ML12314A247

Transcript of Hearing, November 5, 2012 - First Energy Nuclear Operating Company, Davis Besse Nuclear Power Station

ML12314A247
Person / Time
Site:	Davis Besse
Issue date:	11/05/2012
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
RAS 23728, 50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-1923
Download: ML12314A247 (237)

Text

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

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

Washington, D.C. 20005 (202) 234-4433 275 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 UNITED STATES OF AMERICA 1 U.S. NUCLEAR REGULATORY COMMISSION 2+ + + + +3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4+ + + + +5______________________________

6 In the Matter of:  : Docket No.

7 FirstEnergy Nuclear  : 50-346-LR 8 Operating Company  :

9  : ASLBP No.

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

12______________________________:

13 14 Monday, 15 November 5, 2012 16 Toledo, Ohio 17 18 19 BEFORE: 20 WILLIAM J. FROEHLICH, Chairman 21 WILLIAM E. KASTENBERG, Administrative Judge 22 NICHOLAS G. TRIKOUROS, Administrative Judge 23 24 25 276 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 APPEARANCES:

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

3 BRIAN G. HARRIS, ESQ.

4 CATHERINE KANATAS, ESQ.

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

11 TIMOTHY P. MATTHEWS, ESQ.

12 KATHRYN M. SUTTON, ESQ.

13 MARTIN J. O'NEILL, ESQ.

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

20 Senior Corporate Counsel II 21of:FirstEnergy 22 76 South Main Street 23 Akron, OH 44308 24 (330) 384-5037 25 277 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 On Behalf of the Intervenors

1 TERRY J. LODGE, ESQ.

2of:Citizens Environmental Alliance of 3 Southwestern Ontario, Don't Waste 4 Michigan, and Green Party of Ohio 5 316 N. Michigan Street 6 Suite 520 7 Toledo, OH 43604 8 (419) 255-7552 9 10 KEVIN KAMPS 11of:Beyond Nuclear 12 6930 Carroll Avenue 13 Suite 400 14 Takoma Park, MD 20912 15 (301) 270-2209 16 17 MICHAEL KEEGAN 18of:Don't Waste Michigan 19 811 Harrison Street 20 Monroe, MI 48161 21 (734) 770-1441 22 23 24 25 278 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 Also Present

1 MATTHEW FLYNTZ, ESQ., Law Clerk 2 ONIKA WILLIAMS, ESQ., Law Clerk 3 BRYCE LEHMAN, NRC, NRR 4 VIKTORIA MITLYNG, NRC, Public Affairs 5 JOHN PARILLO, NRC, NRR 6 KAREN VALLOCH, NRC, ASLBP 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 279 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 P R O C E E D I N G S 1 9:00 a.m.2JUDGE FROEHLICH: Please be seated. Good 3 morning. It's Monday, November 5th, 2012, 9:00 p.m.

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

6Today's oral argument concerns 7FirstEnergy's application, Docket No. 50346 LRA, to 8 renew the Davis-Besse Power Station Unit 1 operating 9 license for an additional 20 years, from its current 10expiration date of April 22nd, 2017. Davis-Besse's 11site is located in Ottawa County, about 25 miles from 12 this courthouse.

13 In accordance with the Atomic Safety and 14Licensing Board's Notice and Order issued on September 1520th, today's oral argument has been convened in 16response to two motions: First, that FirstEnergy's 17July 26th Motion for Summary Disposition of Contention 18 4 concerning Severe Accident Mitigation Alternatives 19(SAMAs), and Intervenors' January 10th, 2012 Motion 20 for Admission of Contention No. 5 on shield building 21 cracking.22 On November 22nd, the Board supplemented 23 its September 20th Notice and Order by providing the 24parties potential areas of inquiry, and examples of 25 280 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433specific questions that may be asked by the Board 1 during today's oral argument.

2As previously mentioned, the Applicant 3here is FirstEnergy. Intervenors in this matter 4consist of Beyond Nuclear, Citizens Environmental 5 Alliance of Southwestern Ohio, Don't Waste Michigan, 6and the Green Party of Ohio. We'll refer to this 7 group collectively as the intervenors.

8Before we begin, I'd like to introduce the 9members of the Panel, and explain the role just 10 briefly of the Board and address the legal standards 11 in this proceeding.

12My name's William Froehlich, and I'm 13Chairman of this Atomic Safety and Licensing Board.

14To my right is Judge Nicholas Trikouros. Judge 15Trikouros has been a full-time member of the Panel 16 since 2006. He holds a Bachelor's of Science degree 17from Fordham University, Master's from NYU, and an 18advanced Engineering degree from the Polytechnic 19 Institute affiliated with NYU.

20To my left is Judge William Kastenberg.

21Judge Kastenberg holds a Bachelor of Science and 22Master's degree in Engineering from UCLA, and has a 23Ph.D. in Nuclear Engineering from the University of 24California at Berkeley. For over 40 years, Dr.

25 281 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 Kastenberg was a professor in the University of 1 California system.

2As I mentioned earlier, my name's William 3 Froehlich. I'm a lawyer by training; had about 35 4years of federal administrative and regulatory law 5 experience. Because I'm a lawyer and one of the 6judges here, I'll serve as chairman for this Board for 7 all procedural issues.

8I'd also like to just introduce a few 9members who are here from the Atomic Safety and 10 Licensing Board Panel. We have our two law clerks 11with us today, Mr. Matthew Flyntz and Ms. Onika 12Williams, over there to my left. Both are attorneys.

13In addition, we have an administrative and logistical 14support member with us, Ms. Karen Valloch, who's 15 quietly sitting in the back.

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

23The Panel's administrative judges don't 24 work for or with the staff, and take no part in the 25 282 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433staff's licensing application review. Rather, we are 1charged with deciding whether the procedural issues 2that arise during the application process are 3litigable, making determinations whether there's 4 substance or validity, and the grant or conditioning 5 or denial of a requested license.

6Our decisions on hearing matters are 7generally subject to review, first by the Commission, 8that's the NRC commissioners, then by the federal 9 courts.10The matters before us during this oral 11 argument deal with a Motion for Summary Disposition, 12as well as a Motion for Admission of a New Contention.

13As to the Motion for Summary Disposition, a party 14seeking summary disposition bears the burden of 15 showing that there is no genuine issue as to any 16 material fact.

17A material fact is one that may affect the 18outcome of the litigation, or attempts to resolve any 19of the issues raised by the parties. In this case, 20 the party that bears this burden is the Applicant, 21 FirstEnergy.

22The party opposing a Motion for Summary 23 Disposition may not rest upon mere allegations or 24denial, but must state specific facts showing that 25 283 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 there is a genuine issue of material fact remaining.

1In this case, the intervenors are opposing that Motion 2 for Summary Disposition.

3The standard for summary disposition is 4found in 10 C.F.R. 2.710, and 2.710(d)(2) states that 5"The presiding officer shall render a decision sought 6 if the filings in the proceedings show that there is 7no genuine issue as to any material fact, and that the 8moving party is entitled to a decision as a matter of 9 law." 10FENOC's Motion for Summary Disposition 11deals with Severe Accident Mitigation Alternatives 12 analysis under the National Environmental Policy Act 13for Davis-Besse. We will deal with this matter, 14 summary disposition of FENOC's SAMA analysis first.

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

20 Members of the audience, a contention is 21 essentially an argument in the matter that the 22intervenors would like to raise during the Applicant's 23relicensing process. The Board will have to decide if 24that contention should be admitted into the 25 284 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 proceeding.

1There are several factors for determining 2if a contention should be admitted. One of those 3 factors is whether the motion is timely, and whether 4-- depending on whether the motion is timely or not, 5what other factors are used to decide whether it 6 should be admitted.

7There will be some discussion, I guess, of 8timeliness factors when we get to the discussion of 9the Motion for the Admission of Contention 5, and I'll 10 give a little preface when we switch to that part of 11 the hearing.

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

18I also want to thank David Rodgers, the 19Director of Court Deputies and others of his staff who 20provide support for us in this proceeding. There will 21be an electronic transcript of this entire proceeding.

22Copies of that transcript will be made available to 23the public. They'll also be posted on the NRC website 24 in approximately a week.

25 285 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433At this point, I'd like the parties to 1introduce themselves. I'd like the lead 2 representative to introduce yourself, state the name 3of your client, any counsel who might be participating 4 with you in oral argument today, and I believe we'll 5 start with the Applicant.

6MR. MATTHEWS: Thank you, Judge Froehlich.

7Good morning Judge Froehlich, Kastenberg and 8Trikouros, I am Tim Matthews of Morgan, Lewis and 9Bockius on behalf of the Applicant, FirstEnergy 10Nuclear Operating Company, and may it please the 11Board, it's a pleasure to appear before you here this 12 morning. First Energy appreciates the opportunity to 13 address these important issues.

14With me at counsel table this morning are 15David Jenkins, senior corporate counsel at 16FirstEnergy, and my partner, Kathryn Sutton.

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

21JUDGE FROEHLICH: And for the Joint 22 Intervenors please?

23MR. LODGE: Thank you, Judge Froehlich.

24 May it please the Panel, thank you for coming out to 25 286 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Toledo to hear these matters. I understand that we're 1 in the winter season now.

2JUDGE FROEHLICH: Could you use the 3 microphone please?

4MR. LODGE: Yes, I'm sorry. Is it on?

5Thank you. My name is Terry Lodge. I am an attorney 6and counsel for the sundry intervenors, including 7Beyond Nuclear, the Citizens Environmental Alliance of 8Southwestern Ohio, Don't Waste Michigan and the Green 9Party of Ohio, who are collectively referred to as the 10 Joint Intervenors.

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

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

20MR. HARRIS: For the NRC staff, I'm Brian 21 Harris. I'm the lead counsel for the Davis-Besse 22 license renewal proceeding. With me at the table is 23Cathy Kanatas, also counsel for the NRC staff, and in 24 the audience, we have two members from headquarters 25 287 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433staff that are working on the license renewal 1application for Davis-Besse, John Parillo and Bryce 2 Lehman.3JUDGE FROEHLICH: Thank you, counsel.

4Just a few words of housekeeping before we begin, and 5a little bit of introductory matters. Housekeeping 6 first. First, turn off your cell phones please. Put 7 them on vibrate. If you have any conversations that 8are unrelated to our oral argument today, please take 9 them outside in the hallway.

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

16Members of the public are free to observe 17proceedings today, and all NRC hearings. But only 18counsel to the parties and representatives will be 19 allowed to speak today, because it is based on their 20 filed pleadings, which the Board has questions.

21 After we hear oral argument today, we'll 22go back and issue a written decision or ruling. We 23 won't rule today from the bench, either on the Motion 24 for Summary Disposition or the Motion to Admit a New 25 288 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 Contention. But we will issue our decision within 45 1days of the conclusion of today's or tomorrow's 2 argument.3If Contention 4 remains in the case, or if 4Contention 5 is admitted, we'll schedule further 5proceedings leading up to an evidentiary hearing. At 6 this point, I'd like to ask my colleagues if there's 7 anything they think we need to add and wish to raise 8 at this point.

9 JUDGE KASTENBERG: No.

10 JUDGE TRIKOUROS: No.

11JUDGE FROEHLICH: As stated in the Board's 12Notice Scheduling Oral Argument, today's argument will 13 begin with an opening statement of about ten minutes 14in length from each party. Since we will hear the 15argument on the Motion for Summary Disposition first, 16 we will have the Applicant go first, followed by the 17 NRC staff and then the intervenors.

18Each will get ten minutes to give an 19uninterrupted opening statement to us. Then the Board 20will ask its questions on Contention 4. After we have 21asked all our questions, we will hear oral argument 22from all the parties. Each party will get about five 23minutes for a closing statement on the Motion for 24 Summary Disposition.

25 289 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433When we get through all of that, we'll 1begin with Contention 5, and on Contention 5, the 2 Intervenors will go first, followed by the Applicant 3and then the NRC staff. So we'll begin now with an 4 opening statement from the Applicant, First Energy.

5MR. MATTHEWS: Thank you, Judge Froehlich.

6I'm Tim Matthews on behalf of FirstEnergy. For the 7reasons thoroughly explained by FirstEnergy in its 8filing, and by the staff in its, the Board should 9grant FirstEnergy's Motion for Summary Disposition of 10 Contention 4.

11Similarly, the Intervenors' Motion for 12Admission of New Contention 5, together with their 13several supplemental pleadings, all should be denied.

14Kathryn Sutton and Marty O'Neill will argue the Motion 15for Summary Disposition and respond to the Board's 16specific questions identified in the prehearing order.

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

23The first theme is Intervenors' ongoing 24failure to abide by the requirements of the Commission 25 290 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433and of this Board. The second is the continued 1 absence of any supporting technical bases whatsoever 2for their arguments. The opinions of counsel, 3representatives, opinions of politicians and fairy 4tale excerpts are not adequate substitutes for the 5 requisite bases required by 10 C.F.R. 2.309.

6 As the Commission instructed recently in 7this proceeding, the COI 1208, repeating its same 8admonition from its decisions in Seabrook in 2011 and 9 Mill Stone in 2003, I quote "We reserve our hearing 10process for genuine material controversies between 11 knowledgeable litigants." 12Intervenors' disregard of governing NRC 13requirements extends broadly to include the knowing 14and ongoing disregard of the Commission's consultation 15requirements under 10 C.F.R. 2.323 Bravo. Non-16compliance with the procedural pleading requirements, 17 particularly those governing the need to demonstrate 18good cause for late filed contentions under this 19Board's initial scheduling order, as well as 10 C.F.R. 20 2.309 Foxtrot and 309 Charlie.

21Failure to meet substantive contention 22pleading requirements set forth in 10 C.F.R. 232.309(f)(1), especially as the scope, support and 24material issues in dispute. Even the most basic rules 25 291 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433of decorum before this Board involving baseless and 1repeated allegations of deceit and alleged coverup by 2 FirstEnergy and the NRC staff.

3Significantly, Intervenors appear to 4confuse the role of boards in NRC adjudicatory 5 proceedings. It is not this Board's duty to carry the 6Intervenors' burden. As the record clearly 7demonstrate, Intervenors have not shouldered their 8burden with respect to either of the contentions in 9 the motions before this Board.

10I'd like to thank the members of the Board 11for this opportunity to address these themes. I'll 12turn the balance of our ten minutes to my partner, 13Kathryn Sutton, who will argue FirstEnergy's Motion 14 for Summary Disposition of Contention 4.

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

22 Rather, they elected to argue new issues 23beyond not only the scope of the motion, but also well 24beyond the scope of the contention itself. The Board 25 292 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433properly struck that pleading, and Intervenors have 1provided no basis whatsoever for its reconsideration.

2In fact, Intervenors' error has 3 consequences here. FirstEnergy's Motion for Summary 4Disposition is now unanswered and unopposed by 5Intervenors, and the NRC staff supports the motion.

6Intervenors should not be permitted now at this 7hearing to answer the motion, absent a showing of good 8 cause as to why any such answer could not have been 9made earlier. Any other course by this Board is clear 10 error and contrary to 10 C.F.R. Section 2.307.

11Now some background on the motion itself.

12First, as this Board noted in its September 24th, 2012 13Order granting FirstEnergy's Motion to Strike, the 14scope of Contention 4, and I quote Your Honor, "is 15 very narrow," end quote.

16Specifically, it alleges that FirstEnergy 17has underestimated the amount of radioactive material 18 released in a postulated severe accident, because it 19used the MAAP computer code to develop the source 20 terms used in its SAMA analysis.

21Next, FirstEnergy filed its motion in a 22 timely manner. The Board's January 30th, 2012 Order 23states that all motions in this proceeding, including 24Motions for Summary Disposition, are subject to the 25 293 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433deadline specified in Section 2.323(a), and must be 1 filed no later than ten days after the occurrence or 2 circumstance from which the motion arises.

3Consistent with the Board's Order, 4 FirstEnergy filed its motion within ten days of 5 submittal of its revised SAMA analysis on July 16th, 6 2012. The changes to the SAMA analysis docketed by 7 FirstEnergy relate directly to the core of the 8Intervenors' contention, that use of MAAP-generated 9source terms underestimates the true cost of a severe 10 accident at Davis-Besse.

