4; that in the course of its analysis and 15 arrival at a decision, we reallege all of our stricken 16 argument; and that the Board take into account the 17 evidence of record, even if not properly argued by us 18 or any other party, but which nonetheless is reality, 19 does provide hints as to the severe deficiencies of 20 the SAMA.

21 In saying these things, we understand 22 fully that this is a circumstance where it's basically 23 an economic type of analysis. It doesn't provide some 24 sort of punch list of things that have to be fixed or 25 changed, operations or practices altered at Davis-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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415 1 Besse.

2 But as we have insisted throughout this 3 part of the proceeding, there is a reasonableness 4 standard that we believe has not -- has been breached, 5 and the hard look has not been taken. It is not 6 impossible for the analysis that the Intervenors are 7 calling for to be undertaken. It is not unduly, 8 horrendously expensive. It's just been ignored.

9 Thank you.

10 JUDGE FROEHLICH: Thank you. Mr. Harris.

11 MR. HARRIS: Your Honor, to address Mr.

12 Lodge -- I'm having microphone issues today.

13 JUDGE FROEHLICH: Well, there's a fan here 14 that's also interfering with, especially on this side.

15 So if you could speak a little louder.

16 MR. HARRIS: I will. I will attempt to do 17 that. To address first what Mr. Lodge has just 18 suggested, is that I think what we misapprehend here 19 is that the SAMA analysis is designed to look at the 20 plant as a whole and yes, there are these issues about 21 the cracked shield building we're going to discuss 22 later, in the next contention.

23 But they're not issues that are properly 24 involved in this contention here, and in fact the SAMA 25 analysis did not credit the shield building for any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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416 1 mitigative measure in Davis-Besse.

2 So whether the shield building is cracked 3 is not going to make any difference in the outcome of 4 that SAMA analysis. I think that's the important part 5 when we start looking at summary disposition and SAMA 6 analysis.

7 In summary dispositions, it's correct that 8 the party moving for summary disposition bears the 9 burden of demonstrating that there's no genuine issue 10 of material fact, and that they're entitled to the 11 decision as a matter of law. But that does not mean 12 that the party opposing summary disposition can merely 13 rest on attorney argument or allegations that aren't 14 supported.

15 You have affidavits from experts 16 demonstrating why MAAP produced reasonable source 17 terms for that, and those allegations, those 18 affidavits remain uncontroverted by Intervenors.

19 Because their response was stricken, all 20 those facts are deemed to be admitted, and that's the 21 thing that we have to understand, is that the facts as 22 proposed by FirstEnergy have been deemed to be 23 admitted against the Intervenors.

24 So in this case, there is no challenge to 25 MAAP been suggested that it's a reasonable code. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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417 1 staff's own witness has, you know, looked at what MAAP 2 generated at Davis-Besse in comparison to similar 3 MELCOR analyses, SOARCA, which also used MELCOR, and 4 those results were roughly the same.

5 That's all that we're really asked to do 6 under NEPA, is to provide a reasonable look, a hard 7 look, but a reasonable proposal. The Commission has 8 stressed that the proper question, and this comes from 9 their most recent decision here in Seabrook, is that 10 the proper question is not whether there are plausible 11 alternative choices for use in the analysis, but 12 whether the analysis that was done was reasonable 13 under NEPA, and that we're trying to determine what's 14 going to be material here.

15 Because just because it's a fact that's 16 proposed by FirstEnergy does not necessarily render it 17 material for the decision that the Board's going to 18 have to make. As the Commission has told, has decided 19 and held previously in Pilgrim, I believe it's CLI 11-20 08, that the issue for a material issue and a SAMA 21 analysis is one that would render a cost beneficial 22 SAMA, a SAMA that has not previously been identified 23 as cost beneficial.

24 That's the issue that we're trying to 25 decide, is that if we substituted some other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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418 1 alternative, we would actually identify some new cost 2 beneficial SAMA that has not previously been 3 discovered.

4 To address the three issues that the 5 Commission has narrowed for this contention, is that 6 the first one is basically has the code been validated 7 by the NRC, and my suggestion to the Board is that 8 it's not required to be validated by the NRC. Whether 9 or not the code had been validated or not validated, 10 that does not impact the results that were produced, 11 or the reasonableness of the SAMA analysis.

12 It is that it's simply an aside, and not 13 really worth spending much time on, because the 14 validation doesn't make any difference, in terms of 15 the actual mitigation measures that we've identified, 16 and whether the source terms produced are reasonable.

17 Second, the radionuclide release 18 fractions, and we've discussed this, you know, at some 19 detail with NUREG-1465, is that that's really probably 20 not the best comparison for whether or not a source 21 term released into the environment is appropriate. It 22 produces anonymously low results because we're not 23 accounting for all the different mechanisms that would 24 normally be expected to occur when you finally got the 25 source term to the environment.

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419 1 That's where you would need to really make 2 this comparison. If you start accounting for those 3 issues, that the source terms really don't, aren't 4 that far apart. We have not compared it for 1465, but 5 of course we did do it, looking at MELCOR and NUREG-6 1150.

7 I think that there, you can see that MAAP, 8 although it runs quicker, it is producing similar 9 results that we would find in MELCOR 20 years ago, and 10 including in the state of the art reactor consequences 11 that was done, I believe it was finished last year or 12 early this year.

13 So there, they had, you know, made updates 14 to MELCOR to account for some new issues, and we're 15 still seeing relatively reasonable results between 16 them. In light of all that, the use of MAAP to 17 produce the source terms for a SAMA analysis at Davis-18 Besse is reasonable, and summary disposition should be 19 granted in FENOC's favor. Thank you.

20 JUDGE FROEHLICH: Thank you, Mr. Harris.

21 MR. O'NEILL: Thank you, Your Honor.

22 Martin O'Neill again for the Applicant. I'd like to 23 note at the outset that I have to echo Mr. Harris' 24 claims, that their argument on the shield building is 25 simply not within the scope of the admitted NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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420 1 contention, and I think this Board knows well as 2 anybody that it can't hear arguments that exceed the 3 scope of the admitted contention.

4 The Board itself has acknowledged that 5 this contention is very narrow in scope; it focuses on 6 the use of the MAAP code to generate environmental 7 source term fees in the SAMA analysis, a very discrete 8 issue and part of a much broader SAMA analysis.

9 I think Mr. Lodge, you know, fundamentally 10 misunderstands the purpose of the SAMA analysis as 11 well, I mean, which it looks at time and space average 12 consequences, mean annual consequences over a 50-mile 13 region for purposes of doing a reasonable, meaningful 14 cost-benefit evaluation.

15 We're not trying to model the, you know, 16 the worst case accident scenario possible, or use, you 17 know, the worst or most conservative assumptions.

18 It's under NEPA a reasonable, a best estimate type of 19 analysis.

20 Turning to, you know, the summary 21 disposition standards, as Mr. Harris stated, you know, 22 the issue is whether there's a genuine issue of 23 material fact that warrants further proceedings in 24 this particular hearing, and for the reasons stated in 25 our declaration, we don't think that is the case.

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421 1 NRC regulations Section 2.710(b) states 2 that when a motion for summary disposition is made and 3 supported as provided in the section, a party posing 4 the motion may not rest upon the mere allegations or 5 denials of his answer. The answer by affidavits or as 6 otherwise provided in the section must set forth 7 specific facts showing that there's a genuine issue of 8 fact.

9 If no answer is filed, the decision, if 10 sought, the decision sought, if appropriate, must be 11 rendered. In this instance, we have an unopposed 12 motion for summary disposition, because the 13 Intervenors' motion has been stricken as entirely 14 irrelevant to the contention, to the arguments made in 15 our motion.

16 It's another way of saying that if FENOC 17 has discharged its burden and shown the lack of a 18 genuine material fact, you know, the burden then 19 shifts to the Intervenors to, you know, point to 20 specific acts showing the existence of a genuine 21 material dispute, and they simply have not done that 22 here.

23 I'd like now walk through the three bases, 24 as you requested, and you know, the first basis 25 relates to the quote-unquote "validation of the MAAP NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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422 1 code." I think it's very clear from the discussion 2 that we've had today that while validation and 3 verification may be terms of art or have very specific 4 meanings in the safety context, they're not really 5 defined in the NEPA context.

6 However, I think it's very clear that, you 7 know, the qualification or confirmation requirements 8 for a NEPA-mandated SAMA analysis seek to ensure that 9 the methodology used is complete, and provides a 10 reasonable representation of the phenomena of 11 interest, you know, in this case, the environmental 12 source terms that are used in the Level 3 PRA 13 analysis.

14 You know, in our view, confirmation of 15 this sort can be achieved through comparisons to 16 available data sets and comparisons to similar codes, 17 i.e., benchmarking of the type discussed in our joint 18 declaration and various supporting attachments, and 19 then also as evidenced by acceptance by the nuclear 20 safety community at large and by the regulator.

21 I think these types of comparisons, this 22 type of benchmarking, you know, have been performed, 23 again as amply demonstrated by a number of the 24 attachments to our motion. You know, MAAP has also 25 been identified as EPRI as a consensus computer code.

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423 1 I would add that all that notwithstanding, 2 the staff does, you know, a careful independent review 3 of the SAMA analysis. You know, they typically issue 4 RAIs, do environmental site audits, things of that 5 sort, and you know, they do look at how an applicant 6 went about developing the source terms that were used 7 in its SAMA analysis.

8 The second issue for basis again relates 9 to the use of the NUREG-1465 source terms, and again, 10 you know, the short of the matter is that those 11 particular source terms are generic or prescriptive 12 source terms. They're not plant-specific and 13 certainly not specific to the Davis-Besse plant. They 14 were developed for a different regulatory purpose, 15 assessment of compliance with Part 100 siting 16 requirements.

17 It's very clear from the terms of that 18 document, NUREG-1465, that the source terms are in 19 containment source terms. While NUREG-1465 certainly 20 discusses various fission product removal mechanisms, 21 it doesn't explicitly and quantitatively account for 22 those.

23 The point is that the MAAP4 code does 24 precisely that. It does it on a site-specific basis.

25 So again, that's why we view it as a reasonable tool, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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424 1 and do not view NUREG-1465 as an adequate substitute 2 or surrogate.

3 The third basis that Intervenors rely on 4 really goes to their pointing to historical studies, 5 a draft version of -- a 1987 draft version of NUREG-6 1150, as well as a report by Brookhaven National 7 Laboratory. I think it's very clear that, you know, 8 those studies are not particularly instructive in 9 terms of how we go about developing plant-specific 10 source terms.

11 I think there's, you know, a number of 12 flaws in the comparisons. For one thing, the 1987 13 draft document text that they rely on wasn't even 14 included in the final version of NUREG-1150. Compared 15 mean source terms generated with MAAP, with maximum 16 source terms generated by MELCOR, and again we're 17 talking about a significant gap in time, different 18 models. So it makes a, you know, a direct control 19 comparison very difficult.

20 But with all of that, I think our experts 21 and the staff's have shown that even if you were to 22 make the requisite adjustments and try to get a more 23 apples to apples comparison, you'd see reasonable 24 agreement in the source terms.

25 So it's on these bases, Your Honors, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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425 1 FENOC respectfully submits that summary disposition is 2 entirely appropriate in this case, that we've met our 3 burden to show that there's no genuine dispute as to 4 a material issue of fact. The Intervenors have not 5 met their reciprocal burden.

6 It's clear that they have not brought any 7 expert support to bear. In fact, to my knowledge, 8 they haven't even disclosed another document relevant 9 to this contention, you know, since their original 10 petition was filed.

11 You know frankly, we don't have a lot of 12 assurance in the representation that they'll be able 13 to support their case, merely through cross-14 examination of our experts, you know, should a hearing 15 prove necessary. Thank you, Your Honors.

16 JUDGE FROEHLICH: Thank you, Mr. O'Neill.

17 At this juncture, I want to thank all the parties for 18 their argument and statements.

19 It's been extremely helpful to the Board 20 on this contention, this very technical contention, 21 and we appreciate the efforts that the parties have 22 extended to prepare for the argument on the subject of 23 the Motion for Summary Disposition of Contention 4.

24 We'll now shift gears and burdens to 25 Contention 5, which is a new contention. For those in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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426 1 the audience, a contention is basically an argument, 2 in this case an argument that the Intervenors would 3 like to raise during the Applicant's relicensing 4 process.

5 Well, all right. I think, as I see people 6 shifting, we actually have to go and shift our paper 7 folders for this one. Let's take just a five minute 8 break. We'll come back and start with Contention 5, 9 going through. I'll give a brief introduction, and 10 then we'll hear opening statements from the 11 Intervenors, staff and the Applicant. Five minutes.

