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Transcript of First Energy Nuclear Operating Company, Davis Bess, Unit 1, November 12, 2014, Pages 713-932
	ML14321A146
Person / Time
Site:	Davis Besse
Issue date:	11/12/2014
From:	; Atomic Safety and Licensing Board Panel
To:	;
	SECY RAS
References
	50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-1200, RAS 26925
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Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSIONTitle:First Energy Nuclear Operating Company Davis Besse Nuclear Power Station, Unit 1Docket Number:50-346-LRASLBP Number:11-907-01-LR-BD01 Location:Rockville, Maryland Date:Wednesday, November 12, 2014Work Order No.:NRC-1200Pages 713-932 NEAL R. GROSS AND CO., INC.

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

Washington, D.C. 20005 (202) 234-4433 713UNITED STATES OF AMERICA 1U.S. NUCLEAR REGULATORY COMMISSION 2+ + + + +

3BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4+ + + + +

5______________________

6In the Matter of: : Docket No.

7FIRSTENERGY NUCLEAR : 50-346-LR 8OPERATING CO. : ASLBP No.

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

11______________________:

12 Wednesday, 13 November 12, 2014 14 Rockville, Maryland 1516 17BEFORE:18WILLIAM J. FROEHLICH, Chairman 19NICHOLAS G. TRIKOUROS, Administrative Judge 20DR. WILLIAM E. KASTENBERG, Administrative 21Judge2223 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 714APPEARANCES:

1On Behalf of the U.S. Nuclear Regulatory 2Commission

3BRIAN HARRIS, ESQ.

4CATHERINE E. KANATAS, ESQ.

5U.S. Nuclear Regulatory Commission 6Office of General Counsel 7Mail Stop: 0-15 D21 8Washington, D.C. 20555 9Tel: (301) 415-1392 (Harris) 10 (301) 415-2321 (Kanatas) 11Email: catherine.kanatas@nrc.gov 12 brian.harris@nrc.gov 1314On Behalf of FirstEnergy Nuclear Operating 15Company:16STEPHEN J. BURDICK, ESQ.

17TIMOTHY P. MATTHEWS, ESQ.

18of: Morgan, Lewis & Bockius, LLP 191111 Pennsylvania Avenue, N.W.

20Washington, D.C. 20004 21Tel: (202) 739-5059 (Burdick) 22 (202) 739-5527 (Matthews) 23Email: sburdick@morganlewis.com 24 tmatthews@morganlewis.com 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 715DAVID W. JENKINS, ESQ.

1FirstEnergy Service Company 276 South Main Street 3Akron, OH 44308 4Tel: (330) 384-5037 5Fax: (330) 384-3875 6Email: djenkins@firstenergycorp.com 78On Behalf of Don't Waste Michigan

9MICHAEL KEEGAN 10Don't Waste Michigan 11811 Harrison Street 12Monroe, MI 48161 13Email: mkeeganj@comcast.net 1415On Behalf of Beyond Nuclear:

16KEVIN KAMPS 17Beyond Nuclear 186930 Carroll Avenue 19Suite 400 20Takoma Park, MD 20912 21Tel: (301) 270-2209 22Email: kevin@beyondnuclear.org 2324 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 716On Behalf of Beyond Nuclear, Citizens 1Environmental Alliance of Southwestern 2Ontario, Don't Waste Michigan, and the Green 3Party of Ohio:

4TERRY LODGE, ESQ.

5316 N. Michigan Street 6Suite 520 7Toledo, OH 43604 8Tel: (419) 255-7552 9Email: tjlodge50@yahoo.com 1011 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 717P R O C E E D I N G S 19:01 a.m.

2JUDGE FROEHLICH: Thank you. Please be 3seated. Okay. Good morning, all. It's November 412th, 9:00 a.m., and we're in the Nuclear Regulatory 5Commission headquarters building in Rockville, 6Maryland.

7We're on the second floor, ACRS Conference 8Room. ACRS stands for the Advisory Committee on 9Reactor Safeguards, and we thank the ACRS for allowing 10us to use their hearing room, while the ASLBP hearing 11room is under renovation.

12The docket number for this proceeding is 1350-346-LR, which is the docket in which FirstEnergy 14Operating Company has filed to renew its facility 15operating license for the Davis-Besse Power Station 16Unit 1, for an additional 20 years from its current 17expiration date of April 22nd, 2017.

18In accordance with the Board's public 19notice and order issued October 27th, this oral 20argument concerns a proposed Contention 7 filed by 21Beyond Nuclear, the Citizens Environmental Alliance of 22Southern Ontario, Don't Waste Michigan and the Green 23Party of Ohio. These are -- collectively we'll refer 24to as the Intervenors.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 718Proposed Contention 7 is found in 1Intervenor's Motion for Admission of Contention 7 on 2worsening shield building cracking and inadequate 3Aging Management Programs in the shield building 4monitoring program, which was filed on September 2nd, 52014 as supplemented on September 8th, 2014.

6Intervenors' proposed Contention 7 7challenges the adequacy of FENOC's shield building 8monitoring Aging Management Program, as revised by the 9license application amendment 51. That's FENOC's July 103rd, 2014 RAI response.

11My name is William Froehlich, and I'm 12chairman of this Atomic Safety and Licensing Board, 13established for this proceeding. To my right is Judge 14Nicholas Trikouros. Judge Trikouros has been a full-15time member of the panel since 2006.

16He holds a B.S. from Fordham, a Masters 17from NYU, an advanced engineering degree from the 18Polytechnic Institute affiliated with NYU, and has 19over 30 years' experience in the nuclear industry, 20including serving as an adjunct professor at Rutgers 21University, where he taught at the graduate level.

22To my left is Judge William Kastenberg.

23Judge Kastenberg holds a Bachelors of Science and a 24Masters of Science in Engineering from UCLA, and has 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 719a Ph.D. in Nuclear Engineering from the University of 1California at Berkeley. For over 40 years, Dr.

2Kastenberg was a professor in the University of 3California system.

4He retired as the Daniel M. Tellep 5Distinguished Professor of Engineering. He's 6published numerous journal articles on nuclear safety 7and risk analysis.

8As I mentioned earlier, my name is William 9Froehlich. I'm a lawyer by training and have had 10about 35 years of federal administrative and 11regulatory law experience. Because I'm a lawyer, I'm 12one of the three judges here, I'll serve as chairman 13of this Board for procedural issues.

14I'd also like to introduce a few other 15people from the Atomic Safety and Licensing Board 16Panel. Our law clerk, who you've probably dealt with 17by emails is Mr. Sachin Desai. We also have an 18administrative and logistical support member with us, 19Karen Valloch, and in the back of the room is Andrew 20Welkie, who will help manage the audiovisual equipment 21for this hearing.

22I'd also like to acknowledge the people 23from the ACRS, including Alesha Bellinger, Kendra 24Freeland and Theron Brown. I believe Mr. Brown is in 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 720the back room with Mr. Welkie, helping him support the 1audiovisuals for today's argument.

2Our court reporter is Daniel Michon.

3They'll be an electronic transcript made of this oral 4argument, and copies of that transcript will be made 5available to the public. They'll also be posted on 6the NRC website in about a week.

7At this point, I'd like the parties to 8introduce themselves. I'd like the lead 9representative to introduce yourself, state the name 10of your client, any counsel who might be participating 11with you in the oral argument, and I believe we'll 12start with the Intervenors, go to the licensee and 13then to the NRC staff.

14MR. LODGE: Very good. Thank you, Judge.

15My name is Terry Lodge. I am an attorney and counsel 16of record for Beyond Nuclear, the Citizens 17Environmental Alliance of Southwestern Ontario, Don't 18Waste Michigan and the Green Party of Ohio, who are 19the intervenors in this matter.

20Seated to my left is Kevin Kamps of Beyond 21Nuclear, who is going to be a co-presenter along with 22me. Seated to my right is Michael Keegan of Don't 23Waste Michigan, who is also assisting today.

24JUDGE FROEHLICH: Thank you, Mr. Lodge.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 721For the licensee.

1MR. MATTHEWS: Good morning members of the 2Board. I'm Tim Matthews of Morgan, Lewis and Bockius, 3on behalf of the Applicant, FirstEnergy Nuclear 4Operating Company, FENOC. With me at the counsel 5table this morning is my partner, Stephen Burdick, who 6will address the Board's questions related to the 7proposed safety contention, and David Jenkins, senior 8corporate counsel at FirstEnergy.

9Also present with us today are my partner, 10Kathryn Sutton and several FENOC personnel, including 11representatives from the Davis Besse Engineering 12Organization and the License Renewal Project should we 13need their assistance.

14JUDGE FROEHLICH: Thank you, Mr. Matthews.

15And for the staff.

16MR. HARRIS: Good morning, Your Honor.

17This is Brian Harris representing the staff. With me 18today to my left is Cathy Kanatas, who will also be 19representing the staff today.

20JUDGE FROEHLICH: Thank you. For any 21proposed contention to be heard in an evidentiary 22hearing, an intervenor must timely file that 23contention. Whether it is timely or not depends on 24whether it meets the standards in 10 C.F.R. 2.309, the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 722old 2.309(f)(2) or the current 2.309(c)(1) test.

1It has to be based on new information not 2previously available. It has to materially affect 3either a safety or environmental issue, and the 4contention has to be put forward in a timely manner 5which, according to our prior orders, we define as 6being put forward within 60 days after the information 7was available to the public.

8The crux is whether the Petitioner has 9shown good cause. If timely, it must also meet the 10six elements of 10 C.F.R. 2.309(f)(1). A request for 11hearing, a petition for leave to intervene or a motion 12to admit a new contention are set forth with 13particularity the contention sought to be raised.

14In each contention, the request for 15petition must provide a specific statement of the 16issue of law or fact to be raised or controverted, a 17brief explanation of the basis for the contention, 18demonstrate that the issue raised in the contention is 19within the scope of the proceeding, demonstrate that 20the issue raised in the contention is material to the 21findings the NRC must make to support the action 22that's involved, and provide a concise statement of 23alleged facts or expert opinions which support the 24petitioner's position on the issue, and on which the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 723petitioner intends to rely at hearing, together with 1references to the specific sources and documents on 2which the petitioner intends to rely to support the 3petition on the issue.

4And finally, it must provide sufficient 5information to show that a genuine dispute exists with 6the licensee on a material issue of law or fact. This 7information must include references to specific 8portions of the application that the petitioner 9disputes, and the supporting reasons for each dispute.

10On September 2nd, 2014, Intervenors 11brought a new contention regarding cracking in the 12shield building that covers the Davis-Besse Unit 1 13nuclear reactor.

14Intervenors' new contention alleges that 15there is new information, primarily in the form of 16disclosures by FENOC on July 3rd and July 8th, 2014, 17that indicate the cracking in the Davis-Besse shield 18building is propagating, and that this is a new 19concern.20Intervenors claim as a result of the 21plant's aging management -- as a result, the plant's 22Aging Management Program needs to be revised, to 23account for this crack propagation, more than has 24already been done.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 724Intervenors also ask that this alleged new 1issue be addressed in the Environmental Impact 2Statement, within the Discussion of Alternatives 3section and the section dealing with Mitigation 4Alternatives for severe accidents. The licensee and 5the NRC staff both oppose the admission of this 6contention, arguing that no litigable issue exists 7with FENOC's Aging Management Program or the 8Environmental Impact Statement.

9FENOC and the NRC staff also raise 10timeliness concerns, arguing that Contention 7 was not 11brought quickly enough after the information was 12available to the public, and thus this contention is 13precluded by NRC regulations. Intervenors, of course, 14do not agree.

15If any issue -- if any of the parties take 16issue with how I have just framed this contention, 17please address that as part of your oral argument or 18opening statements. So today we'll be talking and 19probing the intervenors about Contention 7, trying to 20figure out whether they meet the timeliness and 21admissibility criteria of 2.309 of the regulations.

22If they meet the regulatory requirements, 23we will rule that the contention is admissible, and if 24they don't, we're obliged to rule that the contention 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 725is not admissible. After we hear oral argument today, 1we'll review the pleadings and the transcript of this 2argument, and issue a written decision, and we intend 3to get that decision out within the next 45 days or 4so.5As I mentioned earlier, members of the 6public are free to observe the proceedings today, as 7in all of NRC's proceedings. But it is only counsel 8for the parties or their representatives that will be 9allowed to speak at this oral argument.

10At this point, if anyone still has their 11cell phone on, please check, turn it off or turn it to 12vibrate. If you have any conversations and need to 13discuss with others, please take them out in the hall 14during our proceedings.

15At this point, I'd ask my two colleagues 16if anything -- if they'd like to add anything before 17we begin. Judge Trikouros.

18JUDGE TRIKOUROS: No.

19JUDGE KASTENBERG: Nothing at this point, 20thank you.

21JUDGE FROEHLICH: Okay, all right. As 22stated in the Board's notice and order scheduling this 23argument, today's argument will begin with an opening 24statement of no more than ten minutes in length from 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 726each party. The Intervenors will go first, followed 1by the licensee and then the NRC staff.

2Each one will get ten minutes to give an 3uninterrupted opening statement to us. We'll then 4turn to reviewing the questions of timeliness and the 5admissibility of the contention that's been filed.

6After we've asked all of our questions and heard 7arguments from the parties, each party will get five 8minutes for closing statements.

9At this point, I believe we're ready to 10begin with an opening statement from the Intervenors.

11MR. LODGE: Thank you. Members of the 12Panel and parties and representatives, we are in our 1337th month since the discovery in October 2011 of 14laminar cracking problems that were visible during a 15maintenance outage at the Davis-Besse nuclear power 16station, and specifically around and near an opening 17that was blasted through the wall for purposes of 18replacing a reactor head.

19The cracking controversy has evolved 20tremendously in 37 months. We are now looking at what 21appears to be the latest, I guess I would call it Root 22Cause 3.0, the 2014 explanation for the cracking 23phenomena. But it's interesting and useful to review 24historically what the circumstances were.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 727In February 2012, FirstEnergy Operating 1Company released their initial root cause analysis for 2the laminar cracking, essentially concluding that the 3blizzard of 1978 did it, that it essentially caused 4unusual vulnerability to the outer concrete layers of 5the shield building at the Davis-Besse reactor, and 6that moisture over the decades infiltrated the 7concrete and began to cause, from the freeze-thaw 8cycle of northwestern Ohio winters, cracking to 9develop.10The consensus of FirstEnergy's consultants 11at the time was the problem is limited, the problem is 12solvable, that a good coat of certified coating on the 13building, which had been omitted or neglected to be 14added during the construction process in the 1970's, 15would do it, and now we know that it didn't do it.

16In July of 2014, FirstEnergy's 17consultants, in the latest in what we call Root Cause 183.0, the apparent cause evaluation, full apparent 19cause evaluation, indicate that there is now 20microcracking, an additional type of structural 21failure in addition to laminar or layered cracking, 22and that there are going to be possibly continuing 23difficulties.

24The company's response in 2012 was to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 728propose a monitoring setup, wherein 20 core bores 1would be developed at various locations near 2identified cracks in the building, and that from time 3to time on a scheduled, but infrequent we believe 4basis, that there would be tests of the cores.

5The response after the latest revelation 6of microcracking and essentially a consensus that this 7is an aging problem of increasing, potentially 8increasing seriousness, is to -- is for the utility to 9have promised that it will initiate three additional 10core bore drillings at sites on the shield building, 11which it will identify as being close to visible 12cracking.

13We have roughly calculated that the 14interior and exterior surface area of the shield 15building is somewhere in the neighborhood of 180 16square feet. The core bores are, pardon me, 280. The 17core borings themselves are a few inches across. They 18penetrate perhaps a foot or less into the structure.

19So what is proposed by way of a monitoring 20setup, of a building that was left open and uncovered, 21unroofed if you will in the early 1970's, and that has 22some controversy surrounding any protective barriers 23in its foundation, which would protect the foundation 24from infiltration and moisture.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 729What we have is a circumstance where 1roughly a cubic foot of core borings are dispersed on 2some unknown basis throughout the shield building 3structure, and are supposed to past muster 4regulatorily, as an adequate means of monitoring the 5shield building.

6This is a passive structure, but a very 7obviously critical structure. The shield building is 8approximately 30 inches thick. It is rebar-reinforced 9concrete. It is supposed to be there to protect the 10reactor from exterior threats, including tornadoes, 11including damage from certain types of aircraft 12accidents.

13But it also contains a filter containment 14type of system. So it provides a certain degree of 15protection of the outer environment from mishaps that 16might befall the reactor itself. A very critical 17structure. It is degraded and deteriorated. There is 18serious issue as to the extent of that.

19The Intervenors contend that there is far 20too much ignorance as to the actual status of the 21structure, that any attempts to simply call a wait and 22see monitoring effort, especially at this low level, 23is very insufficient to provide the requisite, 24adequate assurance that the shield building is going 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 730to perform its original design functions at any 1adequate level throughout the expected 20 year or 2anticipated 20 year license extension period.

3The utility company and the staff have 4tried in particular to argue that this is simply a 5current licensing concern. The problem with that 6argument is that it -- I would suspect that the first 7day of the 20 year extension period they'll say it's 8a current licensing concern. It's a day-to-day 9problem.10Well, perhaps three years ago or two and 11a half years ago, that might have had -- carried some 12credence. But 37 months into this, with now multiple 13root cause reports being issued and issued on a slow 14motion basis I might add, the latest coming rather 15close to the end of the adjudicatory phase of this 16license extension, we believe that there are serious 17questions of whether there are adequate assurances 18that mere monitoring is going to suffice.

19The expert opinions that we are relying on 20are those of NRC staff and FirstEnergy's consultants.

21We think that more than -- what was called sheer 22speculation on the Intervenors' part in our multiple 23filings of 2012, and we've all been together before on 24those filings, that it was mere speculation and indeed 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 731we were castigated at some length for having, without 1an expert, intentions to parlay FOIA and other 2information into a contention.

3But history is proving that mere 4speculation of 2012 is hard fact and harsh reality for 5the utility company to deal with in 2014. In sum, 6this is a matter which must be scrutinized through the 7adjudicatory process, must be scrutinized by way of 8relief in the form of much beefier analysis and 9discussion in the FSAR and the NEPA document, the 10final Environmental Impact Statement, both in the 11Consideration of Alternative section, because we 12believe that the shield building is that big of a 13problem, that it raises -- its condition raises grave 14questions as to the continuing feasibility of using it 15to protect the reactor, and also in the SAMA analysis.

16The SAMA analysis presumes a pristine 17structure. This is a uniquely non-pristine structure, 18unique and admitted as such by FirstEnergy's own 19consultant in its 2014 report. That's all we have at 20this point. Thank you.

21JUDGE FROEHLICH: Thank you, Mr. Lodge.

22Mr. Matthews.

23MR. MATTHEWS: Thank you, Judge Froehlich.

24Good morning again. FENOC appreciates this 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 732opportunity to address the Board. The parties appear 1before you today on a now-familiar issue. FENOC 2identified and reported its shield building laminar 3cracks in 2011.

4FENOC then promptly studied the laminar 5crack phenomenon, identified its root cause, 6demonstrate the capability of the shield building to 7perform its intended functions, developed corrective 8actions including application of external coating, 9developed a condition monitoring program to assess the 10possibility of crack propagation, and updated the 11shield building design and licensing basis documents.

12FENOC also prepared an Aging Management 13Program or AMP for the shield building, to monitor 14possible changes in the laminar cracks during the 15period of extended operation, and supplemented its 16license renewal application appropriately.

17In 2013, FENOC discovered indication of 18changes in the existing laminar cracks. This 19demonstrated that FENOC's monitoring program worked.

20Using a more indepth inspection tool, FENOC found the 21preexisting laminar cracks, fine cracks that had not 22been identified earlier.

23They also found new cracks in core bores 24that previously had not shown cracks. Extensive core 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 733bore inspections followed by impulse response testing 1indicated that the cracked area had expanded. In 2other words, FENOC identified limited propagation of 3some of the laminar cracks.

4As it had previously in 2011 and '12, 5FENOC identified the condition and promptly reported 6it, studied it and confirmed the shield building's 7ability to perform its intended functions. FENOC 8updated the design and licensing basis documents, 9identified the root cause of the propagation, and 10modified its condition monitoring program during the 11current license term. And again, FENOC revised its 12Aging Management Program.

13FENOC concluded that the cause of the 14laminar crack propagation was ice wedging. Moisture 15inside the existing laminar cracks froze during severe 16cold. The coating contributed to the cracks by 17retaining moisture.

18FENOC's evaluation found that the laminar 19crack propagation was very small in relation to the 20450, approximately 450 foot circumference of the 21shield building, and over 17 foot reach of each flute 22shoulder. Volumetric expansion of freezing water from 23its liquid state to its solid state opened the crack 24tips a small amount, roughly 0.4 to 0.7 inches on 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 734average.1Although the existing program elements of 2the shield building AMP were demonstrated to be 3effective to monitor the propagation, FENOC further 4enhanced its existing AMP by adding three more core 5bores to be checked during each inspection, on top of 6the existing 20.

7FENOC specified that the additional core 8bore locations would be selected the known edge to 9identify crack propagation. It also extended the 10period during which inspections would be performed 11annually, regardless of whether further propagation 12was identified.

13FENOC has been open in its identification 14of the cracks, thorough in its evaluation of the 15causes, rigorous in monitoring of the condition and 16appropriate in its enhancements of the Aging 17Management Program.

18Obviously, Intervenor disagreed, but we're 19left to suggest why. Intervenors don't provide any 20reasons for their disagreement. They suggest instead 21yet again that this Board should undertake a broad-22ranging investigation.

23Intervenors continue to demonstrate a 24misunderstanding of the role of the Atomic Safety and 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 735Licensing Board in the NRC's licensing and license 1renewal process. As a result, they fail again to 2state an admissible contention.

3Intervenors appear to argue that FENOC's 4discovery of crack propagation somehow vindicates the 5admissibility of previously rejected contentions. But 6then, as now, it is the sufficiency of their proposed 7contention that is at issue, not the crack 8propagation. The only question before the Board today 9is this: have the Intervenors timely proposed a 10contention that satisfied the Commission's contention 11admissibility requirements?

12Once again for multiple reasons, they have 13not. The Commission did not establish this 14adjudicatory process to stop or hop over licensing 15process. Rather, the Commission established the 16adjudicatory process so that members of the public 17with sufficient knowledge or information to inform the 18agency's decision-making might have a forum to present 19that information and to test it.

20In this way, they enhance the agency's 21safety mission. Toward that end, the Commission has 22promulgated very specific contention pleading 23requirements in its regulation, to clarify and make 24more efficient this adjudicatory process.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 736First, the Commission made clear that 1issues presented must be within the scope of the 2licensing action then under consideration, here 3license renewal. Second, the NRC regulations require 4that proposed contentions may not consist solely of 5vague generalities, but must be specific and clearly 6stated. They also must be supported by some 7identified basis statement and grounded in expert 8opinion or appropriate authority.

9So too the Commission has defined 10reasonable timeliness requirements in which to bring 11proposed contentions. None of this new to the Board 12or to these intervenors. Both the Board and the 13Commission have instructed these same intervenor 14repeatedly on exactly these requirements. Intervenors 15simply choose to ignore them again.

16Despite repeated reminders about the 17limited scope of the NRC's license renewal decision, 18Intervenors attempt to challenge NRC's information 19disclosure practices, FENOC's quality assurance 20program and safety culture, Davis-Besse's current 21licensing basis, all baseless allegations and all 22outside the scope of this license renewal proceeding.

23Despite previous rejections of earlier 24proposed contentions rooted only in speculation, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 737Intervenors again furnish nothing more. They advance 1a wide array of hypothetical concerns, and invite the 2Board to investigate them.

3Specifically, Intervenors do not identify 4any purported deficiency in FENOC's shield building 5monitoring AMP, that would justify the changes they 6suggest. They cite no inadequacy in FENOC inspection 7methods, not in the number of core bores monitored or 8their locations, and not in the frequency with which 9core bores are monitored.

10Rather, Intervenors call for more, more 11testing methods, more core bores, more locations and 12want the one-year inspection frequency extended 13indefinitely, regardless of what the inspection 14results or guidance from the American Concrete 15Institute Code might suggest.

16It's fine for Intervenors to want all of 17these things. But here, before the Commission's 18ASLBP, merely wanting them is not sufficient.

19Intervenors bear the burden of stating why FENOC's AMP 20is not adequate for its purpose, demonstrating a basis 21for that position and identifying their technical 22authorities. They've done none of these things.

23Intervenors also fail to connect their 24complaints to any new information. To the extent the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 738concerns relate to the ability of the shield building 1AMP to monitor crack propagation, the proposed 2contention is untimely as well as unsupported. The 3AMP has always been about monitoring for changes.

4The only new information is this: One, 5the cracks propagated in some areas, and two, the 6monitoring program worked to identify that change. A 7fundamental purpose of the AMP, from its introduction, 8has been to identify any changes in the laminar 9cracking, including propagation.

10Intervenors have challenged the AMP before 11many times and failed each time. FENOC's recent 12enhancements to the AMP do not render the entire AMP 13now subject to reattack. The Commission stated the 14same logical conclusion in its Oyster Creek decision.

15Also similar to their earlier failed 16attempts, Intervenors include vague references to a 17proposed environmental contention related to severe 18accident mitigation alternative analysis. Here too, 19they fail for all the same reasons they failed before, 20because they chose again to ignore the Commission's 21contention admissibility standards.

22Intervenors are not unrepresented or 23inexperienced citizen petitioners. Intervenors are 24seasoned advocates and active participants in the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 739NRC's adjudicatory process. They're aided by multiple 1experts and very capable experienced counsel.

2Accordingly, when a burden its theirs to 3shoulder, as it is here, they must shoulder that 4burden. We respectfully submit that they have not.

5FENOC's personnel have worked openly, candidly and 6thoroughly to address this issue. They have retained 7independent experts, commissioned testing at multiple 8respected universities to confirm the conservatism in 9their analyses.

10They've responded to multiple rounds of 11questions from the NRC staff, and diligently enhanced 12the shield building monitoring AMP. We appreciate 13this opportunity to respond to your questions, and 14look forward to today's discussion. Thank you.

15JUDGE FROEHLICH: Thank you, Mr. Matthews.

16And for the NRC staff.

17MS. KANATAS: Good morning, Your Honors.

18My name is Cathy Kanatas and this Brian Harris. We 19represent the staff. As Judge Froehlich indicated, 20this oral argument is about the admissibility of 21Intervenors' Contention 7. The question is whether 22Intervenors have met their burden in showing that 23their contention salsifies the Commission's contention 24admissibility requirements.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 740The answer to that question is no. Before 1I summarize why Contention 7 is inadmissible, I would 2like to make a few points to address Intervenors' 3assertions, and to put Contention 7 in context.