11Among other things, the revised SAMA 12analysis incorporates updated MAAP code runs that 13recharacterize the plant-specific source terms, 14 including the radionuclide release fractions used in 15 the Davis-Besse SAMA analysis.

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

22Moreover, in preparing the revised SAMA 23analysis, FirstEnergy opted to again apply the MAAP 24 code. The MAAP-generated source terms and release 25 294 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 fractions are the parameters that Intervenors allege 1 to have been underestimated in this very proceeding.

2In addition, FirstEnergy retained two 3highly qualified experts, Dr. Kevin O'Kula, who is 4here with us today, Your Honors, and Mr. Grant 5Teagarden to perform thorough reviews of its SAMA 6analysis, as well as the Intervenors' challenges to 7 that analysis as set forth in Contention 4.

8The joint declaration of these experts is 9based in significant part upon their review of the 10revised SAMA analysis. Therefore, the motion is both 11directly tied to the revised SAMA analysis and timely.

12Moreover, summary disposition of Contention 4 is 13entirely warranted and will expedite the resolution of 14this proceeding by eliminating the need for an 15 evidentiary hearing.

16 As explained by FirstEnergy's experts in 17 their joint declaration, and as further corroborated 18by the staff's expert, Kyle Ross in his affidavit, 19none of the Intervenors' claims has a technical 20foundation or even suggests that the MAAP-generated 21source terms used in the revised Davis-Besse SAMA 22analysis are invalid or unreasonable for use in a SAMA 23 analysis.24Under these circumstances and pursuant to 25 295 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the regulation you've cited Judge Froehlich, Sections 1 2.710 and 2.1205, summary disposition is appropriate 2 as there is no genuine dispute on the material issue 3 of fact.4 Now going to the material issue of fact, 5the National Environmental Policy Act or NEPA 6determines which issues affect our material, and as 7the Commission stated earlier in this very proceeding, 8 in CLI 12-08, and I quote, "SAMA analysis is a site-9specific mitigation alternatives analysis under NEPA." 10 That's at CLI 12-08, slip opinion at 17.

11So the Board's consideration of the issues 12raised in Contention 4 is governed by NEPA and related 13case law, and by NEPA's rule of reason. As the 14Commission ruled in another recent license renewal 15 proceeding, unless an Intervenor shows a potentially 16 significant deficiency in a SAMA analysis, and again 17I quote "That is a deficiency that could credibly 18render the SAMA analysis altogether unreasonable.

19Under NEPA standards, a SAMA-related dispute will not 20be material to the licensing decision and is not 21 appropriate for litigation in an NRC proceeding." I 22 cite to Pilgrim, CLI 12-01, slip opinion at 25.

23Such is the case here. As we will explain 24in response to the Board's questions on this issue, 25 296 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 Intervenors' first claim, that the MAAP code has not 1 been validated by the NRC, lacks a factual basis and 2 fails to establish a genuine material dispute.

3Intervenors do not cite nor could they 4cite any NRC regulation or requirements indicating 5that NRC validation of the MAAP code is necessary. In 6any event, the MAAP4 code used by FirstEnergy has been 7properly validated by the nuclear safety community, 8and is well-suited for the application at issue here.

9Second, Intervenors' next claim that 10 generic PWR source terms contained in NUREG-1465 are 11 more appropriate for use in a SAMA analysis then the 12plant-specific MAAP-generated source terms used by 13FirstEnergy in the Davis-Besse SAMA analysis, also is 14factually unfounded and fails to raise a genuine 15 material dispute worthy of a hearing.

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

20Finally, Intervenors' third claim that 21MAAP generates lower release fractions than those 22derived and used by NRC in other severe accident 23studies, such as the 1987 draft version of NUREG-1150, 24also fails to establish a genuine dispute on a 25 297 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 material issue of fact.

1On these bases Your Honors, FirstEnergy 2respectfully requests that the Board grant its 3unopposed Motion for Summary Disposition. Why?

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

10Thank you, Your Honors, on behalf of 11 FirstEnergy, and we stand ready to proceed.

12 JUDGE FROEHLICH: Thank you, Ms. Sutton.

13 Mr. Harris.

14 MR. HARRIS: Thank you, Your Honor. May 15 it please the Court, over the -- and I'll take a 16 little bit of time to talk about this whole 17 proceeding. But over the course of the next few days, 18of course we're going to be discussing these two 19 separate issues of the Contention 4 SAMA issues, and 20the proposed Contention 5, shield building cracking 21 issues.22But I want to emphasize, as we discuss the 23SAMA issue and the motion that's pending before the 24 Board, that as of the current procedural posture, is 25 298 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433that as Ms. Sutton emphasized, is that this is an 1 unopposed Motion for Summary Disposition.

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

6But even if we step back from that 7 procedural posture and examine what Intervenors have 8suggested in their opposition, is that they presented 9evidence or they presented an attorney argument for 10their counter-Statement of Material Facts, citing both 11 FirstEnergy's experts and some members of the staff.

12But if you examine those members of the 13staff, they are not PRA experts. They're not SAMA 14experts, and their statements were taken completely 15out of context, because they were evaluating the 16 operability of the shield building, but making no 17comments as to whether or not the SAMA and the SAMA 18issues that are immediately before the Board were 19 somehow done incorrectly, or the MAAP code would 20 produce incorrect results.

21 The key that I think we need to emphasize 22 is that the shield building, when you examine it, is 23that it's not credited in the SAMA analysis that 24FirstEnergy did. So any claims related to how the 25 299 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 shield building might affect the MAAP code would not 1 affect the source term, is that the shield building 2and the annulus is given no credit in the analysis at 3 all, and so it's not material to the actual results.

4Now had Intervenors in this case hired an 5expert, someone who could have looked at this, they 6could have determined this very quickly, instead of 7just presenting these mere attorney arguments for it.

8So I just want to emphasize again that this is an 9 unopposed Motion for Summary Disposition.

10And then turning both back to NEPA, which 11 is of course the rubric that we have to look at SAMA 12analysis, is that it's not a safety analysis that 13we're looking at here. It's one done for the National 14Environmental Policy Act, and that we're not making 15licensing or safety determinations from it, but we do 16 sometimes discover facts from that actual analysis.

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

23But they've sort of given us the guidepost 24of what that unreasonable should be. It should, would 25 300 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433there be another potentially cost beneficial SAMA 1identified from this alternative methodology or 2 alternatives inputs to the SAMA analysis.

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

7One last thing that I wanted to address is 8 that from the Board's Order and the questions, there 9seems to be a little confusion as to what the staff's 10witness and his affidavit indicated, of whether or not 11there is a disagreement between FirstEnergy's experts 12 and the staff's expert, and I think it's --

13If it was unclear, the staff's expert was 14not disagreeing with FirstEnergy over the use of 15NUREG-1465 or 1150 for purposes of a comparing to 16Davis-Besse's source terms. But the staff's expert 17tried to explain who those differences and why it was 18 not a good comparison, and identify those issues.

19For NUREG-1465, there we're talking about 20a source term that's released into containment into 21the environment, and there are a lot of physical 22effects that would reduce or mitigate the actual 23 release into the environment. So the 1465 is a much 24larger source term than what is normally released into 25 301 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 the environment.

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

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

18With that, we're prepared to answer any 19 questions for the Board.

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

22MR. LODGE: Thank you, Judge Froehlich.

23The use of fairy tale, fictitious references was 24deliberate, with forethought, because we're looking 25 302 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433with respect to the SAMA analysis at a problem of 1 fairy tales in, fairy tales out.

2The problem with the SAMA analysis is that 3it is number-crunching; it is analysis which does not 4bear serious linkages to reality. For instance, to 5not credit the shield building cracking means or 6implies, at least, that the interscaled containment 7 structure must be airtight.

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

14They included an inaccurate land area 15conversion factor for acres to hectares. It seems to 16me that the Mars Rover landing was based upon not 17converting metric to the British system of measurement 18 or vice-versa.

19 Dollar values for Ohio farmland and non-20farmland were based upon the Ohio tax assessment 21value, which is only 35 percent of the appraised 22 value. These are odd and very fundamental kinds of 23 mistakes. The escalation of decontamination costs 24used in the SAMA analysis wasn't performed per NEI, 25 303 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 Nuclear Energy Institute guidelines from 2005, using 1 the Consumer Price Index.

2In other words, somewhat realistically 3attempting to update damage or loss figures. The use 4of core inventory isotopic activity instead of 5isotopic mass in the MAAP software code run didn't 6 reflect updated industry guidance.

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

10Calculations in the original SAMA analysis were 11 reflecting wind coming from the wrong direction. So 12with that record of credibility, we ask that the Board 13scrutinize the current editions of SAMA very closely.

14It was difficult in selecting or thinking 15about this, in terms of literary themes, to decide 16 whether a light-hearted Victorian novel or something 17 perhaps early 20th century by Franz Kafka would be a 18 more appropriate reference.

19The problem here is that the data does not 20reflect what we believe to be the reality, that the 21experts from the Nuclear Regulatory Commission that we 22cited in our response to the summary disposition 23motion, were not somehow MAAP or MAACS-2 experts is 24 irrelevant.

25 304 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433They were expert engineers who were 1describing the shield cracking phenomenon in ways that 2have not been retracted by the Nuclear Regulatory 3Commission, and that are in the administrative record 4 of this case, which brings me to a couple of final 5 observations.

6Number one, the Intervenors did file a 7 motion for reconsideration in timely fashion, on the 8 21st of October, which due to technical errors of my 9 computer, I had to square things away with the Help 10Desk and refile. But it was timely answered by the 11 staff and by FirstEnergy.

12 We respectfully point out that the Board 13legally has erred in not allowing our answer to the 14Motion for Summary Disposition to stand. We point 15out, indeed, that the shield building cracking 16 phenomenon and the problems with corrosion of the 17inner steel containment are real, and must be taken 18 note of.19 I admit, as counsel for the Intervenors, 20that we did not formally move to intervene, or pardon 21me, move to modify the contention respecting SAMA.

22However, in numerous instances, in the many cracking, 23shield building cracking-related filings that we have 24 made in 2012, we have referenced the fact that there 25 305 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 are SAMA implications.

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

11We do not believe that contentions are 12discrete, isolated, separate lawsuit types of 13pleadings, that the record is one composite record, 14and we would make the observation that the contentions 15are more like separate causes of action contained 16 within the same complaint.

17We respectfully therefore request that the 18Board reconsider its determination of October 11th, 19granting the motion to strike, which effectively does 20remove any substantive argument that has been tendered 21by the Intervenors, and we further move that 22alternative to that, that the Board take 23 administrative notice of the facts of record in this 24proceeding, upon which it may justifiably find that 25 306 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the SAMA analysis does not conform to the requirements 1 of NEPA.2The thing about the SAMA analysis is that 3it is effectively a NEPA disclosure. We understand 4that it's not a thorough-going safety analysis. We 5understand that in effect, it's really kind of a punch 6list of potential economic choices and 7 redeterminations that the nuclear utility might want 8 to consider implementing, changes that they may want 9 to make.10But we also believe that underneath that, 11the duty of the Commission, as the lead federal 12agency, is to ensure that that analysis is honest, 13that it is reality-based, and that it doesn't read 14 rather like a fairy tale.

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

23 JUDGE FROEHLICH: Thank you. Thank you, 24Mr. Lodge. I'd like to begin with you, Ms. Sutton, 25 307 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433and it was the first question that we had proposed in 1 our Notice of Oral Argument, and that deals with the 2relationship between the revised SAMA analysis, the 3Motion for Summary Disposition and the original 4contention on this subject that was admitted by the 5 Board and modified by the Commission.

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

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

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

12MR. O'NEILL: Thank you, Your Honor. This 13is Martin O'Neill for FirstEnergy. Your Honor, the 14first question appears to relate to the timing of 15FirstEnergy's motion. So I hope you can indulge me if 16 I could just comment briefly on that issue first.

17Now as you know, in its January 30th, 2012 18Order, the Board construed Section 2.323 of the Rules 19of Practice to impose a ten-day deadline or window on 20the filing of all motions in this proceeding, 21 including any dispositive motions.

22So that requires that any motion be filed 23no later than ten days after the occurrence or 24circumstance giving rise to the motion. Although it's 25 308 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433been our understanding, based on reading of the 1regulations in other proceedings, that summary 2disposition motions typically can be filed at any 3point in a proceeding, subject to certain limitations 4 on the back end, you know, the Board's ruling is the 5 law of the case, and we're obliged to follow it, and 6 we intend to do so and have done so in this case.

7For that reason, you know, we filed the 8 motion within ten days of the July 16th submittal of 9the revised SAMA analysis, which for reasons I will 10explain, we view as an appropriate trigger for the 11 motion.12 You may recall that last year, the Board 13had rejected another motion to dismiss filed by 14FirstEnergy on a different contention, yes, and simply 15 we did not want to meet with the same result here.

16Understandably, we're very sensitive to the timing 17 issue.18 With that, and again we, you know, 19couldn't be assured or didn't want to assume that 20there might not be other similar opportunities for the 21 filing of this motion. So with that said, I'll turn 22 to the documents.

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

25 309 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 MR. O'NEILL: Yes, yes.

1 JUDGE FROEHLICH: Yes, thank you.

2MR. O'NEILL: The motion, of course, is 3the summary disposition of Contention 4, and as 4admitted by the Board and subsequently modified by the 5Commission, that contention alleges that the FENOC 6SAMA analysis for Davis-Besse underestimates the 7 amount of radionuclides released into the atmosphere 8during the postulated severe accident, as a result of 9 FirstEnergy's use of the MAAP computer code.

10So as the Board acknowledged in its recent 11decision striking the Intervenors' response, it's a 12very narrow and focused contention. Now we think that 13there are at least a couple of circumstances here that 14 given rise and support of our motion, and again this 15 is submittal of the revised SAMA analysis.

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

22FirstEnergy did some new MAAP code runs to 23conform with industry guidance that is specific to the 24MAAP code version that FirstEnergy used to develop its 25 310 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433source terms for the SAMA analysis, and that guidance 1indicates, it's referenced in the revised SAMA 2 analysis, as MAAP Flash No. 68. But that guidance 3 indicates that users of the code 4.06 should specify 4the fission product inventory using fission product 5 masses, as opposed to radionuclide activities.

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

8MR. O'NEILL: Yes, yes, yes. So in doing 9so, FirstEnergy again made a deliberate, conscious 10decision to retain use of the MAAP code for developing 11its environmental source terms as used in the SAMA 12 analysis. Again, the MAAP code is the code under 13 challenge in Contention 4.

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

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

25 311 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433The second point I'd emphasize is that as 1 a result of the Board's admission of the contention, 2FirstEnergy, you know, undertook additional reviews of 3the SAMA analysis, both internally and then through 4the retention of two outside experts, Dr. Kevin O'Kula 5 and Grant Teagarden, who have extensive expertise in 6 probabilistic risk assessment, SAMA analysis and use 7 of related computer codes.

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

12Teagarden, to review the Intervenors' specific claims, 13 you know, regarding validation of the code, reliance 14on NUREG-1465 generic source term values, and then 15some historical comparisons cited by the Intervenors.

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

23 And in that regard, I would point the 24 Board to 10 C.F.R. 2.710, you know, which sets forth 25 312 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the standard for summary disposition, and it states 1that such motions may be based on not only filings in 2the proceeding or discovery-related materials, but 3 affidavits, you know, prepared by the parties.

4In this case, we retained two highly 5qualified experts to review the claims and prepare 6such an affidavit, and we view that as a supporting 7 basis for the motion as well.

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

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

24JUDGE KASTENBERG: Just a follow-up 25 313 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 question to the first point that you made, having to 1do with curing the deficiency in the admitted 2 contention, at least by this board and then modified 3 by the Commissioners.

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

10That is, you're using a tool that's in 11question to cure a deficiency that is deficient in and 12of itself. In other words, it sounds like there's 13some circular logic in this, at least to me. So I 14 need a better explanation of that.