12 MR. O'NEILL: Thank you, Your Honor.

13 JUDGE FROEHLICH: Thank you.

14 (Whereupon, the above-entitled matter went 15 off the record at 2:12 p.m. and resumed at 2:17 p.m.)

16 JUDGE FROEHLICH: Please be seated. We 17 will now take up the Intervenors' Motion for Admission 18 of a New Contention, a contention having to do with 19 the shield building cracking.

20 As I had started to say before we took our 21 break, a contention is essentially an argument that, 22 in this matter, the Intervenors would like to make, to 23 raise during the Applicant's relicensing process.

24 The Board has to decide if a contention 25 should be admitted into the proceeding. There are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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427 1 several factors for determining if a contention should 2 be admitted. One of these factors is whether the 3 motion for admission of the contention is timely.

4 Depending on whether the motion for admission, or 5 depending on whether the motion is timely or not 6 determines what other factors are used to decide 7 whether the contention should be admitted.

8 The NRC regulations don't define or 9 specify an exact number of days in which a new or 10 amended contention must be filed in order to be 11 considered timely. However, the NRC has regulations 12 permitting the Board to specify a deadline for timely 13 filings within the proceeding scheduling order.

14 In this case, in this matter, the Board's 15 June 15th, 2011 initial scheduling order provides that 16 a motion of a proposed new contention shall be deemed 17 timely under 10 C.F.R. 2.309(f)(2) if it is filed 18 within 60 days of the date when the material 19 information on which it was based first becomes 20 available.

21 The Intervenors argue in their Motion for 22 Admission of Contention 5 that it is timely. At this 23 point in the proceeding, for a new contention to be 24 admitted, the Intervenors must show that the shield 25 building cracking contention is based information that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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428 1 was not previously available, that that information is 2 materially different from information previously 3 available, and that the contention has been submitted 4 in a timely fashion based on the availability of that 5 subsequent information. These factors are found at 10 6 C.F.R. 2.309(f)(2).

7 The applicant in this case argues that the 8 Intervenors' Motion for Admission of Contention 5 is 9 not timely. If indeed it is not timely, the 10 Intervenors must satisfy an eight factor test under 10 11 C.F.R. 2.309(c)(1).

12 In addition to filing a Motion for 13 Admission of a New Contention on Shield Building 14 Cracking, the Intervenors have submitted five motions 15 to amend the proposed shield building cracking 16 contention.

17 The Board will ask questions of the 18 parties on whether these motions to amend should be 19 considered timely or untimely. The list of 20 requirements previously addressed in reference to the 21 Motion for Admission of the Contention also apply to 22 motions to amend the proposed contention.

23 So I suppose we'll be discussing a series 24 of dates in the coming hours, and we'll go through 25 that very, very carefully with the parties. At this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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429 1 point, I'd like to hear from the Intervenors, and 2 they're entitled to an uninterrupted ten minute 3 opening statement.

4 MR. LODGE: Thank you, Judge Froehlich and 5 members of the Panel, opposing counsel and parties.

6 I think I'm simply going to respond to the rather 7 technical level, rather than make some sort of opening 8 argument that one would make to a jury.

9 The proposed contention we anticipate 10 showing is timely because it was filed on January 11 10th, 2012, which was five days after a public meeting 12 that was convened by the Nuclear Regulatory Commission 13 to discuss the cracking phenomena that was under 14 investigation and still unresolved and undetermined as 15 to cause.

16 The information that was learned by 17 Intervenors on January 5th, 2012 was that the NRC 18 Region III staff explained that one or more cracks 19 extended approximately 225 feet, essentially the 20 height of the reactor shield building at Davis-Besse, 21 that those cracks were numerous, that they were not 22 confined to the architecturally decorative elements of 23 the building, which was contrary to FirstEnergy's 24 repeated statements in the media throughout October, 25 November and December of 2011.

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430 1 I would like to point out, and we will be 2 returning to this point, but when the Board is 3 considering timeliness, the Board also has to consider 4 of course the regulations of the NRC, that limit, 5 constrict the scope of this kind of proceeding to age-6 related matters.

7 This is a license renewal, of course, and 8 thus it is not effective, not useful to talk simply in 9 terms of when did the public know about cracking. The 10 public knew about cracking, at a minimum from the 11 Toledo Blade and other regional media, in 12 approximately October 12-13 of 2011, that there was 13 cracking.

14 But the responses and the statements made 15 by FirstEnergy and ultimately echoed, to some extent, 16 by the NRC staff, were that the cracking is cosmetic.

17 It's occurring in cosmetic, if anything, redundantly 18 thick architectural flutes on the shield building 19 itself.

20 The shield building, as the Panel probably 21 knows by now, is approximately 30-inch thick concrete.

22 But the architectural flutes that we're talking about 23 add an additional 18 inches of thickness.

24 So when it is said in the press that 25 there's no problem here really; these are occurrences NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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431 1 that are in decorative or cosmetic architectural 2 features, it's Intervenors' contention that that news, 3 while it's a little troubling, doesn't require the 4 public, that the Intervenors need to ascertain or 5 discover at that moment, since they know no more than 6 what the regulator and the utility itself knows.

7 The public isn't obliged to run into 8 court, as it were, and file a new contention. So we 9 didn't. We waited for information. We carefully 10 monitored the NRC websites and other websites. We 11 looked for information. We certainly tried to keep up 12 with media reports, of course.

13 Thus, when it was reported, I believe 14 November 1st of 2011 in the local press, in the Toledo 15 Blade that an investor advisory letter had gone out 16 from FirstEnergy to investors, that letter continued 17 with the same theme.

18 Yes, there's been a few minor cracks 19 outside of architectural flutes, but the major and 20 they weren't even calling it major cracking, but the 21 main part of the cracking that's been discovered was 22 in architectural features. "Non-structural cracking" 23 was the term.

24 So by November 1st, again, Intervenors are 25 reading, trying to stay up with what's going on, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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432 1 certainly not obliged to come screaming to the NRC 2 Board that there's a terrible problem here.

3 And in fact, the Intervenors have 4 representatives that attended the January 5th meeting, 5 where some tough questions were asked and to some 6 extent answered by the Region III staff and the 7 utility. At that point, it became clear enough, we 8 believe, that there was cracking of a structural sort 9 that may provide clues or indicators or hints that 10 there is a larger problem here.

11 Pursuant to that, the Intervenors filed on 12 approximately January 26th a Freedom of Information 13 Act request, propounded to the Nuclear Regulatory 14 Commission, requesting documentation internal to the 15 NRC, up through the date at the end of January of 16 2012. It was months before that information was 17 forthcoming.

18 So we filed our January 10th motion. We 19 supplemented that in February, I believe about 20 February 8th. I may be wrong that. Pardon me, 21 February 18th, with a motion to amend or supplement 22 our initial motion, pardon me February 27th. Correct 23 me again.

24 We later saw the root cause analysis dated 25 February 28th, 2012, and we later saw the April 5th NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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433 1 aging management plan that was propounded, and saw 2 additional documents by Performance Improvement 3 International in May. We also came across a revised 4 root cause analysis that was published by the utility 5 company in May, and we began to receive, only in early 6 June 2012, responses to our Freedom of Information Act 7 request.

8 We intend to show and believe that the 9 record actually shows rather clearly this point, that 10 all of those supplemental filings were timely, in that 11 they were within, and in many cases within well within 12 the 60-day window set by the Board's February 2011 13 Order.

14 Therefore, we believe the initial filing 15 was certainly timely, that the supplements were 16 additionally timely. We believe that we, as 17 Intervenors, had an obligation not to waste the 18 Board's resources, not to waste time sounding merely 19 alarms.

20 We filed a cracking contention and its 21 supplements with the utmost seriousness, and as the 22 Board and parties can tell, enormous factual evidence, 23 we believe, emerged in the form of the Freedom of 24 Information Act responses from the NRC, which are 25 incidentally not yet complete.

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434 1 The last supplemental response we received 2 from the staff in July indicated that there was more 3 yet to come. We believe also that there's an argument 4 that we filed way early, because the aging management 5 plan is only about to be implemented.

6 The shield building has been painted.

7 There's supposed to be core drilling, more analysis, 8 more investigation. There's supposed to be some type 9 of report, and as I indicated in the argument related 10 to SAMA, there's supposed to be some type of 11 demonstration by FirstEnergy in December of 2012, 12 showing that the shield building, that the facilities, 13 once again, are in conformance with its licensing 14 expectations.

15 We believe that the Intervenors' filings, 16 individually and collectively, demonstrate issues of 17 fact with the environmental report, that indeed there 18 are environmental, i.e. NEPA aspects to the cracking 19 problem, that in effect, even by propounding its aging 20 management plan, that we believe that our contention 21 is well within the scope of the permissible 22 considerations that the Board must cover in its 23 licensing deliberations.

24 We also believe that this is an incredibly 25 serious issue, that if the public is to rely on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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435 1 technical calculations and estimates provided by the 2 regulatory staff here, that even a minor earthquake 3 event or an accident scenario involving high heat with 4 the shield building itself could cause major rapid 5 crumbling and deterioration, and thus compromise of 6 the filtering and sweeping capabilities presently, 7 supposedly, theoretically afforded by the shield 8 building.

9 We believe that the margin of safety is 10 seriously compromised, that if there is an issue of 11 utmost importance in this proceeding, that involves 12 perhaps immediate questions of public health and 13 safety, this is that issue. Thank you.

14 JUDGE FROEHLICH: Mr. Matthews.

15 MR. MATTHEWS: Thank you, Your Honor.

16 Again, I'm Tim Matthews. With me, joining me at 17 counsel table with Mr. Jenkins is Stephen Burdick of 18 my firm. We do intend to address the Board's 19 questions in the prehearing order in our discussion 20 today, but first, I'd like to return to my earlier 21 discussion of some themes in this proceeding, because 22 they directly relate to the contention before us.

23 JUDGE KASTENBERG: Can I ask you to put 24 the mic up. When this fan comes on --

25 MR. MATTHEWS: Absolutely. Is this any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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436 1 better?

2 JUDGE KASTENBERG: Yes, that's much 3 better. Yeah.

4 MR. MATTHEWS: Thank you. It brings me no 5 joy to be accused of the Grinch Who Stole Christmas, 6 but some of the reasons the Intervenors may feel that 7 they're on the outside looking in is because they've 8 chosen, by their actions, to put themselves there.

9 The themes I addressed this morning are 10 important to this contention as well, even more so 11 where the Intervenors bear the burdens of production 12 and persuasion. The Intervenors must produce facts 13 and supporting information in showing -- that together 14 must demonstrate a material issue of law sufficient 15 for litigation in an evidentiary hearing.

16 Referring back to the Commission's recent 17 formulation, Intervenors must demonstrate that they 18 have supported a genuine, material controversy, and 19 that they'll be knowledgeable litigants. The first 20 theme I referenced earlier is respect to continuing 21 failure to adhere to the Board's requirements, and 22 those of the Commission.

23 For example, several of Intervenors' 24 pleadings related to the shield building laminar 25 cracking, have been filed without certification of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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437 1 consultation, without adequate consultation, or in 2 some cases with no consultation at all.

3 Under 10 C.F.R. 2.323 Bravo, the sincere 4 effort to confer with the other parties and resolve 5 the issues is not an option, and the regulation 6 compels dismissal of the contention if that 7 certification is not made.

8 This is not a new issue in this 9 proceeding, or as it relates to this contention. In 10 fact, the Board cited that very deficiency prior to 11 this contention in connection with the Intervenors' 12 Fukushima contention. Intervenors continued to ignore 13 the requirement in this proceeding.

14 The Board should uphold the Commission's 15 requirements and its own initial scheduling order, and 16 dismiss any motion or supplemental motion without 17 certification of proper consultation.

18 The Intervenors repeatedly time their 19 filings for the last minute of the last hour of the 20 last day permitted on the initial scheduling order, 21 which is their right. However, when they fail to 22 complete their filings in a timely manner, they appear 23 to expect the accommodations of the Board and the 24 parties.

25 The Board has admonished the parties that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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438 1 the timing requirements in the initial scheduling 2 order are to be rigorously applied. Accordingly, the 3 Board should reject the untimely pleadings.

4 The Intervenors frequently cite new 5 documents, recycling previously-available information 6 as an alleged basis for timeliness of information 7 contained within. The initial scheduling order, the 8 regulations and Commission precedent are not ambiguous 9 on this. Only new material information can support 10 timeliness.