4First, the staff recognizes that the 5shield building a structure subject to aging 6management review under 54.21, and that the staff must 7make a finding that FENOC can adequately manage the 8effects of aging on the shield building before issuing 9a renewed license.

10This is why the staff took the position 11that Intervenors' Contention 5, which was submitted in 12January 2012, after the laminar cracking in the shield 13building was identified, raised an admissible safety 14contention of omission. At that time, the application 15did not discuss how any AMP would account for the 16aging effects of the laminar cracking.

17However, since April 2012, FENOC's 18application has provided for a plant-specific AMP to 19manage the aging effects of the laminar cracks, which 20are hairline cracks typically less than .01 inches in 21width. Specifically, the shield building monitoring 22AMP, which supplements the structures monitoring AMP, 23provides for the detection of aging effects prior to 24the loss of shield building intended functions.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 741Second, it is important to note that 1Contention 7 is not the first time Intervenors have 2raised challenges to this shield building monitoring 3AMP. Intervenors' Contentions 5 and 6 made claims 4related to this AMP. However, those contentions did 5not point to specific ways in which the AMP was wrong 6or inadequate, or how it should be improved.

7Therefore, the Board found that those 8claims did not raise a genuine material dispute with 9the application. Finally, the staff recognizes that 10FENOC has modified the shield building monitoring AMP 11in response to operating experience and staff 12questions.

13As you know, and we heard again today, the 14monitoring done under the shield building monitoring 15AMP led to the discovery of new cracks in August and 16September 2013. Broken rebar was also discovered in 17February 2014. In response, the staff issued an RAI 18on April 15th, 2014, asking how the shield building 19monitoring AMP would address these issues or how it 20would be modified.

21FENOC's July 3rd response to this RAI 22provided modifications to the shield building 23monitoring AMP. On July 8th, FENOC notified the Board 24that it had submitted a full apparent cause 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 742evaluation, discussing the root cause of the new 1cracks. These two submittals are the basis for 2Intervenors' Contention 7.

3As Judge Froehlich summarized, to be 4admitted as a contention, Intervenors must meet two 5sets of requirements. First, they must show that 6Contention 7 is based on new and materially different 7information than previously available and timely 8filed.9Second, Intervenors must show that 10Contention 7 satisfies the contention admissibility 11requirements. Intervenors have not made either 12showing. Therefore, Contention 7 should not be 13admitted into this proceeding.

14First, Intervenors have not shown that 15Contention 7 is based on new and materially different 16information. Intervenors claim that FENOC's July 3rd 17submittal is new and materially different information, 18because it modified the shield building monitoring 19AMP.20Intervenors also claim that the full 21apparent cause evaluation contains new and materially 22different information, because it concludes that the 23cracking propagation is aging-related, which 24Intervenors claim is a change in FENOC's position from 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 743earlier root cause reports.

1But Intervenors have not shown that this 2information is new and materially different. Since 3April 2012, the shield building monitoring AMP 4accounted for the possibility of an aging-related 5mechanism, used core bores and visual inspections to 6monitor, and indicated that inspection frequency and 7core bore sample size and locations would be 8reevaluated if changes or any new cracks were 9identified.

10These are exactly the types of changes 11that FENOC did in response to the recent operating 12experience. They increased the core bores from 20 to 1323, and increased the inspection frequency to annual 14inspection to manage the cracks, including the 15cracking propagation.

16The full apparent cause evaluation does 17not change the position taken in the previous root 18cause reports. The previous root cause reports, which 19FENOC submitted in February and May 2012, concerned 20the initial laminar cracking, which was determined to 21be caused by a combination of three things: The 22blizzard of 1978, the design of the flute shoulders 23and the lack of a moisture sealant.

24The full apparent cause evaluation states 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 744that the findings of the previous root cause reports 1with respect to the initial laminar cracking are still 2valid. It then discusses the root cause of the 3cracking propagation, which was determined to be 4caused by ice wedging.

5That requires the combination of three 6things: pre-existing laminar cracks, water 7accumulation and freezing temperatures within the 8cracks. These findings about ice wedging are not 9materially different information, because the shield 10building monitoring AMP always contemplated 11identifying aging effects.

12Intervenors also incorporate their 13Contention 5 filings and reference their Contention 6 14filings in support of Contention 7. But these filings 15are not new and materially different information.

16These filings were based on the February 17and May 2012 root cause reports, FENOC's April 2012 18shield building monitoring AMP, and documents 19Intervenors received through FOIA related to the 20current operation of the plant. All of this 21information has been considered by this Board and is 22not new or materially different.

23Second, Contention 7 is inadmissible 24because it does not meet the Commission's contention 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 745admissibility standards. While the staff recognizes 1that the shield building monitoring AMP is in the 2scope of license renewal, Intervenors have not raised 3a genuine material dispute with the AMP.

4Instead, Intervenors only point to the 5enhancements in the AMP, and assert that it's 6inadequate. These type of unsupported claims that do 7not specify what is wrong or inadequate with the AMP 8do not raise a genuine material dispute.

9The rest of Intervenors' safety claims are 10out of scope arguments about safety culture, current 11operation, the adequacy of the staff's review, and the 12current licensing basis of the plant. These arguments 13were rejected when they were raised in Contentions 5 14and 6, and they should be rejected again.

15The license renewal safety review focuses 16on managing the detrime ntal effects of aging on 17certain structures, systems and components. The 18license renewal safety review explicitly excludes 19current operating issues.

20Contention 7 also fails to raise an 21admissible environmental claim. Contention 7 repeats 22the claim made in both Contentions 5 and 6, that 23FENOC's SAMA analysis is deficient, because it does 24not account for the cracks.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 746While it is true that FENOC had to submit 1a SAMA as part of the license renewal environmental 2report, Intervenors offer no support for why the SAMA 3that FENOC submitted, which concerns beyond design 4basis accidents and assumes containment failure or 5bypass, would need to account for the cracks, or how 6the SAMA is deficient.

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

13Intervenors' argument is premised on the 14idea that the shield building cannot perform its 15intended functions, and should be replaced or 16repaired. This argument is unsupported, and does not 17raise a license renewal environmental issue. The 18staff's environmental license review focuses on the 19potential impacts of 20 years of additional operation.

20If the shield building cracks prevented 21the shield building from performing its design basis 22safety functions, then the plant would have to shut 23down now until those functions are restored. Any 24environmental impacts resulting from that are not 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 747unique to license renewal.

1For these reasons, Intervenors have not 2met their burden of proof, and Contention 7 should not 3be admitted into this proceeding. Simply pointing to 4the staff's RAIs or FENOC's responses to those RAIs is 5not sufficient to trigger an adjudicatory hearing.

6Thank you, Your Honors.

7JUDGE FROEHLICH: Thank you, Ms. Kanatas.

8Let us begin, and I'll begin with you, Mr. Lodge. Let 9me ask first, the licensee and the staff are not 10contending that this contention is untimely because it 11wasn't filed within 60 days of the license renewal 12application amendment or the FACE report.

13The argument, I understand from the staff 14and from the licensee, is that these -- this 15contention relates to issues that happened well before 16this report, and therefore it's untimely, more than 60 17days. Is that correct? Is my understanding correct?

18MR. BURDICK: Yes, Your Honor.

19JUDGE FROEHLICH: Also the licensee?

20MR. BURDICK: Your Honor, this is Stephen 21Burdick on behalf of the Applicant. I think that is 22correct. But just to clarify, we make two timeliness 23arguments. One is under the Oyster Creek principle 24that Mr. Matthews discussed, that there hasn't been 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 748any material change to the AMP and to the extent there 1were changes, they were enhancements.

2But we did make the separate argument that 3they do identify certain topics that are greater than 460 days from before they filed their Contention 7, and 5so untimely purely for that reason as well. But they 6were more on the fringes. They weren't their primary 7arguments.

8JUDGE FROEHLICH: Okay. So that brings us 9then to the question of whether the items that are in 10the FACE report or in the license amendment, are 11materially different from things that were in the 12record of this case before that; is that correct?

13MR. BURDICK: That's correct.

14JUDGE FROEHLICH: Okay. So Mr. Lodge, 15then to you. What is materially different in the 16license renewal application or the FACE report, that 17would trigger a new contention?

18MR. LODGE: A new type of cracking, 19microcracking, is finally conceded. Intervenors were 20accused of merely speculating that there were other 21cracks besides laminar. That's been now confirmed by 22the July 8th, 2014 disclosure made by FENOC to the 23Board.24I might point out that among the things 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 749that we learned at that point in July were that since 1February of 2012, that FirstEnergy knew that there was 2a considerable amount of water being identified in the 3core drillings that they were taking. Then again in 42013, there was some note taken of that, but the 5significance of it was not summarized, brought 6together into an identifiable explanation of causation 7until this July 2014 disclosure.

8So there also was identified in the July 92014 disclosure the propagation, the spreading of 10laminar as well as other cracks. FirstEnergy had 11decided to use electron microscopic analysis and that 12is how they began to identify the very fine, sometimes 13invisible to the naked eye, cracking.

14So FirstEnergy's knowledge of the problems 15has been growing, and the public somewhat behind 16because of the slow pace of disclosures, is learning 17and filing in the timely fashion, as timely a fashion 18as can be expected.

19JUDGE FROEHLICH: If the purpose of an 20Aging Management Program is to detect changes in 21matters that will need attention, why does it matter 22what the cause of the cracking is? If the Aging 23Management Program's goal is to be alert or be on the 24watch for changes in cracks.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 750What does it matter what causes or what 1changes it? Why is that new and significantly 2different, if again we're talking about the purpose 3and goal of an Aging Management Program?

4MR. LODGE: Well since in the last two 5years, FirstEnergy itself has caused some of the 6cracking propagation that's present, I would think 7that that has a few implications for prospective 8management of the cracking problem.

9There is now saturation of the outer ten 10inches of concrete that is apparently conceded not to 11have existed at the 90 to 100 percent moisture content 12level prior to the application of the coating to the 13shield building.

14The causation has changed. We have 15multiple causations now being identified. Things 16started out in 2012 in the initial root cause analysis 17as some sort of discrete, controlled identification of 18the cracking problem. Things are being handled.

19We're going to seal the building. It didn't work.

20That is a major material disclosure in 2014. I don't 21know if that fully answers your question, sir.

22JUDGE FROEHLICH: For the licensee, the 23discovery of the new cracks or propagation of existing 24cracks triggered the change or caused the change in 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 751the Aging Management Program. Was it this crack 1propagation or additional cracking that triggered the 2changes that were made to the aging management 3program?4MR. BURDICK: Your Honor, when FENOC 5identified the additional or the laminar crack 6propagation in 2013, they undertook an extensive 7evaluation, and the result of that included what's 8found in the apparent cause evaluation, and then that 9was done not necessarily for this license renewal 10proceeding.

11But then as they evaluated it and 12responded to questions from the NRC staff, they 13identified some changes, some enhancements that we 14wanted to make to the shield building monitoring 15program. So ultimately, there is some connection 16there. 17But I think this, as I've listened to the 18Intervenors' response to this question, I think 19they're answering the wrong question. The Board asked 20what is materially different here, and the Intervenors 21chose the content of Contention 7, the subject matter 22for Contention 7.

23As it's worded, and they reproduce it in 24their original Contention 7 or the amended Contention 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7527, it's focused on the shield building AMP, and they 1identified some challenges to things like the number 2of inspections, the scope of the inspection and the 3frequency of the inspections.

4So they selected that, and here's what we 5have to look at whether something's materially 6different, and here it is not. If we go back to when 7FENOC first submitted the shield building monitoring 8program to the NRC in April of 2012, it was a 9monitoring program to look at the laminar cracking, to 10monitor the core bores in the building with a certain 11frequency in certain locations, and to see if there 12was any change in the nature of the cracking, whether 13it's a lighter crack or a crack in an area that it 14hadn't been before.

15The shield building has changed a little 16bit over time, but only to enhance it. It has not 17changed. That is still the functioning, is to monitor 18for any changes in the laminar cracking. So that's 19where there hasn't been a material difference. This 20is where we point to, in our brief, to the Oyster21Creek case in CLI-09-7, where we believe it's a very 22similar circumstance.

23There, the Applicant had an Aging 24Management Program, and they enhanced it by adding 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 753additional inspections, and there both the Licensing 1Board and the Commission concluded that enhancing a 2program in that manner did not give a right to file a 3new contention.

4You know, the Commission explained there 5in that case, CLI-09-7, that there just would be no 6end to these NRC licensing proceedings if we could 7just add a new contention for convenience during the 8course of the proceeding based on information that 9could have formed the basis for a timely contention at 10the outset of the proceeding.

11So here, if the Intervenors had a problem 12with the way we were monitoring for propagation, which 13hasn't changed, then they should have filed a 14contention back in April of 2012.

15MR. LODGE: If I may respond to that, sir.

16JUDGE FROEHLICH: Yes.

17MR. LODGE: What if the 2013 cracking 18propagation had not been identified, because it had --

19because the frequency was out to two or four years?

20I think you're seeing very substantial timing changes, 21sampling timing changes within the AMP, but more than 22that. 23The larger picture is is that I think that 24there's an implicit concession here by the utility and 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 754staff, but especially the utility, that they're 1increasing open to increasingly sophisticated 2scientific explanations of cracking. The cracks are 3bigger. The cracks are in new locations.

4The cracks are propagating in new 5directions, and there is not just layered or laminar 6cracking; there's cracking that appears to be 7penetrating into the outer layer of concrete. There's 8very significant problems.

9FirstEnergy's most central difficulty is 10that they don't know where this will stop or what will 11stop it. They're monitoring and they're gathering 12some data. They have not done a comprehensive 13analysis of the overall structure. They are hoping 14that it will be sufficient for regulatory muster, for 15there to be some spot checks, if you will.

16I repeat: There's massive area that we 17have cited, the 280,000 square feet, and 23 samples 18and a cubic f oot essentially worth of analysis 19scattered across the building, but only identified 20with known cracking.

21JUDGE TRIKOUROS: One of the themes that 22I read from the Petitioners' documents is that their 23concerned that the full extent of the shield building 24is not being adequately looked at. The focus seems to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 755be more on, you know, what has occurred in the past, 1and how it will propagate.

2So I wanted to explore that a little bit.

3Also, I want to make sure we're all on the same page 4with the design basis of this thing. As I understand 5this, this is sort of a secondary containment 6structure, that annular region between the containment 7and the shield building wall, that filters any 8radiation release from the containment by tech spec 9leakage.10It provides biological shielding clearly 11to anybody outside the shield building, from any 12neutrons that may come through from the reactor.

13Also, if there's any tornado or hurricane generated 14missiles, this shield building is there to protect the 15containment, right, not the reactor as you indicated 16earlier. But it's really to protect the containment.

17MR. LODGE: Ultimately the reactor we 18believe, but yes.

19JUDGE TRIKOUROS: Right. For nuclear 20engineers, containment and reactor are significantly 21different.

22MR. LODGE: Sure.

23JUDGE TRIKOUROS: Okay, and as we said, 24it's a very large surface area building. When you 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 756look at the FACE report, it had mentioned that there 1were three things that caused the original cracking.

2One was the -- it was a combination of 3rebar spacing, high moisture content in the concrete, 4and subfreezing conditions, which in that -- at that 5point were brought on by this 1978 blizzard.

6But those three things are still there, 7right? We still have the same rebar spacing, 8etcetera. So it would be difficult for me to believe 9that cracking couldn't occur pretty much anywhere in 10this building, laminar cracking. Is that a bad 11assumption? Is that a bad belief?

12MR. BURDICK: Your Honor, thank you. So 13I think it's important to look at that there are two 14separate causes here.

15In 2011, when FENOC was performing the 16hydroblasting through the shield building wall to 17replace the reactor vessel head, they first identified 18the laminar cracking, and they did extensive 19evaluation, and you discuss some of the causes that 20were identified for the cracking there.

21One of the causes there, one of the 22additional causes was a lack, and I believe it was 23actually the root cause in the root cause evaluation, 24was a lack of an exterior coating to minimize the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 757amount of water that ingressed into the building.

1And so FENOC, as one of its corrective 2actions, applied that coating. So that's kind of the 3first event. The second event then showed up in 4August and September of 2013, when FENOC was 5performing its inspections of the core bores, and in 6monitoring for any crack expansion or propagation, 7they identified some propagation scenarios and I'm 8happy to talk more about that as well.

9But after that evaluation, they determined 10it was an ice wedging phenomenon. So I just want to 11be clear that there is kind of two events. One was 12the initial laminar cracking, and then the second one 13is the laminar crack propagation.

14JUDGE TRIKOUROS: So can you say there's 15absolutely laminar cracking any place else in this 16building right now?

17MR. MATTHEWS: Can I supplement that? The 18rebar spacing that you mentioned in the PII study 19related to Contention 5, rebar spacing was significant 20because it contributed to a stress pattern within the 21concrete structure. The PII report found that the 22concrete -- the initial laminar crack progressed to 23its full length at the time of the 1978 freeze.

24What's significant is they didn't find, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 758when they looked in 2000 -- the early era, 2011-12, 1they didn't find evidence of step fracture. When they 2looked again more recently, after discovering crack 3propagation, they found evidence of step fracture, but 4only after the application of the coating.

5So the hypothetical that you started this 6discussion with, Judge Trikouros, was that the cracks 7could be progressing. That's not what FENOC's 8analysis found. They found an initial step, and then 9since 2012, evidence of step fracture since. So --

10JUDGE TRIKOUROS: But that's with respect 11to that region, where the laminar cracking has been 12identified to have occurred?

13MR. BURDICK: And Your Honor, just to 14clarify on that as well. When FENOC was performing 15its cause evaluation other inspections back in the 162011-2012 time frame, it did look at the entire shield 17building, to characterize where the laminar cracking 18was, and it used impulse response technology. I think 19it took 60,000 plus impulse response readings to cover 20all the accessible areas of the shield building, to 21identify where the laminar cracking is.

22Then based on that, and based on what the 23cause was, they put together the shield building 24monitoring program, which uses the core bores to watch 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 759for any propagation, in addition to the other core 1bores that were used throughout the evaluation. So 2FENOC did identify where the cracking was on the 3shield building, but only as part of its management 4program that looks at the core bores.

5JUDGE TRIKOUROS: Okay. So you've 6answered my question, I think, that you did look at 7the entire shield building using impulse response 8testing methods, and determined that there was no 9laminar cracking to be -- that was identified in other 10portions of the building?

11MR. BURDICK: So the laminar cracking is 12in different places of the building. We believe 13through those activities with the impulse response, as 14supplemented by other core bores, we were able to 15characterize where it is. So it is in different parts 16of the shield building.

17JUDGE TRIKOUROS: All right. So as of 18let's say -- what's that document, RCA 1, the first 19root cause, you've had it characterized. There was no 20laminar cracking anywhere other than what you 21identified, and you put in place an AMP, which 22included 20 core bores to examine those over the aging 23program. Okay.

24But the conditions for which the laminar 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 760cracking occurred in the first place are still present 1over this entire building; is that a correct 2statement?

3MR. MATTHEWS: To the extent the rebar 4spacing that you're -- that we discussed initially, 5the rebar spacing concern --

6JUDGE TRIKOUROS: That was one of three 7criteria.

8MR. MATTHEWS: Yes. But it's the tight 9rebar spacing, not rebar spacing generally. That 10tight rebar spacing has already cracked. It's not 11subject to recrack.

12JUDGE TRIKOUROS: In that region. The 13rebar, I mean the rebar is throughout the building.

14So it's at that spacing, right?

15MR. MATTHEWS: The rebar at that spacing 16is limited to particular areas, the flute shoulders 17around the main steam line penetrations. The rebar 18spacing throughout the shield building is at a broader 19interval. It's not the tight rebar spacing --

20JUDGE TRIKOUROS: All right. So you're 21saying that the rebar spacing in other parts of the 22building is not the same as the rebar spacing where 23the cracking occurred, and are you further saying that 24the rebar spacing in the rest of the building would 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 761not be conducive to laminar cracking? Is that 1something you can say or not?

2MR. BURDICK: I think, you know, just to 3clarify. There is different rebar spacing around the 4steam line penetrations and along the top 20 feet of 5the shield building, and if I recall correctly, the 6rebar spacing is about six inches between the pieces 7of rebar.

8So the root cause evaluation looked at 9that, and looking at the blizzard of '78 with the 10sharp drop in temperature, the penetrating moisture 11with the wind-driven rain and the stresses caused by 12that event, were enough to cause the stresses, the 13smaller allowable stress with a six inch rebar to 14cause the laminar cracking.

15It did not cause it as extensively in 16other areas of the shield building. There is some17laminar cracking -- or beyond those areas, there is 18some laminar cracking in the shoulders on the shield 19building, which is also due to that design feature 20with the shoulders that are sticking out from the 21shield building.

22So those are the areas where the original 23laminar cracking was limited to, and also where we've 24seen the, you know, sort of propagation.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 762JUDGE TRIKOUROS: So it was around the 1flutes?2MR. BURDICK: That's right, that's right.

3But the mechanism is different from back then to the 4issues raised by the Intervenors in this contention, 5with the propagation identified in 2013.

6JUDGE TRIKOUROS: Did the moisture that 7occurred because of the original laminar cracking, did 8that moisture penetrate the building as a result of 9the blizzard, or was that moisture that was always 10there, but the combination of rebar and cold combined 11to cause the laminar cracking?

12MR. BURDICK: My sense a combination of 13both. But the shield building was designed. There 14was no coding specification, which would have been one 15of the -- I think the root cause from that 2011-2012 16evaluation. So because it didn't have a coating, 17there was some amount of moisture in the building, 18just because there was nothing to prevent it from 19coming in.

20But I believe that blizzard, then, was 21able to drive in more moisture at that time, combined 22with the other factors that Your Honor has mentioned.

23JUDGE TRIKOUROS: So it's a combination, 24okay. Can we talk -- I just wanted to get sort of a 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 763baseline understanding of things as we ask questions, 1and of course I wanted to elaborate a little bit on 2the -- what I think the Petitioners were saying.

3This moisture that's in this concrete is 4throughout the entire concrete structure right now; 5correct? Or well let me ask it that way. I could be 6more specific.

7MR. BURDICK: My understanding, there's 8moisture in the concrete. I believe it's certainly a 9higher amount of moisture towards the exterior of the 10shield building. But we believe it is migrating 11through the building or dissipating through the shield 12building.

13JUDGE TRIKOUROS: Okay. So the mechanism 14by which the root cause reports, or at least one of 15them said it would dissipate, is -- they refer to 16absorption and dispersement mechanisms. Could you 17perhaps -- they never explained that. So you have any 18explanation for that?

19In other words, this moisture is 20disappearing. At least that's what they're saying.

21MR. BURDICK: I'll try my best, and then 22someone can correct me and elaborate.

23JUDGE TRIKOUROS: I understand none of us 24here are structural engineers, as far as I know.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 764MR. BURDICK: So when -- it was October 12012. FENOC sealed the shield building with the 2coating, applied that coating. There was moisture in 3the building, because it was -- because there was no 4coating there before. So once they've sealed that, 5the shield building, it's preventing additional 6moisture from coming in. Also, it's preventing 7moisture from coming out.

8So there's a finite amount of moisture in 9there, and through the testing, it's primarily on that 10outer region of the shield building. But our 11expectation is that it will dissipate, which I think 12means migrate through the building. So it's not 13focused in the area of alignment of cracking, such 14that that moisture can support the ice wedging, 15because the ice wedging requires three things.

16It requires the laminar crack or requires 17an existing crack which is caused by laminar cracking; 18requires a freeze event; and then it requires a 19moisture -- the moisture has to be, I guess, a 20significant enough concentration to have water at the 21tip of that laminar crack, such that when you have a 22freeze event, the water expands and causes the stress.

23So the belief is that because there's a 24finite amount of moisture and it will dissipate, that 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 765it will dissipate to some point where there's not 1enough water or moisture at that crack tip to cause 2ice wedging.

3JUDGE TRIKOUROS: Now when you say 4dissipate, do you mean that it will migrate towards 5the annular region between the containment and the 6shield building on the inside surface of the shield 7building? I mean that's the only place this water 8could go, where it can eventually get out of the 9shield building wall; correct?

10MR. BURDICK: Your Honor, let me just 11confer if I can.

12(Pause.)13 MR. BURDICK: Thank you, Your Honor, for 14allowing me to confer. So the answer is yes, that 15when we discuss the dissipation of the moisture, it is 16towards the inner region of the shield building, 17towards the annulus. That's both because of the, I 18guess the concentration of moisture and there being a 19relative humidity gradient as well that will cause 20that moisture.

21JUDGE TRIKOUROS: So most of the moisture, 22then, is on the -- is within let's say ten inches of 23the exterior surface of the shield building? You're 24saying that's going to disperse towards the inside 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 766surface and eventually dissipate that way?

1MR. BURDICK: That's correct.

2JUDGE TRIKOUROS: Okay. One other point.

3In terms of freezing, I mean this is concrete. It's 4a thermal insulator effectively. The inside surface 5of this thing is seeing probably something like 6reactor building temperatures, I would assume. You 7know, my memory of PWRs I worked with, it's maybe 120-8130 degrees in that reactor building, which would get 9right through that containment and into that annular 10region.11I would imagine the annular region is well 12over 100 degrees normally. So some big fraction of 13that shield building is fairly warm. But it wouldn't 14propagate all the way through where you have a cold 15outside. So you would have some 2D distribution. I'm 16just making the -- I'm just trying to make myself 17understand the heat transfer situation here.

18So the freezing could only occur on the 19outside, you know, within let's say, pick a number, 20ten inches of the outside surface. Is that a fair 21assumption? Do Intervenors have an issue with that?

22MR. LODGE: Ten percent is outside 23surface.24JUDGE TRIKOUROS: Freezing can only occur 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 767on the outside, from the outside surface in of some 1amount of distance, because the other side of this 2building is very hot, and would propagate in some 3amount of distance. I know if you deal with 2D 4distribution, it wouldn't be above freezing except at 5some region on the outer surface.

6MR. LODGE: Yeah, correct. We're not 7prepared to stipulate to adjudicatory facts, but yes.

8JUDGE TRIKOUROS: Okay. I just want to 9understand. All right. Do you have any indication of 10how long it will take for this moisture to leave that 11building?

12MR. BURDICK: Your Honor, what the 13apparent cause evaluation concludes is that it's 14leaving the building. But as far as the exact time 15frame, you know, we have not determined that. I think 16what's -- another thing that's important here, based 17on this discussion, is the laminar cracking that we've 18seen is always in the same layer of rebar in the 19shield building.

20So it's always -- it's just in the one 21outer rebar layer. So when we're talking about the 22laminar cracking from 2011 and also any propagation, 23it's always in that layer.

24So I think, you know, this freezing 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 768question is also important is that some of -- because 1of the design of the structure with the shoulders, 2some of the locations of the laminar cracking are such 3that they're -- that they are much deeper than other 4locations, because of the slant of the shoulder.