15MR. O'NEILL: Well, Your Honor, I think 16 through the expert affidavit or joint declaration of 17our experts, we've explained why the MAAP code is not 18a deficient tool. I mean we're not willing to accept 19that premise or concede it. We don't believe the 20Intervenors have provided adequate or any support, you 21 know, for the claim that the MAAP code is somehow 22 deficient.

23 I mean the code has been in use for 24decades, since the 1980's. It's undergone multiple 25 314 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433iterations and revisions. It's been extensively 1benchmarked and validated by the nuclear safety 2community against tests, experiments, plant 3 transience, even the TMI-2 core sequence. It's been 4validated against other computer codes, such as 5 MELCOR, for example.

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

10 JUDGE TRIKOUROS: I'd like to understand 11 what "reasonableness" means. You've quoted the NEPA 12rule of reason, and I've been having trouble 13understanding its application with respect to a 14computer code such as MAAP and SAMA analysis. You're 15 using the word "reasonable" to imply that you can do 16 just about anything. I don't know the boundaries of 17 that.18For example, with respect to SAMA 19 analysis, one might say the rule of reason says that 20 you would use a code such as MELCOR rather than MAAP, 21 but that you would apply a non-conservative 22application of the code. So that where in the safety 23world you would use the 95-5 kind of criterion, you 24 would use the 50-50 sort of criterion, the mean sort 25 315 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 of criterion.

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

6MR. O'NEILL: Your Honor, ultimately we 7are dealing with some Board legal principles here, and 8you know, under NEPA. I think you have to bear those 9 in mind, you know, and I think one of the first ones, 10of course, is that SAMA analysis, again as I just 11 mentioned, is by design a site-specific analysis.

12You're looking at off site dose and 13 economic consequences, you know, averaged over a 50-14mile radius region and over the course of the year 15 under different meteorological conditions.

16But again, it has to be informed by plant-17specific parameters, and I think the MAAP code is a 18reasonable tool for that purpose, because it 19specifically models, you know, the release of 20radionuclides for containment into the environment 21 using plant-specific information.

22I mean there is an input parameter file 23that is very much plant-specific, and again, you know, 24the Intervenors here have advocated the use of 25 316 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433generics or prescriptive source terms from NUREG-1465, 1developed for an entirely different regulatory 2 purpose. We view that as being unreasonable.

3Then as you alluded to, you know, SAMA 4 analysis is a NEPA-based requirement. It's not 5 safety-based. So I do agree with you to the extent 6that while certainly the staff must perform a thorough 7and independent review, it is a different level of 8 stringency in terms of the review that is performed, 9 you know.10Ultimately, the staff is not trying to 11make a reasonable assurance of safe operation or an 12adequate protection finding. So again, where you have 13a code like MAAP that has been subject to independent 14design review, designed in accordance with Part 50 15quality assurance requirements, actually used for 16licensing basis design applications over the years, 17subject to extensive, you know, benchmarking and 18validation, I think its use for a NEPA-based SAMA 19 analysis is appropriate.

20But you know, especially in the SAMA 21context, because we're dealing with plants that are 22 seeking to review their operating license. So here, 23 we're dealing with a PWR, pressurized water reactor, 24and there's probably a handful of designs that the 25 317 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433staff has to be acquainted with or familiar with, and 1 it's a bit different from, you know, a new reactor 2 design, you know, where a MAAP code might be used to 3 support that application.

4JUDGE FROEHLICH: Actually, your answer 5sort of raises a question in my mind, and my apologies 6if it's overly simplistic. There's lots of references 7here to the site-specificness of this particular 8 analysis. When you talk about site-specific, are you 9talking about the Davis-Besse plant, the way it was 10 constructed, the way it's built?

11 MR. O'NEILL: Yes.

12JUDGE FROEHLICH: Its shield building, 13let's say, its procedures, or site-specific, just the 14weather in the area and, you know, the size of the 15 source term for the fuel.

16MR. O'NEILL: A short answer to your 17 question is it's both.

18 JUDGE FROEHLICH: Both.

19MR. O'NEILL: Because a SAMA analysis 20ultimately is rooted in probabilistic risk assessment 21and actually draws from Level 1 and Level 2 PRAs, you 22 know, that are done or have been done for the plant, 23and that includes very plant-specific information, 24design information, information about accident 25 318 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 sequences, the core damage frequency, is it a plant-1 specific metric?

2 So it does take all of that into account, 3but it also does take into account, as part of the 4Level 3 PRA or the off-site consequences analysis, 5which uses MAACS-2, it takes into account site-6specific meteorological data taken from the Met Tower, 7regional property values, that type of -- among other 8 things.9JUDGE TRIKOUROS: In looking at your 10summary disposition motion, again to FENOC, at I think 11 it was pages 15-16 area, you refer to extensive 12benchmarking of MAAP, the words like "long been 13 accepted by the NRC for both, for use in both safety 14 and environmental." 15 MR. O'NEILL: Yes.

16JUDGE TRIKOUROS: MAAP, as I understand 17it, is typically not considered a safety code. Now 18can you give me some idea what kind of safety 19applications we're talking about here? I don't think 20I've ever seen a FSAR transient analysis that uses 21 MAAP. My sense is it probably would not be something 22 that's licensable.

23 I mean what does that have to -- are you 24representing MAAP to be a code that is capable of 25 319 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433accuracies on the level of a nuclear safety analysis?

1MR. O'NEILL: Your Honor, I think at some 2point I'd like to probably confer, and confer with my 3expert, but I believe that is what we are 4 representing. Again, I'd emphasize that for purposes 5of this analysis, we're not looking at a licensing 6 basis type analysis.

7But my understanding is that MAAP is 8 actually was used to support many of the integrative 9plant examinations, you know, that were done in the 10 80's or possibly into the 90's.

11JUDGE TRIKOUROS: but those are not 12 safety. I mean those --

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

14JUDGE TRIKOUROS: Those fall under the 15 same umbrella, I think, as SAMA really does.

16MR. O'NEILL: They're PRAs, that is 17 correct.18MS. SUTTON: Your Honor, may we request a 19 moment to confer with our experts?

20 JUDGE TRIKOUROS: Yeah, thank you.

21 (Pause.)22MR. HARRIS: Your Honor, while they're 23conferring, could I have an opportunity? I'd like to 24be able to add some insight into this. At least in 25 320 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433terms of the use of MELCOR and MAAP, in terms of a 1 safety issue, we see it mostly in the risk-informed 2type of regulations, where plants were coming in using 3PRA to be able to avoid a, you know, a more defense 4 in-depth kind of requirement.

5So I think that's where you're going to 6see it as sort of a safety analysis. It's risk-7 informed, where they come in to actually alter it in 8 some way.9JUDGE TRIKOUROS: Yeah, and that's an 10 interesting interface, that if the code itself could 11 not be qualified on a direct safety basis, you know, 12 design the plant using MAAP, but you turn around and 13 change the design of the plant using a PRA that uses 14MAAP, it seems incongruous to me. Maybe I'm wrong, 15 but it seems incongruous to me. But --

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

25 321 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 But then once you have this reasonable 1assurance, in a lot of ways we use risk-informed type 2of analysis to -- a lot of people sort of describe it 3 as nibbling at the edges of improving safety. We're 4safe, and now we can improve it this much, or there's 5really no impact from doing this particular kind of 6 thing.7JUDGE TRIKOUROS: Right. So I would agree 8with this. So what you're saying is that it's the 9relative application, that a code that doesn't have 10the great pedigree of a MELCOR, could be very 11effectively used, not necessarily on an absolute 12basis, but would be very effective on a relative 13 basis. Is that what you're saying?

14MR. HARRIS: In general, and I mean to 15address some of that MAAP and MELCOR that we just 16 bring up, is that MAAP and MELCOR are codes of very 17similar vintages, in terms of when they were 18originally developed, and the changes that they've 19 undergone, and that you'll see, you know, in some of 20what our own experts cited, is that MAAP and MELCOR 21generally produce, you know, similar results, as MAAP 22tends to fail, cause core damage quicker and dump the 23 core out onto, into containment faster.

24So for containment failure-type events, 25 322 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 you end up with larger source terms, where MELCOR 1tended to be a little quicker on containment bypass 2 events. It's that they're different, but just to get 3back to even that sort of safety analysis in the 95th 4 percentile, is that even as part of the analysis for 5SAMAs, we use uncertainty factors to try to account 6for some of this, the complexity that's associated in 7 what we don't know.

8One of those uncertainties is the ratio 9between the mean source term generated in the 95th 10 percentile, that then is applied to the overall 11 benefits. So we are trying to account for, you know, 12some of that conservatism, even though it's really 13 meant to be a best estimate analysis.

14JUDGE TRIKOUROS: After we finish with 15this question, uncertainty analysis was my next 16 question, so we'll get to that in a second.

17 MR. HARRIS: Yes sir.

18MR. O'NEILL: Your Honor, I briefly 19conferred with Dr. O'Kula, and he did confirm 20 something that I had understood previously, that you 21know, MAAP is really, is typically used. I mean it is 22a standard code used to support Level 1 and Level 2 23PRA, to determine accident sequence timing, as well as 24 success criteria.

25 323 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433You know, for example, the timing, it may 1 relate to evaluations of time available for operator 2actions, time of release to the environment, and then 3system success criteria. An example is, you know, 4required reactor vessel water injection flow rates to 5 balance decay heat loads.

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

10JUDGE TRIKOUROS: Right. But it's not, 11your motion seems to imply that it's used directly for 12safety applications. I didn't know of any. I was 13 very interested.

14 MR. O'NEILL: Well, the other, you know, 15two examples I think we noted, and this relates to one 16 of your questions, were to certified, excuse me, new 17reactor design certifications, I think the ABWR and 18AP-1000, you know. There's evidence from the staff's 19final safety evaluation reports that the applicants in 20those cases did use the MAAP code in support of their 21applications, and was very thoroughly reviewed by the 22 staff.23JUDGE TRIKOUROS: For that application, 24 for those Chapter 19, DCD Chapter 19 applications.

25 324 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 MR. O'NEILL: Exactly, yeah, yeah.

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

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

6MR. O'NEILL: Well, I apologize if it was 7 inartful language. We certainly didn't mean to --

8 JUDGE TRIKOUROS: Yeah. No, I just want 9to -- because we're trying to understand here the 10quality of MAAP versus -- the original contention was 11MAAP versus some NUREG-1150 analyses, among other 12things, that used codes that were NRC codes, you know, 13maybe back in the SCDAP/RELAP world or today MELCOR 14 world.15 The issue really is how does MAAP compare 16 to those, and really the question is does it matter?

17Does it really have to compare closely with those?

18The way I understand your arguments, you're saying 19 that the reasonableness assumption in NEPA says that 20 it doesn't.

21In other words, there's a two-pronged 22approach that you seem to be taking, one that says 23that it's a great tool, and compare against anything.

24 The other is that, you know, it doesn't have to be a 25 325 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433great tool, because it just has to be reasonable. Now 1 I'm not sure which of those is really prevailing. I 2 mean --3MR. O'NEILL: I don't think there's 4necessarily a tension, you know, a specific tension 5 there.6JUDGE KASTENBERG: They're not mutually 7 exclusive.

8MR. O'NEILL: Yeah, they're not, and I 9think part of the problem is, you know, we're talking 10 about a very complex and sophisticated computer code 11 and we're trying to apply general NEPA principles to 12 it.13But you know, there is NEPA case law, 14including Commission case law, and I believe it's 15 cited in our motion that holds, you know, the 16methodology that the agency used and by implication an 17applicant uses, it has to be reasonable, you know, for 18 the intended purpose, and it doesn't even have to be 19 the quote-unquote "best scientific methodology." 20Now mind you, I would -- I suggest that 21 this is, you know, I don't think being called the best 22methodology, but I think it more than exceeds the 23 reasonableness test.

24JUDGE KASTENBERG: Okay. Could I ask you 25 326 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 a question that goes along with this?

1 MR. O'NEILL: Yes.

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

4MR. O'NEILL: I will need to consult with 5 the experts on that one, Your Honor.

6MS. SUTTON: Yes, Your Honor. We're told 7 yes.8 MR. O'NEILL: Okay. We are told yes, it 9 is.10JUDGE KASTENBERG: So this is a code 11 you're familiar with; you've used it for meeting 12 various NRC requirements?

13MR. O'NEILL: That is my understanding 14 Your Honor, yes.

15JUDGE TRIKOUROS: Let's see. In your 16motion again, perhaps I think it's page 16 of your 17motion, you're discussing NUREG-1465, and the Board 18clearly understands the NUREG-1465 applications. I 19 mean we've been told many times by the parties.

20But we knew that, and however, we're sort 21 of keeping it in here to discuss this reasonableness 22idea, of what could you use to do a SAMA? What would 23be acceptable? How far afield could one go, and is 24MAAP, even with its problems, would it be reasonable?

25 327 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 So you're saying in your motion that 1 NUREG-1465, the MAAP would give consistently smaller 2source terms than NUREG-1465, and I guess the question 3I have is if one wanted to come in with MAAP to 4 generate an in-containment source term that would be 5used for Part 100 analysis, would that be an 6 acceptable application of MAAP?

7MR. O'NEILL: I certainly believe it's 8 something that can be done, Your Honor, in terms of 9generating or developing that in-containment source 10 term. But for what specific purpose are we -- for 11 compliance with Part 100?

12JUDGE TRIKOUROS: Well, you know, is there 13an interchangeability between -- is there any 14interchangeability between 1465? I mean could one do 15a SAMA analysis using a 1465 source term? The answer 16--17 MR. O'NEILL: Is no.

18 JUDGE TRIKOUROS: No.

19MR. O'NEILL: I mean you couldn't do what 20I would refer to as a meaningful, realistic best 21estimate type SAMA analysis by using generic, 22 prescriptive source terms from 1465.

23 JUDGE TRIKOUROS: And yet -- go ahead.

24 JUDGE KASTENBERG: I mean I would assume 25 328 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433that when you were given your original license to 1operate, that your site boundary exclusion ratings and 2so on were all based on the old TIB-14844 source term?

3 I assume --

4 JUDGE TRIKOUROS: The 1962 --

5JUDGE KASTENBERG: --all reactors of your 6generation, and clearly that postulated release, when 7PRA came of age, that postulated release, both from a 8regulatory perspective and from a scientific 9 perspective, was no longer adequate.

10And so there's two tracks. One is the NRC 11 development through 1150 and 1465 and on and on, and 12then there's the industry approach through your 13consultants, Fauske Associates and EPRI and so on and 14 so on.15I think in your opening statement, I think 16you kind of alluded to the fact that at least your 17consultant tried to use apples to apples comparison 18between the two, and maybe that might have been part 19of our confusion in terms of why your consultants seem 20 to differ.

21But you know, this is science, this is 22physics, and so somewhere along the way, all of these 23 should agree to some degree. They should all agree; 24is that not right? I mean we've got, you know, 25 329 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 radionuclides. We've got containments. We have 1sister plants and brother plants and so on, and there 2must be some agreement somewhere along the line.

3 Could we get maybe some --

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

8There's actually a code used by a European 9plant, ASTEC. These are basically the three source 10codes, the codes used to develop source terms for 11 accidents, and that they have service, some more 12 vintage.13They've been improved over the years, and 14 that when you look at comparative accidents, because 15you have to realize that we're not just talking about 16one accident scenario; we're talking about multiple 17 accident scenarios. So NUREG-1465 is really talking 18 about one really bad accident, you know.

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

22 JUDGE KASTENBERG: Thirty-five, I think.

23MR. HARRIS: Thirty-five. Thirty-five 24 accidents there. So that's, I mean that's not, you 25 330 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 know, it's only going to give you one, and then you 1 still have to account for how is it going to get out 2 of containment, which is accident-specific --.

3So I mean just because I have a source 4number in containment, I really need to know how that 5accident progressed, to figure out, well how is going 6to actually escape into the environment? When you 7 look at it on this mean and the actual spread of the 8 accident source terms, is that you actually see that 9 they're roughly comparable, even when you look at 10 other plants, which you know, NUREG-1150 was site-11 specific.12 But you're in sort of the same sort of 13ballpark, you know, for similar types of plants for 14those scenarios. NUREG-1465, I think, is much more 15troubling, because it's generic. It was for, you 16know, two different source terms, one for all PWRs and 17 one for all BWRs, you know.