11 Old information restated in a new document 12 cannot support a new contention under 10 C.F.R.

13 2.309(f)(2) or Charlie. With respect to challenges to 14 the existing Commission rules, Intervenors are aware 15 of the requirement to seek a waiver from the 16 Commission to challenge Category 1 issues in the 17 generic Environmental Impact Statement.

18 In fact, they cite to it in their initial 19 motion to admit the contention. Inexplicably, they 20 never filed that waiver. Accordingly, the 21 environmental aspects of the proposed contention must 22 be rejected.

23 The second broad theme relevant to this 24 contention that I raised this morning is the 25 Intervenors' lack of support for this proposed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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439 1 contention. As FirstEnergy and the staff have noted 2 repeatedly in their briefs, and as the Commission 3 recently reminded the Intervenors regarding Contention 4 1, notice pleading is not sufficient for NRC 5 adjudicatory proceedings.

6 The Intervenors must provide some 7 supporting basis for the factual assertions of their 8 counsel and representatives. The shield building 9 laminar cracking phenomena is a complex technical 10 issue. It required highly experienced experts from 11 FirstEnergy, the industry, major universities and the 12 NRC to determine the causes.

13 Intervenors provide only layman's 14 speculation that penetrations through the concrete may 15 have played some role. Unsupported speculation is not 16 sufficient to support admission of a contention. The 17 multiple supplements Intervenors cite -- in their 18 multiple supplements, they cite out of context 19 statements made by FirstEnergy's or the staff's 20 technical experts, in their process of studying the 21 issues.

22 The conclusions of FirstEnergy and those 23 of the NRC staff are contained in their own reports, 24 issued at the completion of their evaluations.

25 Perhaps more importantly, akin to reliance on the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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440 1 staff's RAIs, Intervenors may not rely on these 2 materials alone. Rather, Intervenors must bring their 3 own issues, their own supporting bases. They've done 4 neither.

5 There are two fundamental questions the 6 Board needs to address in this argument today, because 7 they go directly to the question of whether 8 Intervenors have carried their burdens in proposing a 9 new contention related to the shield building laminar 10 cracking phenomena.

11 The first is have the Intervenors any 12 material issue with respect to any aspect of the 13 Davis-Besse license renewal application or 14 environmental report, or rather have they simply 15 expressed general dissatisfaction with FENOC's 16 resolution of the issue, and with NRC's review.

17 Second, if the Intervenors have identified 18 a specific material issue in dispute, in direct 19 contravention of either of those reports, have they 20 provided adequate technical basis for that dispute, as 21 the Commission has defined that standard.

22 FirstEnergy respectfully submits that the 23 answer to both of these questions is a resounding no.

24 Accordingly, the proposed contention related to shield 25 building laminar cracking must be dismissed. I'd like NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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441 1 to briefly turn to a little background on the 2 contention in my remaining time.

3 More than a year ago, when Davis-Besse 4 personnel identified concrete laminar cracking near 5 the outer face of the reinforcing steel of the shield 6 building, they promptly informed management and 7 FirstEnergy promptly informed the NRC.

8 FirstEnergy undertook a comprehensive 9 evaluation to ensure the ability of the shield 10 building to preform its intended functions of 11 biological shielding, missile shielding for the 12 containment vessel, and providing a means of 13 collecting and filtration of fission product leakage 14 into the annulus during accident conditions.

15 The shield building is not designed as a 16 secondary containment in the event of accident 17 conditions, notwithstanding Intervenors' speculation 18 to the contrary. NRC reviewed FENOC's operability 19 evaluation and did not opposed restart of the plant.

20 FirstEnergy undertook an exhaustive root 21 cause evaluation of the laminar cracking phenomenon, 22 considering all potential issues, including those 23 related to time-dependent aging phenomena such as 24 thermal cycling. FENOC's root cause analysis 25 concluded that the laminar cracking phenomenon was the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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442 1 direct result of the blizzard of 1978.

2 Specifically, one root cause, the absence 3 of a coating on the exterior of the shield building, 4 and three contributing causes: storm conditions of 5 wind-driven rain and rapid freezing and the stress 6 concentration factors at the exterior flute shoulders 7 and at the dense rebar spacing, such as at the main 8 steam line penetrations and also at the upper 20 feet 9 of the shield building.

10 The independent laboratory analysis 11 supporting the root cause evaluation eliminated the 12 possibility of time-related aging factors as a 13 contributor to the laminar cracking phenomenon. The 14 independent analyses showed no micro-cracking in the 15 area of laminar cracking.

16 As explained in the root cause evaluation, 17 micro-cracking would have been indicia of cracking 18 caused by thermal cycling. FENOC's root cause report 19 puts to rest the origin of the laminar cracking 20 phenomenon. Intervenors have presented no technical 21 challenges to FENOC's method or conclusion, that their 22 counsel does not agree with the report's conclusion is 23 of no import to this Board. They provide no support 24 for the disagreement.

25 The NRC staff thoroughly evaluated both NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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443 1 FENOC's restart decision and the root cause 2 evaluation. Their conclusions are documented in the 3 NRC's inspection reports. The proof of the NRC 4 staff's thoroughness is demonstrated in Intervenors' 5 third and fourth supplements, in which they 6 demonstrate the staff asking probing questions and 7 posing hypotheticals during their review.

8 FENOC's revisions to the root cause report 9 and underlying Performance Improvement International 10 report also reflect the addition of supporting and 11 corroborating information. No conclusions changed, 12 and the staff agreed that the changes were not 13 material.

14 What is important to this Board is that in 15 the end, the NRC staff's own inspection reports speak 16 for the staff's conclusions, not Intervenors' 17 selective and out of context quotes of random emails 18 obtained through the Freedom of Information Act.

19 Those reports support the reasonableness of the root 20 cause efforts and its conclusions.

21 Even though FirstEnergy concluded that the 22 laminar cracking of the shield building was not age-23 related, FirstEnergy added a new aging management 24 program to its license renewal application, 25 specifically to monitor laminar cracking for any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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444 1 indication of development of time-dependent aspects.

2 The shield building AMP was added on top 3 of the existing structure's AMP, that evaluates the 4 more routine aspects of aging of structures, including 5 concrete structures such as the shield building. The 6 shield building AMP periodically evaluates cracked and 7 uncracked areas of the shield building, for evidence 8 of widening of the laminar or expansion of the laminar 9 cracks into previously uncracked areas.

10 In the multiple inspections to date 11 conducted under current licensing requirements, no 12 evidence of potential aging effect has been detected, 13 such as widening or propagation of the laminar 14 cracking.

15 Intervenors' burden at this stage of the 16 proceeding is to produce sufficient factual support to 17 create a material issue of fact that the cracking 18 phenomenon is age-related and if it is, that 19 FirstEnergy's shield building AMP is not sufficient to 20 address it for the period of extended operation.

21 Significantly, Intervenors have identified 22 no challenge either to the need for an AMP or the 23 adequacy of FENOC's AMP to detect and address any 24 aspect of the laminar cracking phenomenon, regardless 25 of its cause.

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445 1 The fact that the NRC license renewal 2 staff is performing a thorough review of the license 3 renewal application by submitting RAIs does not make 4 a contention. RAIs are the normal process of the 5 staff's work. Intervenors do not simply point to an 6 RAI as supposed basis.

7 Rather, they must provide their own issue 8 and their own support to state admissible contention.

9 So in closing, I return to the two ultimate questions 10 before us today. First, as it relates to the shield 11 building and laminar cracking phenomenon, have the 12 Intervenors presented any material issue with respect 13 to any aspect of the Davis-Besse license renewal 14 application or environmental report.

15 Second, if they have identified such a 16 specific material in dispute, in direct contravention 17 of those documents, have the provided the adequate 18 technical support for that dispute that the Commission 19 has defined? Would they be knowledgeable litigants?

20 Again, clearly they have not.

21 Accordingly, the proposed contention must 22 be rejected. We look forward to discussing the 23 Board's questions. Thank you.

24 JUDGE FROEHLICH: Thank you, Mr. Matthews.

25 Ms. Kanatas.

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446 1 MS. KANATAS: Good afternoon, Your Honors.

2 May it please the Court, my name is Cathy Kanatas, and 3 I represent the staff in this proceeding. As Judge 4 Froehlich noted and as Mr. Lodge noted, the purpose of 5 today's oral argument on proposed Contention 5 is to 6 determine whether the Intervenors have met their 7 burden of the contention admissibility standards that 8 apply, whether or not they have shown that the 9 contention has been timely filed, and whether or not 10 they show that the contention meets the contention 11 admissibility standards in 2.309(f)(1).

12 I might be repeating some of what's 13 already been said by the parties, but I think it's 14 important for me to walk through why proposed 15 Contention 5 should not be admissible, as the staff 16 initially did take the position that a portion of it 17 could be found admissible when it was filed.

18 Today though, the Board should find that 19 this contention is inadmissible. Regardless of 20 whether you call these motions amendments or 21 supplements, and regardless of whether all of the 22 pleadings were timely, none of the challenges in any 23 of Intervenors' motions raise a genuine material 24 dispute with the application, and for that reason, 25 Commission precedent demands that the proposed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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447 1 contention, as supplemented or amended, be dismissed.

2 When Intervenors initially filed the 3 contention, they did raise a single admissible claim.

4 Specifically, they raised a safety license renewal 5 concern that FENOC's application did not indicate how 6 the effects of aging on the shield building will be 7 adequately managed, so that the shield building's 8 intended functions would be maintained consistent with 9 the current licensing basis for the period of extended 10 operation.

11 So the staff agreed that that portion of 12 the contention could be admitted. The reinforced 13 concrete shield building which surrounds the free-14 standing steel containment vessel, is a structure 15 within the scope of the staff's safety review, and it 16 requires an aging management review.

17 At the time the contention was filed, 18 FENOC's application did not indicate how an aging 19 management program would manage any aging effects 20 associated with this specific cracking. Because the 21 staff must find reasonable assurance that the effects 22 of aging will be adequately managed, this did raise a 23 genuine material dispute with the application.

24 In fact, the Intervenors, the staff had 25 already asked questions regarding this on December NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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448 1 27th, 2011, and those questions were incorporated into 2 Intervenors' initial motion.

3 However, the staff opposed the remaining 4 portions of the Intervenors' contention, as those 5 claims -- as Intervenors raised claims outside the 6 scope of this proceeding, including claims that the 7 restart and operation of the plant are unsafe, given 8 the shield building cracking, that the staff's review 9 of the issue has been inadequate, and that challenges 10 to the non-conforming nature of the shield building, 11 given the cracks, as well as challenges to generic 12 environmental findings codified in the Commission's 13 rules.

14 The Intervenors also made several 15 unsupported and immaterial claims that the 16 environmental report was inadequate, and that the 17 staff's environmental impact statement would have to 18 discuss this cracking.

19 Therefore, the only admissible portion of 20 the Intervenors' initial filing was the safety concern 21 that the license renewal application did not discuss 22 how any aging effects associated with these cracks 23 would be managed.

24 As you heard, on April 5th, FENOC 25 submitted its plan for managing that cracking, despite NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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449 1 finding that the mechanism of the cracking was not 2 aging-related. Specifically, they submitted and 3 amended their application to provide shield building 4 monitoring AMP.

5 Therefore, the admissible portion of 6 Intervenors' contention became moot, and had to be 7 modified or dismissed. The Intervenors seemed to 8 recognize this, as they filed and were granted a 9 motion to vacate oral argument in May, so that they 10 could file an amended contention regarding the shield 11 building, based on the shield building monitoring AMP.

12 Intervenors, as you heard, then filed 13 multiple supplements, claiming that there was new and 14 materially different information regarding the shield 15 building monitoring AMP, and cited to the root cause, 16 the revised root cause, the PII report, FENOC's -- I'm 17 sorry, the FOIA documentation, as well as the April 18 5th shield building monitoring AMP.

19 However, instead of raising specific 20 supported challenges to the adequacy of FENOC's plan 21 to manage aging, Intervenors used their supplements as 22 a way to rehash their out of scope, immaterial claims 23 about why the cracking made the shield building non-24 functional, unsafe to operate now, why this was an 25 inadequate investigation and other claims that are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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450 1 clearly outside the scope of this limited license 2 renewal proceeding.

3 In the last of those supplements was filed 4 on August 16th, the fifth supplement based on the FOIA 5 documents. On that same day, FENOC submitted a 6 revised shield building monitoring AMP, which was 7 served on the parties on August 17th. The staff fully 8 expected the Intervenors to file an amendment, given 9 that the shield building monitoring AMP replaced the 10 April 5th AMP in its entirety, and the Intervenors 11 mentioned in an August 24th reply that they may well 12 do so.