5So we did see that, and that's discussed 6in the apparent cause evaluation. Some locations may 7only see one freeze event in a winter, and others may 8see more. So as it dissipates inward, you know, 9that's when the risk of this laminar crack propagation 10decreases.

11JUDGE TRIKOUROS: But does the AMP make 12the assumption that new laminar cracking will not 13occur anywhere else in this building?

14MR. BURDICK: Yes.

15JUDGE TRIKOUROS: That's the concern of 16the Petitioners.

17MR. BURDICK: Yes. There's no basis to 18assume that additional laminar cracking will occur.

19Now I'm distinguishing that from any laminar crack 20propagation. I think that's -- that's -- that's an 21unknown, because it depends on many different 22variables, including these ones that we've discussed.

23That's one of the key reasons why this 24shield building monitoring program is a monitoring 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 769program, is to monitor this. You know, we understand 1the nature of the laminar crack propagation, the ice 2wedging phenomenon. We understand what happened in 3the winters behind us. So putting these together, 4we've developed a monitoring program, and that's why 5we believe it's appropriate.

6JUDGE TRIKOUROS: Well for example, does 7the AMP require impulse response testing of the whole 8building at some frequency?

9MR. BURDICK: It does not require it, 10although there are statements in there that we can 11supplement the core bore inspections with additional 12methods, if appropriate. That's why when we monitor 13the core bores, I'm sure we'll talk more about their 14locations and we'll certainly explain that.

15But the AMP requires the monitoring of 16these core bores, and then it's watching for whether 17there's -- for the uncracked areas, whether there's 18new laminar cracking, and if there's core bores in 19cracked areas, whether there's a change in the nature 20of that cracking.

21If anything is identified, then that will 22be further investigated under the monitoring program, 23to determine if any additional options are needed.

24JUDGE TRIKOUROS: But the focus is what is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 770the regions that are cracked now. That's the focus.

1The focus is not to identify any new cracking. I mean 2the Intervenors point out that, you know, it's X years 3before this laminar cracking was found. It's not an 4invalid point. There's a lot more building.

5MR. BURDICK: Well, it's -- to this 6question, it's a combination. You know, certainly all 7these factors factored into our decision as to the 8number of core bores and their locations. Some of 9this is discussed on the docket in the November 2012 10RAI, where we explain the location of the 20 core 11bores.12But what we determined, based on our 13investigation and impulse response testing, was the 14laminar cracking was more focused on the southern 15exposure of the building, and also, as Mr. Matthews 16explained, on the top 20 feet of the building around 17the main steam line penetration.

18So we've selected the 20 core bores before 19this latest revision, to ensure that we covered many 20of those areas where the laminar cracking was most 21prevalent. But also some other regions, including the 22flutes and other regions, just to ensure -- to look 23for any other areas.

24But the purpose of identifying the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 771locations is to perform a representative sample of the 1shield building to inspect. I would also point out 2that although the shield building monitoring program 3has not been put into place, a very similar program 4has been in place under our maintenance rule, under 5the Part 50 license, that there's very similar 6inspections.

7And in fact it worked in a sense that it 8identified the laminar crack propagation, and I think 9is another indication of the reasonableness of using 10a monitoring program.

11MR. MATTHEWS: I think also, if I may, 12Judge Trikouros, to your point, with the discovery of 13the initial cracking, FENOC went out and did survey 14the whole building exactly as you're discussing, with 15numerous core bores and complete circumferential 16impulse response testing, and developed its 17understanding of where the cracking --

18JUDGE TRIKOUROS: Is that the 80 core 19bores that they referred to in the RCA 1?

20MR. MATTHEWS: 80 or 82.

21MR. BURDICK: So the impulse response --

22yeah, there's not a core bore, of course. I think 23that was 60,000 plus locations. I think there's more 24than 80 core bores or there had been throughout the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 772investigation. But right now, I think there are 80 1core bores that are in the building.

2MR. MATTHEWS: But to your point, the AMP, 3as originally proposed, was to assess -- we originally 4looked at where cracking might be, to discover the 5extent of the problem and develop the cause. From 6that, the AMP then looked at where cracking was, to 7see whether it was changing. There was no reason to 8go back and look at the other places that were 9uncracked.

10When crack propagation was discovered, 11FENOC modified the AMP in the areas of propagation.

12There was no reason, and there's been none asserted, 13why FENOC should go back and reevaluate the entire 14building now or elsewhere.

15Now FENOC did do more extensive core bore 16testing in response to this discovery of propagation, 17and did some impulse limited, more limited than the 18entire building impulse response testing. But there's 19been no indication and certainly no reason advanced 20why an entire diagnostic of the entire building is 21called for, either now or at any frequency going 22forward under a monitoring program.

23JUDGE TRIKOUROS: So basically, FENOC has 24the ability at any time to go and look at all of these 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 773core bores and make a very thorough investigation of 1this building. They don't want to be committed to 2that in the AMP; is that the way I read this? The AMP 3is basically 23. They run from 20 to 23.

4MR. BURDICK: I would explain it this way, 5that we don't think it's necessary, that the core bore 6monitoring or the shield building monitoring program 7uses core bores for a representative sample. So we 8believe that the 20 that we discussed, plus the 9additional three are appropriate, and satisfy all the 10requirements for a license renewal.

11But you're correct. You know, as we did 12in 2013, there are others we can look at if we need 13to, if there's, for example, an indication. But we're 14not committing to that. We don't think we need to.

15Judge Trikouros, if I may too, we've been 16discussing a lot of the technical aspects of these 17issues, and the shield building AMP. I just want to 18emphasize, that I think we've gotten into way more 19detail than have been provided in Contention 7 itself.

20I note that this Board has made the point 21to these Intervenors in I believe both the Contention 225 and Contention 6 orders, is they have to provide the 23support for the contention themselves in their 24pleading. The Board -- and so that's our argument.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 774We can't supplement their argum ents for them and 1develop, you know, some support.

2So I just want to make that point and make 3it clear on the record. You know, we're going to be 4on what was in the record.

5JUDGE TRIKOUROS: But I wanted to make 6sure that I understood the lay of the land, so to 7speak, because you know, we're not going to reach a 8decent decision if we have an unclear understanding of 9what it is that we're evaluating here.

10MR. HARRIS: Your Honor, for the staff, if 11I may add one thing, because I think it's also very 12easy to get confused with the terminology here when 13we're talking about cracking and the laminar cracks 14and then the cracking propagation, that we're really 15talking about two different things.

16It's been a long time since we discussed 17the laminar cracks in a lot of detail. One of the 18things that they found was with the laminar cracks is 19that it actually split through the aggregate in the 20concrete. So it was not, you know, what you would see 21with your ice wedging, when it seems to go around the 22laminar cracking.

23So people sometimes, when you talk about 24the cracks, is that we're really talking about two 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 775different mechanisms at the point, and that you can 1see the difference in the force. I'm sure we can go 2into detail, but I think it's important that we sort 3of distinguish between the laminar cracking and the 4propagation that we're seeing now, so that we don't 5get confused on the record as to what -- which one 6we're talking about.

7JUDGE FROEHLICH: Maybe this would be a 8good point for me to follow up with you or with the 9licensee. The purpose of the Aging Management Program 10is to discover cracks, as I understand it, and in the 11course of its operation, certain laminar cracks were 12found.13It's kind of addressed this -- the Aging 14Management Program as it exists, discovered or 15confirmed propagation of the laminar cracking.

16Correct me when I make a mistake here.

17And also, we have come across a phenomena 18of ice wedging, which leads to microcracking. Can you 19please explain to me the propagation portion of the 20laminar cracks, and how microcracking fits in either 21to the propagation or to the original laminar cracking 22that the AMPs are detecting?

23MR. BURDICK: Certainly. Thank you, Your 24Honor. Just to be fair, the purpose of the shield 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 776building monitoring program is focused on just the 1laminar cracking, to look for changes in the nature of 2that cracking and some other issues such as the 3coating.

4But as far as cracking, it's focused on 5the laminar cracking and just to be clear here, the 6program itself, it talks about laminar cracking and 7says we will monitor for cracking, changing material 8properties, lost material concrete. So but here it's 9focused on laminar cracking.

10The laminar cracking is really just 11referring to the cracks along this outer rebar layer.

12So in 2011, that was -- what was found is this laminar 13cracking along the outer rebar layer. When we're 14talking about cracked propagation, all we're talking 15about is that same laminar cracking just expanding.

16So it's continuing to expand. But it's 17still a laminar crack, but the 23 identification was 18when we talk about --, it's just propagation that 19laminar cracking. Microcracking is a whole separate 20type of cracking. So it's not directly tied to the 21cause of the ice wedging or vice-versa.

22Microcracking is discussed in the apparent 23cause evaluation, was identified in some of the 24investigations where we withdrew a core from the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 777shield drilling and analyzed it. I think one thing 1that needs to be clear is when we talk about 2microcracking, it's really to support the conclusion 3that there was ice wedging, because the microcracking 4is an indication that there's moisture in the building 5at that area.

6Because what microcracking is is the 7concrete, totally separate from this laminar cracking, 8has very small pores in it. So when those pores have 9moisture in it and you have a freeze event, then that 10moisture in those pores will expand as it freezes, and 11the microcracks are minuscule cracks coming from those 12pores.13So when we talk about microcracking in the 14apparent cause evaluation, it's just to show that 15there was water transport to where the laminar 16cracking is, to provide that moisture that's needed as 17one of the three prongs for ice wedging.

18JUDGE FROEHLICH: Microcracks are part of 19the laminar cracks?

20MR. BURDICK: No.

21JUDGE FROEHLICH: Okay. You want to try 22again?23MR. BURDICK: I understand. It's 24confusing here. To have ice wedging, there has to be 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 778moisture at that laminar crack. So before we talk 1about microcracking, you just have to have moisture at 2that laminar crack. If you have water at that cracked 3tip, it freezes. That will cause some expansion of 4that water at the crack tip, causing some stress, and 5that can propagate the laminar crack, and so that is 6the ice wedging mechanism.

7Microcracking is completely separate. It 8was something that was identified during our 9evaluation, and was an indication that there was water 10in the shield building, that would have reached the 11laminar cracking.

12So it's a separate mechanism. It was just 13an indication that there's water in the shield 14building, and it was one of the things we looked at in 15our failure methods analysis and the cause evaluation, 16that supported our conclusion that there was ice 17wedging. There's two separate things.

18MR. MATTHEWS: It's not a separate failure 19mode of the concrete.

20JUDGE FROEHLICH: Okay.

21MR. MATTHEWS: At least as identified at 22Davis-Besse, that has not been a concern.

23JUDGE FROEHLICH: And is your allegation 24different than that? It's not a separate mode or it 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 779is a separate mode.

1MR. LODGE: It is a separate mode.

2JUDGE FROEHLICH: You're suggesting it is?

3MR. LODGE: Yes. Microcracking can 4proceed radially, as opposed to laminar, which is more 5on the order of layered -- more tied, I would say, 6probably to the presence of the rebar.

7There are a number of responses we have.

8I first think that it is somewhat interesting that 9even though the staff and the FirstEnergy have argued 10vigorously that best not incorporate by reference our 112012 filings, we're talking about facts from the 2012 12filings that were raised.

13Thus proving that history is highly 14relevant to trying to figure out and get a grasp of 15what the future looks like in the shield building.

16There are many sources of moisture infiltration into 17the shield building, which date back to the 70's and 18to the construction of the building and the fact that 19it was left open for approximately three years, and 20that even in 1976, there were cracks that were 21identified on the roof of the shield building.

22Davis-Besse has, of course, had a history 23of boric acid leakage within the shield building, and 24water vapor and water leakage. So there are some 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 780sources also from the sand bucket region.

1We established from FOIA and other 2internal FOIA documents from the NRC that the concrete 3was sub-par and that particularly the concrete that it 4is in contact with or near the ground level of the 5shield building may be developing its own problems.

6There are barrier degradation difficulties, that 7there's lot of water source problems here.

8The discussion of the impulse testing is 9problematic because from what we discerned, that 10occurred before they applied the coating. So it would 11seem to us that those test results may be completely 12out the window and useless at this point, that there 13has been damage identified and now admitted by FENOC 14since that time, and apparently attributable to the 15fact of sealing the building, very very decades 16belatedly.

17The microcracking is far different. As 18Mr. Harris pointed out, the laminar cracks may have 19actually sheared through aggregate. The microcracks 20may be working their way around the more solid or more 21integral portions of the concrete.

22But the problem with the microcracking is 23that it is very capable of penetrating radially, 24inward from outside inward on the shield building.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 781Just one moment, please. I have notes. FirstEnergy 1has a policy that 1/16th inch surface cracks aren't 2even required to be repaired, meaning that there's a 3conscious determination to allow pathways for moisture 4to remain open as pathways.

5It is somewhat remarkable to note that the 6decision that's taken place just in the last half hour 7or so actually suggests very strongly that there 8should be an adjudication. So that instead of 9listening to unsworn representations of counsel after 10they've talked with their respective experts and 11engineers, and you know, that they're simply saying 12things that they're told, we can hear from those 13experts and engineers, and ask our own questions of 14them.15I think that this is a very complicated 16issue, that once again 23, you know, an additional 17three bore holes is not a significantly useful 18informational device. But it does constitute an 19admission that there are some big changes that have 20now been discovered, and now are admitted.

21JUDGE TRIKOUROS: With respect to the 22dissipation, the dissipation mechanism is not 23discussed in -- I just want to make sure -- is not 24discussed in the reports. We were just -- we were 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 782sort of thinking out loud, if you will, where water 1might be able to go.

2I mean it's rational, but it's not in the 3report. So I want to put that on the record.

4MR. BURDICK: The reports talk about 5water, potential water sources, and then that those 6potential water sources are no longer available, 7because of the sealing of both the shield building 8walls and the shield building dome.

9So I think with respect to dissipation, it 10does discuss that there's a finite amount of water, 11and there is some discussion about the humidity in the 12internal. So I think there is some support, even if 13it's not discussed in excruciating detail.

14JUDGE TRIKOUROS: Okay. Umm, I guess I 15was going to ask the question later, but maybe I 16should bring it in now.

17(Off mic comments.)

18JUDGE KASTENBERG: I appreciate your 19comment before about it's so easy to slip into 20technical discussions, because they're interesting.

21But I just wanted to clear one thing up on the 22timeliness issue that Judge Froehlich started at the 23very beginning.

24I just want to get a sense of something, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 783because clearly Petitioners claim that the contention 1is timely, and NRC staff made an opening statement and 2an argument that it's not timely. And as I read the 3licensee's submittal or pleading, you are kind of in 4the middle, I guess.

5It says here "Parts of Contention 7 are 6untimely," which leads me to believe that there are 7parts that are timely. So maybe we could kind of 8complete the discussion about timeliness before we get 9into the discussion of the technical questions and 10other issues regarding -- procedural issues. But 11maybe we can complete the discussion on timeliness.

12So where do we stand? We have it's not 13timely, we have it's timely and we have it's partially 14timely. Some parts are timely and some are not. So 15perhaps a statement from each party on this, and maybe 16we can go on to other things.

17MS. KANATAS: I'm happy to make a 18statement. Again, the standard in both 2.309(f)(1) 19and yes, it applies here, is that it's new and 20materially different. So while something might be new 21in terms of 60 days from the time filed, it also to be 22timely has to be materially different.

23I think that is the crux of staff's 24position, that none of the information cited to in 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 784Intervenors' Motion to Admit and Amend is materially 1different, and that it does not support the 2contention, and also that there were indications 3previously in the 2012 AMP that these type of 4modifications would be made, as well as the Contention 55 and 6 filings, which have already been considered by 6the Board.

7So that really -- it's the "and materially 8different" portion, I think, that we primarily focus 9on.10JUDGE KASTENBERG: So your argument is 11based on the idea that it has to be both, timely and 12material?

13MS. KANATAS: Yes, yes.

14JUDGE KASTENBERG: Not just timely or 15material?

16MS. KANATAS: Yes, correct, correct.

17JUDGE KASTENBERG: Got it.

18MS. KANATAS: And it must support the 19proposed contention, and in our mind, none of the 20information supports admissibility of the contention.

21MR. HARRIS: And just to add some facts to 22that, looking at some of the AMPs, and as they've been 23modified over the years, things like ice wedging and 24these kind of freeze-thaw cycles and crack propagation 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 785were contemplated in FENOC's response as early as 1April 5th, 2012, that you know, there could be freeze-2thaw cycles that could affect these.

3So these are all things that they would 4look at, and now that they've found it, they've made 5it more explicit in their AMP, you know, to look at 6these things, now that you're seeing the propagation 7that they contemplated in the AMP originally.

8MR. BURDICK: Thank you. Let me try to 9clarify our position here. I think the reference to 10different parts of Contention 7 are untimely was 11because we have multiple arguments for why different 12information is untimely.

13So as discussed in our answer on pages 54 14through 56, we identify certain topics discussed 15throughout the Contention 7, the original and the 16amendment, where they refer to documents or 17information that were available more than 60 days 18prior to the submission of Contention 7.

19So there are some arguments that fall into 20that category, things like discussing an Inspector 21General report from 2002. So things that were just 22simply old information, things like the 2012 and 2011 23emails on the design and licensing basis that just 24don't satisfy it for that 60-day reason.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 786But certainly they filed their contention 1within 60 days a couple of documents. So, you know, 2we can't say that there aren't some new facts in 3there. But what we do say, I think consistent with 4the staff, that there isn't any material new 5information in those documents.

6For that part of our argument, I'd point 7the Board to pages 52 through 54. So I think 8collectively, the contention is untimely. The 9confusion was we were making multiple arguments, not 10just the one. Just to reemphasize, I think our 11primary argument that we start with on timeliness 12issues is this one that I mentioned earlier about the 13Oyster Creek

.14This contention is really challenging the 15revisions to the shield building AMP that were made on 16July 3rd, 2014, and as the staff just explained now 17and we explain in our briefs as well, the Commission 18and the Oyster Creek Licensing Board concluded that 19adding additional inspections or other types of 20enhancements to an Aging Management Program does not 21provide a new opportunity.

22So that's the focus of our argument. I 23think that's the key point with respect to timeliness.

24JUDGE FROEHLICH: Okay. You have the last 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 787word on this.

1MR. LODGE: Thank you. As I understand, 2the staff's point is gee whiz, FirstEnergy promised, 3when they formulated their AMP, that they would stay 4open to new information and maybe develop some new 5data, and perhaps change their approach if there were 6reasons to change their approach.

7That's fine. That's a pledge. That is 8not an act. What has happened in the interceding time 9is that there is new evidence, there are new facts, 10there is new scientifically verifiable, objective 11information, and that information points in a new root 12cause direction.

13It points in the direction of an 14inescapable conclusion that the cracking phenomenon is 15ongoing, is not over, and is not solved, is not 16perhaps conceptually completely understood yet.

17So yeah. We were partly within the 60-day 18limit because we're pointing out is these earlier 19promises to stay open to changing the AMP, and there, 20yes, concededly have been some minor changes to the 21AMP in terms of changing the schedule of doing 22analysis work.

23But what the bigger problem is is that 24there is totally insufficient knowledge, based on the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 788changing conditions, based on the changing conditions 1caused in large part by the coating of the shield 2building. So the problem here is we're quite timely.

3The Intervenors raised this -- we made the 60-day 4limit, but we made the evidentiary limit.

5The public has not known of the 6considerable moisture infiltration problem. Nobody 7knows what the dissipation rate is going to be, how 8long it will take, what the winters are going to be 9like and how much further damage will occur before 10there is, I guess for want of a better word,11equilibrium again achieved to the 65 percent humidity 12level or whatever you want to call it.

13But the problem is is that we're 37 months 14into this, and we're still having these new revelatory 15discussions and discoveries, new propagation, new 16cracking and new methodologies for that cracking to 17occur. So I think it's quite untimely.

18JUDGE FROEHLICH: Mr. Lodge, I think 19you've outlined a number of the new elements. Could 20you address, I guess, the staff's perspective, that 21there's nothing materially different in these new 22elements, because I believe that was their point. Not 23that there are new, issued new facts that are coming 24to light.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 789But the second part of that, I guess, 1according to what the staff had said, is that they 2have to be materially different from what was 3previously in the record.

4MR. LODGE: Well the previous 5understanding was that there was a finite -- that we 6have identified the laminar cracking, we've identified 7the source, and we're going to slap a coat of paint on 8it, for want of a better word, high quality coating 9material, and we're going to change the penetration 10ability, of the resistance, if you will, of the shield 11building.

12Well, that's all been done and as part of 13a -- what's turning out in retrospect to look like an 14experiment, there are new implications for it. That's 15different. Please remember also, Your Honor, we're 16talking about when did the public -- when was the 17public finally let in on this information, and that 18did not occur until July.

19It may be two years old or two and a half 20years old, but it is -- it cannot be something which 21becomes the fault of the Intervenors for simply not 22knowing it. It is materially different because we 23have a new cause articulated by FirstEnergy's 24consultants, not by the public.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 790We have propagation spreading identified.

1So the new, materially new information is is that this 2is ongoing. It ain't fixed. It is not stopped. It 3has not been curbed, and I repeat. It may also not be 4fully understood. There are welcome and increasingly 5sophisticated scientific analyses that are starting to 6appear in PII's writing.

7But the thing is is that yes, there's 8considerable material difference between what we know 9as of July of this year, versus what we knew even in 10the spring of this year.

11JUDGE FROEHLICH: But Mr. Lodge, I mean 12let me just tell you what we have to deal with in our 13decision. If the previous AMPs had, you know, Content 14A in them and this July AMP has Content A plus B in 15it, the fact that there's a B in it doesn't mean that 16you have the legal right to go back and question the 17A part, which was available two or three times earlier 18in years.

19Now that's what we're being told, is that 20that is not admissible. You never submitted a 21contention that criticized A before, even though it 22was available.

23MR. LODGE: June 4th, 2012 we did, Your 24Honor, and we -- understand our contention is is that 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 791they don't know enough to be making the judgment calls 1they're making. This is -- particularly the earlier 2calls apparently were grossly erroneous, and I am 3operating from 20-20 hindsight here.

4But we did critique the AMP before. It 5was terribly insufficient; it wasn't really fully 6investigatory. The response at the time, and I'm 7willing to accept the Board's decision at the time.

8But the response at the time was "Hey, man. We've 9done all these impulse tests; we have been all over 10this building."

11But there's been a lot of change since 12that time, much of it initiated by the utility itself, 13and now a certain number of chickens are coming home 14to roost, and it is creating new problems. They 15actually could also be because of the more 16scientifically capable investigatory method of 17electronic microscopy. They may actually simply be 18identifying things that could have been identified had 19that technique been used in 2011-2012.

20But there's also propagation on top of 21that. There is new cracking besides. So I simply 22repeat. We're talking about a wait-and-see monitoring 23effort that is revealing new information, and the 24utility's saying "hey, the plan works. We're finding 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 792this stuff, and in fact we're going to now go to an 1annual basis for a while."

2But they do not have a knowledge base of 3the status of the entire building, and they're looking 4at new changes. It is not enough to say that we're 5going to keep looking at this for the remaining two 6and a half or three years of license activity under 7the 40-year license, and then we'll just continue 8keeping an eye on things.

9There's no plan for mitigation. There is 10some discussion of how the building is out of 11compliance with this licensing basis. I don't see how 12that gets -- how that passes muster and justifies a 1320-year extension at this point.

14JUDGE FROEHLICH: We're going to talk more 15about these others as this day progresses.

16JUDGE KASTENBERG: Thank you. I just 17wanted to follow up on something that Mr. Harris said 18before about the ice wedging, that there was some 19indication that there might be ice wedging in a pre-202014 report. Could you point us to where we could 21find that?

22MR. HARRIS: It is in a letter response, 23the July 3 modifications. No, that's not the right 24one.25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 793MS. KANATAS: Uh-uh.

1MR. HARRIS: There is -- FENOC had 2provided a number of responses to RAIs related to the 3Aging Management Program. There is an April 5, 2012 4response, and that ML number is ML 12097A520, and in 5the enclosure to it, it discusses cracking of concrete 6from freezing water that has permeated the concrete.

7It's monitoring the surface condition, the 8bore holes, the core bore samples and changing crack 9conditions and by visual inspection. So this is one 10of the things, one of the things that they were 11monitoring from the initial AMP, you know.

12As we continue to go through this, this 13same sort of language appeared in other responses and 14November 2012, 20-2012. That ML number is ML 1512331A125. It had very similar language in an 16enclosure. That can be found in Enclosure A, page 8 17of 12. These are letters that FENOC sent in in 18response to RAIs.

19Then when you get to the final one, and of 20course some of that becomes more explicit in terms of 21not just being in these enclosures; they're talking 22about now that we have this crack propagation, we're 23going to be trending it, you know.

Whereas before 24with those responses, there was not any indication of 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 794propagation.

1So you know, it was one of those things 2you don't need to explicitly say, I should trend the 3crack when I don't expect to find any crack.

4JUDGE KASTENBERG: Right.

5BH So it's just -- it's one of those 6that's almost implicit in what they were monitoring, 7that as soon as you find it, you need to trend it.

8MS. KANATAS: And if I may, Your Honor, 9getting at the timeliness issues in response to some 10of what Intervenors just said, to the extent that 11they're talking about this new cracking being 12materially different, it was the subject of their 13Contention 6.

14So it was August and September 2013, and 15the subject of Contention 6. So to the extent that 16they're talking about the full apparent cause 17evaluations ice wedging, as Mr. Harris just said, 18multiple submittals from 2012 and through these years 19have indicated that ice wedging aging effects may be 20identified, including ice wedging, and that ice 21wedging could affect rebar and coating effectiveness.

22To the extent that this is an issue about 23compliance with the current licensing basis, that's 24clearly outside the scope. Therefore does not support 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 795admissibility and gets at that materiality prong of 1timeliness. Thank you.

2MR. BURDICK: Judge Froehlich.

3JUDGE FROEHLICH: Yes?

4MR. BURDICK: Can I make one more point on 5the timeliness before we move off this topic? You 6know, I've heard from their Petitioners in their 7explanation a few times today. They talk about how we 8didn't think there would be propagation.

9There is some discussion about it in our 10root cause evaluation, that we didn't expect 11propagation from I think it's thermal fatigue. But 12regardless of that, we put in -- in 2012, we 13deliberately put in the shield building monitoring 14program to monitor exactly for propagation, to look 15for these types of incidences, events.

16So it functioned, and that's really our 17timeliness argument here, is we had a program in 18place. Part of the discussion of the Commission in 19the Oyster Creek decision that I referenced earlier 20was they referred to some of the Licensing Board's 21discussion of, you know, why you shouldn't be allowed 22to keep doing this, that if the Petitioners have a 23problem with this enhanced program that has additional 24inspections, you know, a shorter or a larger 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 796frequency, then they should have had a problem with 1the earlier monitoring program and should have 2challenged it then. So that's really our argument 3here.4JUDGE FROEHLICH: Did the earlier program, 5the AMP deal or address the microcracking?