18If an applicant came in with 1465, we 19would be asking lots of questions about why are you 20 using this and not a site-specific source term.

21JUDGE TRIKOUROS: In your motions, various 22locations, discusses NUREG-1465 and in terms of it not 23 taking into account removal mechanisms in its source 24 term. I just wanted to get this straight. The source 25 331 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433term for NUREG-1465 does not take into account removal 1 mechanisms.

2But there is -- my understanding is 3there's ample allowance for someone applying NUREG-41465, to take advantage of removal mechanisms, and in 5fact NUREG-1465 specifically mentions all the removal 6mechanisms that one could take advantage of, and in my 7 experience, whenever my department did anything like 8 that, it did that, it did it twice with NUREG-1465.

9We did take advantage of removal 10 mechanisms. I believe that everybody does, frankly.

11So you know, the motion, the words in the motion were 12a little confusing to me in that sense, in that sense, 13that NUREG-1465 does allow for a removal mechanism.

14But you wouldn't know that necessarily by reading your 15 motion.16 MR. HARRIS: I mean NUREG-1465 does, you 17know, suggest that you could do it, that they were 18trying to do it for each plant. So each plant, those 19 removal mechanisms are different.

20 JUDGE TRIKOUROS: Right.

21MR. HARRIS: So you have to take into 22 consideration your plant. But you also have to sort 23of realize the purpose of it, which was, you know, 24really the Part 100 requirements in terms of, you 25 332 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433know, what's the design basis leakage that your 1 containment can withstand.

2 JUDGE TRIKOUROS: Right.

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

9JUDGE TRIKOUROS: Right, okay. Yeah, I 10 understand. I just wanted just to get that on the 11 record, that okay.

12Another thing that came up in the motion, 13and was with respect to the fact that the initial 14contention was referring to analyses that were done 15many years ago, and it says, one of the sections, I 16think maybe it's page 18 of your motion, says that 17because it was done over ten years ago, that it was 18using simpler versions of the codes and different 19 assumptions, that it would be expected to show 20 differences.

21 I was waiting for the next part of that, 22 which is today, it wouldn't, you know. You said ten 23years ago you would have expected it. You never said 24"today, you wouldn't." I mean would you today? If 25 333 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 you did a comparison of MAAP and MELCOR today, would 1 you see a difference?

2MR. O'NEILL: Your Honor, just one 3 clarification. I think when we refer to the ten 4years, we were saying we were comparing the code, you 5know, that had been developed or was in operation ten 6 years ago, versus one that was, you know, more 7 recently developed and is in operation today.

8In other words, you know, it's not the 9apples-apples comparison. You're trying to compare a 10newer code that's understandably benefitted from 11insights, you know, gained over time and it's been 12 improved.13And so, you know, you might see some 14differences in the results generated by that code, 15versus the results generated by an older, less 16sophisticated code. So I just wanted to clarify that 17 point.18But with respect to your second question, 19 I don't think we do expect to see significant 20differences between say contemporaneous versions of 21 MAAP and MELCOR, and I think studies have borne this 22 out. I think it's discussed in some detail in Kyle 23 Ross' affidavit, the staff's expert's affidavit.

24 The two codes have been benchmarked 25 334 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 against each other pretty extensively, and certainly 1they've seen some discrepancies. But as Mr. Ross 2 testified, that are well within the uncertainties of 3 the physics models, you know, what have you.

4JUDGE TRIKOUROS: Well, I guess we'll get 5 to this at some point.

6JUDGE KASTENBERG: I have a whole series, 7but on a slightly different series of questions. But 8 it's on a different track.

9JUDGE TRIKOUROS: Okay. Well go ahead, go 10 ahead.11JUDGE KASTENBERG: So I wanted to just 12come back to your opening statement. I think there 13were two points that you made, and the way I 14 characterize them, one is more textual and the other 15 is more content, and at least as I view your motion, 16I see there are two aspects to it. One is more 17 contextual and one is more content-oriented.

18I think these kind of questions that we 19were just addressing are more on the content side, and 20 on the context side, what I'm interested in, I think 21you may have said this, the word "trigger." That is, 22 what would trigger a motion for summary disposition?

23The way I understand your argument is that 24in your reviews of your SAMA analysis, you found these 25 335 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433six errors, and one of them is the use of core 1inventory isotopic activity was used instead of 2 isotopic mass. Your reviewers found this error, and 3at least I want to just understand. That is the basis 4of the trigger in which ten days later you submit your 5 motion for summary disposition; is that right?

6MR. O'NEILL: I think from the textual 7standpoint as you put it, yes. But also, as I pointed 8out, you know, our experts performed the review in 9 response to the issues raised in the contention, and 10generated an affidavit based on that, and typically an 11 affidavit of that sort could contain a basis for a 12 summary disposition motion in an NRC adjudication.

13JUDGE KASTENBERG: I mean I -- let me say, 14if this were a proceeding on the merits, assuming you 15 had not filed this and some time down the road we 16would have a proceeding on the merits on the 17contention, I fully understand the use of your experts 18and they come in and rebut the contention, as modified 19 by the Commission.

20But in such a hearing as this, that's 21where I'm a little uncertain as to the validity of 22that argument. That is, you found an error, you made 23 some corrections, and you have some experts now that 24 come in to tell us how great the MAAP code is, and it 25 336 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433may very well be great, and certainly at least some of 1 us have been in this field for a long time and 2 appreciate what MAAP does and what it doesn't do.

3But I need a bridge between the trigger 4 and your motion, that puts it on a little more solid 5 ground for me. Can you do that?

6MR. O'NEILL: Okay, Your Honor. Yeah, and 7I think again, as a result of identifying the need, 8you know, to run the new, to prepare the new MAAP code 9runs, you know, we ultimately revised the source 10terms, you know, the release fractions that are under 11 challenge.

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

19 And with all due respect Your Honors, I 20think that the need for a trigger per se is very much 21a function or an artifact of the Board's ruling, that 222.323 applies or governs, and that we must file the 23motion within ten days of the trigger. I mean I've 24been involved in a number of NRC proceedings, Subpart 25 337 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433L, Subpart G over the years, and we've routinely filed 1summary disposition motions at different phases in the 2 proceeding, you know, based again in part on filings 3in the proceeding or, you know, expert affidavits that 4were prepared specifically to address the issues 5 raised in the contentions.

6JUDGE KASTENBERG: Did you have a comment 7 on that?8MR. HARRIS: Let me see if I can help. I 9 mean in some ways, to step back and look at what 10summary disposition is normally used for, in just any 11kind of court proceeding. It's a method that when all 12the parties, when the facts are not in dispute, which 13is what you normally use in, you know, a hearing, 14where we're going to have a hearing on the merits, is 15 to determine what the facts are.

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

22So at this point, you know, you could 23decide it either way, because the facts aren't in 24 dispute. But you know, in terms of the trigger, I 25 338 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433have, you know, the Board indicated when they were 1first ruling that DSEIS may be a trigger when you can 2refile this, the Motion for Alternatives, which is no 3 longer before the Board.

4But I would have a tough time sitting here 5saying that when our DSEIS is issued, that necessarily 6we're going to make any substantive -- I'm not saying 7that we're not going to make any substantive changes, 8but that the source terms would be changed in some 9material that would suggest that you can file then, is 10why you shouldn't have filed when you first changed 11 the source terms.

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

15JUDGE KASTENBERG: I have more of a 16content question. On changing isotopic activity 17instead of isotopic mass, in one of your footnotes, 18you talk about -- this is on page six, footnote 33, 19that when you made all of these changes, your maximum 20achievable benefit increased from 1.357 million to 21 2.053 million dollars.

22 Is that just -- is that the change for all 23corrected errors, and could you back -- if it is, 24 could you back out the change just due to the error in 25 339 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433isotopic activity instead of isotopic mass? I mean 1 how big would that, you know, big effect did that 2 have?3 MR. O'NEILL: Well, Your Honors, you are 4correct, that that change was due to the combined 5 effect of all the corrections that were made.

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

7MR. O'NEILL: Yeah, yeah. No, I 8 understand. I'm just saying I agree with you on that 9 point. In terms of backing out the defective source 10term per se is probably beyond my capabilities or 11 bailiwick. You know, I think we did see changes in 12the individual, you know, source term release 13 fractions.

14But I think some actually increased, 15 others decreased. I think we saw, you know, more of 16an increase in some of the late, you know, containment 17failure release categories. You know, the MAAP flash 18 guidance suggested that using the radionuclide could 19 lead to substantial underestimation.

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

21 I mean I think we maybe saw, you know, a slight 22 increase. I don't know if I can really quantify it, 23 but so there was some increase in the overall source 24 term. But certainly that increase in the estimated, 25 340 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the maximum achievable benefit was due to some of the 1other factors too, like the escalation of the 2 decontamination costs, for example.

3JUDGE KASTENBERG: You know, the 4difference between mass and activity is the half life 5 basically.

6 MR. O'NEILL: Uh-huh.

7JUDGE KASTENBERG: Right, and the half-8lives of these radionuclides span several orders of 9 magnitude. So I would expect correcting the error 10would have given you a bigger spread. Now you may get 11pluses and minuses from these other corrections, of 12 course.13MR. O'NEILL: When you say "a bigger 14 spread," you mean --

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

17MR. O'NEILL: Yeah. I'm not sure I would 18describe it certainly as negligible, but I can't 19 quantify it specifically myself.

20JUDGE KASTENBERG: Is that something in 21your Attachment 5, and I looked through it, that's 22where you submitted all of your revised results?

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

24 MR. O'NEILL: I think the, you know, all 25 341 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 of the specific release fractions, I probably need a 1moment to get back to you on that one, Your Honor. I 2know some of it's in the underlying Level 3 PRA 3 documentation. I just can't recall if it made its way 4into the actual revised SAMA analysis, or the revised 5 RAI responses.

6JUDGE KASTENBERG: Are you going to confer 7 with your experts?

8 MR. O'NEILL: Yeah.

9 (Pause.)10MR. O'NEILL: Your Honor, thank you for 11the opportunity to confer with Dr. O'Kula and other 12folks on this issue, but I do understand from my 13discussions with them that as is pointed out in the 14motion, we're principally concerned with the cesium 15 and iodine release fractions.

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

23We did see somewhat of a decrease in 24Release Category 1.3 and 2.2 with respect to the 25 342 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433cesium and iodine release fractions. I would note 1that the actual release fraction data is in table, ER 2 Table 3.3-13, and I know that appears in a revised 3 SAMA analysis, yes.

4JUDGE KASTENBERG: So I would find that 5 in, I think it was Attachment 5 that has the --

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

13We did see, you know, some changes in the 14percentages there, I think consistent with what I just 15 said, and you know, some decreases.

16JUDGE KASTENBERG: And the question of 17what percent that plays in the change from 1.3 million 18 to 2 million, do you have any sense of that? Do the 19 experts have a sense?

20MR. O'NEILL: I think I understand from 21past discussions that it's probably less than five 22percent, to answer your question. Is that -- they're 23 nodding their heads.

24JUDGE KASTENBERG: About five percent.

25 343 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Which of these corrections, then, was the largest 1 contributor to the change in dollars?

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

4JUDGE FROEHLICH: Mr. O'Neill, perhaps 5this would be a good time for us to take a morning 6break of about ten minutes. In that time, it doesn't 7 cut into too much of the time, and you can consult 8 with your experts and we'll do that after the break.

9 MR. O'NEILL: Yes.

10JUDGE FROEHLICH: Is that acceptable?

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

13 (Whereupon, the above-entitled matter went 14off the record at 10:27 a.m. and resumed at 10:43 15 a.m.)16 JUDGE FROEHLICH: Please be seated. Mr.

17 O'Neill, were you able to consult?

18 MR. O'NEILL: Pardon me?

19JUDGE FROEHLICH: Were you able to 20 consult?21MR. O'NEILL: Yes. Yes, Your Honor.

22 Thank you again for your patience, in allowing me to 23do that. I think I did get some clarification 24 relative to Judge Kastenberg's question, and I think 25 344 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433we can do this by looking at the mean public dose risk 1and off-site public dose risk, and then the mean off-2site economic cost, which are assuming metrics of 3 interest, across all 34 release categories.

4 And when we look at it, the cause is 5changed by the use of the mass-based MAAP code source 6terms, and even by the changed meteorological data 7were fairly small. In fact, they caused a slight 8decrease in the mean public dose by about roughly five 9 percent. 10 But yet as we know, we did see a 11significant increase in the overall maximum achievable 12benefit, and that was dominated really by the economic 13 parameters. So really those first three, I think, 14changes that related to the land area conversion 15factor, the Ohio farmland and non-farmland values 16using the SAMA analysis, and then the escalation of 17the decontamination cost to 2009 dollars. There, I 18 think we saw almost a doubling of the OECR, off-site 19 economic cost risk.

20JUDGE KASTENBERG: And again, are these 21all in your Appendix 5, Supplement 5? Are they all 22described, or did you just all do a back of the 23 envelope calculation right now?

24MR. O'NEILL: I think much of it is 25 345 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433included in Attachment 5, but you know, there probably 1are some data that, you know, were in an underlying 2 Level 3 PRA calculation document.

3JUDGE KASTENBERG: Thank you for being 4 responsive. I appreciate it.

5MR. O'NEILL: You're welcome. Thank you.

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

13JUDGE TRIKOUROS: Okay, moving on.

14There's a statement made in the Motion for Summary 15Disposition that says that "Intervenors do not explain 16what they mean by an independent validation, or why 17 such a validation by the NRC is a prerequisite to an 18 applicant's use of the MAAP code." 19Then it does on to discuss something to 20the effect that codes are not validated, but specific 21applications are validated, and it goes on to refer to 22a letter that was written from NRC, Gary Holahan to 23EPRI, I think it was Ted Marston, and it's identified 24as one of your 48 attachments. I think it's 25 346 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2.

1MR. O'NEILL: That's correct, Your Honor.

2JUDGE TRIKOUROS: And that letter seems to 3be referring entirely to using MAAP for licensing 4purposes, not at all for the purposes we're talking 5about in this proceeding. Is that correct? Is that, 6 my interpretation of that letter correct?

7MR. HARRIS: Your Honor, just to -- that's 8coming from the new reactors, in terms of that letter.

9So yes, it's related to the new reactors, and 10licensing of new reactors. So not really directly 11 related to license renewal use.

12JUDGE TRIKOUROS: Right. Well more 13 specifically, I think the letter is referring to 14whether it be licensing, new reactors or licensing 15existing reactors, it's referring to licensing 16 applications. It's referring to design basis 17licensing applications, rather than to severe accident 18 applications, because it does go --

19It later goes and differentiates, and says 20"With respect to severe accidents, you know, after it 21says all the things that it says about licensing," and 22 in fact it says "in the reactor licensing process." 23Let's see. The letter also says "This 24approach will also be used for plant-specific 25 347 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433submittals that rely on MAAP for severe accident 1applications, when we consider a technical review 2 appropriate." 3 So the world of MAAP in severe accident 4 applications seems to be totally different from the 5world of MAAP in the reactor licensing process. So 6 the NRC really is saying in this letter that they may 7 not even review it, right?

8I mean they'll determine what's 9appropriate, what isn't appropriate, and apply that 10resource on a case-by-case basis basically, is what I, 11 how I read that.

12MR. HARRIS: I mean the NRC staff does 13review it, and you know, we do have limited resources 14in terms of what we do review. But in this particular 15case, we have, you know, gone through those resources 16to look at that. Traditionally in the U.S., I believe 17 plants have used MAAP consistently for this purpose.

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

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

24can be anywhere from little or nothing to a lot, 25 348 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433depending on what the staff reviewers believe is 1necessary for that particular application; is that 2 correct?3MR. HARRIS: Yes, that's correct. I mean 4 it's very dependent on, you know, what the use of it 5 is. To step back to new reactors, where this is, you 6know, has more context, is that new reactors 7rulemakings, they tend to be somewhat iterative, in 8 terms of the severe accident an CDF.

