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{{#Wiki_filter:Official Transcript of ProceedingsNUCLEAR REGULATORY COMMISSIONTitle:Oral Arguments in the Matter of:Fermi Nuclear Power Plant Unit 2Docket Number:50-341-LR ASLBP Number:14-933-01-LR-BD01Location:Monroe, Michigan Date:Thursday, November 20, 2014Work Order No.:NRC-1233Pages 1-233NEAL R. GROSS AND CO., INC.Court Reporters and Transcribers1323 Rhode Island Avenue, N.W.Washington, D.C. 20005(202) 234-4433 1UNITED STATES OF AMERICA1BEFORE THE NUCLEAR REGULATORY COMMISSION2Before the Atomic Safety and Licensing Board3+  +  +  +  +  4ORAL ARGUMENTS5------------------------------6IN THE MATTER OF:              Docket No.7DTE ELECTRIC COMPANY            50-341-LR8FERMI NUCLEAR POWER PLANT      ASLBP No.9UNIT 2                          14-933-01-LR-BD0110------------------------------11Thursday12November 20, 2014139:00 a.m.14Monroe County Courthouse15125 East Second Street16Board Meeting Room17Monroe, Michigan18BEFORE:19Ronald Spritzer, Administrative Judge20Nicholas G. Trikouros, Administrative Judge21Gary S. Arnold, Administrative Judge2223 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2PRESENT:1For the Office of Commission Appellate:2Administrative Judges:3Ronald Spritzer4Nicholas G. Trikouros5Gary S. Arnold67NRC Staff:8Jeremy Wachutka9Brian Harris10Joseph Lindell11Catherine Kanatas1213Counsel for Applicant/DTE Energy:14Derani M. Reddick15Tyson R. Smith16Jon P. Christinidis1718Counsel for Joint Petitioners (Morning Session):19Terry Lodge20Paul Gunter21Kevin Kemps2223 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 3Counsel for CRAFT (Afternoon Session):1James Sherman2Jessie Pauline Collins3Sandra Bihn4David Schonberger56 7
8 910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 4P R O C E E D I N G S1(9:01 a.m.)2JUDGE SPRITZER:  Good morning. My name is3Ronald Spritzer. I am an Administrative Judge with4the Atomic Safety Licensing Board panel. We are here5today to hold oral argument on contentions in the case6of DTE Electric Company, the application for the7licensing of Fermi Nuclear Power Plant Unit 2. This8is Docket No. 50-341, also ASLBP No. 14-933-01-LR-9BD01.10The purpose today, for the members of the11public who may be here, is to review the arguments for12and against the addition of various contentions of13legal claims that have been advanced in this14proceeding. I've already identified myself. Again,15my name is Ron Spritzer, I'm an Administrative Judge16and an attorney. I'll ask my two colleagues to my17right and left to identify themselves.18JUDGE ARNOLD:  I am Judge Arnold. I have19been a Technical Administrative Judge on the panel for20six years. I have a Ph.D. in Nuclear Engineering and21my original career was in the Naval Reactors Program.22JUDGE TRIKOUROS:  I am Nick Trikouros. 23I've been a full-time Judge for nine years. My24degrees are from Fordham and NYU and NYU Polytechnic25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 5Institute in Physics and Nuclear Engineering.1JUDGE SPRITZER:  In addition, we have a2court reporter to my far left. Next to him is Mr. Joe3Deucher who is our technical expert. If we're having4any problems with microphones or any other kind of5electronic technical issues, he's the guy to ask. And6our law clerk, Nicole Pepperl, is next to him.7Why don't we go through and have the8representatives who are seated up here in the front9identify themselves?  We'll get to CRAFT, we'll give10you an opportunity to identify CRAFT representatives. 11Why don't we start with the NRC staff?12MR. HARRIS:  Good morning, Judges. I am13Brian Harris, the legal counsel for the Fermi14proceeding. To my right is Jeremy Wachutka who will15be handling a lot of the Beyond Nuclear contentions. 16And seated right behind me are Cathy Kanatas and17Joseph Lindell which will be handling some other18contentions for this proceeding.19JUDGE SPRITZER:  Great, glad to have you. 20And for the Joint Intervenors?21MR. LODGE:  Good morning, Your Honors. 22I'm Terry Lodge, I am the counsel for three of the23Intervenors, that would be Don't Waste Michigan, the24Citizens Environment Alliance, and Beyond Nuclear. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6Seated to my left is Paul Gunter, he will be the lead1presenter on our first contention. I will handle2number two. And behind me is Kevin Kemps who will be3on contention number four.4JUDGE SPRITZER:  Great, thank you. And5for the Applicant?6MR. SMITH:  My name is Tyson Smith with7Winston & Strawn. With me I have Jon Christinidis who8is an attorney for DTE Electric Company. And Derani9Reddick is a colleague of mine at Winston & Strawn.10JUDGE SPRITZER:  Great. Before I proceed11any further, I don't know whether there are any county12government representatives here, but we'd like to13thank them for the opportunity to once again use their14facilities. This is my first time here and the people15have been extraordinarily accommodating and helpful in16making it possible for us to have this hearing.17As hopefully you all know, there are break18rooms available. We will be taking breaks. This is19not an endurance contest. I think we'll probably go20an hour, an hour and-a-half or so before we take our21first break. 22Our plan, our tentative plan which is23always of course subject to, if we can get through the24Beyond Nuclear contention this morning. Hopefully by25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7noon, we will at that point break for lunch, and then1we would take up the CRAFT contentions in the2afternoon. However, if we happen to finish earlier3with Beyond Nuclear contentions, we'll move into those4before lunch. So, CRAFT should be prepared to move5forward before lunch if that's necessary.6It's been emphasized to us by the court7reporter, and I'm sure you all will do this, but8please speak into the microphone as necessary for the9reporter to be able to pick out what you have to say10and include that in the transcript. Of course we want11to have a complete transcript so we can look at it and12provide us a complete record. So, the proceedings are13being recorded. Before, at least each representative,14before you begin speaking on a particular contention,15it would be helpful if you would identify yourself16both for our benefits to refresh our recollection and17again for the record.18We've been over, we have an order that19sets forth the order of arguments, so I assume20everyone knows that. We'll be starting with the21Beyond Nuclear contentions, Contention 1 followed by22Contention 2, then Contention 4. Beyond Nuclear Joint23Intervenors, or Joint Petitioners I guess I should24refer to you as, you'll have 15 minutes per contention25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 8but you may reserve about five minutes for rebuttal. 1And I believe we have 10 minutes for staff and for the2panel.3And so we've covered breaks, we'll take it4around 11:00 or 10:30 to 11:00, depending on where we5are. I'll ask my colleagues if they have anything to6add before we get started.7JUDGE ARNOLD:  Well, first off, I want to8clear up some, Judge Spritzer keeps saying so much9time for presentation. You can expect most of your10presentation time to be occupied answering our11questions. This is not an opportunity to provide new12information. We are basically looking for an13explanation of the information that's in the petition14itself.15JUDGE SPRITZER:  Yes, that's true. 16Everybody should, I think we covered that in our order17that we're mainly here to, you're mainly here to18answer our questions, not introduce new information or19new evidence, new arguments that haven't been included20in the filings that we have already.21All right. Before we get started, do any22of the representatives have any questions for us?  If23not, hearing no questions, we'll move to Beyond24Nuclear Contention 1. For any members of the public25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 9who happen to be here, this contention concerns, as1several of the Beyond Nuclear contentions, concerns2something called Severe Accident and Mitigation3Alternatives which is something that the Applicant4initially or later the Nuclear Regulatory Commission5in its environmental impact statement are required to6take into account, that is, alternative action or7procedures that would help mitigate, reduce the8likelihood of or mitigate the effects of a severe9accident should one occur no matter how unlikely that10may actually be.11All right. Why don't we start with Beyond12Nuclear's Contention 1?13MR. GUNTER:  Okay, thank you. All right. 14That was the all clear I hope.15COURT REPORTER:  We might just want to16have you move it back just a little.17MR. GUNTER:  Okay, how is that?18JUDGE SPRITZER:  Fine for us.19MR. GUNTER:  Okay, good. Thank you and20good morning. My name is Paul Gunter and I am with21the Reactor Oversight Project at Beyond Nuclear. And22I think that the Judges have basically given the23general overview here that this Contention 1 deals24with the --25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 10(PA microphone feedback.)1MR. GUNTER:  Paul Gunter, I'm with Beyond2Nuclear. The contention before you this morning has3to do with our concerns that Detroit Edison's4environmental report, Severe Accident and Mitigation5Alternative analysis, is significantly deficient. And6you know, just, I think the primary point here is that7as our contention addressed the very demonstrative and8well-articulated NRC staff concerns with regard for a9SAMA looking at the filtered hardened vent. We have10both the Applicant and the NRC Office of General11Counsel who are silent on CEQ 2012-01-57. This CEQ12consideration of additional requirements for13containment venting systems for boiling water reactors14with Mark 1 and Mark 2 containments, we draw upon the15staff's own findings, principally through Robert16Freds, John Denning, and Robert Moniger whose17conclusions and recommendations found that a filtered18vent was in fact cost beneficial for the Mark 1 and19Fermi 2 being a Mark 1.20The staff states that --21JUDGE SPRITZER:  Mr. Gunter, let me ask a22question on that. As I understand it, they either23already have or are under NRC order to have the24hardened vents. I take it what you want them to add25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11is some type of, what is it called, engineered filter1that would remove radioactive particles in the event2of a severe accident?3MR. GUNTER:  Judge Spritzer, what we4really want is for the Applicant to do a thorough NEPA5analysis. It's also incumbent upon the Agency to6require DTE to meet the standard of NEPA law. And7that's, so we're not asking for a proceeding here on8a requirement for an action on the part of DTE. What9we're asking for is that a thorough analysis be done,10and we find the Applicant's application is deficient11upon this area.12They have outlined that they did a review13with SAMA 123. There is no dispute there. What the14dispute is, is that the staff in CEQ 2012-01-57, after15going through the backfit analysis and all the16guidance documents for a backfit analysis, the various17NUREGs, they determined that when you do the18quantitative and the qualitative analysis, as is19incumbent upon this review for a substantial safety20enhancement which is what the staff found for the21filtered vent, that you come up with a cost benefit22analysis.23JUDGE SPRITZER:  But was that evaluation24done specifically for Fermi 2 or was this a generic25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12Mark 1 containment?1MR. GUNTER:  It was done for the Mark 1. 2Now, NEPA requires a site specific analysis, and3that's where we find the dispute that after, you know,4very, you know, we reviewed several Advisory Committee5on Reactor Safeguard proceedings. There's extensive6staff transcribed testimony that points to a very7strong argument for, and a well-documented record8again with following all of the procedures before the9NRC that concluded that when you do the hard look, you10find that the filtered vent is cost beneficial. And11--12JUDGE TRIKOUROS:  Mr. Gunter, let me13interrupt you.14MR. GUNTER:  Yes, sir.15JUDGE TRIKOUROS:  Are you referring16specifically to the SAMA analysis in the ERs?  Is that17what you're saying that NEPA should look at that,18requires them to look at that?  Where are you19referring to?20MR. GUNTER:  The Severe Accident and21Mitigation analysis.22JUDGE TRIKOUROS:  Is that what you're23referring to?24MR. GUNTER:  I'm sorry, say it again?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13JUDGE TRIKOUROS:  Is that what you're1referring to?2MR. GUNTER:  Yes, sir. Specifically,3we're looking at the SAMA alternative for this4particularly vulnerable containment system. I think5we all acknowledge that the Mark 1 pressure6suppression system is vulnerable. It's no longer7hypothetical or theoretical. It's demonstrated by the8Fukushima Daiichi accident. And so, it's now9incumbent upon the Agency and the Applicant to take10this severe accident initiative very seriously and to11look at it in the context of NEPA law.12JUDGE TRIKOUROS:  So, you're --13JUDGE SPRITZER:  Let me just interrupt for14a second. One thing I forgot to mention earlier,15Nicole will be holding up the cards. Let's see, you16didn't ask to reserve five minutes for rebuttal. Do17you want to reserve five minutes for rebuttal?18MR. GUNTER:  Yes, sir.19JUDGE SPRITZER:  Okay. So, you have five20minutes left. She will be holding up a yellow card in21about three minutes.22MR. GUNTER:  So, was that three minutes23for real or that's where we're at right now?24MS. PEPPERL:  No, no, no, I was25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14demonstrating.1MR. GUNTER:  Okay, thank you. It was a2fast 15.3JUDGE SPRITZER:  I want to clear this up,4within your official ten minutes, but for everybody's5benefit, we will be holding up a three-minute card6when you're within three minutes of running out of7time. And she'll hold up a red card when your time8expired. However, if you're in the middle of a9question or the Board has additional questions for10you, we certainly want to give you the opportunity to11answer them.12MR. GUNTER:  Thank you.13JUDGE SPRITZER:  It's more interesting to14get your answer than finishing at a specific point in15time. Please continue.16MR. GUNTER:  Well, I think again, you17know, when the staff, the root of our contention and18the genuine dispute here is that the staff did follow19regulatory guidance and found a cost-justified,20substantial safety enhancement.21JUDGE SPRITZER:  That's the filters that22you were referring to earlier?23MR. GUNTER:  That's the filtered vent,24yes, sir.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15JUDGE SPRITZER:  Filtered vent, as opposed1to an unfiltered vent?2MR. GUNTER:  As opposed to an unfiltered,3hardened vent. 4JUDGE SPRITZER:  And what --5MR. GUNTER:  Now, you know, the industry6will argue that the Torus provides a water filter. 7It's our contention that the staff, with the JLD, what8they found was that the most compelling argument here9is the need for defense in depth. And the filtered10vent provides what the JLD determined to be a11reasonably justified, you know, alternative. To put12a filter gives you that, not only the direct benefit13under severe accident condition of the added ability14to filter out radiation, but indirectly it provided15operators with the ability to take early action to16protect containment from other challenges such as17hydrogen gas and such. So --18JUDGE SPRITZER:  I think the NRC staff19document you're referring to is the one where they say20in terms of quantitative costs and benefits, the21filters don't meet the quantitative test but if you22add certain qualitative factors including defense in23depth, they think they are advisable.24MR. GUNTER:  And that's, yes, sir, and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 16that's where the substantial safety enhancement1determination is important.2JUDGE SPRITZER:  Now, it doesn't mean that3they understood that. Did you find anywhere in the4records where the Applicant took into account or5grasped that staff recommendation?6MR. GUNTER:  No, sir. That's, this is our7point. In the response to the Petitioner's request8for hearing, both the Applicant and the staff were9silent on CEQ 2012-01-57.10JUDGE SPRITZER:  Now, you also referred to11a National Academy of Sciences report. Again, I take12it this report was not directed specifically at Fermi132 but is more a general review of how the NRC had done14a backfit analysis for again these engineered filters?15MR. GUNTER:  Yes, sir. In Appendix L, in16the NAS study, references the cost benefit analysis. 17And we contend that the NAS, in its report to the NRC18which was mandated by Congress, that their findings19justify the incorporation of both quantitative and20qualitative analysis.21JUDGE SPRITZER:  And they also refer,22again the National Academy of Sciences report, if I23recall it, it essentially criticized or suggested that24the NRC had used a six-billion-dollar figure for the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17cost of a severe accident at the Peach Bottom Plant.1MR. GUNTER:  Yes, sir.2JUDGE SPRITZER:  Whereas, they said, look3at Fukushima and the cost of that severe accident was4more in the nature of $200 billion.5MR. GUNTER:  Yes, sir.6JUDGE SPRITZER:  At least what I got out7of that was they were suggesting maybe $200 billion is8a little more reasonable estimate of the cost of9severe accident.10MR. GUNTER:  Well, I think that, our11interpretation is that the National Academy said that12you need to incorporate more broadly the qualitative13factors. And again, these are factors that still14don't have, they're not bounded by any certainty now,15and so again that's a very important factor as we go16through the requirements of NEPA and the backfit17analysis and the associated NUREGs that incorporate18the need for both quantitative and qualitative19analysis. 20And you know, I just, let me just check21here with my notes really quick because the SAMA for22the hardened vent, the filtered hardened vent that DTE23undertook, you know, it's not only silent on the CEQ24but they're also silent on whether or not they25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 18incorporated external events, whether or not they1thoroughly incorporated land contamination, how they2factored that in. And I think that that's the level3of detail that NEPA requires an answer.4JUDGE SPRITZER:  Including, you have five5minutes left total or five minutes left on the6initial.7MS. PEPPERL:  About four minutes actually.8JUDGE ARNOLD:  I think this is kind of9irrelevant because we've got questions that are going10to go long beyond ten minutes.11JUDGE SPRITZER:  Okay, go ahead.12JUDGE ARNOLD:  Sure, I can start. I have13questions in that I find some of the statements in the14contention to be very general rather than more15specific. So, I want to go through and ask you to16clarify some of the statements. For instance, on page177, the last paragraph says, "The deficiency18highlighted in this contention has enormous19independent health and safety significance."20Now, this is a contention on SAMA which is21a NEPA, an environmental law, and really doesn't22factor into the safety aspects of the plant. So, how23do you get that this has health and safety24connections?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19MR. GUNTER:  The impacts of unfiltered1radioactive releases raises a concern for the long-2term consequences of land contamination and population3relocations. And that carries with it health impacts. 4And so, you know, the idea again is you have a5mitigation alternative that both directly can benefit,6both directly and indirectly benefits because it7provides the filter element which can significantly8reduce the land contamination event, for example, but9it also provides an indirect benefit in that it will10give operators the freedom to act early to, in early11interventions to prevent containment failure.12So, you know, it gives them a broad13opportunity to vent without necessarily, you know,14with this passive filter in it, they can vent15hydrogen, they can vent pressure. So, you know, in16fact it has both the operation to keep the plant safe17under severe accident condition, but with this passive18condition of a filter, it reduces the consequence of19a severe accident impact such as land contamination.20JUDGE ARNOLD:  In that same paragraph, you21say, "Applicant does not adequately or accurately22account for the long-recognized design and structural23vulnerabilities in the Mark 1 pressure suppression24containment system," as if there are many25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 20vulnerabilities. What specifically are you talking1about?2MR. GUNTER:  We're talking about the fact3that Generic Letter 89-16 did not go through a safety4evaluation. And so, this was for the hardened vent5that was put on all Mark 1's and that Generic Letter689-16 basically, the NRC requested the hardened vent7be installed on these Mark 1's because of where NUREG81150 recognized that the containment was very likely9to fail. This has been acknowledged and I think it's10in our statements that, as early as 1972, this11vulnerability to failure because the Mark 112containment is essentially undersized for the, you13know, it was never evaluated --14JUDGE ARNOLD:  So, briefly, are you saying15that they failed to account for the fact that the16containment can fail?17MR. GUNTER:  They, the containment can18fail early and the containment never, and the19subsequent mitigation actions such as Generic Letter2089-16 did not account for severe accidents.21JUDGE ARNOLD:  On page 8, in paragraph221.3.1, "Petitioners contend that the absence of23analysis and neglect of mitigating alternatives24including engineered external high capacity filters on25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 21hardened containment vents may result in unanalyzed,1unmitigated, and uncontrolled releases of2radioactivity to the environment."  Okay, so right3there you specifically say they didn't analyze high4capacity filters. Were there other alternatives that5you believe they did not analyze?  Or did not6adequately analyze?7MR. GUNTER:  We didn't articulate that in8the contention, but yes. There are bypass pathways9within the containment that -- 10(PA microphone feedback.)11MR. GUNTER:  Is that me?12JUDGE ARNOLD:  Keep going.13MR. GUNTER:  Okay. For example, you know,14right now the way that the current order EA-2013-10915is progressing, and we've been watching this very16carefully, a lot of the Applicant's eggs are going17into this basket that they can rely upon maintaining18an open vent path through the wet well. And that19raises some concerns because the wet well can in fact20get flooded, and if you flood the wet well, you21exclude the use of that vent path. And while there22may be other vent paths out through the dry well, many23of them vent directly into the containment building,24or into the reactor building, and thereby raises some25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 22issues on hydrogen gas generation, detonation ignition1points.2So, yes, there are a number of extenuating3issues here that what the CEQ 2012-01-57 provides in4terms of answering defense in depth is that a filter5venting system that's hardened both off the wet well6and the dry well gives you that defense in depth. And7they believe that it's cost beneficial and that they8arrived at this idea that it is a substantial safety9enhancement.10JUDGE ARNOLD:  Let me just explain what11the problem is with the lack of specificity here. A12contention, if it's admissible, has to be sufficiently13specific that an applicant or a licensee knows what14they have to defend against. They can defend against15a claim that it lacks an analysis of a filtered vent16but they can't defend against a claim that, and they17didn't analyze other things,' because they just don't18know what the contention is.19MR. GUNTER:  Right. Well, the filter20component addresses the defense in depth issue that21these other extenuating circumstances involve.22JUDGE SPRITZER:  So, for you, the primary23focus of this contention is really the lack in the24SAMA relating to --25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 23MR. GUNTER:  The filter.1JUDGE SPRITZER:  The filtered vents?2MR. GUNTER:  Yes, sir.3JUDGE SPRITZER:  Okay.4JUDGE TRIKOUROS:  Yes, well, first of all,5you keep discussing the Fukushima accident, and I have6no problem with that. But one thing I want to make7sure is that we really understand the Fukushima8accident and that we look at it in its entirety in9terms of what also occurred that was good as opposed10to what was bad. In the first regard, I'd like to say11that, is it your assertion that only Mark 1 BWRs at12that site would have experienced severe accident13conditions given the conditions that occurred in14Fukushima?15MR. GUNTER:  Well, we're only dealing with16the Mark, we're dealing with the Mark 1 in this17proceeding. You know, I'm not going to make18assertions beyond that.19JUDGE TRIKOUROS:  I understand. But you20have been discussing Mark 1 in the context of21Fukushima in a way that makes one believe that a Mark221 is worse than all other, you know, reactor23containment designs.24MR. GUNTER:  Yes, sir.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 24JUDGE TRIKOUROS:  Yes. I think what I1should love to put on the record here is I think any2PWR or BWR, other than the advanced reactors that were3at that Fukushima site would likely have experienced4the melt.5MR. GUNTER:  Yes.6JUDGE TRIKOUROS:  Most certainly, if they7lost DC power. So, you know, I just want to put that8in perspective.9MR. GUNTER:  Yes, sir. But you know, I10think that when you start incorporating the, you know,11the analysis, we've now moved beyond theoretical12analysis in that we need to incorporate experience13and, you know, where the Applicant could say that,14well, you know, the odds here are so remote that we15don't really have to worry about this. But we've had,16you know, now three severe accidents in roughly the17last three decades, and three of those, one of those18accidents involved three Mark 1's that were operating. 19And so, that's why we, you know, feel that20the CEQ 2012-01-57, the fact that it's, just that the21OGC and the Applicant are silent on that, we find22there is no justification for that. They need to23address reality and they need to address what the24staff provided in terms of regulatory procedure, the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 25backfit rule and guidance.1JUDGE ARNOLD:  On page 10 of the2contention, halfway down the page, you said, "However,3the Petitioners point out that the Applicant's4description of the Mark 1 pressure suppression5containment does not acknowledge, factor in, or6incorporate analysis of, and otherwise ignores the7long recognized and still unresolved vulnerabilities8of the General Electric Mark 1 boiling water reactor9pressure suppression containment system."10Are you contending that there is11information in their containment description that is12incorrect?13MR. GUNTER:  Yes, sir. There is no14reliable containment on a Mark 1, containment being15radiation containment.16JUDGE ARNOLD:  Can you point to what in17their description is wrong?18MR. GUNTER:  Well, that the, I think that19what we point to is the evidence and conclusions and20findings of CEQ 2012-01-57, that you need, that in21order to have the defense in depth, that in order to22meet the letter of NEPA, that you put a filter on a23venting system, and that provides with the defense in24depth of containment specifically for containing25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26radiation under severe accident conditions.1JUDGE ARNOLD:  Now, if you say their2description of the containment is incorrect, how is3this not a concern with the current licensing basis?4MR. GUNTER:  Well, we're not, you know,5again we have raised within the context of the6contention generic design criteria 16. But you know,7as you've pointed out, I think that's more background8than it is relative to this particular proceeding9because we're look at the SAMA analysis for the10license extension.11JUDGE ARNOLD:  So, you're not specifically12challenging their description; you're just using that13as evidence on this?14MR. GUNTER:  As background, yes, sir.15JUDGE ARNOLD:  Okay. Page 11, halfway16down the page, "The NRC further concluded that the17demonstrated safety margin," oh, this is, yes, where18first you're talking about the general design19criteria. Is this another background to support your20SAMA claim?21MR. GUNTER:  Yes, sir. They, you know,22the fact is that it's well established that the23containment is vulnerable and that, so, in light of24the severe accident analysis that they're currently25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27required to go through for the license extension, that1their SAMA analysis on the filtered vent needs to2incorporate these issues.3JUDGE TRIKOUROS:  Yes, Mr. Gunter, your4evaluation in these pages that Judge Arnold is talking5about are dealing with the issues raised by Dr.6Hanauer years ago. 7JUDGE SPRITZER:  Speak into the mic.8JUDGE TRIKOUROS:  Yes, unfortunately, this9doesn't reach over. Is that better?10MR. GUNTER:  Yes. Yes, sir.11JUDGE TRIKOUROS:  Okay. And those12vulnerabilities were identified years ago, something13in the range of 40 years ago actually. And there were14extensive NRC licensing activities associated with all15of these Mark 1 issues, and there were modifications16made to the plants to overcome these issues. Are17these, is this what we're talking about, those18vulnerabilities that were identified back in the 70's?19MR. GUNTER:  I think that what we're20talking about in the context of this particular SAMA21is the hardened vent that was installed under Generic22Letter 89-16. And those were installed by TEPCO at23Fukushima Units 1 through 6 on the Mark 1's and the24Mark 2 there. And they did not provide the reliable25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28containment under severe accident conditions.1JUDGE TRIKOUROS:  Yes, I understand. And2even in our country, the hardened vents are very, the3hardened vent designs were plant specific, so I agree4with that. But you know, we aren't dealing with5orders that have been issued by the Nuclear Regulatory6Commission to modify all of this, right?7MR. GUNTER:  Yes, sir. But we're also8dealing with the National Environmental Policy Act and9the requirement to do the hard look analysis. And so,10I think that's what we have to incorporate here.11JUDGE TRIKOUROS:  In the SAMA analysis?12MR. GUNTER:  Yes, sir.13JUDGE TRIKOUROS:  All right. And so,14specifically, the Applicant, my understanding, I15looked at that and came up with something like a16factor of 40, not cost benefit on the basis of17something like a factor of 40.18MR. GUNTER:  Yes, sir. Therein lies the19genuine dispute that we have alleged because they do20not address, they are silent on CEQ 2012-01-57. And21a large body of NRC's own analysis that determined to22the contrary that the filtered vent was a cost23beneficial substantial safety enhancement, there's a24dispute there. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 29JUDGE ARNOLD:  I've still got plenty more. 1Page 13, first paragraph, you mentioned, "Petitioners2contend that new information for the 'maximum credible3accident' needs to be updated and incorporated into4the very Fermi 2 license renewal request."  This5maximum credible accident, are you suggesting that the6SAMA analysis should be based upon worst case7accidents?8MR. GUNTER:  I'm saying it needs to be9based on what we've seen to date, that in fact we now10have, we don't have a theoretical analysis, we have11real life demonstrations with three operating Mark 1's12that failed the containment. And the severe accidents13are not remote but they are credible. And we view the14Fukushima Daiichi accident as a prolonged station15blackout accident that happened three times.16JUDGE ARNOLD:  Once again, okay, on page1718,  being specific, "Petitioners contend that the18state of the art SAMA alternatives that significantly19reduce adverse radiological contamination to the20environment are readily available for install today21and applicable to the requested license renewal period22but have not been analyzed in the Applicant's23environmental report."  So far, the specific24alternatives I've heard of is a filter in the vent. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30Is there anything else specifically that should be1analyzed in SAMA and hasn't been?2MR. GUNTER:  Well, that's the focus of our3contention.4JUDGE ARNOLD:  Okay, agreed.5JUDGE TRIKOUROS:  Can I ask the staff one6question here?  What's the status of filtered vents in7the NRC licensing -- 8MR. HARRIS:  The status of filtered vents,9and it's actually, I believe the title of the10rulemaking is, it's not, it's filtering strategies. 11So, they're looking at filtered vents as a potential12rulemaking. That is ongoing. I believe the basis,13and I can look that up because I don't remember the14exact date that the basis is due, probably sometime in15the next six months, but I would want to double check16on that particular date. But they're having meetings17on the filtered strategies rulemaking, and whether or18not that will be a rule that's imposed on licenses in19the future. 20It grew up out of the orders and the CEQ21paper that we've been talking about where the22Commission took with the staff, actually, you know,23suggested that we want to require severe accident24capable events, but staff, please take, you know, as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31an action item to go look at the filtering, you know,1in a rulemaking because they did not accept what the2staff had recommended at that point.3JUDGE TRIKOUROS:  I just wanted to point4out that one has to be very careful about venting. 5There are circumstances in a boiling water reactor6where venting is a negative thing. And in fact, even7at Fukushima, there's Sandia National Laboratories at8least indicated --9JUDGE ARNOLD:  Judge Trikouros, we're not10supposed to be giving evidence. 11MR. GUNTER:  But I think that the Judge12does point out in reply is that the fact that the NRC13is ongoing with rulemaking on the filtered vent and14how it may or may not affect the Fermi 2 license15renewal proceeding, now is our time. We have standing16to address a specific aspect of what NEPA requires in17that NEPA mitigation alternative analysis is used in18site specific license extensions to identify if there19are any additional mitigation alternatives, hardware20or procedures, that are cost beneficial to implement21at Fermi 2 that can reduce the severe accident risk22probability and consequence. So, now is our time.23This is what NEPA provides us with. And24not to be put off three, four, five, indefinite, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 32know, years from now, this is our only opportunity1and, you know, we wish to exercise it.2JUDGE SPRITZER:  I take it, however, that3if the staff or the NRC did by regulation require4vents, this contention would effectively become --5MR. GUNTER:  Moot.6JUDGE SPRITZER:  Would it not?7MR. GUNTER:  If the filtered, if CEQ 2012-801-57 option 3 were implemented, this contention would9be moot.10JUDGE ARNOLD:  On page 20, the top11paragraph, last sentence says, "These uncontrolled and12unfiltered radiological releases and their13environmental consequences are not thoroughly or14adequately addressed by this Applicant's SAMA15analysis."  Now, originally, you were saying the16filtered vent wasn't analyzed, and now here you're17saying the unfiltered releases weren't evaluated. So,18is this an expansion of the contention or am I just19reading this wrong?20MR. GUNTER:  If I understand correctly,21can I see this?  Do you have it right here?  Can I22have one minute please or less even?23(Pause.)24MR. GUNTER:  The concern here is again25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 33that there are pathways of the pressure suppression1containment, dry well and wet well, that without a2filter aren't analyzed. I mean you can flood up the3wet well and preclude the venting for a Mark 1 for4Fermi 2. And while you may have other vent paths off5of the dry well, they are not adequately analyzed6because they open the operator to the same7vulnerabilities that we saw at Fukushima where8hydrogen venting right along with that radiation is9trapped in the reactor building itself, the secondary10containment where it can find an ignition point and11you have a catastrophic failure.12And I think that, again our point here is13that this is all analyzed in CEQ 2012-01-57 and the14staff's conclusion is that the defense in depth15involves a SAMA alternative for a filtered vent of16both the dry well and the wet well. And that's been17rejected by the Applicant and there again lies our18argument that we need to review this as a genuine19dispute.20JUDGE ARNOLD:  Can you tell me of any21legal requirement to address CEQ letters in a22relicensing application?23MR. GUNTER:  I think again that we go back24to the NEPA mitigation alternative analysis, that, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 34know, it's you, it's there for the site specific1licensing extension to identify viable, cost2beneficial mitigation alternatives.3JUDGE SPRITZER:  Okay, let's move on. 4We've  gone well over your time.5MR. GUNTER:  Thank you so much.6JUDGE SPRITZER:  But that's because you7were answering our questions and we will not penalize8you for the last five minutes of rebuttal. Let's move9on to the Applicant.10MR. SMITH:  Thank you. My name is Tyson11Smith for the Applicant. This contention appears to12have morphed from what was originally proposed. As13originally written, the contention is clearly a14contention of omission. The Petitioners note that, or15state that the ER fails to account, analyze and16consider engineered filtered vents.17JUDGE SPRITZER:  But the worst of the18statements though is to the effect of the adequacy as19opposed to omission, so the adequacy of doing the SAMA20analysis as opposed to omissions from it. It's really21a hodgepodge. It's got a whole bunch of stuff in22there. We've obviously spent a great deal of time23narrowing and focusing on the issue of this particular24SAMA but I take it this was actually considered, the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 35filtered vent, is that correct?1MR. SMITH:  That's correct.2JUDGE SPRITZER:  It was in SAMA --3MR. SMITH:  123.4JUDGE SPRITZER:  123. So, it's really,5you know, focusing on the adequacy of the6consideration and particularly the question of whether7this staff document and also the National Academy8report, perhaps some other specific documents should9have been evaluated. So, can you tell me, were those10considered in any way in the SAMA analysis?  Was it11done for the ER or that particular SAMA 123?12MR. SMITH:  Sure. That SAMA 123, the SAMA13analysis that was performed for Fermi was based on14NRC-endorsed industry guidance for performing SAMA15analyses. It takes into account the plant condition,16looks at a variety of accident sequences, and17postulates the consequences in terms of dose and18offsite consequences, looks at how those can be19reduced by a variety of alternatives. That is the20analysis that we presented. 21Now, the reference to CEQ 12-01-57, I22think my initial point was that wasn't really raised23and presented in their initial contention. That was24really only raised in their reply. So, when Mr.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 36Gunter says repeatedly that we were silent on that,1the reason for that is it wasn't really addressed2until the report. 3Though there is a citation to it in their4initial contention, that citation, when you actually5look at what it says, it says that the staff concludes6that based on its regulatory analysis, using standard7regulatory analyses techniques, concludes that8comparison of a quantifiable cost and benefits would9not by themselves demonstrate that the benefits exceed10the costs. And that's entirely consistent with the11conclusion of our SAMA analysis where we concluded12that the benefits of installing a filtered vent are on13the order $1.1 million where the cost is on the order14of $40 million. 15In order for the Intervenors, or the16Petitioners to have an admissible contention on a SAMA17analysis, they must present some basis for concluding18that what we've done is "unreasonable."  And the19Commission has reiterated this many times. The20techniques that we used, the standard probabilistic21model and techniques are standard and accepted22practices. And those are not reasonably disputed by23the Intervenors here in this proceeding.24JUDGE SPRITZER:  Okay. Let me just add,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 37I may be confused as to which document we're talking1about, on page 13, this is the --2MR. SMITH:  Correct.3JUDGE SPRITZER:  They do refer to this NRC4staff document, CEQ 2012-01-57 and quote from it5including the statement that when you add qualitative6factors, I'm paraphrasing here, I'm not quoting7literally, but when you add in qualitative factors,8that that would tip the balance in favor of the9filter. Was that specific document and its conclusion10that I just mentioned, was that analyzed in some way11in preparing the SAMA analysis or SAMA 123 or for that12matter any other SAMA?13MR. SMITH:  Well, I'll point you to the14sentence right before the one you read which says15that, "A comparison of the quantifiable cost and16benefits of the modifications would not by themselves17demonstrate that the benefits exceed the associated18costs."19JUDGE SPRITZER:  Right. No, I understand20that.21MR. SMITH:  So, the staff itself22acknowledges that just by using standard regulatory23analysis techniques, there is no benefit. It's only24when they consider these extra factors, qualitative25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 38factors, that they were able to, that the staff1concluded that there were benefits. That's not the2outcome of the Commission's vote which is to proceed3with a rulemaking to assess whether or not filtered4vents are warranted. So, if the question is does our5SAMA analysis expressly address qualitative factors,6the answer is no because that's not addressed in7current NRC accepted regulatory guidance, nor is that8the purpose of the SAMA analysis.9JUDGE SPRITZER:  So, it's your position,10in other words, that the qualitative factors that11they're stressing, that Petitioners are stressing, are12really outside the scope of the SAMA analysis you're13required to do?14MR. SMITH:  Absolutely. And --15JUDGE SPRITZER:  All right. Was there16any, you mentioned guidance, was there any regulation17or Commission decision, CLI decision that you can18point us to that addresses that issue?19MR. SMITH:  Sure. And per regulation20first, I'll point to 10 CFR 51.71(d) which says that21environmental impact statements should, to the fullest22extent practicable, quantify the various factors23considered. And that's exactly what we did here. 24JUDGE SPRITZER:  If I remember though,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 39doesn't that also say, address qualitative factors? 1This is 51.71(d)?2MR. SMITH:  D, correct. And so, it says3you may consider qualitative factors, but here4Petitioners have not identified what particular5qualitative factor we should have but did not6consider, nor did they identify how that would affect7the outcome of the analysis. They haven't, and the8Commission has repeatedly mentioned in numerous CLIs9that the purpose of the SAMA analysis is not to, is to10identify broadly whether there are likely cost11beneficial alternatives. 12And of course there are other ways you13could run the model or different inputs you could do,14but the purpose of it is to generally meet this15obligation and do a hard look which is also subject to16the rule. And that what we have done, what Fermi has17done by following standard NRC accepted techniques,18and that is by definition a reasonable approach. That19means it's incumbent on the Petitioners to identify20what is wrong or what factor would change the outcome. 21And certainly with the filtered vents they have not22done so yet.23JUDGE TRIKOUROS:  While Judge Arnold is24looking through his notes, let me ask you, would the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 40SAMA analysis you've done back years ago, would that1have allowed for the vents that are there now --2MR. SMITH:  I can't speculate as to3whether that would have been addressed that way at the4time or not. I think some of these questions about5the filtered vents obviously raise,  fundamentally are6current licensing basis issues. Their questions are7what's the adequate level of safety, and that's a8question that the Commission is currently grappling9with now in a rulemaking on filtering strategies. And10to suggest that somehow that issue is directly related11to the SAMA analysis here, I don't see how that's12possible and there's certainly no support for that.13JUDGE SPRITZER:  Let me see if I can, that14raises a question that I'll also ask to staff, but is15it your position that the fact that, just the fact16that the Commission is considering some additional17requirements with respect to filtered vents, does that18remove this contention regarding the SAMA 123 from our19jurisdiction?20MR. SMITH:  No, it does not. And again,21that's because we have considered SAMA 123 in our SAMA22analysis, it is part of the environmental report that23we provided. 24JUDGE SPRITZER:  But I take it you would25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 41agree then that as along as SAMA 123, as long as the1Commission is not taking some action that effectively2makes the SAMA 123 issue moot, we can still consider3their argument that you didn't do a good enough job of4analyzing that particular SAMA?5MR. SMITH:  Yes, that's correct. But6their argument that you didn't do a good enough job,7that argument must be supported by some reference to8our SAMA analysis. And the Commission has repeatedly9said that the question is not whether there are other10ways you could do that but whether the way that we did11it is unreasonable. And they certainly haven't shown12that here. They haven't shown what factor or what13events or what would have changed the outcome of the14SAMA analysis such that SAMA 123 would become cost15beneficial, either the cost of installing the filtered16vent is less or that the risk is so great that it17would make it cost beneficial. And they haven't put18forth sufficient information to establish and do not19speak on that issue.20JUDGE SPRITZER:  Let me just ask one other21thing and then I'll turn it over to Judge Arnold. We22were talking earlier about 10 CFR 51.71(d). That23actually is part of a section that deals with the24draft environmental impact statement and its contents. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 42Your client of course prepared the environmental1report. But do you agree that the language in251.71(d) is something we can look at in terms of3defining what the environmental report should contain4or no?5MR. SMITH:  Yes. I mean it's instructive. 6I mean the point of it I think is consistent with7general CEQ guidelines and general NEPA case law is8that you should to the extent practical quantify the9costs and benefits. Part of the reason for that is10that by quantifying it, you make the analysis11reproducible in some way. These are things like12qualitative factors that hinge upon who the decision13maker was at the time of the decision and how much14weight to give to some of these various factors. And15that again is not the purpose of the NEPA analysis or16the SAMA analysis in particular here which is to17provide information to the public about what the18alternatives were considered, what the costs and19benefits are those, and how that might drive some20decision making. That's exactly what we've done here21and the Petitioners haven't put forth any information22to call into question those conclusions.23JUDGE SPRITZER:  Well, 51.71(d) does say24though that to the extent there are important25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 43qualitative considerations or factors that you cannot1quantify, these considerations or factors will be2discussed in qualitative terms. Can you point us to3some, any part of the SAMA analysis with respect to4SAMA 123 that did that?  If not, if you can't give me5that, I'll let --6MR. SMITH:  Well, I mean I'll, you know,7start with the point which is DTE used longstanding8accepted SAMA analysis techniques based on NRC-9endorsed industry guidelines. It relied on site-10specific meteorological, population data, economic11data to estimate the costs and benefits. And it12concluded that the probability, weighted consequences13were less than the cost of the implementation of a14filtered vent. 15And I haven't heard anything from the16Petitioners, and certainly nothing is in their17contention or their reply to suggest that18consideration of any of these other unknown or unnamed19qualitative factors would affect that conclusion. And20the Commission has repeatedly said that's what it21takes to give a standard contention, they've got to22show that what we did was unreasonable. And relying23on standard accepted techniques is by definition24reasonable.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 44JUDGE SPRITZER:  All right.1JUDGE ARNOLD:  I actually don't have any2questions.3JUDGE SPRITZER:  All right. You're off4the hook I guess. There is this other issue related5to the National Academy of Sciences report. My rough6understanding of how the SAMA analysis would be done7is, one part of it is that at some point you would8estimate the cost of the severe accident that you're9analyzing,  environmental and public health costs, is10that --11MR. SMITH:  That's correct. It's based on12a probabilistic model that looks at a variety of13different scenarios and comes with named consequences14based on a year's worth of meteorological data.15JUDGE ARNOLD:  But it's not just an16estimate plucked out of the air?17MR. SMITH:  Correct, it's not a18deterministic analysis. It doesn't come up with a19conclusion. The number is, you're referencing $20020billion versus $6 billion. That's not how the SAMA21analysis worked. It doesn't rely, it doesn't start22from the total cost estimate and then work backwards23to what the accidents are. It actually does it the24other way.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 45JUDGE TRIKOUROS:  And in terms of the1vulnerabilities of a boiling water reactor, the Mark21 containments that were brought up by the3Petitioners, where specifically do you deal with those4within the structure of the SAMA analysis?5MR. SMITH:  All of those issues are6embedded in the PRA model that's the input to the SAMA7analysis. So, the plant is modeled, like I said,8probabilistic risk assessment, a PRA model that models9the behavior of the plant in response to certain10initiating events, and the frequency and the accident11sequences that are addressed in the SAMA analysis12incorporating the plan as currently designed and as it13has been responded to, making changes to address those14issues in the past. So, our starting point is here is15what the plan is and looking at all the different16accident sequences and scenarios that I think by17definition includes the plant's response to mitigate18the issues you're addressing in the past.19JUDGE TRIKOUROS:  And so, a vulnerability20in the Mark 1 would show up as a probabilistic number21--22MR. SMITH:  Correct.23JUDGE TRIKOUROS:  Failure number?24MR. SMITH:  That's exactly right, correct.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 46JUDGE TRIKOUROS:  Okay.1JUDGE SPRITZER:  And I take it you're2telling us that you haven't seen anywhere where the3Petitioners have challenged specific numbers you used4to say here are the numbers, the different numbers5that you should have used that would have potentially6at least changed the outcome of the analysis?7MR. SMITH:  That's exactly right. And8that's what the Commission has repeatedly said is9required for a SAMA analysis. You must show something10to show that the costs and benefits, if done11differently and in your way, would have resulted in12some SAMA becoming cost beneficial that wasn't before.13JUDGE SPRITZER:  Let me ask the same14essential question with respect to the National15Academy's $200 billion cost estimate for the accident16that Fukushima had. Is that, how if at all is that17factored, that issue of the overall cost estimate? 18What role does play in the SAMA analysis and would it19have made any difference in the National Academy's --20MR. SMITH:  It plays no role in the SAMA21analysis, and there is no way to use that figure in22the SAMA analysis. And that's a conclusion, the SAMA23analysis is a probabilistic analysis that looks at24failure probabilities, event probabilities, and then25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 47leads to an assessment of the cost of that accident. 1So, the bottom line number isn't an output of the SAMA2analysis. There is no way to use that bottom line3number in the SAMA analysis. That's actually, as I4was mentioning before, starting with an endpoint and5then working back to look at the results, that's not6the purpose the SAMA analysis.7JUDGE SPRITZER:  Do you, when you do the8analysis, do you do it both with and without this9particular SAMA that you're looking at?10MR. SMITH:  That's exactly how you11calculate the benefit of a particular SAMA. You run12the model without it and you run it with it, and then13that delta is the benefit of the SAMA.14JUDGE SPRITZER:  All right, I think I15understand.16JUDGE ARNOLD:  I did come up with a17question. In the contention on page 21, there is a18paragraph 1.3.4.2.  "Petitioners contend that the19Applicant's SAMA alternatives at Table D.1.5 are20overly and unrealistically optimistic by not21anticipating the potential for fuel damage in the22analysis and do not thoroughly or adequately address23the failure of the pressure suppression containment24with the uncontrolled and unfiltered radiological25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 48releases to the environment."1Question one, do you, at any place in your2SAMA analysis, just, you know, assume that there is no3potential for fuel damage?4MR. SMITH:  No, the SAMA analysis reflects5the potential for fuel damage.6JUDGE ARNOLD:  Okay. And do you model the7pressure suppression containment?8MR. SMITH:  Absolutely.9JUDGE ARNOLD:  And is there a mechanism10for it to fail in your analysis?11MR. SMITH:  Yes. And there are a variety12of events that look at how that --13JUDGE ARNOLD:  So, you would basically not14agree with that statement?15MR. SMITH:  That's correct, that's simply16wrong.17JUDGE ARNOLD:  Okay.18JUDGE SPRITZER:  I wanted to, I did read19through a number of, it's Appendix D of the20environmental report. I couldn't find anything that21specifically addressed SAMA 123, a more general22description of how to do the probabilistic risk23analysis. But maybe I overlooked something, so is24there any particular pages you think that would be25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 49helpful in understanding the analysis of a particular1SAMA?2MR. SMITH:  Well, SAMA 123 is summarized3on page D-120.4JUDGE SPRITZER:  123?5MR. SMITH:  Page D-120 discusses SAMA 123,6I'm sorry, yes. And so, that's where it says, "To7evaluate the change in plant risk, an analysis was8performed, decreasing the concentration of all9radionuclides by 50 percent."  And so, it says this is10about a post accident release, it says no changes in11the core damage frequency were used. So, the averted12cost risk was calculated by comparing the base, that's13why it talks about running it without the SAMA, to the14modified events with the SAMA, and then using a15similar 50 percent reduction in radionuclide16concentrations, the filtering reduced the amount of17radionuclides by 50 percent.18JUDGE ARNOLD:  Is that a reasonable19number, 50 percent?20MR. SMITH:  Yes.21JUDGE SPRITZER:  Where does it come from?22MR. SMITH:  I can't explain where it comes23from. I assume that that is a standard assumption. 24My recollection is that that's assumed to be a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 50conservative assumption and that the actual reduction1might be more or less, it might be more.2JUDGE SPRITZER:  But I take it in doing3this analysis, you also factor in in some way the4likelihood of an accident, a severe accident actually5occurring?6MR. SMITH:  Correct. The core damage7frequency estimates are the PRA level 1 analyses,8that's the original input to the model is looking for9damage frequencies, for core damage frequencies. Then10you look at what are the, then level 2 is looking at11what are the different ways in which radionuclides12might be released in the event of a core damage event. 13And then level 3 is looking at all the offsite14consequences.15JUDGE TRIKOUROS:  Yes. And again, just to16understand the SAMA a little better, is the Mark 117containment more vulnerable to a severe accident than18other containments?19MR. SMITH:  I'm not in a position to opine20on that. Certainly the Mark 1 containment at Fermi21has been determined to be safe.22JUDGE TRIKOUROS:  And if there is a severe23accident where there is an occurrence, is it required24within the design of a plant like Fermi to be able to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 51withstand that without containment unit?1MR. SMITH:  That is my understanding. But2I'm not really in a position to --3JUDGE TRIKOUROS:  What is your4understanding?5MR. SMITH:  That it would be able to6withstand however you just described the containment,7not a containment failure but an accident, a core melt8that didn't lead to, would be able to withstand that. 9Did I misunderstand you?  Was your question is the10plant designed to be able to withstand core damage?11JUDGE TRIKOUROS:  Well, there are many, I12am assuming there are many sequences in your SAMA that13lead to core melt that lead to containment error?14MR. SMITH:  Correct, there are.15JUDGE TRIKOUROS:  And that is not outside,16it is not required by the design basis of the plant?17MR. SMITH:  I understand what you're18saying now.19JUDGE TRIKOUROS:  Would that not happen?20MR. SMITH:  Correct. All of these21accidents that we're talking about are severe22accidents which are by definition accidents beyond the23design basis of the plant. So, the plant as designed24satisfies all of the NRC's requirements for design25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 52basis accidents.1JUDGE TRIKOUROS:  Right. And those would2still allow it to fail in the event of a severe3accident. The NRC requirements do not preclude that?4MR. SMITH:  Correct.5JUDGE SPRITZER:  All right, thank you. We6will next hear from the NRC staff. Before you get7started, maybe you could clarify, I'll ask you the8same question I think that I asked Mr. Smith which is9the fact that the Commission or the staff is now10looking at the issue of in some way modifying11requirements that might include these filtered vents,12does that in any way impact our jurisdiction to hear13this?14MR. HARRIS:  No, but there is a but to15that because we do need to separate that issue out16from a NEPA standpoint versus a safety requirement. 17So, if it was part of a rulemaking, even a rulemaking18that there is Commission case law that's something19that's subject to a generic rulemaking, it's not20something that can be litigated before the ASLB. But21that doesn't necessarily preclude you from having to22look at it from a NEPA standpoint. But from a safety23standpoint, it would remove it from the jurisdiction.24In this case, license renewal, making some25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 53kind of safety improvement like this really is sort1of, is outside, the current licensing basis is outside2the scope of the jurisdiction.3JUDGE SPRITZER:  Assume that we're focused4simply on the issue of whether SAMA 123 was adequate,5or I should say narrow their Contention 1, that would6be something we could --7MR. HARRIS:  That would be something that8you can look at in terms of how the NEPA, the SAMA9analysis under the National Environmental Policy Act,10you know, could, it's something that is subject to11challenge in this type of proceeding.12JUDGE SPRITZER:  Okay. 13MR. HARRIS:  There are a couple of issues14that I want to address that have come up as we've been15talking. Turning back first to this idea of16qualitative analysis, I'm looking at the original17contention because we have been going back to page 1318where they cite to the staff CEQ paper where they made19recommendations on installing severe accident capable20events engineered filters, that's really, that one21quote is the only place where qualitative factors come22up in their initial contention, that the staff, you23know, as a result of doing a backfit for safety24purposes considered qualitative factors of whether or25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 54not engineered filtered vents should be required. 1Nowhere else in their initial contention really2discusses that aspect of it.3You know, the CEQ paper that we are4talking about was, you know, about a thousand pages5with all the appendixes that were in it. So, trying6to sort of sort through that CEQ paper based on their7one reference that they never really come back when8the scope of what their contention really was was you9didn't analyze filtered vents, and clearly filtered10vents were analyzed from a quantitative effect, is11that's really sort of asking a lot of the other12parties to sort of read into that one single line that13that was the crux of their argument. And then it sort14of expands out into the reply that really we only care15about these qualitative factors. If that was true,16they probably should have addressed it more thoroughly17in the initial contention.18The reason, you know, we didn't address19qualitative factors is it did not seem to be within20the scope of their contention. They kept complaining21about the fact that filtered vents weren't analyzed,22and they were.23JUDGE SPRITZER:  Well, there were some24references to them not being adequately analyzed. But25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 55we're here today, so whatever you think you haven't1had the chance to argue previously, you can put before2us.3MR. HARRIS:  Right. So, but those4adequate analyses are sort of, you know, up in the air5of it wasn't adequately done. As Judge Arnold was6mentioning is that they're sort of, you know,7unspecific, you know, there wasn't sufficient, you8know, analysis. You didn't take into account, for9example, we've been talking about the design10vulnerabilities that were first identified in the1170's. Since that time, of course you've had the12generic letter that required at that time what were13called reliable hardened vents, most of them like when14plants put it in. But since then we actually have two15orders that have come out that have required both16reliable hardened vents and then that order was17superseded by the severe accident capable vents.18So, now the current licensing basis19reflects those changes to it. You know, to the extent20that the Petitioners think that those changes don't,21are insufficient to provide safety, license renewal is22not the place to do it, and not to use the SAMA23analysis to attack the safety of the current licensing24basis for the plant. Those types of challenges are25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 56normally done through rulemaking or 2206 petitions. 1And I understand that the Petitioners do not like the2way the 2206 petition process works, but those are the3rules that the Commission set out for how to address4a current safety issue within the plant.5One of the other things that has --6JUDGE SPRITZER:  But not a NEPA issue.7MR. HARRIS:  But not a NEPA issue. But8under the NEPA issue, I need to provide a hard look at9the environmental impacts.10JUDGE SPRITZER:  I can't speak for my11colleagues, but certainly for me, I understand this12purely is a NEPA issue relating to SAMA 123. I13understand entirely your position about the safety14arguments about whether the Commission should or15should not, bottom line the continuing the licensing16basis, are outside the scope of licensing basis and17are a debatable issue. But I think they've narrowed18the contention. I agree, as originally written, it19was diffused to say the least. But it's been narrowed20somewhat, or not somewhat, a lot as a result of our21discussion here today. So, I think it would be best22to focus on the NEPA issue.23I mean, well, let me ask you this. I24asked Mr. Smith about 51.71(d).25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 57MR. HARRIS:  Right.1JUDGE SPRITZER:  Which directly addresses2the draft EIS, not the environmental report. But do3you agree, we can look to the requirements for the4contents of the draft EIS in interpreting what should5be in the environmental report?6MR. HARRIS:  That is consistent with the7Commission case law. The Commission has indicated8that, at least for purposes of DEIS which will9eventually be a staff document, at this point of the10proceeding the ER somewhat stands in for the staff's11EIS for this kind of challenges. So, the requirements12of an EIS, you know, is a good instruction point for13figuring out what should be in the environmental14report. So, that's true.15Addressing that particular language in the1651.71(d), it does, you know, say that you should17quantify. You can consider qualitative factors to the18extent that they haven't been quantified. The SAMA19analysis which we've heard a little bit about before,20you know, does consider a lot of unknowns, a lot of21this kind of factors that are very difficult to22quantify. It does sensitivity studies, it does23uncertainty to try to account for the things that are24very difficult to determine. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 58In this particular proceeding, the SAMA1analysis that was performed by DTE, they used an2uncertainty factor of 2.5. So, they took their3baseline,  their analysis and multiplied it by 2.5 in4terms of the types of benefits that you could actually5get to try to account for these things that are both6difficult to quantify, unknown, things that, you know,7are very difficult to model, and just the uncertainty8with the fact that severe accidents, you know, there9have been a few but they're not easy to model. And we10have uncertainty both with the inputs and, you know,11the particular analysis, you know, and the model as it12goes out, that there is some unknowns out there.13So, one of the things that was addressed14with the National Academy of Sciences report, the15National Academy of Sciences report, when you actually16look at what the National Academy of Sciences has17actually said is they weren't commenting on what the18NRC did for their SAMA analysis looking at filtered19vents. That was not within the scope of their task. 20And you look at the recommendations, and they21specifically say that they didn't think, that they22weren't sure that, they didn't look at it enough to23make any determinations of whether or not the analysis24was okay in their minds. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 59They simply pointed out that for1recommendation 5.2(a) and 5.2(c), that it would be in2both the industry's and the NRC's, from a prospective3basis, to try to improve the ability to model external4events and to account for some, you know, to continue5to try to improve the model in terms of the6consequences because these models are somewhat7sensitive to the inputs that you put into it. But you8have to put the best inputs that you have at the time. 9You shouldn't be just putting in extremely large,10extremely conservative inputs to generate results,11because that would really be turning us into a worst12case type of analysis. If I put in inputs that would13account for meteors striking the plant and that type14of accident, you know, I mean there is always a severe15accident bigger than the one that we have considered16and you can continue to, you know, postulate even17worse severe accidents and worst severe accidents, and18you have to use the information that you have.19And that's what the Petitioners haven't20done is pointed to why that analysis doesn't capture21all those types of issues. One of the things that22came up here, the current argument is dealing with23external, both external events and how that's modeled,24but also the contamination, land contamination. Both25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 60of those things are actually considered in the SAMA1analysis. The external events, they used a multiplier2again to account for the internal events, 11 times. 3So, the external event multiplier was 11 times the4actual accident. Sorry, the time. The internal5accident, and they actually accounted for the cost to6decontaminate. That's found in their ER.7So, those things are not missing, you8know. Somehow that would be incumbent on Petitioners9to point to why that analysis was wrong.10JUDGE SPRITZER:  All right. Unless my11colleagues have any further questions, I think you've12exhausted your time. You still have five minutes for13rebuttal. Do you have anything further to add at this14point?  