6MR. BURDICK: The shield building 7monitoring program has never been designed to address 8microcracking itself. Instead, there's a separate 9AMP, the structures monitoring AMP, that addresses 10other types of cracking within concrete structures, 11including microcracking.

12JUDGE FROEHLICH: Yeah. I think certainly 13the answer, looking at the FACE report, quotes 14something. It says "Performance International 15concluded in RCA 1 that the general determination, it 16was not likely to propagate." That was the original 17conclusion.

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

22MR. BURDICK: And Your Honor on that 23point, we're not disputing that. We acknowledge that 24in that document. But our point is notwithstanding 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 797that conclusion, we still put in a shield building 1monitoring program to monitor for propagation, and it 2functioned. It identified the propagation.

3So that's from a timeliness perspective is 4our argument there, consistent with the Oyster Creek 5case.6MR. HARRIS: And Your Honor, just to 7address the microcracking a little bit, microcracking 8is somewhat inherent on all concrete structures, you 9know, because there is water present in them. So any 10structure that's getting a freeze-thaw cycle, that was 11true when we started this proceeding a long time ago, 12that you know, microcracking is an inherent part of 13any large concrete structure.

14MS. KANATAS: In the FACE, the Full 15Apparent Cause Evaluation discusses this on page 63 of 1698. The presence of moisture is inherent in any 17concrete structure, and as in the case of the shield 18building, it was not believed to pose any challenges 19to the coating effort.

20JUDGE FROEHLICH: Okay. Well, what I'd 21like to do is take about a ten minute break at this 22point, and collect our notes, and I'm going to get 23into the contention itself and move away from some of 24the timeliness and groundbreaking -- the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 798groundbreaking or the initial portions of this.

1So let us stand in recess for just ten 2minutes. We'll resume against 11:00 a.m. Thank you.

3JUDGE TRIKOUROS: I just have a couple of 4preliminaries I hadn't finished before and I want to 5-- this deals with which parts of the shield building 6were originally coated. There seems to be some 7confusion and I wanted to make sure I understood that.

8As I can determine from looking at RCA1, the portion 9below grade of the shield building was waterproofed 10back in the '70s and also the dome of the shield 11building back in '76, I believe. Is that correct?

12MR. BURDICK: Let me check on the dome, 13Your Honor.

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

18The dome, there was some evidence of some coating 19applied prior to 1976, however, the dome and the 20above-grade walls were all re-coated in -- or coating 21was applied in October of 2012 as a corrective action 22from RCA1.

23JUDGE TRIKOUROS: So the dome was also 24coated at that point? Nothing was done below grade 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 799though, right?

1MR. BURDICK: Just there was a waterproof 2membrane, but not the same type of coating about, yes.

3JUDGE TRIKOUROS: I just wanted to read 4from the root cause report. It says, "The shielded 5building dome lacks susceptibility to the causal 6factors for concrete cracking found in the 7architectural flute shoulders involving waterproof 8coating on the exterior surface." It says, "The 9discontinuities, stress concentration factor and the 10intermediate radial reinforcing steel and high-density 11reinforcing steel. Therefore, only the remainder of 12the accessible above-grade exterior wall of the shield 13building should be examined similar to those." Is 14that where we are and this is correct?

15MR. BURDICK: That's correct from the --

16the conclusions in that RCA1 document was it was the 17shield building walls and portions of those that are 18susceptible to the laminar cracking that was 19identified at that time. And then no laminar cracking 20was identified except for in those areas of the shield 21building wall above grade.

22JUDGE TRIKOUROS: Does the AMP exclude 23these areas, specifically the dome and the below-grade 24or do you know if they've ignored and just --

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 800MR. BURDICK: Because there was no laminar 1cracking identified in the dome and their conclusion 2was it's not susceptible. It's excluded from the 3extent that the Shield Building Monitoring Program is 4monitoring for additional crack propagation. That 5same Shield Building Monitoring Program also covers 6the coatings. And so the coating applied to the 7shield building dome in October 2012 is covered by 8that AMP.

9JUDGE TRIKOUROS: Okay. Thank you.

10JUDGE KASTENBERG: So I wanted to get now 11more to the technical aspects of the contention as 12proffered by petitioners. And first is the question 13of the containment, the concrete structure itself.

14And in your answer you summarize the function of the 15structure. You said, "As stated in the LRA the shield 16building is a concrete structure surrounding the 17containment vessel. It is designed to provide 18biological shielding during normal operation and from 19hypothetical accident conditions."

20So I'm curious about the hypothetical 21accident conditions. And can you say whether that 22includes both design-basis accidents of a hypothetical 23nature and/or what used to be called Class 9 or 24beyond-design-basis, which I think now are called 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 801severe accidents? So can you clarify what you 1actually mean by "hypothetical accident conditions?"

2MR. BURDICK: Certainly. The shield 3building, given that it is a two-and-a-half foot thick 4wall with concrete with rebar in it, provides some 5amount of biological shielding no matter what just 6because of its nature. Any radiation would be 7directed out the wall. Some of that would be 8mitigated by the wall. And so I think this discussion 9here is certainly during regular operating conditions, 10but also would provide some protection.

11Let me check though, if you'd like, Judge 12Kastenberg, whether there are specific accidents that 13are accounted for. I don't know that level of detail.

14MR. HARRIS: Your Honor, I might be able 15to add something to that while he's checking. At 16least in terms of the technical requirements for the 17reactor is we're dealing with what are traditionally 18called design-basis accidents in terms of their 19intended functions, so these severe accidents, what 20used to be called Class 9 accidents or beyond-design-21basis accidents. So where this tends to get 22overlapped is when we start looking at severe accident 23mitigation analysis. Its intended function would be 24for the design-basis accidents required as part of the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 802regulations which do include some beyond-design-basis 1accidents: station blackout, ATWIZ, those kind of 2things.

3But in general I think for what you're 4referring to the severe accidents that are account for 5in the SAMA don't actually take any credit for the 6concrete shield building.

7JUDGE KASTENBERG: That's where I was 8going with this line of questioning. Thank you.

9MR. MATTHEWS: I'd add one caveat there, 10Judge Kastenberg. And that is correct, with the vast 11majority of the SAMA the analysis assumes that there 12is no shield building in the release path. There are 13some SAMA for interfacing system loss of coolant 14accidents where you have penetrations through. And so 15in small-break LOCA analysis there are some that 16consider the flow path there, the flow path up through 17the shield building vent, a very small considerate in 18the SAMA analysis. But that is the existence of a 19vent path, not the exterior laminar coating.

20JUDGE KASTENBERG: Yes. So, reflecting 21back on your SAMA analysis, I guess the way I would 22phrase the question is do you take credit for the fact 23that the shield building is there or is not there? In 24other words, did it enter at all into any of your 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 803consequence calculations in your SAMA?

1MR. MATTHEWS: And I'm not clear whether 2it's the consequence -- the maps or the max piece of 3it. I'm not a SAMA expert.

4JUDGE KASTENBERG: I get that.

5MR. MATTHEWS: But for a small subset of 6the small-break LOCA accidents, the interfacing system 7there is credit for the pathway between the 8containment and the shield building. So it's a 9qualified yes. There is some consideration of it.

10It's interesting, but as a contention of 11omission there's no suggestion why cracking on the 12exterior surface of the shield building is in any way 13relevant to the analysis. There's no discussion of 14what's wrong with it. There's not even a reference to 15the analysis itself, whether it's the identification 16of AMPs, the screening of AMPs, the assessment of 17AMPs, the cost benefit evaluation of the AMPs.

18There's no reference to any of that. Just SAMA as if 19it were some incantation that trumps the contention 20admissibility rules.

21To the extent it's a contention of 22omission it would have to identify and explain the 23legal requirement and the technical requirement why 24somehow this changes the outcome of the SAMA analysis 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 804in some material way. There's nothing there. It just 1says SAMA should be considered and they invite the 2Board to conduct some investigation. So on the 3threshold matter is the contention sufficient?

4There's nothing there to assess. The discussion we 5are having or started to have is more on the merits of 6it, and cracking would have no effect on the SAMA 7analysis.

8JUDGE KASTENBERG: Thank you. Well, 9perhaps we should ask Mr. Lodge to --

10MR. LODGE: Thank you. The incantation is 11that a couple of NRC engineers projected in 2011 that 12there was a possibility in the event of a minor 13earthquake or a heat event within the containment of 14the reactor that there could be a serious, if not 15massive, collapse of a lot of the shield building 16material down to a thickness of perhaps three or four 17inches in the inner rebar layer. That has not been 18discussed. There certainly are some questions about 19the loss of the filtering action that is performed by 20the building. It's not simply mumbling SAMA as though 21it were something sacred and indecipherable, although 22it is both of those things, too.

23JUDGE KASTENBERG: Can you tell me is 24there any indication in your pleadings as to what you 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 805think the effect of the cracks would be or the 1collapse would be on the SAMA analysis itself, how it 2might actually change the result? Is there anything 3in what you've submitted to us?

4MR. LODGE: Well, you mean besides the 5obvious fact that perhaps 90 percent of the concrete 6function to protect from outside missiles and that 7sort of thing would be gone?

I mean, I think that 8there's a certain obvious problem that would occur.

9There's also the opportunity of, as we 10said I think at page 14 of our reply on October 10th 11-- we cite an NRC engineer who talks about if there 12were loss of concrete FACE material, that there could 13be a collapse of the rebar. And if you're talking 14about a collapse of the rebar in the direction of the 15containment, the containment is an inch or an inch-16and-a-half thick steel shell with its own corrosion 17problems, incidently, and I haven't heard or seen 18anything that suggests that it would be strong enough 19to hold up a significant hundreds-or-thousands-of-20tons-kind of collapse of shield building material onto 21it.22JUDGE KASTENBERG: But how would you 23envision, given that scenario, that the reactor itself 24would still be operating at that point?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 806MR. LODGE: How would I envision it would 1still be operating?

2JUDGE KASTENBERG: Yes, I think we heard 3staff say this morning that in extended operation of 4the plant that if for some reason the concrete vessel 5reached the point where it's no longer function-able, 6the reactor would have to be shut down. And in a 7shutdown state how would you envision a severe 8accident taking place?

9MR. LODGE: I think a severe accident took 10place at one of the reactors at Fukushima that shut 11down, too. I think shutdown reactors certainly can 12pose some problems if there is a massive failure such 13as we're talking about. And this is not to dodge it, 14but under NEPA the responsibility of the public, of 15the intervenor, is to raise the unconsidered 16potential, not to necessarily explain every nuance of 17what might happen as a result of the scenario. I 18think that there would be some serious problems 19occasioned by destroying a reactor that's in a 20shutdown state, or damaging it.

21(Off microphone comments) 22MR. LODGE: That's true, too. My friend 23points out that an earthquake could potentially cause 24a very rapid, if not sudden, collapse of a perhaps 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 807operating nuclear reactor.

1JUDGE KASTENBERG: And do you have any 2data to indicate that earthquakes are an important 3external event for Davis-Besse?

4MR. LODGE: In 2012 -- it's in the record 5some place, but in one of our filings we identified a 6document as V1, which actually does talk about that.

7MR. MATTHEWS: Judge Kastenberg, if I 8might respond? The intervenors point to some staff 9emails, internal discussions in the deliberative 10process that they've referred to in the previous 11iteration of the contention that have no connection to 12propagation. So we're untimely in the first instance.

13But coming again to those points, they're 14internal discussions that are in conflict with the 15staff's ultimate conclusion. The staff, to its 16credit, was looking very hard at FENOC's analysis.

17FENOC's analysis concluded that the shield building 18was capable of performing its intended functions. The 19structural integrity, even discounting a conservative 20discount for the rebar, was still able to perform its 21intended function. It was able to withstand the 22seismic qualifications, the seismic requirements.

23The staff came to that same conclusion.

24And the staff as recently as May of this year 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 808reiterated that same conclusion at looking at the 1analysis. The laminar cracking phenomenon has not 2impacted the shield building in the way the 3intervenors suggest. And all they ride on is an 4internal staff deliberation. Even it were timely, 5there's no basis for it.

6And to your point do they identify 7anything wrong with the SAMA analysis or suggest how 8it would change, I think the omission in the answer 9answers it.

10MS. KANATAS: And I would add to what was 11just said. In support of Contention 5, when these 12claims about internal emails that the staff was having 13in relation to the restart of the reactor, there were 14mis-characterizations that were just repeated. And I 15would just point to the affidavit of Abdul Sheikh that 16was submitted as part of the Contention 5 filings, 17which we discussed two years ago at oral argument when 18these claims were raised before. And again, they do 19have to do with the ability of the plant to restart.

20And as Mr. Matthews just indicated, the 21shield building is classified and designed as a 22seismic class 1 structure, which means that it is 23designed to remain capable of performing its functions 24even during and following a design-basis or safe 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 809shutdown earthquake event. And as Judge Kastenberg 1alluded to, if the shield building was determined not 2to be operable, it would have to shut down. And when 3a plant is shut down, the gaseous effluents and direct 4radiation levels within the plant are significantly 5reduced. Thank you.

6MR. LODGE: Judge Kastenberg, just to 7answer your question, in what I'm guessing to be 8approximately 1983 the ACRS raised some serious 9questions in a document called, "Licensing Basis 10Seismic Ground Motion Concern." We identified it in 11connection with one of our 2012 filings as Exhibit 12B/1. I'd be happy to provide it if you want to make 13a copy.14JUDGE TRIKOUROS: I guess since we got 15into design-basis analyses, we might pursue that a 16little bit.

17Okay. First of all, in the May 12th, 2014 18inspection report it indicates that FENOC had 19completed two calculations presumably to reestablish 20the design-basis of the shield building. And I guess 21the inspectors looked at those calculations. Do you 22know what the status of the NRC review of those 23calculations is?

24MR. HARRIS: I believe there is one 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 810unresolved item. I don't believe it's the actual 1calculations, but one of the methods that they used.

2I can't really comment too much further on that 3because it's still being under consideration within 4the staff in terms of that, what they submitted.

5JUDGE TRIKOUROS: Okay. Well, as I 6understand it, again, just from the material in the 7record, there's a method of spherical shells that 8apparently is what the USAR calls for for the design-9basis calculation for the shield building. I believe 10these calculations were done using ANSYS, a modern, 11more computer-oriented calculation. And from what I 12can see, it's a URI. What is that?

13MR. HARRIS: Unresolved item.

14JUDGE TRIKOUROS: Unresolved issue, or 15item, right. So what does that mean?

16MR. HARRIS: Let me try to sort of start 17a little bit earlier. There are two things: When a 18plant finds a condition of a component that is 19different than it was built to is it -- it can be in 20a degraded condition. And so one of the first things 21plants do is to do an operability determination to 22determine whether or not the plant as it currently 23exists can meet its intended functions.

24And for doing an operability determination 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 811you can use a different method of analysis to show 1that it would still be able to meet all of its 2intended functions as opposed to the analysis of 3record. Then when they've gone back to go to 4reestablish the design-basis, you have to look at sort 5of the analysis of record and in terms of how that all 6fits together.

7One of the unresolved items, as you 8mentioned, is what was originally done back before we 9had modern computers to do a lot of this analysis was 10really sort of a spherical hoop analysis looking at a 11section instead of a more finite element analysis that 12you can now do with these. And so that's the 13unresolved item of how that should be used in terms of 14reestablishing the design-basis.

15JUDGE TRIKOUROS: Well, then let's assume 16that -- I mean, certainly ANSYS -- somebody would 17argue ANSYS is a better method than the old method, 18but would that require a license amendment? And I 19guess my is is do you know if there going to be a 20license amendment request issued?

21MR. HARRIS: I do not know if there will 22be a license amendment request issued. I'm not sure 23that that's contemplated at that time. That's part of 24what the staff is currently looking at right.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 812JUDGE TRIKOUROS: Do you have any insight 1into that?

2MR. BURDICK: No, I agree with what I've 3heard. But just to provide a little more background 4on this, this May 2014 inspection report relates to 5the efforts that came out of a corrective action from 6RCA1. And so at that time back in 2011-2012 FENOC, in 7talking to the staff, determined that the plant was 8operable but non-conforming, and then had the 9corrective action then, then developed this design 10evaluation that Your Honor has raised. And so, FENOC 11went through the process of significant testing and 12developing this evaluation.

13And then FENOC; the way the process works, 14looked at its existing licensing basis and design-15basis and updated its design-basis documents to 16incorporate this new design evaluation that relies on 17these test results and everything. And so it did 18that, and through its processes determined a license 19amendment was not needed. But then now is discussing 20with the NRC. So I think that's where we're at is 21there's still ongoing inspection and discussions as to 22what happens.

23But I think what's key to point out here 24is this question though is part of the current 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 813licensing basis and outside the scope of this 1proceeding. I know the intervenors raised questions 2about FENOC's compliance with the current licensing 3basis and design-basis in a number of different places 4and we've argued; I think it's in our answer at pages 540 to 44, or 42 to 46, that that's outside the scope.

6And I think that's true of this question as well.

7Regardless of whether a license amendment is 8ultimately determined we need it, that's going to be 9separate and apart from this license renewal 10proceeding.

11JUDGE TRIKOUROS: But as of this moment 12the design-basis of the shield building has not been 13reestablished?

14MR. BURDICK: From FENOC's perspective it 15has been reestablished. So all these activities after 16the root cause evaluation of 2012 led to FENOC 17updating its updated safety analysis report of USAR.

18So that now includes discussion of laminar cracking 19including this design evaluation. So from FENOC's 20perspective it has updated its licensing basis.

21And additionally, in 2013 after 22identification of laminar crack propagation, FENOC did 23a similar exercise, looked at its design-basis 24evaluation to first ensure that the additional 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 814propagation identified fell within that design 1evaluation, but then again updated the USAR to provide 2some additional discussion of the laminar crack 3propagation event.

4So again, I think the key point is from 5FENOC's perspective it has updated the design-basis 6and licensing basis to address laminar cracking and 7laminar crack propagation. And it's under the Part 50 8inspection process.

9JUDGE TRIKOUROS: Well, in terms of 10contention admissibility the AMP would have to make 11some conclusions regarding design-basis acceptability 12if more cracks were found in the course of the AMP, 13implementing the AMP. In the period of extended 14operation now I'm talking about. Are those 15investigations considered current licensing basis even 16within the extended licensing period associated with 17the AMP?18MR. BURDICK: Let me explain it this way:

19So the definition of current licensing basis is in 10 20CFR 54.3, and that includes regulations, commitments, 21but also the updated safety analysis report. So from 22our perspective this design evaluation is within the 23updated safety analysis report and so it is part of 24the current licensing basis.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 815The Aging Management Program then is 1separate from that in the sense that the standard for 2license renewal in 10 CFR 54.29 assumes that that 3current licensing basis goes into the period of 4extended operation, but then changes are made as part 5of the license renewal process to ensure that any 6aging effects during that period of extended operation 7are managed in a way to ensure the intended function.

8So we've proffered, we've put forward this 9Shield Building Monitoring Program as part of the 10license renewal. If something were identified as part 11of that monitoring, certainly we would not be 12prohibited from looking at our current licensing basis 13to look to see if there's something that's at issue 14there, but that alone does not pull the design 15evaluation into the license renewal. It's still part 16of the current licensing basis.

17JUDGE TRIKOUROS: So if something is 18discovered, additional cracks are discovered as part 19of the AMP implementation in the period of extended 20operation, I'm assuming then they're referred to the 21plant's Corrective Action Program? There's nothing in 22the MAP that says here's what we're going to do other 23-- and I don't even think it says Corrective Action 24Program. But in any event, from my experience, it 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 816would have to go to the plant's Corrective Action 1Program.

2MR. BURDICK: That's correct.

3JUDGE TRIKOUROS: Which would then apply 4the licensing basis methodology for evaluation?

5MR. BURDICK: That's correct and --

6JUDGE TRIKOUROS: Whatever is agreed to in 7all of this would become then the current licensing 8basis, right?

9MR. HARRIS: I think that's generally 10right. You're sort of looking at acceptance criteria 11for what you find. Those cracks, are they large 12enough to no longer meet the acceptance criteria for 13the design? And then you would have to figure out how 14to either show that the building was still operable, 15basically similar to what was already done now, or 16what kind of repairs you might have to make in light 17of what you discovered at that point. But that's true 18of every Aging Management Program.

19JUDGE TRIKOUROS: So there's nothing 20different in the period of extended operation then 21today?22MR. HARRIS: In terms of the acceptance 23criteria? That's correct.

24JUDGE TRIKOUROS: Right, and except for 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 817the requirement to do the AMP investigations, which 1really today there's a requirement to evaluate that 2building as well. I just want to make sure I 3understand the --

4MR. BURDICK: And, Judge Trikouros, just 5two points: One is if the renewal license issues as 6requested, then the AMP does become part of the 7current licensing basis, or the licensing basis at 8that time. And so they're working together. And so 9my comments earlier were to distinguish what's part of 10this proceeding, as part of the license renewal 11review. But when you're actually in the period of 12extended operation, that's all your licensing basis, 13and so they're certainly working a function.

14And I'd just point out in our July 3rd 15revision to the AMP -- and actually this has been in 16there the whole time, but it does specifically mention 17that if the acceptance criteria are not met, then the 18indications or conditions will be evaluated under the 19FENOC Corrective Action Program. And so that is the 20process.21JUDGE TRIKOUROS: So that's good.

22MR. BURDICK: Yes.

23JUDGE TRIKOUROS: And that Corrective 24Action Program would implement the current licensing 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 818basis analytical methods for doing that analysis?

1MR. BURDICK: So if something were 2identified as part of the Shield Building Monitoring 3Program, and there are certain criteria -- and all of 4this has been in here, but it talks about a 5discernable change. So if we were to identify a 6widening of a crack or additional propagation in the 7laminar direction crack; so some change, then we would 8put that into our Corrective Action Program. And that 9would drive us to look at the design evaluation, of 10course, just to make sure that it's still appropriate.

11JUDGE TRIKOUROS: Okay.

12MR. HARRIS: And, Judge Trikouros, just to 13indicate how long that's been in there, it was 14actually -- originally that same language about the 15Corrective Action Program was in their April 5th, 2012 16response under the acceptance criteria. It's on pages 1713 and 14 of, 15 and it's the enclosure that's 18attached to that response. I mentioned the ML number 19before, which is ML 12097A520. But it says basically 20if the acceptance criteria is met, then the 21indications or conditions will be evaluated under 22FENOC's Corrective Action Program.

23JUDGE TRIKOUROS: All right. Okay. So I 24think I understand how that works.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 819I just wanted to ask, Mr. Lodge, do you 1have any problems with what we just discussed?

2MR. LODGE: We do. I'm going to defer to 3Mr. Kamps to respond.

4MR. KAMPS: Just big picture, we're over 5three years into this cracking phenomenon, going back 6to October of 2011. And we were promised, for 7example, at the town hall meeting in Oak Harbor, Ohio 8at the high school that current licensing basis would 9be restored. I believe it was by December of 2012 at 10that point. We've cited in our recent filings that 11there is an interplay that was admitted to between 12current licensing basis and license renewal 13application. There's a lot of overlap. It's 14incredible that we're this far into this discussion, 15three-plus years, and we're still talking about it.

16And I would refer you back to what we've 17cited by reference, our 2012 filings, which would be 18the July and perhaps also the August, those three 19filings, where based on the FOIA return, which is 20right here, it was very apparent from October-November 212011 that the staff, whose emails we have cited 22repeatedly for all these years, were very concerned 23about the loss of current licensing basis at Davis-24Besse. 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 820And what was really incredible to us was 1the morning of the confirmatory action letter that 2allowed the rushed restart, December 3rd of 2011, 3there were still questions being asked by NRC staff.

4And they were abruptly stopped. The call was issued 5and the plant has been operating ever since with 6problem after problem piling up that we've cited. And 7this seems to be the way things have gone these past 8several years. This is going to continue on into the 9license extension.

10And that is our objection. It's very 11loose. The definitions are very loose. The 12commitments are very loose. I heard FirstEnergy's 13attorney say that impulse response testing could be 14deployed, if need be, but there's no commitment to do 15that. It's a very amorphous moving target that we're 16dealing with. And that's why I emphasize those 17initial responses to the severe cracking, which we now 18have established FENOC has admitted is worsening 19significantly, which was denied previously. So I 20refer back to those initial responses by NRC staff 21that this is a serious problem. And it has been 22pushed off. The can has been kicked down the road 23repeatedly for years now.

24JUDGE KASTENBERG: Yes, just a follow-on 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 821to that. I appreciate your concern, but if I read 1your contention literally, that's not what your 2contention is about. At least the way I read it, the 3crux of your contention is that the AMP itself is 4inadequate. And you cite scope or location, you cite 5frequency, you cite number of bore holes and so on.

6That's the heart of your contention. And I appreciate 7your concern of this other matter, but I don't see 8that in the way you've stated this contention.

9MR. KAMPS: We've certainly --

10JUDGE KASTENBERG: Am I misinterpreting 11what you've written here?

12MR. KAMPS: I think so. We've certainly 13raised the interplay between current licensing basis 14and the license renewal application. I thought I just 15heard FirstEnergy's attorney admit that there is that 16interplay, that these commitments in the AMP are a 17part of the current licensing basis. Once April 23rd, 182017 arrives, what is currently a future commitment 19during the license extension under the Aging 20Management Program will then become a part of the 21current licensing basis.

22So these splitting of hairs that are going 23to allow this license to be renewed is what concerns 24us, that there's no firm commitment, that those 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 822impulse response tests that seem to be a part of the 1possibility that haven't been done since cracking 2propagation was admitted to, or perhaps even occurred, 3will ever happen. We don't know the status of the 4shield building in the current moment and we're not 5sure that we ever will under these loose commitments, 6which are no commitments at all.

7JUDGE KASTENBERG: Do you have a response 8for that?

9MR. BURDICK: Well, so first of all, the 10description of -- I guess my description of the 11current licensing basis and license renewal simply 12describing how it works in the license renewal13regulations at 10 CFR Part 54, Section 54.29 discusses 14the current licensing basis in the standard for 15license renewal. And then Section 54.30 specifically 16addresses that the staff's review should not cover the 17current licensing basis. If something comes up 18related to the current licensing basis, then I direct 19it to their NRR folks that address the current 20operating.

21So I was not making any revelation here.

22Simply describing the regulations. And just point out 23here, too, in this proceeding under 10 CFR 2.335 the 24intervenors are not permitted to challenge the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 823regulations, if that's what they're trying to do here.

1This is simply describing how the process works.