9So they run this; they identify things 10that, you know, are design improvements that they can 11 make. And of course once you make that change, then 12the analysis that you did for severe accident 13mitigation now is no longer valid. You need to run it 14 again.15So you get to these sort of iterative 16steps as they continue to make design changes, to 17 account for things that they identify. But licensed 18reactors are different, you know, because we've 19 already built the plants.

20They exist as they are, and so they're not 21really subject to -- I mean they are subject to design 22improvements that might be potentially beneficial, but 23 for the most part, and even the Commission indicated 24in NEPA rule discussing the requirement to do SAMA 25 349 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433analysis, that didn't expect to see anything other 1 than sort of minor procedural changes.

2That has been, and historically what we 3found as we reviewed 73 of these, is that it's really 4just minor procedural changes that tend to be cost 5 beneficial.

6JUDGE TRIKOUROS: Okay now -- okay. I 7 understand. Now specifically with respect to the 8Davis-Besse SAMA analysis, and I'm not sure who the 9 appropriate party is, the staff or FENOC, what level 10 of review did the staff apply to that?

11MR. HARRIS: The staff, you know, has, you 12 know, gone through their, you know, for two reasons.

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

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

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

23 But, and of course we're now going through 24the revision. But for purposes of being able to 25 350 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433prepare summary disposition, we went out to Sandia 1National Laboratories, for their expertise on MAAP and 2MELCOR, to be able to look at just this specific issue 3 that's in this contention of did MAAP produce source 4terms, because that's a much more narrow issue than is 5 the SAMA analysis acceptable.

6But did we produce the right source terms, 7and were they anonymously low or large? So that's 8what Mr. Ross has done, was to compare the source 9terms that were produced by Davis-Besse with the 10issues that were raised in the contention, and to try 11to show really a fair perspective of what those source 12terms were and why we think those source terms are 13 acceptable.

14JUDGE TRIKOUROS: Well, okay. I have a 15question on that specifically in a little bit. But 16with respect to the staff review, in these types of 17applications, it appears to me, based on the 18information presented to us, that the staff review is 19one of reasonableness. It looks at the source term --

20 It looks to me that they look at the 21 source terms and say are these reasonable source 22terms, because they certainly did not ask for the 23input deck apparently, or if they did, they certainly 24didn't review it with the level of carefulness that 25 351 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the FENOC consultant did, and or they would have found 1 the mass activity issue.

2So the whole -- can it be said that the 3 level of review that the staff requires with respect 4to such analyses, SAMA analyses, technical review, is 5one for reasonableness, rather than the rigor 6 associated with the licensing. They describe the 7 rigor in this Attachment 22 for licensing.

8MR. HARRIS: I would agree that the level 9 of review, in terms of NEPA basis, we're supposed to 10 take a hard look. So we're looking at it under this 11 reasonableness standard.

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

13We were still in our review when they revised it. We 14were still conducting our review. We hadn't published 15our DSEIS. This is one of the things that we were 16looking at, and they, you know, we hadn't asked those 17 RAIs.18So I can't say that we didn't, we wouldn't 19have found it in our review. I'm just saying that at 20that point, you know, we hadn't gotten all the way 21 through that point.

22MR. O'NEILL: Can I add one point, Your 23 Honor?24 JUDGE TRIKOUROS: Sure.

25 352 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 MR. O'NEILL: I mean I would agree that, 1 you know, the standard is one of reasonableness. In 2fact, it's completeness and reasonableness, and you 3know, certainly preparing for oral argument, you know, 4 I did review some applicable staff guidance, and one 5of those documents is NUREG-1555, Standard Review Plan 6for Environmental Reviews for Nuclear Power Plants, 7 Supplement 1.

8Section 5.111 addresses SAMA analysis 9specifically, and it says the staff's assessment 10focuses on the completeness and reasonableness of the 11applicant's SAMA analysis, methods and assumptions.

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

16 JUDGE TRIKOUROS: All right.

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

18JUDGE TRIKOUROS: All right. So I'd like 19to ask the Intervenors a question at this point.

20We've been excluding you from the majority of this up 21until now. But you've heard some of these discussions 22 that have been going on here this morning.

23I would characterize this discussion as 24very marginally technical. In a hearing, I certainly 25 353 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433would get significantly more technical than we are 1discussing here. Your contention was initially 2preferred based on Seabrook, if I remember correctly.

3It was a Seabrook issue that was, that you brought 4 into Davis-Besse.

5When the summary disposition motion was 6filed, you did not specifically address any of the 7 statements. You did not address the facts that were, 8 you know, identified, that were identified as not in 9dispute by FENOC and also then individually addressed 10 by the NRC staff.

11Let's assume for the sake of argument, and 12only for the sake of argument, that we were to not 13grant the motion for summary disposition. Do you feel 14that you would be able to defend your position in a 15 hearing on this subject?

16It's a very esoteric subject, and I think 17what we've done so far is just barely touched the 18surface of how esoteric it really is, and you know --

19and there are many people to my knowledge who are 20 knowledgeable.

21MR. LODGE: We understand, as much as 22anyone here does, the complexity of the contention, 23and the complexity, in fact, of the entire SAMA area.

24We would be prepared to defend it. We would be 25 354 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433prepared; we anticipate being able to possibly 1 identify people not necessarily who are experts, but 2who have expertise, who would be able to assist us in 3preparing for cross-examination of the expert 4witnesses that would be designated by the licensee or 5 the Commission.

6JUDGE TRIKOUROS: May I ask why you didn't 7bring those resources to bear in responding to the 8Motion for Summary Disposition directly, with respect 9 to the issue of MAAP versus NRC codes, in terms of --

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

17JUDGE KASTENBERG: May I ask a question 18 along those lines?

19 JUDGE TRIKOUROS: Go ahead.

20JUDGE KASTENBERG: I have a question along 21those lines. In your opening statement, it sounded to 22me, at least, that you were asking the Board to 23broaden the contention, by -- I can't recall the exact 24 words you used, but that this was a much more complex 25 355 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 question regarding SAMA analysis.

1In your answer, you brought up the 2question of the containment cracking and so on, and is 3that -- did I read you correctly, that that's 4basically what your approach is, is that you can't 5really look at a very narrow issue, but you really 6have to look at a larger question when you're dealing 7with SAMA analysis? Was that the thrust of your 8 statement?

9MR. LODGE: I don't want to appear 10disagreeable, although I'm accused of that 11 occasionally. What we are -- what our position is is 12not that we are attempting to broaden the scope of the 13 contention. We believe that there is serious 14unexamined data, which is not reflected nor 15incorporated into the analysis as it presently 16 appears.17I'm not trying to be tricky or anything of 18the sort. If your question is are we trying to 19broaden the scope of the contention, we do not believe 20 so.21 We believe that it is the responsibility 22of the applicant to make the showing that the 23integrity of its underlying data set is complete, that 24the NEPA, the disclosure aspect required by NEPA is 25 356 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433honestly met, that in response to Judge Trikouros' 1earlier questions, that the standard of reasonableness 2has been appropriately encompassed within the SAMA 3 analysis. We don't believe that that has happened.

4JUDGE KASTENBERG: And just to take it one 5step further, we as a Board narrowed your original 6 contention, and then the Commission further narrowed 7 it, and at least at first blush it feels like now 8you're sort of like the Bernoulli effect, you know, 9that there's kind of a broadening of a continued 10 narrowing of the contention. It sounds like there's 11 a broadening of that.

12MR. LODGE: Let me have one moment, 13 please.14 (Pause.)15 MR. LODGE: I believe if the Intervenors 16 could be accused of anything, it would be that we're 17having difficulty getting past the facts on the ground 18 at the plant.

19The question that I believe Judge 20Trikouros and Judge Froehlich kind of followed upon 21was this whole issue of whether or not appropriate 22plant-specific information has been taken into account 23 in making, producing the SAMA candidates.

24 We think that the selective use of some 25 357 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433plant-specific parameters but not others does not 1appear under NEPA to be reasonable. So again, yes, 2we're getting very narrow and then getting into a 3 broad area at that point of narrowness.

4MS. SUTTON: Kathryn Sutton for the 5Applicant, Your Honor. May I just make a standing 6objection at this point, further to the opening 7remarks, that we believe that any further answer to 8 the motion at this point is late and must be 9demonstrated by the good cause showing, per 2.307.

10That's a standing objection, Your Honor. I just need 11 to make it for the record.

12JUDGE FROEHLICH: So noted. Continue, Mr.

13 Lodge.14MR. LODGE: That's all I have in specific 15 response to Judge Kastenberg.

16JUDGE FROEHLICH: So that maybe the 17questioning along this line will go more smoothly, and 18you'll be able to see where the Board is going. As we 19understand this and we have the contention before us, 20there are basically three bases which the Intervenors 21 have set forth, which challenge the SAMA contention.

22 I believe I hear you saying that you are 23 still of the opinion that there is something missing 24in response to those three bases. Do I understand you 25 358 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 perspective correctly?

1 MR. LODGE: Yes.

2JUDGE FROEHLICH: What is it that the 3Intervenors believe is missing from the SAMA 4contention, as narrowed by the Commission, at this 5 point?6 MR. LODGE: Well first of all, there was 7 something of a game-changer in the form of the July 816th filing, with the correction of a lot of very 9 fundamental errors by the Applicant.

10 JUDGE FROEHLICH: Could you speak up?

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

12JUDGE FROEHLICH: I'm having a little 13 difficulty hearing you.

14MR. LODGE: We do believe that the --

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

20As I say, NEPA is procedural. NEPA 21 requires honest, fair disclosure. NEPA requires the 22 agency to show the public that it has asked the tough 23questions of the applicant, and that those answers are 24 in some way reflected in the NEPA document.

25 359 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433We believe that that has not occurred, 1that that process, if anything, has only begun with 2the serious changes that were noted by FirstEnergy on 3July 16th in their changes. Mr. Harris had said that 4plants exist as they are a few minutes ago. That 5means that a plant with perhaps very extensive 6cracking problem or extensive corrosion problems in 7 its steel containment, must be taken as it is.

8JUDGE TRIKOUROS: Mr. Lodge, I think we 9need to reiterate, though, that that is not the 10subject of Contention 4. Contention 4 simply is 11 dealing with the generation of accident source terms 12 using MAAP versus the potential use of another code 13 other than MAAP.

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

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

21I reiterate what I had said earlier, that you know, we 22have been discussing nothing here other than 23 reasonableness of the MAAP code, more legal than 24technical I would say. The question of MAAP-generated 25 360 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433source terms versus other codes such as MELCOR is a 1highly complex, highly technical, highly esoteric 2subject, and we need to be, feel confident that if we 3 were to go down that road, that there would be a 4 multi-party proceeding.

5You've assured us that there would be, but 6 I just want to make it very clear that that is 7critical to all of this. I mean one has to be able to 8 defend the things that they contend, when they start 9 this process rolling.

10All right. So the, continuing. In the 11 motion, again it talked about this idea of a PRA 12consensus model, and referring to a 2006 EPRI report, 13and I believe the appropriate parts of that were 14provided in the attachments, where it specifically 15says "The MAAP code, Version 4.05 and later as a 16consensus model suitable for use in evaluation of PRA 17 success criteria." 18I just don't understand how that's 19pertinent to the question of MAAP-generated source 20 terms. Is there some connection that I should know 21about, because the consensus model that's specific, I 22think it was Attachment 23. The consensus model in 23Attachment 23 seems to be specific to its use for 24 success criteria, and you know --

25 361 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Which has nothing to do, or at least 1nothing directly to do with source term. So I wasn't 2sure where you were going with that. Can you help me 3 with that?

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

10I just thought to some extent that speaks 11to the reasonableness of a code, you know, for use 12 within the context of a SAMA analysis. But I mean I 13think there is an indirect relationship. I believe 14 that the SAMA analysis is, you know, as we set forth 15 in the joint declaration, rests upon the Level 1 and 16 Level 2 PRAs, you know, and the MAAP code was used, I 17 think, in portions of those analyses.

18 So even if we put aside the source term 19issue, I mean indirectly it is supporting the SAMA 20 analysis.21JUDGE TRIKOUROS: Okay. Well the, you 22 know, I just want to point out that success criteria 23 are very -- unlike a design analysis, where you want 24to know the pressure to within a percent or less, very 25 362 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 accurately. Let's say as an example success criteria 1are more of a forgiving thing. You're asking broader 2questions, you know, will the fuel heat up at all or, 3you know, you might have success if there's a range of 4 answers, you know.

5The accuracy of the method in success 6 criteria is not so critical as it is in other areas.

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

8 MR. O'NEILL: Okay.

9JUDGE TRIKOUROS: All right. I've got 10some more, if I can continue. Now the two other 11attachments that you provided of the 48 were 47 and 1248, specifically dealing with the staff's plant-13specific review of two DCDs, specifically ABWR and the 14 AP-1000. I think Attachment 47 was the ABWR.

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

23Would the conclusion that they reached in 24 Attachments 47 and 48 be generically applicable to a 25 363 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Davis-Besse plant, a Davis-Besse designed plant?

1You've used the argument in other -- I'm just 2elaborating on the question a little bit. You've used 3the argument to say that other things are not in your 4 favor. Other things are not applicable because they 5 were not a Davis-Besse specific plant.

6In this particular part of your motion, 7you're taking the exact opposite position. So I just 8 wanted to hear what you had to say about that.

9MR. O'NEILL: Your Honor, again I would 10not suggest that the conclusions that are generically 11applicable to Davis-Besse. I mean I think we wanted, 12we pointed those out as kind of illustrative examples 13of cases in which the staff actually has reviewed and 14accepted an applicant's use of the MAAP code, for a 15safety-based or safety-related application, you know, 16 that being certification of a new reactor design.

17JUDGE TRIKOUROS: I mean for example, 18perhaps we could ask the experts here. Does the MAAP 19code specifically deal with once-through steam 20 generator designs, which is unique to Davis-Besse as 21opposed to the ABWR, which of course is a totally 22 different plant, or the AP-1000, which has a U tube 23 steam generator design?

24 MR. HARRIS: Your Honor, I'll give you a 25 364 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433preliminary answer, but I may have to get back to you, 1 just to be able to contact my expert at Sandia. But 2I believe it does handle both, you know, once-through 3steam generators and U tubes. But I want, I really 4 need to confirm that with the Sandia expert.

5 JUDGE TRIKOUROS: Okay.

6 (Off record discussion.)

7JUDGE TRIKOUROS: All right. I believe it 8was in that same evaluation that we just talked 9 about, and also I believe the same argument has been 10made about license renewals, that in reviewing license 11renewals the staff has said they like the methodology 12of a MAAP/MAACS combination, MAACS-2 I guess nowadays.

13Do you know if the staff did any 14confirmatory analyses in coming to that conclusion for 15 either the DCDs or the --

16MR. HARRIS: Well, with respect to the 17DCDs, I think that, you know, probably the best way to 18look at it is that it's informative of, you know, the 19 use of MAAP in license renewal, but not -- that it's 20not necessarily dispositive, is that we look at it, 21 you know, on a site-specific basis.

22 So just because you picked MAAP, doesn't 23mean that you used it right. So now even if MAAP 24works, you still could have put incorrect inputs into 25 365 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433it and you come up with an anonymous result. So it's 1 not merely a function of the MAAP code, but how that 2 code was implemented.

3In terms of license renewals, as I had 4previously stated, all the plants, all the U.S. plants 5use MAAP for generating their Level 1 and Level 2, 6generating the source terms that would be put into the 7MAACS-2 code. So those have been looked at, but I 8 cant' tell you that in a particular one, that there 9was -- that that particular issue was analyzed in 10 detail.11The thing is that the SAMA are peer-12reviewed; they are reviewed by PNNL. So they are 13 updated from time to time. So they're getting a lot 14of different eyes to look at it, because of course the 15plant does its SAMA analysis. Its PRA is peer-16 reviewed, you know, by experts in the field.

17We looked at it. We tend to actually send 18it out to either PNNL or Sandia to review it. So 19you've had a number of different people review the 20process, and to the extent that we had identified 21something that would be, make us tend to think that it 22 was not giving us good results, I would imagine that 23 it should have been identified by this point.

24JUDGE TRIKOUROS: Okay. Now your 25 366 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Attachment 48 is very persuasive with respect to this, 1because it does specifically say, if I remember 2correctly, that the staff did confirmatory analyses 3using MELCOR, if I remember correctly, and found that 4 they would reach the same conclusions as MAAP.