13 They have not done so. They have yet to 14 raise a challenge to either the April 5th or the 15 August 16th AMP, or offer any other admissible 16 challenge to the application. Therefore, there is no 17 genuine material dispute with the application.

18 Intervenors leave the parties guessing as 19 to the nature of the deficiencies in FENOC's plans to 20 manage aging, and as to how any of these claimed 21 deficiencies would impact the staff's decisions of 22 reasonable assurance and other license renewal 23 findings.

24 Our contention admissibility rules require 25 more than this. Our adjudicatory proceedings are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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451 1 limited to issues material for the staff's review.

2 Intervenors' proposed contention does not raise a 3 single material dispute. For these reasons, the 4 proposed contention, as supplemented or amended, and 5 whether timely or not timely, must be dismissed.

6 Thank you, Your Honors.

7 JUDGE FROEHLICH: Thank you. It appears 8 that we have two types of challenges to the proposed 9 contention dealing with shield building cracking. One 10 is more procedural, and I believe that's what Mr.

11 Matthews was alluding to, being the timeliness of the 12 filings and the lack of consultation, that being the 13 procedural aspects of challenges.

14 We also have, I guess, the substantive 15 questions that the staff spoke to somewhat more, on 16 whether they meet the 2.309 requirement for contention 17 admissibility in general.

18 I suppose to move through these in a 19 logical manner, perhaps we'll take up the timeliness 20 and consultation challenges, the procedural challenges 21 first, and then move onto the more substantive aspects 22 of the challenge and the 2.309(f)(1), 1 through 6, 23 requirements.

24 So that we're all starting, I guess, from 25 the same point, the cracks were discovered by FENOC on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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452 1 October 10th, 2011, and I guess there a number of 2 intervening -- information was put forward through a 3 series of newspaper articles, I suppose, and a letter 4 to the investors that FENOC had sent.

5 Then there was, I guess, a significant 6 even being the Camp Perry meeting of January 5th, 7 2012, which the Intervenors rely on as the trigger for 8 when they first received, I guess, the substantive 9 scope of the cracking, followed by their motion to 10 admit to the contention, which was filed on January 11 10th.

12 All right. Mr. Lodge, if I understand 13 your approach to this, the information that was in the 14 possession of the Intervenors was, as you had stated 15 in your opening statement, that they were decorative, 16 cosmetic-type cracks, and that the Intervenors could 17 not comprehend the full impact of these cracks or the 18 significance of these cracks until that meeting in 19 Camp Perry on January 5th. Do I understand?

20 MR. LODGE: Yes sir, yes sir.

21 JUDGE FROEHLICH: Now what was different 22 on January 5th that the Intervenors were unaware of or 23 FENOC had not disclosed prior to that? I guess we'll 24 have to go through the events that occurred, which Mr.

25 Matthews would have us believe that that gave NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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453 1 sufficient notice for you to bring forth your 2 contention at an earlier date?

3 MR. LODGE: Thank you. Perhaps the best 4 benchmark statement was in the FirstEnergy letter 5 dated October 31st, 2011 to the investment community, 6 which I've referred to and you have, Your Honor.

7 JUDGE FROEHLICH: Yes.

8 MR. LODGE: In that letter, now this is 9 October 31st, the formal statement by FirstEnergy is 10 that, and I'm quoting, "During investigation of the 11 crack of the shield building opening, concrete samples 12 and electronic testing found similar subsurface 13 hairline cracks in most of the building's 14 architectural elements.

15 "The team of industry-recognized 16 structural concrete experts and Davis-Besse engineers 17 evaluating this condition has determined the cracking 18 does not affect the facility's structural integrity or 19 safety." We relied on the veracity of that statement, 20 but continued to look for -- cynics that we are --

21 continued to look for additional information.

22 Throughout, and I don't have all of the 23 press articles with me, but throughout the month of 24 November or during the month of November, there were 25 other mentions in the media of -- wherein the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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454 1 staff was effectively saying that it will insist upon 2 understanding the root cause of the cracking prior to 3 allowing start-up, which changed somewhere between 4 approximately November 18-26, 2011, and a confirmatory 5 action letter was issued on December 2nd, and actual 6 start-up commenced on December 5th.

7 And then, as I indicated in an opening 8 statement, and as we argued in the initial motion, on 9 January 5th, we learned from Region III staff 10 statements made in the public domain effectively, that 11 one or more of the cracks extended 225 feet, in other 12 words, approximately the height of the shield 13 building, and that the cracks were numerous, not 14 confined to the architectural elements.

15 JUDGE FROEHLICH: That first mention, I 16 guess, of the 225 foot crack?

17 MR. LODGE: Yes.

18 JUDGE FROEHLICH: That came about at what 19 date?

20 MR. LODGE: January 5, 2012.

21 JUDGE FROEHLICH: And that was at the 22 meeting at Camp Perry?

23 MR. LODGE: Yes, convened by the Region 24 III staff.

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455 1 that meeting, the cracks that were discussed were 2 different from or described differently that they had 3 been before?

4 MR. LODGE: Yes.

5 JUDGE FROEHLICH: And to what do you point 6 in the January 5th, I guess, slides or in the 7 discussion that took place there, that these cracks 8 were other than the originally, I guess, reported 9 cosmetic or decorative, but cosmetic or decorative 10 elements and --

11 MR. LODGE: If memory serves, Congressman 12 Kucinich was there and asked several questions at the 13 outset of the meeting, after a presentation slide 14 show, and asked if there was cracking beyond the 15 architectural elements. The response essentially was 16 yes.

17 Unfortunately incidentally, and 18 surprisingly to us, this was not a transcribed public 19 meeting. It was not recorded in any official means.

20 Therefore, I can't point to a page of a transcript and 21 show you that those statements were made. However, 22 I've not seen any denial that those representations 23 were made by the Region III staff either.

24 JUDGE FROEHLICH: Is there anything in the 25 slides presented by FENOC, or the slides presented by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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456 1 the NRC staff, that you rely upon in your allegations 2 that these cracks were other than decorative or 3 cosmetic or in the architectural flutes?

4 MR. LODGE: If I may just have a moment 5 sir.

6 JUDGE FROEHLICH: Certainly.

7 (Pause.)

8 MR. LODGE: I don't know how responsive 9 this may be to you, Your Honor, but in a subsequent 10 filing by the NRC, that being a -- pardon me --

11 January 31st, 2012 letter to Barry Allen from the 12 Region III office, which essentially gave the report 13 of an integrated inspection by the staff, there is a 14 statement at page 48 of the PDF.

15 JUDGE FROEHLICH: Mr. Lodge, where are you 16 reading from?

17 MR. LODGE: I'm sorry. January 31st, 2012 18 inspection report, and it's on the actual page 48.

19 JUDGE FROEHLICH: And the date was January 20 -

21 MR. LODGE: January 31st, and it's 22 attached to our February 27th motion to amend. Now I 23 understand this is after January 5th.

24 JUDGE FROEHLICH: Right, and it's after 25 January 10th, when you made your filing.

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457 1 MR. LODGE: Correct.

2 JUDGE FROEHLICH: What I'd like to do is 3 focus on the January 10th date, which is you allege is 4 timely, and which Applicant is telling us was 5 untimely. So need to focus on what information came 6 into your possession and when. To answer this, it 7 should be before January 10th, because this is the 8 pleading. We're beginning to analyze whether it was 9 timely.

10 MR. LODGE: Sure, correct. Well, one 11 moment.

12 (Pause.)

13 JUDGE FROEHLICH: Our response effectively 14 is what I indicated, that statements were made at that 15 meeting on January 5th. We filed within five days 16 after that, and as I indicated, there was nothing, and 17 I haven't seen any real viable argument by the other 18 parties saying that we should have been on notice at 19 an earlier date of anything but cracking.

20 As I indicate, the differences, we believe 21 that the structural cracking, not the cosmetic, 22 architectural type, was the issue that needed to be 23 brought to the attention of the Licensing Board.

24 We subsequently and in the January 31st 25 inspection report certainly backs up the fact that in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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458 1 October of 2011, the staff identified, I think, a 20 2 foot crack in the upper 20 feet of elevation of the 3 shield building.

4 But again, that was something that was not 5 in the public domain until on or after January 31st, 6 2011. But it retrospectively confirms that there were 7 structural problems that were not being disclosed 8 publicly.

9 JUDGE TRIKOUROS: So Mr. Lodge, your 10 pleading specifically says "Only on January 5th was 11 the public told by NRC Region III staff, at a 12 presentation convened at Camp Perry," etcetera, that 13 the situation was more severe.

14 JUDGE FROEHLICH: Judge Trikouros is 15 reading from page eight of your Motion to Admit.

16 MR. LODGE: Yes, I have it.

17 JUDGE TRIKOUROS: The FENOC indicates 18 that, and this is in their answer to the motion, I 19 believe it's on pages 13 through 16 of that answer.

20 They said -- this is referring to their initial 21 statement, that October, early October would have been 22 the appropriate start point or trigger point.

23 I guess they mention an October 12th date, 24 but they indicate that "Even if the timeliness of the 25 motion was not based on the initial public NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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459 1 disclosure," and they mention October 12th, "the 2 motion still would be untimely.

3 This is because a significant amount of 4 detailed information about the shield building 5 cracking was available from other sources more than 60 6 days before the motion was filed."

7 Now can I ask FENOC, what other sources 8 are we talking about here, because as far as I know, 9 they're not identified.

10 MR. MATTHEWS: Thank you, Judge Trikouros, 11 and I'd like to address that specifically, but I'd 12 also like to frame the question in the requirements of 13 this Board. The initial scheduling order talks about 14 what the trigger is, if you will.

15 It's when the information first becomes 16 available. So it's not actual knowledge, it's 17 availability, "of information to the moving party 18 through service, publication or any other means."

19 That's the initial scheduling order.

20 So it's not when the NRC sent it to them 21 by certified letter; it's when they -- it was 22 available to them, and in many places they've said 23 they had it. In answer to your question, Judge 24 Trikouros, the Intervenors, in their initial pleading, 25 tell us that they had the information on October the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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460 1 12th from the Plain Dealer.

2 They now say well, we had partial 3 information; that wasn't sufficient. This 4 conversation demonstrates the risk of argument from 5 memory. The October 31st FENOC media advisory that 6 went very broadly to the investment community, has a 7 section that Intervenors don't discuss.

8 "Our investigation also identified other 9 indications, including among them were subsurface 10 laminar hairline cracks in two localized areas of the 11 shield building, similar to those found in the 12 architectural elements. We have not determined these 13 two areas are not associated with the architectural 14 element cracking, and are investigating them as a 15 separate issue. Our overall investigation analysis 16 continued."

17 Now Intervenors will have us believe, and 18 perhaps that is a recollection, that they didn't think 19 it was structural until January the 5th. But their 20 initial pleading says differently. I've jumped to 21 your cite, Judge. I need to go back in our answer, 22 rather, the initial pleading. Bear with me one 23 moment.

24 The initial pleading walks through when 25 the information, when they had the information, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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461 1 they talk in some detail about what information was in 2 the Plain Dealer article on that date. They also 3 refer to one on October the 21st, that's discussing 4 conclusions of David Lochbaum of the Union of 5 Concerned Scientists, who's talking specifically about 6 structural issues.

7 The Intervenors argue that evidence has 8 appeared that indicates -- referring to that article 9 -- that cracking actually involves not only 15 of 16 10 architectural concrete structures, but also of an 11 inextricably intertwined relationship among those 12 architectural structures, and the rest of the concrete 13 shield building itself.

14 To put a finer point on it, and I'm 15 reading from page 17, "However, as indicated in 16 paragraph 18 below, FENOC itself admitted additional 17 cracks in "structural parts," that's emphasized, 18 structural parts "of the concrete shield building in 19 a letter to Intervenors on October 31st, 2011.

20 "Intervenors recognized in their initial 21 pleading that the October 31st submittal discussed 22 structural concrete, structural cracking, structural 23 concerns."

24 It's also the error of speaking from --

25 potential error of speaking from memory, and it may be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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462 1 a misunderstanding, because it's reflected in their 2 pleadings as well, but the January 5th public meeting 3 didn't announce, by the NRC staff or FENOC, that there 4 was a 225 foot crack.

5 There is not, and there has not been a 225 6 foot crack. FENOC assumed, for purposes of analysis, 7 for the -- beyond the scope of this proceeding, but 8 for the current licensing basis calculation, to 9 evaluate the operability of the shield building, to 10 evaluate its structurability. FENOC conservatively 11 assumed that the crack extended 225 feet for the 12 purpose of performing its structural analysis, and 13 concluding that the building was structurally sound.