2MR. KAMPS: I found the citation I was 3referring to. It's page 12 of our October 10th, 2014 4filing. It's footnote No. 5 where we point to NRC 5regulations that show that current licensing basis and 6license renewal application overlap, have interplay, 7have an interchange. And that's our concern.

8JUDGE TRIKOUROS: All right. Well, let me 9ask the NRC, or the staff, the current obligation of 10Davis-Besse with respect to -- first of all, let me --

11I prefer to use the term "design-basis of the shield 12building," but the current licensing basis is a 13broader a thing and certainly would include the AMP in 14the extended period of operation. I don't think 15that's anything new.

16But in any event, would the license 17renewal for this plant be issued if the design-basis 18of the shield building were not adequately 19established, I guess is my question.

20MR. HARRIS: That's a big question because 21in terms of what do you really mean by "adequately 22established?" If the shield building could perform 23its intended functions, then -- and met its design-24basis, whether that was the -- or the design-basis 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 824when it was built. or if it was modified through 1either the 50.59 process or through a license 2amendment, then yes, you could issue the license 3renewal. But in terms --

4MS. KANATAS: Sorry. Assuming that we 5also found that FENOC's AMP adequately managed the 6aging effects as well.

7MR. HARRIS: Yes.

8JUDGE TRIKOUROS: Right now the shield 9building is operable but non-conforming.

10MR. BURDICK: Our view, we have updated 11our design-basis documents to address both the laminar 12cracking and the laminar crack propagation. So we 13have updated. That is our design-basis. So it's part 14of our updated safety analysis report. It's in the 15Part 50 inspection process, but that doesn't change 16the fact that that has been updated.

17JUDGE TRIKOUROS: Right, but there's an 18existing unresolved issue regarding the method of 19analysis that was used.

20MR. BURDICK: I don't think it's the 21method of analysis. I think it's a process question.

22It's not a substantive question about whether the 23design evaluation was sufficient. It's almost a 24licensing question or a process. Did we go through 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 825our process as far as looking at the prior approvals 1of the ANSYS, too. But based on the conclusion of 2that inspection report I don't think there is a 3substantive question here. It's just a process 4question. But it still doesn't change the fact that 5our design-basis addresses the propagation and the 6laminar cracking.

7MR. MATTHEWS: And it's a question, not a 8finding. It's an unresolved issue, not an inspection 9finding. It's not an apparent violation. It's a 10question the staff had.

11JUDGE TRIKOUROS: Right. I understand.

12So there is a design-basis calculation using i would 13say an advanced method of analysis that shows that the 14design-basis of the shield building is intact with all 15of the current cracking information included in the 16analysis. The staff review of that in the inspection 17of it indicated that they thought that that was 18correct, that that conclusion was correct. However, 19the method that was used didn't conform to the method 20that was originally used in the UFSAR, and therefore 21a URI was identified. Is that a correct statement?

22MR. HARRIS: If you're talking about this, 23that's the right way to describe it. That unresolved 24item is in -- as FENOC just described it, it's sort of 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 826a process question of how should that be put into the 1FSAR. And it's a complicated question with some of 2those codes and who has authority to approve different 3uses of it.

4JUDGE TRIKOUROS: So back to my original 5question now, in this context will that URI have to be 6resolved before the license amendment gets issued?

7MR. HARRIS: Can you give me one second.

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

14JUDGE TRIKOUROS: So it's falling under 15the umbrella of COB?

16MR. HARRIS: Yes, Your Honor.

17JUDGE TRIKOUROS: Okay.

18JUDGE FROEHLICH: Mr. Kamps, a moment ago 19you referred the Board to I guess footnote 5 on page 2012 of your pleading.

21MR. KAMPS: Yes.

22JUDGE FROEHLICH: And I just took a look 23at that. How does point (b) support the argument 24you're making? 54.30(b).

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 827MR. KAMPS: Well, as we have been from the 1beginning in 2010, we've been focused on the 2017 to 22037 time period. So we've been accused by both 3FirstEnergy and NRC staff that we're concerned about 4current operations. We certainly are. We're very 5concerned about them. But the basis of our 6contentions throughout have been on the license 7extension period.

8And so what I'm hearing today is that 9current licensing basis commitments under AMPs become 10current licensing basis on April 23rd of 2017. And so 11we're certainly going to challenge them. It's a part 12of our contention's theme. I mean, it's throughout 13this section F of our October 10th filing. Footnote 14No. 7 is also relevant. The entire section is 15relevant. The reason that I brought up the late 2011 16internal NRC emails is to emphasize the significance 17of the loss of current licensing basis. And I think 18it's very telling that here we are three-plus years 19later and this is still unresolved, very much so, and 20appears that that will continue. If I heard you 21correctly just now, Mr. Harris, that will continue 22indefinitely into the future.

23JUDGE FROEHLICH: Mr. Harris, how does 24paragraph (b), Section 54.30 support the argument that 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 828this is within the scope of license renewal.

1MR. HARRIS: It doesn't. It doesn't 2support that this was in the scope of the license 3renewal. It's the shield building. For hypothetical 4purposes if the shield building was non-conforming or 5degraded or out of compliance, that is an issue for 6current licensing basis inspection and 2.206 7petitions, not for license renewal. The scope of 8license renewal is limited to managing the aging 9effects through AMPs or TLAAs, or some combination of 10those structure systems and components that are 11passive.12JUDGE TRIKOUROS: Okay. Let me just ask 13this: If you decide that the new method is an 14acceptable method for doing the design-basis analysis 15for Davis-Besse shielding, would the applicant then 16have to file a license amendment request to modify the 17USAR to include that method as the new method?

18MR. HARRIS: Well, I think -- and I don't 19want to put words into FENOC's mouth -- is that 20they've indicated that they think that they have 21updated it already through the 50.59 process. That is 22part of what the staff is looking at in terms of when 23we went out to inspect that process. So through 50.59 24you can make changes to your FSAR that are -- and I 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 829don't want to quote or paraphrase that -- or not --

1there's a big long list of how you go through that 2process, but in terms of -- it sort of turns on safety 3significance of whether or not that should require a 4license amendment. So that is what the staff is 5concentrating on.

6MR. MATTHEWS: 50.59 allows different 7methods if they have been previously accepted by the 8staff. Judge Trikouros, I'm sure you've seen from the 9inspection report FENOC looked at where the NRC had 10accepted the ANSYS code and FENOC relied on that. The 11staff has a question, or the inspection report 12identified a question as to whether those were 13appropriate, whether those were sufficiently formal 14rigorous staff approvals in those applications for a 15licensee to use it in this application. So the staff 16is evaluating that question.

17JUDGE TRIKOUROS: Well, how does the USAR 18get updated? You just update it every two years and 19say here's the new method?

20MR. MATTHEWS: It's supported by a 21detailed 50.59 evaluation. And that was a part of the 22staff's inspection.

23MR. BURDICK: The USAR is a licensee-24controlled document. And if we identify some sort of 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 830update that we want to make or need to make, then we 1go through a process, follow the regulations in 10 CFR 250.59 to see if that's something that we can make on 3our own. There are certain screening criteria. If 4it's a tech spec change, for example, we need a 5license amendment. There's other things it can screen 6out. Then if it passes that screening, we look at 7these eight factors. If none of those are tripped --

8there are certain ways that we control that document.

9And then we provide reports to the NRC staff on --

10JUDGE TRIKOUROS: My understanding is if 11you use an entirely new method to do an analysis in 12the FSAR that that isn't a simple 50.59 pass-through.

13Now my understanding may be incorrect, but that USAR 14says you're going to use method A. You've done the 15analysis using method B. Are you saying the staff 16doesn't have to review your analysis at all? Because 17that's what --

18MR. MATTHEWS: 50.59 allows applicants to 19us methods previously accepted by the staff in 20addition to the one identified in your license -- or 21design-basis. Under 50.59 it evaluated the screening 22review, the review of the evaluation. Under the 23evaluation the regulation allows the licensee to apply 24methods that have been accepted for use by the staff.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 831JUDGE TRIKOUROS: Now the inspector 1looking at that said that this method of analysis has 2been used in the past but never with tracks like this.

3So that's part of this URI, I believe.

4MR. MATTHEWS: That's correct.

5JUDGE TRIKOUROS: And I'm trying to 6understand how this whole thing closes, because I 7think the petitioners are concerned about this. So, 8so far we haven't determined the closure point.

9MR. HARRIS: I think I now understand a 10little bit more of what you're asking. It could close 11in a number of different ways. The unresolved item 12could be closed in basically a follow-up to the 13inspection report that could find; and I'm not 14prejudging, I'm not saying what we will find, that 15there method of updating the FSAR through 50.59 was 16allowable under the regs.

17It could also find that using 50.59 to 18update that analysis was not acceptable in the regs 19and that there was some sort of violation in terms of 20updating that way and that it would actually have 21required a license amendment. And then the 22expectation would be that they would submit a license 23amendment under those situations. But it is an issue 24that requires some amount of work on the staff to sort 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 832of trace through this in terms of that particular 1part. 2I think ANSYS -- and you probably can see 3from the inspection report, it was used in the ESBWER 4analysis. It was used in one of the new reactors 5analysis in terms of being approved in new reactors.

6And that's some of where FENOC is citing to the 7staff's previous approval of ANSYS for this kind of 8structural analysis. And that's what the staff is 9working through right now.

10JUDGE TRIKOUROS: So one of the closure 11paths would include a license amendment that's filed?

12MR. HARRIS: It could. Yes, Your Honor.

13JUDGE TRIKOUROS: Right. In which case 14then the intervenors would have the opportunity to 15file a contention regarding that follow-up?

16MR. HARRIS: Right. Now, the intervenors 17also under 50.59, even if we closed it as it was an 18acceptable allowance, they could still file a 2.206 19petition that they're somehow outside the scope of 20their license. I mean, they're not foreclosed from 21challenging that change.

22MR. KAMPS: Could we respond at some 23point?24JUDGE TRIKOUROS: Yes.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 833MR. KAMPS: Just the 2.206 process is a 1black hole by design, apparently. I mean, our expert 2Arnie Gundersen who's with us here on the steam 3generator replacement at Davis-Besse in 2013-2014 4confirmed that something on the order of 1 in 200 52.206 petitions have ever succeeded. So we don't have 6the resources to waste on dead end by-design 7processes.

8The other rebuttal I'd like to put out 9there is on the 50.59 itself. That was really at the 10heart of our intention against the steam generator 11replacement in light of the debacle at San Onofre.

12And so the overlap of these concerns at Davis-Besse 13are pretty astounding when you start to add up the 14cracking of a Crystal River, the steam generator 15experiment of a San Onofre. We've got it all going on 16at Davis-Besse all at the same time. And in the very 17tight strict by-design constraints of an LRA 18proceeding we tried to raise our concerns.

19We also raise our concerns about current 20operations every chance we get. We raised our 21concerns about high-level radioactive waste in the 22Nuclear Waste Confidence Hearing in Perrysburg. But 23I think we have an abundance of concerns right in this 24LRA proceeding that deserve a hearing and have 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 834deserved a hearing for three years at this point.

1JUDGE FROEHLICH: Okay. Thank you.

2Anymore?

3JUDGE KASTENBERG: Not on that subject.

4Given the time we might have before lunch 5or so to begin a discussion of what I consider the 6heart of your explicit proffered contention which has 7to do with location, which is scope or location of the 8bore holes, the number of bore holes, frequency of 9inspection and the possibility of other means of 10examination, which is to me at the heart of this, at 11least as you explicitly stated it, could you kind of 12summarize for me -- what basis do you have that the 13scope, frequency and number are inadequate? What's 14the technical basis, or at least enough of a basis 15that would lead us to conclude that this was 16admissible? Given all the other considerations aside, 17why this would be admissible? On what basis would you 18argue that this is admissible?

19MR. KAMPS: Well, we've mentioned already 20today that the surface area of the shield building is 21280,000 square meters. Square feet. Square feet.

22You have to add to that 30 inches of thickness of 23thickness of the shield building. All that adds to a 24very large volume structure. And we're talking about 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 835before the cracking propagation 20 bore holes to try 1to monitor the situation with the cracking. After 2cracking propagation is admitted to and acknowledged 3by FirstEnergy because of evidence that it's 4happening, a 15-percent increase, 3 more bore holes on 5a very small sample size.

6And we've made this point for years now 7that this exclusive focus on sub-surface laminar 8cracking is already very limited. We've raised many 9other forms of cracking that have been documented in 10this proceeding. Today the micro-cracking has been 11raised, the risk of radial-oriented cracking, the 12synergisms between these various forms of cracking, 13some of which in the course of this proceeding were 14made public, things like August 1976, cracking at the 15dome, pre-blizzard of 1978.

16So the reason that we need a diversity of 17testing methodologies. We've talked about the impulse 18response testing being dated at this point. That was 19a snapshot at a certain point in time. That was years 20ago now. Cracking is worse now. What does that look 21like across the full structure?

22Back in 2012 we talked about the risks of 23micro-cracking. And back then CTL Group, a contractor 24for FirstEnergy, had identified micro-cracking 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 836shallow in the wall, at a shallow level. And now it's 1getting some acknowledgement in the PII Face report of 2July 2014. But our concerns about the risks remain 3about the synergisms of these various forms of 4cracking that can only be detected if they're looked 5for. 6And I think that given that -- the phrase 7that's used by both FirstEnergy and I think also by 8NRC is this is a unique operating experience, a unique 9operating experience in all of industry and that the 10ramifications of that, if you're not looking for -- if 11you're not curious about what could be happening. And 12the July 2014 FACE report is a good example of this.

13The worsening cracking was not expected even though 14earlier today Mr. Harris said that some of these risks 15were within the realm of possibility in 2012. Things 16like freeze/thaw was on the radar screen.

17In fact, the heart of our July and our 18especially our two filings in July of 2012 were based 19on the FOIA returns where NRC staff had 27 areas of 20inquiry about other root causes that could be at play.

21And that's another part of our bafflement at the 22disinterest in root cause. Because if there had been 23more concern about the possibilities, then perhaps 24this rush to seal the building would have been better 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 837thought through.

1So my colleagues also want me to raise the 2issue of the potential of the shield building 3initiating an accident itself. I mean, the question 4was raised earlier, Mr. Kastenberg, about the reactor 5being shut down when the shield building failure 6happens. And we want to get the point out there that 7the shield building's collapse itself could be the 8initiator of an operating reactor accident. So that's 9why we've called for diversity of testing. The small 10increases in number of tests are insufficient.

11The frequency. Again, we made that point 12earlier that if this lax attitude in the license 13renewal period of every couple years, every four years 14were to have been in play in the last couple of years, 15the cracking growth would have been missed. We 16wouldn't know about it and that the material change 17that's happened since 2012 is before FirstEnergy and 18NRC denied that cracking would get worse. They said 19it happened in 1978. It's not going to get worse. In 202013 it was detected as getting worse. And finally in 21July of 2014 it was explained the likely apparent 22cause as to why.

23So more interest, more curiosity, more 24concern over the risks in the last few years could 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 838have averted further damage to the building. I think 1it's fair to say it's ironic that the only corrective 2action, actual action that's been taken, the sealing 3of the building, actually worsened the situation.

4Didn't make it better.

5JUDGE KASTENBERG: Before we ask the 6licensee, I appreciate your argument, and to me it 7feels like a rather set of general statements, and yet 8your wording of the proffered contention is somewhat 9specific regarding scope, frequency and sample size.

10What in your view might be an adequate scope, 11frequency and sample size? What would you actually 12base a change on?

13MR. LODGE: Can we take a moment?

14JUDGE KASTENBERG: Sure.

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

17(Pause)18MR. LODGE: We're trying to find the 19location where we made the point, but in one of our 20probably September filings, and probably September 218th, we made the point that there was no statistical 22significance of doing 23 samples in an area this 23large, in a potential problem area of the magnitude 24that we have been talking about this morning. And I 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 839guess we are not in a position to give you an express 1number of what would be an adequate investigation.

2And part of the reason is is that the intervenor's 3position is that there has not been a comprehensive 4investigation that identifies factually objectively 5the status of the entire shield building. What you 6have is this wait-and-see --

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

12JUDGE TRIKOUROS: This is page 20 of your 13initial pleading?

14MR. LODGE: Yes, of our September 2nd 15filing, that a mere increase of three core bores to 23 16is completely inadequate because there's not 17statistical significance to the sampling methodology 18that FirstEnergy is using. FirstEnergy has a wait-19and-see approach without understanding clearly, after 20three years, the scope of the problem. You have 21microscopic cracking that is in all likelihood going 22to be continuing to expand and no longer be 23microscopic while other microscopic cracking develops 24in and around those areas, but you don't know what 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 840areas of the shield building are affected.

1There's an enormous circularity in the 2arguments that I hear. We hear that the root cause 3problem in 2012 was identified as the blizzard of '78 4and there is a very dramatic explanation of why that 5has to be the cause, that it enveloped the shield 6building in a 360-degree storm with all kinds of high 7wind penetration. But then we hear this morning that 8it was more directional, or that it may been that 9instead of comprehensively affecting the building that 10the blizzard of '78 only caused laminar cracking that 11we've seen. So you have this utility postulation 12that, trust me, we have found everything.

13It was wrong in 2012. The solution was 14obviously flawed, the one corrective action that was 15taken. And at some we believe the Licensing 16Board must accept the proposition that there is not 17enormous credibility that can be attributed to an 18investigation of this very limited magnitude.

19Again, they took perhaps thousands of 20impulse types of readings, then did the coating of the 21building and changed everything. So what is the value 22of that data set now after the winter of 2013-2014?

23What is the prospective potential for another vortex-24type of weather setup in future winters? And in fact, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 841maybe it's not even the vortex setup that one must 1worry about. It's the climate change-induced mild 2winters that have sharp periods of freezing 3interspersed with sharp periods of thawing.

4The PII report, the July 2014 disclosure 5talks a lot about how the cracks extend with a 6freeze/thaw type of cycle about five-and-a-half inches 7a year. And when they use 0.4 inches and 0.7 inches, 8we're calculating maybe they're discussing what, 10 to 913 freeze/thaw kinds of events per year? Ten degrees 10penetrates a lot deeper into the building, depending 11on how prolonged of a cold snap that is, than thirty-12one degrees would. But those are tons of unknowns 13that have not been discussed.

14Finally we're discussing ice wedging, but 15what I'm seeing is that it's sort of now caused the 16latest -- it's the latest explanation, it's the latest 17rationale. But there's not redirecting that knowledge 18into meaningful future projections and understanding 19how much of the shield building is affected today and 20how the building will be affected from April 23rd, 212017 on into the deeper future.

22MR. KAMPS: And just real quickly to 23follow up on that, the discussion of the deep 24penetration of the freezing into the shield building 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 842wall I wanted to mention because Mr. Trikouros earlier 1had said that concrete has an insulative property, but 2one of those 27 areas of inquiry in 2012 the NRC staff 3raised and brought to our attention in the first place 4was the poor quality, the subpar; as Mr. Lodge 5referred to it earlier, quality of the Davis-Besse 6shield building concrete to begin with, which has a 50 7percent thermal diffusivity poor quality. The freeze 8is able to get deeper into the concrete of the shield 9building.

10And as was mentioned; we could get into so 11much more detail in a hearing, another detail that 12hasn't come out yet is that the annular space of the 13shield building, I think it goes against the scenario 14that Mr. Trikouros painted earlier of the shield 15building wall being heated to a certain extent or a 16certain depth outward. Actually that annular space is 17preventing the heat buildup in the wall to the point 18where FirstEnergy has to install heaters in the 19annular space to heat up the annular space. And many 20of those, half of those heaters don't work, are 21malfunctioning. So I think it's wrong to think that 22heat is traveling outward and preventing the freezing 23from traveling inward. I think especially given the 24winter last year that the freezing of that shield 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 843building wall probably went very deep into that 30 1inches.

2JUDGE KASTENBERG: Does the licensee have 3any comments regarding petitioner's statements?

4MR. BURDICK: Of course.

5JUDGE TRIKOUROS: I'm sure.

6(Laughter) 7JUDGE TRIKOUROS: Why do I ask? Yes, go 8ahead.9MR. BURDICK: We've heard a lot of topics 10here just now from the intervenor, a lot of different 11topics, and some of them sounded familiar and I think 12are at least raised their pleadings, but a lot of them 13are new, especially towards the end here talking about 14how the coating changes the impact or I guess the 15value of the earlier impulse response, things like 16climate changed-induced changes, these 27 inquiries, 17the poor quality. I think it's pore, P-O-R-E or --

18anyway, I think a lot of these topics are found 19nowhere in Contention 7.

20And so just the first point I wanted to 21make is this oral argument is here to look at whether 22the contention as already submitted by the intervenors 23is admissible. And they submitted the original 24contention, they submitted and amendment and I think 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 844some errata to that. It's to determine whether that 1is admissible. So they're simply not permitted to 2bring up new topics here at this oral argument to try 3to support their contention.

4And I won't belabor the point because I 5think it's pretty standard, but let me just provide 6just on the record in response just one quotation from 7a Commission case. And this is an LES case, CLI 04-835, 60 NRC 619. And there the Commi ssion said, 9"Allowing contentions to be added, amended or 10supplemented at any time would defeat the purpose of 11the specific contention requirements by permitting the 12intervenors to initially file vague and unsupported 13and generalized allegations to simply recast, support 14or cure them later." And I think that's what they're 15trying to do here when given this opportunity. I 16understand they're responding to a question by the 17Board, but they're just simply not permitted to bring 18in this new information.

19Let me also on the contention 20admissibility front -- we discuss this in extensive 21detail in our answer, b ut one of the largest, most 22significant deficiencies of this contention is they 23fail to provide the alleged facts or expert opinion 24that are required by 10 CFR Section 2.309(f)(1)(5),

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 845and they also fail to demonstrate a genuine disputed 1material issue, fact or law under Section 22.309(f)(1)(6). And we discuss that in detail. But 3I think as we've listened to the intervenors describe 4their contention, that's only been emphasized.

5If I were to summarize their arguments, 6they claim laminar cracking is bad and then they claim 7you need to do more. There is no explanation for why 8what we proposed in this Shield Building Monitoring 9Program is insufficient or much less that it's not 10enough to satisfy the NRC's license renewal 11requirements. Instead, they're just claiming you need 12more without providing that basis or that specificity.

13This Board has rejected I think in both Contentions 5 14and 6 in part because of the bare assertions and 15speculations that the intervenors provided in those 16contentions. That same conclusion applies here as 17well. They simply provide conclusory statements on 18these issues.

19I'm happy to talk through any of these 20topics in more detail, but I think some of them are 21fairly obvious. In the section where they talk about 22additional testing techniques, they provide one 23sentence that identifies eight different possible 24testing mechanisms, but there's absolutely no 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 846discussion as to why they apply here, why they would 1do more than we're doing, why they would be 2preferable. One of them is even impulse response 3testing. Well, we've done impulse response testing.

4A couple others are electronic testing, or I think 5there's ultrasonic testing. They don't explain why 6are those different? What are they really talking 7about as doing with those? Why are those better than 8impulse response testing that we have done?

9They identify some different testing to 10look at I guess the quality of the concrete such as 11the strength testing or tensile testing, pull testing 12or creep test. They mention all of those, but again 13they don't explain why that would help us to monitor 14for laminar crack propagation. And in fact we have 15done some of those testings throughout our evaluations 16as we were looking at the quality of the concrete, but 17now when we understand the mechanism, they don't 18explain why should we be doing those things to look at 19if there's propagational laminar cracking.

20The same with chemical testing. They 21mention chemical testing. Don't explain why what 22we've done in the past is not sufficient or why that 23is necessary to monitor for laminar crack propagation.

24Instead it's just the bare assertions and conclusory 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 847statements.

1Your Honor, I guess I'll take your lead 2whether you want me to try to walk through all of the 3subject matters they have identified, but I think --

4JUDGE KASTENBERG: Not necessary, but I do 5have a follow-up question, I guess. Do I understand 6correctly that the choice of frequency, number and 7location is -- that you used the American country 8society as the guide, that they have a standard and 9that you use their standard to determine?

10MR. BURDICK: So for frequency we sort of 11looked at -- I think it's ACI report 349.3R, which 12actually recommends a five-year inspection cycle. And 13so we make the point in a few places, but including 14our most recent response, we're actually shorter than 15that. And so that factors into acceptability of our 16frequency.

17JUDGE KASTENBERG: So you feel you're 18being conservative compared to this so-called accepted 19standard?

20MR. BURDICK: Yes, especially with 21frequency.

22JUDGE KASTENBERG: And the other question, 23I think you referred to it as it's a standard that has 24to do with concrete chimneys or concrete cylinders, I 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 848think? Is that what you call it? A chimney? A 1concrete chimney?

2MR. BURDICK: I'm trying to recall if I 3said anything specific on that.

4JUDGE KASTENBERG: Well, I think in your 5pleading you talk about that the standard applies to 6concrete chimneys.

7MR. BURDICK: Oh, I think that's right 8that the shield building is a chimney-type structure.

9There's nothing that's unique in the sense that it's 10a cylinder, that it's reinforced concrete and steel.

11And so we have looked at some of the standards for 12those types of structures, and that factored into our 13building of the AMP.

14JUDGE KASTENBERG: And the standard just 15talks about frequency and not about number and not 16about location?

17MR. BURDICK: I think it does talk about 18frequency. Let me check with my --

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

22just for the frequency, that there's not a specific 23location or number of inspections specified in that 24code, is my understanding.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 849With respect to the location of the 1inspections, some of that is discussed in a November 22012 RAI response when we first specifically 3identified that we would do 20 inspections. And as 4part of that we looked at where the laminar cracking 5was most prevalent in the shield building. And some 6of this is -- I mentioned earlier that there was more 7prevalence on the southern exposure, and some of that 8is due to the weather during the winter, that I think 9the wind is prevailing in that direction, in addition 10to on the top, the 20 feet, and then around the main 11steam line penetrations because of the rebar 12configuration. So we looked at that.

13And there are some statements in the 14record, for example, that we have core bores that we 15inspect on I think 8 of the 10 shoulders that are on 16that kind of southern exposure. And just to ensure 17that we encompassed, we encompass a large percentage 18of that. And so most of the core bores, or many of 19them are done in pairs where one is un-cracked and one 20is in a cracked area. And then there are some as well 21in the flutes and then in that 20 feet and by the main 22-- so we have done a representative sample for that 2320. So we believe that it reflects the different 24types of cracking around -- or different locations of 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 850laminar cracking in the building.

1The three that came about was related to 2our identification in 2013 of the laminar crack 3propagation. When we did the investigation, we looked 4at all 80 core bores that are in the building once we 5identified the propagation. I think we did 91 6inspections in those 80, so some we inspected more 7than once. And we identified that there were eight 8locations where there was some amount of new 9propagation, some new laminar cracking due to 10propagation, due to this ice wedging.