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

14But then you're looking at, you know, 15almost an average of this. When you get to MAACS-2 16being a Level 3 PRA, we're talking 34 source term 17groups, not 34,000 source terms that could be 18generated from whatever accident it is. That gets 19sort of pushed together, and you get some averaging 20and to smear that together, there are small 21differences in the thermohydraulics models for a SAMA 22 analysis.23 JUDGE TRIKOUROS: Right. That's key for 24 SAMA, right?

25 367 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 MR. HARRIS: Right.

1JUDGE TRIKOUROS: Okay. I wanted to talk 2a little about uncertainty analyses now. The 3 Commission has said that, you know, they recognize 4 there are areas of inaccuracy in all of these tools, 5and that they specifically require uncertainty 6analyses for the purposes of accommodating those, you 7 know, error bands.

8Is it the position of the staff and FENOC 9 that these uncertainty analyses further add -- well, 10 what is the role of the uncertainty analyses, as far 11as the reasonableness of using MAAP in a SAMA 12 analysis? Start with FENOC.

13MR. O'NEILL: This is Martin O'Neill again 14for the Applicant. Your Honor, I think that the 15sensitivity studies really tend to kind of investigate 16the sensitivity of the results, of certain changes in 17 modeling assumptions or inputs.

18You know, I think as we've explained in 19our filings, that FENOC followed the NEI-0501 Revision 20A guidance, and you know, that recommends performance 21 of certain sensitivity analyses, to try to gauge the 22effect on the ultimate cost benefit results. They 23tend to focus on individual parameters, maybe discount 24rates or sometimes site-specific parameters like 25 368 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 evacuation time estimates.

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

6 JUDGE TRIKOUROS: Okay. Go ahead.

7MR. HARRIS: When you look at this, we 8have a couple of different things that are done in the 9SAMA analysis, that some people might classify as a 10 sensitivity or uncertainty.

11We have the uncertainty that we apply 12that's a ratio between the mean of the source term to 13the 95th percentile of the source term produced by 14MAAP or MELCOR. In Davis-Besse's case, I believe that 15 was a ratio of 1.45.

16You also have an external events factor 17that we also apply, because the PRA analyses internal 18events and based on, you know, analysis, you know, 19 from going back to IPE and IPEEE, we have a good feel 20 for what the external events multiplier is.

21 So that also gets added into the benefit 22that you might derive from the MAACS-2, and I think in 23Davis-Besse that's 5.6. But then there's a 24sensitivity analysis, where we're really looking at 25 369 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 various input parameters, as Professor O'Neill said, 1discount rates, evacuation times that could also 2 impact what that, the overall.

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

8As we take -- whether it's potentially 9cost beneficial under the baseline or after the 10 sensitivity, including the uncertainty, you know, we 11 would consider that potentially cost beneficial. So 12there is a level of conservatism that's trying to 13 account for the uncertainty in the analysis overall.

14JUDGE KASTENBERG: When I think of 15uncertainty analysis, I think of some kind of a 16probability distribution function, and then doing some 17Monte Carlo simulation and so on. I gather that's not 18 what you're talking about here?

19MR. HARRIS: There are -- different parts 20of this are different. So if you look at the 21uncertainty associated with the source terms, for the 22 ratio from the 95th percentile to the median, you do 23have a distribution there. So you do, you know, that 24-- so you have a statistical distribution there.

25 370 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433When you look at MAACS-2 overall, in terms 1of the results because of the weather averaging, which 2 I think again gets to a little bit more of the 3 uncertainty that we're discussing, is that we run 4 multiple weather trial for the same accident, taking 5from the local file, and that produces a distribution 6 of the impact of a particular accident.

7If you look at that particular curve or 8 the distribution of that, it's actually a log normal 9 curve. It's not your standard bell curve. So the 10mean produced from an accident scenario tends to be 11 about the 70th, 75th percentile, somewhere in there.

12 I mean it varies from plant to plant.

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

20JUDGE KASTENBERG: So but then in the end, 21if I understood correctly then, you know, as I read in 22Attachment 5, you then use what the old civil 23 engineers used to do, and put a safety factor in 24 there. That's your --

25 371 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433MR. HARRIS: I think that's a good 1 description of what goes on when you take, you know, 2we try to account for different discount rates, in 3terms of the time value of money, different evacuation 4 times. Some plants have chosen to, you know, evaluate 5 no evacuation.

6So people basically would stay in the 7plume, and get exposed to the plume, instead of being 8 evacuated out of its way, to try to identify issues 9that, you know, that in case our estimates are wrong, 10we have properly accounted for them, to give us a 11 reasonable answer at the end.

12Then when the staff, we consider at the 13end, you know, if it was cost-beneficial under the 14sensitivity analysis, we tend to treat it -- we treat 15it as a potentially cost beneficial mitigation matter.

16JUDGE KASTENBERG: Would you like to 17 comment on that?

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

23It can increase the off-site economic cost risk or 24 public dose risk by a factor of upwards of four, you 25 372 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 know, three to four.

1JUDGE TRIKOUROS: Your July 16th 2submittal, I think one of the things it clearly shows 3 is the importance of the analyst, in using, in doing 4these analyses, and something which the sensitivity 5 analyses really weren't designed to accommodate, but 6you could certainly argue that they do, to some 7 extent.8But the importance of the analyst is very 9 critical, and based on what we've been talking about 10 here in many of these questions, the analyst in SAMA 11 space is not really looked at with the scrutiny that 12would be given in a design or licensing space. I 13think that's a fair statement. I think your 14 Attachment 22 certainly defends that statement.

15I believe that the MAAP code, many of the 16people who run MAAP in the industry, I think, are PRA 17practitioners, not necessarily thermohydraulics or 18severe accident experts. I would not be surprised if 19 many people who run that didn't know what activity 20 runs first.

21I mean it is a fast-running, simple code, 22and that's why it's been so popular, because a vast 23array of people, I believe can use this code. Not 24 necessarily the experts in the organization, or even 25 373 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433an organization without experts can use MAAP. Is this 1acceptable within the range of the reasonableness 2criteria of NEPA, that that -- it's understood that 3this is the situation, but that it's still reasonable?

4MR. HARRIS: Well, I think it's not the 5analyst that -- I mean it's the results. When you're 6 looking at NEPA, you're really looking at what's the 7 output of the results.

8So I mean yes, is it possible that, you 9know, the analyst who's running MAAP was not, you 10know, as technically savvy as someone who's, you know, 11been doing with the MAACS-2 code, which tends to be 12even a much smaller portion of the population out 13 there in terms of discussing it?

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

20JUDGE TRIKOUROS: Well, I'm not sure what 21you're telling me. Are you telling me that it's an 22accident that a good answer comes out of it? Or I 23 mean --24MR. HARRIS: No, no. That's not what I'm 25 374 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 saying. I'm just saying that I don't think that the 1 issue to be decided is a function of the analyst the 2ran code, because you have the analyst that ran the 3 code, you have the people that reviewed the outputs, 4you know. Is it -- did it produce reasonable results?

5In this case, it appears to have produced 6reasonable results when you compare it to the state of 7 the art today, when you compare it to MELCOR today.

8I mean the staff's witness is a thermohydraulics 9 expert, so --

10JUDGE TRIKOUROS: So are you telling me 11 that the reasonableness review that's given to these 12 analyses, and I think we've established that that is 13 sort of the level of review.

14It's reasonable, a reasonableness review, 15would transcend then any particular analyst issues 16such as that July 16th submittal, identified 17 specifically in the case of Davis-Besse?

18MR. HARRIS: I think that's the right 19 answer. I mean when we do this, we're kind of looking 20for a best estimate analysis. So could there be 21 errors? They were caught, you know. Theirs that were 22 made were caught.

23If you look at the activities, I know that 24the -- of course Intervenors described the changes as 25 375 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433significant, but it wasn't a major change in terms of 1 the actual source terms, in terms of the overall 2 output.3 So I guess I'm not discounting that, but 4 it's not necessarily -- it's not dispositive of this 5 issue. The issue is did we produce acceptable source 6 terms for the SAMA analysis that we did. So I don't 7 think you can look at it in isolation.

8JUDGE TRIKOUROS: So one could say with 9respect to the analyst issue if you look at a SAMA 10 that was done was MAAP, versus a SAMA that was done 11with MELCOR, given the complexities and highly 12 unforgiving nature of MELCOR, and the fact that very 13few people can actually run that code successfully, 14that the analyst issue between the two codes that 15 were, let's say, the initial contention codes, where 16they differ, the analyst part of that would be sort of 17 a wash, or at the very least, MELCOR would be likely 18 to produce higher analyst errors than MAAP. Is that 19 a fair statement?

20MR. HARRIS: I don't know that I can 21confirm that, because I've not personally ever run 22 MELCOR. So I'm not sure how bad MELCOR is compared to 23 MAAP. Taking Your Honor's suggestion of the level of 24detail required, assuming that, there's probably more 25 376 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 room for that.

1I mean each one requires different inputs.

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

7So just taking your numbers from MELCOR 8 into the MAAP code isn't going to get you a comparable 9result, because it models the accident slightly 10 differently.

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

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

18MR. HARRIS: For SAMA purposes, yes. It's 19under the umbrella of reasonableness. If we were 20doing it for something else, we would have to apply 21the appropriate level there. But we're underneath it 22 here.23JUDGE KASTENBERG: I wanted to just 24clarify a couple of items that are in your motion and 25 377 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433some statements that you made earlier. In the revised 1SAMA, do you still come to the same conclusion that a 2 portable diesel battery charger for the DC system is 3 still the one that looks like it might be cost 4 effective?

5MR. O'NEILL: Yes, Your Honor. That's 6 correct.7JUDGE KASTENBERG: That's correct. Would 8it be right to assume that the dominant accident 9 sequence that this is to mitigate would be a station 10 blackout? Is that what shows up in your analyses? I 11 see all these nods.

12MR. O'NEILL: My supporting cast is 13 nodding yes, Your Honor, so I will --

14JUDGE KASTENBERG: Would that be correct?

15 MR. O'NEILL: Yes, yes.

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

20MR. HARRIS: It gives you a source term 21that's generic for PWRs and BWRs. It's not, you know, 22it's not tracing a particular accident through. So 23MAAP generates a lot of different sort of 24 circumstances.

25 378 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433JUDGE KASTENBERG: Well, what I'm 1concerned about is that in Table 3.2 in the report, 2they list the number of accident sequences for 3different PWRs, and in particular they pick out 4several that were in NUREG-1150, so basically it's the 5 same analysis.

6But in addition, they added Oconee, which 7 I believe is a very similar plant to Davis-Besse, is 8that not right? I see a lot of nodding heads back 9 there also, but --

10 MR. HARRIS: Yes, Your Honor.

11JUDGE KASTENBERG: So it's a similar 12plant, and they use the TMLB prime sequence, which is 13 station blackout?

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

15JUDGE KASTENBERG: That's in here. Yeah, 16 they do. For Oconee they look at two. They look at 17 a LOCA and they look at station blackout.

18So why wouldn't I be able to use, for the 19results from Oconee, as a measure, to see the 20appropriateness of the source term that is being used 21for Davis-Besse as a check, rather than just 22discarding this in its entirety and say well, you 23know, this has no relevance. When I look at it, it 24 seems to me that there is some relevance, so --

25 379 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433MR. HARRIS: I guess the issue there is 1that we're looking for releases to the environment.

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

4JUDGE KASTENBERG: but again, as Judge 5Trikouros pointed out before, there's a whole chapter 6in this report devoted to containment mechanisms, 7different mechanisms in containment that certainly one 8could use, to ensure that the Davis-Besse source terms 9 are at least in the right ballpark, rather than just 10 discounting this.

11MR. HARRIS: I wouldn't disagree with you, 12but I think that that would, it wouldn't -- that if 13 you went back and looked at Oconee at the time, and 14figured out the source term that they had, and how 15does that plant compare to Davis-Besse, first you have 16to validate that the source term released into 17 containment is comparable.

18Just because it's the same design doesn't 19mean that you have the same amendments. So each 20plant, you know, over the years has changed their 21design basis from making amendments. So not every 22plant's going to act the same. They could have, from 23IPE and IPEEE and I can't tell you now whether or not, 24you know, the improvements that they may have made 25 380 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 were different.

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

9Then you have the whole issue of well, 10what are the containment, the ways that, you know, 11that containment may fail, because at first, you know, 12what are they crediting in their SAMA analysis? In 13Davis-Besse, they don't credit the shield building, 14you know, or any of the impacts of the shield building 15 in terms of mitigating a release.

16So it's not totally without worth to look 17at it, but I think that it would be very difficult to 18draw and go "I'll just use Oconee's" and go "that's 19 acceptable for Davis-Besse." The staff would have 20serious reservations, if someone just took another 21plant from somewhere else and took their source terms, 22 you know.23 We want to know how their procedures and 24their plant components, the way they've installed it, 25 381 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433will impact the source term that they get, and the 1plants, even of similar designs and similar vintages, 2over the last 30 to 40 years, they've departed from 3 being the same.

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

13Those are very important to figure out, to 14 figure out what the initial source term that's going 15 to be released. You know, timing of when the vessel 16would breach, containment spray kind of issues, how 17much flooding might be in, on the floor mat, those are 18all, those are some more plant-specific than just 19 trying to substitute theirs.

20 So it gives us an idea that yes, we're in 21 the ballpark, and that's one of the things the staff 22does try to do, is to look. Does this source term 23compare to source terms that we received from other 24 plants? And the same thing, we do that with 25 382 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 mitigation measures.

1 We tend to ask well, why didn't you try 2this mitigation measure because we've seen another 3plant, you know, use that mitigation measure and it 4was potentially cost beneficial. So we do try to use 5that experience that the staff has generated from 6looking at all these things, to account for these 7 things.8 But I think it's that, trying to compare 9an in-containment source term that's 20 plus years old 10 to, you know, a source term that's released to the 11 environment. It's probably not really worthwhile as 12a way to expend the resources to do that. It's not 13 going to tell you very much.

14JUDGE KASTENBERG: Does FENOC want to 15 answer this?

16MR. O'NEILL: Yeah. I mean I think we 17fully recognize that there were, you know, seven 18 plants that were, you know, considered in developing 19 the accident phases or release phases in NUREG-1465, 20 as well as the source term information.

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

25 383 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 There would be very little point in doing 1a, you know, site-specific SAMA analysis if you just, 2you know, adopted wholesale generic source term 3 values. The thing is 1465, it's true. I agree 4wholeheartedly that it discusses fission product 5 retention mechanisms.

6But it doesn't actually attempt to 7 quantify them, and that's exactly what the MAAP code 8does, and it does it on a plant-specific basis, taking 9into account design features, containment sprays, 10 ventilation systems.

11JUDGE KASTENBERG: One last question about 12 1465. In your motion, you make a statement that this, 13 I'm not exactly sure; I don't have the exact wording 14of your statement, but it's something like well, this 15is only -- this doesn't apply to current generation 16 reactors. It only applies to future reactors, and 17 that's part of your argument.

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

23 This is just, I would assume these 24authors, wherever they reside, I'm not sure if they're 25 384 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the staff or one of the national laboratories, come to 1the conclusion that well, you know, use it for future 2 reactors and so on and so forth.

3So I guess my question to you is is there 4a regulatory requirement, that you can't use this for 5existing reactors, or what's the basis for the 6 statement that this is not applicable to existing 7 reactors when seven of the reactors in here are all 8 existing reactors?

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

11MR. HARRIS: Your Honor, I mean it's 12voluntary for existing reactors, I believe, under 1350.76, where existing -- 67, I'm sorry. I flipped the 14number, 50.67, that they can choose to use it going 15forward, and of course we do offer, you know, the 16reactors themselves can come up with alternate source 17 terms, you know, as a possibility.

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

20 JUDGE KASTENBERG: That's TID 14844?

21 MR. HARRIS: Yes sir.

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

25 385 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433JUDGE KASTENBERG: but there's no 1 technical or regulatory reasons why you couldn't, if 2 you wanted to use it. I think that's the point.