Petitioners, sorry.15MR. GUNTER:  Well, thank you. Yes, Paul16Gunter of Beyond Nuclear. You know, when you look at17SAMA 123, it's scant. There is no idea of what the18Applicant has and has not considered. And I think19that herein we want the hard look. That's why we20requested the hearing.21And the fact is that we find it a little22awkward that the public has to do what we believe to23be the NRC's job to take that hard look. That's what,24NEPA wants the federal government to do this look, not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 61people, you know, not the Petitioners necessarily. 1But we have, you know, it is incumbent upon us to2throw a flag on the field and that's essentially what3we're doing here.4But I wanted to just close by saying that5the backfit analysis, it's very clear in 10 CFR 50.1096that, you know, it doesn't say that you, it doesn't7provide for an option. But it says that when you have8these large uncertainties, that you need to9incorporate both the quantitative and the qualitative10factors. And this is supported in the regulatory11guidance by NUREG 1409, NUREG BR0058, and NUREG12BR0184. So, you know, the onus is upon the Agency to13be taking this hard look and that's what we're asking14for.15JUDGE SPRITZER:  Let me ask one question16with regard to the National Academy of Sciences report17and their $200 billion cost estimate for a severe18accident for the Fukushima accident. He says that19even if they had accepted that figure, it wouldn't20make any difference to the SAMA analysis done for SAMA21123, or I suspect for any of the other SAMAs. Would22you agree or disagree?23MR. GUNTER:  We disagree.24JUDGE SPRITZER:  Why?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 62MR. GUNTER:  Well, in Appendix L, just1briefly, it says here, to quote NAS, "The point of2this appendix is not to critique the US Nuclear3Regulatory Commission's analysis. The committee did4not perform an in-depth review of this analysis5because it is outside the statement of tasks for the6study. The committee offers this example to7demonstrate that severe accidents such as occurred in8Fukushima Daiichi plant can have large costs and other9consequences that are not considered in US NRC backfit10analysis. This includes national economic disruption,11anxiety and depression, which affected populations and12deterioration of social institutions arising from a13loss of trust in government operations."14So, the NAS basically again says that you15need to take this broader qualitative look that now is16not theoretical. I also would note that the CEQ 2012-1701-57, they did the MELCOR analysis, and they say that18the MELCOR MAC-S analysis provided technical basis for19support of option 3 in the regulatory analysis. They20did the MAC-S consequence analysis in CEQ 2012-01-5721and they conclude these MAC-S consequence analyses22show a clear benefit in applying an external filter to23either the wet well or the dry well vent path. Staff24also did the probabilistic risk assessment in 01-5725NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 63and concluded that the risk evaluation provides a1technical basis to support option 3 in the regulatory2analysis.3So, we're seeing a hard look done by NRC4in this mitigation analysis. And this is an excellent5opportunity for the NRC to gain significant public6confidence that it holds forth to, that the public and7the environment, and these are the strong8considerations. So, that's why we're requesting that9this licensing board provide us with a hearing so that10we can sort this dispute out.11JUDGE SPRITZER:  Okay, thank you. You12have exhausted your rebuttal time and I think it's13time we took a break. We've been here for about an14hour and-a-half. We'll resume in ten minutes and move15on to --16COURT REPORTER:  Judge Spritzer?  We need1715 minutes for an audio review issue.18JUDGE SPRITZER:  Okay, 15 minutes. So,19please return at 10 minutes after 11:00.20(Off the record.)21JUDGE SPRITZER:  We are now on to Joint22Petitioners' environmental Contention 2, another23contention that concerns severe accident mitigation24alternatives, this one related to spent fuel pool25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 64fires. Petitioners ready to proceed on that?1MR. LODGE:  Yes.2JUDGE SPRITZER:  Please do.3MR. LODGE:  Thank you. I'm Terry Lodge,4counsel for three of the Intervenors.5JUDGE SPRITZER:  You might want to put the6microphone a little closer.7MR. LODGE:  I didn't want to ruin things.8JUDGE SPRITZER:  Never mind.9MR. LODGE:  Your Honor, I'll just try to10talk loudly.11JUDGE SPRITZER:  All right, that would be12fine.13MR. LODGE:  If there's a problem, I will14assume you'll let me know, or the rest of the panel. 15Contention 2 deals with the Petitioners' allegation16that the Fermi 2 application doesn't satisfy NEPA17because it does not consider a range of mitigation18measures to mitigate the risk of catastrophic fires in19the densely packed, closed frame spent fuel storage20pool at Fermi 2.21By way of background, the DC Circuit22opinion on the waste confidence decision enjoined the23NRC to consider the spent fuel fire and leak24possibilities. The NRC did some work on a generic25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 65analysis of those prospective problems. However, in1May of this year, by I believe a 3 to 2 vote, the2Commission essentially terminated the responsibility3of the staff to continue that assessment.4Chairman Macfarlane who voted in the5minority, opposed to that vote to terminate, said that6there are mitigation opportunities that certainly must7be considered including longer transfer times for dry8storage, direct spent fuel, direct discharge into9varying dispersal patterns, substitution of open rack10low density storage racks for high density storage11racks, and alternative fuel designs. Pardon me, it12was a 4 to 1 vote, I'm corrected. The problem in13Fermi 2's case is that it is a fact specific matter.14Fermi 2 raises grave concerns. There are15approximately 600 metric tons of spent fuel being16stored onsite. There has been essentially maximum re-17racking potential to increase the density of the18storage mechanisms in place. And the transfer to dry19casks has been delayed because of weld problems that20date back more than 30 years, that there are21structural problems and concerns as to whether or not22the crane assembly would be capable of removing fuel23safely. The margin is very, very narrow indeed.24So, with the termination by the Commission25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 66of the generic assessment with the fact that we have1of course a Contention 3 that is at least a2placeholder challenge, continuing challenge to the3waste confidence spent fuel storage, long term storage4determination, we believe that there must be site5specific consideration within this license amendment6proceeding of the spent fuel fire potential, both as7a straight topic for mitigation discussion within the8NEPA as well as within SAMA consideration.9JUDGE SPRITZER:  With respect to SAMAs,10let me ask this, are you saying that they have to11consider SAMAs for a spent fuel pool fire that might12occur during the course of a severe accident involving13the reactor where you have a loss of --14MR. LODGE:  Of power.15JUDGE SPRITZER:  When the core becomes16uncovered and you have a severe accident in the17reactor?  Or are you saying totally independent of an18accident of that type, they have to look at the19possibility of an accident, any type of accident that20would result in a spent fuel pool fire including for21example inadvertent leakage from a pool that somehow22could occur?23MR. LODGE:  The answer would be both, but24we are very concerned that in any type of loss of25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 67power circumstance that might be caused by the reactor1itself going into some sort of cataclysm, that the2spent fuel pool circumstance has to be analyzed at3least as a cumulative impact under NEPA. 4JUDGE SPRITZER:  Okay.5MR. LODGE:  We're aware, and of course in6response to the NRC and DTE claims, that there are7scoping problems here, that any consideration of the8spent fuel pool is outside the license renewal9proceeding. They cited the Turkey Point decision from102001. But we also noted in that very same decision11that the Commission said that adverse aging effects12can result from various number of things, factors, and13then that age related degradation can affect among14other things the spent fuel pool. 15We believe that the cumulative effects16type of analysis certainly has applicability here. We17also believe that the fact that there is no longer18what we believe is compliance with the courts, that19the DC Circuits order, that now in the Fermi 2 case we20have a fact specific situation that is potentially21very dire. There is considerably more fuel being22stored at Fermi than in all of the reactors at the23Fukushima site. The population within 50 miles is24nearly five million people within 50 miles of Fermi 2. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 68The fact is that for the long, well, for the1indeterminate future, the spent fuel pool is going to2be the place where spent fuel is going to be reposed3at Fermi 2; for how long, it's extremely difficult to4say.5JUDGE SPRITZER:  What are the specific6SAMAs that you say, well, are there specific, let me7ask this, are there specific SAMAs that you contend8should have been considered to mitigate the risk of9catastrophic fires and spent fuel pools?  And if so,10where did you identify those in Contention 2?11MR. LODGE:  Your Honor, we brought this as12a contention of omission and did not identify this in13the SAMAs.14JUDGE SPRITZER:  So, you're just saying15they didn't look at this type of SAMA at all?16MR. LODGE:  Right.17JUDGE SPRITZER:  There are no SAMAs that18address the risk of catastrophic fires and spent fuel19pools and, therefore, the SAMA analysis is deficient,20that's your position.21MR. LODGE:  Correct. Yes.22JUDGE SPRITZER:  All right, just so I23understand. Thank you, go ahead.24MR. LODGE:  We're prepared to reserve, Ms.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 69Pepperl said we have three minutes left maybe of our115?2MS. PEPPERL:  That doesn't include the 15.3MR. LODGE:  Okay.4JUDGE SPRITZER:  You do, by the way, want5to reserve five minutes for rebuttal?6MR. LODGE:  Yes, thank you.7JUDGE SPRITZER:  Okay.8MR. LODGE:  We're going to reserve the9remainder of our time.10JUDGE SPRITZER:  All right. Well, we'll11give you five minutes. Let's proceed to the12Applicant.13MS. REDDICK:  Thank you. Derani Reddick14for the Applicant. As Mr. Lodge has stated, their15claim is really based on a lack of mitigation measures16for spent fuel pool accidents. But spent fuel pool17accidents are a Category 1 issue under the NRC's18rules. What that means is that the NRC has already19looked at the impacts of a spent fuel pool accident,20and this is considered in the context of the category21that's called onsite storage of spent fuel. 22The Commission has already determined that23those impacts are small. They have determined that no24additional mitigation measures need to be made. So,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 70this is an NRC rule that the impacts of spent fuel1pool accidents have small impacts and that further2mitigation alternatives need not be considered. The3Commission has specifically stated that the4requirement to consider SAMAs applies to severe5accidents for reactors, it does not apply to spent6fuel pool accidents. And in fact --7JUDGE SPRITZER:  This is probably in your8brief, but do you remember the specific rule that,9where the Commission has indicated that?10MS. REDDICK:  In the Turkey Point11proceeding, this is CLI-01-17 54 NRC 3. The12Commission specifically stated that, and I'm reading13here, "Part 51's reference to severe accident14mitigation alternatives applies to nuclear reactor15accidents, not spent fuel storage accidents."16JUDGE SPRITZER:  What, all right, I guess17the question then would be, in Fukushima at least, my18very rough understanding of what happened at19Fukushima, there are at least concerns of the20possibility of release of radioactivity from the spent21fuel pool. I'm not sure whether it's ever been22resolved if that occurred or not. Is there, are you23interpreting the Commission to say that as part of the24analysis of severe accidents, you don't need to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 71consider the possibility that there might be some kind1of damage to spent fuel pool that would lead to a2release of radioactivity?3MS. REDDICK:  Right, that this idea that4there is sort of a  cumulative  impact that  needed to5be assessed --6JUDGE SPRITZER:  It might be a cumulative7impact, it might be a direct impact, I mean let's say8as a result of the accident, the pool no longer9functions in terms of cooling the rods as it's10supposed to, and as a result there's a fire and a11release of radioactivity, do they need, has the12Commission said you do not need to consider that13possibility in your SAMA analysis?14MS. REDDICK:  I'm not sure the Commission15has directly addressed this specific point. The16Petitioners have not put forth any specific or17plausible scenario whereby that could happen. It's18not entirely clear as you were asking, Your Honor,19what the contention is alleging with respect to how20the spent fuel pool accident would somehow impact the21reactor accident or impact the ability to mitigate a22reactor accident. It's not clear from their petition. 23And essentially, that is their burden. Their burden24is more than just to throw this flag on the field, but25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 72they need to allege a specific deficiency.1Here, what they are alleging as a2deficiency, there being the lack of mitigation3measures, has already been determined by the4Commission to not be required for spent fuel pool5accident. In fact, the Commission in the GEIS, both6the 1996 GEIS and the 2013 GEIS, considered mitigating7measures for spent fuel pool accidents. And they8determined that no additional plant specific measures9would be substantially beneficial in order to warrant10their consideration.11Additionally, the Petitioners raised12allegedly new and significant information regarding13the expedited transfer of spent fuel. This is Com CEQ1413-30, and this is where they draw the conclusion that15certain mitigation measures should be implemented. 16But what that study shows, and this is the staff's17regulatory analysis for the expedited transfer of18spent fuel, the staff concluded that the benefit of19expedited transfer of spent fuel from the pool to dry20cask storage is minor and limited and, therefore, not21justified under the expected cost. And the Commission22agreed with this. They agree that expedited transfer23need not be required.24Lastly, just as sort of a factual matter,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 73Mr. Lodge alleges some concerns with respect to the1ability to move the fuel from the pool to dry cask2storage. That has been completed. I believe the3first offload from the pool to the cask occurred this4past summer and the NRC was there for that. They5issued an inspection report and found no concerns and6no findings regarding that.7JUDGE SPRITZER:  While we're on the8subject, it reminds me while we're on the subject of9current conditions of the plant, this is going back to10the earlier contention. For the hardened vents, are11there hardened vents now at Fermi?  I understand, I12take it there are filters of the type that were13evaluated in SAMA 123. Are there, is there a hardened14vent, and if not, will there be one?15MR. SMITH:  Yes, there currently is a16hardened vent. And then the additional post-Fukushima17requirements mandate the installation of some changes18or some upgrades to that hardened vent that will be19taking place over the next couple of years.20JUDGE SPRITZER:  But that does not include21the filters that were addressed in SAMA 123, is that22--23MR. SMITH:  That's correct.24JUDGE SPRITZER:  Okay. Sorry, go ahead. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 74Sorry for that digression.1MS. REDDICK:  I'm prepared to answer your2questions, Your Honors.3JUDGE SPRITZER:  Since neither I nor my4colleagues have any further, well, okay, we'll move5back to him. Let's hear from the staff first.6MR. WACHUTKA:  Yes, Your Honors. May it7please the Board, my name is Jeremy Wachutka and I'm8arguing on behalf of the NRC staff that Joint9Petitioners' proposed Contention 2 is inadmissible10because it is outside the scope of this license11renewal proceeding.12As we have heard, proposed Contention 213raises multiple arguments. Of these arguments are14other environmental arguments challenging a Commission15generic Category 1 determination or they are safety16arguments challenging the current licensing basis of17Fermi. Proposed Contention 2 does not include 10 CFR18Section 2.335 waiver request, nor does it include the19necessary information to satisfy the four millstone20factors. Therefore, proposed Contention 2 is outside21the scope of this license renewal proceeding and22should be denied.23First, proposed Contention 2 faults DTE's24environmental report for allegedly not discussing25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 75spent fuel pool fires in their mitigation. Instead,1DTE's environmental report incorporates all of the2Commission's generic Category 1 findings of3environmental impacts of the onsite storage of spent4nuclear fire provided in Table B1. In the Turkey5Point proceedings, CLI-01-17 and the Pilgrim6proceedings, CLI-07-3, the Commission held that a7substantively identical challenge to the incorporation8of the Commission spent fuel pool storage Category 19determination in license renewal proceedings was not10admissible without a waiver because they constitute a11challenge to the Commission's regulations.12Furthermore, the Commission held that no13discussion of mitigation alternatives is necessary for14spent fuel Category 1 issues. This is supported by 1015CFR Section 51.53(c)(3)(iii) which states that an16environmental report is not required to consider17alternatives for reducing adverse impacts for Category181 issues. Therefore, according to both the19Commission's regulations and case law, the argument of20proposed Contention 2 that spent fuel pool fires and21their mitigation should be analyzed in DTE's22environmental report is inadmissible.23JUDGE SPRITZER:  SAMA contentions,24however, are Category 2 issues, I take it you would25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 76agree with that?1MR. WACHUTKA:  That is true, Your Honors. 2And so, Joint Petitioners also make that argument that3you should look at Table B1 and that their spent fuel4fires contention shouldn't fall under the Category 15issue of "onsite storage of spent nuclear fuel," but6should instead fall under the Category 2 issue of7"severe accidents."  This severe accidents category8states that the probability weighted consequences of9releases and their social and economic impacts as a10result of severe accidents is small for all plants. 11However, it also states that severe accident12mitigation alternatives must be considered once for13each plant.14In Pilgrim, the Commission denied a15substantively identical argument stating that Category161 SAMA requirement only applies to "nuclear reactor17accidents, not spent fuel storage accidents."  Thus,18SAMA applies to nuclear reactor accidents as19determined on a site by site basis, while the20consequences of spent fuel storage accidents is21already generically determined under the onsite22storage of spent nuclear fuel, section of Table B1. 23So, in order to rebut this, the Joint Petitioners24state that what they are trying to get at is a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 77cumulative effects argument that NEPA requires that1all this is considered under SAMA. However, this does2not necessarily satisfy the Commission's or the NEPA3hard look requirement because the Commission has4already stated that it does some of its environmental5impacts generically, some of its environmental impacts6on a case by case basis, and that this process does7satisfy NEPA.8For instance, in Turkey Point, the9Commission said, in the end, "The final supplemental10environmental impact statement will weigh all of the11expected environmental impacts of license renewal,12both those for which there are generic findings and13those described in a plant specific analysis." 14Therefore, the Commission's process already accounts15for all the environmental impacts, just some are16accounted for generically like spent fuel storage, and17some are accounted for case by case like SAMA for18reactor accidents. So, there is no gap here. All the19environmental impacts are being accounted for.20JUDGE SPRITZER:  Understood in that. I21guess let me ask you the same question I asked the22Applicant about. Is there an obligation to consider23SAMAs that might or would mitigate a spent fuel pool24fire that occurred in the course of, that is as the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 78result of a severe accident?  In other words, is there1some overlap between those two areas?  And how, what2would the Applicant do in the ER?3MR. WACHUTKA:  Your Honor, I would just,4I would have to go back to the Pilgrim proceeding5where the Commission looked at this substantively6identical issue and they said nuclear reactor7accidents is what is covered by their Table B1 severe8accidents category which we're discussing here. And9so, it's the staff's position that this has already10been decided by the Commission.11Also, Your Honors, Joint Petitioners12allege that there is new and significant information13and, therefore, because of this new and significant14information, they should be granted, this contention15should be admitted. However, the Commission has16already also directly addressed this issue and denied17this argument stating in the Pilgrim proceeding that,18"Adjudicating Category 1 issue site by site based19merely on a claim of 'new and significant information'20would defeat the purpose of resolving generic issues21in a generic environmental impact statement." 22Therefore, although the information alleged to be new23and significant by the Joint Petitioners could24potentially be used as a basis for say a 10 CFR25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 79Section 2.335 waiver petition or a 10 CFR Section12.802 petition for rulemaking, it cannot, based on2this Commission direction, serve as the basis for just3a contention in a license renewal proceeding.4And this is all supported by the fact that5there is a petition for rulemaking currently being6evaluated by the NRC, PRM-51-31, which addresses this7very issue and was submitted in March 2014 and amended8in June 2014 and is still under consideration. So, it9appears that the appropriate venue for this new and10significant information argument is the rulemaking11process.12In summary, Your Honors, the Commission's13regulations at 10 CFR Part 51 and 10 CFR Part 54, as14well a the Commission's binding case law in Turkey15Point and Pilgrim, demonstrate that all of the16arguments of proposed Contention 2 are outside the17scope of this license renewal proceeding. Moreover,18Joint Petitioners do not request the waiver of these19rules according to 10 CFR Section 2.335 or satisfy the20millstone factors for a waiver. Therefore, proposed21Contention 2 should be denied.22JUDGE SPRITZER:  All right. Mr. Lodge,23you can have five additional minutes.24MR. LODGE:  Thank you. All right. With25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 80respect to the transport of casks, we anticipate and1it's a very realistic anticipation on our parts that2like virtually every other operating nuclear utility,3that DTE will slow walk its transfers to dry cask4storage, that the preferred method of storage is going5to be very dense, in fact overpacked storage in racks6in a pool. Beyond Nuclear is indeed a party to the7rulemaking that Counsel for the NRC staff just talked8about. But rulemakings, as I'm sure the ASLB knows,9do not go by any hard prescribed time line. There are10many things, there are many procedural steps, and11there are many considerations that go into so12complicated an issue.13I'd like to point out, however, that one14of the, one set of data that has emerged from the15post-Fukushima expedited spent fuel transfer16proceeding is the new information that we cite very17early in our statement of contention that even a small18nuclear reactor pool fire could render 9,400 square19miles uninhabitable and displace 4.1 million20Americans. And I pointed out a few minutes ago that21the greater population of Toledo and Detroit within a2250-mile radius of Fermi 2 totals nearly five million23people. So, I think the implication, the inference24certainly could be that a much larger population would25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 81be affected here.1Spent fuel can be transferred out of high2density storage pools in a cost effective way, and the3likelihood of fires can be reduced if that type of4thing happens. Pardon me one moment. Yes, there's5also Canadian populations that we haven't discussed.6The cumulative effects analysis certainly7has to take into account specific scenarios that could8occur such as a spent fuel disaster that can lead to9a reactor accident, especially in a multi-reactor site10as Fermi is anticipated to be during the license11renewal period, and the opposite also where a reactor12causes a spent fuel pool problem or catastrophe. We13believe that the nature of the application if you will14with the Commission by not following the DC Circuit15opinion, that the situation now is such that local16fact specific consideration has to be given to the17Fermi 2 spent fuel problems for the license renewal18period. This is more of course than a current19management type of problem because it has been20something that has cumulatively developed since Fermi212 went online. 22Fermi 2 is slated for instance for another23fuel outage in 2015. That of course is not within the24license renewal period. But presuming that the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 82reactor operates more or less on the same basis as it1has, there will be considerably more spent fuel onsite2probably in the pool or only slowly being removed to3casks by the time the license renewal period4commences. That's all I have unless there are5questions from the panel.6JUDGE ARNOLD:  I do have a question. 7Given that the NRC staff has the responsibility to8satisfy NEPA and that the Applicant's environmental9report need only address 10 CFR 51 requirements, what10specifically is it in 10 CFR 51 that requires the11analysis that you're asking them to perform?12MR. LODGE:  Well, I don't have 10 CFR 5113entire text here. I believe, first of all, that the14CEQ regs must be complied with also by the Commission. 15And that's been a bone of --16JUDGE ARNOLD:  Right, by the Commission. 17But we're talking about the Applicant and his18environmental report which is totally needed to19satisfy 10 CFR 51. And there's a lot of things20required by NEPA that are not required by 10 CFR 51.21MR. LODGE:  Right.22JUDGE ARNOLD:  So, I want to see how23exactly this analysis is the responsibility of the24Applicant.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 83MR. LODGE:  Well, if Your Honor is simply1suggesting that we have made a premature, raised this2prematurely, at least we have raised it, and that has3been a problem in nuclear litigation. As I understand4it, the environmental report is essentially supposed5to be some type of template as to, a suggestion if you6will to the Commission staff as to how NEPA should be7complied with. Therefore, to the extent that the8Applicant has not addressed these concerns in the ER,9the ER is deficient and there is an issue of fact I10believe.11JUDGE ARNOLD:  I'm done.12JUDGE TRIKOUROS:  I'm done, too.13JUDGE SPRITZER:  All right, thank you. We14will now move on to Joint Petitioners' proposed15Contention 4. As indicated in our order, we're not16going to do argument on proposed Contention 3, we'll17move directly to Contention 4. And let me ask at the18start, do you want to reserve five minutes for19rebuttal on Contention 4?20MR. KEMPS:  Yes, I would.21JUDGE SPRITZER:  All right. Please22identify yourself and then let's proceed.23MR. KEMPS:  Your Honors, good morning. My24name is Kevin Kemps with Beyond Nuclear, and I will be25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 84addressing Contention 4 for Joint Petitioners.1At heart, Contention 4 addresses the fact2that there is proposed a tremendous concentration of3risk at the Fermi Nuclear Power Plant site. In short,4it is the worst of both worlds:  Fermi 2, a degraded5old reactor with breakdown phase risks, and Fermi 3,6an untested new reactor with break-in phase risks,7sharing a common transmission corridor or right of8way, subject to common mode failures which could9mutually initiate and/or exacerbate catastrophic10radioactivity releases. 11In our filings, we have cited testimony by12Farouk Baxter, an engineer who submitted comments on13the Fermi 3 proposal where he identified that this14common mode failure mechanism, this common15transmission corridor is susceptible to various severe16weather and manmade single failure events. He17included tornadoes, ice storms, brush fires, galloping18conductors, severe solar disturbances, light aircraft19impingement.20JUDGE SPRITZER:  What is a galloping21conductor?  We all, normally I'm technically22handicapped, but my colleagues aren't and they're also23somewhat confused about that term, galloping24conductor?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 85MR. KEMPS:  It's Mr. Baxter's list and I1believe that would be a failure of the transmission2grid itself, cascading failures. We saw an incident3in August of 2003 where 50 million North Americans4lost their electricity, and it had a lot to do with5the vulnerabilities of the grid, specifically in this6area of the country. First Energy Nuclear did not7trim its trees, a tree branch touched a power line,8and that cascading failure of the grid led to the loss9of electricity for 50 million people implicating a10large number of atomic reactors, both in the United11States and Canada. So, I think his example would just12point to vulnerabilities of the grid.13To his list, I would add that tornadoes14are very significant in this area. In fact, in June15of 2010, a tornado did strike the Fermi 2 complex and16caused problems that could have been much worse. And17we addressed some of that in our filing. The poor18record of emergency diesel generator operation at19Fermi 2 is a part of this risk matrix. We would add20to that list that Mr. Baxter provided a 1988 incident21where a raccoon cut off the grid to Fermi. There is22also the specter of intentional attacks, and there was23a recent incident near San Jose, California just a24couple of years ago where an intentional sabotage25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 86caused extensive damage to the grid.1These are all very serious issues that2implicate both reactors, Fermi 2 and Fermi 3, and both3units' pools which, as Mr. Lodge indicated, will at4Fermi 2 remain full, packed to the gills, densely5packed for decades to come. And that very same risk6scenario will grow over time at Fermi 3. That's the7standard practice of this industry, to take advantage8of the cost savings of filling the pools beyond9original designs.10JUDGE SPRITZER:  So, is it your position11then that this risk of, what is it called, a common12mode failure should have been incorporated in the SAMA13analysis?14MR. KEMPS:  Yes, we did go into some15detail in our filings about the inadequacy of the16SAMAs as conducted thus far, that they did not take17into account the concentrated risk of an 18.6 mile18long by 300 yard wide common corridor, that all of19these transmission lines, especially the incoming20electricity to run the safety systems and cooling21systems and monitoring systems are subject to.22JUDGE SPRITZER:  All right.23JUDGE TRIKOUROS:  Can I just ask the24Applicant, is this corridor the only source of offsite25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 87power for the site?1MR. SMITH:  There's a couple of different2lines in the corridor that are independent and3separation meets regulatory requirements. But yes.4JUDGE TRIKOUROS:  But it is the only5offsite power feeding to that site?6MR. SMITH:  Yes.7JUDGE ARNOLD:  Well, I have questions if8done there. This is another contention where the9waters seem to be muddied somewhat. You just added in10the part with the spent fuel pool so I am confused. 11I get the impression that the basis of this contention12has to do with the transmission corridor and the fact13that that will be common for the two plants and that14there might be some interaction between plants because15of that common transmission corridor that was not16accounted for in the SAMA.17Is that the essence of your contention or18is it something else?19MR. KEMPS:  Well, we certainly brought up20pools in our original filing on August 18th. Our21point is that the transmission corridor is essential22to running the safety and cooling systems at both23Fermi 2 reactor and pool, and Fermi 3 reactor and24pool. So, any disruption of that essential25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 88electricity supply for those safety and cooling1systems could implicate both reactors and both pools. 2And as we saw at Fukushima Daiichi, once reactors3begin to melt down and their containments fail, then4the pools are also put at tremendous risk. And so,5that was very much an issue at Fukushima Daiichi where6the risks feared from the pools prevented workers from7approaching not only the pools but also the reactors. 8Mitigations were not possible until it was9established, for example, that water was still in the10pool at Unit 4 and that led to the dramatic imagery of11helicopters dropping water on that unit.12JUDGE SPRITZER:  I think you acknowledged,13I was looking for the specific page and I can't find14it at the moment, but somewhere in your Contention 415you acknowledged that the proposed Fermi 3 reactor,16what is it called, the economic simplified boiling17water reactor is actually supposed to be able,18intended to be able to operate without electrical19power for some period of time. And it's my20understanding that design has now been certified by21the Commission. So, aren't we precluded by that22certification from looking into any criticism you23might have that the ESBWR won't be able to operate if24it does lose power?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 89MR. KEMPS:  Well, we did cite the warnings1from our colleague at Union of Concerned Scientists,2Dr. Ed Lyman, that these assumed gravity-fed cooling3water flow pathways are very optimistic, that there is4much less force behind gravity fed than there would be5from active pumping. So,  these warnings have been6raised throughout the Fermi 3 design control document7proceeding for many long years now. And having8participated in the Fermi 3 Advisory Committee on9Reactor Safeguards meetings, there are many10significant unanswered questions. For example, the11ability of the so-called improved monitors at Fermi 312storage pool to function in a high radioactivity13environment due to a reactor accident, those questions14remain unresolved. 15And so, it appears that these many years16post Fukushima, it's still questionable whether the17operators and the NRC and other authorities will even18be able to determine if there is cooling water in the19unit 3 pool during a catastrophic scenario.20Yes, Mr. Lodge just points out that on21page, we're looking up the page number, in our initial22filing we pointed out, given this passive, so-called23passive gravity driven design, that no arrangements24for -- okay, I'm sorry. The point is that Mr. Farouk25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 90Baxter in his comments on Fermi 3 pointed out that the1ESBWR design control document and the Fermi 3 final2safety analysis report, chapter 8, have not resolved3these issues. And we cited that in our filings thus4far.5JUDGE ARNOLD:  Let me ask you about that. 6On page 47 on the contention, third paragraph from the7bottom, you say, "The FSAR statement that 'there are8no single failures that can prevent the Fermi offsite9power system from performing its function to provide10power to EF3' is without any technical merit."  Now,11are you saying that, I'm not sure what without any12technical merit means. Are you saying that statement13is wrong?14MR. KEMPS:  Yes, we are quote Mr. Baxter's15comments bringing severe criticism to the FSAR making16such optimistic assumptions and, I reemphasize, the17concentration of risk in a 300 yard wide transmission18corridor that the Applicant admits is where all the19emergency system electricity supply is coming through.20JUDGE ARNOLD:  Okay. Now, the FSAR21statement, isn't that a part of the current licensing22basis for Fermi 2?23MR. KEMPS:  Well, there is a certain24overlap of current licensing bases with requirements25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 91for a license renewal application proceeding, we1addressed this last week at the Davis-Besse license2renewal application proceeding. So, these are risks3that will happen between 2025 and 2045 when Fermi 2,4if it gets this LRA approved, will be operating, and5Fermi 3 presumably will also be operating. So, it6certainly needs to be addressed.7JUDGE ARNOLD:  Now, let me just ask8Applicant now to comment on that. Your FSAR states9there are no single failures that can prevent the10offsite power system from performing its function. 11That's in your current licensing basis, is it not?12MR. SMITH:  Correct. I believe that quote13though is referencing the FSAR for Fermi 3.14JUDGE ARNOLD:  Ah, okay. I'm just15wondering if there is some way that you can do a SAMA16analysis considering failure of offsite power that17isn't contradictory to your current licensing basis.18MR. SMITH:  I'm not sure I'm understanding19the question because our SAMA analysis does consider20the loss of offsite power. That's considered an21initiating event and that's addressed by a number of22SAMAs specifically.23JUDGE SPRITZER:  Let me ask this also24about the ESBWR design. As I understand it, it is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 92supposed to be able to operate without, to continue1its cooling functions even if there is a loss of2offsite power for some period of time. Am I3understanding it correctly?4MR. SMITH:  That's correct.5JUDGE SPRITZER:  Do you know what that6period of time is?7MR. SMITH:  I'm not certain. My8recollection is it's about 7 days.9JUDGE SPRITZER:  7 days, all right.10MR. SMITH:  72 hours, I'm sorry.11JUDGE SPRITZER:  72 hours?  Thank you. To12your colleagues who provided you with that13information, now where would we obtain a cite for14that?15MR. SMITH:  I can take an action to obtain16a cite for you from that over lunch break.17JUDGE SPRITZER:  Okay.18MR. KEMPS:  Your Honors, on that last19point, could I simply say that at the Advisory20Committee on Reactor Safeguards meetings that have21happened in recent weeks and months, that we were22present and we observed and witnessed many unanswered23questions about that 072-hour time period, that 3-day24to 7-day time period. There's a lot of assumptions25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 93about the FLEX from Memphis, Tennessee being either1driven up here on the roads or flown up here by2helicopter presumably to be put in place in time to3prevent radioactivity releases. We have many4questions about that assumption.5JUDGE SPRITZER:  To your knowledge though,6was that, has the design certification for the ESBWR7been issued?  And does it cover that capability, that8is, the capability to operate without offsite power9for 72 hours?10MR. KEMPS:  The design control document11was approved earlier this year. We're not contesting12that. But as I'm trying to get across, there are lots13of unanswered questions about the FLEX assumptions.14JUDGE SPRITZER:  Right. Well, I mean the15reason I'm asking of course is there are limits on our16jurisdiction. It might be a very interesting issue17but there are just certain things we can't get into. 18And if a design certification has been issued, I'm not19sure how we can look into a question that effectively20asks us to ignore that certification. But all right,21let's move on and hear from --22JUDGE TRIKOUROS:  Well, I have one more.23JUDGE SPRITZER:  Oh, sorry.24JUDGE TRIKOUROS:  I have one more25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 94question. The loss of offsite power, specifically the1failure of below lines in that transmission corridor2is an event that's contemplated by the design basis of3each of those plants, Fermi 2 and Fermi 3, correct? 4What is different here?  I'm trying to understand5where you're finding synergism. The only thing I6could find in your pleading was that if there is a7core melt in one plant, it will result in the8abandonment of the other plant and they wouldn't be9able to deal with the normal design basis event. Is10that the synergism?  Without a synergism, it appears11to me you're just basically saying you disagree with12the individual design bases of each of the plants.13MR. KEMPS:  As my coworker Paul Gunter14addressed earlier, we have real world experience now15based on Fukushima Daiichi units 1, 2, 3 and 4. And16so, certainly reactor core melt downs with damaged or17destroyed containments, reactor pool fires with no18containment whatsoever, can and will lead to the19abandonment of nuclear power plant sites. There was,20Tokyo Electric considered abandoning all workers at21one point, and it took the intervention of the Prime22Minister of Japan to prevent that. And there were23episodes of the workforce leaving the Fukushima24Daiichi site, retreating to the Fukushima Daini site25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 95against the orders of the company for their own self1protection.2So, these are very real world issues that3we're concerned about at this proposed multi-reactor4site.5JUDGE TRIKOUROS:  So, with that synergy,6I'm sorry, you want to say something?  With that7synergism, you're making, it's basically an assumption8that says that one of those two plants would not be9able to handle their design basis event and that that10would then lead to the other plant not being able to11handle it by virtue of the first plant's effect on the12second. That's really what this is about, correct?13MR. KEMPS:  Just a moment please. Well,14the essence of our contention is that there is15tremendously concentrated risk at this proposed multi-16unit site that includes the transmission corridor17which is very narrow and shared over a very long18distance by these two units and their pools. And19there is also the exacerbating factors of, as20indicated, the reactors and/or the pools experiencing21catastrophic radioactivity releases that then, like a22domino effect, like we saw at Fukushima Daiichi, could23lead to abandonment of the site by the workers, by24emergency responders.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 96JUDGE ARNOLD:  But the only data point we1have is Fukushima where that didn't happen, is that2correct?3MR. KEMPS:  It didn't happen because Prime4Minister Naoto Kan at 5:00 a.m. rushed to the Tokyo5Electric headquarters and pleaded with the company and6its emergency responders in the control room area of7that headquarters building to not abandon their posts8for the sake of the future of that nation. 9JUDGE SPRITZER:  All right. Let's move on10and hear from the Applicant on contention, Joint11Petitioners' Contention 4.12MR. SMITH:  Tyson Smith for the Applicant. 13Contention 4 raises a host of issues, none of which14are the basis for an admissible contention.15First, a number of the issues we've heard16about, the ESBWR design, its response to a loss of17offsite power, some of its passive safety features,18those are all issues outside the scope of this19proceeding which is focused on the effects of aging20and another 20 years of operation at the Fermi 2.21Second, their arguments about the22transmission corridor generally, that it's not safe or23more concerns that violates defense in depth, that's24what's in their contention. That also raises an out-25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 97of-scope issue. Fermi 2 or Fermi 3's compliance with1requirements related to offsite power or availability2of diesel generators which is embedded in their3assumption that loss of the transmission corridor is4a loss of defense in depth, those are current5licensing basis issues that are being addressed now. 6They are not issues unique to a license renewal.7Similarly, concerns about the emergency8response organization in the event of a design basis9accident is also outside the scope of this proceeding. 10The emergency response plan is also a currently11licensing basis issue.12So, what that really brings us down to is13the concern that somehow there is some common14transmission corridor related SAMA that should be but15was not considered in the Fermi 2 SAMA analysis. And16there is no basis for that assertion here. There's no17facts, there's no expert opinion. As I mentioned18earlier, DTE did consider a number of different SAMAs19related to the loss of offsite power in diesel20generators and ultimately determined that none of21those were cost beneficial.22The Petitioners haven't put forth any23information to suggest that the analysis that DTE has24done is unreasonable. And that's what they've got to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 98do to have an admissible SAMA related contention. 1Petitioners didn't challenge any, didn't say there is2some SAMA that we ignored or that we didn't consider. 3They didn't suggest that the cost of a particular4event would be greater, or that the benefits of a5particular SAMA would be greater.6And simply put, there is nothing here to7litigate. I'm at a loss as to what a hearing would be8held, would involve if this contention were admitted.9JUDGE SPRITZER:  Well, I suppose you might10read their argument to be at least in part that you11should have included in the benefits, if you're taking12a measure to improve the reliability of the13transmission corridor, there would be benefits both to14Fermi 3 and Fermi 2 in the sense of reducing the risk15of a severe accident at both plants, and that that16somehow should have been factored into the analysis. 17What's your response to that interpretation?18MR. SMITH:  Well, I think that's very19generous and not one that I would draw from the20contention in front of me. I mean I didn't read that21in the contention.22JUDGE SPRITZER:  Well, I admit it involves23some interpretation. But do you have any thoughts on24that?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 99MR. SMITH:  They certainly haven't alleged1any scenario by which that would be the case. They2haven't said, oh, your SAMA related to mitigating the3effects of a loss of offsite power, the cost of that4would be reduced because it's spread over Fermi 2 and5Fermi 3. Nor have they suggested that the cost would6be more because of that event. 7I mean these units have different designs. 8As Judge Trikouros pointed out, the Fermi 3 design is9intended to operate without, it can function without10offsite power for 72 hours. So, there is nothing to11suggest that concern has any basis in the design of12the plant.13JUDGE SPRITZER:  Is there anything in the14NRC guidance when you, it probably isn't unheard of to15look at SAMAs at one plant where there is a multi-16plant site. Does the NRC guidance address that in any17way?18MR. SMITH:  Well, the NRC-endorsed19industry guidance does discuss how you handle SAMAs20for multi-unit sites. And what it says is similar to21what you mentioned which is if you've got a couple of22plants that are identical and when you're costing out23the cost of implementing a particular SAMA, you have24to take into account any efficiencies that might be25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 100gained if you implement the same SAMA at multiple1units. So, if it's a training SAMA but you're really2just training the same staff that works on all three3units, then your cost can be divided in thirds or4something like that. So, that's the extent to which5the SAMA analysis, the guidance discusses treatment of6multi-unit sites.7JUDGE SPRITZER:  In that situation, would8you also factor in the benefit of additional training9for the operators at the other two reactors or not?10MR. SMITH:  But that's embedded, that's11already embedded in the SAMA of any one unit, so there12is no additional benefit. That benefit is reflected13in that SAMA unit, you reduce the risk by X amount14that resulted in such a benefit.15JUDGE SPRITZER:  I assume the cites for16the guidance you're referring to is in your brief17somewhere?18MR. SMITH:  I'm not certain if that's19referenced in our brief. The industry guideline is20NEI 05-01, and that's NRC-endorsed guidance on21performing SAMA analyses.22JUDGE SPRITZER:  Okay.23JUDGE TRIKOUROS:  To your knowledge, did24the Fermi 2 SAMA take into account the failure of the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 101transmission corridor?1MR. SMITH:  Yes, it did.2JUDGE TRIKOUROS:  Did the Fermi 3 SAMA3take into account the failure of that transmission4corridor?5MR. SMITH:  It certainly did.6JUDGE TRIKOUROS:  So, the failure of the7transmission corridor has been considered but on an8individual basis for each of the two plants. Do you9see any connection or any degradation of that scenario10because the failure occurs simultaneously?11MR. SMITH:  No.12JUDGE TRIKOUROS:  Is there anything in the13regulations that requires a different view because14they occur simultaneously?15MR. SMITH:  Not that I'm aware of.16JUDGE SPRITZER:  All right. Let's move on17and hear from the NRC staff on Joint Petitioners'18Contention 4.19MR. HARRIS:  I don't want to repeat some20of the things that we're saying here. A couple of21things that I wanted to bring up. We talk about, one22of the things that was brought up was spent fuel23pools, the status of the spent fuel pools in terms of24coverage. That is actually the subject of an order25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 102for the plants to be installing reliable spent fuel1pool instrumentation so that those issues of, you2know, can you approach the pools can be determined3remotely. So, the fact that at Fukushima during their4event that they had, they could, you know, had trouble5determining what the status of the pools were at the6time, you know, should not be an issue going forward7because that's already been incorporated into their8licensing basis and they have to come in compliance I9believe by two refueling outages or I think September10of 2016 in terms of the spent fuel pool11instrumentation order.12So, those issues of the status of spent13fuel pool really don't weigh into that particular14problem. Again, the FLEX orders are also one of the15things that, you know, they are currently, you know,16required to do. As part of the FLEX order, they are17going to have to be able to, they are installing18equipment to deal with the first 72 hours for all the19operating plants, all the licensed plants. So, they20have to be able to manage without offsite assistance21for 72 hours. In the case of Fermi 3, of course it's22a passive system so it should be able to do that23without much additional, anything additional. And24then they are able to bring in extra help from staged25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 103equipment at the site or from these two response1centers that are located throughout that to be able to2deal with these prolonged station blackouts.3As the Applicant indicated, the loss of4offsite power including loss of the transmission5corridor has been accounted for, for both the Fermi 36SAMA, severe action mitigation design analysis, it's7called something different slightly different since8the plant hasn't actually been built, versus Fermi 29where you look at it as a SAMA analysis. And there is10nothing in what the Petitioners have indicated for how11those two analyses were somehow incorrect or failed to12account for the actual benefit that would be achieved13by making improvements to the ability to recover or14maintain that offsite power source.15The thing that I want to bring up that16really hasn't been addressed is the Commission by rule17has indicated that we should only be looking at SAMAs18one time for a plant, whether that's at the initial19licensing stage or at license renewal is that they20found when they first imposed the requirement that we21only need to do this once, and that we wouldn't expect22to find anything different. That has been recently,23you know, challenged in the Limerick proceeding. The24Commission of course, you know, rejected the challenge25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 104to revisit Limerick's SAMA analysis for a second time. 1In equivalent, that's what we would be2doing here by trying to force Fermi 3 to redo its SAMA3analysis to account for the licensing that is going on4at Fermi 2. 5JUDGE SPRITZER:  Well, I don't understand6them to be asking for that. What I think they're7saying, or at least one way to look at what they're8saying is you should have considered in the Fermi 29SAMA analysis not only benefits to Fermi 2 in terms of10reduced likelihood of a severe accident or better11mitigation of an accident if it occurred, but also the12fact that there would be some synergistic or13additional benefit to Fermi 3. I mean if you're doing14a complete cost benefit analysis, let's consider all15the benefits even if some of them happen to accrue16with Fermi 3 instead of, or in addition to Fermi 2.17MR. HARRIS:  But you would actually, you18would have to revisit Fermi 3's SAMA analysis to19figure out what those benefits were, you know, in20terms of how to calculate that. It's some unknown21number without actually redoing the SAMA analysis and22how those two things interact.23The Applicant brought up the fact that24when you're looking at the cost of implementing these25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 105particular benefits at multi-unit sites, especially1where the sites have generally the same design, that2you can spread out the cost of implementing for the3site that would reduce the overall cost of4implementing that mitigation measure to reduce, you5know, to increase the potential cost benefit of a6particular SAMA. But it does not work quite the same7on different plans. 8But also from the benefit side, what's the9risk of the consequence?  That is not something that10you can really sort of, you know, tie together. It's11something that the staff, the Commission has tasked12the research part of the staff to go and look at13multi-unit SAMA analyses. We don't have a way that14addresses it.15NEI guidance that discusses it doesn't16actually address how to do, it doesn't give any17guidance in terms of how you calculate that benefit on18a multi-unit site like that. It's something that's19under consideration as a research project.20JUDGE TRIKOUROS:  And that's how I view21the Intervenors' contention in this. Well, let me22start by asking you, is there anything in the new23guidance that's been required by the NRC for existing24reactors and new reactors with respect to the three25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 106orders that have come out that take into account1multi-unit sites?2MR. HARRIS:  The part right now that3probably most directly addresses multi-unit sites is4multi-unit dose assessments. So, in the event of an5actual accident, to be able to do a multi-unit dose6assessment, there is again that research project that7the Commission has tasked research to do a new level83 PRA that is similar to the PRAs that were done for9NUREG 1150. And that is one of the topics that they10are intending to look into is how do you integrate the11risks across this, you know, relatively independent,12you know, units.13JUDGE TRIKOUROS:  Okay. Now, with respect14to equipment and people that are required for each15plant as part of these orders, do they specify that16that number of people and that equipment has to be of17sufficient quantity to handle an ongoing event at more18than one plant at a site?19MR. HARRIS:  Right. As each plant is20required to handle, you know, be able to handle any21event that occurs on it, so they would need sufficient22people to handle both an accident at Fermi 2 and an23accident at Fermi 3. And they would need the24appropriate amount of equipment to be able to deal25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 107with responding to those types of accidents, be that1FLEX or in Fermi 3. I don't want to talk too much2about the ESBWR because I have not been involved in3that, but you know, it's a passive system so it's, in4the purposes of loss of offsite power, it should deal5with it for the 72 hours.6JUDGE TRIKOUROS:  All right. So, that's7contemplated in the new orders that are being8implemented right now by these plants?9MR. HARRIS:  Right.10JUDGE TRIKOUROS:  Okay. With respect then11to the SAMA that one does for each plant, and it is a12probabilistic risk assessment which the Intervenors13have pointed out is, you know, not to their liking in14fact, isn't there some probability that what they15suggest might happen might happen?  In other words,16isn't there some probability that people will evacuate17that site?  It may not be a large probability, but18isn't it some probability?19MR. HARRIS:  The question of would the20staff in charge of the plant evacuate the site, you21know, of course in the event of whatever accident it22is, it's difficult to be prospective and speculate. 23My own personal experience, you know, as a formal24naval nuke is that, and what I've seen here is that25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 108they're not because their families are out in, you1know, out living near the sites. They want to arrest2it. So, there is some possibility that it could3happen, you can't drive it to zero, but the4uncertainty associated with that low probability is --5JUDGE TRIKOUROS:  But I think in the6petitions, they are basically saying you're giving7that a zero probability.8MR. HARRIS:  We're not giving that a zero9probability.10JUDGE TRIKOUROS:  Or the Applicant is11giving that a zero probability.12MR. HARRIS:  You have uncertainty13associated with the SAMA analysis to try to account14for those things that are difficult to quantify. So,15like I said, you know, the uncertainty applied here16was a factor of 2.5 times. So, the benefit is being,17you know, increased by 2.5 from what the, you know,18before you apply the uncertainty in terms of that. 19And then of course a lot of times with the cost, you20know, you don't account for all the costs that would21necessarily go into any particular mitigation measure,22and so you're maximizing the chance for something to23be identified as potentially cost beneficial. 24It doesn't mean that, you know, if you go25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 109back and have a particular accident, that that1mitigation measure wouldn't have been cost beneficial2assuming the accident actually occurred. But that's3not the way SAMAs are done. We're trying to calculate4what's really the expected value of the accident that5occurs at some unknown time under unknown6circumstances.7JUDGE TRIKOUROS:  Well, isn't there8anything in the SAMA requirements that takes what the9Intervenors are saying and, you know, makes it10something you don't have to do?  In other words, when11I read their pleading, they are simply saying that the12site might get evacuated, you should consider that. 13You're saying it's a very low likelihood. But SAMA is14a PRA and, therefore, it considers many low likelihood15events.16MR. HARRIS:  True, but it doesn't17consider, you know, every low likelihood event that18could occur. You know, I mean I mentioned previously,19you know, a meteorite happening to hit the plant. You20know, the likelihood of that it small, the likelihood21of a meteorite hitting the earth, a little larger, but22we don't consider that. And it's not, you don't have23to consider every potential, you know, accident24scenario. I mean even for the accidents that we25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 110consider, there are thousands of different ways that1you can have an accident in terms of the actual2precise way that the accident progresses. 3But we model that using nine source terms,4you know, where you collect the various different5accident scenarios and model each accident as a6particular source from relief. So, you know, you have7to sort of combine some of these things, and some of8these things are, you know, they're not specifically9addressed but they are addressed by, you know, the10fact that we try to look at sensitivities. We try to11look at uncertainty. We try to account for those12things that now are low likelihood that probably, you13know, something with that low likelihood of someone14abandoning the site, you get that right accident that15forces people to abandon the site for whatever reason16that they choose to abandon it, you know, we're going17down, you know, lots and lots of probabilities and18less and less likelihood. And the chance of it19affecting any one of these analyses is small.20And that's sort of what they have to show21is that they have to show that it would actually make22one of the mitigation measures that wasn't identified23as potentially cost beneficial cost beneficial. It's24not a research project. We are simply trying to do a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 111reasonable analysis of their representation of what we1expect to happen. It's not meant to model any2particular one accident.3JUDGE TRIKOUROS:  But the deficiency they4are pointing out is not an unreal deficiency. It's5simply not considered, no one had considered that in6any of the SAMAs for multi-unit sites that happen to7have a shared, I don't know if anybody has that8situation in fact, a shared corridor that is subject9to some sort of an external event that could result in10a station blackout in two plants and treating the11SAMAs as individual entities without that connection12that they're saying should be made. And it is not13unreasonable.14JUDGE ARNOLD:  Well, is the shared15corridor actually significant when you're talking16about having to evacuate the entire site?17JUDGE SPRITZER:  Is that a question for --18JUDGE ARNOLD:  Let me ask you.19MR. HARRIS:  I was asking he was asking20Judge Trikouros.21JUDGE ARNOLD:  Because what you've been22asking back and forth for the last ten minutes sounds23to me to be generic to any multi-unit site.24MR. HARRIS:  I think it is generic to any25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 112multi-unit site. I'm not sure that the shared1corridor makes that particular scenario, whether or2not the staff, you know, under some unlikely3circumstance would just abandon the site and not try4to take all the appropriate actions to stop the5accident or mitigate their risk of the accident. I6don't think that's a function of the shared corridor. 7These same types of things would show up in things8like flooding, seismic risk for any multi-unit site is9that you could have those kind of things would show up10at any other multi-unit site.11JUDGE ARNOLD:  Well, this scenario that12they're -- I'm sorry. Go ahead.13JUDGE SPRITZER:  Well, I just want to14clarify for the record. We keep talking about the15site. Are we talking about Fermi 2, Fermi 3 or both?16MR. HARRIS:  I'm talking about the17combined site because we're talking about the18interaction of the two. So, when I talk about the19site, I'm talking about Fermi 2, Fermi 3, that you can20have some event that would affect both plants at the21site here. We're talking about transmission corridors22at other sites that are multi-unit, you know, whether23they have a shared transmission corridor, they are24subject to types of external events that could25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 113challenge both, you know, all the plants at the site. 1Wetting would be an example of that.2JUDGE TRIKOUROS:  Right. I think that the3scenario that I'm hearing from the Petitioners is one4in which both plants are in crisis. Both plants5require significant amount of staff to be running6around that stuff during a situation in which there's7a release occurring from at least one of those two8plants. If the other plant is not in crisis, then the9operators will be in a control room in a stable10manner, their control room is filtered from radiation. 11But from what I hear from the Intervenors' pleading,12as I ready the pleading, I'm trying to understand what13they're getting at, that's the interpretation that I14seem to be coming to is that it only applies when15there are two plants on a site in crisis, you know,16not just a normal situation where one plant, similar17to TMI for example.18MR. HARRIS:  I don't know that, I read it19differently that, you know, you would have some20initiating event that would cause one plant to have an21accident, and then that plant's accident would cascade22into causing an accident at the other plant.23JUDGE TRIKOUROS:  Do you have, do the24Petitioners have a clarification here?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 114MR. LODGE:  I think numerous postulation1is what was in our thinking. Your Honor, in the 80's,2the NIGA regs for the NRC were amended so worst case3scenarios were no longer obligatorily to be considered4within EIS documents. But 40 CFR 1502.22 was5promulgated and that states that where there is6incomplete or unavailable information, the EIS has to7include certain things like a statement that the8information is incomplete or unavailable, relevance of9that incomplete or unavailable info to evaluating10recently foreseeable significant adverse impacts on11the environment, summary of existing credible12scientific evidence which is relevant to evaluating13those recently foreseeable impacts, and the Agency's14evaluation of those impacts. So, where the15information is essential to reasonable choice of16alternatives, it's required to be discussed and17identified in the EIS. So, as you were saying, Judge18Trikouros, perhaps the chances of abandonment by19staffing and crew, the personnel, is a relatively20small prospect. It certainly seems to us that it does21have to be tested upon and identified. 22Another thing is the Detroit Metropolitan23Airport which is an extremely busy North American24airport is nearby to the transmission corridor as well25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 115as of course the Fermi site itself, and planes pass1over the transmission corridor at least on a very2frequent basis. The problem is that we're really3talking about a single fault type of scenario, if4there is an accident that befalls the transmission5lines. And in 2012, the Commission issued letter62012-05 saying that there have to be two sources of7offsite electricity which doesn't exist here for Fermi82.9So, we think that this is a very, very10problematic contention that we've raised.11MR. SMITH:  If I may, there's something we12haven't discussed that I actually is very relevant to13the questions Judge Trikouros is asking which is the14SAMA process includes a screening process. So, that's15done at the outset. And so, you look at what's the16maximum benefit, and then you also look at there's a17truncation of events that have a very low likelihood. 18And this is discussed in our SAMA analysis. It talks19about reasons why some might be eliminated, things20like excessive implementation costs. If you're21talking about automating your onsite emergency22response, that's going to be excessively, it's going23to have an excessive cost.24Similarly, if there is a very low benefit25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 116or the risk itself is very small, and this is exactly1why Intervenors have an obligation to come forward2with some approximation of the relative costs or3benefits because there is a screening process. You4can't say, well, there is some possibility. That5possibility may be so low that it was appropriately6screened out. They've got to put forth some7information to show that this is actually something8worth considering further, and they haven't done that9here.10MR. KEMPS:  Could I respond just briefly? 11We did in our filing cite NUREG contractor report 22-1239, the 1982 Sandia citing study which is most13commonly known as CRAC-II. And those figures I think14make it difficult for us to get our heads around how15these improvements on safety are not cost beneficial. 16And so, just very briefly, those figures are 8,00017peak early fatalities, 340,000 peak early injuries,1813,000 peak cancer deaths, and adjusted for inflation,19over $300 billion in property damages. And I would20hasten to add --21JUDGE SPRITZER:  Are those figures for22Fermi 2?  Fermi 3?23MR. KEMPS:  Fermi 2, Fermi unit 2.24JUDGE SPRITZER:  Okay.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 117MR. KEMPS:  And I would hasten to add that1the population has likely increased since this report2came out.3JUDGE TRIKOUROS:  That was 1982, that4report, wasn't it?5MR. KEMPS:  Yes, sir.6MR. HARRIS:  Your Honor, may I address the7Sandia citing study?  