11In three of those locations the 12propagation was in plain with existing laminar 13cracking. So the laminar cracking is not an exactly 14straight line, but some of it's weaving through the 15rebar. And so it's not a perfect line. So we found 16a couple places where there was kind of an offshoot of 17the crack. Well, because that has no impact on our 18strength calculation for the shield building, we 19didn't do special or additional inspection for those 20locations, because it's also where there's existing 21cracking.

22So then that left us with five places.

23Two of those places were already bound by existing 24core bores from the population of twenty. And so that 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 851left us with three new locations of laminar crack 1propagation. So those are the three that we've added 2that go from 20 to 23. So we certainly have a basis 3for doing that. And so we're inspecting that.

4And here the AMP makes it very clear that 5we put in these three new core bores into locations 6that are un-cracked. We'll monitor for any cracking.

7But these three there's a very specific commitment in 8the Shield Building Monitoring Program. If there is 9more propagation, these three will always be -- this 10will be moved and added so there's always one on the 11leading edge of any propagation, if there is 12propagation.

13JUDGE KASTENBERG: Is all this described 14in the AMP?

15MR. BURDICK: I think it describes the new 16three and how these will be at the leading edge of the 17concrete. So that's the explanation. And then I 18believe some of the RAI responses, including the July 193rd have a little more description about the basis for 20the three, and in addition a more recent RAI response.

21JUDGE KASTENBERG: So one way; correct me 22if I'm wrong, I could summarize what you've said is 23that you have some rationale behind how you determine 24the number, location and frequency?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 852MR. BURDICK: Certainly, yes.

1JUDGE KASTENBERG: Without stipulating 2whether that's a good rationale or not, but you have 3some process that you're following to determine 4number, frequency and location?

5MR. BURDICK: That's correct.

6MR. LODGE: Judge Kastenberg, if I may 7respond to that? Conceptually what's going on is 8FirstEnergy is chasing the cracking. They are not out 9in front of the cracking. And our contention is that 10they must be out in front of the cracking.

11I've got the ACI reference open here. The 12problem is that the frequency presumes that you may 13have the beginnings of degradation, but it's time to 14start monitoring at some frequency level to make sure 15that things don't get worse.

16Reading from chapter 6, which I believe 17was the cited -- it has a little table which contains 18that five-year frequency business in the ACI Committee 19report, quote, "The established frequencies should 20also ensure that any age-related degradation is 21detected in an early state of degradation and that 22appropriate mitigative actions can be implemented."

23The one mitigative action that was 24implemented has turned out to be a mistake and has25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 853serious flaws, and in fact was something to which the 1intervenors objected or mentioned as a potential 2problem back in 2012 before the coating took place.

3So the problem is is that the ACI 4Committee report presumes not pristine conditions, but 5not degraded with visible cracking present. It's fine 6that there are inspections going on, but we contend 7that the objective analysis of the entire structure 8now is what is warranted, what is indicated. So the 9ACI report should not be deemed very persuasive by 10this Panel.

11MR. HARRIS: Your Honor, just --

12JUDGE KASTENBERG: Follow-up comment to 13that by either staff or --

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

19JUDGE KASTENBERG: Oh, I'm sorry. Yes, 20thank you very much.

21MR. LODGE: One second here. It's ACI 22349.3R-02. I think that was the -- it may have been 23the one that was cited.

24MS. KANATAS: Whenever -- staff would 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 854obviously like the opportunity to comment on the 1challenges to the AMP, but certainly whenever.

2MR. BURDICK: Just real quick if I can 3make a correction to something I said earlier. Just 4when I was describing these core bores that will be 5used and will ensure the leading, I said that the 6three -- the specific ones, but it's really three of 7the five. So it's a sample of three of the five where 8there was additional laminar cracking. So just to 9correct the record.

10On this ACI report issue, I think from a 11contention admissibility perspective, again this is 12new information. So if they wanted to use this to 13support their Contention 7, then they should have 14submitted it in their Contention 7. And so they can't 15supplement the record here. And I understand some of 16this was responding to questions, but this cannot be 17a basis for a new contention.

18But as we discussed from the ACI report, 19we were using it as support for our frequency. And we 20have the five-year frequency, as we talked about in 21the ACI report. We're actually starting with an 22annual frequency, which is much more conservative.

23And then with respect to the location and 24number of core bores, it's not directly the ACI 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 855report. It's other things that we've relied upon. So 1even if this was a timely argument, I don't see why it 2provides any basis for their contention.

3JUDGE KASTENBERG: Would you like to 4comment?5MS. KANATAS: I'll just cover the points 6that I think haven't been covered. In terms of 7specific challenges to the shield building monitoring 8AMP, I think first a question that Judge Kastenberg 9raised earlier about it seems that intervenors' 10concern is that the AMP is inadequate because the July 118th submittal admitted that cracking propagation is 12age-related. But there's no indication in the 13Contention 7 of why the root cause of the cracking 14propagation would impact the staff's license renewal 15findings or why the shield building monitoring AMP, 16which monitors cracks through multiple inspections 17over the period of extended operation, is inadequate.

18As we've repeated since 2012 in the 19Contention 5 filings, the staff's Aging Management 20Review focuses on managing the functionality of 21structures and systems and components, not identifying 22and mitigating aging mechanisms. So again, while 23intervenors obviously have a problem with the full 24apparent cause evaluation's conclusions, they don't 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 856tie their concern with anything material to the 1staff's license renewal decision.

2Again, I think we've already covered that 3testing frequency is called woefully inadequate and 4intervenors request that annual inspections be 5conducted, but in fact the July 3rd modifications 6changed the inspections to annual inspections every 7year for a minimum of four years starting in 2015, and 8annual inspections would continue if aging effects 9were identified. So this doesn't raise a genuine 10dispute with the shield building monitoring AMP 11because they're asking for something that's already 12provided and they're also not indicating why what is 13provided is inadequate.

14We've already covered the core bores.

15They make a few other claims to other 16AMPs. For example -- or I guess this is actually 17still Shield Building Monitoring Program. On page 31 18of their Contention 7 they say that there needs to be 19a comprehensive sealant AMP. So presumably they're 20talking about the coating.

21The parameters monitored an inspected 22element of the Shield Building Monitoring Program 23includes visual monitoring of condition of coatings at 24five-year intervals. For loss of protective 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 857effectiveness with quantitative accepted criteria 1based on ACI 349.3R the coating will be replaced every 215 years. So again, the only claim is that a 3comprehensive sealant AMP is needed, but one is 4provided and there's no indication of why what is 5provided is not comprehensive or adequate.

6Likewise, at page 27 intervenors claim 7that there's an astounding deficiency in the aging 8management of the rebar. It appears that intervenors 9are challenging FENOC's plans to manage the age-10related degradation of the rebar. The LRA provides 11for visible inspection of the rebar and it seems as if 12intervenors are saying that a measurement technique 13should be used, but there's no indication of what 14measurement technique or why a visual examination on 15an opportunistic basis is inadequate.

16The staff continues to ask questions and 17I think some of -- Mr. Kamps has alluded to the fact 18that the staff does not just take what is given to it 19without a questioning eye. And for example, the 20staff's most recent RAI was September 29th. I believe 21that's the date. And the most recent response from 22FENOC was October 28th. And in that response FENOC 23provided further justification for the adequacy of the 24opportunistic visual inspection.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 858So finally, as in Contention 6, Contention 17 raised anticipatory changes. Specifically the 2motion to admit at page 2 intervenors said that they 3seek to litigate the adequacy of FENOC's anticipated 4modifications to the shield building monitoring and 5structures monitoring AMP. The Board in its 6Contention 6 order indicated that anticipatory 7challenges are inadmissible. And so I'd just like to 8note those. Thank you.

9JUDGE FROEHLICH: My colleagues tell me 10that they're hungry. I think what we'll do now is 11take an hour for lunch. When we return we will 12continue with the questioning, although we will focus 13on the legal and factual foundations of the contention 14going to the issue of whether there's a genuine 15dispute here.

16Just for parties that have been concerned, 17obviously the decision on this is going to be based on 18the pleadings that have been filed so far and the 19regulations which apply to contention admissibility.

20This is oral argument. We are here just to answer 21questions and supplement the understanding of what's 22in the filed pleadings.

23So with that, we'll adjourn until 1:45.

24(Whereupon, the above-entitled matter went 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 859off the record at 12:35 p.m. to reconvene at 1:45 p.m.

1this same day.)

2JUDGE FROEHLICH: We'll be back on the 3record. Mr. Trikouros.

4JUDGE TRIKOUROS: Am I up?

5JUDGE FROEHLICH: Yes, you're up.

6JUDGE TRIKOUROS: There was an SER. I 7guess there was a question of whether or not this 8cracking problem should be addressed in the EIS and 9the SER contention. But it did say EIS. I have the 10question of the SER.

11Are you going to address this at all?

12MR. HARRIS: It depends on the nature of 13the cracking problem. There are a couple of ways that 14something like this might be addressed in the EIS.

15There's what we talked about before in terms of SAMA 16analysis. Should it be addressed in the SAMA 17analysis? And what we've indicated is that this 18cracking phenomenon really doesn't have any impact on 19the SAMA analysis in terms of the overall consequences 20of what would be considered a potential cost 21beneficial mitigation measure.

22You could I think from reading their 23contentions that they would suggest that you should 24account for the cost rebuilding/repairing the shield 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 860building. And that would be addressed in the EIS.

1But normally we would only do those things. That's not 2an alternative issue. We would do that under 3refurbishment should FENOC decide at some point and 4indicate that it's going to do some sort of that major 5reconstruction activity. So this kind of thing would 6not normally impact or do something that would be 7addressed in the EIS. Just the fact that there are 8cracks.9JUDGE TRIKOUROS: Now the 2013 SER did 10address cracking. Is there at least as of that time 11going to be any additional supplementation of that or?

12MR. HARRIS: I believe that there will be.

13There is the potential for some additional 14supplementation. The staff is still going through 15that analysis and hasn't fully made up its mind in 16terms of supplementing. The staff does try to update 17and supplement as things are finalized. The cracking 18is likely to be addressed in an updated supplement to 19the SER.20JUDGE TRIKOUROS: But there are no firm 21plans to do it. It's just you're thinking about it.

22MS. KANATAS: I believe there's a schedule 23to do that currently.

24JUDGE TRIKOUROS: Oh you are?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 861MS. KANATAS: Yes, I believe so.

1MR. HARRIS: I don't --

2MS. KANATAS: Oh no. I'm sorry. There 3might not be a firm schedule, but it -- I don't 4believe the -- No.

5MR. HARRIS: There's not a firm schedule 6to do that. The staff is looking at that to 7supplement, but has not made a decision to supplement.

8But they're going through all the process of figuring 9out whether to supplement.

10JUDGE TRIKOUROS: Okay. All right. Now 11I just had a few questions regarding the pleadings, 12things I didn't quite understand. And if you'll bear 13with me, I'll try and get that done.

14In the petition on pages 18-19 regarding 15the issue of new cracks that might develop, I'm 16talking about the initial Intervenors' petition. Is 17there a basis to conclude that no new cracks will 18develop in other areas? Is that a going in 19assumption? We sort of dealt with that this morning 20but.21MR. BURDICK: Yes, the ice wedging 22phenomenon identified in 20.13 requires an approval of 23any laminar cracks. So any propagation would be at 24the location of an existing laminar crack.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 862JUDGE TRIKOUROS: Right. But you're 1making the assumption that given what you've done so 2far that there won't be any laminar cracks developing 3elsewhere.

4MR. BURDICK: That's correct. And some of 5that is based on our 20.13 investigation of that 6laminar crack propagation where we looked at all 80 7core bores and identified exactly the population of 8core bores with additional laminar crack propagation.

9We also did some impulse response testing at that time 10to confirm those results. And based on that the 11laminar cracking propagation that would happen 12potentially due to ice wedging would be limited to the 13existing laminar crack propagating.

14JUDGE TRIKOUROS: Okay.

15MR. MATTHEWS: Judge Trikouros, your point 16though, your question, and this may have been a 17background question but it kind of flips the argument 18that contention should say a basis what the reason is 19to believe or to suspect that there might be cracking 20in these other places.

21JUDGE TRIKOUROS: I think the contention 22--23MR. MATTHEWS: The contention is you 24shouldn't expect cracking before. So you can't 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 863believe anything is kind of the basis of the 1contention.

2JUDGE TRIKOUROS: Right. I think the 3contention though is arguing that the laminar cracking 4had existed for a long time before you realized it and 5that it might occur somewhere else and that the amp 6didn't seem to them to be adequate to assure that 7cracking anywhere else would be discovered.

8MR. MATTHEWS: It's the might occur 9somewhere else that is about basis in the contention.

10JUDGE TRIKOUROS: Right.

11MR. MATTHEWS: And as my partner indicated 12FENOC did have a basis for identifying what it had.

13The point was the question seems to flip the burden.

14JUDGE TRIKOUROS: Yes, I understand. The 15staff is okay with that.

16MS. KANATAS: I'm sorry. The staff is 17okay with --

18JUDGE TRIKOUROS: There's a presumption 19that the laminar cracking that occurred in the flute 20shoulder areas would have to be monitored in the AMP, 21but that there wasn't a need to go and look on a 22regular basis for cracking elsewhere, laminar cracking 23that might develop elsewhere in the shield building.

24Is that the staff's understanding?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 864MS. KANATAS: That is.

1JUDGE TRIKOUROS: All right. And clearly 2the Intervenors are not happy with that.

3All right. Well, there's a whole series 4of pages in the petition that deal with that. I don't 5think I need to go any further into that. Okay. This 6is on page 31, bottom 31, top 32 of the petition. It 7says -- It actually starts "FENOC has done nothing to 8address the shield building cracking." That 9paragraph.

10But at the center of that it says, "Even 11without flaws or degradation, however, FENOC has not 12established that the whitewash coating, the exterior 13of the shield building, actually insulated the side 14wall thickness against freezing and thawing 15temperatures." Was it the Intervenors' thoughts that 16that coating was some sort of a thermal barrier? Is 17that why you asked that?

18MR. LODGE: May I ask again? Where is 19that? Is that from the September 2nd filing?

20JUDGE TRIKOUROS: Yes.

21MR. LODGE: And it's on pages?

22JUDGE TRIKOUROS: Thirty-two. Yes, it's 2331.24MR. LODGE: Sorry.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 865JUDGE TRIKOUROS: It was at 31-32, bottom 1of 31, top of 32.

2MR. LODGE: All right.

3JUDGE TRIKOUROS: It's the top of page 32.

4MR. LODGE: The answer to your question --

5JUDGE TRIKOUROS: That statement was on 6the top of 32.

7MR. LODGE: I see that. Thank you. The 8answer to your question, sir, is that may have been a 9poor choice of words. It was not my contemplation in 10writing that that it insulates thermally rather than 11seals the wall against --

12JUDGE TRIKOUROS: All right. So given 13that it read like thermal insulation, it's not.

14MR. LODGE: No.

15JUDGE TRIKOUROS: All right. Then that's 16fine. Thank you.

17In your motion to amend and supplement.

18MR. LODGE: That's September 8th.

19JUDGE TRIKOUROS: Yes.

20MR. LODGE: Okay.

21JUDGE TRIKOUROS: You refer to the 22consideration of alternatives as well as in the SAMA.

23This consideration of alternatives, are you referring 24to alternative power sources other than Davis-Besse?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 866MR. LODGE: Yes.

1JUDGE TRIKOUROS: And is it based on the 2presumption that shield building may not be viable and 3the plant would have to be shut down?

4MR. LODGE: Correct. The economics, yes.

5JUDGE TRIKOUROS: All right. We never did 6talk about the details.

7JUDGE KASTENBERG: Just as a follow-on to 8that though, what you mentioned in terms of 9alternatives not necessarily for the power plant, but 10alternatives in terms of mitigating the cracking. Are 11we talking about the same thing?

12MR. HARRIS: No, I think we're talking 13about the same thing. But you've got two different 14things. You've got the SAMA which is a different part 15of the EIS and then you have the Consideration of 16Alternatives which was also alternative power 17production.

18JUDGE KASTENBERG: Right.

19MR. HARRIS: Which the way I understand 20the contention to be written is that the Intervenors 21want us to consider the added cost of having to do 22something with the shield building when you're 23comparing it to other alternative energy sources.

24JUDGE KASTENBERG: Is that correct?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 867MR. HARRIS: And I'm not trying to put 1words in their mouths.

2JUDGE KASTENBERG: I appreciate that. But 3I was going to come back to that a little bit later.

4But since it's brought up now, can we be a little more 5precise about what it is that we're talking about in 6terms of alternatives and costs?

7MR. LODGE: I think the response to his 8interpretation is that it wasn't our intention. Our 9intention was SAMA considerations based on whatever 10presumptions go into how the shield building is 11treated in this severe accident mitigation analysis 12and alternatives to a continued use of Davis-Besse 13because of the non-functioning shield building.

14PARTICIPANT: If I might, Judge 15Kastenberg.

16JUDGE KASTENBERG: But are you saying 17both?18MS. KANATAS: Yes.

19JUDGE KASTENBERG: It sounds to me like 20you're mixing two ideas together, two separate things 21together. I'm still confused. It's your contention.

22MR. LODGE: Right.

23JUDGE KASTENBERG: So what are we 24evaluating here, alternatives to Davis-Besse or the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 868cost of alternatives of to dealing with the shield 1building?

2MR. LODGE: NEPA calls for both. So I 3guess it is both. I'm just trying to recall what must 4have been in my mind when I was drafting that.

5JUDGE KASTENBERG: We certainly can't 6recall it for you.

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

10JUDGE KASTENBERG: Did you want to say 11something here?

12MR. MATTHEWS: Thank you, Judge 13Kastenberg. Obviously, from our pleadings, they're a 14contention. But we understood it as suggesting that 15we had not considered the environmental analysis, both 16the Applicant's and the staff's. We had not 17sufficiently considered the no-action alternative, not 18relicensing Davis-Besse.

19And if that is part of the contention, (1) 20it's timely. It could have been when cracking was 21first identified. (2) It's not specified. There's no 22reference to the no-action alternative that is clearly 23discussed in both EER and the FSIS. There is no basis 24articulated as to why what's there is not sufficient 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 869authority, any of the other 2.309 criterion. It 1doesn't address any of them.

2And the same would be true even if the 3Intervenors now tell us that it means refurbishment.

4(1) They haven't articulated that to the point where 5anyone here in the room who had studied it interpreted 6it clearly that way. And again timely, no basis, no 7authority, doesn't meet any of the criterion for an 8admissible contention.

9MR. LODGE: Your Honor, I maybe have found 10the tiebreaker here. On page 19, we state that the 11"Cracking phenomenon must be identified, analyzed and 12addressed within the SEIS for the license renewal both 13as part of the SAMA analysis and as part of the 14Consideration of Alternatives to a 20 year operating 15license extension." So no-action alternative I think.

16JUDGE TRIKOUROS: Bear with me because a 17number of these actually got resolved during the all 18morning's conversation. So I'm trying to just skip 19over them.

20JUDGE KASTENBERG: While you do that I 21have a different question or do you want to just keep 22going?23JUDGE TRIKOUROS: Well, go ahead.

24JUDGE KASTENBERG: I just want to hone on 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 870this question of whether or not ice wedging is new or 1old so to speak and whether or not in your view ice 2wedging and freeze/thaw are the same thing. In other 3words, my understanding is that there were words to 4the effect that freeze/thaw was a possible phenomena 5for cracking and that ice wedging was something that 6came much later. If you could just clarify that since 7you had mentioned this a number of times and since at 8least as I understand it in the contention this is an 9important part of the argument that this is timely.

10So I just want to kind of hone in on that and be 11clear.12MR. HARRIS: Right, and I think we ought 13to step back a little bit from aging management 14programs just before I addressed that. Aging 15management programs like this they're designed to 16monitor some particular event. And they're fairly 17agnostic as to what the cause of the crack 18propagation. They're measuring it. They're trimming 19it. Really in a lot of ways it doesn't matter for 20purposes of being able to monitor the cracking and 21whether or not the building can meet its intended 22function what is driving that growth in the crack.

23For ice wedging, the same thing. Also 24with freeze/thaw cycle. For a crack to propagate you 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 871need a pre-existing crack. You need some form of 1stress concentrator at the end of that crack. And in 2the case of ice wedging, it's the water being there 3frozen, expanding and creating that stress at the end 4of that crack that causes this to open up and continue 5to grow further.

6The freeze/thaw cycle, as long as all 7concrete buildings do have water in them and they 8maintain water and they never really fully dry out 9completely, you're going to have this kind of crack 10propagation any place where you have water that can 11collect in a crack. It will be able to grow. One of 12the things that they were monitoring for was that 13freezing of water that has permeated the concrete and 14specifically they were looking at. And this is 15referring back to the April 5, 2012 RAI response that 16I had mentioned previously.

17The parameters that they're monitoring 18when they're talking about cracking in concrete from 19freezing of water is the surface condition of the core 20bores which is different than the laminar cracking, 21the core bore sam ples, and the change in the crack 22conditions in the core bores. And I've added in the 23core bores, but I mean the change in the crack 24conditions. It was looking at freeze/thaw cycles in 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 872those particular cracks which is a function of ice 1wedging. I look at that as freeze/thaw is a much 2bigger description that includes the ice wedging 3phenomena.

4JUDGE KASTENBERG: Is that a -- I 5appreciate that's the way you look at it. But is that 6something that I can find in any of the documents?

7MR. HARRIS: It is in the documents. It's 8on potential --

9JUDGE KASTENBERG: That explains that?

10MR. HARRIS: That freezing thawing is ice 11wedging?12JUDGE KASTENBERG: That ice wedging is 13contained within the definition of --

14MR. HARRIS: No, I don't think that there 15is something that's explicit in there that says ice 16wedging is the same as the freeze/thaw cycle. I don't 17believe there's any language in the responses that 18makes that.

19MS. KANATAS: And, Judge Kastenberg, just 20to add, I think one of the key points, too, of what we 21keep reiterating of why the full apparent cause 22evaluation does not constitute materially different 23information is that Intervenors repeatedly claim that 24it's the admission of an aging mechanism that brings 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 873this into the scope. But this has been within the 1scope. I mean as I'm pointing to the same page on the 2April 5, 2012 AMP which says potential aging 3mechanisms. So it's always contemplated a potential 4aging mechanism even though it was put in place 5following the laminar cracking which was determined 6not to be the result.

7JUDGE KASTENBERG: You would say that if 8some new aging mechanism is discovered a year from now 9it would never qualify as new information because 10you've got a blanket statement.

11MS. KANATAS: No, I don't think that's 12what I'm saying. I think it's more of the assertion, 13first the assertion, that the fact that there was an 14aging mechanism at all brought this into the scope.

15And I think that's a direct quote from their pleading.

16And our position was always that regardless of the 17mechanism how the laminar cracks would be managed, the 18aging effects, was within the scope. And that's why 19we initially said there was an omission which was then 20mooted by the April 5, 2012 AMP which when submitted 21indicated that it would be looking for potential aging 22mechanisms.

23And as Mr. Harris was describing, while 24the freeze/thaw phenomenon doesn't explicitly say this 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 874is ice wedging, it's looking for similar --

1MR. HARRIS: And let me add just a little 2bit to that and I hate to sort of go back and forth is 3that the aging management programs aren't designed to 4figure out necessarily the mechanism of particular 5aging. It's designed to manage the impact of that 6aging on the ability of the shield building in this 7case to meet its intended function. So the aging 8management program was never built to go this is ice 9wedging or some other crack developing.

10It's designed to be able to show that the 11shield building will still meet its intended function.

12The materiality of what's driving the crack really 13doesn't affect whether or not the aging management 14program could be effective.

15Now could there be some aging mechanism 16out in the future that we discover that might change?

17It's a possibility. But I'm not sure. In this case, 18I don't think it is.

19JUDGE TRIKOUROS: But it's more than that.

20There's a presumption that there won't be cracking 21elsewhere. I mean didn't we just discuss that?

22MR. BURDICK: Just to be clear, there is 23a presumption that the ice wedging mechanism will not 24exist in places that there's no laminar cracking. So 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 875I think I agree with the staff of what they're saying 1about the alternative purpose of the shield building.

2It's always been a monitor for any changes in the 3laminar cracking. And that's regardless of the 4specific mechanism. In 2013, we specifically 5identified the ice wedging mechanism. And one of the 6requirements for that is to have a pre-existing 7laminar crack. So it's a very specific mechanism 8there.9Just to clarify, too, in the apparent 10cause evaluation, we looked at a number of different 11failure modes and similar process in the RCA1. We did 12treat ice wedging as its own mechanism separate. We 13looked at a few other freeze/thaw mechanisms. They do 14have similarities as far as they're both dealing with 15moisture in the concrete and freezing of that water.

16And ice wedging is a very specific 17mechanism where you do have this pre-existing laminar 18crack and it's at the freeze event with the moisture 19in the building that's causing to propagate. And 20freeze/thaw refers to other things as well or refers 21to mechanisms such as the micro-cracking we talked 22about earlier. It's a different mechanism, but 23they're related as they're both dealing with water 24that's freezing in the concrete.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 876JUDGE TRIKOUROS: Are there other 1structures, monitoring AMPs, that deal with the 2broader expanse of the shield building?

3MR. BURDICK: The shield building 4monitoring program specifically focuses on the laminar 5cracking, but it also covers things like the coating 6on the exterior of the surface. There is also a 7structure monitoring which is not a plant-specific one 8but covers all in-scope structures on site, too. And 9that's the AMP that would address microcracking.

10There are certain inspections to look for evidence of 11microcracking, spalling or things like that.

12JUDGE TRIKOUROS: It comes up in the 13pleadings in multiple places. The concern is you're 14not looking for any new cracking. You're monitoring 15all the existing cracking. Your entire program is 16based on making sure that there's no propagation of 17the existing cracking.

18What I'm trying to understand is is there 19a requirement to look for any new cracking on this 20building.

21MR. BURDICK: I think the answer is no.

22You know our evaluations, our testing, our inspections 23all identified the laminar cracking in 2011. And that 24was a set amount. We concluded that that cause still 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 877holds it. There was a set amount of laminar cracking.

1Now in 2013 we've identified this one mechanism, this 2ice wedging, that could cause that to propagate. So 3we're watching monitoring for that.

4Other cracking on the shield building, it 5would be covered by the structures monitoring AMP 6which has not been challenged by the Intervenors here.

7So if there's some, for example, surface cracking 8that's identified through an inspection, it's covered 9by the structure monitoring AMP and not this AMP.

10JUDGE TRIKOUROS: Does the staff agree 11with that? That the broader expanse of the shield 12building cracking is part of another AMP.

13MR. HARRIS: That's correct, Your Honor.

14The structure monitoring AMP would cover the things 15like spalling and those kind of issues. Those kind of 16inspections for the surface monitoring of the crack is 17that the shield monitoring AMP was designed to look at 18this particular event.