14 So this, by their own pleadings, we have 15 to go back to if not October the 12th, certainly 16 October the 21st, where they're citing David Lochbaum.

17 If we can't rely on that, then October 31st, where 18 they clearly say it was structural. In any case, 19 they're all more than 60 days, predating the filing in 20 January.

21 JUDGE TRIKOUROS: How was the Lochbaum 22 letter available? Addressing this to Mr. Lodge, how 23 was the Lochbaum letter available to you? Was that 24 something that was sent to you by him?

25 MR. LODGE: Mr. Kamps will answer that.

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463 1 MR. KAMPS: Thank you. Kevin Kamps for 2 the record. Well yeah. We are in communication with 3 David Lochbaum in a general sense, so things are sent 4 and clearly explained, and another milestone moment 5 that hasn't been mentioned is February 8th of 2012, 6 when Representative Dennis Kucinich of this area 7 clearly explained to the public the structural nature 8 of the cracking.

9 JUDGE FROEHLICH: I'm sorry, Kucinich.

10 What was the date?

11 MR. KAMPS: February 8th of 2012, 12 Representative Kucinich clearly explained the 13 structural nature of the cracking to the public, 14 including us, something that NRC and FirstEnergy had 15 not done. We have to piece together bits and pieces, 16 little spurts of information.

17 I mean one moment of that is October 31st, 18 when a major letter is sent by FirstEnergy to the 19 investment community, admitting certain things but not 20 other things, that are also dated October 31st. Not 21 clearly communicated, cracking in the upper 20 feet of 22 the shield building is not clearly communicated in 23 that letter. But that is the date that it was 24 supposedly documented there.

25 So I know how to add 60 now after this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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464 1 proceeding. So October 31st to December 31st, that 2 would be that deadline. Little spurts of information.

3 The significance of the Camp Perry meeting, January 4 5th, is Barry Allen of FirstEnergy admits what counsel 5 just mentioned, that is for calculational purposes, a 6 crack of 225 feet in height.

7 The first time that those words were 8 uttered in the hearing of the public, including 9 Intervenors, which makes you sit up and take notice 10 when you hear something like that, had not been 11 communicated previously before that moment on January 12 5th.

13 Another interesting date was December 15th 14 of 2011, when the Nuclear Regulatory Commission had 15 announced a public meeting that we were very much 16 looking forward to, because we had so little 17 information to go on. We're very much looking forward 18 to December 25th or December 15th, 2011, and then that 19 is suddenly postponed until January 5th.

20 We don't know why it was postponed. We 21 don't know why it was announced for December 15th. So 22 we have very little information. We're piecing the 23 puzzle together. There is no clear communication from 24 the NRC, who's mandated to protect public health and 25 safety to the public.

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465 1 Another important date is November 17th 2 and November 19th. On November 17, Viktoria Mitlyng 3 of Office of Public Affairs, Region III, tells the 4 Toledo Blade newspaper that this issue will be 5 completely resolved before restart is allowed. Then 6 two days later, she says "It's FirstEnergy call when 7 they restart this plant."

8 Then we find out the hard way on December 9 2nd how serious NRC was about those words. They 10 issued a confirmatory action letter allowing restart, 11 when promises had been made, via the media, that the 12 root cause of the cracking will be understood, the 13 extent of the cracking will be understood, and the 14 corrective actions will be understood before restart 15 is allowed. That obviously was not true.

16 So our wake-up call, I mean you're asking 17 for a trigger date. A really big trigger date would 18 have been December 2nd, when NRC totally threw out its 19 previous commitments, and allowed restart. We knew 20 certainly by December 2nd, we knew by November 19th, 21 when Vikka Mitlyng said "No, it's their call." We 22 know that we were in trouble at that point.

23 So when November 19th plus 60 is December 24 19th, January 19th. So our timeliness is being 25 questioned. It's incredible to me. We worked long NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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466 1 hours0.0417 days <br />0.00595 weeks <br />0.00137 months <br /> to generate that January 10, 2012 contention 2 filing. That took round the clock work to turn that 3 around that quickly.

4 JUDGE TRIKOUROS: When did you put pen to 5 paper, so to speak, on that January 10th pleading?

6 MR. KAMPS: The morning of January 6th, 7 after recovering from a very grueling, all-day January 8 5th public meeting, that got out very late at night.

9 JUDGE TRIKOUROS: And was it based 10 entirely on the January 5th meeting, or was it based 11 on all these other things that you mentioned?

12 MR. KAMPS: It was based on the public 13 record up to that point, and us piecing the puzzle 14 together.

15 MS. KANATAS: Your Honors, if I may. I'm 16 sorry. This is Cathy Kanatas. I'd like to clarify 17 for the record what exactly Viktoria Mitlyng said.

18 It's referenced on, in Intervenors' initial motion.

19 They're citing to a November 17th Toledo Blade 20 article, and it's quoting Ms. Mitlyng saying "Until we 21 have confidence that the cracks in the shield building 22 don't have any safety implications, the plant won't go 23 back online."

24 That is not the same as saying the plant 25 cannot restart until the root cause is known. So I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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467 1 just want to clarify that for the record, and the 2 December 2nd CAL concluded, based on an evaluation of 3 FENOC's extent of condition and technical analysis of 4 the Davis-Besse shield building laminar cracking, the 5 NRC staff concluded that FENOC provided reasonable 6 assurance that the shield building is capable of 7 performing its safety functions.

8 So in line with what NRC representatives 9 relayed, the shield building did not return to 10 operation until we determined that the crackings, as 11 they were, did not impair the function of the shield 12 building, which is not an issue for license renewal in 13 any event. But I thank you.

14 JUDGE FROEHLICH: Thank you for that 15 clarification.

16 JUDGE TRIKOUROS: Well, I mean I think we 17 want to get to the issue, to that issue a little bit 18 later.

19 But so for right now, with respect to 20 timeliness, Mr. Kamps, you're saying that this was an 21 evolving process that began approximately October 22 31st, and that it didn't, it wasn't crystal clear to 23 you that you wanted to file a contention until after 24 the January, directly after the January 5th public 25 meeting; is that what you're saying?

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468 1 MR. KAMPS: We were left to puzzle it 2 together, because of the small spurts of information 3 that were provided over a long period of time there, 4 over the course of months. The first we were able to 5 detect from Barry Allen's admission of 225 foot 6 effective crack on January 5th, that this was very 7 serious in nature.

8 It wasn't until actually February 8th, 9 when Congressman Kucinich clearly communicated to the 10 public, for the first time of anyone involved, that 11 the nature of the cracking was structural. He asked 12 questions on January 5th, which also alerted us that 13 there were some questions being asked, is this 14 structural in nature?

15 Then on February 8th, Congressman Kucinich 16 clearly communicated that yes indeed, it is 17 structural. In terms of that filing, we got that out 18 on the 27th, so that was a 19 day turnaround, once we 19 had Congressman Kucinich's very clear information. So 20 it's been a game of hide the ball by FirstEnergy and 21 NRC staff.

22 MR. MATTHEWS: I'd like to object, Your 23 Honor.

24 MR. KAMPS: Another significant date in 25 response to --

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469 1 MR. MATTHEWS: I'd like to object, Your 2 Honor. Judge Froehlich the court has ruled that these 3 arguments, these allegations of deceit by the staff or 4 FirstEnergy are outside the scope of this proceeding.

5 They're inappropriate. There's really no place for 6 them. I'll not belabor it, Your Honor. But --

7 JUDGE FROEHLICH: Your objection is noted.

8 But please, I'd like Mr. Kamps to continue.

9 MR. KAMPS: Just another response to NRC 10 staff just now, on December 2nd, NRC issued the 11 confirmatory action letter approving restart. On 12 December 5th, Abdul Sheikh finally signed off on 13 Calculation No. 56, which was for him a very 14 significant safety question. So three days after the 15 NRC staff allowed reactor restart, a safety engineer 16 finally signed off.

17 My point about that is what is Mr. Sheikh 18 going to do? Say that the agency was wrong on 19 December 2nd in allowing restart? That's a lot of 20 pressure to put on an individual.

21 So on December 5th, three days after 22 restart is approved, he finally, and this has already 23 been put in the record by us, he finally signs off on 24 that.

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470 1 questionable, the pressure on him to sign off to 2 justify a three day earlier reactor restart approval.

3 So we would --

4 JUDGE TRIKOUROS: Isn't that pure 5 speculation on your part?

6 MR. KAMPS: Well please, the date sir.

7 December 2nd, reactor restart. December 5th, final 8 sign-off on a safety analysis that he found very 9 significant. The timing is wrong there. That 10 shouldn't be after reactor restart --

11 JUDGE TRIKOUROS: All right. Well, that's 12 not the subject, however, of what we're trying to 13 determine right now. Right now, we're trying to 14 determine the timeliness issue regarding your 15 contention.

16 MR. KAMPS: And we were very much looking 17 forward to that December 15th meeting, because the 18 questions that we finally got to hear discussed and 19 ask questions that night, on January 5th, would have 20 taken place on December 15th. For some reason, NRC 21 postponed that meeting for three weeks.

22 So now we're to be penalized because we 23 were not in possession of the information that 24 obviously FirstEnergy had very early; obviously NRC 25 had much earlier than we did. But we're the ones to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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471 1 be penalized for this.

2 JUDGE FROEHLICH: I want to acknowledge 3 that the Board does understand your concerns about the 4 restart decision. But at this point, I'd like to 5 focus on the timing of the filing of the initial 6 contention. So for my benefit and the benefit of the 7 Board, I'd like to focus on the information that was 8 forthcoming, leading up to the January 10th filing.

9 I think there was the start of this, Mr.

10 Matthews, when you wrote to us, I guess, the letter to 11 the investors. Would you kindly re-read the quoted 12 portions, where the public or whatever, or it was 13 investors at least, would be aware that the cracking 14 was perhaps structural or something more than in the 15 architectural flutes and such.

16 MR. MATTHEWS: I will. Thank you, Judge 17 Froehlich, and I'd point out that whether members of 18 the public might have inferred, properly understood 19 whether FENOC could have drafted this differently, is 20 somewhat of an academic issue, where Intervenors 21 acknowledge that they understood it was structural.

22 JUDGE FROEHLICH: And that's your 23 reference to the Lochbaum letter?

24 MR. MATTHEWS: No. It's referenced on, 25 I'm sorry. On page 17 of the initial petition, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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472 1 there's a parenthetical at the bottom of the first 2 paragraph.

3 "However, as indicated in paragraph 18 4 below, FENOC itself admitted additional cracks and 5 emphasized structural," end of emphasis, "parts of the 6 concrete shield building, in a letter to investors on 7 October 31, 2011."

8 They also trumpet the Lochbaum November 4 9 letter, his petition to the NRC. That appears at 10 paragraph 19, page 19, and intervening Toledo Blade 11 articles talking about the issue, the development.

12 They were following this very closely. Again, going 13 from recollection is a dangerous thing.

14 You know, the Beyond Nuclear website had 15 a very passionate piece talking about the shield 16 building, contemporaneous with Congressman Kucinich's 17 November press release. They were following it 18 closely, understood it, monitored what was going on 19 and understood it clearly.

20 But I return to your request, Judge 21 Froehlich. I'd be happy to read it again, and this is 22 from the October 31, 2011 FENOC letter advisory to the 23 investment community. "Our information also 24 identified" -- I'm reading the last paragraph.

25 "Our investigation also identified other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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473 1 indications, including among them were subsurface 2 hairline cracks in two localized areas of the shield 3 building, similar to those found in the architectural 4 elements. We have determined that these two areas are 5 not associated with the architectural element 6 cracking, and are investigating them as a separate 7 issue.

8 Our overall analysis, our overall 9 investigation analysis continues," and they predict a 10 return to service date in November. There are a 11 couple of points that Mr. Kamps responded to, and I 12 don't want to get to all of them, but to the extent 13 they relate to the Board's earlier question, I'd like 14 the opportunity to address them.

15 We respect the Intervenors' passions and 16 the efforts that they've brought to their pleadings.

17 FirstEnergy takes very seriously the laminar cracking 18 issue, as demonstrated by all of their activities to 19 date. But they're suggesting a couple of things 20 relate to whether the contention was structural, or 21 there was new information.

22 That FENOC discovered at the plant, 23 contemporaneous with the investment advisory going out 24 that there was cracking in the upper 20 feet of the 25 containment structure, if it's structural, it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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474 1 structural. Where the additional cracking is, they 2 haven't told us somehow why that's relevant.

3 The question is is it age-related? Is it 4 an aging phenomenon. The arguments that they're 5 advancing here before this Board are all outside the 6 scope of license renewal. I'd go back to Mr. Lodge's 7 initial argument.