So, if you look at what the8Sandia citing study does, there are a lot of caveats9in that study in that they don't account for a lot of10the contamination removal mechanisms, you know, by the11containments. So, they're basically assuming a12release from the vessel that doesn't actually get13filtered by the containment at all. Even if it does14fail in some way, there still is going to be some sort15of deposition within the containment, filter through16whatever, however the containment may have failed17because you can have torturous paths that would cause18some bleeding out on that. 19So, it made very conservative assumptions20about what that release would look that they said you21would need to take into account. It looked much more22as a worst case kind of scenario than an actual NEPA23--24JUDGE ARNOLD:  It didn't look over a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 118spectrum of accidents?1MR. HARRIS:  It looked at a smaller2spectrum of accidents. I think there were five source3terms used in that. I believe where Mr. Kemps is4citing from, not looking at it, I believe that's5dealing with what was called source term 1 which was6really sort of, you know, a very large failure, you7know. It was not trying to model all the types of8failures, but they did look at five source terms. 9Fermi 2 now looks at nine different source terms.10A lot of the modeling that's gone on both11from the MAP and MELCOR that does level 2 and level 112PRA which is sort of the initial sort of in accident13scenario has been improved over the years where what14was done determinitivally before is now done more15analytically in terms of trying to model the actual16physics of these particular scenarios. So, it's17giving it more realistic than what you would normally18get under the deterministic kind of model.19JUDGE TRIKOUROS:  Well, I didn't want this20to broaden that much. The simple question was when21you're doing, when you have a multi-unit site that's22subject to a common mode initiating event, do the23SAMAs that are done for each plant have to include24some probability consideration or staffing not being25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 119available at the plant?  That's really all I was1asking and that really, and I was coming from the2point of view of the Petitioners in terms of what I3thought they were saying in their pleading.4MR. HARRIS:  Right. But for a SAMA, we5need to account for, you know, the licensing basis in6terms of what the plant is supposed to be doing. 7That's the model they're doing. That would include8the staff taking the appropriate actions being onsite,9you know. So, you have to account for the plant as it10is and as it is required to be. And that does require11staffing, you know, and that staffing to take12appropriate actions.13JUDGE TRIKOUROS:  Would it be true for me14to say that the new orders coming out or has been out15that are being implemented don't take these things16into consideration?17MR. HARRIS:  Which?  I'm not sure which18things you're referring to there.19JUDGE TRIKOUROS:  Well, just assuming that20everybody goes running around and does what they're21supposed to do with the FLEX strategy and all of that.22MR. HARRIS:  The FLEX strategy is23probably, it's not so deterministic, it's not so24proceduralized because when you look at the FLEX25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 120strategy, it's trying to account for beyond design1basis events from the order perspective and not2knowing exactly what that event is that, you know,3you're going to be able to handle some of these4external events. So, that doesn't allow you to sort5of proceduralize it. So, what you have to do is you6have to have the appropriate equipment that you can7employ appropriately based on the event that you have8from more symptomatic, you know, analysis in response9rather than from this alarm came on, that means I need10to move these three switches attached to these three11pumps, is that you have to look at it holistically how12best to respond to it. 13The idea is that you have sufficient14equipment to make all the attachments to preclude, you15know, a core melt, you know, an accident. That also16means that you have sufficient staff to make all those17required connections in the event of some accident,18you know. So, it doesn't address that specifically,19but you know, they can't just walk away, you know,20they have all this equipment that they're supposed to21take action for.22JUDGE TRIKOUROS:  I don't know, I don't23think I want to pursue that any further.24JUDGE SPRITZER:  All right. Does anybody25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 121have anything further they want to add on this last1Contention 4?2MR. KEMPS:  Yes, Your Honor, just on that3last point that Mr. Harris raised. It's my4understanding that NRC regulations, in terms of5personnel staffing levels, can only be applied to the6control room and to the security guard force. And so,7assumptions about staffing levels to deal with8mitigating a potential pool fire or other mitigations9that have to take place to prevent a catastrophe from10unfolding, I think that's very optimistic for Mr.11Harris to just assume that.12JUDGE SPRITZER:  All right. Very well, I13think we've heard all we need to hear on Joint14Petitioners' contentions. We'll move on to consider15CRAFT's contentions when we come back after lunch. 16Before we leave, does anybody have17anything else they want to raise?  As far as timing,18I think my recollection is you have to walk a little19bit to find some place to eat, so why don't we allow20an hour and 15 minutes?  So, we'll come back at a21quarter to 2:00 and we'll still make our best efforts22to get out of here by 4:00. Is there anybody that if23they stay a little after 4:00 is going to have a major24problem with transportation?  Okay. Well, we still25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 122hope to finish by 4:00, we'll do our best. Thank you.1(Whereupon at 12:32 p.m. the meeting was2adjourned until 1:47 p.m.)3JUDGE SPRITZER:  We are here at the4afternoon session of oral argument in the Fermi 25licensing proceeding, the argument on contention6admissibility, and we are ready to move on to consider7the contentions proposed by CRAFT, C-R-A-F-T, all8capital letters, Citizens Resistance at Fermi 2. A9total of 14 contentions which we have grouped for10purposes of expedited argument. And we begin, unless11there are any questions or issues we need to consider12before we get started, we will begin with CRAFT13Contention 1, and I believe we'll be hearing from Mr.14Sherman.15MR. SHERMAN:  Yes sir.16MR. HARRIS:  Judge Spritzer, I hate to17interrupt. I told you I would check on the dates for18the reg basis for the filtered, the filtering19strategies rule making. The reg basis is due this20December. And then the following rule is due next21year in December.22JUDGE SPRITZER:  Okay. Well, keep us23notified if any development happens that can be24relevant, that you think would be relevant to the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 123contentions.1MR. HARRIS:  Yes sir.2MR. SMITH:  Judge Spritzer, I had action3to provide a citation for you.4JUDGE SPRITZER:  Oh, okay.5MR. SMITH:  The ESBWR passer design does6not require offsite or onsite power for 72 hours. And7that's in the DCD at 15.5.3, or it's in the Fermi 38COLA at Section 8.3-2.9JUDGE SPRITZER:  Okay. Great, thank you. 10All right, you may proceed.11MR. SHERMAN:  Thank you, sir, and thank12you gentlemen of the panel. Your Honors, I want to13first thank you sincerely for the opportunity to14address you. I feel very honored to be here speaking15on these contentions. And so I just wanted to express16my heartfelt thank you. My name is James Sherman. 17I am a steering committee member of the18Citizens Resistance at Fermi 2, and I'm here to defend19our contention that the public deserves a hearing in20reference to these matters, especially with regard to21alternatives that are viable and realistic. So the22NEPA law requires the Applicant to include in their ER23analysis that considers and balances the environmental24impacts of alternatives for reducing or avoiding25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 124adverse environmental impact.1The response to the CRAFT petition claims2that CRAFT does not demonstrate feasibility of the3renewable mix. And I would say that it's a specious4argument, and deflection from DTE's responsibility. 5Our argument is that the analysis is purposefully6neglectful. In their analysis, the position that the7Applicant's alternatives is not required to discuss8every conceivable alternative to the purposed action9NEPA requires. And only consideration of feasible,10non-speculative and reasonable alternatives are11required by NEPA.12Our contention is that DTE has taken a13self-serving approach to this analysis. And that14wind, solar, and the other renewables that we have15mentioned in our contention are absolutely viable. 16According to Michigan Public Service Commission, there17is already more than 12,000 megawatts of wind18generation capacity in the state, with more being19build every day.20JUDGE SPRITZER:  I think their position21is, basically, that you haven't demonstrated that it's22a viable alternative to providing what they call base23load power. That's power that's available all the24time, even when the wind's not blowing. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 125MR. SHERMAN:  Thank you, Your Honor, and1I would like to address that directly.2JUDGE SPRITZER:  Sure.3MR. SHERMAN:  First of all, Fermi 2 does4not run 24/7, 365 days a year. This year alone, we've5had a number of outages, both planned and unplanned,6for dealing with problems at the plan. When7distributing wind power throughout the state, and8other renewables such as solar, biomass, then those9resources are distributed so less generation capacity10is required to be transmitted over long distances. 11And we would say that it is a very thin12argument to suggest that the entire State of Michigan13could stop blowing. It's a really difficult argument14to make.15And I would challenge DTE to show me on day on the16record on which there was no wind in the state. And17on days where wind resources are lower, sun resources18tend to be higher. 19We would also point out that the claim that DTE20made that there is no storage capacity on grid in21Michigan is blatantly false. The Luddington power22pump station actually is able to pump water up over23300 feet into a reservoir. It was built in '6924through '73, and when it's at full generation25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 126capacity, it can produce 1,800 megawatts of power; 501percent more than the total output of Fermi 2 when2running at 100 percent power.3So we make the argument that it is not our4responsibility to demonstrate in full that renewable5power can replace Fermi 2. First of all, the6generation capacity is there and being built. And,7first of all, as NEPA states, it is the Applicant's8responsibility to make an analysis of these9alternatives. And we can see that even solar, which10tends to be double the cost of wind power, in North11Carolina, according to Duke Energy, actually is less12expensive than nuclear.13So wind power tends to cost about half the14cost of nuclear power. But here in Michigan, it has15the added benefit that these resources are here in16state. We use our manufacturing base to produce the17turbines. And the wind is home-grown Michigan wind,18as is the solar, the biomass, and all these resources19that we can produce here in state. Whereas, our20current relying on energy from coal and nuclear is all21mined out of state, increasing our cost of energy,22driving manufacturing out of the state, as well, oh23three already?24JUDGE SPRITZER:  We'll give you three25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 127minutes for rebuttal. Was that an assumption that he1would have three minutes of rebuttal?2MS. KANATAS:  Yes.3MR. SHERMAN:  Excellent. So our point is4that DTE takes a dualistic approach. On one hand, in5their NEPA statements and environmental statements,6they're saying that wind is not a viable option. 7Where, if you see any of their wonderful TV8commercials with that great guy from the Dirty Jobs9show, showing how these big turbines make energy free10of pollution. 11So, on the one hand, DTE has a public face12that is lauding their efforts with renewable energy13and, of course not mentioning that all of the steps14that they've taken in this direction have been15required by law, such as the renewable portfolio16standard. Which they laud their adherence to, but17behind the scenes are lobbying against things like18renewable portfolio standards being increased, better19use of metering standards. 20And they make the argument that there is21no storage, which we've established that there is. 22And the fact that the current state of the grid23requires that energy be stored, and that special24arrangements be made with certain customers, such as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 128interruptable service and giving better rates for off-1peak usage. 2So these strategies are already being3used. These strategies will be helpful in mitigating4any sort of capacity factor differences in renewable5power. And, therefore, the argument that these6alternatives are not reasonable and not non-7speculative and reasonable feasible alternatives,8because they're already operating in the state with9great success. 10And the potential for wind alone is barely11stretched. With increase of efficiency and siting,12using wind resource maps to make sure that the wind13resources are placed in the maximum availability of14wind, the capacity factor of these plants are steadily15increasing. And, because they're distributed16throughout the state, the cost of transmission and the17impact of the energy used for transmission is greatly18reduced throughout the state. 19JUDGE TRIKOUROS:  You know, when you say20the capacity for factors is increasing, you're talking21about the down time for maintenance or repair or that22sort of thing, right?23MR. SHERMAN:  Correct. Wind power has,24historically, been rated between 30 and 15 percent25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 129capacity factor. Meaning that for every 1001megawatts, you would potentially get 15 to 30. But2those factors have been raising quite steadily, and3capacity factor for wind throughout the country has4been reaching close to the 50 percent, and well over540.6Throughout the world, we're seeing records7being set regularly in both the building of wind8generating capacity, as well as higher capacity9factors. Just recently, the North Sea Off Wind10Resources off of Europe had set major records towards11running at 100 percent capacity factor for days on12end.13And the only real problem is that if we14build enough capacity in wind to more than make up15base load for Fermi 2, at times we will have power16overages that can be sold out of state, sold to17customers that have flexible demands, like salt mines18creating chlorine and sodium resources. Those can be19put in place when energy is at a maximum.20And we believe that this will create, not21only a better environment for the State of Michigan22and our rate payers with lower rates in the long run. 23Because once these resources have been paid off, they24produce energy for free. So the fact of the matter is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 130that economically and environmentally, renewable1energy is a boon for Michigan. They're in-state2resources. 3We're not bringing in fuel and uranium4from out of state. And we'll be able to lower our5rates and keep more manufacturing base here in6Michigan. And by using our manufacturing base to7create these turbines, we're further increasing the8job base in Michigan.9JUDGE ARNOLD:  I'm going to interrupt you.10MR. SHERMAN:  Please.11JUDGE ARNOLD:  You're not answering the12question. It was a very brief question. If you13continue to answer and answer and repeat things that14are in the petition, we're not going to get through15today, because we've got a lot of questions. So could16you be, please be briefer?  17MR. SHERMAN:  Would you restate the18question, please.19JUDGE ARNOLD:  I'm not worried about him20not answering it, but he's going on about --21JUDGE SPRITZER:  I think he's about done22with his time anyway. Why don't we move on in here.23JUDGE ARNOLD:  Well no, because we have24questions. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 131MR. SHERMAN:  Please. I would be happy to1answer them, sir.2JUDGE ARNOLD:  Absolutely. Now, the3Applicant has already addressed wind power in the4application, and said it's not a reasonable5alternative. You say it is. The best way that you6can support it being a reasonable alternative is to7point to someplace that uses wind to get a capacity8equivalent to Fermi 2, and that has a capacity factor9that is in the order of 90 percent or whatever Fermi102 is. Can you point to anyplace where wind power is11producing in that manner?  12MR. SHERMAN:  It is not possible to13produce 90 capacity factor with wind. That is why,14because it is so much cheaper than nuclear, you can15double or triple the capacity for the same financial16investment. And produce windfall profits in the17future for DTE because once the initial investment is18paid off, the energy's produced for free.19JUDGE ARNOLD:  Is there anyplace that wind20produces power 90 percent of the time?  I'm not say21capacity factor, this is with over capacity, and22yields a megawattage equivalent to, or approximately23to Fermi 2?24MR. SHERMAN:  Based on the fact that the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 132capacity factor is known to be about 40 percent, and1the nuclear capacity factors tends to be about 90,2which I believe in some cases an overestimation; you3can see a lot of downtime over the years from Fermi 2. 4All it would take is anywhere you can put together5more than double the total capacity, you'll have the6capacity factor equivalent of Fermi 2.7JUDGE ARNOLD:  So this is speculation on8your part. You can't point to anyplace that has this9amount of wind power, correct?  10MR. SHERMAN:  There's places throughout11the world that have that much wind power. You'll see12in Denmark and Germany, these countries are close to13100 percent renewable power, largely from wind and14solar. And they are closing all of their nuclear15plants. So I would say that it's not only not16speculative, but is demonstrable in other countries17throughout the world. And if you look at the wind18factors in Michigan, we are barely tapping the19available resources we have in the state. 20JUDGE TRIKOUROS:  In your pleadings you21point out that the only way to achieve any kind of22base load situation is with respect to interconnected23wind farms, correct. So let me understand that. Now,24in other cases that we've had, we've discussed various25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 133factors associated with this, so I can ask questions1from some of that experience.2MR. SHERMAN:  Please.3JUDGE TRIKOUROS:  But let me just, okay,4so with respect to interconnected wind farms, are you5suggesting that to replace, say, the -- let's say61,000 megawatts electric, Fermi's about 1,170, I7think. 8MR. SHERMAN:  Yes.9JUDGE TRIKOUROS:  You would be talking10about, let's again say, for the sake of argument, four11wind farms at locations that are far enough away from12each other that the wind will always blow in at least13one of those locations. So you'd be talking about14roughly 4,500 megawatts electric of generation. So15you have to buy four times as much power as Fermi,16such that at any one of those four locations that17would be a Fermi?  Is that what we're talking about?18MR. SHERMAN:  That is one mitigation19strategy. That is reasonable and feasible.20JUDGE TRIKOUROS:  Well, when you say, you21brought up interconnected wind farms, so I'm just22trying to understand what you mean by that. So, we're23talking about four Fermis worth of energy at different24locations?  25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 134MR. SHERMAN:  And we're more than a1quarter of the way there with minimal investment in2that type of energy in the state. 3JUDGE TRIKOUROS:  Okay well, when you say4interconnected wind farms, is that what you mean?5MR. SHERMAN:  Well, yeah --6JUDGE TRIKOUROS:  What I just said?7MR. SHERMAN:  Yes.8JUDGE TRIKOUROS:  Okay. I just want to9make sure I understand what that means.10MR. SHERMAN:  Thank you for the11clarification. And in our original contention, we12said renewable energies such as wind. Wind is only13one part of the factor, but more than enough to14replace Fermi 2. And with additional renewable15resources online, we can start replacing units other16than Fermi 2; palisades, the coal plants. We have the17resources here in the state. We don't have to go out18of state for our energy.19JUDGE TRIKOUROS:  You talk about, later in20your pleading, you talk about some renewable standards21that the State of Michigan is --22MR. SHERMAN:  Yes renewable portfolio23standards, RPS.24JUDGE TRIKOUROS:  And, you know, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 135indicate that they have, that they're required for 101percent renewable?2MR. SHERMAN:  Yes sir.3JUDGE TRIKOUROS:  And you indicate here4that they, basically, are at 9.6 percent. Is that5correct?  You mention a 9.6 percent number in here.6MR. SHERMAN:  Did I say 9.6 percent?7JUDGE TRIKOUROS:  You mention 9008megawatts is owned or contracted renewable energy9generation by Detroit Energy.10MR. SHERMAN:  You're not saying verbally11just now, you're saying in the contention. Yes sir.12JUDGE TRIKOUROS:  Right. Okay, and you13claim that that 900 megawatts is equivalent to 9.614percent of the electricity that will be sold to retail15customers in 2015. 16MR. SHERMAN:  I believe that is correct. 17I don't have that paper in front of me, but it sounds18correct.19JUDGE TRIKOUROS:  So if there's 90020megawatts, and it's at 30 percent capacity factor, how21could that be 9.6 percent?  Or is the 9.6 percent the22900 megawatts, and you're assuming that that 90023megawatts will always be operating?  I don't24understand your numbers, that's why I'm asking.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 136MR. SHERMAN:  Well, first of all, there's1more than 1,200 megawatts on the grid in wind power2alone; not including other renewables, according to3Michigan Public Service Commission. And that number4is constantly rising. It's the only major form of5energy that's being constructed. So my point isn't6that we are at a position currently with on-grid7renewables in the state that we can now replace Fermi82's base load capacity.9But, our contention is that within 1110years, with a modest investment, before this license11be renewed, we can most certainly replace the base12load power with a modest investment. DTE, from my13understanding, had some complaints about RPS when it14was first forced upon them, saying that it was not15feasible. But, from their own words, they are on16track to meet the RPS standards. And we have17movements in the state to increase that standard, and18practice strongly supportive of those measures. 19JUDGE TRIKOUROS:  Now this is just a20follow-up on Judge Arnold's comments.21MR. SHERMAN:  Yes sir.22JUDGE TRIKOUROS:  This is an assumption on23your part. You, for example, can you point to a base24load simulation study of that?  In other words, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 137can put into a computer that I have a wind farm here1and a wind farm here and wind farm there, give it all2the specifications for wind blowing, not blowing, give3it everything in terms of repair, you know,4maintainability, reliability, do all of that. And it5will come out and tell you what the base load is. 6Now the studies that we've been shown look7like 20 percent is achievable, maybe 30 percent is8achievable. But not 100 percent. Can you point to9even a study, you indicated you couldn't point10directly to a situation in the United States that is11producing equivalent of a nuclear plant base load.12MR. SHERMAN:  Actually, if you go into a13large enough area you can.14JUDGE TRIKOUROS:  Can you point to a15study?  Can you point to anything that is, you know,16concrete that would show this?17MR. SHERMAN:  And you tell me that18concretely Fermi 2 will be running at 90 percent19power, 24/7, 365?  Because if what we're trying to do20is replace a constant source of power, that's not what21we're proposing to replace. Fermi 2 has down time, as22well. The only difference is if you have a wind spill23or a solar spill, nobody dies. 24JUDGE ARNOLD:  Can you control the outage25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 138time of windmills?1MR. SHERMAN:  No.2JUDGE ARNOLD:  Okay. Applicant, can you3control most of your downtime?4MR. SMITH:  We do have scheduled outages,5yes. 6MR. SHERMAN:  And unscheduled. 7MR. SMITH:  Correct. 8JUDGE ARNOLD:  And what is your capacity9factor, historically, do you know?10MR. SMITH:  I don't know off the top of my11head.12JUDGE TRIKOUROS:  And in the past, when13contentions have been, and this was pointed out in the14pleadings of the other parties, in the past when15contentions have been approved, contentions of this16exact nature, they have not been admissible through17the Nuclear Regulatory Commission. So, unless you18have something additional that you can add with19respect to concrete information that says I can shut20down this plant and it won't be a problem because of21wind.22MR. SHERMAN:  I understand. Like I said,23what we're advocating for is a mix of renewables, such24as wind. According to the MSU Land Use Institute,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 139they have documented 300,000 megawatts of wind1potential on the Great Lakes. Lake Erie has some of2the best wind potential in the U.S. because of the3east/west orientation of it. 4We have massive resources available. The5only reason we cannot point to more of them is that6these resources have only recently been invested into7heavily. The position of DTE has been, in the past,8this is not reasonable. But since we passed RPS, they9have been on track to meet it. These projections are10absolutely reasonable. 11And the capacity factor of 90 percent on12Fermi, I would say, is a specious number. At least13two-thirds of that energy does go into waste heat14which, as we know, contributes to algae blooms in the15lake, and thermal discharge issues. So, with respect16to our analysis, I would agree. That fancy computer17you talked about, I'd love one. Maybe you could help18us with a grant. But in reality, NEPA requires the19Applicant --20JUDGE TRIKOUROS:  You could do those21simulations. I mean, you could get somebody to do22those.23MR. SHERMAN:  We would like to.24JUDGE ARNOLD:  You could do that on a PC25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 140at home.1MR. SHERMAN:  We would love to do that. 2JUDGE TRIKOUROS:  This is not difficult to3do.4MR. SHERMAN:  Perhaps some of our partners5here at the tables with more resources would be6willing to do the job that NEPA requires of them, and7we wouldn't have to be here arguing for this. 8JUDGE TRIKOUROS:  Well, it would be9helpful to have hard data. 10MR. SHERMAN:  One of the problems with11getting hard data on wind in Michigan is that, unlike12some other states such as Minnesota, there is no real13time reporting for wind that's required by the14Michigan Public Service Commission. I did try to get15more specific numbers for this panel. 16But between the difficulty of those17numbers to get in a concrete, verifiable way, and the18fact that we have been, basically, barred from19bringing new information, the point is with our20contention is that it is on the onus of the Applicant21to do a fair and reasonable study of alternatives. 22And we feel that it's quite obvious that their23analysis is self serving. 24And we understand. But if DTE were to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 141pull their resources from Fermi 2, stop running that1plant, and put all the resources into wind, of course2the rate payer would win. Of course the state would3win. Of course the state environment would win. What4would lose is their decommissioning fund. And it's5their choice to build a nuclear plant. 6The rate payers have already been soaked7enough with higher rates to support this monstrosity,8and we content that it is up to this Board to assign9a public hearing to allow the public to weigh in. 10We're not here to say it's time to shut down Fermi. 11Trust me, we'd like to suggest that, but we know12that's not in the scope of this hearing. 13It is in the scope of this hearing to14select a public hearing. It is time that the public15be allowed to weigh in on these facts. As we have16witnessed from these proceedings, there's lots of17unanswered questions about renewable energy, about the18potential dangers to health and the environment. But19that's why it is urgent that we allow the public to20have a say.21We're not going to figure this all out22now. But, by the fact that we don't have this all23figured out, and that there are still questions, we24strongly urge this panel, with all due respect, to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 142hold a public hearing and let the public have these1issues aired out. 2JUDGE SPRITZER:  All right, let's move on3and hear from the Applicant. I'm sure they have a4different perspective.5MR. SHERMAN:  Thank you, gentlemen.6JUDGE SPRITZER:  Please proceed.7MR. SMITH:  Thank you. Tyson Smith for8DTE. In this contention, CRAFT alleges that wind9power is a viable option. But, as we, some of the10Judges have recognized, this is a conclusory statement11that fails to recognize that, at bottom, to be12reasonable, an alternative must be capable of13replacing the 1,170 megawatts of base load generation14from Fermi 2. Any alternative that doesn't include15replacing that base load capacity is unreasonable16under NEPA's purpose and need.17Nothing in the proposed contention18acknowledges, much less disputes, the conclusion in19the ER that wind power alone is not a viable20replacement to the base load generation of Fermi 2. 21First, and our, the ER assesses whether wind, as a22discrete energy source, could replace the generation23from Fermi 2. 24It explains that a single wind farm25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 143generation unit of sufficient size to be able to,1given the capacity factors, would not provide2consistent power able to approximate base load. So3then the ER goes on to consider whether you could have4multiple interconnected wind farms over a large area. 5Whether that could approach base load capacity,6exactly the sort of analysis that Mr. Sherman is7saying that we should do.8And we did that. And we concluded that9wind energy would not be able to provide consistent10base load generation due to insufficient velocity and11duration. And there's been no showing that this is a12theoretical approach. It would commercially viable or13technologically feasible in time to replace the14generation of Fermi 2.15And that ER also explains that you could,16hypothetically or theoretically, marry wind resources17with some sort of energy storage technology, like pump18store, like compressed air energy storage, like some19sort of battery. And the ER looked at all of those20options and concluded that none of those alternatives21are sufficiently advanced, technologically or22commercially, to be able to work with wind together to23approximate base load energy.24So, at bottom, the ER concludes that wind25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 144power is not reasonable based on the lack of adequate1wind resources in the DTE service area, the2significant shortcomings and reliability of wind as a3base load energy source, the limited availability of4pump storage, and the undetermined availability of5geological formations for compressed air energy6storage.7So I think the point here is that DTE has8looked at all of these options, and has addressed them9and put forth information and a basis for its10conclusions. And at this stage in the proceeding,11it's incumbent on the Petitioners to present some12genuine dispute with those conclusions. And nothing13in there, the contention or the reply, rises to that14level. Contention 1 is inadmissible.15JUDGE TRIKOUROS:  Go ahead.16JUDGE ARNOLD:  Just assume for a moment17that it was reasonable to replace Fermi 2 with wind18power. Just, you know, make the assumption. Now,19what would you, how would you compare the continued20environmental impact of Fermi 2, that's already there,21already been constructed, already in operation, to the22impact of building enough windmills to replace Fermi232?24MR. SMITH:  And that's a good point, and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 145that's certainly something that in our ER we also1discussed that. We talked about the impacts of2installing wind generation. It has impacts on land3use and on, you know, on birds and other mammals, like4bats. It has, requires more transmission if you're5going to have them distribute over a larger area. 6And even if you build them offshore, then7you eliminate some of those impacts. But you've got8new ones with the interference with aquatic resources9and so on. So, I think the point is that there are10impacts to wind. But in this analysis, we don't get11there, because we don't reach the point where wind is12a viable alternative.13And then I just point out, in addition14that, as you said, Fermi 2 is already built. So we're15talking about the impacts from an additional 20 years16of operation versus compared to the impact of building17new generation. 18And, ultimately, in license renewal, the19standard is whether the environmental acceptability of20the proposed action, which is renewing the license, is21whether or not the adverse impacts of license renewal22are so great 23as to making operating another 20 years unreasonable. 24And, certainly, there's nothing here to suggest that25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 146that's the case.1JUDGE ARNOLD:  Thank you. 2JUDGE SPRITZER:  NRC staff?3MR. LINDELL:  Your Honors, Joseph Lindell4representing the NRC staff. So as we've discussed5here, I mean, in their brief standard argument here,6Petitioners have stressed that, you know, in general7wind power is a way, a viable means of generating8power. Petitioners, however, have failed to show why9the alternatives analysis in the ER is insufficient. 10And, as we pointed out, the Commission has11made clear on many occasions that an alternative's12contention, to be admissible, it has to raise a13genuine dispute with the ER such that the same stain14to the alternative can supply base load power in the15near term. And that's, for example, the Seabrook16case, 75 NRC SP42. 17Petitioners here have talked a lot about18the potential for wind power; you know, at some point19down the road, some point in the future, projects20overseas and the like. But they haven't made any21factual showing for, you know, wind power to replace22that base load generation of 1,170 milliwatts in the23near term. 24As also Petitioners pointed out, they did25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 147raise on reply, you know, in a situation where, you1know, new arguments can generally not be raised on2reply, that point to certain maps from the state that3you can access on the State of Michigan's website,4where you add up all the milliwatts generated by wind5currently, and plus some future expansions that are6planned, you do reach a number of 1,170 milliwatts or7such. 8But you know, to the extent that this is,9indeed, a challenge to the ER, there are several10problems with this. We don't know, for example, how11much of this current wind power and projected wind12power, although in the State of Michigan, is in the13DTE service area. It also assumes that, you know, all14of this wind power is now able to, basically, replace15the base load demand of Fermi, and it isn't already16supplying, you know, other demands throughout the17state.18And also, as you know, the Applicant19pointed as well here, that you know, there are20reliability issues with wind power, such as wind has21to be blowing sufficient velocity and duration. And22the conclusion in the ER was that it would, it would23not be able to do so to generate base load power. And24CRAFT has failed to challenge this. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 148I guess just the one other thing I would1bring up is the, CRAFT also mentioned the potential2for offshore wind development. They consider that to3be very favorable. Now, the ER addressed this, as4well. And, as the Applicant pointed out, there are5issues with, you know, impacts caused on the6environment by offshore. And also, the ER makes an7important point that legislation in Michigan would be8required to create such a regulatory framework for9offshore wind generation. And, as of the submittal of10the ER, they note that no such framework existed.11So this doesn't meet the standard of being12able to supply the base load power for the near term. 13You know, at the best, it's potential, it's14speculative, theoretical. But that would not meet the15contention admissibility standards. 16JUDGE TRIKOUROS:  In terms of the cost of17wind, you heard what was said regarding the statement18that it was cheaper. Is this something that you can19support, that it's actually cheaper than nuclear, for20example?  For example, if I went on the NEA site right21now, website, and I looked at the cost per kilowatt22hour of these different energy sources, would I find23wind that would be cheaper than nuclear?  Do you have24any, do you know?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 149MR. LINDELL:  I'm sorry, I can't, I can't1really provide any insight on that question.2JUDGE ARNOLD:  Well, do you expect that3you would find any new build wind cheaper and more4cost effective and an already constructed nuclear5power plant?6MR. LINDELL:  I also don't have the facts,7you know, to support that one way or another. You8know, I know that, you know, that you know, something9that's already constructed, you know, there are10certain, you know, cost effectiveness to that as11opposed to constructing something new. But, I mean,12other than that, other than sort of a very general13knowledge, I can't really supply anymore details on14that. 15JUDGE ARNOLD:  Just one more question for16the Intervenors, in your responses, you mentioned wind17and other renewables. 18MR. SHERMAN:  Yes sir.19JUDGE ARNOLD:  The actual contention20statement is wind energy is a viable alternative. So21let me get this clear. You're actually saying wind22and other renewables, not just what the contention23statement says of wind.24MR. SHERMAN:  For the future of Michigan,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 150I believe all renewables need to be on the table, and1whatever works best for the local environment. But,2considering that nuclear is well less than 20 percent3of the state's grid power, I would be more than happy4to stand behind the fact that if we're just talking5about replacement of Fermi, we have the resources in6Michigan to do it.7Now, is each turbine going to produce a8very specific amount for every moment it's online?  Of9course not. But we don't currently have a grid system10that has perfect match of supply and demand. That's11why we already have use of the Luddington power12pumping station. That's why we already have use of13contracts with DTE and their customers such as14interruptable power supply and lower costs for off-15peak usage. 16So DTE has an opportunity to make the most17of the new energy future. Whereas, the old ways of18burning coal and nuclear are slowly transitioning out,19the new ways of making power with no pollution are20coming in. And once those resources have the initial21investment paid off, the DTE will be able to expect22windfall profits. Because there will be times when it23is generating a higher capacity factor, and sometimes24when there's lower. And the current mitigation25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 151strategies is for smoothing out supply and demand on1the grid can be applied to these future overruns and2under productions.3JUDGE TRIKOUROS:  When you quote numbers4like 12,000 megawatts of wind, are you actually5quoting deliverable energy, or are you quoting6installed capacity?7MR. SHERMAN:  I'm glad you asked that8question. I would like to clarify. There's a big9difference between generating capacity and the actual10real time capacity factor. I am not claiming that all1112,000 megawatts of wind power currently on the grid12is generating at that capacity at all times. That is13not our contention. 14What our contention is that, even with15relatively modest investment over the last few years,16wind energy has exploded in the state. The resources17have just barely begun to be tapped. Between on land18and offshore resources, we have more than enough to19power the entire state, let alone replacing Fermi 2. 20Will there be times when the wind is blowing a little21less in some places?  Of course. But we already have22a situation where we have to sometimes massage supply23to meet demand.24JUDGE TRIKOUROS:  Also I wanted to ask, I25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 152guess you again, why is it that when utilities install1wind capacity, they install an equal amount of fossil2energy?  You know, for example, in California --3MR. SHERMAN:  I don't know that to be4true, sir. I've read studies that say in some of the5recent months, the only generating capacity that's6been developed statewide, and in some months7countrywide, has been wind power. Wind power had8definitely been outpacing fossil fuels in terms of new9energy on the grid, from what I have studied. 10Especially here in Michigan and in other states that11are picking up the renewable portfolio standards.12JUDGE TRIKOUROS:  That wasn't my question. 13I might, I might agree that more wind power is being14installed than fossil.15MR. SHERMAN:  I understand your question16was why do companies build simultaneous resources in17wind and --18JUDGE TRIKOUROS:  Yes, and I believe that19that's a consistent behavior.20MR. SHERMAN:  That's not what I've seen,21but I'd love to see the study that can prove it. But22that's not my experience. And in some months, all of23the new generating capacity on the grid has been from24renewable resources. It's one of the only things you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 153can build, unless you're trying to bring older plants1up to a higher generating capacity or working with2some sort of grandfather plan. New plants need to be3developed in compliance with the Clean Air and Water4Act. 5JUDGE TRIKOUROS:  You know, unlike some6organizations in this world, utilities are required to7produce electricity constantly. They don't have the8luxury, anyone in this room if they lost electricity9for five days, they would be jumping all over the10utility company, suing, and they might even die. 11MR. SHERMAN:  It happens all the time.12JUDGE TRIKOUROS:  They might even die. 13They might even die. So there's no option. When14intermittency is installed, it has to be backed up. 15There has to be a back-up if it's intermittent. They16account for downtime of nuclear power plants by17installing combustion turbines. They account for the18down time of any plant by installing other plants.19MR. SHERMAN:  So Fermi 2 has opposite or20parallel capacity to replace it if it were to be21offline is what you're saying?22JUDGE TRIKOUROS:  Well, what I'm saying is23that intermittency can't be counted on. If an energy24source is intermittent, it cannot be counted on as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 154base load.1MR. SHERMAN:  Understood. 2JUDGE TRIKOUROS:  And therein is the3problem we're facing here. That nuclear power plants,4and I'm sure Fermi falls in the general category of 905percent capacity factor entities. So the utility does6have to account for a 10 percent downtime of those7plants. In the same way, if it built 30 percent8capacity factor assets, it would have to provide9energy 70 percent of the time using some other way. 10That other way could be a nuclear power11plant somewhere else, 70 percent of the time. And12therein lies our problem, in that we can't replace a13nuclear plant with a wind asset, and call it base14load. That would not be approved by the Nuclear15Regulatory Commission as a base load replacement. 16MR. SHERMAN:  I understand what you're17saying. It is my belief that the arguments of DTE and18NRC are somewhat self serving. Of course they want to19maintain the status quo. Of course they will make20more money by keeping Fermi 2 online. But, as a21utility, their responsibility is not just to their22bottom line. Of course they have a responsibility to23their investors. 24But they also have a responsibility to the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 155rate payers in the State of Michigan. And the fact1that we already have an inconsistent supply on the2grid, and we correct for that with contracts with3customers like interruptable power and off-peak lower4rates, some of these problems, you know, maybe5exacerbated briefly in the beginning.6But we're not talking about turning off7Fermi tomorrow. We're talking about having a public8meeting to let the public weigh in on these issues. 9And there is capacity, not only in wind, but in other10factors, other sources. And we're not talking about11building capacity overnight for base load power. 12We're talking about having that base load power on the13grid. Using resources from the great State of14Michigan before the renewal of this permit in 1115years. 16Eleven years is a long time to build17storage. To incentivize individual and community18based grids and storage so that people, especially19relying on life support at home, can have the security20of an un-interruptable power supply. And we believe21that that can be incentivized and will actually help22DTE in the long term to deal with these already23existing separations between supply and demand.24JUDGE TRIKOUROS:  Okay well, I think we've25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 156used enough time on this, so we heard your --1JUDGE SPRITZER:  Thank you very sincerely. 2MR. SHERMAN:  Okay.3JUDGE SPRITZER:  Thank you for your4information. And let's move on now to the second5group of contentions. 6MS. COLLINS:  If I might, one of the,7Sandy Bihn who was to defend Contention 12, which was8Group 5, has a scheduling conflict, and we would like9to request that she go on next, if that's all right. 10JUDGE SPRITZER:  Does anybody have a11problem with that. Fine, that would be fine. 12MR. SHERMAN:  If it pleases the Court, I13will relinquish my seat to Sandy. 14JUDGE SPRITZER:  Absolutely. That would15be fine. 16MR. SHERMAN:  I will be in the room if I17wish to be addressed. Thank you again. 18MS. COLLINS:  Contention 12, thermal19pollution.20MS. BIHN:  Good afternoon, and thank you21for allowing me to testify now. I appreciate that. 22I'm Sandy Bihn and I'm a Lake Erie waterkeeper, and I23live on the shores of Maumee Bay and Lake Erie. I've24lived there since 1987. I also serve on the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 157international joint commission board of water quality1advisor board, as well as the Ohio Department of2Natural Resources coastal advisory board, and other3boards relating to Lake Erie. 4I've worked on Lake Erie issues for the5past 20 years. I strangely --6JUDGE SPRITZER:  Maybe you can move the7microphone a little bit closer.8MS. BIHN:  Sure.9JUDGE SPRITZER:  But not too close,10because that's the one that gets feedback.11MS. BIHN:  Is that okay?  Does that work? 12Do you want me to start over?13JUDGE SPRITZER:  No, no.14MS. BIHN:  All right. And so I've worked15with the Lake Erie waterkeeper program, which actually16serves Lake Erie from coast-to-coast from the, on the17west from Ohio and Indiana to the east to New York and18north and south from Ohio to Ontario. So I work on19the whole lake on a regular basis for the past 1020years. 21So I'm just here to kind of talk about the22water impacts of the facility, and what is different23from the 2008 environmental impacts that were24submitted then, and what's going on right now. Most25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 158of you may be aware of the fact that the City of1Toledo had a half a million people with a do not drink2advisory on August 2nd, which is the water intake on3the southern shores of Lake Erie, probably 10-15 miles4from the Fermi 2 operation.5JUDGE SPRITZER:  Yes, we even had an6article in the Washington Post about that, so yes.7MS. BIHN:  Well, it's been all over the8world. It's not often that people, you talk about9economic impact. The restaurants were all closed. The10hospital stopped surgeries. And it was huge in terms11of the ripple effect that that had. How does that12relate to this hearing, and what here in the13contention in terms of algal blooms and mixing zones?14The 50 million gallons, 45 average million15gallons that Fermi 2 uses increases the water16temperature by 18 degrees on average. And what that17does is that accelerates, prematurely begins the bloom18in Lake Erie. We have satellite imagery from 2011, as19verified by Limno Tech for the Army Corps of20Engineers, that basically shows that the first algal21bloom in Lake Erie actually happens in the Fermi222/Detroit Edison footprint, in their mixing zones on23the western basin in Monroe Fermi area. 24And so this starts the bloom sooner than25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 159it would normally happen. And that's particularly1significant for the Toledo situation in that we had a2very warm, or excuse me, a very cold, dry July; almost3a record cold, dry July. And yet, we had a bloom4early. Algal blooms usually start in mid-summer and5peak in September. So it's really unusual that we6would have the kind of situation that happened in7Toledo on August 2nd.8And so the explanation is beginning to9evolve that appears to be that the internal load in10the lake, the sediments already in the lake that have11a high phosphorus content, as proven by recent studies12again by the Corps and by ECT Environmental Consulting13Technologies in the River Raisin area. Actually14those, the temperature is what drives the bloom, and15starts the bloom in the beginning of the season. 16So I guess the point here is that the17acceleration of the water temperature and then18creating the bloom, the start of the bloom, can I tell19you that that bloom, what bloom means to the rest of20the lake, and does that start the bloom accelerating21across the lake?  I can't say that. There's no, that22has not been studied yet. What we can say is that is23definitely where it starts. Each, almost each and24every year you get the satellite imagery. You'll see25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 160it right in the mixing zone of these plants.1So in very shallow waters, 12 and 14 feet,2it's significant. Western basin average depth is only324 feet. So this whole thing, how it cycles and how4the winds blow and move the algae around, is the kind5of complications we get and the kind of outcomes we6get. Certainly DTE is not producing the phosphorus7that is there. That's already in the sediments, as I8said, or externally coming in from the streams. 9But there is a concern that these power10plants are accelerating the blooms, and they can start11further. I mean, that's certainly a reality of what's12going on. And, at a minimum, it would be good if the13temperatures were down in the water, if somehow they14reduce that, what's causing and creating a bigger15bloom in the lake, or at least an earlier bloom in the16lake. 17JUDGE SPRITZER:  How many power plants,18nuclear or non-nuclear, are there in this general19area?20MS. BIHN:  In the western basin, there's21the coal fire power plant, certainly, in Monroe that22does two billions gallons of water. So it's much23larger, it's footprint is much larger than this one at2445 million. And there's Erie Township that has about25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 161135 million, it's a coal fire power plant. Besse on1the other side has 45 million. Bay Shore has2decreased theirs from 750 million to about 180 million3gallons a day.4Strangely, Bay Shore does not seem to5produce the bloom in its footprint. I live really6close to it, and it would seem like it logically7should because it's right at the mouth of the Maumee. 8But it does not. Somehow, the way the winds blow and9the currents are in the water, it would appear that in10the Monroe area, where Fermi is at, that the waters11are a little bit more stagnant. Perhaps they don't12move, and the circulation isn't quite as great. I'm13not sure, but for some reason, year after year, that's14where the bloom starts.15JUDGE ARNOLD:  Well, looking at the16written contention, I can't see anywhere where you've17identified or specifically disagreed with anything in18the Fermi 2 environmental report. 19MS. BIHN:  The report was based on20information before, or it was submitted 2008. The21problems with the blooms have happened since then. So22in many ways, you know, if there's more information23that comes forward and we have a problem in the lake,24which we absolutely do, and I think that's widely,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 162publicly recognized, then it would seem to be prudent1to include the reality of today, as opposed to, you2know, what was known in 2008. And because the blooms3in Lake Erie really, the record blooms have been 2011. 4The next one was 2013 and 2014. 5JUDGE ARNOLD:  Let me just ask that6quickly. When was the environmental report submitted7to the NRC?8MR. SMITH:  Earlier this year.9JUDGE ARNOLD:  So it wasn't 2008.10MR. SMITH:  No, it was not.11MS. BIHN:  Well the dates, I thought, were12based on 2008. But certainly even earlier this year,13this factor in terms of what's going on would not have14been allowed. I mean, they just wouldn't have had the15information. 16JUDGE ARNOLD:  See, the problem I have is17I find that it is addressed in the environmental18report, and you haven't directly challenged what's in19the environmental report. You've just said well,20there's some information that they couldn't possibly21have considered from that evaluation. 22JUDGE SPRITZER:  That might be an23interesting question, but we'll maybe save it for the24staff and the Applicant of whether, what is the duty,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 163if any, to update the Applicant's environmental1report. There's obviously a duty on a Federal agency2and the need to address new or supplemental3information. I know we had at least one licensing4board that looked into that question. You'll have5three minutes for rebuttal, so why don't we move on,6and I'll ask that. 7MR. SMITH:  Sure, and I'll start by8answering that question. There is currently no9obligation to an Applicant to update its ER. That's10something that, in the Diablo Canyon license renewal11proceeding that issue came up. And the Board there12concluded that there was no obligation, but referred13the issue to the Commission. And the last I heard,14the staff was still considering what, if anything, to15do with that.16JUDGE SPRITZER:  So it hasn't been17resolved. Now I take it the corollary of that would18be if there's no duty on the Applicant in this case to19upgrade the ER, we can hardly insist that the20Petitioners, or if they become Intervenors, file new21contentions every time some new piece of information22comes along saying you have to update the ER when, in23fact, there's no duty to update the ER.24MR. SMITH:  No, if there's new information25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 164that comes along, you have a duty, as a Petitioner, to1file new contentions in a certain period of time.2JUDGE SPRITZER:  Well, if the argument3though is that the ER, they wouldn't be able to argue4that the ER needs to be updated.5MR. SMITH:  The argument wouldn't be that6the ER needs to be updated. It's that the information7in the ER is incorrect. 8JUDGE TRIKOUROS:  Yes, I think what Diablo9found was that the Applicant didn't have an obligation10to update the ER, but there was obligation to report11new information so the EIS could be updated by the12staff.13MR. SMITH:  Correct. Yes, the staff will14still reflect it in their, their Group B documents.15Contention 12, as we heard, relates to the16effects of Fermi 2 discharges on algae. I think the17first point is the contention, as written, says that18the thermal discharges are a significant contributing19factor, and the Fermi 2 operations cause environmental20impacts that are "unknown and unanalyzed."  21Well DTE's ER, in fact, analyzes the22potential for algae blooms, including the harmful23algae blooms in Lake Erie. There's an extensive24discussion of the impacts. It describes the Lake Erie25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 165invertebrate population in the ER. It mentions the1historical occurrences of harmful algae blooms in2western Lake Erie. 3It, specifically, notes the potential for4microcystin from blue green algae, and the potential5impacts on drinking water. It describes specific6studies that have been done at the Fermi 2 outfall in7September of 2011, which found a healthy algae8community. And it notes that no algae blooms of9lyngbya or other nuisance species have been reported10at the Fermi site to due to Fermi 2's operations or11other NPDES permitted discharges. 12So, not only is there no emission, there's13an assessment in the ER of these impacts. And it14concludes that Fermi 2 is not causing or contributing15to harmful algae blooms. And that conclusion is16based, it specifically refers to a potential for algae17blooms in the vicinity of the site, and in Lake Erie18generally. 19So this is something that has been20comprehensively addressed in our environmental report. 21For their part, CRAFT offers no specific information22to controvert those conclusions. It doesn't provide23any expert or factual support. And the fact that this24is an issue of intense interest right now is not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 166enough to render it to be an admissible contention on1its own. Contention 12 is inadmissible. 2JUDGE TRIKOUROS:  Do you know if Fermi 23has filed a license amendment to increase the maximum4allowable intake temperature?5MR. SMITH:  I do not know if Fermi 2, I'm6not sure, for the intake temperature?  I'm not aware7that they have. I don't believe that there is a8temperature restriction at present. They have not9filed anything to increase. 10JUDGE TRIKOUROS:  They did not file. 11Many, many nuclear plants in the United States have12filed license amendments and have had to re-analyze13their entire design basis to account for a higher14ultimate heat sink.15MR. SMITH:  Correct. And that's not a16circumstance that Fermi has had to --17JUDGE TRIKOUROS:  But that hasn't happened18with them?19MR. SMITH:  It has not.20JUDGE SPRITZER:  Did your ER discuss the,21what CRAFT refers to as the recent water emergency in22Toledo, Ohio caused by toxin algae blooms?23MR. SMITH:  No, it did not. Obviously,24that occurred after, after we filed our ER. But, as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 167I mentioned, our ER does discuss the potential for1that to occur. It notes the occurrences of that in2the past. And it, specifically, mentions microcystin3which, if I remember correctly, was the particular4toxin produced by the algae that was this summer.5So there's nothing unique about this past6summer with respect to the existence of algae blooms,7generally. From what I understand, the, the unique8nature was that happened to occur in the vicinity of,9you know, the water intake structure for the City of10Toledo. But, more broadly, that's not a new issue,11and it was one that was considered in our ER.12JUDGE SPRITZER:  All right, let's move on13and hear from the staff.14MR. LINDELL:  Your Honors, the staff15wishes to stress similar to, you know, the arguments16made by the Applicant. That, in its initial filing,17CRAFT didn't make any specific challenge to the ER18that was supported by facts or expert opinion when it19came to these algal blooms. And I'm not going to go20over the entire discussion the Applicant just had21about what the ER does actually do to consider this22issue.23You know, on reply, the Petitioner did24point to the fact that studies were done in 2008 and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 1682011. There haven't been any studies since, let's1say, the crisis in Toledo or, you know, the algal2bloom last summer. Now in their argument that point3out that, they make a point that actually the4satellite images or other studies show that the5origins of the bloom are someway interrelated or6connected, start at Fermi 2. 7But, you know, the problem here is that8these arguments are new, and they were never raised9initially. And, you know, the staff doesn't, didn't10have the, didn't have the opportunity to look into11this, and to respond to, to these claims regarding,12that they're raising now. 13And still, there's no particular challenge14to the environmental report in terms of what exactly15the environmental report filed to state. What needs16to be included. you know, what particular information17needs to be analyzed that has not been analyzed. 18More studies, you know, can always be19done, but the Applicant has the burden to demonstrate20that what has been done is insufficient and that the21problem with the algal blooms in Lake Erie is, indeed,22linked in some manner to Fermi 2. 23JUDGE SPRITZER:  Well, this August, 201424satellite image, does that in any way, whether it's25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 169new or not, does that in any way have any bearing on1the question of whether Fermi 2 contributes to the2algal blooms that have happened?3MR. LINDELL:  Your Honor, I did take a4look at the images that were provided in the petition5and their reply. To be honest, two of the images they6say are from NOAA, I was unable to locate. The link7doesn't appear to work. The link appears to be a dead8link. The other image, you know, is from an article,9actually, from Business Insider, which I guess comes,10does initially come from NOAA. 11But, as far as I can tell, the images, you12know, show, you know, the effects of a bloom on Lake13Erie. But they don't, as far as I can tell, the14images don't show in any way, you know, linkage15between Fermi 2 and the algal bloom problem. They16don't, and they never explain how the maps show in any17way that, you know, in fact, they don't even, they18claim that the maps show there's an exacerbated19problem. But they don't show, they haven't shown in20their filing how the maps show that. 21So, to me, the maps seem very unconnected22from any, you know, challenge here in this proceeding. 23I guess the one, if I still have time, one more thing24I'd like to point out. In the past when, actually25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 170it's worth noting the Fermi 3 Board, in the CO offer1sitting there they did initially admit a contention on2algae. 3And it's worth pointing out that over4there Petitioners made specific references to studies. 5Petitioners showed that there were studies talking6about phosphorus concentrations; that they were7increasing and the Applicant, there in the ER, had8initially stated that such concentrations were9decreasing. And also there were university studies10that were referenced there.11And here, at least, in their, what they12provided to us, CRAFT has not provided any level of13detail that would reach that and be able to support an14admissible contention in this regard. I also just15note that, you know, as we've discussed here that the16staff will prepare, you know, a supplemental17environmental impact statement. And they will look at18what new data is out there. And they will analyze how19it's developed and, you know, include that in their20supplemental environmental impact statement.21JUDGE SPRITZER:  Let me ask you about the22question we talked about with Mr. Smith. That is,23first of all, does the staff take the position that an24Applicant, when it learns of new and potentially25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 171skewed information relevant to a NEPA issue has a duty1to update its ER or not?  Or are you still looking at2that.3MR. LINDELL:  Your Honor, I'm, that is not4an issue that I am familiar with. 5JUDGE SPRITZER:  You're about to get some6assistance.7MR. LINDELL:  I mean, the staff's position8is that the Applicant doesn't have a specific duty to9update the ER. But we do continue to ask, request for10additional information. And through that RAI process,11we do learn more, which then allows us to include that12in our environmental impact statement. 13JUDGE SPRITZER:  All right, given that14position, then what is the responsibility of the15Petitioners or Intervenors?  In other words, if they16become aware of information that they say is new and17significant, do they have the duty to, at that point,18to come in and say the ER is wrong, even though it19can't really lead to any requirement to change the ER? 20Or can they wait until the draft EIS comes out, and21see whether the staff has actually taken that22information into account before they file a new23contention?24MR. LINDELL:  Our position is that they do25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 172have an obligation to raise new and significant1information when they become aware of it. The ER, at2this point, is standing in for the EIS. But then, you3know, that information will then be addressed in the4EIS once we become aware of it.5JUDGE SPRITZER:  Okay. All right, is this6being considered in our rule making of any sort?  Or7is this just the staff's current position?8MR. HARRIS:  May I address?9JUDGE SPRITZER:  You can talk direct. I10mean, we don't have --11MR. HARRIS:  I believe the Commission, in12the Diablo case, asked the staff to take a look at the13obligation to update the ER. So that is being14considered, that particular issue. But it's not been15finalized. The staff normally, when it becomes aware16of new and significant information, however it becomes17aware of that, it would ask RAIs to try to resolve18that so it can be addressed in the EIS.19JUDGE SPRITZER:  Okay. All right, thank20you. 21MR. LINDELL:  I think my time has expired. 22Does the Board have further questions?  23JUDGE SPRITZER:  I don't think we do. All24right, the Petitioner's will have, CRAFT will have25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 173three minutes for rebuttal. 1MS. BIHN:  I guess, factually speaking,2it's really important to know that temperature is what3drives a bloom. The blooms don't happen nine months4out of the year. What creates the bloom is increased5water temperature. There is no doubt that Fermi 26increases the water temperature by 18 degrees in the7mixing zone, the footprint of the plant.8Applicant said that the algae there is not9harmful. I beg to differ. Almost all the algae that10come in that period of time in the summer are harmful,11and contain cyanobacteria which creates the12microcystin which was the problem in Toledo. By13having an accelerated bloom at the footprint of the14plant, in the mixing zone, you have algae that's15there. 16What happened in Toledo is that algae, the17winds were perfect. They blew it from other locations18into the intake. It wasn't like the intake itself,19the area of the intake is where the bloom occurred. 20It did not. I mean, I'm sure it had some of the21blooms, I don't want to say that. But, in general, it22went down 14 feet. I was out there the Sunday after23it happened. It's a massive amount of algae.24And so we have a major problem, because25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 174the water intakes, the drinking water intakes in1western Lake Erie do not have reservoirs. So they2draw the raw water, and they take it in. It's costing3more to test and treat. And so there's a concern4about the microcystin that's in there. 5You know, these power plants have been6here a long time. You know, this problem has not7really gotten as serious as it is. As I said, the8record year was 2011. And then next ones were '13 and9'14. So this is really a new issue. It's an10important issue to, I think the fact that that11increase in temperature is where the first blooms12occur. 13It's just the way it is because it's14warmer water. And it will happen there every year15that way. And I think it's important to take that16into consideration in terms of what's happening as a17result of this facility and its operations; how it's18impacting the rest of the lake.19JUDGE SPRITZER:  With respect to this20August, 2014 satellite image that I believe you21included with your reply on this contention, is there22anything you can point to that would link what the23photograph shows, photograph of a large area of Lake24Erie, specifically to Fermi 2, other than we know25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 175Fermi 2 is one of the power plants in that general1area?2MS. BIHN:  The photo, the MODIS photos3that are by NOAA that are up, and they're clear when4there's no cloud cover. So that's, when you get them,5that's where they're coming from. I can give him the6link if he'd like. In terms of what you see in that7particular picture, that will change with the winds8each and every day. 9And I don't want to be facetious about10this, but the reality is the blooms happen because the11temperature changes, and it goes up. So, as far as12what the photo shows, it shows the concentration of13algae in the basin. That absolutely is the case. And14we can see that when the season starts. 