19MR. LODGE: If I may respond on behalf of 20the Intervenors. Judge Kastenberg, in direct response 21I think to your initial question, in the full apparent 22cause evaluation at page four of 80, it says, 23"Contributing to the ice wedging cause is application 24of the coating to the shield building." I would 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 878remind the panel that the coating application occurred 1approximately from August to October 2012 references 2therefore to April 2012 AMPs. They didn't anticipate 3they were going to have a problem with that particular 4mitigation step and did.

5Furthermore, the difficulty here is that 6we have articulated in our pleadings and in discussion 7earlier today the fact that there are other transitory 8points for water, for moisture, into the annular space 9as well as into the exterior of the building and down 10through the walls.

The shield building vacuum 11propagation was enhanced, worsened, by the application 12of the coating. The water is trapped. We're hearing 13discussions of it dissipating, no particular analysis 14of that, no expertise that is explaining exactly that 15is going to happen and what the anticipated timetable 16would be nor if there are any other mitigations set to 17be taken.

18We believe that ice wedging certainly 19existed. I can't find the reference. But we've also 20seen some mention I think in some FENOC document that 21basically says in industrial concrete types of 22applications this sort of problem is not well 23identified or discussed.

24(Off microphone comments) 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 879Yes, the geological says no ice wedging, 1but it hasn't come over into industrial engineering.

2It may or may not be true. It may or may not be an 3accurate statement, but it's a 2014 statement I think 4if I'm recalling it. I guess it's in the 98 page 5document from July 2014.

6The point is it's new. Ice wedging may 7have existed as an academic phenomenon. As it does 8cause damage to the shield building it is new and 9recent in terms of it being disclosed publicly.

10JUDGE KASTENBERG: Any other comments on 11ice wedging?

12(No verbal response.)

13JUDGE TRIKOUROS: Okay. Again, in the 14original petition -- I'm sorry. This is the motion to 15amend. It looks like it's on page eight. It's a 16statement that says "PII concludes that a review of 17engineering analysis documentation developed following 18the initial laminar crack condition demonstrated that 19the shield building remains structurally adequate for 20the controlling load cases and is in compliance to the 21current design and licensing bases." This is they're 22quoting the FACE report, right?

23MR. LODGE: Yes.

24JUDGE TRIKOUROS: And Intervenors make the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 880statement "This statement is highly suspect and 1probably false." Is there any basis for making that 2statement or?

3MR. LODGE: Yes. In the next paragraph, 4we begin to explain in numerous comments by NRC staff 5people relating to whether or not the shield building 6conforms to its current design licensing bases. The 7very next paragraph referenced to the Timothy Riley 8email as one example.

9JUDGE TRIKOUROS: Now we talked about this 10this morning. And I was thoroughly satisfied with it.

11I talked about the different paths. Do you still 12believe that this is "highly suspect and probably 13false"?14MR. LODGE: Yes. I don't think the 15discussion this morning completely forecloses a 16conclusion that perhaps the agency believes that 17there's a conformance to current design and licensing 18bases. You have a severely degraded building and as 19I say an open-ended causation problem.

20Incidentally, one other thing which we 21didn't discuss this morning is that there are 22significant out-of-plumb -- and we have mentioned this 23in the pleading somewhere -- portions of the shield 24building. It is not considered to be within plumb for 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 881any longer runs than a few inches or a few feet at a 1time. And when you're talking about something that 2huge with that type of enormous density and weight, 3that can be a very significant problem especially if 4you have cracking phenomenon starting to crop up.

5JUDGE TRIKOUROS: But you don't have any 6separate analysis that you'd --

7MR. LODGE: No.

8JUDGE TRIKOUROS: You don't have anything 9like that.

10MR. LODGE: Our evidence is based upon --

11JUDGE TRIKOUROS: Have you actually looked 12at the calcs they were talking about? Were those 13available to you?

Those weren't put before you or 14anything like that, right?

15MR. KAMPS: We've been displeased with the 16FOIA response to be honest with you.

17JUDGE TRIKOUROS: All right. I think we 18can go on from here. Okay. This has to do with --

19This is your Intervenor motion on page 11. It has to 20do with the fact that there are no corrective actions 21being implemented in the AMP basically. And it 22indicates that there would be a pass-through to the 23corrective action program.

24I would like to understand what your 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 882problem is with that. You didn't -- I don't think 1you elaborated on it, at least, not according to my 2notes. What is your problem with their AMP not having 3a corrective action program or not having any defined 4corrective actions and a pass-through to the 5corrective action problem? What is your issue there?

6You seem to identify it as an issue but.

7MR. KAMPS: Is this page 11 of the initial 8petition?

9JUDGE TRIKOUROS: No, the motion.

10MR. BURDICK: September 8th.

11JUDGE TRIKOUROS: No, the motion.

12MR. LODGE: The current -- Even though in 13the FACE evaluation, PII talks about how mitigating 14steps being taken are monitored and revising the path 15or pattern of monitoring depending on what the 16monitoring showed. We think that's a plan to have a 17plan. It's a return to our position that this is a 18wait and see and see as little evil as possible in the 19shield building until some new problem develops. The 20utility is chasing the problem and not leading toward 21some realistic analysis of what the status is and what 22to do next.

23If there were some comprehensive 24evaluation undertaken in light of coating the building 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 883and now we've got a micro-cracking problem. It's 1possible the Intervenors wouldn't even be here. But 2you have some analysis being done of the shield 3building, application of the coating. Whoops, new 4problems have cropped up and looks like we may have 5caused them. And our solution is simply to engineer 615 percent expansion of the core borings and see what 7happens. See what happens next. I don't think -- We 8don't think collectively that that is a prudent way to 9proceed with a license extension.

10JUDGE TRIKOUROS: Okay. But my question 11is dealing specifically with your comment that dealt 12with not having corrective actions in the AMP. It's 13a criticism of the AMP if you will. And you have a 14problem with the pass-through to the corrective action 15program.16Perhaps I could turn to the staff and the 17Applicant to ask the question. Is it typical for an 18AMP to include corrective actions in the body of 19itself?20MR. BURDICK: Your Honor, we're confused 21by the use of corrective actions. If the Intervenors 22are saying that the AMP should have i dentified 23additional corrective actions that we should have 24taken in response to the laminar cracked propagation, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 884I'm not sure that's quite correct. Once we saw the 1laminar crack propagation, we performed evaluation.

2We performed the full apparent cause evaluation. In 3there we identified certain corrective actions. Now 4some of those corrective actions resulted in revisions 5to the shield building monitoring program. That's 6kind of one issue.

7But certainly AMPs do utilize the 8corrective action program. In fact, one of the ten 9attributes of AMPs is the corrective action program.

10And so that's certainly fundamental to the age 11management program.

12JUDGE TRIKOUROS: So is it typical to 13include a section on corrective actions in that other 14than to say it goes into the corrective action 15program?16MR. HARRIS: I think typically with the 17majority of the AMPs that they call send it to the 18corrective action program for the plant and they don't 19necessarily create a separate corrective action 20program for that particular AMP.

21JUDGE TRIKOUROS: All right. So your 22comment that says there should be a corrective action 23that's your opinion basically. You're not quoting any 24authoritative. I'm just trying to understand you.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 885MR. LODGE: I understand, sir. It's fair.

1I think the answer to your question is yes. But we're 2mindful under Commissioner Jaczko's observation one 3time that once you grant a license there's very little 4further control that you have and certainly from a 5public perspective, an Intervenor perspective, any 6further problems that might crop up from the same line 7of shield building cracking I can see the solution 8will be to 2.206 petitions. And that is a highly 9unsatisfactory type of method because it doesn't 10reflect any potential for directly participating in 11the regulating decisions.

12JUDGE TRIKOUROS: All right. Well, I 13think I understand where you're coming from now. It 14wasn't clear when I read it just in a vacuum. You 15indicate that there's a 0.4 to 0.7 inch crack growth 16presumption probably in the FACE report I assume.

17MR. LODGE: Yes, it is.

18JUDGE TRIKOUROS: And which will lead to 19you indicate 10.8 inches of additional cracking for 20two years.

21MR. LODGE: Yes.

22JUDGE TRIKOUROS: I think here then -- I 23wasn't sure where you were going with this. My 24question really would be what are the implications of 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 886this with respect to the design basis of the plant.

1In other words, if one reestablishes the design basis 2of the plant today, how does this comment factor into 3that in terms of two years from now or four years from 4now, that sort of thing. Does their design basis have 5to be reevaluated to account for crack growth? How 6does that work?

7MR. BURDICK: The Aging Management Program 8as it's written in the acceptance criteria, first you 9look for if there are any changes in the nature of the 10cracks and certain issues if identified can go into 11the corrective action program. Part of that is also 12to look at the design basis evaluation just to make 13sure that it's acceptable with respect to what you're 14seeing with cracking.

15The design basis evaluation we've 16discussed. That FENOC is completing with its 17contractor. It's a strength calculation that looks at 18some of the design basis events. So it addresses kind 19of the design basis of these issues. But there is 20certainly significant margin in that document. So 21certainly FENOC if it identifies any cracking it will 22consider that. But it's a very conservative large 23margin design evaluation.

24MR. MATTHEWS: It's assessed the condition 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 887to assess whether it is within the design basis that 1exists. It's not to go out and reestablish the design 2basis. There is margin in the design basis to assess 3whether it does. Again, to your question, a very 4legitimate question and we appreciate the opportunity 5to answer it. But the burden here, the Intervenors 6haven't said why it's not. They haven't said what's 7wrong with our calculation or any of the analysis of 8why the AMP is insufficient, why that period of 9checking after each winter is not sufficient.

10JUDGE TRIKOUROS: I understand. Okay.

11But the comment was made by you to what end? To say 12there's going to be something wrong in two years? You 13never really to my memory and to my notes gave us the 14end point of that comment. You've made that statement 15that I just read and then that was it. There was no 16development.

17MR. LODGE: One moment. I'm just thinking 18it over here.

19JUDGE TRIKOUROS: This is in your motion 20on page 12.

21PARTICIPANT: Top of page 12.

22JUDGE TRIKOUROS: Yes, top of page 12.

23MR. LODGE: Well, the context of it was 24that we were referring to the two years, actually more 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 888than two years time, during which the fact of the 1propagation was kept rather quiet and certainly wasn't 2known to the public to us as Intervenors and talking 3about --4Essentially this is the apparent damage 5that has happened during that stretch of time. It was 6a credibility problem on the utilities part in terms 7of this being a very serious problem three years ago 8that was seriously litigated throughout 2012 with 9additional information and revelations.

10And then to learn in 2014 that indeed 11during the period of time that we were litigating in 122012, FENOC knew that there was a propagation problem 13cropping up. That's rather astonishing. And that's 14the context in which that comment is made.

15JUDGE TRIKOUROS: Okay.

16MR. LODGE: Once again, we think that it's 17a problem that the management of the problem is 18designed to minimize the problem.

19MR. BURDICK: Your Honor, I do take some 20issue with this claim. And they make a similar one in 21their contention seven document that somehow we were 22withholding information from this Board, from the 23parties. It's simply not true and they have not 24identified any facts.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 889I certainly take issue with them claiming 1there's some credibility. In some of their documents, 2they claim that we've concealed information. We've 3been through this before and it was in the reply to 4contention five where they made similar claims of our 5active concealment and fraudulent nature. And we 6moved the Board to strike that and the Board did and 7instructed them to not make these statements.

8So I think we're hearing these statements 9again. And they've presented no basis for that, only 10speculation. Certainly, I take issue with that.

11JUDGE TRIKOUROS: Okay.

12MR. KAMPS: I'd like to respond briefly.

13February of 2012 FirstEnergy knows that there's water 14in the bore holes. We would have been very interested 15in that information. In fact, with six filings that 16year, we were very engaged on these issues. And the 17only explanation for why that information was not 18revealed until July 8, 2014 comes in the PII FACE 19report which said that the belief was that the water 20was atmospheric, that it was finding its way in from 21the outside, which was hard to understand because 22those bore holes were effectively sealed with caulking 23and with plugs.

24And then it was admitted even in the FACE 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 890report that FirstEnergy realized that the water may be 1internal to the walls. But it was deemed to be of 2such a small quantity that it couldn't be significant.

3And now we know because of the FACE report that it's 4quite significant.

5And the significance is that -- I'm 6referring back to Abdul Sheikh and Pete Hernandez back 7when cracking was first discovered -- they were 8worried about collapse of the shield building. They 9weren't worried about architectural impacts to the 10shield building. They were worried about structural 11integrity of the shield building.

12And we've raised those emails numerous 13times. But the two and a half year delay and the 14revelation of this information we find very 15significant given the engagement of everybody who is 16sitting in this room at that time. How is that not 17material information to be shared through discovery.

18There are monthly discovery disclosures. There was no 19document.

20MR. BURDICK: Your Honor, that's simply 21incorrect. There are no monthly discovery disclosures 22in this proceeding.

23MR. KAMPS: Documents that arise each 24month are announced to the other parties. But it took 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 891two and a half years for this information to be 1shared.2JUDGE FROEHLICH: I believe he's referring 3to admitted contentions.

4MR. BURDICK: Yes. And there's nothing in 5the contention on this.

6JUDGE FROEHLICH: That provision which you 7refer places an obligation upon parties to disclose 8documents relevant to admitted contentions. I guess 9the perspective of the Applicant here is that since 10there was no admitted contention at that point in time 11there was no monthly disclosure requirement. Is that 12correct?13MR. BURDICK: That's correct. And the 14Petitioner just read our explanation for the water in 15the core bores. I don't think we need to say anything 16more about that. But certainly concealment was not 17part of that.

18JUDGE FROEHLICH: I think we should move 19on.20JUDGE TRIKOUROS: Okay. I'm satisfied 21with that. I don't have any other comments on the 22motion or on any other issues that I wanted to 23understand. I'm going to go onto the Applicant's 24answer. Most of my issues have been resolved on this.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 892So that's good.

1I do have one question though on FENOC's 2answer, page 41.

The Intervenors use a term "full 3spectrum investigation." And I would just like to 4understand what full spectrum investigation means. Is 5this something specific that we don't understand or?

6MR. LODGE: No.

7JUDGE TRIKOUROS: No, okay.

8MR. LODGE: It does mean the global 9investigation of the nature and extent of cracking.

10JUDGE TRIKOUROS: Is this some specific --

11MR. LODGE: It's not an engineering term, 12sir.13JUDGE TRIKOUROS: It's not something that 14-- All right. That's fine.

15All right. This is a SAMA issue, but I 16think we've cleared up for SAMA.

17With respect to the difference between 18this July 3rd AMP which is the AMP that you have 19specifically wrote a contention on and previous AMPs.

20In the Applicant's answer on page 52, they say "The 21Commission and the licensing board also agreed that an 22enhancement to an AMP should not be considered new 23information to support a new contention." We touched 24on this earlier this morning. The staff made exactly 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 893the same comment if I remember correctly.

1Could you tell us how the information from 2this July 3rd AMP and the FACE report basically 3validated that comment if in fact there is something 4new and significant about the July 3rd AMP?

5MR. LODGE: What page is that on, sir?

6Fifty-three?

7JUDGE TRIKOUROS: Fifty-two. This is the 8FENOC answer on page 52.

9(Off microphone comments) 10MR. LODGE: I'm sorry. Is it -- I just 11want to read the comment if I may. Is it 51 of the 12PDF or is it the actual page 52?

13JUDGE TRIKOUROS: I believe it's the 14actual page 52.

15MR. LODGE: Okay.

16(Off microphone comments) 17JUDGE TRIKOUROS: It's in the first 18paragraph under A.

19MR. LODGE: We understand the principle 20that making some changes in the AMP does not create 21some litigation opportunity. But that isn't the gist 22of our contention. The gist of our contention is that 23there are -- somehow we're not done with the matter of 24identifying root cause. And it is difficult if not 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 894possible to conclude at this point that the cracking 1is actually going to cease. It is somehow going to be 2frozen at whatever level. Poor choice of words, but 3that it's going to stop and not worsen over time.

4We were not -- We're quibbling with the 5inadequacy of the AMP, but we are quibbling because 6the underlying basis is considerably more troubling 7than we believe is justified by three additional bore 8holes and a little bit more frequent analysis being 9performed.

10We think that the root cause is a marked 11departure from the earlier explanations of the 12cracking. And the new root cause, the new improved 13root cause, basically suggests that it is probably 14going to be a continuing phenomenon that continues 15indefinitely certainly into the 20 year period. It's 16not at an end.

17Therefore, the AMP is not adequate. I 18understand that -- We're not saying you made changes 19to the AMP. Therefore, we should be allowed to have 20an admitted contention. We're saying there are 21dramatic new explanations being offered and 22essentially new points being conceded as to the aging 23relatedness of this and the revelation that the 24mitigation didn't work and in fact caused more 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 895problems.

1JUDGE TRIKOUROS: So it's the FACE report 2new information.

3MR. LODGE: Yes.

4JUDGE TRIKOUROS: Regarding the new 5mechanism that you view that as a --

6MR. LODGE: Correct. And that is a 7misread by FirstEnergy of the thrust of our 8contention.

9JUDGE TRIKOUROS: Okay. I don't have any 10more questions on the FENOC answer. These issues came 11up and I really would like to understand them.

12The NRC staff answer on page 20, you make 13the statement that "The root cause is not 14determinative of the shield building monitoring AMPs 15adequacy." So you're saying there's no connection 16between the root cause and the AMP actions.

17MR. HARRIS: Yes, Your Honor. In fact, we 18made those statements back the last time we were about 19this is the mechanism for the cracking in a program 20like this where you're monitoring and trending and 21comparing it to acceptance criteria is not necessarily 22going to tell you whether or not the AMP is adequate.

23The idea is not to arrest. You don't have to arrest 24the cracking. You have to make sure that the shield 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 896building maintains its functions. And that does not 1require arresting the cracking.

2JUDGE TRIKOUROS: And would the root cause 3have any effect on the type of analysis that you do?

4For example, whether you use just visual observations 5or what you refer to as enhanced optics, wouldn't the 6root cause be determined if it were that as well? I 7mean, do you really see there's no connection between 8the root cause and the AMP?

9MR. HARRIS: There is some connection. So 10if you had some cracking that was not visible that you 11could not monitor and trend, of course, then a visual 12inspection would probably be insufficient. Yes, in 13principle, you can.

14In this case for the shield monitoring AMP 15we're looking at the cracking propagation from this 16where you have it. It's been detected by visible.

17You're able to see it in trend the growth of those 18cracks. In this case, you're able to measure that 19trend. I don't know that the ice wedging would impact 20whether or not the monitoring of the crack growth is 21material to whether or not the AMP or the laminar 22crack propagation is adequate.

23JUDGE TRIKOUROS: For me, this is related 24to the comments made by the Intervenors regarding the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 897need for additional testing evaluation methods.

1Whatever methods are in the AMP, they have to be able 2to see cracks regardless of the root cause. And the 3question is in many cases it's just visual. And it's 4not clear to me how that plays out.

5MR. HARRIS: That would be true of almost 6any structure is that there are lots of places in any 7structure that you're not looking at. These 8challenges could have been brought up before. This is 9not a function of the crack propagation in terms of 10monitoring for other cracks that are not visible.

11That was true when they first discovered 12it. It was true when they first put the AMP in place.

13Those issues have been around since we started 14discussing this issue.

15JUDGE TRIKOUROS: Right. And the comments 16were not made by the Intervenors regarding the 17structures AMP in general. They were made 18specifically regarding the shield building AMP which 19is specifically geared toward certain root cause in a 20sense. So I just wanted to make sure I understood why 21you said that. That's all.

22MR. HARRIS: There's no evidence that 23there are cracks -- In terms of those cracks, the 24Intervenors haven't put forward anything that would 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 898suggest that the cracks, those laminar cracks, that 1were characterized by the impulse response testing, 2the core bores, that they haven't been located and 3they can't be found by visual inspection. That there 4is some crack that we're missing somewhere.

5JUDGE TRIKOUROS: So, Applicant, do you 6agree that the adequacy of the AMP is not related to 7the root cause?

8MR. BURDICK: Yes. And I think this goes 9back to some of our earlier discussion that the shield 10building monitoring program was put into place to 11address this laminar cracking. And it's focused on 12the laminar cracking and to see if there are any 13change in the nature of that cracking.

14When it was implemented or I should say 15when it was submitted in April 2012, it already did 16that. It still focused on the laminar cracking to see 17if there were any changes in its nature. That hasn't 18changed in 2013. There have been some enhancements, 19but still it's looking for changes in the nature of 20the laminar cracking.

21JUDGE TRIKOUROS: If the AMP finds 22something, then a root cause is usually done to 23evaluate what's causing the problem. Then isn't it 24true that the AMP would then be modified to reflect 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 899anything learned from the root cause? I mean the 1statement that they're just totally distinct I just 2don't understand.

3MR. BURDICK: If any of the acceptance 4criterion in the AMP are I guess affected, if they see 5a change in the width of a crack or the expansion of 6the crack into an uncracked area, then certainly FENOC 7would investigate that. It may not require a root 8cause. It depends on what they find.

9But they're investigate to look if 10anything needs to change. Just like in 2013, still 11the purpose and what's monitored and the focus on 12laminar cracking didn't change in those circumstances.

13JUDGE TRIKOUROS: All right. So where the 14Intervenor has claimed that you need additional 15testing methods, your position is that your current 16testing methods are adequate. But that you would 17implement new testing methods if there was an 18observation of something new.

19MR. BURDICK: I don't know.

20JUDGE TRIKOUROS: I'm trying to 21understand.

22MR. MATTHEWS: Judge Trikouros, we're here 23today because the monitoring program worked. It 24identified changes in the crack. It identified crack 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 900propagation. That was under the maintenance rule 1program in the current period that is functionally 2similar to the AMP and now identical. It found it and 3put it in the corrective action program. Under 4appendix B corrective action program, there was an 5evaluation of the issue.

6JUDGE TRIKOUROS: It found it because you 7used enhanced optics.

8MR. MATTHEWS: Yes.

9JUDGE TRIKOUROS: I mean that 10specifically.

11MR. MATTHEWS: In the current program.

12Even in our monitoring program, we used advanced 13optics. Then when we identified indications of 14cracking it was put in several condition reports into 15the corrective action program. In the corrective 16action program, then all the appendix B sections that 17I think you're referring to all applied.

18FENOC assessed whether this should be a 19low tiered evaluation, whether it was an apparent 20cause, whether it was root cause. This was a full 21apparent root cause or full apparent cause evaluation.

22Nonetheless, they used a contractor who did a root 23cause to help support their apparent cause. And they 24did extentive condition which they decided to do, a 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 901more comprehensive core bore evaluation, look at all 1the core bores.

2In those areas where they suspected there 3could be possibility of crack propagation, they did 4impulse response testing which is not the same, not 5better, than core bore. It's another datapoint. It 6tells you something different about the concrete, not 7necessarily that it's cracked. But it's an 8indication. They used that.

9So the short answer to your question is 10yes. They would use the corrective action program to 11evaluate what further methods would be necessary to 12identify the cause and the extent of condition.

13But can we tell you today sitting here 14that if we found this crack they would do this many 15more core bores or this area for the analysis that 16might have to do with impulse response testing or 17chemical testing or whatever else they might do? We 18can't say that. It would be addressed under the 19corrective action program appropriately as it was.

20And that's why we're here.

21MR. HARRIS: And, Your Honor, I think 22maybe to clarify. What we were intending to say when 23we were talking about the relationship of the cause of 24cracking to the AMP was the method for the cracking is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 902not determinative of the adequacy of the AMP. Whereas 1you could determine the adequacy of the AMP without 2necessarily knowing the method of cracking.

3Now does that feed into how fast the crack 4may be growing? What's the particular mechanism in 5terms of when you might challenge the acceptance 6criteria? Of course. Should you feed that 7information in as they did? Of course. But what 8we're saying is you can determine the adequacy of the 9AMP simply because the mechanism -- a new mechanism 10has been identified.

11JUDGE TRIKOUROS: Okay. I'm just trying 12to correlate here the comments made by the Intervenors 13that there should be additional methods of 14investigation identified. And the fact that the AMP 15itself pretty much says visual I believe I don't think 16there is any -- I'd have to pull it out and look at 17it. But I don't see -- There's a lot of visual 18inspection using an ACI-approved method.

19And yet here in this situation we had a 20very astute consultant, PII, who chose to look at the 21bore holes using an enhanced optics method which 22identified the additional cracking only because of 23that and then preceded to identify an additional root 24cause, namely ice wedging.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 903MR. MATTHEWS: Judge Trikouros, there's 1just a small factual piece of that that's flip. FENOC 2used the enhanced method and identified the cracking 3and referred to PII. And the PII used other methods.

4JUDGE TRIKOUROS: I stand corrected.

5MR. MATTHEWS: But FENOC on its own.

6JUDGE TRIKOUROS: Okay. That's good to 7know. So FENOC chose to use an enhanced optics method 8and found the crack. That's good. But the point is 9that if they hadn't the cracks would have gone 10undiscovered or so it appears by reading whatever is 11in front of me.

12MR. MATTHEWS: And they have until the 13next core bore inspection.

14JUDGE TRIKOUROS: Again, I'm just trying 15to relate this to the comment that we're dealing with, 16the contention that we're dealing with, that is 17addressing the need for additional methods of 18investigation with respect to the AMP.

19MR. MATTHEWS: But I think we're flipping 20it again, Judge Trikouros. They haven't said why we 21should expect cracking anywhere else other than on the 22fringe of the existing laminar crack. We have 23identified why the crack grew in those areas and 24through the ACE explained that. They just said they 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 904want these other testing methods in other areas but 1not why it's necessary. Why that's a deficiency of 2the shield building AMP or the structures AMP or any 3AMP? They haven't told us why that's necessary at 4all.5I understand your question why is FENOC 6comfortable. But we don't need to look in other 7places.8JUDGE TRIKOUROS: I agree that the comment 9is very broad and broadly applied. Use other methods 10and they mention -- you mention five or six. But you 11don't identify one in particular or two in particular.

12There's truth to that.

13MR. MATTHEWS: And FENOC is not sticking 14its head in the sand. FENOC has evaluated all the 15core bores they had in response to this. They went to 16all 80 and checked. They have a structure monitoring 17AMP.18There's just no reason to suspect that 19this laminar cracking phenomena may pop up somewhere 20else. The building is not coated. So there won't be 21wind driven rain into it to cause that saturation in 22these other areas. The rebar is not at that spacing 23in these other areas. Without that, FENOC doesn't 24have a reason to start drilling holes all over the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 905shield building or any other building.

1JUDGE TRIKOUROS: All right. I think I'm 2okay with all the rest. Just for my own information, 3the contentions five and six material, while we did 4not admit those contentions for a variety of reasons 5that we documented, what is your position regarding 6the availability of that material for this contention?