8 We agree on that, that things outside the 9 scope of license renewal should not be before this 10 Board, and the laminar cracking phenomenon happens to 11 be one of those issues.

12 FENOC and the staff are addressing it with 13 respect to current operations. So all this 14 dissatisfaction with their knowledge of FENOC's 15 activities and the staff's review and the status, as 16 it relates to restart, is all unrelated to the 17 questions before this Board.

18 The issue is whether the laminar racking 19 phenomena is age-related, and there's been nothing to 20 show that. But to their point of --

21 JUDGE TRIKOUROS: Well, but I don't 22 understand why you're saying that this is not under 23 the scope of license renewal. Even before the shield 24 building AMP, there was a structure -- there is and 25 was a structures AMP.

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475 1 They would have looked at the shield 2 building, I assume, and would have looked for cracks 3 in the shield building. So why is it that this is not 4 --

5 MR. MATTHEWS: Well, for exactly the 6 reason you cited, Judge Trikouros. Cracking right now 7 is subject to the maintenance rule. Cracking during 8 the period of extended operations, the kinds of 9 anticipated expected cracking, would be covered by the 10 structures AMP.

11 Laminar cracking, this laminar cracking 12 phenomena is unique to Davis-Besse. There's no 13 evidence, none, Intervenors have pointed to none and 14 the root cause has ruled it out, that it's a time-15 dependent phenomenon. The cause of the cracking is 16 not time-dependent, and we'll be happy to get into 17 that in the Board's questions.

18 For it to be an age -- in the scope of 19 license renewal, it somehow has to be an aging related 20 phenomenon. FENOC has voluntarily created an AMP to 21 look at this issue, to evaluate whether going forward 22 somehow the environmental aspects create some aging 23 feature that we don't know about now, and they are 24 monitoring it on a periodic basis, to see whether the 25 cracks change in length or width, and evaluating that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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476 1 for exactly that potential, that it could become an 2 aging phenomenon.

3 But the burden here today is have 4 Intervenors demonstrated that it is an aging 5 phenomenon. It's their burden to prove that, and if 6 they prove that, their burden is to prove that the AMP 7 is insufficient to address it for the period of 8 extended operations. They haven't even touched on 9 that.

10 So these are all very important issues 11 with respect to current operations. Operability of 12 the plant for restart, restoration of the licensing 13 basis. Very important questions that FENOC and the 14 staff are addressing. But as it relates to this Board 15 and the Intervenors' contention, they're two simple 16 questions really.

17 Is it aging-related, and if it is, does 18 the AMP address it, and they haven't challenged either 19 of those.

20 JUDGE TRIKOUROS: Let me ask the question 21 also to the staff. Is there a distinction between an 22 event such as the laminar cracking occurring as a 23 result of some situation, environmental situation that 24 was not aging-related, but was caused by this event, 25 that once the cracks are in place, the degradation of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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477 1 those cracks is an age-related consideration?

2 MR. MATTHEWS: FENOC considered exactly 3 that, Judge Trikouros. The potential that those 4 cracks, that aging effects, say thermal cycling, could 5 somehow affect those cracks. Thus far, these cracks 6 have been evaluated, I think five times now under the 7 maintenance rule. Five?

8 Four times. These cracks have been --

9 they've gone in and looked at these cracks. It's only 10 since 2011. Clearly, they understand that. But the 11 AMP does exactly that, and for purposes of satisfying 12 its responsibilities under the license renewal rule 13 and satisfying the staff's questions, FENOC prepared 14 an AMP to address exactly that question.

15 But there's nothing in the Intervenors' 16 initial pleading or any of the subsequent contentions, 17 that makes that hypothetical argument. It's not 18 there.

19 JUDGE TRIKOUROS: Would there have been 20 shield building AMP if there weren't a contention?

21 MR. MATTHEWS: Oh absolutely. The 22 contention has nothing to do with the shield building 23 AMP. The shield building AMP, FENOC, in connection 24 with the restart and the confirmatory order, or the 25 CAL going along with restart, FENOC listed the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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478 1 corrective actions it was going to do, and one of 2 those was to prepare an aging monitoring, an AMP for 3 the period of extended operation.

4 They were going to do these inspections, 5 they were going to restore the licensing basis, and 6 prepare a shield building AMP. So that had nothing to 7 do with the Intervenors. It was FENOC and the staff 8 that thought that that was appropriate.

9 JUDGE TRIKOUROS: Could I ask that 10 question in yet another way. Again, if there were no 11 contention, would the AMP be part of the license 12 renewal application?

13 MR. MATTHEWS: Absolutely.

14 JUDGE TRIKOUROS: It would be --

15 MR. MATTHEWS: Absolutely. The staff --

16 FENOC committed to do it. The staff asked about it in 17 a request for additional information, and FENOC 18 acknowledges that it wants to study this phenomena.

19 It wants to look at it, evaluate it on a periodic 20 basic, in accordance with the standard set out by the 21 American Concrete Institute for periodic monitoring, 22 normally five years for concrete structures.

23 FENOC proposed doing it on a two-year 24 interval, and they're doing it on a two-year interval 25 and for a period of cycles through I think 2019, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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479 1 if there's no evidence by that point, then the AMP has 2 it moved to a five-year cycle.

3 JUDGE TRIKOUROS: but if the cracking had 4 not occurred, I'm assuming the staff would have been 5 content with the structures AMP? There was no plan to 6 put in place a separate shield building AMP?

7 MS. KANATAS: No Your Honor, there was 8 not. The questions asked on December 27th related to 9 the structures monitoring AMP, as it was already in 10 place in the license renewal application, asking how 11 that AMP would be able to, what was its plan to 12 adequately manage any aging effects associated with 13 the October 10th, 2011 cracking.

14 So we had, did not question the structures 15 AMP, and then when the cracking was identified, we 16 then asked how will any aging effects be managed.

17 That was in response to those questions.

18 The Applicant submitted its shield 19 building monitoring AMP to decide that even though the 20 root cause determined that it was not an aging 21 mechanism going forward, it was going to monitor to 22 see if there were any aging effects that could impact 23 the functionality.

24 JUDGE TRIKOUROS: Were those RAIs -- I 25 don't remember the timing of the RAIs.

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480 1 MS. KANATAS: December 27th, 2011. They 2 were incorporated by the Intervenors into their first 3 initial pleading.

4 JUDGE TRIKOUROS: So they were prior to 5 the contention being filed?

6 MS. KANATAS: Yes they were, Your Honor.

7 JUDGE FROEHLICH: Am I correct that that 8 December, the end of December RAI that went out, that 9 would indicate the point in time when the staff 10 considered the possibility or perhaps the necessity of 11 having a separate shield building AMP?

12 MS. KANATAS: Well, the staff had not yet 13 determined what needed to happen at that point. They 14 were asking the question of the existing program, and 15 because it's FENOC's application that has to make the 16 demonstration of how it will adequately manage aging, 17 and we were not sure what the extent was or how their 18 existing application would manage those.

19 So we had not -- we were awaiting their 20 responses and then, as the Applicant pointed out, it's 21 an iterative process with RAIs, in order for us to 22 understand what's being proposed and whether or not we 23 can make a determination on that.

24 JUDGE FROEHLICH: Thank you.

25 MR. MATTHEWS: If I might supplement that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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481 1 Your Honor, the staff's initial RAI asked about the 2 structures AMP, and in response, when FENOC responded 3 to the RAI, it submitted an entirely new supplemental 4 AMP, the shield building monitoring AMP.

5 JUDGE FROEHLICH: Much of the discussion, 6 and a number of your answers, Mr. Matthews, refer to 7 the cracking as laminar cracking, and the other 8 parties at times have referred to many other types of 9 cracking, and I guess we'll get into that, more detail 10 later.

11 The definition that's used in the use of 12 laminar cracking, could you provide that for me, or 13 how it's used?

14 MR. MATTHEWS: I used that term 15 specifically and deliberately to identify the 16 phenomena that was discovered in 2011 at Davis-Besse, 17 and I would distinguish it from the more expected 18 kinds of cracking that is observed in concrete 19 structures, is expected in concrete structures, and is 20 addressed through the structures AMP.

21 There are -- I'm not a civil engineer, so 22 please forgive me. But from the record, certainly 23 there's spalling of the concrete from the exterior 24 surface. There is micro-cracking, which can be 25 evidence of aging effects. The laminar cracking is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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482 1 what we're talking about specifically though, is what 2 FENOC discovered what was new and different, and not 3 comprehended within the structures AMP.

4 That was along the outer surface of the 5 rebar mat, and I think it might be helpful in the 6 response to the fifth supplement, third and fourth 7 supplement, we have a presentation that there are some 8 pictures that might be helpful to the Board.

9 JUDGE KASTENBERG: I have one from the --

10 Mr. Harris sent us this letter on May 10th, which has 11 the, I guess it's the inspection report, and it's got 12 a really nice picture. I think a picture is worth 13 1,000 words, and in fact I was going to ask, before we 14 get into the next aspect of the questioning, to maybe 15 set a frame for some of the questions in delineating 16 what we mean by such things as an architectural 17 feature, what we mean by a flute.

18 Is there any function at all served by 19 these kind of rectangular --

20 MR. MATTHEWS: I'd be happy to. There was 21 --

22 JUDGE KASTENBERG: It would be helpful to 23 have, you know, kind of a setting of what actually it 24 is that we're talking about.

25 MR. MATTHEWS: I have a -- I will not do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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483 1 service to this the way our client could. He has made 2 this presentation multiple times in multiple public 3 fora. But there are a couple of points that I would 4 like to point out to the Board in response to your 5 question, and that is in FENOC's response to 6 Supplements 3 and 4, there's a slide presentation that 7 has the picture you just held up, Judge Kastenberg, 8 and some others.

9 Attachment 1 is what I'll refer to in the 10 page citations. If you look on page six, there's a 11 photograph in the lower right --

12 JUDGE FROEHLICH: Just so we're all 13 looking at the same diagram at the same time, and so 14 that the record is clear, this will be in which 15 filing? The date, if you could and the page?

16 MR. MATTHEWS: Yes. It's FENOC's response 17 to supplement -- answer to Supplements 3 and 4, and 18 that response is dated --

19 JUDGE FROEHLICH: It's the combined 20 response?

21 MR. MATTHEWS: Combined response. It's 22 August 17th, and I'm referring to Exhibit 1.

23 JUDGE FROEHLICH: Okay. Give me one 24 moment.

25 MR. MATTHEWS: Or Attachment 1.

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484 1 (Pause.)

2 JUDGE FROEHLICH: Give me a moment as I 3 try to call this up.

4 MR. MATTHEWS: Sure.

5 (Pause.)

6 JUDGE KASTENBERG: See, hard copies are 7 really good things to have.

8 JUDGE FROEHLICH: Yes.

9 JUDGE KASTENBERG: Okay. That's the same 10 picture that's in the --

11 MR. MATTHEWS: We have to have both these 12 days now.

13 JUDGE KASTENBERG: Okay, great.

14 MR. MATTHEWS: I note that this 15 presentation is one made by FENOC on August the 9th.

16 It's very similar to the one that Mr. Lodge is 17 referring to on August the 5th. FENOC, I'm sorry 18 January 5th, thank you. FENOC has made a number of 19 presentations, talking about these issues and the 20 slides have been updated.

21 This is the most recent in the record of 22 this proceeding. So on page six is a photograph of 23 the shield building, and specifically at the center of 24 the photograph is one of the flutes. The shield 25 building is not a simple cylinder.

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485 1 It has these architectural flutes and each 2 flute has a shoulder. If you look at the next page, 3 5-7, you see a top-down plan view of the exterior wall 4 of the shield building, and working from the inside 5 out, on the bottom here at the annulus, in between the 6 shield building and the containment vessel.

7 Then the first line you see is the inner 8 mass of rebar, about three to four inches in. On the 9 second line you see circumferentially is the outer mat 10 of rebar. Then if you look at the two angle pieces 11 and the cut in the middle at the center of the 12 drawing, that is the flute and the flute shoulders are 13 on the right and left of that gap.

14 JUDGE KASTENBERG: Could you say what that 15 looks like a fish hook? What is that?

16 MR. MATTHEWS: That hook is rebar.

17 JUDGE KASTENBERG: That is rebar.

18 MR. MATTHEWS: It's rebar. It connects 19 the flute shoulder to the outer rebar mat, and early 20 on in the discussions about whether it was structural 21 or not, that's what Congressman Kucinich and Mr.

22 Lochbaum were pointing out, that although these 23 flutes, the shoulders that First Energy was pointing 24 to the flutes overall and the shoulders are 25 decorative, they don't have a design purpose.