15Now, at this time of the year, you won't16see the blooms. Of course, the ice begins to cover,17the algae kind of remains there dormant. It doesn't18go away in the winter. But the blooms and the problem19algae don't start until the temperatures rise. 20JUDGE SPRITZER:  Okay, but temperature can21rise for a number of reason, including simply that22temperature is rising. It's getting warmer. 23MS. BIHN:  That's exactly right. And the24only, the comment I have is this begins earlier25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 176because of the mixing zones. 1JUDGE SPRITZER:  All right.2MS. BIHN:  I mean, that's really where the3rubber meets the road. 4JUDGE SPRITZER:  Okay, I think I5understand your position.6JUDGE TRIKOUROS:  Have there been new7power plants built since Fermi?8MS. BIHN:  There have not been any new9power plants in the basin that have been built and10have the water usage since Fermi, no. So you know,11the problem is the western basin is a very sensitive12area because of its shallowness is really what the,13that's really where the crux of it is at. 14In the rest of the Great Lakes, the water15is much deeper. Western basin average depth is only1624 feet. The outfall here is only 14 feet. So, you17know, it's really shallow water. And it becomes, as18I say, it gets sick quicker and it heals quicker. You19know, if we could get down the sources in things, we20may not have to have this discussion. 21As long as that phosphorus is in there,22the nutrients are in there, and we have these massive23blooms, we have the threat of turning off our drinking24water. That's the reality of it.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 177JUDGE SPRITZER:  All right, let's move on1to the next contention, or in this case group of2contentions. That would be Contentions 4, 5, 6 and314. I take it we'll be hearing from Mr. Schonberger. 4I guess we can take a 10 minute break. So we'll get5started with you as soon as we get back in 10 minutes.6(Off the record.)  7JUDGE SPRITZER:  And we will proceed to8hear argument on Contentions 4, 5, 6 and 14 from Mr.9Schonberger. Would you like to reserve three minutes10for rebuttal?11MR. SCHONBERGER:  Yes sir, Chairman, thank12you. Three minutes for rebuttal. Chairman Spritzer,13Judge Trikouras, Judge Arnold, my name is David14Schonberger, for the record. And volunteer to service15as an agent representative for the pro se Petitioner16CRAFT in this proceeding in order to help the Board17gain a better understanding of our pleadings and where18we are coming from for the public record.19With full disclosure, I am not prepared20today to provide the quality of an oral argument of an21expert witness, so please confine your questions to22Part 2.309. I must point out, for the record, that23our groupings, our grouping arrangement was based on24the goal of maximum public participation, rather than25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 178contention similarities, per se. So this allows us,1this grouping allows us to have the most members of2the public as we can to participate.3And Mr. Sherman, for his part, did an4excellent job of answering the panel's certainly5adversarial, possibly prejudiced, as well, questions6that were in the nature of an evidentiary hearing of7an admitted contention,  beyond the scope of Part82.309(f)(I). And the nature of the panel's questions9demonstrated that an evidentiary hearing is warranted.10A concise statement I have pertaining to11the staff's Motion to Strike, the NRC's Motion to12Strike the incorporation by reference arguments from13CRAFT's reply brief. We content that in a14hypothetical, board clarified and narrowed admission,15it would be reasonable and consistent with the16Administrative Procedure Act to combine the17overlapping and parallel contentions together, in18order to conduct a concurrent adjudication.19We content that proposed Contentions 6, 5,20and 4 in this grouping, 6, 5, and 4 correspond,21respectively, to the joint Petitioners' proposed22contentions 1, 2 and 4, respectively, in an apples-to-23apples fashion, alleging essentially the same24fundamental concerns. Mr. Lindell, for the staff,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 179mentioned earlier that the staff, the Applicant did1not have the opportunity to reply to, allegedly, new2arguments. 3And, Chairman, as we pointed out in the4answer to the Motion to Strike, we remind the panel of5Judge Spritzer's panel's admission of Contention 15 in6the Fermi 3 COLA proceeding. As we pointed out in the7answer to the Motion to Strike, the panel permitted a8subsequent round of replies, subsequent round of9replies, and did not rule out presentation of new10arguments in the reply brief, based on that procedural11deficiency. So, as that would pertain to Contention1212 just argued --13JUDGE SPRITZER:  Well, let me ask this.14MR. SCHONBERGER:  Yes.15JUDGE SPRITZER:  Maybe we can move things16along a little bit. These four contentions that17you're arguing seem to overlap, to a considerable18extent, with the ones presented by Beyond Nuclear and19the other joint Petitioners as we've called them. Are20there any material respects in which your, these four21contentions differ from what the joint Petitioners22presented us with in their petition and here this23morning?  Do you have anything to add, in other words,24to what we've already heard from them?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 180MR. SCHONBERGER:  We would stand by the1answer that, in an apples-to-apples fashion, 6, 5, and24 of CRAFT correspond, respectively, to 1, 2 and 4 of3the joint Petitioners, alleging essentially the same4fundamental concerns. And it is the, it is the Board5panel's prerogative to narrow and to clarify proposed6contentions for admissibility. 7JUDGE SPRITZER:  Okay. Why don't we move8on now, and hear from the Applicant if you have9anything to add to what you've already said this10morning about the very similar contentions filed by11the joint Petitioners.12MS. REDDICK:  Thank you, Your Honor. 13Derani Reddick for the Applicant. I'm not going to14repeat everything that we went over this morning. 15JUDGE SPRITZER:  Thank God.16MS. REDDICK:  But I will say that I17believe the CRAFT petition provides even less18specificity, and provides even less basis than what we19talked about this morning. For example, Contention 420for CRAFT, this is the loss of offsite power, doesn't21even cite to the ER. There's no reference to any22specific SAMA in the ER. There's just, there's23nothing there that alleges a specific deficiency.24With respect to Contentions 5 and 6, in25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 181particular, their challenges to the compliance with1post- Fukushima orders. I don't think we talked about2that too much so far today. I will say that those are3current operating issues. Those orders amended the4licensing basis for the plant. They are, therefore,5outside the scope of license renewal. 6In fact, with respect to Contention 5,7that is regarding spent fuel pool instrumentation, my8understanding is that the plant is required to have9that implemented by November of 2015, but has actually10just installed that instrumentation this past week. 11So that's already in effect. 12JUDGE SPRITZER:  Are any of those orders13that DTE is contesting in any way?  That is contesting14their applicability to Fermi 2?15MS. REDDICK:  No. Lastly, really just16with respect with Contention 14 of CRAFT, this again,17this is not one that is being alleged to have a18specific overlap with any of the earlier contentions19we heard today. This is a challenge, essentially, to20the treatment of spent fuel pool accidents as a21Category 1 issue. 22And we have already talked about that;23about the inability to challenge a Category 1 issue24absent a waiver that the Petitioners have not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 182requested. This contention also asks, I believe, the1words are for seeking a rehearing or reconsideration2of the Board's decision in the Pilgrim license renewal3proceeding, which clearly is outside the scope of this4proceeding.5JUDGE SPRITZER:  All right. Thank you. 6Does that staff have anything to add on these four7contentions beyond what you've already told us?8MR. WACHUTKA:  Yes, Your Honor. This is9Jeremy Wachutka from the NRC staff. First of all, I'd10like to say that there is a significant difference11between proposed Contentions 4, 5 and 6 and the other12contentions we previously spoke about. All three of13these contentions, basically in their very first line,14they are challenging the implementation of Fukushima15orders. 16Whereas, the previous contentions that we17discussed do not challenge the implementation of18Fukushima orders. And this sort of challenge is19outside the scope of this license renewal proceeding. 20These Fukushima orders were immediately effective,21meaning that upon their issuance in 2012, they current22licensing basis for Fermi 2 was modified consistent23with these orders.24Now, therefore, any discussion of these25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 183orders with respect to Fermi 2 is, effectively, a1discussion of Fermi 2's current licensing basis. In2the Turkey Point proceeding, CLI 01-17, and the3Pilgrim proceeding, CLI-07-13, the Commission4explained that the scope of license renewal safety5contentions is limited to issues of aging management,6and not issues with the current licensing basis. 7Therefore, CRAFT's discussion about the8implementation of these Fukushima orders is outside9the scope of this license renewal proceeding. And for10that reason alone, they are inadmissible. 11Additionally, Your Honors, CRAFT attempts to avoid12this result by arguing that its safety concerns13regarding the implementation of these orders may14affect aging management plans.15However, this argument fails for numerous16reasons. First, the period of extended operations for17Fermi 2 would begin in March, 2025. The Fukushima18orders required all licensees, including DTE, to19provide the NRC with their plans for implementing20these orders. DTE has provided that it would complete21the orders by 2016. Therefore, the actual22implementation of these orders will occur before the23Fermi 2 period of extended operations begins. And24thus, their implementation is not an issue within the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 184scope of this license renewal proceeding.1Second, CRAFT asserts that DTE's aging2management plan fails to address equipment aging3issues in the context of multi-unit facilities. 4According to 10 CFR Part 54, aging management plans5must demonstrate that the effects of aging will be6adequately managed so that the intended functions of7the system structures and components within the scope8of Part 51 will be maintained consistent with their9current license basis for the period of extended10operations.11However, CRAFT has not explained how the12existence of a Fermi Unit 3 would affect the intended13functions of the Fermi 2 components that are required14to be managed for aging. Therefore, CRAFT has not15demonstrated that proposed Contention 4 is within the16scope of this license renewal proceeding. 17Otherwise, Your Honors, the other18arguments that we discussed with proposed Contention195, having to be a challenge to a Category 1 finding20and, therefore by rule, outside the scope of these21proceedings. And proposed Contention 6 does not22satisfy 10 CFR Section 2.309(f)(i)(V) because, for23instance, CRAFT identifies the National Academy of24Sciences report, but it does not explain how report25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 185supports its argument in any way. It just attaches it1to its pleading.2Finally, proposed Contention 4 explicitly3asks for this Board to reconsider a Commission4finding. And since Commission findings are binding5upon this Board, this is not something that the Board6has the ability to do. So therefore, proposed7Contention 14 is also inadmissible. And for these8reasons, all of these proposed contentions are9inadmissible. 10JUDGE TRIKOUROS:  The Contention 4, on11page, the petition at 17, says the Petitioner submits12that the Applicant's SAMA analysis and overall license13renewal application hastily fails to comprehensively14analyze reasonable foreseeable links, consequences and15mitigational terms. I'm going to ask later for16clarification. 17But one way to read that is to ask the18question should the SAMA analysis, specifically the19PRA in the SAMA that uses, that the SAMA uses, doesn't20take into account flex strategies and, you know,21various other changes to the plant that are being22implemented as a result of those orders. 23Now, I think I can say that's true. But24I don't know that the NRC is going to require that. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 186I haven't seen anything that says they will. Could1you address that?  2MR. WACHUTKA:  Well, Your Honor, with3respect to multi-unit events in the SAMA analysis,4like we just --5JUDGE TRIKOUROS:  I'm not talking about6multi-unit now. I'm talking about any individual7unit, when they do a PRA, they have you know the8sequence studies that they do. They would include9options that are associated with flex strategies if10they had them in the PRA, right?  They would say11System A, System B, System C fails. You know, now the12core is heating up. Gee, I have flex strategies that13I can implement now to keep the core from heating up. 14Why wouldn't I do that?  That isn't done up to now. 15MR. WACHUTKA:  Right, okay so Your Honor,16in reply to your question, I think the issue is that17the PRA's haven't been updated with these orders that18have been put out that you're discussing with the flex19plan and such. But if they had, these orders have20been found to be beneficial. So in any way that they21would affect the PRA analysis would only be to show22that the plant was safer, and not less safe. 23JUDGE TRIKOUROS:  Yes, I understand that. 24But the statement in the Petitioner's, in the numerous25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 187petitions says you haven't included them. They're1saying it's a omission. You haven't included that. 2At least that's how I read it.3MR. WACHUTKA:  Well --4JUDGE TRIKOUROS:  Is there any plan in the5future to require licensees to do that?  Or is that up6to the licensee on a case-by-case basis?7MR. HARRIS:  Your Honor, if I may address,8I mean, that particular, that particular issue of9updating PRAs is within the control of the licensees. 10So, for they, if they're going to use it for some risk11informed kind of license amendment, you know, they12would have to be updating PRAs to show the latest13licensing basis. 14These PRAs were last updated before these15most recent changes. But the expectation, at least in16terms of SAMA analysis is whether or not the analysis17was reasonable. And you know, in light of what the18flex strategies are meant to do, it's not likely to19show that one of the mitigation measures would, all of20a sudden, become potentially cost beneficial, you21know, if you're accounting for this increased level of22redundance potential to mitigate a core accident.23JUDGE TRIKOUROS:  All right, so you're24saying it would make it better. It's adequate now. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 188No requirement for them to do it.1MR. HARRIS:  Well, it's reasonable under2NEPA.3JUDGE TRIKOUROS:  I understand.4MR. WACHUTKA:  And another issue, Your5Honor, is that they, CRAFT in this case appears to be6challenging these orders. And yet, this is not the7proper forum in which to challenge the orders. Under810 CFR Section 2.202, within 20 days of the orders9being issued they could have been challenged. And, in10fact, some of them were, in the Pilgrim proceeding,11challenged the orders. But the license renewal12proceeding is not the place to challenge these orders.13JUDGE TRIKOUROS:  I understand. 14JUDGE ARNOLD:  I'm just a little bit15confused by some of these contentions in that they're16listed as environmental contentions and, yet, several17of them have to do with whether or not we, the18licensee has implemented requirements of orders that19are, basically, safety enhancements. And I'm20wondering how to you come to it being an environmental21contention when it's really a current licensing basis22challenge?23MR. SCHONBERGER:  Yes, I hear your24question. And primarily, the overlapping with the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 189joint Petitioners is an environmental contention of1omissions of a proper station blackout SAMA analysis. 2However, we do use Part 54 language to, as background3support, to allege the importance of consideration of4these so-called out-of-scope transmission lines and5the out-of-scope corridor.6Because we, fundamentally, dispute the7Applicant's finding in the LRA that Unit 2 is supplied8by physically independent sources of offsite power,9which could qualify as separate. And the public10should be able to reasonably anticipate and expect11that the offsite AC power supply transmission system12must be within the scope of the environmental review13and the safety review for the period of extended14operation, which must presume the Fermi 3 COLA as it15actively stands pending. So we do borrow language16from Part 54.17As the intended function of this passive18system, the transmission lines and corridor, the19intended function is to ensure reliable and20uninterrupted AC electric power supply, and the AEA21mandated safe operation of Unit 2 during the period of22extended operation. And should, therefore, be a23necessary basis for establishing an AEA mandated24reasonable assurance finding for pass system25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 190structures and components that are or principal1importance to safety.2JUDGE ARNOLD:  So, for instance in3Contention 5, spent fuel pool instrumentation, are you4saying that when they have fully installed the5instrumentation, the environmental impacts will become6more severe?  Or are just saying they haven't properly7characterized the environmental impacts?8MR. SCHONBERGER:  Well, Judge Arnold, if9we're moving in to Contention 5, the genuine dispute10with the Applicant's LRA finding, which they made11pursuant to 10 CFR Part 51.95 and Turkey Point,12pursuant to 51.95 and Turkey Point, the Applicant13determined that no new and significant information14exists as it relates to onsite storage spent fuel such15that further analysis would be called for and required16by a hard look requirement.17So, CRAFT would allege that unique and18special circumstances exist which, effectively,19preclude the Applicant's claim of entitlement to20incorporate the Category 1 generic determinations of21NUREG 1437 which is codified in Table B(1) and applied22in Part 51.53. 23JUDGE ARNOLD:  Okay, thank you.24JUDGE SPRITZER:  All right, I think we25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 191have concluded our discussions of those four1contentions. Let's move on to Contention 2 and Ms.2Collins.3MS. COLLINS:  Greetings. I'm Jessie4Collins, and Contention 2 is that Walpole Island First5Nation have been excluded from the NRC proceedings. 6As we stated in the original petition, all sovereign7Indian tribes are grated automatic standing in NRC8proceedings. 10 CFR 51.28(a)(5) says that NRC has the9legal obligation, under NEPA, to notify those tribes.10That didn't happen because the NRC decided11that Walpole Island are Canadians. Wrong. They are12on unseated lands in between Canada and the United13States. Some imaginary line that someone drew says14they're on the Canadian side. But these are unseated15lands. There are treaties governing these people. 16JUDGE SPRITZER:  Let me ask this. What,17at what point do you contend the NRC was required to18notify the tribe, and what were they required to19notify them, what they were required to notify them20of, and at what point in time?21MS. COLLINS:  Of the hearing and of the22plan to, of Fermi's application. The tribe should23have government-to-government status with the United24States. They have treaty rights on the western basin,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 192and on the lands were Fermi are situated. The tribe1is within the 50-mile radius. And so, therefore, they2definitely should have standing, besides being a3nation. 4JUDGE SPRITZER:  As a practical matter, is5the tribe aware of this proceeding now? 6MS. COLLINS:  I beg your pardon.7JUDGE SPRITZER:  Is the tribe aware of8this proceeding now, if you know?9MS. COLLINS:  Yes. The tribe is aware of10the proceedings now, but --11JUDGE SPRITZER:  Have they moved, to my12knowledge, they haven't moved to intervene. You may13have some members of the organization that are tribal14members. In fact, I think you indicated that some15are. But we don't have the request by the tribe to16intervene, at least not yet.17MS. COLLINS:  I beg your pardon.18JUDGE SPRITZER:  We don't have, at least19not yet, an application from the tribe itself, to20participate, do we?  I haven't seen any such request21in this proceeding.22MS. COLLINS:  No, in the Fermi 3, they are23part of our request. In the Fermi 3 proceedings, they24tried to be involved, and the NRC ruled that they were25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 193Canadians, not Americans so, therefore, they had no1say. So they did not apply for the Fermi 2 because of2the previous ruling. But we're representing them. 3Some of their tribal members are our members.4JUDGE SPRITZER:  So you represent some5members of the Walpole Nation?6MS. COLLINS:  Yes.7JUDGE SPRITZER:  Okay.8MS. COLLINS:  And the Boundary Waters9Treaty, Article 3, sets out that the international10joint commission should deal with any issues involving11the waters. The thermal pollution that Sandy Bihn12talked about, those waters, that is affecting Walpole13Island as their fishing rights. I'm limited to three14minutes. 15JUDGE SPRITZER:  No, you're not.16MS. COLLINS:  But what I want to say, what17I want to say is these people are on an island. 18Should anything happen, go wrong God forbid, at Fermi192, they're doomed. In my mind, this is the same as20committing genocide, if you have people that you're21polluting their waters. They are in prevailing wind22direction. The air is going there. 23Their fish are being polluted. Fermi 324has a plan to dredge the tributaries where the fish go25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 194up to spawn, which is another issue. But we're here1to get a hearing so that we can air all these2disputes.3JUDGE SPRITZER:  If we had such a hearing,4what precise arguments would you present on behalf of5your members who are also members of the Walpole6Nation?7MS. COLLINS:  That their lives and8livelihood are endangered, would be further9endangered. That this is a violation of international10law and international treaty rights. And that they11need to be a full partner in the hearings, not just12us, not just CRAFT representing a few of their13members.14JUDGE SPRITZER:  Well, we can't, we can't15make somebody a member. Normally what happens,16whether it's an Indian tribe, a state part of the17organization such as CRAFT, whatever, we don't make18them parties. They apply to be parties, as you have19done. I'm not, I'm trying to understand the20contention. I mean, if they want to apply to be21parties, the tribe wants to apply to be a party to22this proceeding, it can do that. But at least as I've23seen so far, they haven't. Do you have any reason to24think they are inclined to do that in the near future?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 1951MS. COLLINS:  Since their past application2was not respected, they did not apply. They have a3representative here today that's observing this4hearing, a tribal representative. 5JUDGE SPRITZER:  I mean, they would have6to meet, if they want to file contentions, they would7have to meet all the requirements that your8organization has to meet, and the joint Petitioners9have to meet. But there's no impediment that I know10of that would prohibit them from filing a petition and11having a board, this Board presumably, review their12contentions and decide if they're admissible or not. 13But until they actually come forward with14some contentions, I'm not sure if there's anything we15could do without their taking that initiative. All16right, continue. I don't mean to cut you off. Was17there anything more you wanted to tell us about this18contention?19MS. COLLINS:  Well, just in our, the20Motion to Strike, the NRC staff said that we were21bringing up new information. We did not bring in any22new information. We just clarified things and alluded23to the Boundary Treaty, and other treaties, but I24didn't say exactly what. And so, I want to ask the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 196Court that the Motion to Strike be eliminated because1our arguments need to, are viable, and they need to2stand, and we need a hearing.3JUDGE SPRITZER:  Well, you said that there4were some members of the Walpole Nation that are5members of your organization. Now, are there specific6deficiencies that you've identified in Contention 2,7either the original contention or in your reply,8specific deficiencies in the environmental report9related to the Walpole Nation, other than this failure10to provide notice issue. Things that you content11should have been included, should have been discussed12in the environmental report concerning the Walpole13Nation that weren't covered?14MS. COLLINS:  I'm not sure of your15question.16JUDGE SPRITZER:  Okay. Are you familiar17with the environmental report that was prepared?18MS. COLLINS:  Yes.19JUDGE SPRITZER:  Did you look through that20to see if there was any discussion of the Walpole21Nation concerns?22MS. COLLINS:  No, there was not. They,23the environmental report talked about the black areas24and there was no problem and things. But they did not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 197talk about Walpole Island as under environmental1justice. And they said, in the Motion to Strike, that2I hadn't even brought in in the petition, in the3original petition environmental justice issues. 4I had a whole contention on Walpole Island5being excluded. And I'm not a lawyer, you know. But6you would think, with the whole contention being about7them being excluded, what else could that be besides8environmental justice?  But obviously, common sense is9not part the items. 10JUDGE SPRITZER:  Did you look in, all11right.12JUDGE ARNOLD:  My understanding is that13the notice of opportunity for a hearing actually14doesn't go out to any individuals or groups or tribes15or governments. It's just published in the Federal16Register. So, and it's not until after that that the17Commission starts the review of the environmental18report. And it's in, yes, 10 CFR 51, the NEPA part,19that tribes have to be notified. 20But it just seems that, from the steps,21you know, applications submitted, application accepted22and the notification going into the Federal Register,23and then the start of the NEPA review, that you24wouldn't expect the tribes to be notified at the stage25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 198of the notice of the opportunity to intervene. So can1you tell me, did any group get a notice?2MS. COLLINS:  Yes. Eighteen, they3notified 18 federally recognized by the United States4Government tribes, including tribes that, three tribes5in Oklahoma, two in Wisconsin, several around the6State of Michigan.7JUDGE ARNOLD:  Were they notified of the8opportunity to intervene, specifically?9MS. COLLINS:  Yes.10JUDGE ARNOLD:  Thank you.11JUDGE SPRITZER:  But the Walpole was not12one of those 18. Is that correct?13MS. COLLINS:  I beg your pardon.14JUDGE SPRITZER:  The Walpole were not one15of those 18?16MS. COLLINS:  Right. And Walpole Island,17being within the 50 mile radius, was not notified. 18And then the staff, who was so cavalier as to write in19their reply to strike that well, it was published in20the Federal Register, therefore they should have21known. Like the world reads the Federal Register to22find out what's going on, or what's planned to go on. 23Pretty cavalier, I thought.24JUDGE SPRITZER:  Well, that is the law, to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 199some extent. It may seem a bit harsh and unfair, but1generally notice in the Federal Register is considered2notice to the world, whether the world reads the3Federal Register or not. Let's move on and hear from,4all right, let's hear from the Applicant on this5contention.6MS. REDDICK:  Thank you, Derani Reddick7for the Applicant. CRAFT Contention 2 is8inadmissible. It, essentially, alleges a deficiency9that's focused on the NRC staff actions; nothing that10is specific to the environmental report, or the11obligations of DTE. There are two flaws with this12argument. 13First is that the challenge is premature,14as you're asking Your Honor, regarding the timing of15when this notice should happen. The staff's16environmental process is still ongoing. It is not yet17complete. The Commission has ruled, in a similar18proceeding in Crow Butte, that a similar challenge or19a contention that was challenging the staff's NEPA20process was not right because the staff had not21completed its process.22Second, even if that claim were right, the23obligation to notify does not extend to any tribe,24other than a U.S. federally recognized tribe, which25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 200the Walpole Island First Nation is not. So,1ultimately, this claim is really based on what the2staff is obligated to do, which is still an ongoing3process. There is no deficiency in the ER. The4Petitioners do not allege any deficiency in the ER. 5In fact, the ER very specifically states6that the Applicant, DTE, did notify several tribes. 7They sent letters to several tribes notifying them of8the environmental process for the Fermi 2 license9renewal application. And notifying them of the10opportunity to participate in that environmental11process. This is described Table 9.1-2. It's also12described in pages C-15 to C-34 of the environmental13report.14JUDGE SPRITZER:  So was the Walpole one of15those tribes?16MS. REDDICK:  Yes they were.17JUDGE SPRITZER:  They were. Okay.18MS. REDDICK:  Yes. 19JUDGE SPRITZER:  And response, if any, did20you get from them?21MS. REDDICK:  None.22JUDGE SPRITZER:  Let me ask this on23Contention 2. Is there any mention in the24environmental report of Native Americans hunting or25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 201fishing near the site, the Fermi 2 site?1MS. REDDICK:  I believe the environmental2report discusses, in the environmental justice section3that there are no subsistence fishing or farming that4goes on within the vicinity of the site. 5JUDGE SPRITZER:  How did they arrive at6that determination?7MS. REDDICK:  I can't say offhand, Your8Honor. With respect to the issue, though9specifically, as you asked, the environmental justice10discussion of the ER was not something that was cited11in the Petitioners' original petition. This was only12something they raised in the reply which is why the13Applicant supported the staff's Motion to Strike on14this point.15JUDGE SPRITZER:  Right. I understand your16position on that. Let me ask a related question. 17Sorry, Mr. Smith can maybe point us to the, okay, you18don't have anything else to add to my earlier19questions at this point?20MS. REDDICK:  With respect to your earlier21question, the ER does state that there are no Indian22reservations or Native American controlled areas23within the U.S. portion of the 50-mile radius of the24site. And that is page 3-5. And the Walpole Island,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 202it does talk about the Walpole Reserve being a parcel1of land that extends beyond, beyond that region.2JUDGE SPRITZER:  Okay, on environmental3justice, I seem to remember there was an issue at one4point; maybe it's been resolved, whether the ER had to5discuss environmental justice at all. But I take it6your ER did, so I guess that's really not an issue7here. Unless you have anything further, let's move8over to the staff. This is really, as you said, more9their issue, perhaps, than yours. Why don't we hear10from the staff on Contention 2.11MR. LINDELL:  Your Honor, Joseph Lindell12representing the NRC staff. First I'd like to just13say that, as the Applicant stated, the contention14needs to challenge something in the application,15whether safety related or environmental. And here,16it's hard to see the challenge to the application. 17Let me then, try then to explain a little18bit about the process here so, you know, after the19application is, you know, an accepted document, there20is a notice published in the Federal Register of the21opportunity to intervene. There's, now, I don't22believe that, you know, that notice is anything but a23Federal Register notice. We don't send out, you know,24specific notices of that opportunity to particular25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 203tribes or other individuals.1Now, what we do do is for the2environmental scoping process, we do send out a notice3providing them the opportunity to participate, to4federally recognized tribes, though you know, the5Walpole Island First Nation is not listed in the list6of federally recognized tribes. We also contact7individual tribes per the National Historic8Preservation Act. And that's another process that --9JUDGE SPRITZER:  When does that occur?10MR. LINDELL:  I'm not positive of the11exact thing. Someone, hopefully, will correct me if12I'm wrong. I believe that that, that we did already13send out the notices for the both the National14Historic Preservation Act and for the, and we did also15did the scoping process. 16JUDGE SPRITZER:  Now, is that something17the staff does because it's required to, or simply as18a matter of courtesy, giving the tribes an extra bit19of notice that maybe isn't required by law?20MR. LINDELL:  In our regulations, we are21required to send out a notice to Indian tribes for the22environmental scoping process. 23JUDGE SPRITZER:  All right. I take it24it's your position that you weren't required to do25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 204that with respect to the Walpole?1MR. LINDELL:  We were not required to do2that with respect to the Walpole. 3JUDGE SPRITZER:  Because?4MR. LINDELL:  Number one, they're not a5federally recognized tribe. And number two, as6actually the Fermi 3 Board recognized in a prior7proceeding, that our NEPA process, according to our8Regulations 51.1 and 51.10, it doesn't look at9environmental affects on foreign nations. And, you10know, Walpole Island being in Canada, would not,11indeed, be included. 12However I want to stress that, you know,13the Walpole Island First Nation had, indeed, not been14excluded, you know, from the EIS preparation process. 15Because, actually toward the end of September, the16chief of the Walpole Island First Nation sent the NRC17a letter, asking to review the license renewal process18to ensure that its rights to hunt and fish were,19indeed, protected.20And the NRC responded to this letter and21the response, essentially, raised three things. 22First, they provided general information about how the23license renewal process works. And invited, most24importantly, invited Walpole Island to comment on the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 205draft supplemental environmental impact statement when1that is issued in mid-2015. And also pointed, just2pointed out that DTE stated that it has no plans to3alter Fermi 2's current operations during the license4renewal period.5So we would say that, you know, although6we were not required and did not contact the Walpole7Island initially, we have, you know, responded to8their request to be included, and we welcome, you9know, their comments on this process. 10JUDGE SPRITZER:  Let me just ask this. 11Suppose they had filed a Motion to Intervene in this12proceeding, is there anything that would exclude them? 13Would the fact that they're not an American listed14tribe make a difference?15MR. LINDELL:  No, no. They would not be16excluded from the process, from the proceeding. I17mean, they would have to, you know, they would have to18show standing as, you know, any other group. But, you19know, they would not certainly be automatically20excluded. I'd like to also point out, though, that21they don't have automatic standing. 22You know, our regulations do provide for23that in very specific instances. That, number one,24they have to be a federally recognized tribe, and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 206number, the action, the federal action has to be1taking place on the tribe's land, which is not the2case here. But they certainly, you know, could have3filed a Petition to Intervene, and you know, and that4would be looked at as any other Petition to Intervene.5JUDGE SPRITZER:  With respect to the6environmental justice issue, I understand your7position in the Motion to Strike. But that's not8properly before us. But leaving that aside for the9moment, how does environmental justice work in the10context of a non, a tribe whose members may use land11or water, whatever, in the vicinity of a nuclear12facility, but the tribe itself is not an American13federally listed Indian tribe?14MR. LINDELL:  Your Honor, I don't know the15answer to that specific question. What I can say is16that CRAFT would have to, you know, demonstrate that17the Walpole Island is, indeed, such a minority18population that would be disproportionately impacted. 19And it's worth noting, at least, that what the ER20concluded with regard to environmental justice is that21there will be no significant offsite impacts created22by the license renewal of Fermi 2.23And they base this conclusion on the24analysis of all of the various other Category 225NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 207issues, which are looked at in the ER. And they talk,1also, about previous radiological environmental2sampling. So I would say that, you know, aside from3the fact that CRAFT has not really made, you know,4provided facts to support, you know, the tribe's5status as, you know, sort of a low-income population6group that has to be examined, nonetheless, I think7that, you know, the ER's conclusions would extend them8to, as well.9JUDGE SPRITZER:  Let me ask this. Does10the staff, as I said earlier, I seem to remember some11debate some time ago as to whether an ER was required12to address environmental justice. Has that now been13resolved?  Is it clear that the ER should consider14environmental justice issues?15MR. LINDELL:  Yeah, so if you look at16Table B(1), which talks about the Category 1, Category172 issues.18JUDGE SPRITZER:  Sure.19MR. LINDELL:  So it does list20environmental justice as a Category 2 issue such that,21you know, the ER then would look at that. And then22the staff, as well you know, in the environmental23impact statement it prepares.24JUDGE SPRITZER:  Okay.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 208MR. LINDELL:  I think --1JUDGE ARNOLD:  I'm not sure that's2correct. I know the ER is required to provide3demographic input to the environmental justice report,4but I believe somewhere in 10 CFR, in the Federal5Register the policy on environmental justice, it6outlines what the requirements are. 7MS. COLLINS:  I have it here. Executive8Order 12898, published in the Federal Register, Volume959, No. 32, which I'm sure you've all read, states10that each Federal agency shall conduct its programs,11policies and activities in the manner that ensures12such programs do not have the effect of excluding13persons from participation because of their race,14color or national origin. That's Section 2.2. 15Section 5.5(b) says Federal agencies must16provide translations of their documents for limited17English speaking populations. I just thought I would18throw that in because most people, a lot of people do19not speak English on Walpole Island. 20JUDGE SPRITZER:  Okay, thank you. Does21the staff have anything else to add on this22contention?23MR. LINDELL:  Your Honor, I would say just24that, you know, in its reply, also, CRAFT raised25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 209violations of the Executive Order that Ms. Collins1just read from. As far as we're concerned, we haven't2seen any factual support for any violation, you know,3of that Executive Order or the Michigan Executive4Directive, which they also raised, which places5requirements on the state Department of Environmental6Quality, the Michigan state department. But it7doesn't place any obligations on anyone else, as far8as I can tell. 9And, other than that, and also, I did look10the treaties that are mentioned in the petition and11the reply, and I didn't see any particular, you know,12obligations in those treaties that the, that the staff13was, you know, not in compliance with relative to this14license renewal proceeding. 15JUDGE SPRITZER:  Let me ask this. Does16the staff have a position on the SAMA analysis insofar17as whether the SAMA analysis is required to consider18environmental and public health impacts beyond the19border of the United States?20MR. HARRIS:  Your Honor, may I answer21that. The SAMA analysis models the 50-mile radius22around the plant. It doesn't account for borders. So23it would be looking at populations outside 50 miles,24the clean ups of contamination, using U.S.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 210requirements. So it is modeling the consequences of1an accident anywhere within that 50-mile radius around2the plant. 3But you know, in terms of I think this4particular issue, for purposes of the SAMA in terms of5your dose, it doesn't, you status doesn't matter in6terms of what the dose cost conversion is of persons7or the person for purposes of the SAMA. 8JUDGE SPRITZER:  So if a 50-mile radius9extends into Canada, it doesn't change how you do the10analysis?11MR. HARRIS:  It does not change how you do12the analysis. You model the same 50-mile radius.13MR. SMITH:  And I can just confirm that14that's what the Fermi 2 SAMA analysis did. It modeled15the population within 50 miles irrespective of the,16whether that location was within the United States or17Canada or the Walpole Island. 18JUDGE SPRITZER:  Okay. So DTE did include19Canadians within 50 miles in its estimated cost of a20severe accident?21MR. SMITH:  Absolutely.22JUDGE SPRITZER:  All right. Now someone23just pointed out to me that the ER, at page D-96,24lists only 560 people northeast of the site?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 211MR. SMITH:  That's in the particular1quadrant, yes. And that's in the --2JUDGE SPRITZER:  Which page are you on?3MR. SMITH:  D-96. 4JUDGE TRIKOUROS:  Ms. Collins, while5they're looking at that, the United States does6recognize the Walpole Nation, you said --7MS. COLLINS:  As a United States federally8recognized tribe.9JUDGE TRIKOUROS:  What about Canada?  Do10they recognize the Walpole Nation as a recognized11tribe?  Do they have such a list there?12MS. COLLINS:  They're on the imaginary13line that says they're in Canada. But --14JUDGE TRIKOUROS:  So the Canadian would15have them on their --16MS. COLLINS:  No, they were, well they're17not Canadians. They're unseated land. They ran for18safety when troops were, you know, gathering up, well,19it's unseated land.20JUDGE TRIKOUROS:  So they're listed status21is the same with Canada as it is with the United22States, basically. Is that what you're saying?  Sort23of unlisted in either country.24MS. COLLINS:  Recognized by Canada, yes.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 212JUDGE TRIKOUROS:  I'm sorry.1MR. SHERMAN:  They are recognized by2Canada.3MS. COLLINS:  And they --4JUDGE TRIKOUROS:  They are recognized by5Canada.6MS. COLLINS:  They wrote, I have a copy of7a letter that they wrote to the Canadian government8objecting that, because they weren't in, allowed in9the Fermi 3 proceedings. But the Canadian wrote back10and said oh well, that's the United States business,11and we're not getting into it. 12They asked them to intervene on their13behalf. But that, but I guess everybody's bringing up14Fermi 3 here, so I can bring it up, too. Maybe I15don't have that with me. But I found the list of all16the ones they did contact. I guess I don't, sorry. 17I don't, but they, at one time they asked the Canadian18government, complained to them and asked them to19intercede on their behalf, because the NRC would not20let them be a part of the Fermi 3. 21And the, I have a copy of the letter that22the Canadian government sent back and said it's the23United States business. We're not in it. So no one,24they did not help them on that. And so, I'm thinking25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 213maybe the international joint commission may, I don't1know. We'll see. 2JUDGE TRIKOUROS:  Okay, thank you.3JUDGE SPRITZER:  Mr. Smith, I'm just4trying to figure out what this, I'm looking at Table5D.1-22 of the Applicant's environmental report. This6is Appendix D, and the line that says with direction7northeast has 547 people within zero to 10 miles, and8then another 13 at 41 to 50 miles, for a total of 560. 9Is that the direction, or radius I guess you would10call it that would include the, what is it called11Walpole Island?12MR. SMITH:  I don't know that, I don't13know that it is. It doesn't appear to be.14JUDGE SPRITZER:  Okay. Where is Walpole15in relation?16MR. SMITH:  Well sir, if you look on page173-19 or 3-20.18JUDGE SPRITZER:  Okay. 19MR. SMITH:  It's just, it's a figure in20the map, in the ER that shows the 50-mile radius. The21Walpole Island is on the, sort of the northeast,22north, northeast piece of Lake St. Clair. 23JUDGE SPRITZER:  Okay. This is page 3-1924or --25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 214MR. SMITH:  Page 3-19 of the ER.1JUDGE SPRITZER:  So they might be beyond2the 50-mile --3MR. SMITH:  No. I mean, the ER on page43.3-5 says that, as illustrated in Figure 3.0-6, which5is on page 3-20, a small portion of Walpole First6Nation reserve northeast of the Fermi site in Ontario7Canada lies just inside the 50-mile radius. 8JUDGE SPRITZER:  Okay. All right, thank9you. All right, I think we're finished with this10contention. Let's move on to the final group of11contentions which are Contentions 7, 8, 9, 10 and 11. 12Mr. Schonberger.13MR. SCHONBERGER:  Thank you, Chairman. 14David Schonberger, for the record, designated15representative for CRAFT for Contention 7, 8, 9, 1016and 11. So, reserving my rebuttal time, let me first17take your questions. 18JUDGE TRIKOUROS:  All right. NUREG, well,19the license renewal application aging management20program for this subject of, the subject of inspecting21and monitoring for leaks, which is your Contention 7. 22The aging management, the license renewal application23indicates that it implements NUREG 1801 without24exceptions. Yet you didn't, specifically, go in in25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 215your contention and say this is what's wrong with1that. 2So we're kind of in a situation where we3have your statement and your basis that says they4don't adequately do this job. We don't really,5specifically, know why you have that language in6there.7MR. SCHONBERGER:  So let me clarify for8the panel where we're coming from. We allege that,9that because both, because full cathodic protection10coverage has not been implemented at Unit 2, by the11Applicant's own admission, and that the Applicant12admits that it could do better, and more improvements13are planned to increase system coverage. 14So these are explicit notions in the LRA,15and the Applicant, therefore, acknowledges two16important facts which support our contention. First,17that the Applicant acknowledges that it has failed to18fully install the best available system to a degree19that CRAFT Alleges would qualify as in compliance with20as low as reasonably achievable standards, LRS21standards for buried and underground piping leakages22and dose exposure to the public.23Because, by definition, as low as24reasonably achievable has not been implemented. It is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 216reasonably achievable and planned by the Applicant to1do better and to do more. And secondly, the Applicant2acknowledges, by omission in its answer to our3petition, that it is unable to prove an undefined4reasonable assurance standard by a clear preponderance5of evidence as required by Part 54 pertaining to the6buried and underground piping act.7Apparently, the Applicant believes that it8can take advantage of the regulator's unclear and9poorly defined standards for establishing reasonable10assurance. And the Applicant appears to believe that11the agency will approve whatever the Applicant submits12for consideration. And that the agency will dismiss13whatever reasonable assurance standards that the14Petitioner would allege that might be necessary in15order to achieve adequate protection as mandated by16the AEA, such as full system coverage, full cathodic17protection.18JUDGE TRIKOUROS:  All right, thank you.19JUDGE ARNOLD:  Well, in the amps, for20instance on page 24 of the petition. Petitioner21maintains that neither the amp program for buried22pipes and tanks, nor the inspections and tests23performed as part of the team maintenance and24operation provide reasonable assurance that the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 217effects of aging will be managed. Can you be more1specific as to what specific aging management program2is lacking?  Now, either point it out on a table or --3MR. SCHONBERGER:  Judge Arnold, two4answers to that. First, in the same paragraph, we5specify that in order to protect public safety the6aging management program must be enhanced or7supplemented with a more robust inspection system,8cathodic protection, and so forth. We are narrowing,9narrowing the contention to full cathodic protection. 10And the specificity requirements that the11panel would expect as part of Part 302.309(f)(i)(5)12and (f)(I)(6). We claim that our concise statement13satisfies the requirements for a pro se Petitioner14based on forty years of case law precedent going back15to Wolf Creek, 1975, where specificity for pro se16Petitioners is not expected to the same degree as it17is expected for counseled Petitioners.18So our concise statement consistent with19Part 2.309(f)(I)(5) should be considered sufficient20with regard to that the aging management program must21be enhanced or supplemented with. No. 2, cathodic22protection, and we allege that full cathodic system23coverage would be necessary in order to comply with a24reasonable assurance standard.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 218JUDGE ARNOLD:  Are you saying that every1buried component for which there is an aging2management program should include full cathodic3protection?4MR. SCHONBERGER:  Please repeat that.5JUDGE ARNOLD:  Are you saying that every6buried pipe in the system that is required to be7covered with an aging management program should, as8part of that aging management program, include9cathodic protection?  Or are you just saying the10systems that have it now should be more complete?11MR. SCHONBERGER:  Our contention alleges12that full cathodic protection coverage has not been13implemented to the extent that it could be, as the14Applicant acknowledges. And that the Applicant15acknowledges that it has plans to increase system16coverage. And, to the extent that they acknowledge17that, we allege that our definition of reasonable18assurance would require for adequate protection, that19there must be full system coverage to ensure that20ALARA standards are met, by definition, as low as21reasonably achievable. 22If the Applicant admits it's reasonably23achievable, then it should be implemented as part of24the application. And not presumed that the can is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 219kicked down the road. 1JUDGE ARNOLD:  Okay. I understand. 2JUDGE SPRITZER:  Okay, let's move.3JUDGE ARNOLD:  Question on Contention 8,4having to do with SAMA. On page 27, right at the top,5you say:  The Applicant's cost calculations assume an6arbitrary and scientifically inappropriate emergency7planning zone probabilistic models for the Fermi site. 8And, as a result, that a radiological release will9affect only a relatively small area. 10Now, just a few minutes ago, we heard that11the SAMA analysis looks at 50 miles around the plant,12not just to the emergency planning zone. So could you13be more specific as to how a large EPZ would change14the outcome of the SAMA analysis?15MR. SCHONBERGER:  Yes, Judge Arnold. It16pertains to the evacuation time estimate calculations. 17There's a sequential logic going on here in our18contention, which starts with that the Applicant's19meteorological model is bogus and knowingly20unreasonable, knowingly inaccurate. 21And fundamentally, you can see for22yourself that this is not the state of Hawaii. It's23not the state of Florida. It's clearly a location in24this country where we get severe winter snow25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 220conditions. This is November. Wait until January. 1So, In January -- 2JUDGE SPRITZER:  We're not coming back in3January.4MR. SCHONBERGER:  Fair enough. But5Chairman, we have to live here. And we all live here6through the winter. And we allege that the7Applicant's SAMA analysis is deficient, based on a8sequential logic that goes all the way back to an9unrealistic meteorological assumption that, as we10state explicitly, that the presumption is that there11will, for evacuation time estimate determination, that12there would be no more than a 20 percent impairment of13evacuation time.14In fact, the Applicant has reduced that15maximum impact of snow conditions. In the updated16modeling, they've actually reduced it to 20 percent. 17And we allege that there's no rational basis for18alleging only a 20 percent maximum impairment due to19severe snow conditions in a Michigan winter situation. 20So if you start with that, it provides the basis for21an inaccurate and unreasonable evacuation time22estimate and emergency plan.23Which we acknowledge, we acknowledge that24the emergency plan is outside the scope of the, this25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 221license renewal proceeding. So our contention, to1clarify for the board, our contention is not to allege2deficiency of the emergency plan or the evacuation3time estimate as it pertains to the emergency plan. 4Our contention is based on an allegation of an5inaccurate, unreasonable SAMA analysis. That through6sequential logic, to continue an inaccurate evacuation7time estimate creates an inaccurate projected offsite8dose exposure within the 50-mile radius.9Within the 50-mile radius, the evacuation10time estimate is fundamental to determining dose11exposure to the public. So it is not sufficient to12claim the 50-mile radius of consideration is all that13is necessary to have that point covered. The14evacuation time estimate is fundamental to the outcome15of dose exposure to the public within the 50-mile16radius. 17Different evacuation time estimate models18would result in different dose exposure estimates. 19And different dose exposure estimates would yield20different projected cost impacts.21JUDGE TRIKOUROS:  Now, you're talking22about dose estimates in the 10-mile EPZ, correct? 23You're saying the 10-mile EPZ is not being evacuated,24is being evacuated too quickly than would occur in25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 222reality and, therefore, there would be more people in1the 10-mile EPZ getting a larger dose than the SAMA2analysis assumes. Is that, basically, what you're3saying?4MR. SCHONBERGER:  I would say that, that5an accurate evacuation time estimate of whatever6radius we're talking about is fundamental to7determination of the projected probability weighted8economic costs and consequences for a severe accident. 9JUDGE TRIKOUROS:  As a corollary to that,10you also seem to be saying in this pleading the11evacuation zone should be not 10 miles, but 50 miles. 12Is that correct?  It seems to be what you're saying.13MR. SCHONBERGER:  Indeed. We do, we do14allege, we do allege an out-of-scope argument to15support as background the in-scope argument. 16JUDGE TRIKOUROS:  Okay.17JUDGE ARNOLD:  Can I make a quick question18to Applicant?  I just want to ask in your SAMA19analysis, your evacuation times, do you provide20justification of why you use specific times and21specific decrement for winter weather?22MR. SMITH:  Yes. The evacuation time23estimate for Fermi 2 was updated in 2012. The mean24speed was 12.8 meters per second. That's what the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 223evacuation estimated. For the SAMA analysis, we1conservatively looked, lowered that to 10 meters per2second as the average evacuation time. And then, as3a sensitivity case, we looked at either a 15 meter per4second or a 5 meter per second evacuation time, and5found that it doesn't have significant effect on the6results.7JUDGE ARNOLD:  Okay. Have you looked at8how they came up with their evacuation time?  And if9so, do you have any specific, you know, statements of10what they did wrong?  Or are you just saying it just11can't be done that quickly?12MR. SCHONBERGER:  Judge Arnold, I, the13answer to that question goes back to the allegation,14sequentially, that a 20 percent maximum impairment of15evacuation time estimates in a severe, due to a severe16winter condition, that that is unsupportable and17unreasonable, and contaminates, sequentially, all18further probability weighted consequence19determinations in the application.20JUDGE ARNOLD:  I think I understand. 21Nick?22JUDGE TRIKOUROS:  Yes, you're also23questioning the method of analysis, correct?  The rad24dose program?  25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 224MR. SCHONBERGER:  Yes, Judge Trikouras, we1used the rad dose software program. We used that as2a background to explain, to explain where we're coming3from.4JUDGE TRIKOUROS:  But are you specifically5challenging the use of the straight line Gaussian6distribution model versus a variable trajectory plume7dispersion?  Is that, are you challenging that, or are8you -- 9MR. SCHONBERGER:  No, no, to the contrary. 10We acknowledge that a variable trajectory plume11distribution model is assumed in the rad dose12methodology. And our point of raising that issue is13to allege that the 10-mile EPZ should be expanded to14go hand-in-hand, consistent with a variable trajectory15plume distribution model. 16But we recognize that that portion of the17contention is outside the scope of a Part 51 or Part1854 license renewal proceeding. That's not, the point,19we did not bring that information into the contention20in order to dispute that.21JUDGE ARNOLD:  Okay, Applicant, on this,22for the evacuation, the 20 percent impairment factor,23was that a maximum factor?  You know, that the24evacuation's going to take 20 percent longer as the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 225greatest, or is that used more like it's a1representative of average over all of winter?2MR. SMITH:  I'm not that familiar with the3specifics of the Fermi 2 evacuation time estimate. 4But again, what I can say is that for purposes of the5SAMA analysis, we took the mean speed from the6evacuation time estimate, which was 12.8 meters per7second, and we modeled 15, 10 and 5. So we looked at8something that is greater than a 50 percent9impairment. And we found that that does not have much10of an effect on the outcome. 11In fact, the difference between those12evacuation speeds and person-rem per year is the13difference between 4.96 and 4.89. So it's a14relatively small difference. That's on page D-100 of15our SAMA analysis. 16And we also modeled for, just to finish17the assessment of sensitivity that we did in the SAMA18analysis, we also looked at different fractions of the19population that do evacuate, between 90 and 99.520percent of the population. So we modeled both broad21changes in evacuation time, as well as broad changes22in the percentage of the population that, in fact,23evacuates. 24JUDGE TRIKOUROS:  Thank you. Do you know25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 226if the evacuation time analysis too into account this1shadow evacuation that's discussed in the pleading?2MR. SMITH:  I don't know that the3evacuation time estimate did, in particular. But part4of the way in which we address that is through the5sensitivity analysis in the SAMA. And so we did, as6I just mentioned, we varied the fractions of the7population that is assumed to evacuate.8JUDGE TRIKOUROS:  You didn't look at zero9evacuation, did you?10MR. SMITH:  We did, not for the purposes11of the SAMA, no.12JUDGE SPRITZER:  Okay, does the Applicant13anything else to add on this group of contentions?14MR. SMITH:  I'm sorry, certainly. I think15we've discussed the SAMA portion of the contention in16detail. The one thing that I would add is that the17Fermi 2 SAMA analysis does use the MAX code, which18imbedded in that is a Gaussian straight-line air19dispersion model. So I just wanted to clarify that,20in case there was any question on the Board's part.21I think the one part we haven't discussed22is going back to the aging management plan for buried23piping and tanks. And, you know, I first want to note24that this contention, I'm sorry, our program was based25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 227on industry guidance on the NRC's generic aging1lessons learned report. And the inspections2corrective actions and assessments that we have3performed and would perform are addressed in the aging4management plan.5And we also, specifically, incorporate6Fermi's unique operating experience as it relates to7buried piping integrity at the Fermi site. And there8was also some discussion about the cathodic9protection. And as we do note in the aging management10plan, that we have plans to expand that program. 11And just for purposes of factual12information, we currently have on the order of 7813percent coverage of piping. By 2015, that coverage14will be up to 93 percent of piping will be covered by15cathodic protection. And remaining percentage is in16piping that's anticipated to be replaced before long. 17And so that will, at that point, have effectively 10018coverage of buried piping at the Fermi site.19So to the extent there's anything in that20piece of the contention, I think that explains it. 21That's not something that's going to be an issue once22we get to the license renewal term, which of course is23the focus of our aging management plan. It doesn't,24it's not required to be implemented until we get to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 228the license renewal period. 1I think the rest of that has been,2primarily, addressed in our briefings. I don't think3I need to expand in great detail. Only to note that4a number of their specific concerns related to buried5tanks, the site doesn't have any buried tanks in this6system. Other concerns of theirs with respect to what7programs are covered, what buried tank programs are8covered, those are covered by other amps. 9So they haven't demonstrated that there's10any system that is not covered by the program, or any11way in which the program itself is deficient. Thank12you very much.13JUDGE SPRITZER:  The NRC staff, do you14have anything to add on these contentions?15MS. KANATAS:  Good afternoon, Your Honors,16this is Cathy Kanatas for the staff. I don't have17much to add, Your Honors, but I would just like to18reiterate that, in terms of Contention 7, DTE's19application provides for the buried and underground20piping amp. And it provides for maintaining the21intended functions of the structure's systems and22components that are within the scope of license23renewal.24And, as we've heard multiple times, it is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 229consistent with GALL Rev. 2. And the Commission has1specified in Seabrook, CLI 12-5, that if an amp is2consistent with GALL, it is assumed to be adequate. 3CRAFT wants more, including full cathodic protection,4but it does not indicate why more is needed or5required. Therefore, it does not raise an adequately6supported or genuine dispute with the application. 7In terms of the other claims raised8related to ALARA and leaking, as well as reasonable9assurance claims, the Commission has rejected similar10claims in Pilgrim, CLI 10-14, 71 NRC 449. Those raise11currently operating issues that are outside the scope12of this proceeding. In terms of the SAMA, I think13we've covered that quite thoroughly today. 14But again, as I think the Commission has15repeatedly stated, it's not enough to point to the16SAMA and claim that another model should be used or17another input. You have to do more. And here, CRAFT18has not done that. As they recognize the claims about19emergency planning and EPZ are outside the scope of20this license renewal proceeding. 21And to the extent that they claim that22SAMA's meteorology is bogus or unreasonable. There's23just no basis. They cite only to a Dr. Eagan's24declaration in a different license renewal proceeding,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 230and don't tie anything in that declaration to anything1in the DTE SAMA analysis. 2Likewise, for the economic consequences. 3They cite to Mr. Channon's declaration in the Pilgrim4license renewal proceeding for the proposition that5MAX and MAX 2 are not valid, where they provide no6support for that claim; no tie to anything in the7declaration from Mr. Channon to DTE's SAMA. Nor do8they explain why the CRAC-II from the Sandia report9cited in their petition is more appropriate or10reasonable. Mr. Harris covered some of the11conservatisms in the CRAC-II earlier today, so I won't12repeat that. That's it. Thank you.13JUDGE SPRITZER:  Very well. All right,14we'll give Petitioners just an additional three15minutes for rebuttal. But let's keep it to three16minutes, because we do need to get out of here.17MR. SCHONBERGER:  So, as you just heard,18as the Board panel just heard, the staff's position is19indistinguishable from the Applicant's. We believe20that the, a public hearing is necessary in order to21provide an alternative perspective that we believe22we've satisfied the requirements for today in order to23represent the public interest which we attempt to do24in a pro se fashion.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 231With indistinguishable argument proffered1by the staff relative to the Applicant, somebody needs2to represent the public interest, and we attempted to3do that. 4JUDGE SPRITZER:  All right, very well. I5think we understand your position on that, and this6group of contentions. Unless my colleagues have7anything further, I think we're ready to conclude. 8The building will be locked at 5:00, it our9understanding. So if you go out, don't plan on coming10back in after 5:00. But I assume everybody will be11gone by then. 12Thank you for your participation today. 13It's been very educational for us and, hopefully, some14value to you all, as well. And we will try and get a15ruling out as soon as we can. Our official deadline16is 45 days. Though, the fact that we have the holiday17season upcoming, probably that's not --18MR. LODGE:  Your Honor, we assume there19will be a transcript generated.20JUDGE SPRITZER:  This gentleman to our21left is here to prepare that, and if you want a copy22contact him. 23MR. LODGE:  And we'll have the opportunity24to make corrections?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 232JUDGE SPRITZER:  Well this is for, this is1not an evidentiary hearing. If you find anything2that's of concern, let us know. But we don't, we're3not going to have a formal period for transcript. We4don't usually do that with, this isn't legal argument. 5So, as I said, we'll try and get the6ruling out. It's realistic to assume we probably7won't meet the 45 days, but by end of January would be8realistic. Thank you. Unless there's anything else,9anybody have any questions?  Yes sir.10MR. SHERMAN:  Is there any way we can get11a copy of the audio?  I would love to hear it.12JUDGE SPRITZER:  There is really no, there13really is not, there's a transcript that, as I said,14this --15MR. SHERMAN:  Okay, we didn't record the16audio?17JUDGE SPRITZER:  But I don't know that he18records the audio per se. I'm not usually --19MR. SHERMAN:  That's fine. The transcript20will be fine. 21JUDGE ARNOLD:  Well, if you wait until he22gets off the earphones, and ask him, he might be able23to provide you with it.24MR. SHERMAN:  Thank you.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 233JUDGE SPRITZER:  I know he prepares a1transcript. Beyond that, you'll have to check with2him.3MR. SHERMAN:  Very good. 4JUDGE SPRITZER:  Thank you. We're5adjourned.6(Whereupon at 4:41 p.m. the afternoon7session meeting was concluded.)8910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433}}