7MS. KANATAS: Certainly, it is 8Intervenor's right to incorporate by reference past 9filings. But that doesn't excuse Intervenors from 10having to meet the contention admissibility standards 11and indicate at this point since we're now almost four 12years past the deadline for initial petitions for 13intervention how that information is new and 14materially different and how it supports admissibility 15by raising a genuine material dispute with the 16application within the scope of the proceeding.

17And they did not do that. They simply 18repeated their arguments that they've raised these 19concerns before and they've possibly should have been 20admitted before and that they show that there's a 21problem. But they don't -- That's not enough I mean.

22So it's certainly not our position that 23they cannot cite to past pleadings. But again it 24doesn't excuse the need to tie those pleadings to a 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 906specific, adequately supported challenge to the 1application as it stands now.

2JUDGE TRIKOUROS: I understand. Okay.

3But there's no problem with looking at that 4information and making a determination as to how it 5might or might not impact this.

6MS. KANATAS: Well, it's for the -- This 7is not -- Certainly, we can look at what they filed in 8their pleadings in support of their contentions. It's 9not for the staff or the Board or anyone else to build 10a contention for them. They have proposed certain 11claims based on those filings. And we are here. It 12is our position that they have not demonstrated that 13those filings raise a dispute.

14JUDGE TRIKOUROS: Right. Now I 15understand. Any comments on that?

16MR. BURDICK: I agree with that. Their 17contention is certain building requirements. We 18talked about them multiple times today. There are 19timeliness requirements. Those all have to be 20satisfied for that information as well.

21So there is a burden on the Intervenors to 22demonstrate it is timely. If they're raising the 23document to make an argument that they could have made 24back when the information first became available then 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 907that would be untimely. And if they try to use it, 1for some reason it is timely and they try to use it, 2they still have to meet the six other contention 3admissibility factors including providing the alleged 4facts and expert opinion or identifying the genuine 5dispute. So they can't just cite the information or 6incorporate it and assume that meets that hurdle.

7They still have to demonstrate it. And that's 8certainly one thing they have not done is try to pull 9the argument together.

10JUDGE TRIKOUROS: Okay. Now I have a 11question on the Intervenor reply on -- It would be on 12page four. I don't quite understand what you said 13that 10 CFR 54.29 -- I'm sorry. It says "FENOC and 14the NRC staff has made conjectural arrangements 15commencing in 2017 to be predicated upon information 16learned about the cracking FirstEnergy has not yet 17identified much less absorbed." I didn't understand 18that.19(Off microphone comments) 20MR. BURDICK: Judge Trikouros, I think it 21might be on the top of page 15 of the reply.

22JUDGE TRIKOUROS: Yes.

23MR. LODGE: Sorry. I didn't realize you 24were still looking for it. It is the first full 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 908sentence.

1JUDGE TRIKOUROS: Okay. Sorry. I had the 2wrong reference there. Could you explain that to me?

3MR. LODGE: Yes sir. I apologize. This 4is again draftsmanship.

5JUDGE TRIKOUROS: Of what?

6MR. LODGE: Of the meaning of that 7statement was that FirstEnergy is proposing aging 8management plan arrangements commencing for the 20 9year renewal period based upon unknown unknowns. That 10essentially until there's a baseline set of data 11established as to the cracking status of the overall 12shield building that to come up with in 2014 with an 13aging management plan for 2017 is fatuous. That's 14what we meant.

15JUDGE TRIKOUROS: Okay. All right. On 16page 16, you make the statement "Contention 7 must be 17adjudicated by the Board not as a determination of the 18adequacy of present CLB activities but to ascertain 19whether there was reasonable assurance that the 20present CLB efforts will tandem into the obligatory 21shield building CLB activities." Perhaps you can give 22me a little more on that.

23MR. LODGE: We were respecting the fact 24that it is by regulation not permissible to litigate 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 909what is done by way of corrective action or the things 1related to continuing license basis between now and 2April 22, 2017. But we believe it's incumbent on the 3Board in terms of an adjudication to determine whether 4the continuing licensing basis activities in the 5extension period are in any way logically related to 6whatever happens over the next two and a half to three 7year period.

8We've haggled a lot today about the hands-9off circumstance over continuing license regulatory 10activity between now and the end of the four year 11period in our very limited recourse to question or 12challenge that. But the FirstEnergy approach has been 13to treat this as a day-to-day management problem.

14We contend that so long as there is a lack 15of comprehensive understanding of the status of the 16structure that they get that pass. It would be a 17different picture and it might even make the 18Intervenors go away if there were comprehensive 19knowledge of the status of the shield building. We 20believe that after the coating was applied which was 21a big game changer that that's a very different 22circumstance which has apparently caused additional 23cracking.

24And I'd like to take this opportunity to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 910point out that from 1978 until 2011 either because 1they weren't visible or because they weren't being 2looked for cracking was not noticed. We're talking 3about the blizzard of '78 setting up the preconditions 4for the cracking to commence and have to presume that 5it was under way continuously through 2011.

6In 2002, there was a maintenance breach of 7the shield building. The cracking is not noticed.

8Perhaps it was not visible. But it existed. It had 9to exist in some form. The deterioration was 10happening.

11So we're talking about decades where 12cracking is not identified. And then we sort of get 13into this anecdotal phase where in 2011 in a 14maintenance breach circumstance laminar cracks are 15noticed. And there is an investigation performed.

16And even if you were to concede that the 17impulse testing done at that time were done and it was 18relatively comprehensive it was not the -- it 19certainly was not exactly the best available 20technology. But even if it were, the later technology 21that has been applied has shown that there's 22microcracking that has not been identified.

23Our point is that this panel has to --

24Certainly, we think it is relevant to look at what the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 911plan is right now, the aging management is at this 1moment. But you have to make inferences as to its 2adequacy during the 20 year period that would follow 3if an extension were to be granted. And based upon 4historical cracking, I think that there's a lot of 5data that's missing that would be very necessary for 6consideration in that proceeding.

7(Off microphone comments) 8JUDGE TRIKOUROS: Okay. I'm done with my 9questions regarding the pleading. Just again to 10understand this a little better, laminar cracking 11appears the winter of '78. Does ice wedging not occur 12from that point forward or does it occur?

13MR. BURDICK: There is no evidence of ice 14wedging prior to when it was identified in 2013.

15JUDGE TRIKOUROS: Prior to what?

16MR. BURDICK: Prior to when it was first 17identified in 2013. So our conclusion from the root 18cause evaluation in 2011-2012 was that there was the 19one event laminar cracking that was by the '78 20blizzard. Only through that event and the design of 21the shield building that caused one laminar cracking.

22So it was only after that point when the ice wedging 23occurred. So after -- In the last couple of years.

24JUDGE TRIKOUROS: What is it about the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 912last couple of years that's different.

1MR. BURDICK: So the apparent cause 2evaluation identifies the attributing cause as 3coating. So there's the application of the coating to 4the shield building. So there's no evidence that 5there was any ice wedging before application of that 6coating.7MR. MATTHEWS: Retrospectively to see if 8there had been indications of step fracture prior to 92012 and did not find indications of step fracture 10which would be indicative of ice wedging.

11JUDGE TRIKOUROS: So really applying the 12coating did it.

13MR. MATTHEWS: The ACE concluded that was 14a contributing cause.

15JUDGE TRIKOUROS: Yeah, I've had trouble 16understanding. I'm not a structural guy, but I've had 17trouble understanding why applying the coating would 18cause that to happen.

19MR. MATTHEWS: And that same analysis 20affirmed the evidence earlier of the initial freeze as 21causing one continuous crack and not the suggestion 22that's been tossed out here without basis that it's 23some type of living phenomena.

24JUDGE TRIKOUROS: Okay.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 913JUDGE FROEHLICH: At this stage, I would 1propose that we take a ten minute break. If people 2would please correct your closing arguments, we'll 3hear them in the order of staff, the Licensee, closing 4finally with the Petitioners. Then we'll call it a 5day. We'll take ten minutes and then proceed directly 6to closing arguments. Off the record.

7(Whereupon, the above-entitled matter went 8off the record at 3:13 p.m. and resumed at 3:26 p.m.)

9JUDGE FROEHLICH: On the record. Start 10from the top.

11MS. KANATAS: Okay. Thank you, Your 12Honors. This oral argument is about the admissibility 13of Contention 7. Have Intervenors met their burden in 14submitting an adequately supported contention that 15raises a material, genuine dispute with FENOC's Davis-16Besse's license renewal application and meets the 17Commission's standards for contentions filed after the 18deadline for petitions to intervene.

19The answer to that question is no.

20Intervenors proposed Contention 7 should not be 21admitted to this proceeding because Intervenors have 22not shown that the contention is based on new and 23materially different information or that the 24contention raises a genuine material dispute with 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 914FENOC's license renewal application. In support of 1Contention 7, Intervenors incorporate all of their 2Contention 5 filings and provide a history of the 3shield building issues that led to the filing of 4Contention 6.

5While the staff recognized that Contention 65 raised a single admissible safety claim at the time 7it was filed, that claim was mooted by FENOC's 8submission of a shield building monitoring AMP. Since 9April 2012, FENOC's application has included plant 10specific shield building monitoring program to monitor 11the shield building cracking during the period of 12extended operation.

13Intervenors claim that changes made to 14this AMP by FENOC's July 3, 2014 submittal are new and 15materially different information. Intervenors also 16claim that the full apparent cause evaluation contains 17new and materially different information given its 18conclusions on ice wedging. However, Intervenors have 19not shown that the changes made to the AMP or the 20conclusions in the full apparent cause evaluation are 21new and materially different information.

22The shield building monitoring AMP always 23contemplated the possibility of an aging mechanism and 24increasing monitoring and augmenting inspections if 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 915new cracks were identified. And this is exactly what 1FENOC did in response to operating experience.

2Intervenors could have and did raise challenges that 3the scope, method and frequency of the testing was 4inadequate prior to this September. But those 5previous challenges were rejected. Under Oyster 6Creek, Intervenors' attempts to challenge the 7augmented shield building monitoring AMP must fail.

8In terms of the coating being a 9contributing cause to the crack propagation, the 10Intervenors do not indicate why this suggests 11inadequacy in the monitoring proposed by the shield 12building monitoring AMP. Likewise, while Intervenors 13might incorporate by reference their previous filings 14on the shield building, that does not excuse them from 15showing how that information is new and materially 16different.

17Intervenors do not indicate how any of the 18information in the Contentions 5 or 6 filings is new 19or materially different. Instead Intervenors repeat 20arguments considered and rejected by the Board and 21suggest that the Board was wrong to reject them in the 22first instance.

23This rehash of previous arguments does not 24support admissibility of Contention 7. Even assuming 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 916the Board finds that Contention 7 is based on new and 1materially different information, Contention 7 should 2still be found inadmissible. Intervenors have not 3shown that the Contention 7 satisfies the Commission's 4contention admissibility standards.

5Intervenors' challenges to the shield 6building monitoring AMP while in scope do not raise a 7genuine material dispute with the application.

8Intervenors only point to enhancements made to the AMP 9and assert without support that more is needed, more 10core bores, more monitoring, more tests or they raise 11nonspecific and nonsupportive challenges that other 12AMPs are inadequate. This is not enough to trigger an 13adjudicatory hearing.

14The rest of Contention 7 safety claims are 15issues that are outside the scope of this limited 16proceeding such as current operating issues, safety 17culture claims and challenges to the staff's review.

18This Board has made clear that these issues are not to 19be adjudicated in this license renewal proceeding.

20Even assuming these claims were in scope, Intervenors 21claim that basis.

22Intervenors do not explain why using facts 23or expert opinion the shield building cracks impact 24the shield building's ability to perform its intended 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 917functions. Likewise, Intervenors' environmental 1claims do not satisfy the Commission's contention 2admissibility standards because their lack of support 3and specificity and do not raise a genuine material 4dispute with FENOC's environmental report and the 5staff's draft environmental impact statement.

6Intervenors assert that the SAMA is 7inadequate, but Intervenors offer no support for this 8assertion and do not point to any specific portion of 9the SAMA or the DSEIS or indicate how those analyses 10are inadequate. Likewise, Intervenors claim that the 11alternatives analysis is inadequate, but do not 12specify how the analysis is flawed. Instead 13Intervenors claim that the shield building must be 14repaired because it is not able to meet its design 15basis functions.

16But Intervenors do not offer support for 17these claims or explain how using facts or expert 18opinion the shield building cracking are connected to 19an environmental impact that is relevant to the 20 20more years of operating the plant. Therefore, it is 21clear the Intervenors believe there are errors or 22deficiencies in FENOC's license renewal application.

23Intervenors have not indicated some significant link 24between a claim deficiency and the health and safety 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 918of the public or the environment.

1While the staff has not made its findings 2on the shield building monitoring AMP, Intervenors 3have not raised a support of genuine dispute with the 4AMP. The staff continues to review the shield 5building monitoring AMP. FENOC's October 28, 2014 6response to the staff's September 29th RAI and may ask 7additional questions.

8But this does not give rise to an 9evidentiary hearing. The RAI process is routine and 10customary in licensing reviews. To admit a contention 11into this proceeding, Intervenors must do more than 12point to FENOC's responses and claim that they are 13inadequate.

14In closing, I'd like to repeat a point 15that I opened with. The staff recognizes that the16shield building is a structure within the scope of 17license renewal and that is subject to aging 18management review. The staff also recognizes that the 19shield building performs important design basis 20functions. The staff will not issue a renewed license 21unless and until it finds that FENOC has met all 22applicable requirements. Thank you.

23JUDGE FROEHLICH: The Licensee.

24MR. MATTHEWS: Thank you, Judge Froehlich.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 919FENOC appreciates this opportunity to address the 1Board today. I'd like to recognize the zeal of the 2Intervenors, the efforts on the part of the NRC staff, 3staff counsel and also recognize the obvious effort of 4the Board to dig into these issues so that we can have 5this constructive discussion I think we had today.

6As Judge Froehlich noted in his opening 7remarks this morning, the only purpose for which we're 8here this morning or today is to discuss the 9timeliness and sufficiency of the Intervenors' 10proposed contention. We touched on a lot of things, 11but that's the only reason we're here.

12As both the staff and FENOC explained in 13their written briefs and discussed further today, the 14Intervenors have not. The proposed contention should 15not be admitted.

16With respect to timeliness, the 17Intervenors have not identified any materially 18different, new information in FENOC's revised aging 19management program or the full apparent cause 20evaluation. FENOC has always been focused on 21identification of any observable change in the laminar 22cracks. The methods specified in the AMP worked. The 23challenge is now to those inspection methods are 24untimely.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 920Improvements practices in the AMP, 1improvements in the AMP, do not open the entire AMP to 2new attack as the Commission and the Board found in 3the Oyster Creek proceeding.

4With respect to sufficiency of the 5proposed Contention 7, Intervenors also failed to meet 6the requirements specified in 10 CFR 2.309(f)(1).

7Many of the topics contained in the contention fall 8well outside the scope of the license renewal 9proceeding.

10Most of those we have not spent time on 11today addressing safety culture or NRC disclosure 12practices. But we did spend some time on current 13licensing basis, again outside the scope of license 14renewal. In fact, they're specifically excluded from 15license renewal under the sections of regulation we 16talked about today.

17To the extent Intervenors do refer to 18FENOC's aging management program at all, they fail to 19satisfy the requirements of 309(f)(1). They never, 20not in their initial contention, not in the amended 21contention, not in the reply brief and not here today 22identified any reason, any basis, to say why FENOC's 23AMP is not adequate for its purpose.

24They don't say why they believe monitoring 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 921of core bores is insufficient. Even in the face of 1the demonstrated success, the identification of crack 2propagation is why we're here today. They don't 3identify any deficiency in the scope, method, 4frequency, number or location of our inspections.

5They say they want all of these aspects 6expanded, but do not say why the enhancements FENOC 7has already submitted are not sufficient. When 8pressed today, they identified none.

9Of course, without having identified any 10deficiency nor have they identified supporting basis, 11either expert opinion or other technical authority, 12again pressed today, they found none. They have not 13demonstrated how their concerns or curiosities as they 14characterized them impact any finding the staff must 15make in order to issue a renewed license.

16There's been some discussion today about 17other concrete failure mechanisms such as freeze/thaw 18or microcrack. Intervenors never challenged the 19structures AMP. If they had, that too would have been 20without basis and probably untimely, but they did not.

21This discussion today does not cure that deficiency.

22The shield building monitoring AMP, there 23was a couple of housekeeping issues I'd like to 24address in this. The shield building monitoring AMP, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 922there was a question about limited to visual 1inspection. And, Judge Trikouros, I think it was 2yours. I think you'll see that it's not limited to 3visual inspection. At page four of six, its visual 4inspection supported by a nondestructive evaluation as 5appropriate.

6Similarly, the parallel program in the 7current period took us to impulse response testing as 8a nondestructive evaluation technique. So it is 9certainly not -- FENOC is not constrained to visual 10testing.11It does in fact refer indications to the 12corrective action program. And the corrective action 13program as the Commission recognized when 14incorporating or continuing the current license basis 15and the renewal term is sufficient for a monitoring 16AMP.17FENOC has extent of condition evaluation, 18extent of cause evaluation and its appropriate 19developed correction actions under that appendix B 20program. So there should be no concern about the 21adequacy of the corrective action program to address 22concerns, issues, technical changes should they be 23identified.

24There was also a reference today to the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 923thermal conductivity of the shield building and 1whether we should be concerned about the depth of 2freezing. I think you'll see in the original root 3cause that you discussed earlier today, Judge 4Trikouros, at page 26, paragraph four they discuss the 5properties of the concrete and conclude that the 6thermal conductivity of the shield building was within 7the acceptable range.

8With respect to the proffered 9environmental contention, whether we call it the SAMA 10contention, the no alternative or other, that 11contention failed for all the same reasons I addressed 12related to safety basis. And I won't repeat them.

13There have been some suggestions today 14that FENOC doesn't understand the status of the shield 15building without basis. But those statements fall 16into a pattern of tax on FENOC, the men and women of 17FENOC. It's not the three attorney sitting at the 18table. There are hard-working people at FENOC who 19study these issues who have evaluated the condition of 20the shield building, have looked at the calculations, 21have assessed the calculations, answered the NRC's 22questions. They've been very open. They've been very 23honest.24We're here today because of the hard work 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 924they did in identifying it, studying it and revising 1the AMP. Those kinds of suggestions are without basis 2and I wanted to bring that to the Board's attention.

3There are real people behind these allegations that 4are thrown around.

5To that point, Intervenors challenge a lot 6of things. They make allegations about the shield 7building AMP. They make allegations about FENOC 8disclosing information. They make allegations about 9the staff's review. They even seem to be making 10allegations about the Board's earlier decisions.

11One thing they haven't really looked at is 12the sufficiency of their own contention and explain 13today why it should be admitted. For the reasons, 14we've discussed in our briefs and here today, the 15proposed Contention 7 should be rejected in its 16entirety. Again, we appreciate this opportunity to 17address you.

18JUDGE FROEHLICH: Thank you.

19MR. LODGE: Thank you. Let's dispose of 20the simple issues first. We timely filed. We timely 21filed within 60 days. Actually, it was 62 days, but 22that was because of the Labor Day holiday. I didn't 23take Labor Day off.

24The timeliness requirements were met. The 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 925new and material information. I guess there's no new 1and material information if you ignore the damaging 2revelation that coating the shield building worsened 3the problem. That is new and material information.

4The unanswered end of that, however, is 5now what? What happens to the saturation status of 6the outer 10 inches apparently 360 degrees around the 7shield building? We've adequately supported in a 8timely fashion with material new information our 9contention.

10And there is some very hard working people 11no doubt at FirstEnergy. Intervenors question the 12direction of those efforts. We still haven't heard 13that there's been a comprehensive analysis of the 14entire shield building.

15And let me explain something. You heard a 16little while ago the representations of FENOC's 17counsel about ice wedging. "Ice wedging" -- and I'm 18reading from the FACE analysis -- "requires the three 19following conditions to occur: a preexisting crack, 20water present in the crack at localized saturation, an 21ice wedge cycle that contains a freezing condition."

22So explain for me how it could be that there was no 23ice wedging until they coated the shield building.

24You had at some point laminar cracking.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 926You had subsurface laminar cracking. So you had 1preexisting cracks. And you had water. And you had 2freezing and thawing. So how can it be that we're 3sitting here haggling as lawyers making 4representations to the Board as to engineering or 5scientific co nclusions that we kind of have no 6business making instead of adjudicating this thing.

7I almost wanted to slip notes to the 8Licensing Board as to cross examination questions to 9ask counsel just to inquire behind that conclusory 10assurance that FirstEnergy is giving you that "Oh no.

11There's no ice wedging until we identified it from the 122012-2013 debacle" 13In fact, I appreciate, the Intervenors 14appreciate, the intensive scrutiny that the Board has 15applied to this issue and before today and in 2012.

16We're not trying to relitigate the findings that Board 17rendered in 2012. We are simply trying to make sure 18that the record contained the historic data, the FOIA 19request of the facts. And the Board has certainly 20reflected that it has gone back into the historic 21filings and the historic facts which are quite 22important and relevant to understanding things today.

23PII has called the shield building 24situation unique. And indeed when you think how could 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 927it possibly be that more than 35 years after the 1building is constructed someone apparently looks at 2old specs and realizing "Oh my God. We didn't coat 3the shield building" and then has to reconstruct how 4it came to be that there were laminar cracks.

5But the problem that follows upon that is 6that FirstEnergy confined its investigation to laminar 7and sublaminar cracking. The Intervenors did not 8confine their analysis, their arguments and their 9facts to merely laminar cracking. And we have been 10proven, we've been vindicated, to some extent by what 11has happened and the discoveries made with better 12technology and the error made by FirstEnergy in 13coating the shield building.

14The ACI monitoring advice does not cover 15the situation. I think that was pretty clearly shown.

16And finally I often -- I've done a lot of 17summary judgment and summary disposition litigation in 18my career as have a lot of attorneys. And probably as 19Judges, your eyes glass over as mine do when you read 20the recitations of standards and what you may and may 21not consider in the course of determining whether or 22not to admit a contention.

23And I found my admittedly rather 24boilerplate discussion of contention admissibility 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 928requirements at the end of I think our reply that was 1filed October 10th. But I think these words mean 2something. We have gone way into this issue today.

3We have explored it through the helpful discussions, 4arguments and points made by all of the attorneys 5sometimes with the advice of experts.

6But the threshold admissibility 7requirements of a contention should not be turned into 8a "fortress to deny intervention." And that's the 9Power Authority of the State of New York was the most 10recent recitation I could find of that from 2000 CLI-1100-22. But the principle has been elaborated and 12applied since the mid '70s.

13There's not a requirement on us, on the 14Intervenors, on the Petitioners, today to have made 15our substantial case at this stage. And very many 16times during the course of the dialogue today, I've 17had the distinct impression that we're being held to 18this standard of proof beyond a reasonable doubt.

19We have demonstrated from expert engineers 20and perhaps other specialties in the employ of the NRC 21and FirstEnergy a continuing history of -- I should 22say a continuing saga that perhaps as I've said before 23may not be concluded even now. We have three 24different root causes. I agree and admit that there 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 929is synergistic effect probably among some of those 1causal factors.

2But today isn't the day when you as the 3jurists in this proceeding weigh the evidence and 4decide whether or not the Intervenors should be 5rewarded by a chance to go to trial or punished by 6being denied that opportunity. Today is simply the 7opportunity the Board has made for us to articulate in 8detail what our respective positions are.

9We believe that we aren't called upon to 10make our case. We're here to indicate what facts or 11expert opinions that we're relying on and we have 12articulated a contention that we believe must be 13adjudicated. That contention is that there are safety 14-- SER and NEPA implications which were spelled out 15but at least explained and mentioned and referenced in 16the contention wording itself. There are Atomic 17Energy Act implications.

18The problem with the shield building is 19that it is being treated as though it's pristine.

20That despite incremental, damning evidence that there 21is a deterioration going on notwithstanding the 22warnings of engineers on the Commission's own staff 23that there could be a crisis that there could be a 24very serious problem, notwithstanding new cracking 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 930actually caused by the utility company itself, these 1are surmountable obstacles that simply can be ignored 2because right now that building is standing and it 3looks like it's performing its function. Therefore 4the aging manag ement plan up to the this point has 5been a success.

6I appreciate that the aging management 7plan has identified further problems. Our concern 8however is that there is not an end to the 9identification of the damage that is being done that 10is on going nor what the future holds in terms of 11identification of new causes that follow upon new 12problems. We respectfully request that the panel 13admit Contention 7 and that this matter be allowed to 14go to trial. Thank you.

15JUDGE FROEHLICH: Thank you. At this 16point, the Board would like to thank all parties for 17their arguments today. The answers that were given 18will be helpful to the Board deciding the 19admissibility of this contention. The Board will take 20the transcript of this argument together with the 21pleadings that have been filed in this docket and hope 22that we show our decision before the end of the year.

23I want to thank the ACRS for allowing us 24to use the facilities while the ASLBP courtroom is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 931being refurbished. I want to thank our court reporter 1for his work today.

2If there is nothing further, thank you 3all.4MR. HARRIS: Your Honor, transcript 5corrections.

6JUDGE FROEHLICH: Transcript corrections.

7We should have the transcript I believe within a week.

8I consider just a day or perhaps one week to peruse it 9and submit any transcript corrections. Will that be 10acceptable to the parties?

11MR. HARRIS: Your Honor, that may be. I 12would mention that Mr. Lodge and both Ms. Kanatas and 13I have an argument next week at Fermi. So that might 14impact our ability to turn that around very quickly 15depending on what day that came out.

16JUDGE FROEHLICH: Why don't we make it 17seven days from when it comes out and Fermi is an 18argument one day.

19MS. KANATAS: The 20th.

20JUDGE FROEHLICH: Next Thursday.

21MS. KANATAS: Yes. We'll be traveling on 22the 19th and returning on the 21st.

23JUDGE FROEHLICH: Proposed date for 24transcript corrections, counsel?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 932MS. KANATAS: Happy Thanksgiving. No.

1Your Honor, I'll leave it to you.

2(Off microphone comments) 3JUDGE FROEHLICH: What's the Monday after 4Thanksgiving?

5JUDGE TRIKOUROS: December 1st. Does that 6work for everyone?

7MR. LODGE: Sure.

8MR. MATTHEWS: Fine.

9JUDGE TRIKOUROS: For transcript 10corrections. They're very controversial. December 111st for transcript corrections.

12MS. KANATAS: All right. Thank you.

13JUDGE FROEHLICH: Thank you. We are 14adjourned.

15(Whereupon, at 3:54 p.m., the above-16entitled matter was concluded.)

1718 19 20 21 22 23 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433

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