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486 1 If you look back to page six, the purposes 2 of the shield building, the flutes don't support those 3 purposes. They're decorative.

4 JUDGE KASTENBERG: but yet they also have 5 rebar?

6 MR. MATTHEWS: They also have rebar, and 7 they're put in the same pore. So the argument was 8 well, if they're connected, they're structural, they 9 affect the structure, and that's what Intervenors were 10 arguing. That's exactly what Mr. Lochbaum was 11 arguing, that's what Congressman Kucinich was arguing.

12 So to say that they didn't know or didn't 13 believe it was structural, or believed FENOC's 14 assertions that the flutes are not structural, is 15 somewhat disingenuous. But to go to FENOC's purpose, 16 you know, maybe we're divided by a common language.

17 The purpose of the shield building, if you 18 look at page eight, this is the bottom of one of those 19 flute shoulders, and you see it doesn't run all the 20 way down. It doesn't run to the ground. It stops 21 some distance above.

22 This is where the ops building connects to 23 the, abuts the shield building. It doesn't stretch 24 all the way down there, and I'll note the -- we may 25 come back to this.

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487 1 These blue dots that you see on the shield 2 building are places where FirstEnergy performed 3 impulse response testing, 60,000 spots around the 4 entire shield building. The red mark you see in the 5 photograph is a plug. That's where one of the core 6 bores was taken.

7 So I think that probably responds. I'd be 8 happy to talk more or less about -- I can't talk less, 9 about the presentation. But I think that responds to 10 your question, Judge Kastenberg and Judge Froehlich, 11 of what I mean by -- well maybe it doesn't, with 12 respect to structural.

13 The circumferential cracking that led us 14 down this path is, I'm referring back to Slide 7, at 15 the outer rebar mat, FENOC observed cracking along the 16 outer edge of the rebar mat. So the --

17 JUDGE FROEHLICH: And the outer rebar mat 18 that you refer to that's in the architectural flute?

19 That's not --

20 MR. MATTHEWS: They discovered it in the 21 shoulders of the architectural flute.

22 JUDGE FROEHLICH: Okay.

23 JUDGE KASTENBERG: So that would be --

24 MR. MATTHEWS: Behind here -

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488 1 report of May, well I think -- well, we got it on --

2 MS. KANATAS: It's May 7th, Your Honor.

3 JUDGE KASTENBERG: May 7th. So this 4 Figure 3 in the inspection report, that's the laminar 5 crack that's shown on that figure.

6 MR. MATTHEWS: That's correct, Judge 7 Kastenberg. And I guess I may have created some 8 confusion. That's where FENOC found the cracking in 9 connection with the impulse response testing in core 10 bores. The initial discovery was in the area of the 11 shield building penetration, the access openings, and 12 one happened to be in an area, and Stephen, where's my 13 perfect page? Twenty-two. I'm sorry, 42, of the same 14 exhibit, Attachment 1.

15 (Pause.)

16 MR. MATTHEWS: In the lower left-hand 17 corner of this, you'll see a rectangle circumscribed 18 by white dots, and you'll see a blue dot, blue one 19 next to it. These are the access penetrations. So 20 it's in connection with looking at an access during 21 the head replacement evolution in October 2011, that 22 personnel at the site discovered the cracking 23 phenomena.

24 They saw a laminar crack -- they saw 25 cracks and reported it. That led to the evaluation, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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489 1 the inspection, the impulse response testing, the core 2 boring, that ultimately -- this is July, as of July 3 2012, and this is exhausted. You know, it's the 4 evaluation of the entire shield building, based on the 5 laminar response testing.

6 So this is where the cracking is 7 understood to be.

8 JUDGE TRIKOUROS: I want to get done with 9 this timeliness issue, because that's where we started 10 and we wanted to get through with that before we moved 11 on. What's been described by the Intervenors -- let 12 me back up.

13 Mr. Matthews, you're looking for a 14 discrete trigger point, a discrete day, October 31st, 15 November 4th, a day that says they knew, and then add 16 60 days to that. That's what you're looking for.

17 That's what you're trying to tell us.

18 MR. MATTHEWS: They've told us those days, 19 Judge.

20 JUDGE TRIKOUROS: I understand, but that's 21 what you're trying to do, is put this to a day.

22 MR. MATTHEWS: I think that's what the 23 initial scheduling order and the Commission's 24 regulations call for.

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490 1 understand. But you know, the regulations can't 2 cover every, you know, possible situation. The 3 Intervenors are describing a process. They're saying 4 well, I can't -- it wasn't so much a trigger point.

5 It was more the only trigger point was actually to 6 start a process for us, and we sort of developed from 7 there.

8 The staff, in their document, their 9 answer, specifically say, you know, Intervenors 10 accurately note that there have been fast-emerging 11 developments following discovery of cracking. They 12 actually go on to say that thus, there's good cause 13 for Intervenors' late-filing of Contention 6. So the 14 staff stretched across --

15 MR. MATTHEWS: Intervenors, I'm sorry, the 16 staff notes that the Intervenors were close, but 17 didn't make it, and says "uhh, we'll give it to them."

18 That's not what the Board says. The Board says that 19 the timing requirements are to be strictly construed, 20 vigorously construed.

21 JUDGE TRIKOUROS: Well, the Board hasn't 22 ruled on this yet. This particular issue, November 23 1st is the date I believe the staff has identified as 24 the sort of, if you want to call it a trigger, and 25 that's where they got the ten days late thing. But NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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491 1 they do acknowledge that this is more of a process 2 situation, not a finite, discrete situation.

3 That's what the Intervenors seem to be 4 describing. Now from your point of view, I 5 understand. You're trying to set it to a date, and 6 you want that date to be more than 60 days, right? I 7 mean --

8 MR. MATTHEWS: I don't think that's 9 correct, Judge Trikouros. It's not at any cost the 10 contention can't come in. We are trying to live 11 within the rules that this Board has set, and the same 12 rules the Board has applied to us and the other 13 parties, with respect to Contention 1.

14 It wasn't just our motion to be stricken; 15 all the pleadings were stricken. The initial 16 scheduling order isn't ambiguous. It's not "about 60 17 days." It's very clear.

18 JUDGE TRIKOUROS: Well, the 60 days is 19 clear. The starting point is what we're discussing 20 here, and it sounds as if at least two of the parties 21 in this room are not, are clearly saying that this, it 22 was diffuse, that the situation was diffuse and 23 developments were emerging.

24 Yet so I really would like to hear if you 25 have any more. I really would like to hear how you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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492 1 think it's discrete? I mean why, you know, what --

2 MR. MATTHEWS: Thank you, Judge Trikouros.

3 I appreciate that. The information -- FENOC learned 4 the information incrementally. FENOC shared that 5 information with the NRC as it learned it. FENOC and 6 the NRC shared that information with the public.

7 Intervenors, through the licensee, the agency and the 8 media, picked up the information in real time.

9 But the date depends very much on what the 10 contention is. If the contention is that the 11 structure's AMP isn't sufficient for age-related 12 degradation, that's different once there's a shield 13 building AMP, as is the case here. Once there was a 14 shield building AMP, everything prior was mooted.

15 But once they -- once it was known that 16 available, that the cracking affected the ability of 17 the shield building to perform its function, or 18 believed that it could be, then the burden was on the 19 Intervenors to propose a contention, that it couldn't 20 -- not only could it not perform its function, because 21 that's not the scope of license renewal, but that this 22 phenomena is age-related.

23 And they speculate about that. They try 24 to say well, it's because you opened the shield 25 building, and they leave for the Board to speculate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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493 1 what the mechanism would be if penetrating the 2 concrete and rebar, that somehow would lead to laminar 3 cracking. There's no affidavit of an expert or a 4 report explaining that.

5 So it depends. But yes, the information 6 was evolving, but not the information upon which they 7 cite to support their contention. Mr. Lodge opened 8 with the point that it was structural.

9 That's his hook, that this is an important 10 contention, and points to the January 5 public 11 meeting, where FENOC is talking about its analysis of 12 the ability, again, not in the scope of license 13 renewal; in the context of their decision to restart 14 the plant and assuring the public about the activity 15 that they're doing to restore the licensing basis; 16 that they examined the ability of the plant to perform 17 its functions, and made a very conservative assumption 18 for the structural analysis.

19 But that the issue was structural goes 20 back, as we've seen by their own acknowledgment to 21 October 31. You can take it to November 4 with the 22 Lochbaum piece, talking about those fish hooks, Judge 23 Kastenberg, or to the Kucinich pieces in November 24 talking about the fish hooks, or the change to the 25 Beyond Nuclear website trumpeting those Kucinich NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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494 1 pieces.

2 So in some sense, it doesn't matter which 3 of those dates the Board pins it to; they're all well 4 more than 60 days.

5 JUDGE FROEHLICH: Anymore?

6 MR. KAMPS: Could I clarify something that 7 I was speaking about earlier?

8 JUDGE FROEHLICH: Yes.

9 MR. KAMPS: You may have wondered why I 10 brought up December 2nd confirmatory action letter, 11 reactor restart approval; it's current operations, 12 it's not 2017 extended operations. I mean you're 13 asking for a trigger date, that's why I told some of 14 those dates before.

15 A trigger date for me was, as I mentioned, 16 November 19th, when Region III Office of Public 17 Affairs reversed its earlier position of two days 18 earlier, and all of the sudden it was off to the 19 races; FirstEnergy can decide when it restarts.

20 Then a very clear trigger date for us, for 21 Intervenors was December 2nd, when as we later 22 learned, after many months later after we finally got 23 our Freedom of Information Act response, December 2nd, 24 a CAL reactor restart approval, without a root cause 25 determination, without an extent of condition NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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495 1 determination, without a corrective action 2 determination, as had been promised repeatedly in the 3 media.

4 That's what we meant by October, November, 5 December media statements by FirstEnergy and NRC.

6 These questions will be solved before the reactor 7 restarts. Well, we were pretty darned clear. We're 8 concerned about current operations, as you can 9 probably tell.

10 But we're also concerned about extended 11 operations. That's the limits of this proceeding. So 12 that trigger date, that was another trigger date, 13 December 2nd. The trigger was it was clear now that 14 NRC was willing to sign off on reactor restart in real 15 time, even before their safety analyses were finished.

16 So that was a real trigger for us, that we 17 had better take action here, and file a contention in 18 this proceeding, because obviously we can't trust NRC 19 to protect public health and safety in the 20 environment. This is a billion dollar a year agency.

21 It has 4,000 staff people.

22 These are underestimates; it's bigger than 23 that. We are a non-profit coalition, mostly comprised 24 of volunteers, doing the job for a billion dollar a 25 year agency with 4,000 staff people, who did not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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496 1 completely divulge. I don't know how to word it. I 2 said hide the ball earlier.

3 The information that we needed to 4 effectively launch our contention was being withheld 5 from us. In fact, some of the most important 6 information that we've yet filed in this proceeding 7 more recently was the Freedom of Information Act 8 response, Appendix B of Response No. 1, where NRC's 9 own safety engineers identify very clearly the 10 structural significance of the cracking problem.

11 We were relying on Congressman Kucinich, 12 who was doing his best, as quickly as he could, to get 13 this information out the public. The NRC was not 14 divulging this information, FirstEnergy was not 15 divulging this information. This October 31st, 2011 16 letter to investors, I mean it is not clear. It's 17 ambiguous as to what is meant.

18 If this was supposed to be our trigger, 19 that this was structural and safety-significant in 20 nature. I mean a question is what was the response of 21 the investment community? Was there a large-scale 22 disinvestment from FirstEnergy, based on the contents 23 of this letter?

24 I don't think there was, and I think it's 25 because this letter is so calming, it's so sedating.

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497 1 There's really not a big problem here. Yeah, there's 2 some more areas where there's cracking that's very 3 similar to the architectural cracking. It's similar 4 in nature.

5 So all of this, these are sedatives, and 6 we did not regard this as a trigger date for filing 7 the contention, but the evidence mounted with time.

8 David Lochbaum's letter of November 4th, remember, 9 that this was written, this initial contention was 10 written January 6th to January 10th when we filed it.

11 This was a retrospective piecing the 12 puzzle together, based on what we could get ahold of 13 at the time. And you know, we're not discussing -- I 14 guess we're discussing initial contention timeliness 15 is what we're discussing. But at each of our filings, 16 we have filed timely, based on the public piece that 17 we were now privy to.