Revision as of 08:55, 26 June 2018

Transcript of Oral Arguments in the Matter of Fermi Nuclear Power Plant, Unit 2, Monroe, Michigan on November 20, 2014, Pages 1-233
ML14330A259
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Issue date: 11/20/2014
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Atomic Safety and Licensing Board Panel
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SECY RAS
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50-341-LR, ASLBP 14-933-01-LR-BD01, NRC-1233, RAS 26958
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Official Transcript of ProceedingsNUCLEAR REGULATORY COMMISSIONTitle:Oral Arguments in the Matter of:Fermi Nuclear Power Plant Unit 2Docket Number:50-341-LR ASLBP Number:14-933-01-LR-BD01Location:Monroe, Michigan Date:Thursday, November 20, 2014Work Order No.:NRC-1233Pages 1-233NEAL R. GROSS AND CO., INC.Court Reporters and Transcribers1323 Rhode Island Avenue, N.W.Washington, D.C. 20005(202) 234-4433 1UNITED STATES OF AMERICA1BEFORE THE NUCLEAR REGULATORY COMMISSION2Before the Atomic Safety and Licensing Board3+ + + + + 4ORAL ARGUMENTS5------------------------------6IN THE MATTER OF: Docket No.7DTE ELECTRIC COMPANY 50-341-LR8FERMI NUCLEAR POWER PLANT ASLBP No.9UNIT 2 14-933-01-LR-BD0110------------------------------11Thursday12November 20, 2014139:00 a.m.14Monroe County Courthouse15125 East Second Street16Board Meeting Room17Monroe, Michigan18BEFORE:19Ronald Spritzer, Administrative Judge20Nicholas G. Trikouros, Administrative Judge21Gary S. Arnold, Administrative Judge2223 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2PRESENT:1For the Office of Commission Appellate:2Administrative Judges:3Ronald Spritzer4Nicholas G. Trikouros5Gary S. Arnold67NRC Staff:8Jeremy Wachutka9Brian Harris10Joseph Lindell11Catherine Kanatas1213Counsel for Applicant/DTE Energy:14Derani M. Reddick15Tyson R. Smith16Jon P. Christinidis1718Counsel for Joint Petitioners (Morning Session):19Terry Lodge20Paul Gunter21Kevin Kemps2223 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 3Counsel for CRAFT (Afternoon Session):1James Sherman2Jessie Pauline Collins3Sandra Bihn4David Schonberger56 7

8 910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 4P R O C E E D I N G S1(9:01 a.m.)2JUDGE SPRITZER: Good morning. My name is3Ronald Spritzer. I am an Administrative Judge with4the Atomic Safety Licensing Board panel. We are here5today to hold oral argument on contentions in the case6of DTE Electric Company, the application for the7licensing of Fermi Nuclear Power Plant Unit 2. This8is Docket No. 50-341, also ASLBP No. 14-933-01-LR-9BD01.10The purpose today, for the members of the11public who may be here, is to review the arguments for12and against the addition of various contentions of13legal claims that have been advanced in this14proceeding. I've already identified myself. Again,15my name is Ron Spritzer, I'm an Administrative Judge16and an attorney. I'll ask my two colleagues to my17right and left to identify themselves.18JUDGE ARNOLD: I am Judge Arnold. I have19been a Technical Administrative Judge on the panel for20six years. I have a Ph.D. in Nuclear Engineering and21my original career was in the Naval Reactors Program.22JUDGE TRIKOUROS: I am Nick Trikouros. 23I've been a full-time Judge for nine years. My24degrees are from Fordham and NYU and NYU Polytechnic25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 5Institute in Physics and Nuclear Engineering.1JUDGE SPRITZER: In addition, we have a2court reporter to my far left. Next to him is Mr. Joe3Deucher who is our technical expert. If we're having4any problems with microphones or any other kind of5electronic technical issues, he's the guy to ask. And6our law clerk, Nicole Pepperl, is next to him.7Why don't we go through and have the8representatives who are seated up here in the front9identify themselves? We'll get to CRAFT, we'll give10you an opportunity to identify CRAFT representatives. 11Why don't we start with the NRC staff?12MR. HARRIS: Good morning, Judges. I am13Brian Harris, the legal counsel for the Fermi14proceeding. To my right is Jeremy Wachutka who will15be handling a lot of the Beyond Nuclear contentions. 16And seated right behind me are Cathy Kanatas and17Joseph Lindell which will be handling some other18contentions for this proceeding.19JUDGE SPRITZER: Great, glad to have you. 20And for the Joint Intervenors?21MR. LODGE: Good morning, Your Honors. 22I'm Terry Lodge, I am the counsel for three of the23Intervenors, that would be Don't Waste Michigan, the24Citizens Environment Alliance, and Beyond Nuclear. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6Seated to my left is Paul Gunter, he will be the lead1presenter on our first contention. I will handle2number two. And behind me is Kevin Kemps who will be3on contention number four.4JUDGE SPRITZER: Great, thank you. And5for the Applicant?6MR. SMITH: My name is Tyson Smith with7Winston & Strawn. With me I have Jon Christinidis who8is an attorney for DTE Electric Company. And Derani9Reddick is a colleague of mine at Winston & Strawn.10JUDGE SPRITZER: Great. Before I proceed11any further, I don't know whether there are any county12government representatives here, but we'd like to13thank them for the opportunity to once again use their14facilities. This is my first time here and the people15have been extraordinarily accommodating and helpful in16making it possible for us to have this hearing.17As hopefully you all know, there are break18rooms available. We will be taking breaks. This is19not an endurance contest. I think we'll probably go20an hour, an hour and-a-half or so before we take our21first break. 22Our plan, our tentative plan which is23always of course subject to, if we can get through the24Beyond Nuclear contention this morning. Hopefully by25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7noon, we will at that point break for lunch, and then1we would take up the CRAFT contentions in the2afternoon. However, if we happen to finish earlier3with Beyond Nuclear contentions, we'll move into those4before lunch. So, CRAFT should be prepared to move5forward before lunch if that's necessary.6It's been emphasized to us by the court7reporter, and I'm sure you all will do this, but8please speak into the microphone as necessary for the9reporter to be able to pick out what you have to say10and include that in the transcript. Of course we want11to have a complete transcript so we can look at it and12provide us a complete record. So, the proceedings are13being recorded. Before, at least each representative,14before you begin speaking on a particular contention,15it would be helpful if you would identify yourself16both for our benefits to refresh our recollection and17again for the record.18We've been over, we have an order that19sets forth the order of arguments, so I assume20everyone knows that. We'll be starting with the21Beyond Nuclear contentions, Contention 1 followed by22Contention 2, then Contention 4. Beyond Nuclear Joint23Intervenors, or Joint Petitioners I guess I should24refer to you as, you'll have 15 minutes per contention25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 8but you may reserve about five minutes for rebuttal. 1And I believe we have 10 minutes for staff and for the2panel.3And so we've covered breaks, we'll take it4around 11:00 or 10:30 to 11:00, depending on where we5are. I'll ask my colleagues if they have anything to6add before we get started.7JUDGE ARNOLD: Well, first off, I want to8clear up some, Judge Spritzer keeps saying so much9time for presentation. You can expect most of your10presentation time to be occupied answering our11questions. This is not an opportunity to provide new12information. We are basically looking for an13explanation of the information that's in the petition14itself.15JUDGE SPRITZER: Yes, that's true. 16Everybody should, I think we covered that in our order17that we're mainly here to, you're mainly here to18answer our questions, not introduce new information or19new evidence, new arguments that haven't been included20in the filings that we have already.21All right. Before we get started, do any22of the representatives have any questions for us? If23not, hearing no questions, we'll move to Beyond24Nuclear Contention 1. For any members of the public25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 9who happen to be here, this contention concerns, as1several of the Beyond Nuclear contentions, concerns2something called Severe Accident and Mitigation3Alternatives which is something that the Applicant4initially or later the Nuclear Regulatory Commission5in its environmental impact statement are required to6take into account, that is, alternative action or7procedures that would help mitigate, reduce the8likelihood of or mitigate the effects of a severe9accident should one occur no matter how unlikely that10may actually be.11All right. Why don't we start with Beyond12Nuclear's Contention 1?13MR. GUNTER: Okay, thank you. All right. 14That was the all clear I hope.15COURT REPORTER: We might just want to16have you move it back just a little.17MR. GUNTER: Okay, how is that?18JUDGE SPRITZER: Fine for us.19MR. GUNTER: Okay, good. Thank you and20good morning. My name is Paul Gunter and I am with21the Reactor Oversight Project at Beyond Nuclear. And22I think that the Judges have basically given the23general overview here that this Contention 1 deals24with the --25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 10(PA microphone feedback.)1MR. GUNTER: Paul Gunter, I'm with Beyond2Nuclear. The contention before you this morning has3to do with our concerns that Detroit Edison's4environmental report, Severe Accident and Mitigation5Alternative analysis, is significantly deficient. And6you know, just, I think the primary point here is that7as our contention addressed the very demonstrative and8well-articulated NRC staff concerns with regard for a9SAMA looking at the filtered hardened vent. We have10both the Applicant and the NRC Office of General11Counsel who are silent on CEQ 2012-01-57. This CEQ12consideration of additional requirements for13containment venting systems for boiling water reactors14with Mark 1 and Mark 2 containments, we draw upon the15staff's own findings, principally through Robert16Freds, John Denning, and Robert Moniger whose17conclusions and recommendations found that a filtered18vent was in fact cost beneficial for the Mark 1 and19Fermi 2 being a Mark 1.20The staff states that --21JUDGE SPRITZER: Mr. Gunter, let me ask a22question on that. As I understand it, they either23already have or are under NRC order to have the24hardened vents. I take it what you want them to add25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11is some type of, what is it called, engineered filter1that would remove radioactive particles in the event2of a severe accident?3MR. GUNTER: Judge Spritzer, what we4really want is for the Applicant to do a thorough NEPA5analysis. It's also incumbent upon the Agency to6require DTE to meet the standard of NEPA law. And7that's, so we're not asking for a proceeding here on8a requirement for an action on the part of DTE. What9we're asking for is that a thorough analysis be done,10and we find the Applicant's application is deficient11upon this area.12They have outlined that they did a review13with SAMA 123. There is no dispute there. What the14dispute is, is that the staff in CEQ 2012-01-57, after15going through the backfit analysis and all the16guidance documents for a backfit analysis, the various17NUREGs, they determined that when you do the18quantitative and the qualitative analysis, as is19incumbent upon this review for a substantial safety20enhancement which is what the staff found for the21filtered vent, that you come up with a cost benefit22analysis.23JUDGE SPRITZER: But was that evaluation24done specifically for Fermi 2 or was this a generic25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12Mark 1 containment?1MR. GUNTER: It was done for the Mark 1. 2Now, NEPA requires a site specific analysis, and3that's where we find the dispute that after, you know,4very, you know, we reviewed several Advisory Committee5on Reactor Safeguard proceedings. There's extensive6staff transcribed testimony that points to a very7strong argument for, and a well-documented record8again with following all of the procedures before the9NRC that concluded that when you do the hard look, you10find that the filtered vent is cost beneficial. And11--12JUDGE TRIKOUROS: Mr. Gunter, let me13interrupt you.14MR. GUNTER: Yes, sir.15JUDGE TRIKOUROS: Are you referring16specifically to the SAMA analysis in the ERs? Is that17what you're saying that NEPA should look at that,18requires them to look at that? Where are you19referring to?20MR. GUNTER: The Severe Accident and21Mitigation analysis.22JUDGE TRIKOUROS: Is that what you're23referring to?24MR. GUNTER: I'm sorry, say it again?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13JUDGE TRIKOUROS: Is that what you're1referring to?2MR. GUNTER: Yes, sir. Specifically,3we're looking at the SAMA alternative for this4particularly vulnerable containment system. I think5we all acknowledge that the Mark 1 pressure6suppression system is vulnerable. It's no longer7hypothetical or theoretical. It's demonstrated by the8Fukushima Daiichi accident. And so, it's now9incumbent upon the Agency and the Applicant to take10this severe accident initiative very seriously and to11look at it in the context of NEPA law.12JUDGE TRIKOUROS: So, you're --13JUDGE SPRITZER: Let me just interrupt for14a second. One thing I forgot to mention earlier,15Nicole will be holding up the cards. Let's see, you16didn't ask to reserve five minutes for rebuttal. Do17you want to reserve five minutes for rebuttal?18MR. GUNTER: Yes, sir.19JUDGE SPRITZER: Okay. So, you have five20minutes left. She will be holding up a yellow card in21about three minutes.22MR. GUNTER: So, was that three minutes23for real or that's where we're at right now?24MS. PEPPERL: No, no, no, I was25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14demonstrating.1MR. GUNTER: Okay, thank you. It was a2fast 15.3JUDGE SPRITZER: I want to clear this up,4within your official ten minutes, but for everybody's5benefit, we will be holding up a three-minute card6when you're within three minutes of running out of7time. And she'll hold up a red card when your time8expired. However, if you're in the middle of a9question or the Board has additional questions for10you, we certainly want to give you the opportunity to11answer them.12MR. GUNTER: Thank you.13JUDGE SPRITZER: It's more interesting to14get your answer than finishing at a specific point in15time. Please continue.16MR. GUNTER: Well, I think again, you17know, when the staff, the root of our contention and18the genuine dispute here is that the staff did follow19regulatory guidance and found a cost-justified,20substantial safety enhancement.21JUDGE SPRITZER: That's the filters that22you were referring to earlier?23MR. GUNTER: That's the filtered vent,24yes, sir.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15JUDGE SPRITZER: Filtered vent, as opposed1to an unfiltered vent?2MR. GUNTER: As opposed to an unfiltered,3hardened vent. 4JUDGE SPRITZER: And what --5MR. GUNTER: Now, you know, the industry6will argue that the Torus provides a water filter. 7It's our contention that the staff, with the JLD, what8they found was that the most compelling argument here9is the need for defense in depth. And the filtered10vent provides what the JLD determined to be a11reasonably justified, you know, alternative. To put12a filter gives you that, not only the direct benefit13under severe accident condition of the added ability14to filter out radiation, but indirectly it provided15operators with the ability to take early action to16protect containment from other challenges such as17hydrogen gas and such. So --18JUDGE SPRITZER: I think the NRC staff19document you're referring to is the one where they say20in terms of quantitative costs and benefits, the21filters don't meet the quantitative test but if you22add certain qualitative factors including defense in23depth, they think they are advisable.24MR. GUNTER: And that's, yes, sir, and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 16that's where the substantial safety enhancement1determination is important.2JUDGE SPRITZER: Now, it doesn't mean that3they understood that. Did you find anywhere in the4records where the Applicant took into account or5grasped that staff recommendation?6MR. GUNTER: No, sir. That's, this is our7point. In the response to the Petitioner's request8for hearing, both the Applicant and the staff were9silent on CEQ 2012-01-57.10JUDGE SPRITZER: Now, you also referred to11a National Academy of Sciences report. Again, I take12it this report was not directed specifically at Fermi132 but is more a general review of how the NRC had done14a backfit analysis for again these engineered filters?15MR. GUNTER: Yes, sir. In Appendix L, in16the NAS study, references the cost benefit analysis. 17And we contend that the NAS, in its report to the NRC18which was mandated by Congress, that their findings19justify the incorporation of both quantitative and20qualitative analysis.21JUDGE SPRITZER: And they also refer,22again the National Academy of Sciences report, if I23recall it, it essentially criticized or suggested that24the NRC had used a six-billion-dollar figure for the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17cost of a severe accident at the Peach Bottom Plant.1MR. GUNTER: Yes, sir.2JUDGE SPRITZER: Whereas, they said, look3at Fukushima and the cost of that severe accident was4more in the nature of $200 billion.5MR. GUNTER: Yes, sir.6JUDGE SPRITZER: At least what I got out7of that was they were suggesting maybe $200 billion is8a little more reasonable estimate of the cost of9severe accident.10MR. GUNTER: Well, I think that, our11interpretation is that the National Academy said that12you need to incorporate more broadly the qualitative13factors. And again, these are factors that still14don't have, they're not bounded by any certainty now,15and so again that's a very important factor as we go16through the requirements of NEPA and the backfit17analysis and the associated NUREGs that incorporate18the need for both quantitative and qualitative19analysis. 20And you know, I just, let me just check21here with my notes really quick because the SAMA for22the hardened vent, the filtered hardened vent that DTE23undertook, you know, it's not only silent on the CEQ24but they're also silent on whether or not they25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 18incorporated external events, whether or not they1thoroughly incorporated land contamination, how they2factored that in. And I think that that's the level3of detail that NEPA requires an answer.4JUDGE SPRITZER: Including, you have five5minutes left total or five minutes left on the6initial.7MS. PEPPERL: About four minutes actually.8JUDGE ARNOLD: I think this is kind of9irrelevant because we've got questions that are going10to go long beyond ten minutes.11JUDGE SPRITZER: Okay, go ahead.12JUDGE ARNOLD: Sure, I can start. I have13questions in that I find some of the statements in the14contention to be very general rather than more15specific. So, I want to go through and ask you to16clarify some of the statements. For instance, on page177, the last paragraph says, "The deficiency18highlighted in this contention has enormous19independent health and safety significance."20Now, this is a contention on SAMA which is21a NEPA, an environmental law, and really doesn't22factor into the safety aspects of the plant. So, how23do you get that this has health and safety24connections?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19MR. GUNTER: The impacts of unfiltered1radioactive releases raises a concern for the long-2term consequences of land contamination and population3relocations. And that carries with it health impacts. 4And so, you know, the idea again is you have a5mitigation alternative that both directly can benefit,6both directly and indirectly benefits because it7provides the filter element which can significantly8reduce the land contamination event, for example, but9it also provides an indirect benefit in that it will10give operators the freedom to act early to, in early11interventions to prevent containment failure.12So, you know, it gives them a broad13opportunity to vent without necessarily, you know,14with this passive filter in it, they can vent15hydrogen, they can vent pressure. So, you know, in16fact it has both the operation to keep the plant safe17under severe accident condition, but with this passive18condition of a filter, it reduces the consequence of19a severe accident impact such as land contamination.20JUDGE ARNOLD: In that same paragraph, you21say, "Applicant does not adequately or accurately22account for the long-recognized design and structural23vulnerabilities in the Mark 1 pressure suppression24containment system," as if there are many25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 20vulnerabilities. What specifically are you talking1about?2MR. GUNTER: We're talking about the fact3that Generic Letter 89-16 did not go through a safety4evaluation. And so, this was for the hardened vent5that was put on all Mark 1's and that Generic Letter689-16 basically, the NRC requested the hardened vent7be installed on these Mark 1's because of where NUREG81150 recognized that the containment was very likely9to fail. This has been acknowledged and I think it's10in our statements that, as early as 1972, this11vulnerability to failure because the Mark 112containment is essentially undersized for the, you13know, it was never evaluated --14JUDGE ARNOLD: So, briefly, are you saying15that they failed to account for the fact that the16containment can fail?17MR. GUNTER: They, the containment can18fail early and the containment never, and the19subsequent mitigation actions such as Generic Letter2089-16 did not account for severe accidents.21JUDGE ARNOLD: On page 8, in paragraph221.3.1, "Petitioners contend that the absence of23analysis and neglect of mitigating alternatives24including engineered external high capacity filters on25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 21hardened containment vents may result in unanalyzed,1unmitigated, and uncontrolled releases of2radioactivity to the environment." Okay, so right3there you specifically say they didn't analyze high4capacity filters. Were there other alternatives that5you believe they did not analyze? Or did not6adequately analyze?7MR. GUNTER: We didn't articulate that in8the contention, but yes. There are bypass pathways9within the containment that -- 10(PA microphone feedback.)11MR. GUNTER: Is that me?12JUDGE ARNOLD: Keep going.13MR. GUNTER: Okay. For example, you know,14right now the way that the current order EA-2013-10915is progressing, and we've been watching this very16carefully, a lot of the Applicant's eggs are going17into this basket that they can rely upon maintaining18an open vent path through the wet well. And that19raises some concerns because the wet well can in fact20get flooded, and if you flood the wet well, you21exclude the use of that vent path. And while there22may be other vent paths out through the dry well, many23of them vent directly into the containment building,24or into the reactor building, and thereby raises some25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 22issues on hydrogen gas generation, detonation ignition1points.2So, yes, there are a number of extenuating3issues here that what the CEQ 2012-01-57 provides in4terms of answering defense in depth is that a filter5venting system that's hardened both off the wet well6and the dry well gives you that defense in depth. And7they believe that it's cost beneficial and that they8arrived at this idea that it is a substantial safety9enhancement.10JUDGE ARNOLD: Let me just explain what11the problem is with the lack of specificity here. A12contention, if it's admissible, has to be sufficiently13specific that an applicant or a licensee knows what14they have to defend against. They can defend against15a claim that it lacks an analysis of a filtered vent16but they can't defend against a claim that, and they17didn't analyze other things,' because they just don't18know what the contention is.19MR. GUNTER: Right. Well, the filter20component addresses the defense in depth issue that21these other extenuating circumstances involve.22JUDGE SPRITZER: So, for you, the primary23focus of this contention is really the lack in the24SAMA relating to --25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 23MR. GUNTER: The filter.1JUDGE SPRITZER: The filtered vents?2MR. GUNTER: Yes, sir.3JUDGE SPRITZER: Okay.4JUDGE TRIKOUROS: Yes, well, first of all,5you keep discussing the Fukushima accident, and I have6no problem with that. But one thing I want to make7sure is that we really understand the Fukushima8accident and that we look at it in its entirety in9terms of what also occurred that was good as opposed10to what was bad. In the first regard, I'd like to say11that, is it your assertion that only Mark 1 BWRs at12that site would have experienced severe accident13conditions given the conditions that occurred in14Fukushima?15MR. GUNTER: Well, we're only dealing with16the Mark, we're dealing with the Mark 1 in this17proceeding. You know, I'm not going to make18assertions beyond that.19JUDGE TRIKOUROS: I understand. But you20have been discussing Mark 1 in the context of21Fukushima in a way that makes one believe that a Mark221 is worse than all other, you know, reactor23containment designs.24MR. GUNTER: Yes, sir.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 24JUDGE TRIKOUROS: Yes. I think what I1should love to put on the record here is I think any2PWR or BWR, other than the advanced reactors that were3at that Fukushima site would likely have experienced4the melt.5MR. GUNTER: Yes.6JUDGE TRIKOUROS: Most certainly, if they7lost DC power. So, you know, I just want to put that8in perspective.9MR. GUNTER: Yes, sir. But you know, I10think that when you start incorporating the, you know,11the analysis, we've now moved beyond theoretical12analysis in that we need to incorporate experience13and, you know, where the Applicant could say that,14well, you know, the odds here are so remote that we15don't really have to worry about this. But we've had,16you know, now three severe accidents in roughly the17last three decades, and three of those, one of those18accidents involved three Mark 1's that were operating. 19And so, that's why we, you know, feel that20the CEQ 2012-01-57, the fact that it's, just that the21OGC and the Applicant are silent on that, we find22there is no justification for that. They need to23address reality and they need to address what the24staff provided in terms of regulatory procedure, the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 25backfit rule and guidance.1JUDGE ARNOLD: On page 10 of the2contention, halfway down the page, you said, "However,3the Petitioners point out that the Applicant's4description of the Mark 1 pressure suppression5containment does not acknowledge, factor in, or6incorporate analysis of, and otherwise ignores the7long recognized and still unresolved vulnerabilities8of the General Electric Mark 1 boiling water reactor9pressure suppression containment system."10Are you contending that there is11information in their containment description that is12incorrect?13MR. GUNTER: Yes, sir. There is no14reliable containment on a Mark 1, containment being15radiation containment.16JUDGE ARNOLD: Can you point to what in17their description is wrong?18MR. GUNTER: Well, that the, I think that19what we point to is the evidence and conclusions and20findings of CEQ 2012-01-57, that you need, that in21order to have the defense in depth, that in order to22meet the letter of NEPA, that you put a filter on a23venting system, and that provides with the defense in24depth of containment specifically for containing25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26radiation under severe accident conditions.1JUDGE ARNOLD: Now, if you say their2description of the containment is incorrect, how is3this not a concern with the current licensing basis?4MR. GUNTER: Well, we're not, you know,5again we have raised within the context of the6contention generic design criteria 16. But you know,7as you've pointed out, I think that's more background8than it is relative to this particular proceeding9because we're look at the SAMA analysis for the10license extension.11JUDGE ARNOLD: So, you're not specifically12challenging their description; you're just using that13as evidence on this?14MR. GUNTER: As background, yes, sir.15JUDGE ARNOLD: Okay. Page 11, halfway16down the page, "The NRC further concluded that the17demonstrated safety margin," oh, this is, yes, where18first you're talking about the general design19criteria. Is this another background to support your20SAMA claim?21MR. GUNTER: Yes, sir. They, you know,22the fact is that it's well established that the23containment is vulnerable and that, so, in light of24the severe accident analysis that they're currently25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27required to go through for the license extension, that1their SAMA analysis on the filtered vent needs to2incorporate these issues.3JUDGE TRIKOUROS: Yes, Mr. Gunter, your4evaluation in these pages that Judge Arnold is talking5about are dealing with the issues raised by Dr.6Hanauer years ago. 7JUDGE SPRITZER: Speak into the mic.8JUDGE TRIKOUROS: Yes, unfortunately, this9doesn't reach over. Is that better?10MR. GUNTER: Yes. Yes, sir.11JUDGE TRIKOUROS: Okay. And those12vulnerabilities were identified years ago, something13in the range of 40 years ago actually. And there were14extensive NRC licensing activities associated with all15of these Mark 1 issues, and there were modifications16made to the plants to overcome these issues. Are17these, is this what we're talking about, those18vulnerabilities that were identified back in the 70's?19MR. GUNTER: I think that what we're20talking about in the context of this particular SAMA21is the hardened vent that was installed under Generic22Letter 89-16. And those were installed by TEPCO at23Fukushima Units 1 through 6 on the Mark 1's and the24Mark 2 there. And they did not provide the reliable25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28containment under severe accident conditions.1JUDGE TRIKOUROS: Yes, I understand. And2even in our country, the hardened vents are very, the3hardened vent designs were plant specific, so I agree4with that. But you know, we aren't dealing with5orders that have been issued by the Nuclear Regulatory6Commission to modify all of this, right?7MR. GUNTER: Yes, sir. But we're also8dealing with the National Environmental Policy Act and9the requirement to do the hard look analysis. And so,10I think that's what we have to incorporate here.11JUDGE TRIKOUROS: In the SAMA analysis?12MR. GUNTER: Yes, sir.13JUDGE TRIKOUROS: All right. And so,14specifically, the Applicant, my understanding, I15looked at that and came up with something like a16factor of 40, not cost benefit on the basis of17something like a factor of 40.18MR. GUNTER: Yes, sir. Therein lies the19genuine dispute that we have alleged because they do20not address, they are silent on CEQ 2012-01-57. And21a large body of NRC's own analysis that determined to22the contrary that the filtered vent was a cost23beneficial substantial safety enhancement, there's a24dispute there. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 29JUDGE ARNOLD: I've still got plenty more. 1Page 13, first paragraph, you mentioned, "Petitioners2contend that new information for the 'maximum credible3accident' needs to be updated and incorporated into4the very Fermi 2 license renewal request." This5maximum credible accident, are you suggesting that the6SAMA analysis should be based upon worst case7accidents?8MR. GUNTER: I'm saying it needs to be9based on what we've seen to date, that in fact we now10have, we don't have a theoretical analysis, we have11real life demonstrations with three operating Mark 1's12that failed the containment. And the severe accidents13are not remote but they are credible. And we view the14Fukushima Daiichi accident as a prolonged station15blackout accident that happened three times.16JUDGE ARNOLD: Once again, okay, on page1718, being specific, "Petitioners contend that the18state of the art SAMA alternatives that significantly19reduce adverse radiological contamination to the20environment are readily available for install today21and applicable to the requested license renewal period22but have not been analyzed in the Applicant's23environmental report." So far, the specific24alternatives I've heard of is a filter in the vent. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30Is there anything else specifically that should be1analyzed in SAMA and hasn't been?2MR. GUNTER: Well, that's the focus of our3contention.4JUDGE ARNOLD: Okay, agreed.5JUDGE TRIKOUROS: Can I ask the staff one6question here? What's the status of filtered vents in7the NRC licensing -- 8MR. HARRIS: The status of filtered vents,9and it's actually, I believe the title of the10rulemaking is, it's not, it's filtering strategies. 11So, they're looking at filtered vents as a potential12rulemaking. That is ongoing. I believe the basis,13and I can look that up because I don't remember the14exact date that the basis is due, probably sometime in15the next six months, but I would want to double check16on that particular date. But they're having meetings17on the filtered strategies rulemaking, and whether or18not that will be a rule that's imposed on licenses in19the future. 20It grew up out of the orders and the CEQ21paper that we've been talking about where the22Commission took with the staff, actually, you know,23suggested that we want to require severe accident24capable events, but staff, please take, you know, as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31an action item to go look at the filtering, you know,1in a rulemaking because they did not accept what the2staff had recommended at that point.3JUDGE TRIKOUROS: I just wanted to point4out that one has to be very careful about venting. 5There are circumstances in a boiling water reactor6where venting is a negative thing. And in fact, even7at Fukushima, there's Sandia National Laboratories at8least indicated --9JUDGE ARNOLD: Judge Trikouros, we're not10supposed to be giving evidence. 11MR. GUNTER: But I think that the Judge12does point out in reply is that the fact that the NRC13is ongoing with rulemaking on the filtered vent and14how it may or may not affect the Fermi 2 license15renewal proceeding, now is our time. We have standing16to address a specific aspect of what NEPA requires in17that NEPA mitigation alternative analysis is used in18site specific license extensions to identify if there19are any additional mitigation alternatives, hardware20or procedures, that are cost beneficial to implement21at Fermi 2 that can reduce the severe accident risk22probability and consequence. So, now is our time.23This is what NEPA provides us with. And24not to be put off three, four, five, indefinite, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 32know, years from now, this is our only opportunity1and, you know, we wish to exercise it.2JUDGE SPRITZER: I take it, however, that3if the staff or the NRC did by regulation require4vents, this contention would effectively become --5MR. GUNTER: Moot.6JUDGE SPRITZER: Would it not?7MR. GUNTER: If the filtered, if CEQ 2012-801-57 option 3 were implemented, this contention would9be moot.10JUDGE ARNOLD: On page 20, the top11paragraph, last sentence says, "These uncontrolled and12unfiltered radiological releases and their13environmental consequences are not thoroughly or14adequately addressed by this Applicant's SAMA15analysis." Now, originally, you were saying the16filtered vent wasn't analyzed, and now here you're17saying the unfiltered releases weren't evaluated. So,18is this an expansion of the contention or am I just19reading this wrong?20MR. GUNTER: If I understand correctly,21can I see this? Do you have it right here? Can I22have one minute please or less even?23(Pause.)24MR. GUNTER: The concern here is again25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 33that there are pathways of the pressure suppression1containment, dry well and wet well, that without a2filter aren't analyzed. I mean you can flood up the3wet well and preclude the venting for a Mark 1 for4Fermi 2. And while you may have other vent paths off5of the dry well, they are not adequately analyzed6because they open the operator to the same7vulnerabilities that we saw at Fukushima where8hydrogen venting right along with that radiation is9trapped in the reactor building itself, the secondary10containment where it can find an ignition point and11you have a catastrophic failure.12And I think that, again our point here is13that this is all analyzed in CEQ 2012-01-57 and the14staff's conclusion is that the defense in depth15involves a SAMA alternative for a filtered vent of16both the dry well and the wet well. And that's been17rejected by the Applicant and there again lies our18argument that we need to review this as a genuine19dispute.20JUDGE ARNOLD: Can you tell me of any21legal requirement to address CEQ letters in a22relicensing application?23MR. GUNTER: I think again that we go back24to the NEPA mitigation alternative analysis, that, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 34know, it's you, it's there for the site specific1licensing extension to identify viable, cost2beneficial mitigation alternatives.3JUDGE SPRITZER: Okay, let's move on. 4We've gone well over your time.5MR. GUNTER: Thank you so much.6JUDGE SPRITZER: But that's because you7were answering our questions and we will not penalize8you for the last five minutes of rebuttal. Let's move9on to the Applicant.10MR. SMITH: Thank you. My name is Tyson11Smith for the Applicant. This contention appears to12have morphed from what was originally proposed. As13originally written, the contention is clearly a14contention of omission. The Petitioners note that, or15state that the ER fails to account, analyze and16consider engineered filtered vents.17JUDGE SPRITZER: But the worst of the18statements though is to the effect of the adequacy as19opposed to omission, so the adequacy of doing the SAMA20analysis as opposed to omissions from it. It's really21a hodgepodge. It's got a whole bunch of stuff in22there. We've obviously spent a great deal of time23narrowing and focusing on the issue of this particular24SAMA but I take it this was actually considered, the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 35filtered vent, is that correct?1MR. SMITH: That's correct.2JUDGE SPRITZER: It was in SAMA --3MR. SMITH: 123.4JUDGE SPRITZER: 123. So, it's really,5you know, focusing on the adequacy of the6consideration and particularly the question of whether7this staff document and also the National Academy8report, perhaps some other specific documents should9have been evaluated. So, can you tell me, were those10considered in any way in the SAMA analysis? Was it11done for the ER or that particular SAMA 123?12MR. SMITH: Sure. That SAMA 123, the SAMA13analysis that was performed for Fermi was based on14NRC-endorsed industry guidance for performing SAMA15analyses. It takes into account the plant condition,16looks at a variety of accident sequences, and17postulates the consequences in terms of dose and18offsite consequences, looks at how those can be19reduced by a variety of alternatives. That is the20analysis that we presented. 21Now, the reference to CEQ 12-01-57, I22think my initial point was that wasn't really raised23and presented in their initial contention. That was24really only raised in their reply. So, when Mr.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 36Gunter says repeatedly that we were silent on that,1the reason for that is it wasn't really addressed2until the report. 3Though there is a citation to it in their4initial contention, that citation, when you actually5look at what it says, it says that the staff concludes6that based on its regulatory analysis, using standard7regulatory analyses techniques, concludes that8comparison of a quantifiable cost and benefits would9not by themselves demonstrate that the benefits exceed10the costs. And that's entirely consistent with the11conclusion of our SAMA analysis where we concluded12that the benefits of installing a filtered vent are on13the order $1.1 million where the cost is on the order14of $40 million. 15In order for the Intervenors, or the16Petitioners to have an admissible contention on a SAMA17analysis, they must present some basis for concluding18that what we've done is "unreasonable." And the19Commission has reiterated this many times. The20techniques that we used, the standard probabilistic21model and techniques are standard and accepted22practices. And those are not reasonably disputed by23the Intervenors here in this proceeding.24JUDGE SPRITZER: Okay. Let me just add,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 37I may be confused as to which document we're talking1about, on page 13, this is the --2MR. SMITH: Correct.3JUDGE SPRITZER: They do refer to this NRC4staff document, CEQ 2012-01-57 and quote from it5including the statement that when you add qualitative6factors, I'm paraphrasing here, I'm not quoting7literally, but when you add in qualitative factors,8that that would tip the balance in favor of the9filter. Was that specific document and its conclusion10that I just mentioned, was that analyzed in some way11in preparing the SAMA analysis or SAMA 123 or for that12matter any other SAMA?13MR. SMITH: Well, I'll point you to the14sentence right before the one you read which says15that, "A comparison of the quantifiable cost and16benefits of the modifications would not by themselves17demonstrate that the benefits exceed the associated18costs."19JUDGE SPRITZER: Right. No, I understand20that.21MR. SMITH: So, the staff itself22acknowledges that just by using standard regulatory23analysis techniques, there is no benefit. It's only24when they consider these extra factors, qualitative25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 38factors, that they were able to, that the staff1concluded that there were benefits. That's not the2outcome of the Commission's vote which is to proceed3with a rulemaking to assess whether or not filtered4vents are warranted. So, if the question is does our5SAMA analysis expressly address qualitative factors,6the answer is no because that's not addressed in7current NRC accepted regulatory guidance, nor is that8the purpose of the SAMA analysis.9JUDGE SPRITZER: So, it's your position,10in other words, that the qualitative factors that11they're stressing, that Petitioners are stressing, are12really outside the scope of the SAMA analysis you're13required to do?14MR. SMITH: Absolutely. And --15JUDGE SPRITZER: All right. Was there16any, you mentioned guidance, was there any regulation17or Commission decision, CLI decision that you can18point us to that addresses that issue?19MR. SMITH: Sure. And per regulation20first, I'll point to 10 CFR 51.71(d) which says that21environmental impact statements should, to the fullest22extent practicable, quantify the various factors23considered. And that's exactly what we did here. 24JUDGE SPRITZER: If I remember though,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 39doesn't that also say, address qualitative factors? 1This is 51.71(d)?2MR. SMITH: D, correct. And so, it says3you may consider qualitative factors, but here4Petitioners have not identified what particular5qualitative factor we should have but did not6consider, nor did they identify how that would affect7the outcome of the analysis. They haven't, and the8Commission has repeatedly mentioned in numerous CLIs9that the purpose of the SAMA analysis is not to, is to10identify broadly whether there are likely cost11beneficial alternatives. 12And of course there are other ways you13could run the model or different inputs you could do,14but the purpose of it is to generally meet this15obligation and do a hard look which is also subject to16the rule. And that what we have done, what Fermi has17done by following standard NRC accepted techniques,18and that is by definition a reasonable approach. That19means it's incumbent on the Petitioners to identify20what is wrong or what factor would change the outcome. 21And certainly with the filtered vents they have not22done so yet.23JUDGE TRIKOUROS: While Judge Arnold is24looking through his notes, let me ask you, would the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 40SAMA analysis you've done back years ago, would that1have allowed for the vents that are there now --2MR. SMITH: I can't speculate as to3whether that would have been addressed that way at the4time or not. I think some of these questions about5the filtered vents obviously raise, fundamentally are6current licensing basis issues. Their questions are7what's the adequate level of safety, and that's a8question that the Commission is currently grappling9with now in a rulemaking on filtering strategies. And10to suggest that somehow that issue is directly related11to the SAMA analysis here, I don't see how that's12possible and there's certainly no support for that.13JUDGE SPRITZER: Let me see if I can, that14raises a question that I'll also ask to staff, but is15it your position that the fact that, just the fact16that the Commission is considering some additional17requirements with respect to filtered vents, does that18remove this contention regarding the SAMA 123 from our19jurisdiction?20MR. SMITH: No, it does not. And again,21that's because we have considered SAMA 123 in our SAMA22analysis, it is part of the environmental report that23we provided. 24JUDGE SPRITZER: But I take it you would25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 41agree then that as along as SAMA 123, as long as the1Commission is not taking some action that effectively2makes the SAMA 123 issue moot, we can still consider3their argument that you didn't do a good enough job of4analyzing that particular SAMA?5MR. SMITH: Yes, that's correct. But6their argument that you didn't do a good enough job,7that argument must be supported by some reference to8our SAMA analysis. And the Commission has repeatedly9said that the question is not whether there are other10ways you could do that but whether the way that we did11it is unreasonable. And they certainly haven't shown12that here. They haven't shown what factor or what13events or what would have changed the outcome of the14SAMA analysis such that SAMA 123 would become cost15beneficial, either the cost of installing the filtered16vent is less or that the risk is so great that it17would make it cost beneficial. And they haven't put18forth sufficient information to establish and do not19speak on that issue.20JUDGE SPRITZER: Let me just ask one other21thing and then I'll turn it over to Judge Arnold. We22were talking earlier about 10 CFR 51.71(d). That23actually is part of a section that deals with the24draft environmental impact statement and its contents. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 42Your client of course prepared the environmental1report. But do you agree that the language in251.71(d) is something we can look at in terms of3defining what the environmental report should contain4or no?5MR. SMITH: Yes. I mean it's instructive. 6I mean the point of it I think is consistent with7general CEQ guidelines and general NEPA case law is8that you should to the extent practical quantify the9costs and benefits. Part of the reason for that is10that by quantifying it, you make the analysis11reproducible in some way. These are things like12qualitative factors that hinge upon who the decision13maker was at the time of the decision and how much14weight to give to some of these various factors. And15that again is not the purpose of the NEPA analysis or16the SAMA analysis in particular here which is to17provide information to the public about what the18alternatives were considered, what the costs and19benefits are those, and how that might drive some20decision making. That's exactly what we've done here21and the Petitioners haven't put forth any information22to call into question those conclusions.23JUDGE SPRITZER: Well, 51.71(d) does say24though that to the extent there are important25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 43qualitative considerations or factors that you cannot1quantify, these considerations or factors will be2discussed in qualitative terms. Can you point us to3some, any part of the SAMA analysis with respect to4SAMA 123 that did that? If not, if you can't give me5that, I'll let --6MR. SMITH: Well, I mean I'll, you know,7start with the point which is DTE used longstanding8accepted SAMA analysis techniques based on NRC-9endorsed industry guidelines. It relied on site-10specific meteorological, population data, economic11data to estimate the costs and benefits. And it12concluded that the probability, weighted consequences13were less than the cost of the implementation of a14filtered vent. 15And I haven't heard anything from the16Petitioners, and certainly nothing is in their17contention or their reply to suggest that18consideration of any of these other unknown or unnamed19qualitative factors would affect that conclusion. And20the Commission has repeatedly said that's what it21takes to give a standard contention, they've got to22show that what we did was unreasonable. And relying23on standard accepted techniques is by definition24reasonable.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 44JUDGE SPRITZER: All right.1JUDGE ARNOLD: I actually don't have any2questions.3JUDGE SPRITZER: All right. You're off4the hook I guess. There is this other issue related5to the National Academy of Sciences report. My rough6understanding of how the SAMA analysis would be done7is, one part of it is that at some point you would8estimate the cost of the severe accident that you're9analyzing, environmental and public health costs, is10that --11MR. SMITH: That's correct. It's based on12a probabilistic model that looks at a variety of13different scenarios and comes with named consequences14based on a year's worth of meteorological data.15JUDGE ARNOLD: But it's not just an16estimate plucked out of the air?17MR. SMITH: Correct, it's not a18deterministic analysis. It doesn't come up with a19conclusion. The number is, you're referencing $20020billion versus $6 billion. That's not how the SAMA21analysis worked. It doesn't rely, it doesn't start22from the total cost estimate and then work backwards23to what the accidents are. It actually does it the24other way.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 45JUDGE TRIKOUROS: And in terms of the1vulnerabilities of a boiling water reactor, the Mark21 containments that were brought up by the3Petitioners, where specifically do you deal with those4within the structure of the SAMA analysis?5MR. SMITH: All of those issues are6embedded in the PRA model that's the input to the SAMA7analysis. So, the plant is modeled, like I said,8probabilistic risk assessment, a PRA model that models9the behavior of the plant in response to certain10initiating events, and the frequency and the accident11sequences that are addressed in the SAMA analysis12incorporating the plan as currently designed and as it13has been responded to, making changes to address those14issues in the past. So, our starting point is here is15what the plan is and looking at all the different16accident sequences and scenarios that I think by17definition includes the plant's response to mitigate18the issues you're addressing in the past.19JUDGE TRIKOUROS: And so, a vulnerability20in the Mark 1 would show up as a probabilistic number21--22MR. SMITH: Correct.23JUDGE TRIKOUROS: Failure number?24MR. SMITH: That's exactly right, correct.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 46JUDGE TRIKOUROS: Okay.1JUDGE SPRITZER: And I take it you're2telling us that you haven't seen anywhere where the3Petitioners have challenged specific numbers you used4to say here are the numbers, the different numbers5that you should have used that would have potentially6at least changed the outcome of the analysis?7MR. SMITH: That's exactly right. And8that's what the Commission has repeatedly said is9required for a SAMA analysis. You must show something10to show that the costs and benefits, if done11differently and in your way, would have resulted in12some SAMA becoming cost beneficial that wasn't before.13JUDGE SPRITZER: Let me ask the same14essential question with respect to the National15Academy's $200 billion cost estimate for the accident16that Fukushima had. Is that, how if at all is that17factored, that issue of the overall cost estimate? 18What role does play in the SAMA analysis and would it19have made any difference in the National Academy's --20MR. SMITH: It plays no role in the SAMA21analysis, and there is no way to use that figure in22the SAMA analysis. And that's a conclusion, the SAMA23analysis is a probabilistic analysis that looks at24failure probabilities, event probabilities, and then25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 47leads to an assessment of the cost of that accident. 1So, the bottom line number isn't an output of the SAMA2analysis. There is no way to use that bottom line3number in the SAMA analysis. That's actually, as I4was mentioning before, starting with an endpoint and5then working back to look at the results, that's not6the purpose the SAMA analysis.7JUDGE SPRITZER: Do you, when you do the8analysis, do you do it both with and without this9particular SAMA that you're looking at?10MR. SMITH: That's exactly how you11calculate the benefit of a particular SAMA. You run12the model without it and you run it with it, and then13that delta is the benefit of the SAMA.14JUDGE SPRITZER: All right, I think I15understand.16JUDGE ARNOLD: I did come up with a17question. In the contention on page 21, there is a18paragraph 1.3.4.2. "Petitioners contend that the19Applicant's SAMA alternatives at Table D.1.5 are20overly and unrealistically optimistic by not21anticipating the potential for fuel damage in the22analysis and do not thoroughly or adequately address23the failure of the pressure suppression containment24with the uncontrolled and unfiltered radiological25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 48releases to the environment."1Question one, do you, at any place in your2SAMA analysis, just, you know, assume that there is no3potential for fuel damage?4MR. SMITH: No, the SAMA analysis reflects5the potential for fuel damage.6JUDGE ARNOLD: Okay. And do you model the7pressure suppression containment?8MR. SMITH: Absolutely.9JUDGE ARNOLD: And is there a mechanism10for it to fail in your analysis?11MR. SMITH: Yes. And there are a variety12of events that look at how that --13JUDGE ARNOLD: So, you would basically not14agree with that statement?15MR. SMITH: That's correct, that's simply16wrong.17JUDGE ARNOLD: Okay.18JUDGE SPRITZER: I wanted to, I did read19through a number of, it's Appendix D of the20environmental report. I couldn't find anything that21specifically addressed SAMA 123, a more general22description of how to do the probabilistic risk23analysis. But maybe I overlooked something, so is24there any particular pages you think that would be25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 49helpful in understanding the analysis of a particular1SAMA?2MR. SMITH: Well, SAMA 123 is summarized3on page D-120.4JUDGE SPRITZER: 123?5MR. SMITH: Page D-120 discusses SAMA 123,6I'm sorry, yes. And so, that's where it says, "To7evaluate the change in plant risk, an analysis was8performed, decreasing the concentration of all9radionuclides by 50 percent." And so, it says this is10about a post accident release, it says no changes in11the core damage frequency were used. So, the averted12cost risk was calculated by comparing the base, that's13why it talks about running it without the SAMA, to the14modified events with the SAMA, and then using a15similar 50 percent reduction in radionuclide16concentrations, the filtering reduced the amount of17radionuclides by 50 percent.18JUDGE ARNOLD: Is that a reasonable19number, 50 percent?20MR. SMITH: Yes.21JUDGE SPRITZER: Where does it come from?22MR. SMITH: I can't explain where it comes23from. I assume that that is a standard assumption. 24My recollection is that that's assumed to be a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 50conservative assumption and that the actual reduction1might be more or less, it might be more.2JUDGE SPRITZER: But I take it in doing3this analysis, you also factor in in some way the4likelihood of an accident, a severe accident actually5occurring?6MR. SMITH: Correct. The core damage7frequency estimates are the PRA level 1 analyses,8that's the original input to the model is looking for9damage frequencies, for core damage frequencies. Then10you look at what are the, then level 2 is looking at11what are the different ways in which radionuclides12might be released in the event of a core damage event. 13And then level 3 is looking at all the offsite14consequences.15JUDGE TRIKOUROS: Yes. And again, just to16understand the SAMA a little better, is the Mark 117containment more vulnerable to a severe accident than18other containments?19MR. SMITH: I'm not in a position to opine20on that. Certainly the Mark 1 containment at Fermi21has been determined to be safe.22JUDGE TRIKOUROS: And if there is a severe23accident where there is an occurrence, is it required24within the design of a plant like Fermi to be able to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 51withstand that without containment unit?1MR. SMITH: That is my understanding. But2I'm not really in a position to --3JUDGE TRIKOUROS: What is your4understanding?5MR. SMITH: That it would be able to6withstand however you just described the containment,7not a containment failure but an accident, a core melt8that didn't lead to, would be able to withstand that. 9Did I misunderstand you? Was your question is the10plant designed to be able to withstand core damage?11JUDGE TRIKOUROS: Well, there are many, I12am assuming there are many sequences in your SAMA that13lead to core melt that lead to containment error?14MR. SMITH: Correct, there are.15JUDGE TRIKOUROS: And that is not outside,16it is not required by the design basis of the plant?17MR. SMITH: I understand what you're18saying now.19JUDGE TRIKOUROS: Would that not happen?20MR. SMITH: Correct. All of these21accidents that we're talking about are severe22accidents which are by definition accidents beyond the23design basis of the plant. So, the plant as designed24satisfies all of the NRC's requirements for design25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 52basis accidents.1JUDGE TRIKOUROS: Right. And those would2still allow it to fail in the event of a severe3accident. The NRC requirements do not preclude that?4MR. SMITH: Correct.5JUDGE SPRITZER: All right, thank you. We6will next hear from the NRC staff. Before you get7started, maybe you could clarify, I'll ask you the8same question I think that I asked Mr. Smith which is9the fact that the Commission or the staff is now10looking at the issue of in some way modifying11requirements that might include these filtered vents,12does that in any way impact our jurisdiction to hear13this?14MR. HARRIS: No, but there is a but to15that because we do need to separate that issue out16from a NEPA standpoint versus a safety requirement. 17So, if it was part of a rulemaking, even a rulemaking18that there is Commission case law that's something19that's subject to a generic rulemaking, it's not20something that can be litigated before the ASLB. But21that doesn't necessarily preclude you from having to22look at it from a NEPA standpoint. But from a safety23standpoint, it would remove it from the jurisdiction.24In this case, license renewal, making some25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 53kind of safety improvement like this really is sort1of, is outside, the current licensing basis is outside2the scope of the jurisdiction.3JUDGE SPRITZER: Assume that we're focused4simply on the issue of whether SAMA 123 was adequate,5or I should say narrow their Contention 1, that would6be something we could --7MR. HARRIS: That would be something that8you can look at in terms of how the NEPA, the SAMA9analysis under the National Environmental Policy Act,10you know, could, it's something that is subject to11challenge in this type of proceeding.12JUDGE SPRITZER: Okay. 13MR. HARRIS: There are a couple of issues14that I want to address that have come up as we've been15talking. Turning back first to this idea of16qualitative analysis, I'm looking at the original17contention because we have been going back to page 1318where they cite to the staff CEQ paper where they made19recommendations on installing severe accident capable20events engineered filters, that's really, that one21quote is the only place where qualitative factors come22up in their initial contention, that the staff, you23know, as a result of doing a backfit for safety24purposes considered qualitative factors of whether or25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 54not engineered filtered vents should be required. 1Nowhere else in their initial contention really2discusses that aspect of it.3You know, the CEQ paper that we are4talking about was, you know, about a thousand pages5with all the appendixes that were in it. So, trying6to sort of sort through that CEQ paper based on their7one reference that they never really come back when8the scope of what their contention really was was you9didn't analyze filtered vents, and clearly filtered10vents were analyzed from a quantitative effect, is11that's really sort of asking a lot of the other12parties to sort of read into that one single line that13that was the crux of their argument. And then it sort14of expands out into the reply that really we only care15about these qualitative factors. If that was true,16they probably should have addressed it more thoroughly17in the initial contention.18The reason, you know, we didn't address19qualitative factors is it did not seem to be within20the scope of their contention. They kept complaining21about the fact that filtered vents weren't analyzed,22and they were.23JUDGE SPRITZER: Well, there were some24references to them not being adequately analyzed. But25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 55we're here today, so whatever you think you haven't1had the chance to argue previously, you can put before2us.3MR. HARRIS: Right. So, but those4adequate analyses are sort of, you know, up in the air5of it wasn't adequately done. As Judge Arnold was6mentioning is that they're sort of, you know,7unspecific, you know, there wasn't sufficient, you8know, analysis. You didn't take into account, for9example, we've been talking about the design10vulnerabilities that were first identified in the1170's. Since that time, of course you've had the12generic letter that required at that time what were13called reliable hardened vents, most of them like when14plants put it in. But since then we actually have two15orders that have come out that have required both16reliable hardened vents and then that order was17superseded by the severe accident capable vents.18So, now the current licensing basis19reflects those changes to it. You know, to the extent20that the Petitioners think that those changes don't,21are insufficient to provide safety, license renewal is22not the place to do it, and not to use the SAMA23analysis to attack the safety of the current licensing24basis for the plant. Those types of challenges are25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 56normally done through rulemaking or 2206 petitions. 1And I understand that the Petitioners do not like the2way the 2206 petition process works, but those are the3rules that the Commission set out for how to address4a current safety issue within the plant.5One of the other things that has --6JUDGE SPRITZER: But not a NEPA issue.7MR. HARRIS: But not a NEPA issue. But8under the NEPA issue, I need to provide a hard look at9the environmental impacts.10JUDGE SPRITZER: I can't speak for my11colleagues, but certainly for me, I understand this12purely is a NEPA issue relating to SAMA 123. I13understand entirely your position about the safety14arguments about whether the Commission should or15should not, bottom line the continuing the licensing16basis, are outside the scope of licensing basis and17are a debatable issue. But I think they've narrowed18the contention. I agree, as originally written, it19was diffused to say the least. But it's been narrowed20somewhat, or not somewhat, a lot as a result of our21discussion here today. So, I think it would be best22to focus on the NEPA issue.23I mean, well, let me ask you this. I24asked Mr. Smith about 51.71(d).25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 57MR. HARRIS: Right.1JUDGE SPRITZER: Which directly addresses2the draft EIS, not the environmental report. But do3you agree, we can look to the requirements for the4contents of the draft EIS in interpreting what should5be in the environmental report?6MR. HARRIS: That is consistent with the7Commission case law. The Commission has indicated8that, at least for purposes of DEIS which will9eventually be a staff document, at this point of the10proceeding the ER somewhat stands in for the staff's11EIS for this kind of challenges. So, the requirements12of an EIS, you know, is a good instruction point for13figuring out what should be in the environmental14report. So, that's true.15Addressing that particular language in the1651.71(d), it does, you know, say that you should17quantify. You can consider qualitative factors to the18extent that they haven't been quantified. The SAMA19analysis which we've heard a little bit about before,20you know, does consider a lot of unknowns, a lot of21this kind of factors that are very difficult to22quantify. It does sensitivity studies, it does23uncertainty to try to account for the things that are24very difficult to determine. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 58In this particular proceeding, the SAMA1analysis that was performed by DTE, they used an2uncertainty factor of 2.5. So, they took their3baseline, their analysis and multiplied it by 2.5 in4terms of the types of benefits that you could actually5get to try to account for these things that are both6difficult to quantify, unknown, things that, you know,7are very difficult to model, and just the uncertainty8with the fact that severe accidents, you know, there9have been a few but they're not easy to model. And we10have uncertainty both with the inputs and, you know,11the particular analysis, you know, and the model as it12goes out, that there is some unknowns out there.13So, one of the things that was addressed14with the National Academy of Sciences report, the15National Academy of Sciences report, when you actually16look at what the National Academy of Sciences has17actually said is they weren't commenting on what the18NRC did for their SAMA analysis looking at filtered19vents. That was not within the scope of their task. 20And you look at the recommendations, and they21specifically say that they didn't think, that they22weren't sure that, they didn't look at it enough to23make any determinations of whether or not the analysis24was okay in their minds. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 59They simply pointed out that for1recommendation 5.2(a) and 5.2(c), that it would be in2both the industry's and the NRC's, from a prospective3basis, to try to improve the ability to model external4events and to account for some, you know, to continue5to try to improve the model in terms of the6consequences because these models are somewhat7sensitive to the inputs that you put into it. But you8have to put the best inputs that you have at the time. 9You shouldn't be just putting in extremely large,10extremely conservative inputs to generate results,11because that would really be turning us into a worst12case type of analysis. If I put in inputs that would13account for meteors striking the plant and that type14of accident, you know, I mean there is always a severe15accident bigger than the one that we have considered16and you can continue to, you know, postulate even17worse severe accidents and worst severe accidents, and18you have to use the information that you have.19And that's what the Petitioners haven't20done is pointed to why that analysis doesn't capture21all those types of issues. One of the things that22came up here, the current argument is dealing with23external, both external events and how that's modeled,24but also the contamination, land contamination. Both25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 60of those things are actually considered in the SAMA1analysis. The external events, they used a multiplier2again to account for the internal events, 11 times. 