3MR. HARRIS: but there's no requirement 4 for them to use it. We can't make them adopt NUREG-5 1465.6 JUDGE KASTENBERG: Right, I got it.

7JUDGE TRIKOUROS: Okay. Now getting to 8the affidavit, the Dr. Ross affidavit from the staff, 9the statement is made that, I believe this is on pages 1012 to 13 of the affidavit, that the -- once the source 11terms were compared on a consistent basis, now this is 12referring to MAAP versus -- the FirstEnergy MAAP 13 analysis versus NUREG-1150.

14 MR. HARRIS: Right.

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

20therefore are comparable with NUREG-1150, and actually 21produced higher amounts of the key radionuclides of 22 concern in some accident calculations." 23MR. HARRIS: Your Honor, I mean I would 24 point to page 13, which has the nice chart, you know, 25 386 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433sort of comparing the -- cesium and iodine tend to be 1the most dominant, you know, nuclides for off-site 2 dose and for off-site economic impact. So you know, 3it has those two sort of roughly compared for mean and 4 median and the percentile.

5JUDGE TRIKOUROS: Right, and so you're 6using this as an argument that MAAP gives, is 7 conservative relative to the NRC codes used in 1150, 8or are you using this as an argument to argue that 9 it's reasonable to use MAAP?

10MR. HARRIS: We're using it as an argument 11 that it's reasonable to use MAAP, and we're reacting 12to, you know, the identification in draft NUREG-1150, 13where Intervenors had pointed out to -- there had been 14 section in it discussing that MAAP generated in 15 obviously low source terms.

16But of course, that didn't carry over into 17the final version of NUREG-1150. So we wanted to put 18into perspective, because if you look at the draft, it 19appears that they took a -- not a worse case accident 20 but a very bad accident, and then compared it to the 21 mean, which when you do that, you just can't --

22there's not, you can't learn anything by sort of 23comparing one particular accident scenario from a 24 group of accidents.

25 387 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 JUDGE TRIKOUROS: Which then really goes 1 to the reasonableness argument?

2MR. HARRIS: Right. So yes. It's the 3 reasonableness argument, that it produces, you know, 4essentially the same source terms when you look at 5BWRs and look at the full spectrum of accident 6 scenarios.

7JUDGE TRIKOUROS: Okay, and could you just 8 give us some quick idea of what was done, with the 9words "consistent basis." What, could you give me 10 some idea what that was?

11MR. HARRIS: If you look back at the draft 12NUREG-1150, I believe it was comparing Sequoyah to 13 Catawba, in terms of the runs and just let me get --

14just one second. When you looked at it, there were 15different accident scenarios that they were comparing, 16and in terms of the MAAP, they were looking at a 17source term group instead of a particular accident 18 output.19So what Mr. Ross did is he went back to 20look at the data, because the data's in the final 21NUREG-1150, in terms of these source term groups, and 22then plotted the full spectrum of the source terms 23produced in the NUREG-1150, and then also took the 24source terms that were used in Davis-Besse and plotted 25 388 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 them on that same graph.

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

4JUDGE TRIKOUROS: Okay. If I were to ask 5 you if that same consistent basis analysis were done 6 for other plants SAMAs, would you say that the answer 7 would be consistently the same?

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

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

19JUDGE TRIKOUROS: So the combination of 20MAAP-producing source terms so they're consistent with 21other codes, in combination with the required 22 sensitivity analyses?

23MR. HARRIS: Do you mean uncertainty or 24 sensitivity?

25 389 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433JUDGE TRIKOUROS: Well, the uncertainty 1analyses are expressed by the sensitivity studies that 2 are done, right?

3MR. HARRIS: There are two separate parts.

4The uncertainty is applied to both the baseline and 5then to the actual sensitivities. So we have 6uncertainty, that's that ratio from the 95th 7 percentile to the mean, plus the external events 8factor, which is applied to both the baseline analysis 9and the sensitivity analysis, and then we do separate 10 sensitivity analysis from the baseline.

11JUDGE TRIKOUROS: Okay. Well, I was 12referring more to the sensitivity analyses that are 13 done, in combination with your assertion that if you 14look at things on a consistent basis, MAAP produces 15results that are comparable to other codes, which goes 16 directly to the initial contention.

17 MR. HARRIS: Right.

18JUDGE TRIKOUROS: And you're telling us 19 that that is -- that shows that MAAP is a reasonable 20 code to use for NEPA?

21MR. HARRIS: Yes sir. Yes. It's a 22 reasonable code for the purpose we're using it here.

23 JUDGE TRIKOUROS: All right.

24JUDGE FROEHLICH: We've had quite a 25 390 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 discussion, I guess, of the reasonableness of the 1source term. One of the three bases, for lack of a 2better word, in the admitted contention. I know that 3there was the subject raised, that these codes have 4 not been adequately validated.

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

11Could you just elaborate a little bit more 12on the validation aspect of the admitted contention 13 basis?14MR. LODGE: Mr. Kamps is going to answer.

15 JUDGE FROEHLICH: Oh, thank you.

16MR. KAMPS: Thank you. I think the thrust 17is, and it gets back to a lot of the discussion we've 18 been listening to, is we are concerned that the most 19conservative approach be taken. That's why we pointed 20 to NUREG-1465 in certain regards.

21 So the validation that we're looking for 22is a reality-based realization as to how bad the 23source term could be, the actual release into the 24 environment that actually blows on the wind and 25 391 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433actually flows with the water, enters the food chain.

1So validation, that's why we're looking 2 for independent validation, and we're concerned that 3even NRC does not provide that independent validation.

4That's why we're bringing these criticisms to the 5 codes that are being discussed.

6Unfortunately, there's not a code that 7 exists, that accurately is depicting what can happen 8in Davis-Besse. Already, the cracking of the 9containment has been ruled out of scope, corrosion of 10 the steel containment vessel.

11So we are concerned that validation would 12include actual independence applied to these codes, 13 and the most conservative code possible. That's why 14 we brought up what we have in this contention.

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

17MR. O'NEILL: Yes, Your Honor. As I 18mentioned before, I think for purposes of a NEPA 19review, you know, we're looking at the completeness 20and reasonableness of the assessment. I mean I think 21we tend to gain some insights from the safety arena 22and V&V or validation and verification in that context 23 tends to focus on the correctness and suitability of 24 the code, you know.

25 392 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Are we using the correct code for the 1application in hand, and was the code properly 2 developed, you know, for that purpose.

3MR. HARRIS: And Your Honor, just to touch 4on it, NEPA's not a worst case analysis. So if you 5take all, if you make it as conservative as possible, 6we've sort of gone outside the realm of NEPA, where 7we're trying to conduct a reasonable analysis and 8anticipate what's going to happen to really a worst 9case analysis that, you know, is really inappropriate 10 for a NEPA discussion in this particular case.

11In terms of validation, Mr. Ross 12identified a number of articles where people have 13 looked at MAAP and MELCOR and on the thermohydraulic 14 effects. It's very difficult. There's not a lot of 15 severe accidents that have been experienced, even in 16 light of what's recently occurred.

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

24 But when you look at them, you know, on 25 393 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433these separate effects, we found that they're roughly 1 comparable. So to the extent that we can benchmark it 2against real events, you know, it has been benchmarked 3 against the events that we would experience. But we 4look at, we tend to look at more isolated issues 5within the code to validate and benchmark, because you 6 don't have a lot of comparisons.

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

12You know, Attachment 20 is dealing with 13all of the benchmarks that were done for the MAAP 14code, and you know, apparently there are many, many of 15 them. But two points I just wanted to, two questions 16 I want to ask regarding that.

17Number one, were those all -- was there 18independence at all in any of that, or was it -- were 19 they done by a party that would not be considered 20independent, such as FAI, for example? Were there 21other -- I haven't -- you didn't offer that up as a --

22 MR. HARRIS: I was concentrating more on 23what Mr. Ross, you know, the independent articles. I 24think in terms of the MAAP application guidance, it 25 394 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433does list all that. But I think I would tend to want 1 to defer to FirstEnergy to answer who did the peer 2 reviews for that.

3MR. O'NEILL: Your Honor, it's my 4 understanding during the kind of initial development 5 of the codes, there was definitely some --

6 JUDGE TRIKOUROS: That what?

7MR. O'NEILL: The design review of the 8code, I thought our experts testified to that effect.

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

13JUDGE TRIKOUROS: The Attachment 20 14specifically, you know, refers to the MAAP4 15benchmarking in the code manuals that come with the 16 code. They all refer to Level 1 phenomena. Clearly 17 what we're speaking about here is Level 2 phenomena.

18 What would you -- what argument would you make for 19 that? Do the Level 1 phenomena benchmarking help us 20at all in understanding the reasonableness of the use 21 of MAAP?22 MR. O'NEILL: You know again, I think to 23 the extent that the SAMA analysis draws from Level 2 24PRAs, I mean I think that's a relevant consideration.

25 395 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 You know, I also point back to, you know, the recent 1state of the art for reactor consequences analysis 2assessment in the comparison that Mr. Ross provided in 3 his affidavit.

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

7I think the Davis-Besse and the Surry PWR, and you 8 know, we see reasonable agreement.

9 JUDGE TRIKOUROS: Okay.

10 (Off record discussion.)

11JUDGE FROEHLICH: It see it's approaching 12the noon hour. My colleague tells me he has more 13questions on a slightly different line. This might be 14an appropriate time to take a luncheon recess. I 15would propose an hour, if that's satisfactory and 16sufficient for everyone, and I would say that we'd 17come back at five minutes after 1:00 and continue with 18 Contention 4.

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

21 22 23 24 25 396 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 A F T E R N O O N S E S S I O N 1 12:02 p.m.

2JUDGE FROEHLICH: Please be seated. We'll 3 be back on the record. You want to go?

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

11So it was a comparative analysis, and I 12 guess it gave reasonable comparisons. But it made a 13 statement, it's on page 130 of the paper. It made a 14 statement regarding MAAP4.

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

21"However, many aspects of MELCOR are not 22publicly available, such as details of the models, and 23there is interest in why such a seemingly simpler code 24can perform so well." This has come up many times, a 25 397 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 very simple code, easy to run, runs enormously fast, 1three orders of magnitude. It's 1,000 times faster 2than MELCOR, is being used to do everything, every 3single aspect of reactor analysis, for the most part, 4 other than anything neutronic, I think.

5Is there any comment on that, regarding 6 its use for SAMA?

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

9JUDGE TRIKOUROS: It's your -- you 10 submitted this, I didn't.

11MR. O'NEILL: Right. If that's a softball 12 maybe. Well, no. I mean, you know, its seems the 13code has, you know, been very effective, I can't speak 14to why it performs so much more efficiently or faster.

15But it certainly seems that if it's achieving 16reasonable, comparable results to MELCOR, then it's 17 reasonable for use in the SAMA analysis.

18JUDGE TRIKOUROS: It seems like a free 19 lunch. It's just interesting. I understand. I mean 20it's been run by a lot of people in a lot of 21applications, and it does seem to give credible 22answers and to date, there apparently has not been any 23 major issue associated with it. But I was wondering 24 if that has any, if that has any impact on the 25 398 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 reasonableness argument.

1MR. HARRIS: Your Honor, I don't think it 2has any impact on the reasonableness argument. But I 3 think it goes back to our atmospheric dispersion and 4the Gaussian plume model, which I believe when we were 5first here, talking about how simple the Gaussian 6plume model is, that is produces reasonable results 7 for, especially for the purposes that we're using.

8You don't need necessarily a 3D Lagrangian 9tracking model to figure out where the contamination's 10 going. So there's a limit to how far do you need to 11go to get an answer that's reasonable, and refining it 12at the, you know, 9th significant digit may not be 13really that important. I don't want to say that it's 14 at the 9th, but --

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

23MR. HARRIS: Right, and I think the 24 Commission sort of highlighted that too, in terms of 25 399 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433what we're trying to look at, is that we're really 1looking for something that would change the outcome of 2the analysis at the end, and what we're arguing about 3right now is really sort of an intermediary step. So 4just because there's some variation there doesn't mean 5 that it actually will impact appreciably which ideas 6 are going to become cost beneficial.

7JUDGE TRIKOUROS: Yeah. But this paper 8that you gave us apparently came out with a very good 9 answer for your case, but you know, made it clear that 10they didn't quite understand why, which I thought was 11 interesting.

12MR. O'NEILL: Yeah. But I think, you 13know, functionally it could be too, and the MAAP code 14being a proprietary code, and I don't know if the 15 studies had access to all the assumptions. But --

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

21 (Off record discussion.)

22MR. HARRIS: Your Honor, I just wanted to 23 clarify something I said I was going to check on 24later, is that we had asked about whether the MAAP 25 400 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 code models once-through steam generators, and it is 1capable of modeling once-through steam generators.

2 It's not solely confined to U tubes.

3JUDGE TRIKOUROS: Capable of modeling a 4 once-through steam generator?

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

6 JUDGE TRIKOUROS: Yeah.

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

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

12MR. O'NEILL: I did confirm with our 13experts that was in fact done for the Davis-Besse code 14 runs.15 JUDGE TRIKOUROS: I guess the last thing 16 we wanted to put on the record was the discussion 17about benchmarking versus validation. Could you each 18 address that? I know in your submittals to, in your 19 motion, you specifically use the word "benchmarking" 20with respect to MAAP, that MAAP has been quote-unquote 21"extensively benchmarked." 22The Intervenors have been raising the 23issue of independent validation. Could you say 24something about the differences between that, if there 25 401 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 are any?1 MR. O'NEILL: Your Honor, I mean I think 2that the statements that we made used the terms 3 interchangeably. But I mean benchmarking, you know, 4 at least in my understanding, is when you attempt to 5compare, you know, two comparable quantities or codes, 6 you know. How do they compare in kind of modulating 7 or simulating the same type of phenomena.

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

13You know, the staff's expert, Mr. Ross, 14actually said well, MAAP4 maybe had not been validated 15by the NRC, you know. It has been extensively 16 benchmarked. I mean I think he used that term as 17 well. It's not entirely clear to me what the 18Intervenors are defining as validation, you know, 19whether they envision the undertaking of a formal NRC-20 funded study.

21But that is not the agency's normal 22 practice, as Mr. Harris pointed out. You know, they 23have limited resources and they tend to review use of 24codes, whether it's in the design licensing basis 25 402 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433contracts or the SAMA analysis contracts on a case-by-1 case basis.

2MR. HARRIS: For the NRC, we sort of 3treated this validation and benchmarking to be 4 slightly different things. It appeared to us, and I 5don't want to put words in the Intervenors' mouth, 6that they were looking for it to be someone to have 7 signed off "yes, you can use MAAP or MELCOR for this 8particular purpose," sort of wanted the NRC to do 9 that.10Whereas benchmarking is comparing it 11against, and you can compare it against other models, 12you can compare it against known data for 13 benchmarking. You know, as we've discussed a lot, 14 benchmarking has been done a lot between the models.

15 It's been done on separate effects.

16 So various thermohydraulic effects would 17then -- we've done that particular kind of stuff. So 18we were trying to answer the benchmarking question, 19 which seems more appropriate, because we're normally 20not in the business of saying that this particular 21 model, especially for NEPA purposes, is the model to 22 use.23JUDGE TRIKOUROS: Okay. So what you're 24 saying is that for safety purposes, licensing design 25 403 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433basis purposes, codes that are used for that, for 1those analyses tend to be validated methods for 2 utilization in those analyses?

3MR. HARRIS: I think in general, yes. You 4 look at it for like the pressure temperature limits, 5the codes that they used to develop those for each of 6their fueling cycles, are codes that have been signed 7 off through safety evaluation reports, and then the 8licensees generate the appropriate pressure 9temperature limits for that particular refueling 10 cycle, as an example.

11It doesn't mean that a plant couldn't come 12in with an alternative code to try to justify 13 something. It would just require more review than one 14 that has been previously approved.

15JUDGE TRIKOUROS: Okay. So for NEPA 16purposes, all that is required is that the staff 17 approve the code for that SAMA analysis application?

18MR. HARRIS: I wouldn't say it, that we 19approved the code for that particular application.