18 The Freedom of Information Act response 19 was many very significant puzzle pieces, smoking gun 20 emails that we had not seen before, that said things 21 like a small additional load could fail the shield 22 building 90 percent. 27 of the 30 inches of the 23 shield building wall could collapse from a small 24 additional load, and later, the same individual, Abdul 25 Sheikh, says the shield building was not designed for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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498 1 reactor accident pressures --

2 JUDGE KASTENBERG: We'll, yeah. Let's 3 take this in -- we're going to get to all of this 4 before we're done here. Right now, it's timeliness is 5 the issue we're trying to deal with.

6 JUDGE FROEHLICH: In the arena of 7 timeliness, could I ask Mr. Matthews, the letter to 8 which both you and Mr. Kamps have referred to, the 9 letter to investors, to whom is that sent? What is 10 the scope of its distribution?

11 MR. MATTHEWS: May I have one moment, 12 Judge Froehlich?

13 JUDGE FROEHLICH: Sure.

14 (Pause.)

15 MR. MATTHEWS: Judge Froehlich, we'll have 16 to take that as an action to follow-up with you, as to 17 where it went. It went to news outlets. It was 18 certainly picked up in the financial media. I know 19 that one of the Bloomberg reports picked it up. That 20 was my copy of it.

21 JUDGE FROEHLICH: Okay. That's his 22 position, that that letter to investors was then 23 picked up by the media, and from the -- either from 24 the letter itself or from the media, whenever the 25 Intervenors had access to it, that should be a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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499 1 milestone.

2 MR. MATTHEWS: The company posted it on 3 its Media Relations or the Industrial Relations 4 website, which is their investment community website, 5 and made it available. News outlets picked it up, and 6 I don't remember off the top of my head whether it was 7 a Plain Dealer article.

8 But I don't think there's been any dispute 9 that Intervenors were aware of it. I mean whether or 10 not it was available, Intervenors purport to have 11 actual knowledge of it.

12 MR. KAMPS: but my point was that it was 13 not a trigger. It was downplaying the significance of 14 the cracking.

15 JUDGE FROEHLICH: Okay. Because we're 16 talking about timing, does your objection, Mr.

17 Matthews, to the consultation requirement apply to the 18 initial contention?

19 MR. MATTHEWS: It does not, Judge 20 Froehlich.

21 JUDGE FROEHLICH: It does not. So in our 22 discussion of the timeliness of the, for the admission 23 purposes, we'll focus on timing, the objection, and 24 the concern about the consultation doesn't apply to 25 the initial filing; is that correct?

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500 1 MR. MATTHEWS: That's correct.

2 JUDGE FROEHLICH: Okay.

3 JUDGE TRIKOUROS: I'd like to get started 4 by asking first of all, is this a safety contention or 5 an environmental contention?

6 MR. LODGE: I assume you're asking us 7 that?

8 JUDGE TRIKOUROS: Yes, and I thought I was 9 looking your way.

10 MR. LODGE: You were, but then you looked 11 at everybody else.

12 JUDGE TRIKOUROS: Okay.

13 MR. LODGE: Both. The answer is we 14 believe it is both.

15 JUDGE TRIKOUROS: Both?

16 MR. LODGE: Yes.

17 JUDGE FROEHLICH: And I guess we should 18 look at the contention itself. I notice that the 19 contention was first put forward in the motion, and 20 then it remained the same, as I understand it, through 21 the five amendments; is that correct?

22 MR. LODGE: Yes.

23 JUDGE FROEHLICH: All right.

24 JUDGE TRIKOUROS: I guess I can understand 25 the safety aspects of this contention, as it relates NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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501 1 directly to license renewal. What is the 2 environmental side of this contention? Is it, how 3 does it -- can you help me with that?

4 MR. LODGE: If there were serious damage 5 accomplished as a result of the cracking to the 6 structure, it could then be subject to external 7 events, whether it be a plane crash, an earthquake, 8 more bad weather.

9 JUDGE TRIKOUROS: but every safety 10 contention you could make that argument for, right?

11 I mean there's nothing in the environmental report or 12 that's associated with this, right? This is all in 13 the license renewal application safety side, right?

14 It's not in the environmental side of this LRA?

15 MR. LODGE: I wonder if I might defer an 16 answer to that until tomorrow? I believe there is a 17 reference in the environmental report.

18 JUDGE FROEHLICH: I'm sorry. Could you 19 speak up please?

20 MR. LODGE: I'm sorry. I wonder if I 21 might answer you, Judge Trikouros tomorrow on that 22 question, because --

23 JUDGE FROEHLICH: That's fine. We're 24 getting towards the end of the day anyway, so that's 25 fine.

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502 1 (Simultaneous speaking.)

2 JUDGE KASTENBERG: Could I follow up on 3 that?

4 JUDGE FROEHLICH: Yes, certainly.

5 JUDGE KASTENBERG: It would be helpful for 6 me to just read the contention, which then stays the 7 same through all five amendments?

8 MR. LODGE: Yes.

9 JUDGE KASTENBERG: So the contention reads 10 "Intervenors contend that FirstEnergy's recently-11 discovered extensive cracking of unknown origin in the 12 Davis-Besse shield building secondary reactor 13 radiological containment, is an aging-related feature 14 of the plant, the condition of which precludes safe 15 operation of the atomic reactor beyond 2017 for any 16 period of time, let alone the proposed 20-year 17 license."

18 I assume you mean "relicense period." So 19 here you state it's an aging-related feature, and 20 Judge Trikouros just asked is it safety or 21 environmental, and this is what, basically what you're 22 saying. It's aging-related. Does that make a 23 difference, whether it's environmental or whether it's 24 --

25 That's something you can ponder tonight NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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503 1 and perhaps come back with us tomorrow. The other 2 question I have here is to explore with you, is this 3 question of unknown origin. Now they've done a root 4 cause analysis, and so I'd like to hear a little bit 5 about that, and perhaps it's getting late, but perhaps 6 tomorrow or today.

7 But there are aspects of this contention 8 which on first reading and second reading, fifth 9 reading through each, that there's a very dynamic 10 situation here. Yet the contention is basically --

11 well, not basically, is that it stayed the same.

12 You've not changed the contention, and I'd like to 13 hear more about that.

14 JUDGE TRIKOUROS: I mean one could take 15 the position that this contention has been mooted, Mr.

16 Lodge.

17 MR. LODGE: Yes.

18 JUDGE TRIKOUROS: One could easily take 19 that position, and we'd like to understand why we 20 shouldn't take that position. Also, all of these 21 amendments have never resulted in an amended 22 contention, all of these supplements and what you call 23 amendments/supplements. What are we -- what are you 24 -- what is your position with respect to what you 25 wanted all of those supplement amendments to do with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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504 1 respect to the initial contention?

2 So we don't have to get into that tonight.

3 I would just want to give you that, because that 4 should be something we discuss tomorrow perhaps at 5 length, because you know, you've done this five times 6 and, you know, we need to understand what your 7 intention was in the way that you did this.

8 MR. LODGE: Fine, thank you.

9 (Off record discussion.)

10 JUDGE KASTENBERG: You so eloquently spoke 11 to the fact that there are two aspects of this: one 12 is procedural and one is, you know, under the various 13 aspects of the contention itself, and we may be at a 14 good breaking point, I think, if we're finished with 15 the procedural portion, at least from my view.

16 JUDGE FROEHLICH: I agree with my 17 colleague. I think we have talked about the 18 procedural point as to the motion itself, and that's 19 probably going to be the most important procedural 20 date, as I understand it, because as my colleagues 21 have alluded to, all the amendments or all the 22 supplements don't change the original contention.

23 I hope I'm saying that correctly. If I'm 24 not, you'll correct me overnight when you come back 25 tomorrow. So I think all the supplements are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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505 1 contingent on the initial contention being admitted.

2 I don't think it's your intent that any of the 3 supplements could or should stand by themselves, or 4 could stand by themselves. If I'm wrong on that, 5 you'll correct me tomorrow as well.

6 So with that caveat, I think we've 7 finished the procedural questions as to the original 8 motion. It is late in the day. I think we will 9 adjourn for today, and pick up tomorrow, and hopefully 10 get into the substantive aspects of this, and by that 11 I mean following up to Judge Trikouros' questions on 12 where the contention is going, what it is that the 13 Intervenors want done that I guess the staff at this 14 point is satisfied has been done, or what the 15 Applicant should be doing that they're not doing.

16 Anything that any of the parties wish the 17 Board to be thinking about overnight, as we proceed 18 tomorrow with the substantive matters? It's not quite 19 fair that we give you homework. You can give us 20 homework at this point, if you want to focus our 21 attention for the overnight hours, to help get through 22 tomorrow, the substantive matters. Staff?

23 MS. KANATAS: Yes, Your Honor. I 24 appreciate the opportunity. Since we have gotten over 25 the first hurdle, in terms of the timeliness, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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506 1 procedural aspect of the burden that the Intervenors 2 bear, and tomorrow we will focus on the substantive 3 2.309(f)(1) standards, I think it's important for the 4 Board to note that in the first three supplements, the 5 Intervenors did not even address the 2.309(f)(1) 6 standards.

7 In the fourth and fifth supplements, they 8 did address them, but they indicated in their, I 9 believe in the fifth motion to supplement, it started 10 on page 92 through 95, exactly what the basis of their 11 concern was, which was that the restart was improper 12 and the scope of their contention was the plan to have 13 a plan to reestablish design basis, which is not 14 within the scope of this proceeding.

15 So even when they did address the 16 2.309(f)(1) factors, they only served to reinforce 17 that the claims that they were making were out of 18 scope and immaterial to the findings that the staff 19 had to make. Thank you.

20 JUDGE FROEHLICH: Thank you. Mr.

21 Matthews?

22 MR. MATTHEWS: I'd return to the two 23 questions I had in the beginning that I think are 24 central, despite how convoluted the record might be, 25 and we'll walk through the rest of the procedural NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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507 1 issues. The Board will determine what's left in or 2 what's not.

3 But from what's left in, the real question 4 is have the intervenors identified some aspect of the 5 license renewal application or environmental report, 6 a citation to some section of either of those 7 documents, that is somehow inadequate, and if they 8 have, have they supported it?

9 Have they provided some basis, as the 10 Commission has instructed us, for that material issue?

11 I don't think that either of those questions is very 12 difficult to resolve, regardless of how much of the 13 record is timely or not.

14 JUDGE FROEHLICH: Intervenors.

15 MR. KAMPS: Just since it sounds like 16 we're closing out the discussion of timeliness and 17 that process, I just wanted to respond to what 18 FirstEnergy's counsel had said.

19 I responded to the October 31st, 2011 20 investor letter already, but I hadn't responded yet to 21 the David Lochbaum letter, which is dated November 22 4th, 2011, as cited in our initial contention.

23 Again, this was written in hindsight, as 24 we put pieces of the puzzle together after the Camp 25 Perry meeting. What I wanted to point out is at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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508 1 time on November 4th, if you look at the David 2 Lochbaum letter, it itself is asking questions.

3 These are not statements of fact. In 4 fact, Lochbaum summarizes by expressing these as 5 conditional allegations, and I'll just read them, 6 they're short.

7 "The Union of Concerned Scientists would 8 prefer that the NRC answer the questions above before 9 Davis-Besse restarts, but we realize the NRC may lack 10 the process and means to do so. If that is the case, 11 please consider the following two items with the 12 agency's allegations program.

13 "Number one, the design evaluation and 14 analysis for the shield building did not properly 15 consider the dead load from the 'non-structural 16 architectural concrete' attached to it, and number 17 two, the shield building wall was not sufficiently 18 examined for an indication of cracking."

19 So this was not a triggering event for us.

20 This was more asking of questions, just as Congressman 21 Kucinich did on January 5th at Camp Perry. Those were 22 mounting pieces of the puzzle, that January 5th 23 finally was a critical mass that caused us to act.

24 So I just had to respond, that that 25 November 4th date is not a trigger that would have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433

509 1 resulted in a January 6th deadline for filing. Our 2 perspective is that we filed not within 60 days but 3 within five days actually.

4 JUDGE FROEHLICH: I think our evening 5 work, all across the parties and the Board, is set 6 now. We'll resume tomorrow morning at 9:00 a.m.

7 Hopefully, we'll go through the substantive aspects.

8 We will use the standards in 2.309 to evaluate the 9 contention and its amendments. With that, we'll stand 10 adjourned and resume tomorrow at 9:00 a.m.

11 (Whereupon, at 4:09 p.m., the hearing was 12 recessed, to reconvene on Tuesday, November 6, 2012 at 13 9:00 a.m.)

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.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433

CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Davis Besse Nuclear Power Station Docket Number: 50-346-LR ASLBP Number: 11-907-01-LR-BD01 Location: Toledo, Ohio were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.

Official Reporter Neal R. Gross & Co., Inc.

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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