3So, the external event multiplier was 11 times the4actual accident. Sorry, the time. The internal5accident, and they actually accounted for the cost to6decontaminate. That's found in their ER.7So, those things are not missing, you8know. Somehow that would be incumbent on Petitioners9to point to why that analysis was wrong.10JUDGE SPRITZER: All right. Unless my11colleagues have any further questions, I think you've12exhausted your time. You still have five minutes for13rebuttal. Do you have anything further to add at this14point? Petitioners, sorry.15MR. GUNTER: Well, thank you. Yes, Paul16Gunter of Beyond Nuclear. You know, when you look at17SAMA 123, it's scant. There is no idea of what the18Applicant has and has not considered. And I think19that herein we want the hard look. That's why we20requested the hearing.21And the fact is that we find it a little22awkward that the public has to do what we believe to23be the NRC's job to take that hard look. That's what,24NEPA wants the federal government to do this look, not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 61people, you know, not the Petitioners necessarily. 1But we have, you know, it is incumbent upon us to2throw a flag on the field and that's essentially what3we're doing here.4But I wanted to just close by saying that5the backfit analysis, it's very clear in 10 CFR 50.1096that, you know, it doesn't say that you, it doesn't7provide for an option. But it says that when you have8these large uncertainties, that you need to9incorporate both the quantitative and the qualitative10factors. And this is supported in the regulatory11guidance by NUREG 1409, NUREG BR0058, and NUREG12BR0184. So, you know, the onus is upon the Agency to13be taking this hard look and that's what we're asking14for.15JUDGE SPRITZER: Let me ask one question16with regard to the National Academy of Sciences report17and their $200 billion cost estimate for a severe18accident for the Fukushima accident. He says that19even if they had accepted that figure, it wouldn't20make any difference to the SAMA analysis done for SAMA21123, or I suspect for any of the other SAMAs. Would22you agree or disagree?23MR. GUNTER: We disagree.24JUDGE SPRITZER: Why?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 62MR. GUNTER: Well, in Appendix L, just1briefly, it says here, to quote NAS, "The point of2this appendix is not to critique the US Nuclear3Regulatory Commission's analysis. The committee did4not perform an in-depth review of this analysis5because it is outside the statement of tasks for the6study. The committee offers this example to7demonstrate that severe accidents such as occurred in8Fukushima Daiichi plant can have large costs and other9consequences that are not considered in US NRC backfit10analysis. This includes national economic disruption,11anxiety and depression, which affected populations and12deterioration of social institutions arising from a13loss of trust in government operations."14So, the NAS basically again says that you15need to take this broader qualitative look that now is16not theoretical. I also would note that the CEQ 2012-1701-57, they did the MELCOR analysis, and they say that18the MELCOR MAC-S analysis provided technical basis for19support of option 3 in the regulatory analysis. They20did the MAC-S consequence analysis in CEQ 2012-01-5721and they conclude these MAC-S consequence analyses22show a clear benefit in applying an external filter to23either the wet well or the dry well vent path. Staff24also did the probabilistic risk assessment in 01-5725NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 63and concluded that the risk evaluation provides a1technical basis to support option 3 in the regulatory2analysis.3So, we're seeing a hard look done by NRC4in this mitigation analysis. And this is an excellent5opportunity for the NRC to gain significant public6confidence that it holds forth to, that the public and7the environment, and these are the strong8considerations. So, that's why we're requesting that9this licensing board provide us with a hearing so that10we can sort this dispute out.11JUDGE SPRITZER: Okay, thank you. You12have exhausted your rebuttal time and I think it's13time we took a break. We've been here for about an14hour and-a-half. We'll resume in ten minutes and move15on to --16COURT REPORTER: Judge Spritzer? We need1715 minutes for an audio review issue.18JUDGE SPRITZER: Okay, 15 minutes. So,19please return at 10 minutes after 11:00.20(Off the record.)21JUDGE SPRITZER: We are now on to Joint22Petitioners' environmental Contention 2, another23contention that concerns severe accident mitigation24alternatives, this one related to spent fuel pool25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 64fires. Petitioners ready to proceed on that?1MR. LODGE: Yes.2JUDGE SPRITZER: Please do.3MR. LODGE: Thank you. I'm Terry Lodge,4counsel for three of the Intervenors.5JUDGE SPRITZER: You might want to put the6microphone a little closer.7MR. LODGE: I didn't want to ruin things.8JUDGE SPRITZER: Never mind.9MR. LODGE: Your Honor, I'll just try to10talk loudly.11JUDGE SPRITZER: All right, that would be12fine.13MR. LODGE: If there's a problem, I will14assume you'll let me know, or the rest of the panel. 15Contention 2 deals with the Petitioners' allegation16that the Fermi 2 application doesn't satisfy NEPA17because it does not consider a range of mitigation18measures to mitigate the risk of catastrophic fires in19the densely packed, closed frame spent fuel storage20pool at Fermi 2.21By way of background, the DC Circuit22opinion on the waste confidence decision enjoined the23NRC to consider the spent fuel fire and leak24possibilities. The NRC did some work on a generic25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 65analysis of those prospective problems. However, in1May of this year, by I believe a 3 to 2 vote, the2Commission essentially terminated the responsibility3of the staff to continue that assessment.4Chairman Macfarlane who voted in the5minority, opposed to that vote to terminate, said that6there are mitigation opportunities that certainly must7be considered including longer transfer times for dry8storage, direct spent fuel, direct discharge into9varying dispersal patterns, substitution of open rack10low density storage racks for high density storage11racks, and alternative fuel designs. Pardon me, it12was a 4 to 1 vote, I'm corrected. The problem in13Fermi 2's case is that it is a fact specific matter.14Fermi 2 raises grave concerns. There are15approximately 600 metric tons of spent fuel being16stored onsite. There has been essentially maximum re-17racking potential to increase the density of the18storage mechanisms in place. And the transfer to dry19casks has been delayed because of weld problems that20date back more than 30 years, that there are21structural problems and concerns as to whether or not22the crane assembly would be capable of removing fuel23safely. The margin is very, very narrow indeed.24So, with the termination by the Commission25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 66of the generic assessment with the fact that we have1of course a Contention 3 that is at least a2placeholder challenge, continuing challenge to the3waste confidence spent fuel storage, long term storage4determination, we believe that there must be site5specific consideration within this license amendment6proceeding of the spent fuel fire potential, both as7a straight topic for mitigation discussion within the8NEPA as well as within SAMA consideration.9JUDGE SPRITZER: With respect to SAMAs,10let me ask this, are you saying that they have to11consider SAMAs for a spent fuel pool fire that might12occur during the course of a severe accident involving13the reactor where you have a loss of --14MR. LODGE: Of power.15JUDGE SPRITZER: When the core becomes16uncovered and you have a severe accident in the17reactor? Or are you saying totally independent of an18accident of that type, they have to look at the19possibility of an accident, any type of accident that20would result in a spent fuel pool fire including for21example inadvertent leakage from a pool that somehow22could occur?23MR. LODGE: The answer would be both, but24we are very concerned that in any type of loss of25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 67power circumstance that might be caused by the reactor1itself going into some sort of cataclysm, that the2spent fuel pool circumstance has to be analyzed at3least as a cumulative impact under NEPA. 4JUDGE SPRITZER: Okay.5MR. LODGE: We're aware, and of course in6response to the NRC and DTE claims, that there are7scoping problems here, that any consideration of the8spent fuel pool is outside the license renewal9proceeding. They cited the Turkey Point decision from102001. But we also noted in that very same decision11that the Commission said that adverse aging effects12can result from various number of things, factors, and13then that age related degradation can affect among14other things the spent fuel pool. 15We believe that the cumulative effects16type of analysis certainly has applicability here. We17also believe that the fact that there is no longer18what we believe is compliance with the courts, that19the DC Circuits order, that now in the Fermi 2 case we20have a fact specific situation that is potentially21very dire. There is considerably more fuel being22stored at Fermi than in all of the reactors at the23Fukushima site. The population within 50 miles is24nearly five million people within 50 miles of Fermi 2. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 68The fact is that for the long, well, for the1indeterminate future, the spent fuel pool is going to2be the place where spent fuel is going to be reposed3at Fermi 2; for how long, it's extremely difficult to4say.5JUDGE SPRITZER: What are the specific6SAMAs that you say, well, are there specific, let me7ask this, are there specific SAMAs that you contend8should have been considered to mitigate the risk of9catastrophic fires and spent fuel pools? And if so,10where did you identify those in Contention 2?11MR. LODGE: Your Honor, we brought this as12a contention of omission and did not identify this in13the SAMAs.14JUDGE SPRITZER: So, you're just saying15they didn't look at this type of SAMA at all?16MR. LODGE: Right.17JUDGE SPRITZER: There are no SAMAs that18address the risk of catastrophic fires and spent fuel19pools and, therefore, the SAMA analysis is deficient,20that's your position.21MR. LODGE: Correct. Yes.22JUDGE SPRITZER: All right, just so I23understand. Thank you, go ahead.24MR. LODGE: We're prepared to reserve, Ms.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 69Pepperl said we have three minutes left maybe of our115?2MS. PEPPERL: That doesn't include the 15.3MR. LODGE: Okay.4JUDGE SPRITZER: You do, by the way, want5to reserve five minutes for rebuttal?6MR. LODGE: Yes, thank you.7JUDGE SPRITZER: Okay.8MR. LODGE: We're going to reserve the9remainder of our time.10JUDGE SPRITZER: All right. Well, we'll11give you five minutes. Let's proceed to the12Applicant.13MS. REDDICK: Thank you. Derani Reddick14for the Applicant. As Mr. Lodge has stated, their15claim is really based on a lack of mitigation measures16for spent fuel pool accidents. But spent fuel pool17accidents are a Category 1 issue under the NRC's18rules. What that means is that the NRC has already19looked at the impacts of a spent fuel pool accident,20and this is considered in the context of the category21that's called onsite storage of spent fuel. 22The Commission has already determined that23those impacts are small. They have determined that no24additional mitigation measures need to be made. So,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 70this is an NRC rule that the impacts of spent fuel1pool accidents have small impacts and that further2mitigation alternatives need not be considered. The3Commission has specifically stated that the4requirement to consider SAMAs applies to severe5accidents for reactors, it does not apply to spent6fuel pool accidents. And in fact --7JUDGE SPRITZER: This is probably in your8brief, but do you remember the specific rule that,9where the Commission has indicated that?10MS. REDDICK: In the Turkey Point11proceeding, this is CLI-01-17 54 NRC 3. The12Commission specifically stated that, and I'm reading13here, "Part 51's reference to severe accident14mitigation alternatives applies to nuclear reactor15accidents, not spent fuel storage accidents."16JUDGE SPRITZER: What, all right, I guess17the question then would be, in Fukushima at least, my18very rough understanding of what happened at19Fukushima, there are at least concerns of the20possibility of release of radioactivity from the spent21fuel pool. I'm not sure whether it's ever been22resolved if that occurred or not. Is there, are you23interpreting the Commission to say that as part of the24analysis of severe accidents, you don't need to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 71consider the possibility that there might be some kind1of damage to spent fuel pool that would lead to a2release of radioactivity?3MS. REDDICK: Right, that this idea that4there is sort of a cumulative impact that needed to5be assessed --6JUDGE SPRITZER: It might be a cumulative7impact, it might be a direct impact, I mean let's say8as a result of the accident, the pool no longer9functions in terms of cooling the rods as it's10supposed to, and as a result there's a fire and a11release of radioactivity, do they need, has the12Commission said you do not need to consider that13possibility in your SAMA analysis?14MS. REDDICK: I'm not sure the Commission15has directly addressed this specific point. The16Petitioners have not put forth any specific or17plausible scenario whereby that could happen. It's18not entirely clear as you were asking, Your Honor,19what the contention is alleging with respect to how20the spent fuel pool accident would somehow impact the21reactor accident or impact the ability to mitigate a22reactor accident. It's not clear from their petition. 23And essentially, that is their burden. Their burden24is more than just to throw this flag on the field, but25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 72they need to allege a specific deficiency.1Here, what they are alleging as a2deficiency, there being the lack of mitigation3measures, has already been determined by the4Commission to not be required for spent fuel pool5accident. In fact, the Commission in the GEIS, both6the 1996 GEIS and the 2013 GEIS, considered mitigating7measures for spent fuel pool accidents. And they8determined that no additional plant specific measures9would be substantially beneficial in order to warrant10their consideration.11Additionally, the Petitioners raised12allegedly new and significant information regarding13the expedited transfer of spent fuel. This is Com CEQ1413-30, and this is where they draw the conclusion that15certain mitigation measures should be implemented. 16But what that study shows, and this is the staff's17regulatory analysis for the expedited transfer of18spent fuel, the staff concluded that the benefit of19expedited transfer of spent fuel from the pool to dry20cask storage is minor and limited and, therefore, not21justified under the expected cost. And the Commission22agreed with this. They agree that expedited transfer23need not be required.24Lastly, just as sort of a factual matter,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 73Mr. Lodge alleges some concerns with respect to the1ability to move the fuel from the pool to dry cask2storage. That has been completed. I believe the3first offload from the pool to the cask occurred this4past summer and the NRC was there for that. They5issued an inspection report and found no concerns and6no findings regarding that.7JUDGE SPRITZER: While we're on the8subject, it reminds me while we're on the subject of9current conditions of the plant, this is going back to10the earlier contention. For the hardened vents, are11there hardened vents now at Fermi? I understand, I12take it there are filters of the type that were13evaluated in SAMA 123. Are there, is there a hardened14vent, and if not, will there be one?15MR. SMITH: Yes, there currently is a16hardened vent. And then the additional post-Fukushima17requirements mandate the installation of some changes18or some upgrades to that hardened vent that will be19taking place over the next couple of years.20JUDGE SPRITZER: But that does not include21the filters that were addressed in SAMA 123, is that22--23MR. SMITH: That's correct.24JUDGE SPRITZER: Okay. Sorry, go ahead. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 74Sorry for that digression.1MS. REDDICK: I'm prepared to answer your2questions, Your Honors.3JUDGE SPRITZER: Since neither I nor my4colleagues have any further, well, okay, we'll move5back to him. Let's hear from the staff first.6MR. WACHUTKA: Yes, Your Honors. May it7please the Board, my name is Jeremy Wachutka and I'm8arguing on behalf of the NRC staff that Joint9Petitioners' proposed Contention 2 is inadmissible10because it is outside the scope of this license11renewal proceeding.12As we have heard, proposed Contention 213raises multiple arguments. Of these arguments are14other environmental arguments challenging a Commission15generic Category 1 determination or they are safety16arguments challenging the current licensing basis of17Fermi. Proposed Contention 2 does not include 10 CFR18Section 2.335 waiver request, nor does it include the19necessary information to satisfy the four millstone20factors. Therefore, proposed Contention 2 is outside21the scope of this license renewal proceeding and22should be denied.23First, proposed Contention 2 faults DTE's24environmental report for allegedly not discussing25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 75spent fuel pool fires in their mitigation. Instead,1DTE's environmental report incorporates all of the2Commission's generic Category 1 findings of3environmental impacts of the onsite storage of spent4nuclear fire provided in Table B1. In the Turkey5Point proceedings, CLI-01-17 and the Pilgrim6proceedings, CLI-07-3, the Commission held that a7substantively identical challenge to the incorporation8of the Commission spent fuel pool storage Category 19determination in license renewal proceedings was not10admissible without a waiver because they constitute a11challenge to the Commission's regulations.12Furthermore, the Commission held that no13discussion of mitigation alternatives is necessary for14spent fuel Category 1 issues. This is supported by 1015CFR Section 51.53(c)(3)(iii) which states that an16environmental report is not required to consider17alternatives for reducing adverse impacts for Category181 issues. Therefore, according to both the19Commission's regulations and case law, the argument of20proposed Contention 2 that spent fuel pool fires and21their mitigation should be analyzed in DTE's22environmental report is inadmissible.23JUDGE SPRITZER: SAMA contentions,24however, are Category 2 issues, I take it you would25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 76agree with that?1MR. WACHUTKA: That is true, Your Honors. 2And so, Joint Petitioners also make that argument that3you should look at Table B1 and that their spent fuel4fires contention shouldn't fall under the Category 15issue of "onsite storage of spent nuclear fuel," but6should instead fall under the Category 2 issue of7"severe accidents." This severe accidents category8states that the probability weighted consequences of9releases and their social and economic impacts as a10result of severe accidents is small for all plants. 11However, it also states that severe accident12mitigation alternatives must be considered once for13each plant.14In Pilgrim, the Commission denied a15substantively identical argument stating that Category161 SAMA requirement only applies to "nuclear reactor17accidents, not spent fuel storage accidents." Thus,18SAMA applies to nuclear reactor accidents as19determined on a site by site basis, while the20consequences of spent fuel storage accidents is21already generically determined under the onsite22storage of spent nuclear fuel, section of Table B1. 23So, in order to rebut this, the Joint Petitioners24state that what they are trying to get at is a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 77cumulative effects argument that NEPA requires that1all this is considered under SAMA. However, this does2not necessarily satisfy the Commission's or the NEPA3hard look requirement because the Commission has4already stated that it does some of its environmental5impacts generically, some of its environmental impacts6on a case by case basis, and that this process does7satisfy NEPA.8For instance, in Turkey Point, the9Commission said, in the end, "The final supplemental10environmental impact statement will weigh all of the11expected environmental impacts of license renewal,12both those for which there are generic findings and13those described in a plant specific analysis." 14Therefore, the Commission's process already accounts15for all the environmental impacts, just some are16accounted for generically like spent fuel storage, and17some are accounted for case by case like SAMA for18reactor accidents. So, there is no gap here. All the19environmental impacts are being accounted for.20JUDGE SPRITZER: Understood in that. I21guess let me ask you the same question I asked the22Applicant about. Is there an obligation to consider23SAMAs that might or would mitigate a spent fuel pool24fire that occurred in the course of, that is as the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 78result of a severe accident? In other words, is there1some overlap between those two areas? And how, what2would the Applicant do in the ER?3MR. WACHUTKA: Your Honor, I would just,4I would have to go back to the Pilgrim proceeding5where the Commission looked at this substantively6identical issue and they said nuclear reactor7accidents is what is covered by their Table B1 severe8accidents category which we're discussing here. And9so, it's the staff's position that this has already10been decided by the Commission.11Also, Your Honors, Joint Petitioners12allege that there is new and significant information13and, therefore, because of this new and significant14information, they should be granted, this contention15should be admitted. However, the Commission has16already also directly addressed this issue and denied17this argument stating in the Pilgrim proceeding that,18"Adjudicating Category 1 issue site by site based19merely on a claim of 'new and significant information'20would defeat the purpose of resolving generic issues21in a generic environmental impact statement." 22Therefore, although the information alleged to be new23and significant by the Joint Petitioners could24potentially be used as a basis for say a 10 CFR25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 79Section 2.335 waiver petition or a 10 CFR Section12.802 petition for rulemaking, it cannot, based on2this Commission direction, serve as the basis for just3a contention in a license renewal proceeding.4And this is all supported by the fact that5there is a petition for rulemaking currently being6evaluated by the NRC, PRM-51-31, which addresses this7very issue and was submitted in March 2014 and amended8in June 2014 and is still under consideration. So, it9appears that the appropriate venue for this new and10significant information argument is the rulemaking11process.12In summary, Your Honors, the Commission's13regulations at 10 CFR Part 51 and 10 CFR Part 54, as14well a the Commission's binding case law in Turkey15Point and Pilgrim, demonstrate that all of the16arguments of proposed Contention 2 are outside the17scope of this license renewal proceeding. Moreover,18Joint Petitioners do not request the waiver of these19rules according to 10 CFR Section 2.335 or satisfy the20millstone factors for a waiver. Therefore, proposed21Contention 2 should be denied.22JUDGE SPRITZER: All right. Mr. Lodge,23you can have five additional minutes.24MR. LODGE: Thank you. All right. With25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 80respect to the transport of casks, we anticipate and1it's a very realistic anticipation on our parts that2like virtually every other operating nuclear utility,3that DTE will slow walk its transfers to dry cask4storage, that the preferred method of storage is going5to be very dense, in fact overpacked storage in racks6in a pool. Beyond Nuclear is indeed a party to the7rulemaking that Counsel for the NRC staff just talked8about. But rulemakings, as I'm sure the ASLB knows,9do not go by any hard prescribed time line. There are10many things, there are many procedural steps, and11there are many considerations that go into so12complicated an issue.13I'd like to point out, however, that one14of the, one set of data that has emerged from the15post-Fukushima expedited spent fuel transfer16proceeding is the new information that we cite very17early in our statement of contention that even a small18nuclear reactor pool fire could render 9,400 square19miles uninhabitable and displace 4.1 million20Americans. And I pointed out a few minutes ago that21the greater population of Toledo and Detroit within a2250-mile radius of Fermi 2 totals nearly five million23people. So, I think the implication, the inference24certainly could be that a much larger population would25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 81be affected here.1Spent fuel can be transferred out of high2density storage pools in a cost effective way, and the3likelihood of fires can be reduced if that type of4thing happens. Pardon me one moment. Yes, there's5also Canadian populations that we haven't discussed.6The cumulative effects analysis certainly7has to take into account specific scenarios that could8occur such as a spent fuel disaster that can lead to9a reactor accident, especially in a multi-reactor site10as Fermi is anticipated to be during the license11renewal period, and the opposite also where a reactor12causes a spent fuel pool problem or catastrophe. We13believe that the nature of the application if you will14with the Commission by not following the DC Circuit15opinion, that the situation now is such that local16fact specific consideration has to be given to the17Fermi 2 spent fuel problems for the license renewal18period. This is more of course than a current19management type of problem because it has been20something that has cumulatively developed since Fermi212 went online. 22Fermi 2 is slated for instance for another23fuel outage in 2015. That of course is not within the24license renewal period. But presuming that the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 82reactor operates more or less on the same basis as it1has, there will be considerably more spent fuel onsite2probably in the pool or only slowly being removed to3casks by the time the license renewal period4commences. That's all I have unless there are5questions from the panel.6JUDGE ARNOLD: I do have a question. 7Given that the NRC staff has the responsibility to8satisfy NEPA and that the Applicant's environmental9report need only address 10 CFR 51 requirements, what10specifically is it in 10 CFR 51 that requires the11analysis that you're asking them to perform?12MR. LODGE: Well, I don't have 10 CFR 5113entire text here. I believe, first of all, that the14CEQ regs must be complied with also by the Commission. 15And that's been a bone of --16JUDGE ARNOLD: Right, by the Commission. 17But we're talking about the Applicant and his18environmental report which is totally needed to19satisfy 10 CFR 51. And there's a lot of things20required by NEPA that are not required by 10 CFR 51.21MR. LODGE: Right.22JUDGE ARNOLD: So, I want to see how23exactly this analysis is the responsibility of the24Applicant.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 83MR. LODGE: Well, if Your Honor is simply1suggesting that we have made a premature, raised this2prematurely, at least we have raised it, and that has3been a problem in nuclear litigation. As I understand4it, the environmental report is essentially supposed5to be some type of template as to, a suggestion if you6will to the Commission staff as to how NEPA should be7complied with. Therefore, to the extent that the8Applicant has not addressed these concerns in the ER,9the ER is deficient and there is an issue of fact I10believe.11JUDGE ARNOLD: I'm done.12JUDGE TRIKOUROS: I'm done, too.13JUDGE SPRITZER: All right, thank you. We14will now move on to Joint Petitioners' proposed15Contention 4. As indicated in our order, we're not16going to do argument on proposed Contention 3, we'll17move directly to Contention 4. And let me ask at the18start, do you want to reserve five minutes for19rebuttal on Contention 4?20MR. KEMPS: Yes, I would.21JUDGE SPRITZER: All right. Please22identify yourself and then let's proceed.23MR. KEMPS: Your Honors, good morning. My24name is Kevin Kemps with Beyond Nuclear, and I will be25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 84addressing Contention 4 for Joint Petitioners.1At heart, Contention 4 addresses the fact2that there is proposed a tremendous concentration of3risk at the Fermi Nuclear Power Plant site. In short,4it is the worst of both worlds: Fermi 2, a degraded5old reactor with breakdown phase risks, and Fermi 3,6an untested new reactor with break-in phase risks,7sharing a common transmission corridor or right of8way, subject to common mode failures which could9mutually initiate and/or exacerbate catastrophic10radioactivity releases. 11In our filings, we have cited testimony by12Farouk Baxter, an engineer who submitted comments on13the Fermi 3 proposal where he identified that this14common mode failure mechanism, this common15transmission corridor is susceptible to various severe16weather and manmade single failure events. He17included tornadoes, ice storms, brush fires, galloping18conductors, severe solar disturbances, light aircraft19impingement.20JUDGE SPRITZER: What is a galloping21conductor? We all, normally I'm technically22handicapped, but my colleagues aren't and they're also23somewhat confused about that term, galloping24conductor?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 85MR. KEMPS: It's Mr. Baxter's list and I1believe that would be a failure of the transmission2grid itself, cascading failures. We saw an incident3in August of 2003 where 50 million North Americans4lost their electricity, and it had a lot to do with5the vulnerabilities of the grid, specifically in this6area of the country. First Energy Nuclear did not7trim its trees, a tree branch touched a power line,8and that cascading failure of the grid led to the loss9of electricity for 50 million people implicating a10large number of atomic reactors, both in the United11States and Canada. So, I think his example would just12point to vulnerabilities of the grid.13To his list, I would add that tornadoes14are very significant in this area. In fact, in June15of 2010, a tornado did strike the Fermi 2 complex and16caused problems that could have been much worse. And17we addressed some of that in our filing. The poor18record of emergency diesel generator operation at19Fermi 2 is a part of this risk matrix. We would add20to that list that Mr. Baxter provided a 1988 incident21where a raccoon cut off the grid to Fermi. There is22also the specter of intentional attacks, and there was23a recent incident near San Jose, California just a24couple of years ago where an intentional sabotage25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 86caused extensive damage to the grid.1These are all very serious issues that2implicate both reactors, Fermi 2 and Fermi 3, and both3units' pools which, as Mr. Lodge indicated, will at4Fermi 2 remain full, packed to the gills, densely5packed for decades to come. And that very same risk6scenario will grow over time at Fermi 3. That's the7standard practice of this industry, to take advantage8of the cost savings of filling the pools beyond9original designs.10JUDGE SPRITZER: So, is it your position11then that this risk of, what is it called, a common12mode failure should have been incorporated in the SAMA13analysis?14MR. KEMPS: Yes, we did go into some15detail in our filings about the inadequacy of the16SAMAs as conducted thus far, that they did not take17into account the concentrated risk of an 18.6 mile18long by 300 yard wide common corridor, that all of19these transmission lines, especially the incoming20electricity to run the safety systems and cooling21systems and monitoring systems are subject to.22JUDGE SPRITZER: All right.23JUDGE TRIKOUROS: Can I just ask the24Applicant, is this corridor the only source of offsite25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 87power for the site?1MR. SMITH: There's a couple of different2lines in the corridor that are independent and3separation meets regulatory requirements. But yes.4JUDGE TRIKOUROS: But it is the only5offsite power feeding to that site?6MR. SMITH: Yes.7JUDGE ARNOLD: Well, I have questions if8done there. This is another contention where the9waters seem to be muddied somewhat. You just added in10the part with the spent fuel pool so I am confused. 11I get the impression that the basis of this contention12has to do with the transmission corridor and the fact13that that will be common for the two plants and that14there might be some interaction between plants because15of that common transmission corridor that was not16accounted for in the SAMA.17Is that the essence of your contention or18is it something else?19MR. KEMPS: Well, we certainly brought up20pools in our original filing on August 18th. Our21point is that the transmission corridor is essential22to running the safety and cooling systems at both23Fermi 2 reactor and pool, and Fermi 3 reactor and24pool. So, any disruption of that essential25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 88electricity supply for those safety and cooling1systems could implicate both reactors and both pools. 2And as we saw at Fukushima Daiichi, once reactors3begin to melt down and their containments fail, then4the pools are also put at tremendous risk. And so,5that was very much an issue at Fukushima Daiichi where6the risks feared from the pools prevented workers from7approaching not only the pools but also the reactors. 8Mitigations were not possible until it was9established, for example, that water was still in the10pool at Unit 4 and that led to the dramatic imagery of11helicopters dropping water on that unit.12JUDGE SPRITZER: I think you acknowledged,13I was looking for the specific page and I can't find14it at the moment, but somewhere in your Contention 415you acknowledged that the proposed Fermi 3 reactor,16what is it called, the economic simplified boiling17water reactor is actually supposed to be able,18intended to be able to operate without electrical19power for some period of time. And it's my20understanding that design has now been certified by21the Commission. So, aren't we precluded by that22certification from looking into any criticism you23might have that the ESBWR won't be able to operate if24it does lose power?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 89MR. KEMPS: Well, we did cite the warnings1from our colleague at Union of Concerned Scientists,2Dr. Ed Lyman, that these assumed gravity-fed cooling3water flow pathways are very optimistic, that there is4much less force behind gravity fed than there would be5from active pumping. So, these warnings have been6raised throughout the Fermi 3 design control document7proceeding for many long years now. And having8participated in the Fermi 3 Advisory Committee on9Reactor Safeguards meetings, there are many10significant unanswered questions. For example, the11ability of the so-called improved monitors at Fermi 312storage pool to function in a high radioactivity13environment due to a reactor accident, those questions14remain unresolved. 15And so, it appears that these many years16post Fukushima, it's still questionable whether the17operators and the NRC and other authorities will even18be able to determine if there is cooling water in the19unit 3 pool during a catastrophic scenario.20Yes, Mr. Lodge just points out that on21page, we're looking up the page number, in our initial22filing we pointed out, given this passive, so-called23passive gravity driven design, that no arrangements24for -- okay, I'm sorry. The point is that Mr. Farouk25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 90Baxter in his comments on Fermi 3 pointed out that the1ESBWR design control document and the Fermi 3 final2safety analysis report, chapter 8, have not resolved3these issues. And we cited that in our filings thus4far.5JUDGE ARNOLD: Let me ask you about that. 6On page 47 on the contention, third paragraph from the7bottom, you say, "The FSAR statement that 'there are8no single failures that can prevent the Fermi offsite9power system from performing its function to provide10power to EF3' is without any technical merit." Now,11are you saying that, I'm not sure what without any12technical merit means. Are you saying that statement13is wrong?14MR. KEMPS: Yes, we are quote Mr. Baxter's15comments bringing severe criticism to the FSAR making16such optimistic assumptions and, I reemphasize, the17concentration of risk in a 300 yard wide transmission18corridor that the Applicant admits is where all the19emergency system electricity supply is coming through.20JUDGE ARNOLD: Okay. Now, the FSAR21statement, isn't that a part of the current licensing22basis for Fermi 2?23MR. KEMPS: Well, there is a certain24overlap of current licensing bases with requirements25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 91for a license renewal application proceeding, we1addressed this last week at the Davis-Besse license2renewal application proceeding. So, these are risks3that will happen between 2025 and 2045 when Fermi 2,4if it gets this LRA approved, will be operating, and5Fermi 3 presumably will also be operating. So, it6certainly needs to be addressed.7JUDGE ARNOLD: Now, let me just ask8Applicant now to comment on that. Your FSAR states9there are no single failures that can prevent the10offsite power system from performing its function. 11That's in your current licensing basis, is it not?12MR. SMITH: Correct. I believe that quote13though is referencing the FSAR for Fermi 3.14JUDGE ARNOLD: Ah, okay. I'm just15wondering if there is some way that you can do a SAMA16analysis considering failure of offsite power that17isn't contradictory to your current licensing basis.18MR. SMITH: I'm not sure I'm understanding19the question because our SAMA analysis does consider20the loss of offsite power. That's considered an21initiating event and that's addressed by a number of22SAMAs specifically.23JUDGE SPRITZER: Let me ask this also24about the ESBWR design. As I understand it, it is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 92supposed to be able to operate without, to continue1its cooling functions even if there is a loss of2offsite power for some period of time. Am I3understanding it correctly?4MR. SMITH: That's correct.5JUDGE SPRITZER: Do you know what that6period of time is?7MR. SMITH: I'm not certain. My8recollection is it's about 7 days.9JUDGE SPRITZER: 7 days, all right.10MR. SMITH: 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, I'm sorry.11JUDGE SPRITZER: 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />? Thank you. To12your colleagues who provided you with that13information, now where would we obtain a cite for14that?15MR. SMITH: I can take an action to obtain16a cite for you from that over lunch break.17JUDGE SPRITZER: Okay.18MR. KEMPS: Your Honors, on that last19point, could I simply say that at the Advisory20Committee on Reactor Safeguards meetings that have21happened in recent weeks and months, that we were22present and we observed and witnessed many unanswered23questions about that 072-hour time period, that 3-day24to 7-day time period. There's a lot of assumptions25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 93about the FLEX from Memphis, Tennessee being either1driven up here on the roads or flown up here by2helicopter presumably to be put in place in time to3prevent radioactivity releases. We have many4questions about that assumption.5JUDGE SPRITZER: To your knowledge though,6was that, has the design certification for the ESBWR7been issued? And does it cover that capability, that8is, the capability to operate without offsite power9for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />?10MR. KEMPS: The design control document11was approved earlier this year. We're not contesting12that. But as I'm trying to get across, there are lots13of unanswered questions about the FLEX assumptions.14JUDGE SPRITZER: Right. Well, I mean the15reason I'm asking of course is there are limits on our16jurisdiction. It might be a very interesting issue17but there are just certain things we can't get into. 18And if a design certification has been issued, I'm not19sure how we can look into a question that effectively20asks us to ignore that certification. But all right,21let's move on and hear from --22JUDGE TRIKOUROS: Well, I have one more.23JUDGE SPRITZER: Oh, sorry.24JUDGE TRIKOUROS: I have one more25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 94question. The loss of offsite power, specifically the1failure of below lines in that transmission corridor2is an event that's contemplated by the design basis of3each of those plants, Fermi 2 and Fermi 3, correct? 4What is different here? I'm trying to understand5where you're finding synergism. The only thing I6could find in your pleading was that if there is a7core melt in one plant, it will result in the8abandonment of the other plant and they wouldn't be9able to deal with the normal design basis event. Is10that the synergism? Without a synergism, it appears11to me you're just basically saying you disagree with12the individual design bases of each of the plants.13MR. KEMPS: As my coworker Paul Gunter14addressed earlier, we have real world experience now15based on Fukushima Daiichi units 1, 2, 3 and 4. And16so, certainly reactor core melt downs with damaged or17destroyed containments, reactor pool fires with no18containment whatsoever, can and will lead to the19abandonment of nuclear power plant sites. There was,20Tokyo Electric considered abandoning all workers at21one point, and it took the intervention of the Prime22Minister of Japan to prevent that. And there were23episodes of the workforce leaving the Fukushima24Daiichi site, retreating to the Fukushima Daini site25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 95against the orders of the company for their own self1protection.2So, these are very real world issues that3we're concerned about at this proposed multi-reactor4site.5JUDGE TRIKOUROS: So, with that synergy,6I'm sorry, you want to say something? With that7synergism, you're making, it's basically an assumption8that says that one of those two plants would not be9able to handle their design basis event and that that10would then lead to the other plant not being able to11handle it by virtue of the first plant's effect on the12second. That's really what this is about, correct?13MR. KEMPS: Just a moment please. Well,14the essence of our contention is that there is15tremendously concentrated risk at this proposed multi-16unit site that includes the transmission corridor17which is very narrow and shared over a very long18distance by these two units and their pools. And19there is also the exacerbating factors of, as20indicated, the reactors and/or the pools experiencing21catastrophic radioactivity releases that then, like a22domino effect, like we saw at Fukushima Daiichi, could23lead to abandonment of the site by the workers, by24emergency responders.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 96JUDGE ARNOLD: But the only data point we1have is Fukushima where that didn't happen, is that2correct?3MR. KEMPS: It didn't happen because Prime4Minister Naoto Kan at 5:00 a.m. rushed to the Tokyo5Electric headquarters and pleaded with the company and6its emergency responders in the control room area of7that headquarters building to not abandon their posts8for the sake of the future of that nation. 9JUDGE SPRITZER: All right. Let's move on10and hear from the Applicant on contention, Joint11Petitioners' Contention 4.12MR. SMITH: Tyson Smith for the Applicant. 13Contention 4 raises a host of issues, none of which14are the basis for an admissible contention.15First, a number of the issues we've heard16about, the ESBWR design, its response to a loss of17offsite power, some of its passive safety features,18those are all issues outside the scope of this19proceeding which is focused on the effects of aging20and another 20 years of operation at the Fermi 2.21Second, their arguments about the22transmission corridor generally, that it's not safe or23more concerns that violates defense in depth, that's24what's in their contention. That also raises an out-25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 97of-scope issue. Fermi 2 or Fermi 3's compliance with1requirements related to offsite power or availability2of diesel generators which is embedded in their3assumption that loss of the transmission corridor is4a loss of defense in depth, those are current5licensing basis issues that are being addressed now. 6They are not issues unique to a license renewal.7Similarly, concerns about the emergency8response organization in the event of a design basis9accident is also outside the scope of this proceeding. 10The emergency response plan is also a currently11licensing basis issue.12So, what that really brings us down to is13the concern that somehow there is some common14transmission corridor related SAMA that should be but15was not considered in the Fermi 2 SAMA analysis. And16there is no basis for that assertion here. There's no17facts, there's no expert opinion. As I mentioned18earlier, DTE did consider a number of different SAMAs19related to the loss of offsite power in diesel20generators and ultimately determined that none of21those were cost beneficial.22The Petitioners haven't put forth any23information to suggest that the analysis that DTE has24done is unreasonable. And that's what they've got to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 98do to have an admissible SAMA related contention. 1Petitioners didn't challenge any, didn't say there is2some SAMA that we ignored or that we didn't consider. 3They didn't suggest that the cost of a particular4event would be greater, or that the benefits of a5particular SAMA would be greater.6And simply put, there is nothing here to7litigate. I'm at a loss as to what a hearing would be8held, would involve if this contention were admitted.9JUDGE SPRITZER: Well, I suppose you might10read their argument to be at least in part that you11should have included in the benefits, if you're taking12a measure to improve the reliability of the13transmission corridor, there would be benefits both to14Fermi 3 and Fermi 2 in the sense of reducing the risk15of a severe accident at both plants, and that that16somehow should have been factored into the analysis. 17What's your response to that interpretation?18MR. SMITH: Well, I think that's very19generous and not one that I would draw from the20contention in front of me. I mean I didn't read that21in the contention.22JUDGE SPRITZER: Well, I admit it involves23some interpretation. But do you have any thoughts on24that?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 99MR. SMITH: They certainly haven't alleged1any scenario by which that would be the case. They2haven't said, oh, your SAMA related to mitigating the3effects of a loss of offsite power, the cost of that4would be reduced because it's spread over Fermi 2 and5Fermi 3. Nor have they suggested that the cost would6be more because of that event. 7I mean these units have different designs. 8As Judge Trikouros pointed out, the Fermi 3 design is9intended to operate without, it can function without10offsite power for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. So, there is nothing to11suggest that concern has any basis in the design of12the plant.13JUDGE SPRITZER: Is there anything in the14NRC guidance when you, it probably isn't unheard of to15look at SAMAs at one plant where there is a multi-16plant site. Does the NRC guidance address that in any17way?18MR. SMITH: Well, the NRC-endorsed19industry guidance does discuss how you handle SAMAs20for multi-unit sites. And what it says is similar to21what you mentioned which is if you've got a couple of22plants that are identical and when you're costing out23the cost of implementing a particular SAMA, you have24to take into account any efficiencies that might be25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 100gained if you implement the same SAMA at multiple1units. So, if it's a training SAMA but you're really2just training the same staff that works on all three3units, then your cost can be divided in thirds or4something like that. So, that's the extent to which5the SAMA analysis, the guidance discusses treatment of6multi-unit sites.7JUDGE SPRITZER: In that situation, would8you also factor in the benefit of additional training9for the operators at the other two reactors or not?10MR. SMITH: But that's embedded, that's11already embedded in the SAMA of any one unit, so there12is no additional benefit. That benefit is reflected13in that SAMA unit, you reduce the risk by X amount14that resulted in such a benefit.15JUDGE SPRITZER: I assume the cites for16the guidance you're referring to is in your brief17somewhere?18MR. SMITH: I'm not certain if that's19referenced in our brief. The industry guideline is20NEI 05-01, and that's NRC-endorsed guidance on21performing SAMA analyses.22JUDGE SPRITZER: Okay.23JUDGE TRIKOUROS: To your knowledge, did24the Fermi 2 SAMA take into account the failure of the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 101transmission corridor?1MR. SMITH: Yes, it did.2JUDGE TRIKOUROS: Did the Fermi 3 SAMA3take into account the failure of that transmission4corridor?5MR. SMITH: It certainly did.6JUDGE TRIKOUROS: So, the failure of the7transmission corridor has been considered but on an8individual basis for each of the two plants. Do you9see any connection or any degradation of that scenario10because the failure occurs simultaneously?11MR. SMITH: No.12JUDGE TRIKOUROS: Is there anything in the13regulations that requires a different view because14they occur simultaneously?15MR. SMITH: Not that I'm aware of.16JUDGE SPRITZER: All right. Let's move on17and hear from the NRC staff on Joint Petitioners'18Contention 4.19MR. HARRIS: I don't want to repeat some20of the things that we're saying here. A couple of21things that I wanted to bring up. We talk about, one22of the things that was brought up was spent fuel23pools, the status of the spent fuel pools in terms of24coverage. That is actually the subject of an order25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 102for the plants to be installing reliable spent fuel1pool instrumentation so that those issues of, you2know, can you approach the pools can be determined3remotely. So, the fact that at Fukushima during their4event that they had, they could, you know, had trouble5determining what the status of the pools were at the6time, you know, should not be an issue going forward7because that's already been incorporated into their8licensing basis and they have to come in compliance I9believe by two refueling outages or I think September10of 2016 in terms of the spent fuel pool11instrumentation order.12So, those issues of the status of spent13fuel pool really don't weigh into that particular14problem. Again, the FLEX orders are also one of the15things that, you know, they are currently, you know,16required to do. As part of the FLEX order, they are17going to have to be able to, they are installing18equipment to deal with the first 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> for all the19operating plants, all the licensed plants. So, they20have to be able to manage without offsite assistance21for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. In the case of Fermi 3, of course it's22a passive system so it should be able to do that23without much additional, anything additional. And24then they are able to bring in extra help from staged25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 103equipment at the site or from these two response1centers that are located throughout that to be able to2deal with these prolonged station blackouts.3As the Applicant indicated, the loss of4offsite power including loss of the transmission5corridor has been accounted for, for both the Fermi 36SAMA, severe action mitigation design analysis, it's7called something different slightly different since8the plant hasn't actually been built, versus Fermi 29where you look at it as a SAMA analysis. And there is10nothing in what the Petitioners have indicated for how11those two analyses were somehow incorrect or failed to12account for the actual benefit that would be achieved13by making improvements to the ability to recover or14maintain that offsite power source.15The thing that I want to bring up that16really hasn't been addressed is the Commission by rule17has indicated that we should only be looking at SAMAs18one time for a plant, whether that's at the initial19licensing stage or at license renewal is that they20found when they first imposed the requirement that we21only need to do this once, and that we wouldn't expect22to find anything different. That has been recently,23you know, challenged in the Limerick proceeding. The24Commission of course, you know, rejected the challenge25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 104to revisit Limerick's SAMA analysis for a second time. 1In equivalent, that's what we would be2doing here by trying to force Fermi 3 to redo its SAMA3analysis to account for the licensing that is going on4at Fermi 2. 5JUDGE SPRITZER: Well, I don't understand6them to be asking for that. What I think they're7saying, or at least one way to look at what they're8saying is you should have considered in the Fermi 29SAMA analysis not only benefits to Fermi 2 in terms of10reduced likelihood of a severe accident or better11mitigation of an accident if it occurred, but also the12fact that there would be some synergistic or13additional benefit to Fermi 3. I mean if you're doing14a complete cost benefit analysis, let's consider all15the benefits even if some of them happen to accrue16with Fermi 3 instead of, or in addition to Fermi 2.17MR. HARRIS: But you would actually, you18would have to revisit Fermi 3's SAMA analysis to19figure out what those benefits were, you know, in20terms of how to calculate that. It's some unknown21number without actually redoing the SAMA analysis and22how those two things interact.23The Applicant brought up the fact that24when you're looking at the cost of implementing these25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 105particular benefits at multi-unit sites, especially1where the sites have generally the same design, that2you can spread out the cost of implementing for the3site that would reduce the overall cost of4implementing that mitigation measure to reduce, you5know, to increase the potential cost benefit of a6particular SAMA. But it does not work quite the same7on different plans. 8But also from the benefit side, what's the9risk of the consequence? That is not something that10you can really sort of, you know, tie together. It's11something that the staff, the Commission has tasked12the research part of the staff to go and look at13multi-unit SAMA analyses. We don't have a way that14addresses it.15NEI guidance that discusses it doesn't16actually address how to do, it doesn't give any17guidance in terms of how you calculate that benefit on18a multi-unit site like that. It's something that's19under consideration as a research project.20JUDGE TRIKOUROS: And that's how I view21the Intervenors' contention in this. Well, let me22start by asking you, is there anything in the new23guidance that's been required by the NRC for existing24reactors and new reactors with respect to the three25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 106orders that have come out that take into account1multi-unit sites?2MR. HARRIS: The part right now that3probably most directly addresses multi-unit sites is4multi-unit dose assessments. So, in the event of an5actual accident, to be able to do a multi-unit dose6assessment, there is again that research project that7the Commission has tasked research to do a new level83 PRA that is similar to the PRAs that were done for9NUREG 1150. And that is one of the topics that they10are intending to look into is how do you integrate the11risks across this, you know, relatively independent,12you know, units.13JUDGE TRIKOUROS: Okay. Now, with respect14to equipment and people that are required for each15plant as part of these orders, do they specify that16that number of people and that equipment has to be of17sufficient quantity to handle an ongoing event at more18than one plant at a site?19MR. HARRIS: Right. As each plant is20required to handle, you know, be able to handle any21event that occurs on it, so they would need sufficient22people to handle both an accident at Fermi 2 and an23accident at Fermi 3. And they would need the24appropriate amount of equipment to be able to deal25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 107with responding to those types of accidents, be that1FLEX or in Fermi 3. I don't want to talk too much2about the ESBWR because I have not been involved in3that, but you know, it's a passive system so it's, in4the purposes of loss of offsite power, it should deal5with it for the 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />.6JUDGE TRIKOUROS: All right. So, that's7contemplated in the new orders that are being8implemented right now by these plants?9MR. HARRIS: Right.10JUDGE TRIKOUROS: Okay. With respect then11to the SAMA that one does for each plant, and it is a12probabilistic risk assessment which the Intervenors13have pointed out is, you know, not to their liking in14fact, isn't there some probability that what they15suggest might happen might happen? In other words,16isn't there some probability that people will evacuate17that site? It may not be a large probability, but18isn't it some probability?19MR. HARRIS: The question of would the20staff in charge of the plant evacuate the site, you21know, of course in the event of whatever accident it22is, it's difficult to be prospective and speculate. 23My own personal experience, you know, as a formal24naval nuke is that, and what I've seen here is that25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 108they're not because their families are out in, you1know, out living near the sites. They want to arrest2it. So, there is some possibility that it could3happen, you can't drive it to zero, but the4uncertainty associated with that low probability is --5JUDGE TRIKOUROS: But I think in the6petitions, they are basically saying you're giving7that a zero probability.8MR. HARRIS: We're not giving that a zero9probability.10JUDGE TRIKOUROS: Or the Applicant is11giving that a zero probability.12MR. HARRIS: You have uncertainty13associated with the SAMA analysis to try to account14for those things that are difficult to quantify. So,15like I said, you know, the uncertainty applied here16was a factor of 2.5 times. So, the benefit is being,17you know, increased by 2.5 from what the, you know,18before you apply the uncertainty in terms of that. 19And then of course a lot of times with the cost, you20know, you don't account for all the costs that would21necessarily go into any particular mitigation measure,22and so you're maximizing the chance for something to23be identified as potentially cost beneficial. 24It doesn't mean that, you know, if you go25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 109back and have a particular accident, that that1mitigation measure wouldn't have been cost beneficial2assuming the accident actually occurred. But that's3not the way SAMAs are done. We're trying to calculate4what's really the expected value of the accident that5occurs at some unknown time under unknown6circumstances.7JUDGE TRIKOUROS: Well, isn't there8anything in the SAMA requirements that takes what the9Intervenors are saying and, you know, makes it10something you don't have to do? In other words, when11I read their pleading, they are simply saying that the12site might get evacuated, you should consider that. 13You're saying it's a very low likelihood. But SAMA is14a PRA and, therefore, it considers many low likelihood15events.16MR. HARRIS: True, but it doesn't17consider, you know, every low likelihood event that18could occur. You know, I mean I mentioned previously,19you know, a meteorite happening to hit the plant. You20know, the likelihood of that it small, the likelihood21of a meteorite hitting the earth, a little larger, but22we don't consider that. And it's not, you don't have23to consider every potential, you know, accident24scenario. I mean even for the accidents that we25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 110consider, there are thousands of different ways that1you can have an accident in terms of the actual2precise way that the accident progresses. 3But we model that using nine source terms,4you know, where you collect the various different5accident scenarios and model each accident as a6particular source from relief. So, you know, you have7to sort of combine some of these things, and some of8these things are, you know, they're not specifically9addressed but they are addressed by, you know, the10fact that we try to look at sensitivities. We try to11look at uncertainty. We try to account for those12things that now are low likelihood that probably, you13know, something with that low likelihood of someone14abandoning the site, you get that right accident that15forces people to abandon the site for whatever reason16that they choose to abandon it, you know, we're going17down, you know, lots and lots of probabilities and18less and less likelihood. And the chance of it19affecting any one of these analyses is small.20And that's sort of what they have to show21is that they have to show that it would actually make22one of the mitigation measures that wasn't identified23as potentially cost beneficial cost beneficial. It's24not a research project. We are simply trying to do a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 111reasonable analysis of their representation of what we1expect to happen. It's not meant to model any2particular one accident.3JUDGE TRIKOUROS: But the deficiency they4are pointing out is not an unreal deficiency. It's5simply not considered, no one had considered that in6any of the SAMAs for multi-unit sites that happen to7have a shared, I don't know if anybody has that8situation in fact, a shared corridor that is subject9to some sort of an external event that could result in10a station blackout in two plants and treating the11SAMAs as individual entities without that connection12that they're saying should be made. And it is not13unreasonable.14JUDGE ARNOLD: Well, is the shared15corridor actually significant when you're talking16about having to evacuate the entire site?17JUDGE SPRITZER: Is that a question for --18JUDGE ARNOLD: Let me ask you.19MR. HARRIS: I was asking he was asking20Judge Trikouros.21JUDGE ARNOLD: Because what you've been22asking back and forth for the last ten minutes sounds23to me to be generic to any multi-unit site.24MR. HARRIS: I think it is generic to any25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 112multi-unit site. I'm not sure that the shared1corridor makes that particular scenario, whether or2not the staff, you know, under some unlikely3circumstance would just abandon the site and not try4to take all the appropriate actions to stop the5accident or mitigate their risk of the accident. I6don't think that's a function of the shared corridor. 7These same types of things would show up in things8like flooding, seismic risk for any multi-unit site is9that you could have those kind of things would show up10at any other multi-unit site.11JUDGE ARNOLD: Well, this scenario that12they're -- I'm sorry. Go ahead.13JUDGE SPRITZER: Well, I just want to14clarify for the record. We keep talking about the15site. Are we talking about Fermi 2, Fermi 3 or both?16MR. HARRIS: I'm talking about the17combined site because we're talking about the18interaction of the two. So, when I talk about the19site, I'm talking about Fermi 2, Fermi 3, that you can20have some event that would affect both plants at the21site here. We're talking about transmission corridors22at other sites that are multi-unit, you know, whether23they have a shared transmission corridor, they are24subject to types of external events that could25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 113challenge both, you know, all the plants at the site. 1Wetting would be an example of that.2JUDGE TRIKOUROS: Right. I think that the3scenario that I'm hearing from the Petitioners is one4in which both plants are in crisis. Both plants5require significant amount of staff to be running6around that stuff during a situation in which there's7a release occurring from at least one of those two8plants. If the other plant is not in crisis, then the9operators will be in a control room in a stable10manner, their control room is filtered from radiation. 11But from what I hear from the Intervenors' pleading,12as I ready the pleading, I'm trying to understand what13they're getting at, that's the interpretation that I14seem to be coming to is that it only applies when15there are two plants on a site in crisis, you know,16not just a normal situation where one plant, similar17to TMI for example.18MR. HARRIS: I don't know that, I read it19differently that, you know, you would have some20initiating event that would cause one plant to have an21accident, and then that plant's accident would cascade22into causing an accident at the other plant.23JUDGE TRIKOUROS: Do you have, do the24Petitioners have a clarification here?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 114MR. LODGE: I think numerous postulation1is what was in our thinking. Your Honor, in the 80's,2the NIGA regs for the NRC were amended so worst case3scenarios were no longer obligatorily to be considered4within EIS documents. But 40 CFR 1502.22 was5promulgated and that states that where there is6incomplete or unavailable information, the EIS has to7include certain things like a statement that the8information is incomplete or unavailable, relevance of9that incomplete or unavailable info to evaluating10recently foreseeable significant adverse impacts on11the environment, summary of existing credible12scientific evidence which is relevant to evaluating13those recently foreseeable impacts, and the Agency's14evaluation of those impacts. So, where the15information is essential to reasonable choice of16alternatives, it's required to be discussed and17identified in the EIS. So, as you were saying, Judge18Trikouros, perhaps the chances of abandonment by19staffing and crew, the personnel, is a relatively20small prospect. It certainly seems to us that it does21have to be tested upon and identified. 22Another thing is the Detroit Metropolitan23Airport which is an extremely busy North American24airport is nearby to the transmission corridor as well25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 115as of course the Fermi site itself, and planes pass1over the transmission corridor at least on a very2frequent basis. The problem is that we're really3talking about a single fault type of scenario, if4there is an accident that befalls the transmission5lines. And in 2012, the Commission issued letter62012-05 saying that there have to be two sources of7offsite electricity which doesn't exist here for Fermi82.9So, we think that this is a very, very10problematic contention that we've raised.11MR. SMITH: If I may, there's something we12haven't discussed that I actually is very relevant to13the questions Judge Trikouros is asking which is the14SAMA process includes a screening process. So, that's15done at the outset. And so, you look at what's the16maximum benefit, and then you also look at there's a17truncation of events that have a very low likelihood. 18And this is discussed in our SAMA analysis. It talks19about reasons why some might be eliminated, things20like excessive implementation costs. If you're21talking about automating your onsite emergency22response, that's going to be excessively, it's going23to have an excessive cost.24Similarly, if there is a very low benefit25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 116or the risk itself is very small, and this is exactly1why Intervenors have an obligation to come forward2with some approximation of the relative costs or3benefits because there is a screening process. You4can't say, well, there is some possibility. That5possibility may be so low that it was appropriately6screened out. They've got to put forth some7information to show that this is actually something8worth considering further, and they haven't done that9here.10MR. KEMPS: Could I respond just briefly? 11We did in our filing cite NUREG contractor report 22-1239, the 1982 Sandia citing study which is most13commonly known as CRAC-II. And those figures I think14make it difficult for us to get our heads around how15these improvements on safety are not cost beneficial. 16And so, just very briefly, those figures are 8,00017peak early fatalities, 340,000 peak early injuries,1813,000 peak cancer deaths, and adjusted for inflation,19over $300 billion in property damages. And I would20hasten to add --21JUDGE SPRITZER: Are those figures for22Fermi 2? Fermi 3?23MR. KEMPS: Fermi 2, Fermi unit 2.24JUDGE SPRITZER: Okay.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 117MR. KEMPS: And I would hasten to add that1the population has likely increased since this report2came out.3JUDGE TRIKOUROS: That was 1982, that4report, wasn't it?5MR. KEMPS: Yes, sir.6MR. HARRIS: Your Honor, may I address the7Sandia citing study? So, if you look at what the8Sandia citing study does, there are a lot of caveats9in that study in that they don't account for a lot of10the contamination removal mechanisms, you know, by the11containments. So, they're basically assuming a12release from the vessel that doesn't actually get13filtered by the containment at all. Even if it does14fail in some way, there still is going to be some sort15of deposition within the containment, filter through16whatever, however the containment may have failed17because you can have torturous paths that would cause18some bleeding out on that. 19So, it made very conservative assumptions20about what that release would look that they said you21would need to take into account. It looked much more22as a worst case kind of scenario than an actual NEPA23--24JUDGE ARNOLD: It didn't look over a25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 118spectrum of accidents?1MR. HARRIS: It looked at a smaller2spectrum of accidents. I think there were five source3terms used in that. I believe where Mr. Kemps is4citing from, not looking at it, I believe that's5dealing with what was called source term 1 which was6really sort of, you know, a very large failure, you7know. It was not trying to model all the types of8failures, but they did look at five source terms. 9Fermi 2 now looks at nine different source terms.10A lot of the modeling that's gone on both11from the MAP and MELCOR that does level 2 and level 112PRA which is sort of the initial sort of in accident13scenario has been improved over the years where what14was done determinitivally before is now done more15analytically in terms of trying to model the actual16physics of these particular scenarios. So, it's17giving it more realistic than what you would normally18get under the deterministic kind of model.19JUDGE TRIKOUROS: Well, I didn't want this20to broaden that much. The simple question was when21you're doing, when you have a multi-unit site that's22subject to a common mode initiating event, do the23SAMAs that are done for each plant have to include24some probability consideration or staffing not being25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 119available at the plant? That's really all I was1asking and that really, and I was coming from the2point of view of the Petitioners in terms of what I3thought they were saying in their pleading.4MR. HARRIS: Right. But for a SAMA, we5need to account for, you know, the licensing basis in6terms of what the plant is supposed to be doing. 7That's the model they're doing. That would include8the staff taking the appropriate actions being onsite,9you know. So, you have to account for the plant as it10is and as it is required to be. And that does require11staffing, you know, and that staffing to take12appropriate actions.13JUDGE TRIKOUROS: Would it be true for me14to say that the new orders coming out or has been out15that are being implemented don't take these things16into consideration?17MR. HARRIS: Which? I'm not sure which18things you're referring to there.19JUDGE TRIKOUROS: Well, just assuming that20everybody goes running around and does what they're21supposed to do with the FLEX strategy and all of that.22MR. HARRIS: The FLEX strategy is23probably, it's not so deterministic, it's not so24proceduralized because when you look at the FLEX25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 120strategy, it's trying to account for beyond design1basis events from the order perspective and not2knowing exactly what that event is that, you know,3you're going to be able to handle some of these4external events. So, that doesn't allow you to sort5of proceduralize it. So, what you have to do is you6have to have the appropriate equipment that you can7employ appropriately based on the event that you have8from more symptomatic, you know, analysis in response9rather than from this alarm came on, that means I need10to move these three switches attached to these three11pumps, is that you have to look at it holistically how12best to respond to it. 13The idea is that you have sufficient14equipment to make all the attachments to preclude, you15know, a core melt, you know, an accident. That also16means that you have sufficient staff to make all those17required connections in the event of some accident,18you know. So, it doesn't address that specifically,19but you know, they can't just walk away, you know,20they have all this equipment that they're supposed to21take action for.22JUDGE TRIKOUROS: I don't know, I don't23think I want to pursue that any further.24JUDGE SPRITZER: All right. Does anybody25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 121have anything further they want to add on this last1Contention 4?2MR. KEMPS: Yes, Your Honor, just on that3last point that Mr. Harris raised. It's my4understanding that NRC regulations, in terms of5personnel staffing levels, can only be applied to the6control room and to the security guard force. And so,7assumptions about staffing levels to deal with8mitigating a potential pool fire or other mitigations9that have to take place to prevent a catastrophe from10unfolding, I think that's very optimistic for Mr.11Harris to just assume that.12JUDGE SPRITZER: All right. Very well, I13think we've heard all we need to hear on Joint14Petitioners' contentions. We'll move on to consider15CRAFT's contentions when we come back after lunch. 16Before we leave, does anybody have17anything else they want to raise? As far as timing,18I think my recollection is you have to walk a little19bit to find some place to eat, so why don't we allow20an hour and 15 minutes? So, we'll come back at a21quarter to 2:00 and we'll still make our best efforts22to get out of here by 4:00. Is there anybody that if23they stay a little after 4:00 is going to have a major24problem with transportation? Okay. Well, we still25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 122hope to finish by 4:00, we'll do our best. Thank you.1(Whereupon at 12:32 p.m. the meeting was2adjourned until 1:47 p.m.)3JUDGE SPRITZER: We are here at the4afternoon session of oral argument in the Fermi 25licensing proceeding, the argument on contention6admissibility, and we are ready to move on to consider7the contentions proposed by CRAFT, C-R-A-F-T, all8capital letters, Citizens Resistance at Fermi 2. A9total of 14 contentions which we have grouped for10purposes of expedited argument. And we begin, unless11there are any questions or issues we need to consider12before we get started, we will begin with CRAFT13Contention 1, and I believe we'll be hearing from Mr.14Sherman.15MR. SHERMAN: Yes sir.16MR. HARRIS: Judge Spritzer, I hate to17interrupt. I told you I would check on the dates for18the reg basis for the filtered, the filtering19strategies rule making. The reg basis is due this20December. And then the following rule is due next21year in December.22JUDGE SPRITZER: Okay. Well, keep us23notified if any development happens that can be24relevant, that you think would be relevant to the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 123contentions.1MR. HARRIS: Yes sir.2MR. SMITH: Judge Spritzer, I had action3to provide a citation for you.4JUDGE SPRITZER: Oh, okay.5MR. SMITH: The ESBWR passer design does6not require offsite or onsite power for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. And7that's in the DCD at 15.5.3, or it's in the Fermi 38COLA at Section 8.3-2.9JUDGE SPRITZER: Okay. Great, thank you. 10All right, you may proceed.11MR. SHERMAN: Thank you, sir, and thank12you gentlemen of the panel. Your Honors, I want to13first thank you sincerely for the opportunity to14address you. I feel very honored to be here speaking15on these contentions. And so I just wanted to express16my heartfelt thank you. My name is James Sherman. 17I am a steering committee member of the18Citizens Resistance at Fermi 2, and I'm here to defend19our contention that the public deserves a hearing in20reference to these matters, especially with regard to21alternatives that are viable and realistic. So the22NEPA law requires the Applicant to include in their ER23analysis that considers and balances the environmental24impacts of alternatives for reducing or avoiding25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 124adverse environmental impact.1The response to the CRAFT petition claims2that CRAFT does not demonstrate feasibility of the3renewable mix. And I would say that it's a specious4argument, and deflection from DTE's responsibility. 5Our argument is that the analysis is purposefully6neglectful. In their analysis, the position that the7Applicant's alternatives is not required to discuss8every conceivable alternative to the purposed action9NEPA requires. And only consideration of feasible,10non-speculative and reasonable alternatives are11required by NEPA.12Our contention is that DTE has taken a13self-serving approach to this analysis. And that14wind, solar, and the other renewables that we have15mentioned in our contention are absolutely viable. 16According to Michigan Public Service Commission, there17is already more than 12,000 megawatts of wind18generation capacity in the state, with more being19build every day.20JUDGE SPRITZER: I think their position21is, basically, that you haven't demonstrated that it's22a viable alternative to providing what they call base23load power. That's power that's available all the24time, even when the wind's not blowing. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 125MR. SHERMAN: Thank you, Your Honor, and1I would like to address that directly.2JUDGE SPRITZER: Sure.3MR. SHERMAN: First of all, Fermi 2 does4not run 24/7, 365 days a year. This year alone, we've5had a number of outages, both planned and unplanned,6for dealing with problems at the plan. When7distributing wind power throughout the state, and8other renewables such as solar, biomass, then those9resources are distributed so less generation capacity10is required to be transmitted over long distances. 11And we would say that it is a very thin12argument to suggest that the entire State of Michigan13could stop blowing. It's a really difficult argument14to make.15And I would challenge DTE to show me on day on the16record on which there was no wind in the state. And17on days where wind resources are lower, sun resources18tend to be higher. 19We would also point out that the claim that DTE20made that there is no storage capacity on grid in21Michigan is blatantly false. The Luddington power22pump station actually is able to pump water up over23300 feet into a reservoir. It was built in '6924through '73, and when it's at full generation25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 126capacity, it can produce 1,800 megawatts of power; 501percent more than the total output of Fermi 2 when2running at 100 percent power.3So we make the argument that it is not our4responsibility to demonstrate in full that renewable5power can replace Fermi 2. First of all, the6generation capacity is there and being built. And,7first of all, as NEPA states, it is the Applicant's8responsibility to make an analysis of these9alternatives. And we can see that even solar, which10tends to be double the cost of wind power, in North11Carolina, according to Duke Energy, actually is less12expensive than nuclear.13So wind power tends to cost about half the14cost of nuclear power. But here in Michigan, it has15the added benefit that these resources are here in16state. We use our manufacturing base to produce the17turbines. And the wind is home-grown Michigan wind,18as is the solar, the biomass, and all these resources19that we can produce here in state. Whereas, our20current relying on energy from coal and nuclear is all21mined out of state, increasing our cost of energy,22driving manufacturing out of the state, as well, oh23three already?24JUDGE SPRITZER: We'll give you three25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 127minutes for rebuttal. Was that an assumption that he1would have three minutes of rebuttal?2MS. KANATAS: Yes.3MR. SHERMAN: Excellent. So our point is4that DTE takes a dualistic approach. On one hand, in5their NEPA statements and environmental statements,6they're saying that wind is not a viable option. 7Where, if you see any of their wonderful TV8commercials with that great guy from the Dirty Jobs9show, showing how these big turbines make energy free10of pollution. 11So, on the one hand, DTE has a public face12that is lauding their efforts with renewable energy13and, of course not mentioning that all of the steps14that they've taken in this direction have been15required by law, such as the renewable portfolio16standard. Which they laud their adherence to, but17behind the scenes are lobbying against things like18renewable portfolio standards being increased, better19use of metering standards. 20And they make the argument that there is21no storage, which we've established that there is. 22And the fact that the current state of the grid23requires that energy be stored, and that special24arrangements be made with certain customers, such as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 128interruptable service and giving better rates for off-1peak usage. 2So these strategies are already being3used. These strategies will be helpful in mitigating4any sort of capacity factor differences in renewable5power. And, therefore, the argument that these6alternatives are not reasonable and not non-7speculative and reasonable feasible alternatives,8because they're already operating in the state with9great success. 10And the potential for wind alone is barely11stretched. With increase of efficiency and siting,12using wind resource maps to make sure that the wind13resources are placed in the maximum availability of14wind, the capacity factor of these plants are steadily15increasing. And, because they're distributed16throughout the state, the cost of transmission and the17impact of the energy used for transmission is greatly18reduced throughout the state. 19JUDGE TRIKOUROS: You know, when you say20the capacity for factors is increasing, you're talking21about the down time for maintenance or repair or that22sort of thing, right?23MR. SHERMAN: Correct. Wind power has,24historically, been rated between 30 and 15 percent25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 129capacity factor. Meaning that for every 1001megawatts, you would potentially get 15 to 30. But2those factors have been raising quite steadily, and3capacity factor for wind throughout the country has4been reaching close to the 50 percent, and well over540.6Throughout the world, we're seeing records7being set regularly in both the building of wind8generating capacity, as well as higher capacity9factors. Just recently, the North Sea Off Wind10Resources off of Europe had set major records towards11running at 100 percent capacity factor for days on12end.13And the only real problem is that if we14build enough capacity in wind to more than make up15base load for Fermi 2, at times we will have power16overages that can be sold out of state, sold to17customers that have flexible demands, like salt mines18creating chlorine and sodium resources. Those can be19put in place when energy is at a maximum.20And we believe that this will create, not21only a better environment for the State of Michigan22and our rate payers with lower rates in the long run. 23Because once these resources have been paid off, they24produce energy for free. So the fact of the matter is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 130that economically and environmentally, renewable1energy is a boon for Michigan. They're in-state2resources. 3We're not bringing in fuel and uranium4from out of state. And we'll be able to lower our5rates and keep more manufacturing base here in6Michigan. And by using our manufacturing base to7create these turbines, we're further increasing the8job base in Michigan.9JUDGE ARNOLD: I'm going to interrupt you.10MR. SHERMAN: Please.11JUDGE ARNOLD: You're not answering the12question. It was a very brief question. If you13continue to answer and answer and repeat things that14are in the petition, we're not going to get through15today, because we've got a lot of questions. So could16you be, please be briefer? 17MR. SHERMAN: Would you restate the18question, please.19JUDGE ARNOLD: I'm not worried about him20not answering it, but he's going on about --21JUDGE SPRITZER: I think he's about done22with his time anyway. Why don't we move on in here.23JUDGE ARNOLD: Well no, because we have24questions. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 131MR. SHERMAN: Please. I would be happy to1answer them, sir.2JUDGE ARNOLD: Absolutely. Now, the3Applicant has already addressed wind power in the4application, and said it's not a reasonable5alternative. You say it is. The best way that you6can support it being a reasonable alternative is to7point to someplace that uses wind to get a capacity8equivalent to Fermi 2, and that has a capacity factor9that is in the order of 90 percent or whatever Fermi102 is. Can you point to anyplace where wind power is11producing in that manner? 12MR. SHERMAN: It is not possible to13produce 90 capacity factor with wind. That is why,14because it is so much cheaper than nuclear, you can15double or triple the capacity for the same financial16investment. And produce windfall profits in the17future for DTE because once the initial investment is18paid off, the energy's produced for free.19JUDGE ARNOLD: Is there anyplace that wind20produces power 90 percent of the time? I'm not say21capacity factor, this is with over capacity, and22yields a megawattage equivalent to, or approximately23to Fermi 2?24MR. SHERMAN: Based on the fact that the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 132capacity factor is known to be about 40 percent, and1the nuclear capacity factors tends to be about 90,2which I believe in some cases an overestimation; you3can see a lot of downtime over the years from Fermi 2. 4All it would take is anywhere you can put together5more than double the total capacity, you'll have the6capacity factor equivalent of Fermi 2.7JUDGE ARNOLD: So this is speculation on8your part. You can't point to anyplace that has this9amount of wind power, correct? 10MR. SHERMAN: There's places throughout11the world that have that much wind power. You'll see12in Denmark and Germany, these countries are close to13100 percent renewable power, largely from wind and14solar. And they are closing all of their nuclear15plants. So I would say that it's not only not16speculative, but is demonstrable in other countries17throughout the world. And if you look at the wind18factors in Michigan, we are barely tapping the19available resources we have in the state. 20JUDGE TRIKOUROS: In your pleadings you21point out that the only way to achieve any kind of22base load situation is with respect to interconnected23wind farms, correct. So let me understand that. Now,24in other cases that we've had, we've discussed various25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 133factors associated with this, so I can ask questions1from some of that experience.2MR. SHERMAN: Please.3JUDGE TRIKOUROS: But let me just, okay,4so with respect to interconnected wind farms, are you5suggesting that to replace, say, the -- let's say61,000 megawatts electric, Fermi's about 1,170, I7think. 8MR. SHERMAN: Yes.9JUDGE TRIKOUROS: You would be talking10about, let's again say, for the sake of argument, four11wind farms at locations that are far enough away from12each other that the wind will always blow in at least13one of those locations. So you'd be talking about14roughly 4,500 megawatts electric of generation. So15you have to buy four times as much power as Fermi,16such that at any one of those four locations that17would be a Fermi? Is that what we're talking about?18MR. SHERMAN: That is one mitigation19strategy. That is reasonable and feasible.20JUDGE TRIKOUROS: Well, when you say, you21brought up interconnected wind farms, so I'm just22trying to understand what you mean by that. So, we're23talking about four Fermis worth of energy at different24locations? 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 134MR. SHERMAN: And we're more than a1quarter of the way there with minimal investment in2that type of energy in the state. 3JUDGE TRIKOUROS: Okay well, when you say4interconnected wind farms, is that what you mean?5MR. SHERMAN: Well, yeah --6JUDGE TRIKOUROS: What I just said?7MR. SHERMAN: Yes.8JUDGE TRIKOUROS: Okay. I just want to9make sure I understand what that means.10MR. SHERMAN: Thank you for the11clarification. And in our original contention, we12said renewable energies such as wind. Wind is only13one part of the factor, but more than enough to14replace Fermi 2. And with additional renewable15resources online, we can start replacing units other16than Fermi 2; palisades, the coal plants. We have the17resources here in the state. We don't have to go out18of state for our energy.19JUDGE TRIKOUROS: You talk about, later in20your pleading, you talk about some renewable standards21that the State of Michigan is --22MR. SHERMAN: Yes renewable portfolio23standards, RPS.24JUDGE TRIKOUROS: And, you know, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 135indicate that they have, that they're required for 101percent renewable?2MR. SHERMAN: Yes sir.3JUDGE TRIKOUROS: And you indicate here4that they, basically, are at 9.6 percent. Is that5correct? You mention a 9.6 percent number in here.6MR. SHERMAN: Did I say 9.6 percent?7JUDGE TRIKOUROS: You mention 9008megawatts is owned or contracted renewable energy9generation by Detroit Energy.10MR. SHERMAN: You're not saying verbally11just now, you're saying in the contention. Yes sir.12JUDGE TRIKOUROS: Right. Okay, and you13claim that that 900 megawatts is equivalent to 9.614percent of the electricity that will be sold to retail15customers in 2015. 16MR. SHERMAN: I believe that is correct. 17I don't have that paper in front of me, but it sounds18correct.19JUDGE TRIKOUROS: So if there's 90020megawatts, and it's at 30 percent capacity factor, how21could that be 9.6 percent? Or is the 9.6 percent the22900 megawatts, and you're assuming that that 90023megawatts will always be operating? I don't24understand your numbers, that's why I'm asking.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 136MR. SHERMAN: Well, first of all, there's1more than 1,200 megawatts on the grid in wind power2alone; not including other renewables, according to3Michigan Public Service Commission. And that number4is constantly rising. It's the only major form of5energy that's being constructed. So my point isn't6that we are at a position currently with on-grid7renewables in the state that we can now replace Fermi82's base load capacity.9But, our contention is that within 1110years, with a modest investment, before this license11be renewed, we can most certainly replace the base12load power with a modest investment. DTE, from my13understanding, had some complaints about RPS when it14was first forced upon them, saying that it was not15feasible. But, from their own words, they are on16track to meet the RPS standards. And we have17movements in the state to increase that standard, and18practice strongly supportive of those measures. 19JUDGE TRIKOUROS: Now this is just a20follow-up on Judge Arnold's comments.21MR. SHERMAN: Yes sir.22JUDGE TRIKOUROS: This is an assumption on23your part. You, for example, can you point to a base24load simulation study of that? In other words, you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 137can put into a computer that I have a wind farm here1and a wind farm here and wind farm there, give it all2the specifications for wind blowing, not blowing, give3it everything in terms of repair, you know,4maintainability, reliability, do all of that. And it5will come out and tell you what the base load is. 6Now the studies that we've been shown look7like 20 percent is achievable, maybe 30 percent is8achievable. But not 100 percent. Can you point to9even a study, you indicated you couldn't point10directly to a situation in the United States that is11producing equivalent of a nuclear plant base load.12MR. SHERMAN: Actually, if you go into a13large enough area you can.14JUDGE TRIKOUROS: Can you point to a15study? Can you point to anything that is, you know,16concrete that would show this?17MR. SHERMAN: And you tell me that18concretely Fermi 2 will be running at 90 percent19power, 24/7, 365? Because if what we're trying to do20is replace a constant source of power, that's not what21we're proposing to replace. Fermi 2 has down time, as22well. The only difference is if you have a wind spill23or a solar spill, nobody dies. 24JUDGE ARNOLD: Can you control the outage25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 138time of windmills?1MR. SHERMAN: No.2JUDGE ARNOLD: Okay. Applicant, can you3control most of your downtime?4MR. SMITH: We do have scheduled outages,5yes. 6MR. SHERMAN: And unscheduled. 7MR. SMITH: Correct. 8JUDGE ARNOLD: And what is your capacity9factor, historically, do you know?10MR. SMITH: I don't know off the top of my11head.12JUDGE TRIKOUROS: And in the past, when13contentions have been, and this was pointed out in the14pleadings of the other parties, in the past when15contentions have been approved, contentions of this16exact nature, they have not been admissible through17the Nuclear Regulatory Commission. So, unless you18have something additional that you can add with19respect to concrete information that says I can shut20down this plant and it won't be a problem because of21wind.22MR. SHERMAN: I understand. Like I said,23what we're advocating for is a mix of renewables, such24as wind. According to the MSU Land Use Institute,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 139they have documented 300,000 megawatts of wind1potential on the Great Lakes. Lake Erie has some of2the best wind potential in the U.S. because of the3east/west orientation of it. 4We have massive resources available. The5only reason we cannot point to more of them is that6these resources have only recently been invested into7heavily. The position of DTE has been, in the past,8this is not reasonable. But since we passed RPS, they9have been on track to meet it. These projections are10absolutely reasonable. 11And the capacity factor of 90 percent on12Fermi, I would say, is a specious number. At least13two-thirds of that energy does go into waste heat14which, as we know, contributes to algae blooms in the15lake, and thermal discharge issues. So, with respect16to our analysis, I would agree. That fancy computer17you talked about, I'd love one. Maybe you could help18us with a grant. But in reality, NEPA requires the19Applicant --20JUDGE TRIKOUROS: You could do those21simulations. I mean, you could get somebody to do22those.23MR. SHERMAN: We would like to.24JUDGE ARNOLD: You could do that on a PC25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 140at home.1MR. SHERMAN: We would love to do that. 2JUDGE TRIKOUROS: This is not difficult to3do.4MR. SHERMAN: Perhaps some of our partners5here at the tables with more resources would be6willing to do the job that NEPA requires of them, and7we wouldn't have to be here arguing for this. 8JUDGE TRIKOUROS: Well, it would be9helpful to have hard data. 10MR. SHERMAN: One of the problems with11getting hard data on wind in Michigan is that, unlike12some other states such as Minnesota, there is no real13time reporting for wind that's required by the14Michigan Public Service Commission. I did try to get15more specific numbers for this panel. 16But between the difficulty of those17numbers to get in a concrete, verifiable way, and the18fact that we have been, basically, barred from19bringing new information, the point is with our20contention is that it is on the onus of the Applicant21to do a fair and reasonable study of alternatives. 22And we feel that it's quite obvious that their23analysis is self serving. 24And we understand. But if DTE were to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 141pull their resources from Fermi 2, stop running that1plant, and put all the resources into wind, of course2the rate payer would win. Of course the state would3win. Of course the state environment would win. What4would lose is their decommissioning fund. And it's5their choice to build a nuclear plant. 6The rate payers have already been soaked7enough with higher rates to support this monstrosity,8and we content that it is up to this Board to assign9a public hearing to allow the public to weigh in. 10We're not here to say it's time to shut down Fermi. 11Trust me, we'd like to suggest that, but we know12that's not in the scope of this hearing. 13It is in the scope of this hearing to14select a public hearing. It is time that the public15be allowed to weigh in on these facts. As we have16witnessed from these proceedings, there's lots of17unanswered questions about renewable energy, about the18potential dangers to health and the environment. But19that's why it is urgent that we allow the public to20have a say.21We're not going to figure this all out22now. But, by the fact that we don't have this all23figured out, and that there are still questions, we24strongly urge this panel, with all due respect, to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 142hold a public hearing and let the public have these1issues aired out. 2JUDGE SPRITZER: All right, let's move on3and hear from the Applicant. I'm sure they have a4different perspective.5MR. SHERMAN: Thank you, gentlemen.6JUDGE SPRITZER: Please proceed.7MR. SMITH: Thank you. Tyson Smith for8DTE. In this contention, CRAFT alleges that wind9power is a viable option. But, as we, some of the10Judges have recognized, this is a conclusory statement11that fails to recognize that, at bottom, to be12reasonable, an alternative must be capable of13replacing the 1,170 megawatts of base load generation14from Fermi 2. Any alternative that doesn't include15replacing that base load capacity is unreasonable16under NEPA's purpose and need.17Nothing in the proposed contention18acknowledges, much less disputes, the conclusion in19the ER that wind power alone is not a viable20replacement to the base load generation of Fermi 2. 21First, and our, the ER assesses whether wind, as a22discrete energy source, could replace the generation23from Fermi 2. 24It explains that a single wind farm25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 143generation unit of sufficient size to be able to,1given the capacity factors, would not provide2consistent power able to approximate base load. So3then the ER goes on to consider whether you could have4multiple interconnected wind farms over a large area. 5Whether that could approach base load capacity,6exactly the sort of analysis that Mr. Sherman is7saying that we should do.8And we did that. And we concluded that9wind energy would not be able to provide consistent10base load generation due to insufficient velocity and11duration. And there's been no showing that this is a12theoretical approach. It would commercially viable or13technologically feasible in time to replace the14generation of Fermi 2.15And that ER also explains that you could,16hypothetically or theoretically, marry wind resources17with some sort of energy storage technology, like pump18store, like compressed air energy storage, like some19sort of battery. And the ER looked at all of those20options and concluded that none of those alternatives21are sufficiently advanced, technologically or22commercially, to be able to work with wind together to23approximate base load energy.24So, at bottom, the ER concludes that wind25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 144power is not reasonable based on the lack of adequate1wind resources in the DTE service area, the2significant shortcomings and reliability of wind as a3base load energy source, the limited availability of4pump storage, and the undetermined availability of5geological formations for compressed air energy6storage.7So I think the point here is that DTE has8looked at all of these options, and has addressed them9and put forth information and a basis for its10conclusions. And at this stage in the proceeding,11it's incumbent on the Petitioners to present some12genuine dispute with those conclusions. And nothing13in there, the contention or the reply, rises to that14level. Contention 1 is inadmissible.15JUDGE TRIKOUROS: Go ahead.16JUDGE ARNOLD: Just assume for a moment17that it was reasonable to replace Fermi 2 with wind18power. Just, you know, make the assumption. Now,19what would you, how would you compare the continued20environmental impact of Fermi 2, that's already there,21already been constructed, already in operation, to the22impact of building enough windmills to replace Fermi232?24MR. SMITH: And that's a good point, and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 145that's certainly something that in our ER we also1discussed that. We talked about the impacts of2installing wind generation. It has impacts on land3use and on, you know, on birds and other mammals, like4bats. It has, requires more transmission if you're5going to have them distribute over a larger area. 6And even if you build them offshore, then7you eliminate some of those impacts. But you've got8new ones with the interference with aquatic resources9and so on. So, I think the point is that there are10impacts to wind. But in this analysis, we don't get11there, because we don't reach the point where wind is12a viable alternative.13And then I just point out, in addition14that, as you said, Fermi 2 is already built. So we're15talking about the impacts from an additional 20 years16of operation versus compared to the impact of building17new generation. 18And, ultimately, in license renewal, the19standard is whether the environmental acceptability of20the proposed action, which is renewing the license, is21whether or not the adverse impacts of license renewal22are so great 23as to making operating another 20 years unreasonable. 24And, certainly, there's nothing here to suggest that25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 146that's the case.1JUDGE ARNOLD: Thank you. 2JUDGE SPRITZER: NRC staff?3MR. LINDELL: Your Honors, Joseph Lindell4representing the NRC staff. So as we've discussed5here, I mean, in their brief standard argument here,6Petitioners have stressed that, you know, in general7wind power is a way, a viable means of generating8power. Petitioners, however, have failed to show why9the alternatives analysis in the ER is insufficient. 10And, as we pointed out, the Commission has11made clear on many occasions that an alternative's12contention, to be admissible, it has to raise a13genuine dispute with the ER such that the same stain14to the alternative can supply base load power in the15near term. And that's, for example, the Seabrook16case, 75 NRC SP42. 17Petitioners here have talked a lot about18the potential for wind power; you know, at some point19down the road, some point in the future, projects20overseas and the like. But they haven't made any21factual showing for, you know, wind power to replace22that base load generation of 1,170 milliwatts in the23near term. 24As also Petitioners pointed out, they did25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 147raise on reply, you know, in a situation where, you1know, new arguments can generally not be raised on2reply, that point to certain maps from the state that3you can access on the State of Michigan's website,4where you add up all the milliwatts generated by wind5currently, and plus some future expansions that are6planned, you do reach a number of 1,170 milliwatts or7such. 8But you know, to the extent that this is,9indeed, a challenge to the ER, there are several10problems with this. We don't know, for example, how11much of this current wind power and projected wind12power, although in the State of Michigan, is in the13DTE service area. It also assumes that, you know, all14of this wind power is now able to, basically, replace15the base load demand of Fermi, and it isn't already16supplying, you know, other demands throughout the17state.18And also, as you know, the Applicant19pointed as well here, that you know, there are20reliability issues with wind power, such as wind has21to be blowing sufficient velocity and duration. And22the conclusion in the ER was that it would, it would23not be able to do so to generate base load power. And24CRAFT has failed to challenge this. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 148I guess just the one other thing I would1bring up is the, CRAFT also mentioned the potential2for offshore wind development. They consider that to3be very favorable. Now, the ER addressed this, as4well. And, as the Applicant pointed out, there are5issues with, you know, impacts caused on the6environment by offshore. And also, the ER makes an7important point that legislation in Michigan would be8required to create such a regulatory framework for9offshore wind generation. And, as of the submittal of10the ER, they note that no such framework existed.11So this doesn't meet the standard of being12able to supply the base load power for the near term. 13You know, at the best, it's potential, it's14speculative, theoretical. But that would not meet the15contention admissibility standards. 16JUDGE TRIKOUROS: In terms of the cost of17wind, you heard what was said regarding the statement18that it was cheaper. Is this something that you can19support, that it's actually cheaper than nuclear, for20example? For example, if I went on the NEA site right21now, website, and I looked at the cost per kilowatt22hour of these different energy sources, would I find23wind that would be cheaper than nuclear? Do you have24any, do you know?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 149MR. LINDELL: I'm sorry, I can't, I can't1really provide any insight on that question.2JUDGE ARNOLD: Well, do you expect that3you would find any new build wind cheaper and more4cost effective and an already constructed nuclear5power plant?6MR. LINDELL: I also don't have the facts,7you know, to support that one way or another. You8know, I know that, you know, that you know, something9that's already constructed, you know, there are10certain, you know, cost effectiveness to that as11opposed to constructing something new. But, I mean,12other than that, other than sort of a very general13knowledge, I can't really supply anymore details on14that. 15JUDGE ARNOLD: Just one more question for16the Intervenors, in your responses, you mentioned wind17and other renewables. 18MR. SHERMAN: Yes sir.19JUDGE ARNOLD: The actual contention20statement is wind energy is a viable alternative. So21let me get this clear. You're actually saying wind22and other renewables, not just what the contention23statement says of wind.24MR. SHERMAN: For the future of Michigan,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 150I believe all renewables need to be on the table, and1whatever works best for the local environment. But,2considering that nuclear is well less than 20 percent3of the state's grid power, I would be more than happy4to stand behind the fact that if we're just talking5about replacement of Fermi, we have the resources in6Michigan to do it.7Now, is each turbine going to produce a8very specific amount for every moment it's online? Of9course not. But we don't currently have a grid system10that has perfect match of supply and demand. That's11why we already have use of the Luddington power12pumping station. That's why we already have use of13contracts with DTE and their customers such as14interruptable power supply and lower costs for off-15peak usage. 16So DTE has an opportunity to make the most17of the new energy future. Whereas, the old ways of18burning coal and nuclear are slowly transitioning out,19the new ways of making power with no pollution are20coming in. And once those resources have the initial21investment paid off, the DTE will be able to expect22windfall profits. Because there will be times when it23is generating a higher capacity factor, and sometimes24when there's lower. And the current mitigation25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 151strategies is for smoothing out supply and demand on1the grid can be applied to these future overruns and2under productions.3JUDGE TRIKOUROS: When you quote numbers4like 12,000 megawatts of wind, are you actually5quoting deliverable energy, or are you quoting6installed capacity?7MR. SHERMAN: I'm glad you asked that8question. I would like to clarify. There's a big9difference between generating capacity and the actual10real time capacity factor. I am not claiming that all1112,000 megawatts of wind power currently on the grid12is generating at that capacity at all times. That is13not our contention. 14What our contention is that, even with15relatively modest investment over the last few years,16wind energy has exploded in the state. The resources17have just barely begun to be tapped. Between on land18and offshore resources, we have more than enough to19power the entire state, let alone replacing Fermi 2. 20Will there be times when the wind is blowing a little21less in some places? Of course. But we already have22a situation where we have to sometimes massage supply23to meet demand.24JUDGE TRIKOUROS: Also I wanted to ask, I25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 152guess you again, why is it that when utilities install1wind capacity, they install an equal amount of fossil2energy? You know, for example, in California --3MR. SHERMAN: I don't know that to be4true, sir. I've read studies that say in some of the5recent months, the only generating capacity that's6been developed statewide, and in some months7countrywide, has been wind power. Wind power had8definitely been outpacing fossil fuels in terms of new9energy on the grid, from what I have studied. 10Especially here in Michigan and in other states that11are picking up the renewable portfolio standards.12JUDGE TRIKOUROS: That wasn't my question. 13I might, I might agree that more wind power is being14installed than fossil.15MR. SHERMAN: I understand your question16was why do companies build simultaneous resources in17wind and --18JUDGE TRIKOUROS: Yes, and I believe that19that's a consistent behavior.20MR. SHERMAN: That's not what I've seen,21but I'd love to see the study that can prove it. But22that's not my experience. And in some months, all of23the new generating capacity on the grid has been from24renewable resources. It's one of the only things you25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 153can build, unless you're trying to bring older plants1up to a higher generating capacity or working with2some sort of grandfather plan. New plants need to be3developed in compliance with the Clean Air and Water4Act. 5JUDGE TRIKOUROS: You know, unlike some6organizations in this world, utilities are required to7produce electricity constantly. They don't have the8luxury, anyone in this room if they lost electricity9for five days, they would be jumping all over the10utility company, suing, and they might even die. 11MR. SHERMAN: It happens all the time.12JUDGE TRIKOUROS: They might even die. 13They might even die. So there's no option. When14intermittency is installed, it has to be backed up. 15There has to be a back-up if it's intermittent. They16account for downtime of nuclear power plants by17installing combustion turbines. They account for the18down time of any plant by installing other plants.19MR. SHERMAN: So Fermi 2 has opposite or20parallel capacity to replace it if it were to be21offline is what you're saying?22JUDGE TRIKOUROS: Well, what I'm saying is23that intermittency can't be counted on. If an energy24source is intermittent, it cannot be counted on as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 154base load.1MR. SHERMAN: Understood. 2JUDGE TRIKOUROS: And therein is the3problem we're facing here. That nuclear power plants,4and I'm sure Fermi falls in the general category of 905percent capacity factor entities. So the utility does6have to account for a 10 percent downtime of those7plants. In the same way, if it built 30 percent8capacity factor assets, it would have to provide9energy 70 percent of the time using some other way. 10That other way could be a nuclear power11plant somewhere else, 70 percent of the time. And12therein lies our problem, in that we can't replace a13nuclear plant with a wind asset, and call it base14load. That would not be approved by the Nuclear15Regulatory Commission as a base load replacement. 16MR. SHERMAN: I understand what you're17saying. It is my belief that the arguments of DTE and18NRC are somewhat self serving. Of course they want to19maintain the status quo. Of course they will make20more money by keeping Fermi 2 online. But, as a21utility, their responsibility is not just to their22bottom line. Of course they have a responsibility to23their investors. 24But they also have a responsibility to the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 155rate payers in the State of Michigan. And the fact1that we already have an inconsistent supply on the2grid, and we correct for that with contracts with3customers like interruptable power and off-peak lower4rates, some of these problems, you know, maybe5exacerbated briefly in the beginning.6But we're not talking about turning off7Fermi tomorrow. We're talking about having a public8meeting to let the public weigh in on these issues. 9And there is capacity, not only in wind, but in other10factors, other sources. And we're not talking about11building capacity overnight for base load power. 12We're talking about having that base load power on the13grid. Using resources from the great State of14Michigan before the renewal of this permit in 1115years. 16Eleven years is a long time to build17storage. To incentivize individual and community18based grids and storage so that people, especially19relying on life support at home, can have the security20of an un-interruptable power supply. And we believe21that that can be incentivized and will actually help22DTE in the long term to deal with these already23existing separations between supply and demand.24JUDGE TRIKOUROS: Okay well, I think we've25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 156used enough time on this, so we heard your --1JUDGE SPRITZER: Thank you very sincerely. 2MR. SHERMAN: Okay.3JUDGE SPRITZER: Thank you for your4information. And let's move on now to the second5group of contentions. 6MS. COLLINS: If I might, one of the,7Sandy Bihn who was to defend Contention 12, which was8Group 5, has a scheduling conflict, and we would like9to request that she go on next, if that's all right. 10JUDGE SPRITZER: Does anybody have a11problem with that. Fine, that would be fine. 12MR. SHERMAN: If it pleases the Court, I13will relinquish my seat to Sandy. 14JUDGE SPRITZER: Absolutely. That would15be fine. 16MR. SHERMAN: I will be in the room if I17wish to be addressed. Thank you again. 18MS. COLLINS: Contention 12, thermal19pollution.20MS. BIHN: Good afternoon, and thank you21for allowing me to testify now. I appreciate that. 22I'm Sandy Bihn and I'm a Lake Erie waterkeeper, and I23live on the shores of Maumee Bay and Lake Erie. I've24lived there since 1987. I also serve on the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 157international joint commission board of water quality1advisor board, as well as the Ohio Department of2Natural Resources coastal advisory board, and other3boards relating to Lake Erie. 4I've worked on Lake Erie issues for the5past 20 years. I strangely --6JUDGE SPRITZER: Maybe you can move the7microphone a little bit closer.8MS. BIHN: Sure.9JUDGE SPRITZER: But not too close,10because that's the one that gets feedback.11MS. BIHN: Is that okay? Does that work? 12Do you want me to start over?13JUDGE SPRITZER: No, no.14MS. BIHN: All right. And so I've worked15with the Lake Erie waterkeeper program, which actually16serves Lake Erie from coast-to-coast from the, on the17west from Ohio and Indiana to the east to New York and18north and south from Ohio to Ontario. So I work on19the whole lake on a regular basis for the past 1020years. 21So I'm just here to kind of talk about the22water impacts of the facility, and what is different23from the 2008 environmental impacts that were24submitted then, and what's going on right now. Most25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 158of you may be aware of the fact that the City of1Toledo had a half a million people with a do not drink2advisory on August 2nd, which is the water intake on3the southern shores of Lake Erie, probably 10-15 miles4from the Fermi 2 operation.5JUDGE SPRITZER: Yes, we even had an6article in the Washington Post about that, so yes.7MS. BIHN: Well, it's been all over the8world. It's not often that people, you talk about9economic impact. The restaurants were all closed. The10hospital stopped surgeries. And it was huge in terms11of the ripple effect that that had. How does that12relate to this hearing, and what here in the13contention in terms of algal blooms and mixing zones?14The 50 million gallons, 45 average million15gallons that Fermi 2 uses increases the water16temperature by 18 degrees on average. And what that17does is that accelerates, prematurely begins the bloom18in Lake Erie. We have satellite imagery from 2011, as19verified by Limno Tech for the Army Corps of20Engineers, that basically shows that the first algal21bloom in Lake Erie actually happens in the Fermi222/Detroit Edison footprint, in their mixing zones on23the western basin in Monroe Fermi area. 24And so this starts the bloom sooner than25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 159it would normally happen. And that's particularly1significant for the Toledo situation in that we had a2very warm, or excuse me, a very cold, dry July; almost3a record cold, dry July. And yet, we had a bloom4early. Algal blooms usually start in mid-summer and5peak in September. So it's really unusual that we6would have the kind of situation that happened in7Toledo on August 2nd.8And so the explanation is beginning to9evolve that appears to be that the internal load in10the lake, the sediments already in the lake that have11a high phosphorus content, as proven by recent studies12again by the Corps and by ECT Environmental Consulting13Technologies in the River Raisin area. Actually14those, the temperature is what drives the bloom, and15starts the bloom in the beginning of the season. 16So I guess the point here is that the17acceleration of the water temperature and then18creating the bloom, the start of the bloom, can I tell19you that that bloom, what bloom means to the rest of20the lake, and does that start the bloom accelerating21across the lake? I can't say that. There's no, that22has not been studied yet. What we can say is that is23definitely where it starts. Each, almost each and24every year you get the satellite imagery. You'll see25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 160it right in the mixing zone of these plants.1So in very shallow waters, 12 and 14 feet,2it's significant. Western basin average depth is only324 feet. So this whole thing, how it cycles and how4the winds blow and move the algae around, is the kind5of complications we get and the kind of outcomes we6get. Certainly DTE is not producing the phosphorus7that is there. That's already in the sediments, as I8said, or externally coming in from the streams. 9But there is a concern that these power10plants are accelerating the blooms, and they can start11further. I mean, that's certainly a reality of what's12going on. And, at a minimum, it would be good if the13temperatures were down in the water, if somehow they14reduce that, what's causing and creating a bigger15bloom in the lake, or at least an earlier bloom in the16lake. 17JUDGE SPRITZER: How many power plants,18nuclear or non-nuclear, are there in this general19area?20MS. BIHN: In the western basin, there's21the coal fire power plant, certainly, in Monroe that22does two billions gallons of water. So it's much23larger, it's footprint is much larger than this one at2445 million. And there's Erie Township that has about25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 161135 million, it's a coal fire power plant. Besse on1the other side has 45 million. Bay Shore has2decreased theirs from 750 million to about 180 million3gallons a day.4Strangely, Bay Shore does not seem to5produce the bloom in its footprint. I live really6close to it, and it would seem like it logically7should because it's right at the mouth of the Maumee. 8But it does not. Somehow, the way the winds blow and9the currents are in the water, it would appear that in10the Monroe area, where Fermi is at, that the waters11are a little bit more stagnant. Perhaps they don't12move, and the circulation isn't quite as great. I'm13not sure, but for some reason, year after year, that's14where the bloom starts.15JUDGE ARNOLD: Well, looking at the16written contention, I can't see anywhere where you've17identified or specifically disagreed with anything in18the Fermi 2 environmental report. 19MS. BIHN: The report was based on20information before, or it was submitted 2008. The21problems with the blooms have happened since then. So22in many ways, you know, if there's more information23that comes forward and we have a problem in the lake,24which we absolutely do, and I think that's widely,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 162publicly recognized, then it would seem to be prudent1to include the reality of today, as opposed to, you2know, what was known in 2008. And because the blooms3in Lake Erie really, the record blooms have been 2011. 4The next one was 2013 and 2014. 5JUDGE ARNOLD: Let me just ask that6quickly. When was the environmental report submitted7to the NRC?8MR. SMITH: Earlier this year.9JUDGE ARNOLD: So it wasn't 2008.10MR. SMITH: No, it was not.11MS. BIHN: Well the dates, I thought, were12based on 2008. But certainly even earlier this year,13this factor in terms of what's going on would not have14been allowed. I mean, they just wouldn't have had the15information. 16JUDGE ARNOLD: See, the problem I have is17I find that it is addressed in the environmental18report, and you haven't directly challenged what's in19the environmental report. You've just said well,20there's some information that they couldn't possibly21have considered from that evaluation. 22JUDGE SPRITZER: That might be an23interesting question, but we'll maybe save it for the24staff and the Applicant of whether, what is the duty,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 163if any, to update the Applicant's environmental1report. There's obviously a duty on a Federal agency2and the need to address new or supplemental3information. I know we had at least one licensing4board that looked into that question. You'll have5three minutes for rebuttal, so why don't we move on,6and I'll ask that. 7MR. SMITH: Sure, and I'll start by8answering that question. There is currently no9obligation to an Applicant to update its ER. That's10something that, in the Diablo Canyon license renewal11proceeding that issue came up. And the Board there12concluded that there was no obligation, but referred13the issue to the Commission. And the last I heard,14the staff was still considering what, if anything, to15do with that.16JUDGE SPRITZER: So it hasn't been17resolved. Now I take it the corollary of that would18be if there's no duty on the Applicant in this case to19upgrade the ER, we can hardly insist that the20Petitioners, or if they become Intervenors, file new21contentions every time some new piece of information22comes along saying you have to update the ER when, in23fact, there's no duty to update the ER.24MR. SMITH: No, if there's new information25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 164that comes along, you have a duty, as a Petitioner, to1file new contentions in a certain period of time.2JUDGE SPRITZER: Well, if the argument3though is that the ER, they wouldn't be able to argue4that the ER needs to be updated.5MR. SMITH: The argument wouldn't be that6the ER needs to be updated. It's that the information7in the ER is incorrect. 8JUDGE TRIKOUROS: Yes, I think what Diablo9found was that the Applicant didn't have an obligation10to update the ER, but there was obligation to report11new information so the EIS could be updated by the12staff.13MR. SMITH: Correct. Yes, the staff will14still reflect it in their, their Group B documents.15Contention 12, as we heard, relates to the16effects of Fermi 2 discharges on algae. I think the17first point is the contention, as written, says that18the thermal discharges are a significant contributing19factor, and the Fermi 2 operations cause environmental20impacts that are "unknown and unanalyzed." 21Well DTE's ER, in fact, analyzes the22potential for algae blooms, including the harmful23algae blooms in Lake Erie. There's an extensive24discussion of the impacts. It describes the Lake Erie25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 165invertebrate population in the ER. It mentions the1historical occurrences of harmful algae blooms in2western Lake Erie. 3It, specifically, notes the potential for4microcystin from blue green algae, and the potential5impacts on drinking water. It describes specific6studies that have been done at the Fermi 2 outfall in7September of 2011, which found a healthy algae8community. And it notes that no algae blooms of9lyngbya or other nuisance species have been reported10at the Fermi site to due to Fermi 2's operations or11other NPDES permitted discharges. 12So, not only is there no emission, there's13an assessment in the ER of these impacts. And it14concludes that Fermi 2 is not causing or contributing15to harmful algae blooms. And that conclusion is16based, it specifically refers to a potential for algae17blooms in the vicinity of the site, and in Lake Erie18generally. 19So this is something that has been20comprehensively addressed in our environmental report. 21For their part, CRAFT offers no specific information22to controvert those conclusions. It doesn't provide23any expert or factual support. And the fact that this24is an issue of intense interest right now is not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 166enough to render it to be an admissible contention on1its own. Contention 12 is inadmissible. 2JUDGE TRIKOUROS: Do you know if Fermi 23has filed a license amendment to increase the maximum4allowable intake temperature?5MR. SMITH: I do not know if Fermi 2, I'm6not sure, for the intake temperature? I'm not aware7that they have. I don't believe that there is a8temperature restriction at present. They have not9filed anything to increase. 10JUDGE TRIKOUROS: They did not file. 11Many, many nuclear plants in the United States have12filed license amendments and have had to re-analyze13their entire design basis to account for a higher14ultimate heat sink.15MR. SMITH: Correct. And that's not a16circumstance that Fermi has had to --17JUDGE TRIKOUROS: But that hasn't happened18with them?19MR. SMITH: It has not.20JUDGE SPRITZER: Did your ER discuss the,21what CRAFT refers to as the recent water emergency in22Toledo, Ohio caused by toxin algae blooms?23MR. SMITH: No, it did not. Obviously,24that occurred after, after we filed our ER. But, as25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 167I mentioned, our ER does discuss the potential for1that to occur. It notes the occurrences of that in2the past. And it, specifically, mentions microcystin3which, if I remember correctly, was the particular4toxin produced by the algae that was this summer.5So there's nothing unique about this past6summer with respect to the existence of algae blooms,7generally. From what I understand, the, the unique8nature was that happened to occur in the vicinity of,9you know, the water intake structure for the City of10Toledo. But, more broadly, that's not a new issue,11and it was one that was considered in our ER.12JUDGE SPRITZER: All right, let's move on13and hear from the staff.14MR. LINDELL: Your Honors, the staff15wishes to stress similar to, you know, the arguments16made by the Applicant. That, in its initial filing,17CRAFT didn't make any specific challenge to the ER18that was supported by facts or expert opinion when it19came to these algal blooms. And I'm not going to go20over the entire discussion the Applicant just had21about what the ER does actually do to consider this22issue.23You know, on reply, the Petitioner did24point to the fact that studies were done in 2008 and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 1682011. There haven't been any studies since, let's1say, the crisis in Toledo or, you know, the algal2bloom last summer. Now in their argument that point3out that, they make a point that actually the4satellite images or other studies show that the5origins of the bloom are someway interrelated or6connected, start at Fermi 2. 7But, you know, the problem here is that8these arguments are new, and they were never raised9initially. And, you know, the staff doesn't, didn't10have the, didn't have the opportunity to look into11this, and to respond to, to these claims regarding,12that they're raising now. 13And still, there's no particular challenge14to the environmental report in terms of what exactly15the environmental report filed to state. What needs16to be included. you know, what particular information17needs to be analyzed that has not been analyzed. 18More studies, you know, can always be19done, but the Applicant has the burden to demonstrate20that what has been done is insufficient and that the21problem with the algal blooms in Lake Erie is, indeed,22linked in some manner to Fermi 2. 23JUDGE SPRITZER: Well, this August, 201424satellite image, does that in any way, whether it's25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 169new or not, does that in any way have any bearing on1the question of whether Fermi 2 contributes to the2algal blooms that have happened?3MR. LINDELL: Your Honor, I did take a4look at the images that were provided in the petition5and their reply. To be honest, two of the images they6say are from NOAA, I was unable to locate. The link7doesn't appear to work. The link appears to be a dead8link. The other image, you know, is from an article,9actually, from Business Insider, which I guess comes,10does initially come from NOAA. 11But, as far as I can tell, the images, you12know, show, you know, the effects of a bloom on Lake13Erie. But they don't, as far as I can tell, the14images don't show in any way, you know, linkage15between Fermi 2 and the algal bloom problem. They16don't, and they never explain how the maps show in any17way that, you know, in fact, they don't even, they18claim that the maps show there's an exacerbated19problem. But they don't show, they haven't shown in20their filing how the maps show that. 21So, to me, the maps seem very unconnected22from any, you know, challenge here in this proceeding. 23I guess the one, if I still have time, one more thing24I'd like to point out. In the past when, actually25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 170it's worth noting the Fermi 3 Board, in the CO offer1sitting there they did initially admit a contention on2algae. 3And it's worth pointing out that over4there Petitioners made specific references to studies. 5Petitioners showed that there were studies talking6about phosphorus concentrations; that they were7increasing and the Applicant, there in the ER, had8initially stated that such concentrations were9decreasing. And also there were university studies10that were referenced there.11And here, at least, in their, what they12provided to us, CRAFT has not provided any level of13detail that would reach that and be able to support an14admissible contention in this regard. I also just15note that, you know, as we've discussed here that the16staff will prepare, you know, a supplemental17environmental impact statement. And they will look at18what new data is out there. And they will analyze how19it's developed and, you know, include that in their20supplemental environmental impact statement.21JUDGE SPRITZER: Let me ask you about the22question we talked about with Mr. Smith. That is,23first of all, does the staff take the position that an24Applicant, when it learns of new and potentially25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 171skewed information relevant to a NEPA issue has a duty1to update its ER or not? Or are you still looking at2that.3MR. LINDELL: Your Honor, I'm, that is not4an issue that I am familiar with. 5JUDGE SPRITZER: You're about to get some6assistance.7MR. LINDELL: I mean, the staff's position8is that the Applicant doesn't have a specific duty to9update the ER. But we do continue to ask, request for10additional information. And through that RAI process,11we do learn more, which then allows us to include that12in our environmental impact statement. 13JUDGE SPRITZER: All right, given that14position, then what is the responsibility of the15Petitioners or Intervenors? In other words, if they16become aware of information that they say is new and17significant, do they have the duty to, at that point,18to come in and say the ER is wrong, even though it19can't really lead to any requirement to change the ER? 20Or can they wait until the draft EIS comes out, and21see whether the staff has actually taken that22information into account before they file a new23contention?24MR. LINDELL: Our position is that they do25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 172have an obligation to raise new and significant1information when they become aware of it. The ER, at2this point, is standing in for the EIS. But then, you3know, that information will then be addressed in the4EIS once we become aware of it.5JUDGE SPRITZER: Okay. All right, is this6being considered in our rule making of any sort? Or7is this just the staff's current position?8MR. HARRIS: May I address?9JUDGE SPRITZER: You can talk direct. I10mean, we don't have --11MR. HARRIS: I believe the Commission, in12the Diablo case, asked the staff to take a look at the13obligation to update the ER. So that is being14considered, that particular issue. But it's not been15finalized. The staff normally, when it becomes aware16of new and significant information, however it becomes17aware of that, it would ask RAIs to try to resolve18that so it can be addressed in the EIS.19JUDGE SPRITZER: Okay. All right, thank20you. 21MR. LINDELL: I think my time has expired. 22Does the Board have further questions? 23JUDGE SPRITZER: I don't think we do. All24right, the Petitioner's will have, CRAFT will have25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 173three minutes for rebuttal. 1MS. BIHN: I guess, factually speaking,2it's really important to know that temperature is what3drives a bloom. The blooms don't happen nine months4out of the year. What creates the bloom is increased5water temperature. There is no doubt that Fermi 26increases the water temperature by 18 degrees in the7mixing zone, the footprint of the plant.8Applicant said that the algae there is not9harmful. I beg to differ. Almost all the algae that10come in that period of time in the summer are harmful,11and contain cyanobacteria which creates the12microcystin which was the problem in Toledo. By13having an accelerated bloom at the footprint of the14plant, in the mixing zone, you have algae that's15there. 16What happened in Toledo is that algae, the17winds were perfect. They blew it from other locations18into the intake. It wasn't like the intake itself,19the area of the intake is where the bloom occurred. 20It did not. I mean, I'm sure it had some of the21blooms, I don't want to say that. But, in general, it22went down 14 feet. I was out there the Sunday after23it happened. It's a massive amount of algae.24And so we have a major problem, because25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 174the water intakes, the drinking water intakes in1western Lake Erie do not have reservoirs. So they2draw the raw water, and they take it in. It's costing3more to test and treat. And so there's a concern4about the microcystin that's in there. 5You know, these power plants have been6here a long time. You know, this problem has not7really gotten as serious as it is. As I said, the8record year was 2011. And then next ones were '13 and9'14. So this is really a new issue. It's an10important issue to, I think the fact that that11increase in temperature is where the first blooms12occur. 13It's just the way it is because it's14warmer water. And it will happen there every year15that way. And I think it's important to take that16into consideration in terms of what's happening as a17result of this facility and its operations; how it's18impacting the rest of the lake.19JUDGE SPRITZER: With respect to this20August, 2014 satellite image that I believe you21included with your reply on this contention, is there22anything you can point to that would link what the23photograph shows, photograph of a large area of Lake24Erie, specifically to Fermi 2, other than we know25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 175Fermi 2 is one of the power plants in that general1area?2MS. BIHN: The photo, the MODIS photos3that are by NOAA that are up, and they're clear when4there's no cloud cover. So that's, when you get them,5that's where they're coming from. I can give him the6link if he'd like. In terms of what you see in that7particular picture, that will change with the winds8each and every day. 9And I don't want to be facetious about10this, but the reality is the blooms happen because the11temperature changes, and it goes up. So, as far as12what the photo shows, it shows the concentration of13algae in the basin. That absolutely is the case. And14we can see that when the season starts. 15Now, at this time of the year, you won't16see the blooms. Of course, the ice begins to cover,17the algae kind of remains there dormant. It doesn't18go away in the winter. But the blooms and the problem19algae don't start until the temperatures rise. 20JUDGE SPRITZER: Okay, but temperature can21rise for a number of reason, including simply that22temperature is rising. It's getting warmer. 23MS. BIHN: That's exactly right. And the24only, the comment I have is this begins earlier25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 176because of the mixing zones. 1JUDGE SPRITZER: All right.2MS. BIHN: I mean, that's really where the3rubber meets the road. 4JUDGE SPRITZER: Okay, I think I5understand your position.6JUDGE TRIKOUROS: Have there been new7power plants built since Fermi?8MS. BIHN: There have not been any new9power plants in the basin that have been built and10have the water usage since Fermi, no. So you know,11the problem is the western basin is a very sensitive12area because of its shallowness is really what the,13that's really where the crux of it is at. 14In the rest of the Great Lakes, the water15is much deeper. Western basin average depth is only1624 feet. The outfall here is only 14 feet. So, you17know, it's really shallow water. And it becomes, as18I say, it gets sick quicker and it heals quicker. You19know, if we could get down the sources in things, we20may not have to have this discussion. 21As long as that phosphorus is in there,22the nutrients are in there, and we have these massive23blooms, we have the threat of turning off our drinking24water. That's the reality of it.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 177JUDGE SPRITZER: All right, let's move on1to the next contention, or in this case group of2contentions. That would be Contentions 4, 5, 6 and314. I take it we'll be hearing from Mr. Schonberger. 4I guess we can take a 10 minute break. So we'll get5started with you as soon as we get back in 10 minutes.6(Off the record.) 7JUDGE SPRITZER: And we will proceed to8hear argument on Contentions 4, 5, 6 and 14 from Mr.9Schonberger. Would you like to reserve three minutes10for rebuttal?11MR. SCHONBERGER: Yes sir, Chairman, thank12you. Three minutes for rebuttal. Chairman Spritzer,13Judge Trikouras, Judge Arnold, my name is David14Schonberger, for the record. And volunteer to service15as an agent representative for the pro se Petitioner16CRAFT in this proceeding in order to help the Board17gain a better understanding of our pleadings and where18we are coming from for the public record.19With full disclosure, I am not prepared20today to provide the quality of an oral argument of an21expert witness, so please confine your questions to22Part 2.309. I must point out, for the record, that23our groupings, our grouping arrangement was based on24the goal of maximum public participation, rather than25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 178contention similarities, per se. So this allows us,1this grouping allows us to have the most members of2the public as we can to participate.3And Mr. Sherman, for his part, did an4excellent job of answering the panel's certainly5adversarial, possibly prejudiced, as well, questions6that were in the nature of an evidentiary hearing of7an admitted contention, beyond the scope of Part82.309(f)(I). And the nature of the panel's questions9demonstrated that an evidentiary hearing is warranted.10A concise statement I have pertaining to11the staff's Motion to Strike, the NRC's Motion to12Strike the incorporation by reference arguments from13CRAFT's reply brief. We content that in a14hypothetical, board clarified and narrowed admission,15it would be reasonable and consistent with the16Administrative Procedure Act to combine the17overlapping and parallel contentions together, in18order to conduct a concurrent adjudication.19We content that proposed Contentions 6, 5,20and 4 in this grouping, 6, 5, and 4 correspond,21respectively, to the joint Petitioners' proposed22contentions 1, 2 and 4, respectively, in an apples-to-23apples fashion, alleging essentially the same24fundamental concerns. Mr. Lindell, for the staff,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 179mentioned earlier that the staff, the Applicant did1not have the opportunity to reply to, allegedly, new2arguments. 3And, Chairman, as we pointed out in the4answer to the Motion to Strike, we remind the panel of5Judge Spritzer's panel's admission of Contention 15 in6the Fermi 3 COLA proceeding. As we pointed out in the7answer to the Motion to Strike, the panel permitted a8subsequent round of replies, subsequent round of9replies, and did not rule out presentation of new10arguments in the reply brief, based on that procedural11deficiency. So, as that would pertain to Contention1212 just argued --13JUDGE SPRITZER: Well, let me ask this.14MR. SCHONBERGER: Yes.15JUDGE SPRITZER: Maybe we can move things16along a little bit. These four contentions that17you're arguing seem to overlap, to a considerable18extent, with the ones presented by Beyond Nuclear and19the other joint Petitioners as we've called them. Are20there any material respects in which your, these four21contentions differ from what the joint Petitioners22presented us with in their petition and here this23morning? Do you have anything to add, in other words,24to what we've already heard from them?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 180MR. SCHONBERGER: We would stand by the1answer that, in an apples-to-apples fashion, 6, 5, and24 of CRAFT correspond, respectively, to 1, 2 and 4 of3the joint Petitioners, alleging essentially the same4fundamental concerns. And it is the, it is the Board5panel's prerogative to narrow and to clarify proposed6contentions for admissibility. 7JUDGE SPRITZER: Okay. Why don't we move8on now, and hear from the Applicant if you have9anything to add to what you've already said this10morning about the very similar contentions filed by11the joint Petitioners.12MS. REDDICK: Thank you, Your Honor. 13Derani Reddick for the Applicant. I'm not going to14repeat everything that we went over this morning. 15JUDGE SPRITZER: Thank God.16MS. REDDICK: But I will say that I17believe the CRAFT petition provides even less18specificity, and provides even less basis than what we19talked about this morning. For example, Contention 420for CRAFT, this is the loss of offsite power, doesn't21even cite to the ER. There's no reference to any22specific SAMA in the ER. There's just, there's23nothing there that alleges a specific deficiency.24With respect to Contentions 5 and 6, in25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 181particular, their challenges to the compliance with1post- Fukushima orders. I don't think we talked about2that too much so far today. I will say that those are3current operating issues. Those orders amended the4licensing basis for the plant. They are, therefore,5outside the scope of license renewal. 6In fact, with respect to Contention 5,7that is regarding spent fuel pool instrumentation, my8understanding is that the plant is required to have9that implemented by November of 2015, but has actually10just installed that instrumentation this past week. 11So that's already in effect. 12JUDGE SPRITZER: Are any of those orders13that DTE is contesting in any way? That is contesting14their applicability to Fermi 2?15MS. REDDICK: No. Lastly, really just16with respect with Contention 14 of CRAFT, this again,17this is not one that is being alleged to have a18specific overlap with any of the earlier contentions19we heard today. This is a challenge, essentially, to20the treatment of spent fuel pool accidents as a21Category 1 issue. 22And we have already talked about that;23about the inability to challenge a Category 1 issue24absent a waiver that the Petitioners have not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 182requested. This contention also asks, I believe, the1words are for seeking a rehearing or reconsideration2of the Board's decision in the Pilgrim license renewal3proceeding, which clearly is outside the scope of this4proceeding.5JUDGE SPRITZER: All right. Thank you. 6Does that staff have anything to add on these four7contentions beyond what you've already told us?8MR. WACHUTKA: Yes, Your Honor. This is9Jeremy Wachutka from the NRC staff. First of all, I'd10like to say that there is a significant difference11between proposed Contentions 4, 5 and 6 and the other12contentions we previously spoke about. All three of13these contentions, basically in their very first line,14they are challenging the implementation of Fukushima15orders. 16Whereas, the previous contentions that we17discussed do not challenge the implementation of18Fukushima orders. And this sort of challenge is19outside the scope of this license renewal proceeding. 20These Fukushima orders were immediately effective,21meaning that upon their issuance in 2012, they current22licensing basis for Fermi 2 was modified consistent23with these orders.24Now, therefore, any discussion of these25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 183orders with respect to Fermi 2 is, effectively, a1discussion of Fermi 2's current licensing basis. In2the Turkey Point proceeding, CLI 01-17, and the3Pilgrim proceeding, CLI-07-13, the Commission4explained that the scope of license renewal safety5contentions is limited to issues of aging management,6and not issues with the current licensing basis. 7Therefore, CRAFT's discussion about the8implementation of these Fukushima orders is outside9the scope of this license renewal proceeding. And for10that reason alone, they are inadmissible. 11Additionally, Your Honors, CRAFT attempts to avoid12this result by arguing that its safety concerns13regarding the implementation of these orders may14affect aging management plans.15However, this argument fails for numerous16reasons. First, the period of extended operations for17Fermi 2 would begin in March, 2025. The Fukushima18orders required all licensees, including DTE, to19provide the NRC with their plans for implementing20these orders. DTE has provided that it would complete21the orders by 2016. Therefore, the actual22implementation of these orders will occur before the23Fermi 2 period of extended operations begins. And24thus, their implementation is not an issue within the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 184scope of this license renewal proceeding.1Second, CRAFT asserts that DTE's aging2management plan fails to address equipment aging3issues in the context of multi-unit facilities. 4According to 10 CFR Part 54, aging management plans5must demonstrate that the effects of aging will be6adequately managed so that the intended functions of7the system structures and components within the scope8of Part 51 will be maintained consistent with their9current license basis for the period of extended10operations.11However, CRAFT has not explained how the12existence of a Fermi Unit 3 would affect the intended13functions of the Fermi 2 components that are required14to be managed for aging. Therefore, CRAFT has not15demonstrated that proposed Contention 4 is within the16scope of this license renewal proceeding. 17Otherwise, Your Honors, the other18arguments that we discussed with proposed Contention195, having to be a challenge to a Category 1 finding20and, therefore by rule, outside the scope of these21proceedings. And proposed Contention 6 does not22satisfy 10 CFR Section 2.309(f)(i)(V) because, for23instance, CRAFT identifies the National Academy of24Sciences report, but it does not explain how report25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 185supports its argument in any way. It just attaches it1to its pleading.2Finally, proposed Contention 4 explicitly3asks for this Board to reconsider a Commission4finding. And since Commission findings are binding5upon this Board, this is not something that the Board6has the ability to do. So therefore, proposed7Contention 14 is also inadmissible. And for these8reasons, all of these proposed contentions are9inadmissible. 10JUDGE TRIKOUROS: The Contention 4, on11page, the petition at 17, says the Petitioner submits12that the Applicant's SAMA analysis and overall license13renewal application hastily fails to comprehensively14analyze reasonable foreseeable links, consequences and15mitigational terms. I'm going to ask later for16clarification. 17But one way to read that is to ask the18question should the SAMA analysis, specifically the19PRA in the SAMA that uses, that the SAMA uses, doesn't20take into account flex strategies and, you know,21various other changes to the plant that are being22implemented as a result of those orders. 23Now, I think I can say that's true. But24I don't know that the NRC is going to require that. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 186I haven't seen anything that says they will. Could1you address that? 2MR. WACHUTKA: Well, Your Honor, with3respect to multi-unit events in the SAMA analysis,4like we just --5JUDGE TRIKOUROS: I'm not talking about6multi-unit now. I'm talking about any individual7unit, when they do a PRA, they have you know the8sequence studies that they do. They would include9options that are associated with flex strategies if10they had them in the PRA, right? They would say11System A, System B, System C fails. You know, now the12core is heating up. Gee, I have flex strategies that13I can implement now to keep the core from heating up. 14Why wouldn't I do that? That isn't done up to now. 15MR. WACHUTKA: Right, okay so Your Honor,16in reply to your question, I think the issue is that17the PRA's haven't been updated with these orders that18have been put out that you're discussing with the flex19plan and such. But if they had, these orders have20been found to be beneficial. So in any way that they21would affect the PRA analysis would only be to show22that the plant was safer, and not less safe. 23JUDGE TRIKOUROS: Yes, I understand that. 24But the statement in the Petitioner's, in the numerous25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 187petitions says you haven't included them. They're1saying it's a omission. You haven't included that. 2At least that's how I read it.3MR. WACHUTKA: Well --4JUDGE TRIKOUROS: Is there any plan in the5future to require licensees to do that? Or is that up6to the licensee on a case-by-case basis?7MR. HARRIS: Your Honor, if I may address,8I mean, that particular, that particular issue of9updating PRAs is within the control of the licensees. 10So, for they, if they're going to use it for some risk11informed kind of license amendment, you know, they12would have to be updating PRAs to show the latest13licensing basis. 14These PRAs were last updated before these15most recent changes. But the expectation, at least in16terms of SAMA analysis is whether or not the analysis17was reasonable. And you know, in light of what the18flex strategies are meant to do, it's not likely to19show that one of the mitigation measures would, all of20a sudden, become potentially cost beneficial, you21know, if you're accounting for this increased level of22redundance potential to mitigate a core accident.23JUDGE TRIKOUROS: All right, so you're24saying it would make it better. It's adequate now. 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 188No requirement for them to do it.1MR. HARRIS: Well, it's reasonable under2NEPA.3JUDGE TRIKOUROS: I understand.4MR. WACHUTKA: And another issue, Your5Honor, is that they, CRAFT in this case appears to be6challenging these orders. And yet, this is not the7proper forum in which to challenge the orders. Under810 CFR Section 2.202, within 20 days of the orders9being issued they could have been challenged. And, in10fact, some of them were, in the Pilgrim proceeding,11challenged the orders. But the license renewal12proceeding is not the place to challenge these orders.13JUDGE TRIKOUROS: I understand. 14JUDGE ARNOLD: I'm just a little bit15confused by some of these contentions in that they're16listed as environmental contentions and, yet, several17of them have to do with whether or not we, the18licensee has implemented requirements of orders that19are, basically, safety enhancements. And I'm20wondering how to you come to it being an environmental21contention when it's really a current licensing basis22challenge?23MR. SCHONBERGER: Yes, I hear your24question. And primarily, the overlapping with the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 189joint Petitioners is an environmental contention of1omissions of a proper station blackout SAMA analysis. 2However, we do use Part 54 language to, as background3support, to allege the importance of consideration of4these so-called out-of-scope transmission lines and5the out-of-scope corridor.6Because we, fundamentally, dispute the7Applicant's finding in the LRA that Unit 2 is supplied8by physically independent sources of offsite power,9which could qualify as separate. And the public10should be able to reasonably anticipate and expect11that the offsite AC power supply transmission system12must be within the scope of the environmental review13and the safety review for the period of extended14operation, which must presume the Fermi 3 COLA as it15actively stands pending. So we do borrow language16from Part 54.17As the intended function of this passive18system, the transmission lines and corridor, the19intended function is to ensure reliable and20uninterrupted AC electric power supply, and the AEA21mandated safe operation of Unit 2 during the period of22extended operation. And should, therefore, be a23necessary basis for establishing an AEA mandated24reasonable assurance finding for pass system25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 190structures and components that are or principal1importance to safety.2JUDGE ARNOLD: So, for instance in3Contention 5, spent fuel pool instrumentation, are you4saying that when they have fully installed the5instrumentation, the environmental impacts will become6more severe? Or are just saying they haven't properly7characterized the environmental impacts?8MR. SCHONBERGER: Well, Judge Arnold, if9we're moving in to Contention 5, the genuine dispute10with the Applicant's LRA finding, which they made11pursuant to 10 CFR Part 51.95 and Turkey Point,12pursuant to 51.95 and Turkey Point, the Applicant13determined that no new and significant information14exists as it relates to onsite storage spent fuel such15that further analysis would be called for and required16by a hard look requirement.17So, CRAFT would allege that unique and18special circumstances exist which, effectively,19preclude the Applicant's claim of entitlement to20incorporate the Category 1 generic determinations of21NUREG 1437 which is codified in Table B(1) and applied22in Part 51.53. 23JUDGE ARNOLD: Okay, thank you.24JUDGE SPRITZER: All right, I think we25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 191have concluded our discussions of those four1contentions. Let's move on to Contention 2 and Ms.2Collins.3MS. COLLINS: Greetings. I'm Jessie4Collins, and Contention 2 is that Walpole Island First5Nation have been excluded from the NRC proceedings. 6As we stated in the original petition, all sovereign7Indian tribes are grated automatic standing in NRC8proceedings. 10 CFR 51.28(a)(5) says that NRC has the9legal obligation, under NEPA, to notify those tribes.10That didn't happen because the NRC decided11that Walpole Island are Canadians. Wrong. They are12on unseated lands in between Canada and the United13States. Some imaginary line that someone drew says14they're on the Canadian side. But these are unseated15lands. There are treaties governing these people. 16JUDGE SPRITZER: Let me ask this. What,17at what point do you contend the NRC was required to18notify the tribe, and what were they required to19notify them, what they were required to notify them20of, and at what point in time?21MS. COLLINS: Of the hearing and of the22plan to, of Fermi's application. The tribe should23have government-to-government status with the United24States. They have treaty rights on the western basin,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 192and on the lands were Fermi are situated. The tribe1is within the 50-mile radius. And so, therefore, they2definitely should have standing, besides being a3nation. 4JUDGE SPRITZER: As a practical matter, is5the tribe aware of this proceeding now? 6MS. COLLINS: I beg your pardon.7JUDGE SPRITZER: Is the tribe aware of8this proceeding now, if you know?9MS. COLLINS: Yes. The tribe is aware of10the proceedings now, but --11JUDGE SPRITZER: Have they moved, to my12knowledge, they haven't moved to intervene. You may13have some members of the organization that are tribal14members. In fact, I think you indicated that some15are. But we don't have the request by the tribe to16intervene, at least not yet.17MS. COLLINS: I beg your pardon.18JUDGE SPRITZER: We don't have, at least19not yet, an application from the tribe itself, to20participate, do we? I haven't seen any such request21in this proceeding.22MS. COLLINS: No, in the Fermi 3, they are23part of our request. In the Fermi 3 proceedings, they24tried to be involved, and the NRC ruled that they were25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 193Canadians, not Americans so, therefore, they had no1say. So they did not apply for the Fermi 2 because of2the previous ruling. But we're representing them. 3Some of their tribal members are our members.4JUDGE SPRITZER: So you represent some5members of the Walpole Nation?6MS. COLLINS: Yes.7JUDGE SPRITZER: Okay.8MS. COLLINS: And the Boundary Waters9Treaty, Article 3, sets out that the international10joint commission should deal with any issues involving11the waters. The thermal pollution that Sandy Bihn12talked about, those waters, that is affecting Walpole13Island as their fishing rights. I'm limited to three14minutes. 15JUDGE SPRITZER: No, you're not.16MS. COLLINS: But what I want to say, what17I want to say is these people are on an island. 18Should anything happen, go wrong God forbid, at Fermi192, they're doomed. In my mind, this is the same as20committing genocide, if you have people that you're21polluting their waters. They are in prevailing wind22direction. The air is going there. 23Their fish are being polluted. Fermi 324has a plan to dredge the tributaries where the fish go25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 194up to spawn, which is another issue. But we're here1to get a hearing so that we can air all these2disputes.3JUDGE SPRITZER: If we had such a hearing,4what precise arguments would you present on behalf of5your members who are also members of the Walpole6Nation?7MS. COLLINS: That their lives and8livelihood are endangered, would be further9endangered. That this is a violation of international10law and international treaty rights. And that they11need to be a full partner in the hearings, not just12us, not just CRAFT representing a few of their13members.14JUDGE SPRITZER: Well, we can't, we can't15make somebody a member. Normally what happens,16whether it's an Indian tribe, a state part of the17organization such as CRAFT, whatever, we don't make18them parties. They apply to be parties, as you have19done. I'm not, I'm trying to understand the20contention. I mean, if they want to apply to be21parties, the tribe wants to apply to be a party to22this proceeding, it can do that. But at least as I've23seen so far, they haven't. Do you have any reason to24think they are inclined to do that in the near future?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 1951MS. COLLINS: Since their past application2was not respected, they did not apply. They have a3representative here today that's observing this4hearing, a tribal representative. 5JUDGE SPRITZER: I mean, they would have6to meet, if they want to file contentions, they would7have to meet all the requirements that your8organization has to meet, and the joint Petitioners9have to meet. But there's no impediment that I know10of that would prohibit them from filing a petition and11having a board, this Board presumably, review their12contentions and decide if they're admissible or not. 13But until they actually come forward with14some contentions, I'm not sure if there's anything we15could do without their taking that initiative. All16right, continue. I don't mean to cut you off. Was17there anything more you wanted to tell us about this18contention?19MS. COLLINS: Well, just in our, the20Motion to Strike, the NRC staff said that we were21bringing up new information. We did not bring in any22new information. We just clarified things and alluded23to the Boundary Treaty, and other treaties, but I24didn't say exactly what. And so, I want to ask the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 196Court that the Motion to Strike be eliminated because1our arguments need to, are viable, and they need to2stand, and we need a hearing.3JUDGE SPRITZER: Well, you said that there4were some members of the Walpole Nation that are5members of your organization. Now, are there specific6deficiencies that you've identified in Contention 2,7either the original contention or in your reply,8specific deficiencies in the environmental report9related to the Walpole Nation, other than this failure10to provide notice issue. Things that you content11should have been included, should have been discussed12in the environmental report concerning the Walpole13Nation that weren't covered?14MS. COLLINS: I'm not sure of your15question.16JUDGE SPRITZER: Okay. Are you familiar17with the environmental report that was prepared?18MS. COLLINS: Yes.19JUDGE SPRITZER: Did you look through that20to see if there was any discussion of the Walpole21Nation concerns?22MS. COLLINS: No, there was not. They,23the environmental report talked about the black areas24and there was no problem and things. But they did not25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 197talk about Walpole Island as under environmental1justice. And they said, in the Motion to Strike, that2I hadn't even brought in in the petition, in the3original petition environmental justice issues. 4I had a whole contention on Walpole Island5being excluded. And I'm not a lawyer, you know. But6you would think, with the whole contention being about7them being excluded, what else could that be besides8environmental justice? But obviously, common sense is9not part the items. 10JUDGE SPRITZER: Did you look in, all11right.12JUDGE ARNOLD: My understanding is that13the notice of opportunity for a hearing actually14doesn't go out to any individuals or groups or tribes15or governments. It's just published in the Federal16Register. So, and it's not until after that that the17Commission starts the review of the environmental18report. And it's in, yes, 10 CFR 51, the NEPA part,19that tribes have to be notified. 20But it just seems that, from the steps,21you know, applications submitted, application accepted22and the notification going into the Federal Register,23and then the start of the NEPA review, that you24wouldn't expect the tribes to be notified at the stage25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 198of the notice of the opportunity to intervene. So can1you tell me, did any group get a notice?2MS. COLLINS: Yes. Eighteen, they3notified 18 federally recognized by the United States4Government tribes, including tribes that, three tribes5in Oklahoma, two in Wisconsin, several around the6State of Michigan.7JUDGE ARNOLD: Were they notified of the8opportunity to intervene, specifically?9MS. COLLINS: Yes.10JUDGE ARNOLD: Thank you.11JUDGE SPRITZER: But the Walpole was not12one of those 18. Is that correct?13MS. COLLINS: I beg your pardon.14JUDGE SPRITZER: The Walpole were not one15of those 18?16MS. COLLINS: Right. And Walpole Island,17being within the 50 mile radius, was not notified. 18And then the staff, who was so cavalier as to write in19their reply to strike that well, it was published in20the Federal Register, therefore they should have21known. Like the world reads the Federal Register to22find out what's going on, or what's planned to go on. 23Pretty cavalier, I thought.24JUDGE SPRITZER: Well, that is the law, to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 199some extent. It may seem a bit harsh and unfair, but1generally notice in the Federal Register is considered2notice to the world, whether the world reads the3Federal Register or not. Let's move on and hear from,4all right, let's hear from the Applicant on this5contention.6MS. REDDICK: Thank you, Derani Reddick7for the Applicant. CRAFT Contention 2 is8inadmissible. It, essentially, alleges a deficiency9that's focused on the NRC staff actions; nothing that10is specific to the environmental report, or the11obligations of DTE. There are two flaws with this12argument. 13First is that the challenge is premature,14as you're asking Your Honor, regarding the timing of15when this notice should happen. The staff's16environmental process is still ongoing. It is not yet17complete. The Commission has ruled, in a similar18proceeding in Crow Butte, that a similar challenge or19a contention that was challenging the staff's NEPA20process was not right because the staff had not21completed its process.22Second, even if that claim were right, the23obligation to notify does not extend to any tribe,24other than a U.S. federally recognized tribe, which25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 200the Walpole Island First Nation is not. So,1ultimately, this claim is really based on what the2staff is obligated to do, which is still an ongoing3process. There is no deficiency in the ER. The4Petitioners do not allege any deficiency in the ER. 5In fact, the ER very specifically states6that the Applicant, DTE, did notify several tribes. 7They sent letters to several tribes notifying them of8the environmental process for the Fermi 2 license9renewal application. And notifying them of the10opportunity to participate in that environmental11process. This is described Table 9.1-2. It's also12described in pages C-15 to C-34 of the environmental13report.14JUDGE SPRITZER: So was the Walpole one of15those tribes?16MS. REDDICK: Yes they were.17JUDGE SPRITZER: They were. Okay.18MS. REDDICK: Yes. 19JUDGE SPRITZER: And response, if any, did20you get from them?21MS. REDDICK: None.22JUDGE SPRITZER: Let me ask this on23Contention 2. Is there any mention in the24environmental report of Native Americans hunting or25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 201fishing near the site, the Fermi 2 site?1MS. REDDICK: I believe the environmental2report discusses, in the environmental justice section3that there are no subsistence fishing or farming that4goes on within the vicinity of the site. 5JUDGE SPRITZER: How did they arrive at6that determination?7MS. REDDICK: I can't say offhand, Your8Honor. With respect to the issue, though9specifically, as you asked, the environmental justice10discussion of the ER was not something that was cited11in the Petitioners' original petition. This was only12something they raised in the reply which is why the13Applicant supported the staff's Motion to Strike on14this point.15JUDGE SPRITZER: Right. I understand your16position on that. Let me ask a related question. 17Sorry, Mr. Smith can maybe point us to the, okay, you18don't have anything else to add to my earlier19questions at this point?20MS. REDDICK: With respect to your earlier21question, the ER does state that there are no Indian22reservations or Native American controlled areas23within the U.S. portion of the 50-mile radius of the24site. And that is page 3-5. And the Walpole Island,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 202it does talk about the Walpole Reserve being a parcel1of land that extends beyond, beyond that region.2JUDGE SPRITZER: Okay, on environmental3justice, I seem to remember there was an issue at one4point; maybe it's been resolved, whether the ER had to5discuss environmental justice at all. But I take it6your ER did, so I guess that's really not an issue7here. Unless you have anything further, let's move8over to the staff. This is really, as you said, more9their issue, perhaps, than yours. Why don't we hear10from the staff on Contention 2.11MR. LINDELL: Your Honor, Joseph Lindell12representing the NRC staff. First I'd like to just13say that, as the Applicant stated, the contention14needs to challenge something in the application,15whether safety related or environmental. And here,16it's hard to see the challenge to the application. 17Let me then, try then to explain a little18bit about the process here so, you know, after the19application is, you know, an accepted document, there20is a notice published in the Federal Register of the21opportunity to intervene. There's, now, I don't22believe that, you know, that notice is anything but a23Federal Register notice. We don't send out, you know,24specific notices of that opportunity to particular25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 203tribes or other individuals.1Now, what we do do is for the2environmental scoping process, we do send out a notice3providing them the opportunity to participate, to4federally recognized tribes, though you know, the5Walpole Island First Nation is not listed in the list6of federally recognized tribes. We also contact7individual tribes per the National Historic8Preservation Act. And that's another process that --9JUDGE SPRITZER: When does that occur?10MR. LINDELL: I'm not positive of the11exact thing. Someone, hopefully, will correct me if12I'm wrong. I believe that that, that we did already13send out the notices for the both the National14Historic Preservation Act and for the, and we did also15did the scoping process. 16JUDGE SPRITZER: Now, is that something17the staff does because it's required to, or simply as18a matter of courtesy, giving the tribes an extra bit19of notice that maybe isn't required by law?20MR. LINDELL: In our regulations, we are21required to send out a notice to Indian tribes for the22environmental scoping process. 23JUDGE SPRITZER: All right. I take it24it's your position that you weren't required to do25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 204that with respect to the Walpole?1MR. LINDELL: We were not required to do2that with respect to the Walpole. 3JUDGE SPRITZER: Because?4MR. LINDELL: Number one, they're not a5federally recognized tribe. And number two, as6actually the Fermi 3 Board recognized in a prior7proceeding, that our NEPA process, according to our8Regulations 51.1 and 51.10, it doesn't look at9environmental affects on foreign nations. And, you10know, Walpole Island being in Canada, would not,11indeed, be included. 12However I want to stress that, you know,13the Walpole Island First Nation had, indeed, not been14excluded, you know, from the EIS preparation process. 15Because, actually toward the end of September, the16chief of the Walpole Island First Nation sent the NRC17a letter, asking to review the license renewal process18to ensure that its rights to hunt and fish were,19indeed, protected.20And the NRC responded to this letter and21the response, essentially, raised three things. 22First, they provided general information about how the23license renewal process works. And invited, most24importantly, invited Walpole Island to comment on the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 205draft supplemental environmental impact statement when1that is issued in mid-2015. And also pointed, just2pointed out that DTE stated that it has no plans to3alter Fermi 2's current operations during the license4renewal period.5So we would say that, you know, although6we were not required and did not contact the Walpole7Island initially, we have, you know, responded to8their request to be included, and we welcome, you9know, their comments on this process. 10JUDGE SPRITZER: Let me just ask this. 11Suppose they had filed a Motion to Intervene in this12proceeding, is there anything that would exclude them? 13Would the fact that they're not an American listed14tribe make a difference?15MR. LINDELL: No, no. They would not be16excluded from the process, from the proceeding. I17mean, they would have to, you know, they would have to18show standing as, you know, any other group. But, you19know, they would not certainly be automatically20excluded. I'd like to also point out, though, that21they don't have automatic standing. 22You know, our regulations do provide for23that in very specific instances. That, number one,24they have to be a federally recognized tribe, and25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 206number, the action, the federal action has to be1taking place on the tribe's land, which is not the2case here. But they certainly, you know, could have3filed a Petition to Intervene, and you know, and that4would be looked at as any other Petition to Intervene.5JUDGE SPRITZER: With respect to the6environmental justice issue, I understand your7position in the Motion to Strike. But that's not8properly before us. But leaving that aside for the9moment, how does environmental justice work in the10context of a non, a tribe whose members may use land11or water, whatever, in the vicinity of a nuclear12facility, but the tribe itself is not an American13federally listed Indian tribe?14MR. LINDELL: Your Honor, I don't know the15answer to that specific question. What I can say is16that CRAFT would have to, you know, demonstrate that17the Walpole Island is, indeed, such a minority18population that would be disproportionately impacted. 19And it's worth noting, at least, that what the ER20concluded with regard to environmental justice is that21there will be no significant offsite impacts created22by the license renewal of Fermi 2.23And they base this conclusion on the24analysis of all of the various other Category 225NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 207issues, which are looked at in the ER. And they talk,1also, about previous radiological environmental2sampling. So I would say that, you know, aside from3the fact that CRAFT has not really made, you know,4provided facts to support, you know, the tribe's5status as, you know, sort of a low-income population6group that has to be examined, nonetheless, I think7that, you know, the ER's conclusions would extend them8to, as well.9JUDGE SPRITZER: Let me ask this. Does10the staff, as I said earlier, I seem to remember some11debate some time ago as to whether an ER was required12to address environmental justice. Has that now been13resolved? Is it clear that the ER should consider14environmental justice issues?15MR. LINDELL: Yeah, so if you look at16Table B(1), which talks about the Category 1, Category172 issues.18JUDGE SPRITZER: Sure.19MR. LINDELL: So it does list20environmental justice as a Category 2 issue such that,21you know, the ER then would look at that. And then22the staff, as well you know, in the environmental23impact statement it prepares.24JUDGE SPRITZER: Okay.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 208MR. LINDELL: I think --1JUDGE ARNOLD: I'm not sure that's2correct. I know the ER is required to provide3demographic input to the environmental justice report,4but I believe somewhere in 10 CFR, in the Federal5Register the policy on environmental justice, it6outlines what the requirements are. 7MS. COLLINS: I have it here. Executive8Order 12898, published in the Federal Register, Volume959, No. 32, which I'm sure you've all read, states10that each Federal agency shall conduct its programs,11policies and activities in the manner that ensures12such programs do not have the effect of excluding13persons from participation because of their race,14color or national origin. That's Section 2.2. 15Section 5.5(b) says Federal agencies must16provide translations of their documents for limited17English speaking populations. I just thought I would18throw that in because most people, a lot of people do19not speak English on Walpole Island. 20JUDGE SPRITZER: Okay, thank you. Does21the staff have anything else to add on this22contention?23MR. LINDELL: Your Honor, I would say just24that, you know, in its reply, also, CRAFT raised25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 209violations of the Executive Order that Ms. Collins1just read from. As far as we're concerned, we haven't2seen any factual support for any violation, you know,3of that Executive Order or the Michigan Executive4Directive, which they also raised, which places5requirements on the state Department of Environmental6Quality, the Michigan state department. But it7doesn't place any obligations on anyone else, as far8as I can tell. 9And, other than that, and also, I did look10the treaties that are mentioned in the petition and11the reply, and I didn't see any particular, you know,12obligations in those treaties that the, that the staff13was, you know, not in compliance with relative to this14license renewal proceeding. 15JUDGE SPRITZER: Let me ask this. Does16the staff have a position on the SAMA analysis insofar17as whether the SAMA analysis is required to consider18environmental and public health impacts beyond the19border of the United States?20MR. HARRIS: Your Honor, may I answer21that. The SAMA analysis models the 50-mile radius22around the plant. It doesn't account for borders. So23it would be looking at populations outside 50 miles,24the clean ups of contamination, using U.S.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 210requirements. So it is modeling the consequences of1an accident anywhere within that 50-mile radius around2the plant. 3But you know, in terms of I think this4particular issue, for purposes of the SAMA in terms of5your dose, it doesn't, you status doesn't matter in6terms of what the dose cost conversion is of persons7or the person for purposes of the SAMA. 8JUDGE SPRITZER: So if a 50-mile radius9extends into Canada, it doesn't change how you do the10analysis?11MR. HARRIS: It does not change how you do12the analysis. You model the same 50-mile radius.13MR. SMITH: And I can just confirm that14that's what the Fermi 2 SAMA analysis did. It modeled15the population within 50 miles irrespective of the,16whether that location was within the United States or17Canada or the Walpole Island. 18JUDGE SPRITZER: Okay. So DTE did include19Canadians within 50 miles in its estimated cost of a20severe accident?21MR. SMITH: Absolutely.22JUDGE SPRITZER: All right. Now someone23just pointed out to me that the ER, at page D-96,24lists only 560 people northeast of the site?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 211MR. SMITH: That's in the particular1quadrant, yes. And that's in the --2JUDGE SPRITZER: Which page are you on?3MR. SMITH: D-96. 4JUDGE TRIKOUROS: Ms. Collins, while5they're looking at that, the United States does6recognize the Walpole Nation, you said --7MS. COLLINS: As a United States federally8recognized tribe.9JUDGE TRIKOUROS: What about Canada? Do10they recognize the Walpole Nation as a recognized11tribe? Do they have such a list there?12MS. COLLINS: They're on the imaginary13line that says they're in Canada. But --14JUDGE TRIKOUROS: So the Canadian would15have them on their --16MS. COLLINS: No, they were, well they're17not Canadians. They're unseated land. They ran for18safety when troops were, you know, gathering up, well,19it's unseated land.20JUDGE TRIKOUROS: So they're listed status21is the same with Canada as it is with the United22States, basically. Is that what you're saying? Sort23of unlisted in either country.24MS. COLLINS: Recognized by Canada, yes.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 212JUDGE TRIKOUROS: I'm sorry.1MR. SHERMAN: They are recognized by2Canada.3MS. COLLINS: And they --4JUDGE TRIKOUROS: They are recognized by5Canada.6MS. COLLINS: They wrote, I have a copy of7a letter that they wrote to the Canadian government8objecting that, because they weren't in, allowed in9the Fermi 3 proceedings. But the Canadian wrote back10and said oh well, that's the United States business,11and we're not getting into it. 12They asked them to intervene on their13behalf. But that, but I guess everybody's bringing up14Fermi 3 here, so I can bring it up, too. Maybe I15don't have that with me. But I found the list of all16the ones they did contact. I guess I don't, sorry. 17I don't, but they, at one time they asked the Canadian18government, complained to them and asked them to19intercede on their behalf, because the NRC would not20let them be a part of the Fermi 3. 21And the, I have a copy of the letter that22the Canadian government sent back and said it's the23United States business. We're not in it. So no one,24they did not help them on that. And so, I'm thinking25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 213maybe the international joint commission may, I don't1know. We'll see. 2JUDGE TRIKOUROS: Okay, thank you.3JUDGE SPRITZER: Mr. Smith, I'm just4trying to figure out what this, I'm looking at Table5D.1-22 of the Applicant's environmental report. This6is Appendix D, and the line that says with direction7northeast has 547 people within zero to 10 miles, and8then another 13 at 41 to 50 miles, for a total of 560. 9Is that the direction, or radius I guess you would10call it that would include the, what is it called11Walpole Island?12MR. SMITH: I don't know that, I don't13know that it is. It doesn't appear to be.14JUDGE SPRITZER: Okay. Where is Walpole15in relation?16MR. SMITH: Well sir, if you look on page173-19 or 3-20.18JUDGE SPRITZER: Okay. 19MR. SMITH: It's just, it's a figure in20the map, in the ER that shows the 50-mile radius. The21Walpole Island is on the, sort of the northeast,22north, northeast piece of Lake St. Clair. 23JUDGE SPRITZER: Okay. This is page 3-1924or --25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 214MR. SMITH: Page 3-19 of the ER.1JUDGE SPRITZER: So they might be beyond2the 50-mile --3MR. SMITH: No. I mean, the ER on page43.3-5 says that, as illustrated in Figure 3.0-6, which5is on page 3-20, a small portion of Walpole First6Nation reserve northeast of the Fermi site in Ontario7Canada lies just inside the 50-mile radius. 8JUDGE SPRITZER: Okay. All right, thank9you. All right, I think we're finished with this10contention. Let's move on to the final group of11contentions which are Contentions 7, 8, 9, 10 and 11. 12Mr. Schonberger.13MR. SCHONBERGER: Thank you, Chairman. 14David Schonberger, for the record, designated15representative for CRAFT for Contention 7, 8, 9, 1016and 11. So, reserving my rebuttal time, let me first17take your questions. 18JUDGE TRIKOUROS: All right. NUREG, well,19the license renewal application aging management20program for this subject of, the subject of inspecting21and monitoring for leaks, which is your Contention 7. 22The aging management, the license renewal application23indicates that it implements NUREG 1801 without24exceptions. Yet you didn't, specifically, go in in25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 215your contention and say this is what's wrong with1that. 2So we're kind of in a situation where we3have your statement and your basis that says they4don't adequately do this job. We don't really,5specifically, know why you have that language in6there.7MR. SCHONBERGER: So let me clarify for8the panel where we're coming from. We allege that,9that because both, because full cathodic protection10coverage has not been implemented at Unit 2, by the11Applicant's own admission, and that the Applicant12admits that it could do better, and more improvements13are planned to increase system coverage. 14So these are explicit notions in the LRA,15and the Applicant, therefore, acknowledges two16important facts which support our contention. First,17that the Applicant acknowledges that it has failed to18fully install the best available system to a degree19that CRAFT Alleges would qualify as in compliance with20as low as reasonably achievable standards, LRS21standards for buried and underground piping leakages22and dose exposure to the public.23Because, by definition, as low as24reasonably achievable has not been implemented. It is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 216reasonably achievable and planned by the Applicant to1do better and to do more. And secondly, the Applicant2acknowledges, by omission in its answer to our3petition, that it is unable to prove an undefined4reasonable assurance standard by a clear preponderance5of evidence as required by Part 54 pertaining to the6buried and underground piping act.7Apparently, the Applicant believes that it8can take advantage of the regulator's unclear and9poorly defined standards for establishing reasonable10assurance. And the Applicant appears to believe that11the agency will approve whatever the Applicant submits12for consideration. And that the agency will dismiss13whatever reasonable assurance standards that the14Petitioner would allege that might be necessary in15order to achieve adequate protection as mandated by16the AEA, such as full system coverage, full cathodic17protection.18JUDGE TRIKOUROS: All right, thank you.19JUDGE ARNOLD: Well, in the amps, for20instance on page 24 of the petition. Petitioner21maintains that neither the amp program for buried22pipes and tanks, nor the inspections and tests23performed as part of the team maintenance and24operation provide reasonable assurance that the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 217effects of aging will be managed. Can you be more1specific as to what specific aging management program2is lacking? Now, either point it out on a table or --3MR. SCHONBERGER: Judge Arnold, two4answers to that. First, in the same paragraph, we5specify that in order to protect public safety the6aging management program must be enhanced or7supplemented with a more robust inspection system,8cathodic protection, and so forth. We are narrowing,9narrowing the contention to full cathodic protection. 10And the specificity requirements that the11panel would expect as part of Part 302.309(f)(i)(5)12and (f)(I)(6). We claim that our concise statement13satisfies the requirements for a pro se Petitioner14based on forty years of case law precedent going back15to Wolf Creek, 1975, where specificity for pro se16Petitioners is not expected to the same degree as it17is expected for counseled Petitioners.18So our concise statement consistent with19Part 2.309(f)(I)(5) should be considered sufficient20with regard to that the aging management program must21be enhanced or supplemented with. No. 2, cathodic22protection, and we allege that full cathodic system23coverage would be necessary in order to comply with a24reasonable assurance standard.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 218JUDGE ARNOLD: Are you saying that every1buried component for which there is an aging2management program should include full cathodic3protection?4MR. SCHONBERGER: Please repeat that.5JUDGE ARNOLD: Are you saying that every6buried pipe in the system that is required to be7covered with an aging management program should, as8part of that aging management program, include9cathodic protection? Or are you just saying the10systems that have it now should be more complete?11MR. SCHONBERGER: Our contention alleges12that full cathodic protection coverage has not been13implemented to the extent that it could be, as the14Applicant acknowledges. And that the Applicant15acknowledges that it has plans to increase system16coverage. And, to the extent that they acknowledge17that, we allege that our definition of reasonable18assurance would require for adequate protection, that19there must be full system coverage to ensure that20ALARA standards are met, by definition, as low as21reasonably achievable. 22If the Applicant admits it's reasonably23achievable, then it should be implemented as part of24the application. And not presumed that the can is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 219kicked down the road. 1JUDGE ARNOLD: Okay. I understand. 2JUDGE SPRITZER: Okay, let's move.3JUDGE ARNOLD: Question on Contention 8,4having to do with SAMA. On page 27, right at the top,5you say: The Applicant's cost calculations assume an6arbitrary and scientifically inappropriate emergency7planning zone probabilistic models for the Fermi site. 8And, as a result, that a radiological release will9affect only a relatively small area. 10Now, just a few minutes ago, we heard that11the SAMA analysis looks at 50 miles around the plant,12not just to the emergency planning zone. So could you13be more specific as to how a large EPZ would change14the outcome of the SAMA analysis?15MR. SCHONBERGER: Yes, Judge Arnold. It16pertains to the evacuation time estimate calculations. 17There's a sequential logic going on here in our18contention, which starts with that the Applicant's19meteorological model is bogus and knowingly20unreasonable, knowingly inaccurate. 21And fundamentally, you can see for22yourself that this is not the state of Hawaii. It's23not the state of Florida. It's clearly a location in24this country where we get severe winter snow25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 220conditions. This is November. Wait until January. 1So, In January -- 2JUDGE SPRITZER: We're not coming back in3January.4MR. SCHONBERGER: Fair enough. But5Chairman, we have to live here. And we all live here6through the winter. And we allege that the7Applicant's SAMA analysis is deficient, based on a8sequential logic that goes all the way back to an9unrealistic meteorological assumption that, as we10state explicitly, that the presumption is that there11will, for evacuation time estimate determination, that12there would be no more than a 20 percent impairment of13evacuation time.14In fact, the Applicant has reduced that15maximum impact of snow conditions. In the updated16modeling, they've actually reduced it to 20 percent. 17And we allege that there's no rational basis for18alleging only a 20 percent maximum impairment due to19severe snow conditions in a Michigan winter situation. 20So if you start with that, it provides the basis for21an inaccurate and unreasonable evacuation time22estimate and emergency plan.23Which we acknowledge, we acknowledge that24the emergency plan is outside the scope of the, this25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 221license renewal proceeding. So our contention, to1clarify for the board, our contention is not to allege2deficiency of the emergency plan or the evacuation3time estimate as it pertains to the emergency plan. 4Our contention is based on an allegation of an5inaccurate, unreasonable SAMA analysis. That through6sequential logic, to continue an inaccurate evacuation7time estimate creates an inaccurate projected offsite8dose exposure within the 50-mile radius.9Within the 50-mile radius, the evacuation10time estimate is fundamental to determining dose11exposure to the public. So it is not sufficient to12claim the 50-mile radius of consideration is all that13is necessary to have that point covered. The14evacuation time estimate is fundamental to the outcome15of dose exposure to the public within the 50-mile16radius. 17Different evacuation time estimate models18would result in different dose exposure estimates. 19And different dose exposure estimates would yield20different projected cost impacts.21JUDGE TRIKOUROS: Now, you're talking22about dose estimates in the 10-mile EPZ, correct? 23You're saying the 10-mile EPZ is not being evacuated,24is being evacuated too quickly than would occur in25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 222reality and, therefore, there would be more people in1the 10-mile EPZ getting a larger dose than the SAMA2analysis assumes. Is that, basically, what you're3saying?4MR. SCHONBERGER: I would say that, that5an accurate evacuation time estimate of whatever6radius we're talking about is fundamental to7determination of the projected probability weighted8economic costs and consequences for a severe accident. 9JUDGE TRIKOUROS: As a corollary to that,10you also seem to be saying in this pleading the11evacuation zone should be not 10 miles, but 50 miles. 12Is that correct? It seems to be what you're saying.13MR. SCHONBERGER: Indeed. We do, we do14allege, we do allege an out-of-scope argument to15support as background the in-scope argument. 16JUDGE TRIKOUROS: Okay.17JUDGE ARNOLD: Can I make a quick question18to Applicant? I just want to ask in your SAMA19analysis, your evacuation times, do you provide20justification of why you use specific times and21specific decrement for winter weather?22MR. SMITH: Yes. The evacuation time23estimate for Fermi 2 was updated in 2012. The mean24speed was 12.8 meters per second. That's what the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 223evacuation estimated. For the SAMA analysis, we1conservatively looked, lowered that to 10 meters per2second as the average evacuation time. And then, as3a sensitivity case, we looked at either a 15 meter per4second or a 5 meter per second evacuation time, and5found that it doesn't have significant effect on the6results.7JUDGE ARNOLD: Okay. Have you looked at8how they came up with their evacuation time? And if9so, do you have any specific, you know, statements of10what they did wrong? Or are you just saying it just11can't be done that quickly?12MR. SCHONBERGER: Judge Arnold, I, the13answer to that question goes back to the allegation,14sequentially, that a 20 percent maximum impairment of15evacuation time estimates in a severe, due to a severe16winter condition, that that is unsupportable and17unreasonable, and contaminates, sequentially, all18further probability weighted consequence19determinations in the application.20JUDGE ARNOLD: I think I understand. 21Nick?22JUDGE TRIKOUROS: Yes, you're also23questioning the method of analysis, correct? The rad24dose program? 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 224MR. SCHONBERGER: Yes, Judge Trikouras, we1used the rad dose software program. We used that as2a background to explain, to explain where we're coming3from.4JUDGE TRIKOUROS: But are you specifically5challenging the use of the straight line Gaussian6distribution model versus a variable trajectory plume7dispersion? Is that, are you challenging that, or are8you -- 9MR. SCHONBERGER: No, no, to the contrary. 10We acknowledge that a variable trajectory plume11distribution model is assumed in the rad dose12methodology. And our point of raising that issue is13to allege that the 10-mile EPZ should be expanded to14go hand-in-hand, consistent with a variable trajectory15plume distribution model. 16But we recognize that that portion of the17contention is outside the scope of a Part 51 or Part1854 license renewal proceeding. That's not, the point,19we did not bring that information into the contention20in order to dispute that.21JUDGE ARNOLD: Okay, Applicant, on this,22for the evacuation, the 20 percent impairment factor,23was that a maximum factor? You know, that the24evacuation's going to take 20 percent longer as the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 225greatest, or is that used more like it's a1representative of average over all of winter?2MR. SMITH: I'm not that familiar with the3specifics of the Fermi 2 evacuation time estimate. 4But again, what I can say is that for purposes of the5SAMA analysis, we took the mean speed from the6evacuation time estimate, which was 12.8 meters per7second, and we modeled 15, 10 and 5. So we looked at8something that is greater than a 50 percent9impairment. And we found that that does not have much10of an effect on the outcome. 11In fact, the difference between those12evacuation speeds and person-rem per year is the13difference between 4.96 and 4.89. So it's a14relatively small difference. That's on page D-100 of15our SAMA analysis. 16And we also modeled for, just to finish17the assessment of sensitivity that we did in the SAMA18analysis, we also looked at different fractions of the19population that do evacuate, between 90 and 99.520percent of the population. So we modeled both broad21changes in evacuation time, as well as broad changes22in the percentage of the population that, in fact,23evacuates. 24JUDGE TRIKOUROS: Thank you. Do you know25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 226if the evacuation time analysis too into account this1shadow evacuation that's discussed in the pleading?2MR. SMITH: I don't know that the3evacuation time estimate did, in particular. But part4of the way in which we address that is through the5sensitivity analysis in the SAMA. And so we did, as6I just mentioned, we varied the fractions of the7population that is assumed to evacuate.8JUDGE TRIKOUROS: You didn't look at zero9evacuation, did you?10MR. SMITH: We did, not for the purposes11of the SAMA, no.12JUDGE SPRITZER: Okay, does the Applicant13anything else to add on this group of contentions?14MR. SMITH: I'm sorry, certainly. I think15we've discussed the SAMA portion of the contention in16detail. The one thing that I would add is that the17Fermi 2 SAMA analysis does use the MAX code, which18imbedded in that is a Gaussian straight-line air19dispersion model. So I just wanted to clarify that,20in case there was any question on the Board's part.21I think the one part we haven't discussed22is going back to the aging management plan for buried23piping and tanks. And, you know, I first want to note24that this contention, I'm sorry, our program was based25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 227on industry guidance on the NRC's generic aging1lessons learned report. And the inspections2corrective actions and assessments that we have3performed and would perform are addressed in the aging4management plan.5And we also, specifically, incorporate6Fermi's unique operating experience as it relates to7buried piping integrity at the Fermi site. And there8was also some discussion about the cathodic9protection. And as we do note in the aging management10plan, that we have plans to expand that program. 11And just for purposes of factual12information, we currently have on the order of 7813percent coverage of piping. By 2015, that coverage14will be up to 93 percent of piping will be covered by15cathodic protection. And remaining percentage is in16piping that's anticipated to be replaced before long. 17And so that will, at that point, have effectively 10018coverage of buried piping at the Fermi site.19So to the extent there's anything in that20piece of the contention, I think that explains it. 21That's not something that's going to be an issue once22we get to the license renewal term, which of course is23the focus of our aging management plan. It doesn't,24it's not required to be implemented until we get to25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 228the license renewal period. 1I think the rest of that has been,2primarily, addressed in our briefings. I don't think3I need to expand in great detail. Only to note that4a number of their specific concerns related to buried5tanks, the site doesn't have any buried tanks in this6system. Other concerns of theirs with respect to what7programs are covered, what buried tank programs are8covered, those are covered by other amps. 9So they haven't demonstrated that there's10any system that is not covered by the program, or any11way in which the program itself is deficient. Thank12you very much.13JUDGE SPRITZER: The NRC staff, do you14have anything to add on these contentions?15MS. KANATAS: Good afternoon, Your Honors,16this is Cathy Kanatas for the staff. I don't have17much to add, Your Honors, but I would just like to18reiterate that, in terms of Contention 7, DTE's19application provides for the buried and underground20piping amp. And it provides for maintaining the21intended functions of the structure's systems and22components that are within the scope of license23renewal.24And, as we've heard multiple times, it is25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 229consistent with GALL Rev. 2. And the Commission has1specified in Seabrook, CLI 12-5, that if an amp is2consistent with GALL, it is assumed to be adequate. 3CRAFT wants more, including full cathodic protection,4but it does not indicate why more is needed or5required. Therefore, it does not raise an adequately6supported or genuine dispute with the application. 7In terms of the other claims raised8related to ALARA and leaking, as well as reasonable9assurance claims, the Commission has rejected similar10claims in Pilgrim, CLI 10-14, 71 NRC 449. Those raise11currently operating issues that are outside the scope12of this proceeding. In terms of the SAMA, I think13we've covered that quite thoroughly today. 14But again, as I think the Commission has15repeatedly stated, it's not enough to point to the16SAMA and claim that another model should be used or17another input. You have to do more. And here, CRAFT18has not done that. As they recognize the claims about19emergency planning and EPZ are outside the scope of20this license renewal proceeding. 21And to the extent that they claim that22SAMA's meteorology is bogus or unreasonable. There's23just no basis. They cite only to a Dr. Eagan's24declaration in a different license renewal proceeding,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 230and don't tie anything in that declaration to anything1in the DTE SAMA analysis. 2Likewise, for the economic consequences. 3They cite to Mr. Channon's declaration in the Pilgrim4license renewal proceeding for the proposition that5MAX and MAX 2 are not valid, where they provide no6support for that claim; no tie to anything in the7declaration from Mr. Channon to DTE's SAMA. Nor do8they explain why the CRAC-II from the Sandia report9cited in their petition is more appropriate or10reasonable. Mr. Harris covered some of the11conservatisms in the CRAC-II earlier today, so I won't12repeat that. That's it. Thank you.13JUDGE SPRITZER: Very well. All right,14we'll give Petitioners just an additional three15minutes for rebuttal. But let's keep it to three16minutes, because we do need to get out of here.17MR. SCHONBERGER: So, as you just heard,18as the Board panel just heard, the staff's position is19indistinguishable from the Applicant's. We believe20that the, a public hearing is necessary in order to21provide an alternative perspective that we believe22we've satisfied the requirements for today in order to23represent the public interest which we attempt to do24in a pro se fashion.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 231With indistinguishable argument proffered1by the staff relative to the Applicant, somebody needs2to represent the public interest, and we attempted to3do that. 4JUDGE SPRITZER: All right, very well. I5think we understand your position on that, and this6group of contentions. Unless my colleagues have7anything further, I think we're ready to conclude. 8The building will be locked at 5:00, it our9understanding. So if you go out, don't plan on coming10back in after 5:00. But I assume everybody will be11gone by then. 12Thank you for your participation today. 13It's been very educational for us and, hopefully, some14value to you all, as well. And we will try and get a15ruling out as soon as we can. Our official deadline16is 45 days. Though, the fact that we have the holiday17season upcoming, probably that's not --18MR. LODGE: Your Honor, we assume there19will be a transcript generated.20JUDGE SPRITZER: This gentleman to our21left is here to prepare that, and if you want a copy22contact him. 23MR. LODGE: And we'll have the opportunity24to make corrections?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 232JUDGE SPRITZER: Well this is for, this is1not an evidentiary hearing. If you find anything2that's of concern, let us know. But we don't, we're3not going to have a formal period for transcript. We4don't usually do that with, this isn't legal argument. 5So, as I said, we'll try and get the6ruling out. It's realistic to assume we probably7won't meet the 45 days, but by end of January would be8realistic. Thank you. Unless there's anything else,9anybody have any questions? Yes sir.10MR. SHERMAN: Is there any way we can get11a copy of the audio? I would love to hear it.12JUDGE SPRITZER: There is really no, there13really is not, there's a transcript that, as I said,14this --15MR. SHERMAN: Okay, we didn't record the16audio?17JUDGE SPRITZER: But I don't know that he18records the audio per se. I'm not usually --19MR. SHERMAN: That's fine. The transcript20will be fine. 21JUDGE ARNOLD: Well, if you wait until he22gets off the earphones, and ask him, he might be able23to provide you with it.24MR. SHERMAN: Thank you.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 233JUDGE SPRITZER: I know he prepares a1transcript. Beyond that, you'll have to check with2him.3MR. SHERMAN: Very good. 4JUDGE SPRITZER: Thank you. We're5adjourned.6(Whereupon at 4:41 p.m. the afternoon7session meeting was concluded.)8910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433

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