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

23So we're trying to generate, and I understand that 24 those are not completely separate, you know.

25 404 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433But we're trying to disclose what's the 1 expected consequences of an accident. We're not 2 trying to approve the code.

3JUDGE TRIKOUROS: but you are saying that 4the code need not be valuated for use in a NEPA-5 related SAMA analysis?

6 MR. HARRIS: That's correct.

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

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

19 JUDGE TRIKOUROS: So would you say it's 20 adequate?21 MR. HARRIS: Yes.

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

24 MR. HARRIS: Yeah. Yes sir.

25 405 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433JUDGE TRIKOUROS: All right. So they 1specifically say we approve the use of the MAAP/MAACS-22 combination. So maybe they're not approving the 3code; they're approving the use of the code, of the 4MAAP code with respect to MAACS-2; is that what you're 5 saying, that there's a different --

6They're not approving the code in the 7 sense of having validated it, but they're approving 8 the code for utilization for that purpose?

9MR. HARRIS: It's been -- I guess it would 10be it's been accepted in other license renewals for 11generating source terms that gave us a reasonable SAMA 12 analysis. So MAAP is fairly early. I mean it's a 13Level 1, Level 2 and really when we're looking at the 14 SAMA analysis, we are looking out here at this Level 15 3 expected value of the accident.

16So it has been accepted for use in 17previous license renewals using the MAAP-generated 18source terms, in combination of MAACS-2 or MAACS, 19depending on, you know, which plant, and I'm not sure 20whether or not the plant's -- one of the earlier 21plants may not have been on MAACS as opposed to MAACS-22 2. But it's not an approval of MAAP generally.

23 JUDGE TRIKOUROS: All right, okay.

24JUDGE FROEHLICH: And the Intervenors, 25 406 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 would you like to speak to this issue?

1 MR. LODGE: The issue of validation?

2JUDGE FROEHLICH: Validation versus 3 benchmarking.

4MR. LODGE: Well, we looked up the term 5"valid," and the first definition is "sound, just and 6 well-founded." The second definition is "producing a 7desired result." We believe that you might be arguing 8 different definitions here.

9We believe that the computer code is a 10tool, but it is a tool that is reliant on the 11information that is incorporated into it, and it can't 12go beyond -- it doesn't know more than the human 13 beings who are supplying the data.

14For instance, you can get a result if you 15put in the wrong wind direction or the right wind 16direction, and the code simply delivers the result.

17It delivers a desired result either way. It crunches 18the numbers. Pardon my arts and crafts background, 19but what I continue to see here is that the 20 Intervenors are outside the looking glass.

21JUDGE TRIKOUROS: Well, Mr. Lodge, I mean 22wind directions can be any direction. It's like a 23spellcheck or checking the word that is an existing 24 word, but happens not to be the word you meant. It 25 407 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 can't find that.

1 MR. LODGE: Right.

2JUDGE TRIKOUROS: And similarly here, 3since wind directions can be in any direction, you put 4in a wind direction the tool doesn't know what you 5 meant.6It knows that it, you know, it doesn't 7have anything to throw it out with, you know, so to 8 speak. So I'm not sure where you're going with that.

9The tool couldn't possibly know what the true wind 10 direction is for that application.

11MR. LODGE: Which is exactly our point.

12If indeed, as Mr. Harris indicates, they don't really 13have -- the NRC is not in a position, nor expected to 14validate the code, but to validate the results 15obtained from it. Our contention, essentially our 16argument is that the results are not reliable because 17 they are incomplete. They do not rely on the data.

18Mr. Harris also indicated that it's not 19just reasonableness that we're talking about 20 underneath that. We are talking about the hard look, 21and the hard look is not present in a rather esoteric 22skew of candidates, only one of which seems to be cost 23 beneficial, but which is not inclusive of a much, we 24think, a larger field of potential candidate 25 408 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 scenarios.

1JUDGE TRIKOUROS: I guess I'd like to hear 2 the staff and FENOC comment on the hard look comment 3 that Mr. Lodge just made.

4MR. HARRIS: I mean, Your Honor, a hard 5look is that we've taken a look. It is one of the, 6you know, available codes. There are not very many 7 codes. We look at this is not something that you can 8simply, you know, sit down and go "I think the 9accident" without running some sort of analysis and go 10"This is what I think's going to occur." 11I need to generate information, you know, 12to be able to look at these low probability events, 13and how they're going to potentially impact the 14 environment. So we need to one, have looked at it, 15done a reasonable analysis of it, to identify what the 16issues are. We have some limitations in terms of what 17we do. We try to account for that in terms of its 18 uncertainty, and that's the hard look.

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

24 We do ask questions about, you know, the 25 409 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433inputs that they've done, you know, the cost that 1they've suggested, and you know, normally we also will 2ask for additional sensitivity studies related to the 3 SAMAs, where we've seen those issues in other plants.

4There's not a lot more that you can do, in 5terms of trying to do this analysis in any other way, 6you know. They don't seem to point to an error. I 7mean he just suggested that -- Mr. Lodge just said 8 that there are other SAMA candidates that, you know, 9 could be put into cost beneficial.

10Intervenors in other proceedings, I 11 believe in Limerick, identified SAMA candidates that 12they thought were potentially cost beneficial. Here, 13 we're left with nothing.

14MS. SUTTON: Your Honor, Kathryn Sutton 15for the Applicant. In addition, just from a purely 16legal basis, I think Mr. Harris has described what the 17staff does in terms of its hard look. But there's 18some very important case law from the United States 19 Supreme Court, New York v. Kleppe , 429 U.S. 1307 and 20 1311.21It says "While agencies are required to 22 take a hard look, an EIS does not have to be so all-23encompassing in scope that the task of procuring it 24would be well nigh impossible." I think that's in 25 410 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 large part what NRC is being asked to do here.

1In addition, the Commission itself has 2 said in the Pilgrim case from 2010, I know there's 3 many; CLI 10-11, there will always be more data that 4could be gathered or could be analyzed. But agencies 5enjoy the discretion to draw the line and move forward 6with decision-making, and we think that's what called 7 for here.8JUDGE FROEHLICH: That concludes the 9Board's questions, at least up until this point, on 10Contention 4. We have put in our notice to the 11 parties that we would like to hear closing arguments 12 on this, limited to approximately five minutes.

13It would be helpful to us, in your closing 14arguments, if you could address the standards under 10 15C.F.R. 2.710, Motions for Summary Disposition, and 16address whether or not there are any genuine issues of 17material facts that remain, and with that, that focus 18or direction, if you could address the three bases 19that the Commission has accepted and set forth for 20hearing, that they would allow to go forward to 21 hearing, but for the Motion for Summary Disposition.

22 The Board must find as its responsibility 23to make sure that the high standard for summary 24disposition is met, based on both the motion itself 25 411 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433and the answers that were filed, even in the case 1where an answer was filed and was ultimately not 2 accepted.3I don't know if it would be helpful to the 4parties if you want to take ten minutes to collect 5your thoughts on this and then proceed with closing 6 statements, or if you would prefer to go to it now?

7MR. HARRIS: Speaking for the staff, I 8 think ten minutes would be appropriate.

9JUDGE FROEHLICH: Okay. My colleagues 10 suggest 15, so that we can bring this to closure.

11JUDGE TRIKOUROS: I want to say for 12 cogency.13 JUDGE FROEHLICH: Okay, thank you. Then 14 we'll take 15 minutes, and we'll resume with closing 15arguments on the Motion for Summary Disposition of 16 Contention 4.

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

19JUDGE FROEHLICH: Please be seated. We'll 20be back on the record. Since the Applicant, the 21proponent of the motion, has the right to close, we'll 22 hear first from the Intervenors.

23MR. LODGE: Thank you members of the Panel 24and opposing counsel. We would like to thank 25 412 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433FirstEnergy for correcting the multiple problems with 1their original SAMA analysis by the July 16th, 2012 2 correspondence.

3The question that comes to mind is as 4FirstEnergy was going to all of the trouble of making 5those corrections, which were critical corrections to 6me, how is it that one would not include serious 7analysis and discussion and inclusion of the status of 8 the shield building in that analysis?

9This morning we heard references to 10conformance with licensing basis. It's our 11understanding that Davis-Besse, as to its shield 12building, is out of conformance with its licensing 13basis, and in fact on December 8th, 2011, Abdul 14Sheikh, an NRC engineer, said "Davis-Besse's shield 15building has not been designed for containment 16 accident, pressure and temperature." 17It's also our understanding that 18FirstEnergy is not required until next month, until 19December 2012, to explain how the implementation of 20what I gather is an aging management plan, will 21 restore the plant to its licensing basis.

22Judge Trikouros made reference to the 23"forgiving nature" of these SAMA analyses. The 24Intervenors are concerned about the unforgiving nature 25 413 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433of an unanticipated or not fully anticipated accident 1 scenario. If the wind blows thataway, that's the 2 direction to Cleveland. If it blows this way from 3Davis-Besse, it's toward Toledo. If it blows that 4way, it's Detroit; that way, it's Columbus. These are 5 not distant places.

6The data matters. The reality that is 7reflected in the data, which is then encoded and 8analyzed, matters considerably. So you do need to 9know which way the wind blows. When there's 10discussion of the probability risk assessment, 18 11 months or so ago no one would have imagined what the 12probability would have been that there would have been 13three reactors exploding in Japan, or a spent fuel 14 pool teetering on the edge at the same installation.

15What were the probabilities before several 16of the famous or infamous problems and accidents at 17 Davis-Besse, such as the hole-in-the-head problem in 18 2002? What was the probability of that? It was very 19 low. Probability risk assessments only talk about 20 frequency. They do not talk about timing or 21 propensity for something to go wrong.

22What was the probability two months or 23three months ago at Oconee that a whistleblower would 24 step up of hard evidence of a severely degraded dam 25 414 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433upstream that could well engulf Oconee in a flood, and 1 destroy many of its operability features?

2So probability risk assessment, 3statistical analysis is useful, but only up to a 4 point. When you're talking about the mean, the mean 5doesn't exist. It's an average. It is a compilation 6 of all of the possibilities. So the worse scenario, 7worse scenarios are balanced out by the less worse 8 scenarios.

9But if the scenarios are not all 10 encompassed within the analysis, what's the analysis 11 really worth? We respectfully request the following 12 things: That summary disposition be denied as to 13 Contention 4; that in the course of its analysis and 14arrival at a decision, we reallege all of our stricken 15argument; and that the Board take into account the 16evidence of record, even if not properly argued by us 17or any other party, but which nonetheless is reality, 18does provide hints as to the severe deficiencies of 19 the SAMA.20In saying these things, we understand 21fully that this is a circumstance where it's basically 22an economic type of analysis. It doesn't provide some 23 sort of punch list of things that have to be fixed or 24changed, operations or practices altered at Davis-25 415 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 Besse.1But as we have insisted throughout this 2part of the proceeding, there is a reasonableness 3standard that we believe has not -- has been breached, 4and the hard look has not been taken. It is not 5 impossible for the analysis that the Intervenors are 6calling for to be undertaken. It is not unduly, 7horrendously expensive. It's just been ignored.

8 Thank you.

9JUDGE FROEHLICH: Thank you. Mr. Harris.

10MR. HARRIS: Your Honor, to address Mr.

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

12JUDGE FROEHLICH: Well, there's a fan here 13that's also interfering with, especially on this side.

14 So if you could speak a little louder.

15MR. HARRIS: I will. I will attempt to do 16 that. To address first what Mr. Lodge has just 17 suggested, is that I think what we misapprehend here 18 is that the SAMA analysis is designed to look at the 19 plant as a whole and yes, there are these issues about 20the cracked shield building we're going to discuss 21 later, in the next contention.

22But they're not issues that are properly 23involved in this contention here, and in fact the SAMA 24analysis did not credit the shield building for any 25 416 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 mitigative measure in Davis-Besse.

1So whether the shield building is cracked 2is not going to make any difference in the outcome of 3that SAMA analysis. I think that's the important part 4when we start looking at summary disposition and SAMA 5 analysis.

6In summary dispositions, it's correct that 7the party moving for summary disposition bears the 8burden of demonstrating that there's no genuine issue 9of material fact, and that they're entitled to the 10 decision as a matter of law. But that does not mean 11that the party opposing summary disposition can merely 12 rest on attorney argument or allegations that aren't 13 supported.

14You have affidavits from experts 15demonstrating why MAAP produced reasonable source 16terms for that, and those allegations, those 17 affidavits remain uncontroverted by Intervenors.

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

23So in this case, there is no challenge to 24MAAP been suggested that it's a reasonable code. The 25 417 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433staff's own witness has, you know, looked at what MAAP 1generated at Davis-Besse in comparison to similar 2 MELCOR analyses, SOARCA, which also used MELCOR, and 3 those results were roughly the same.

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

14Because just because it's a fact that's 15proposed by FirstEnergy does not necessarily render it 16material for the decision that the Board's going to 17have to make. As the Commission has told, has decided 18and held previously in Pilgrim, I believe it's CLI 11-1908, that the issue for a material issue and a SAMA 20analysis is one that would render a cost beneficial 21 SAMA, a SAMA that has not previously been identified 22 as cost beneficial.

23 That's the issue that we're trying to 24decide, is that if we substituted some other 25 418 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433alternative, we would actually identify some new cost 1beneficial SAMA that has not previously been 2 discovered.

3To address the three issues that the 4 Commission has narrowed for this contention, is that 5the first one is basically has the code been validated 6by the NRC, and my suggestion to the Board is that 7it's not required to be validated by the NRC. Whether 8 or not the code had been validated or not validated, 9 that does not impact the results that were produced, 10 or the reasonableness of the SAMA analysis.

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

16Second, the radionuclide release 17fractions, and we've discussed this, you know, at some 18detail with NUREG-1465, is that that's really probably 19not the best comparison for whether or not a source 20term released into the environment is appropriate. It 21produces anonymously low results because we're not 22accounting for all the different mechanisms that would 23normally be expected to occur when you finally got the 24 source term to the environment.

25 419 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 That's where you would need to really make 1this comparison. If you start accounting for those 2 issues, that the source terms really don't, aren't 3that far apart. We have not compared it for 1465, but 4 of course we did do it, looking at MELCOR and NUREG-5 1150.6 I think that there, you can see that MAAP, 7although it runs quicker, it is producing similar 8results that we would find in MELCOR 20 years ago, and 9including in the state of the art reactor consequences 10that was done, I believe it was finished last year or 11 early this year.

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

19 JUDGE FROEHLICH: Thank you, Mr. Harris.

20MR. O'NEILL: Thank you, Your Honor.

21 Martin O'Neill again for the Applicant. I'd like to 22 note at the outset that I have to echo Mr. Harris' 23claims, that their argument on the shield building is 24simply not within the scope of the admitted 25 420 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433contention, and I think this Board knows well as 1 anybody that it can't hear arguments that exceed the 2 scope of the admitted contention.

3The Board itself has acknowledged that 4this contention is very narrow in scope; it focuses on 5the use of the MAAP code to generate environmental 6source term fees in the SAMA analysis, a very discrete 7 issue and part of a much broader SAMA analysis.

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

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

17It's under NEPA a reasonable, a best estimate type of 18 analysis.19Turning to, you know, the summary 20disposition standards, as Mr. Harris stated, you know, 21the issue is whether there's a genuine issue of 22material fact that warrants further proceedings in 23this particular hearing, and for the reasons stated in 24 our declaration, we don't think that is the case.

25 421 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433NRC regulations Section 2.710(b) states 1that when a motion for summary disposition is made and 2 supported as provided in the section, a party posing 3 the motion may not rest upon the mere allegations or 4denials of his answer. The answer by affidavits or as 5 otherwise provided in the section must set forth 6specific facts showing that there's a genuine issue of 7 fact.8If no answer is filed, the decision, if 9 sought, the decision sought, if appropriate, must be 10 rendered. In this instance, we have an unopposed 11motion for summary disposition, because the 12Intervenors' motion has been stricken as entirely 13irrelevant to the contention, to the arguments made in 14 our motion.

15 It's another way of saying that if FENOC 16has discharged its burden and shown the lack of a 17 genuine material fact, you know, the burden then 18shifts to the Intervenors to, you know, point to 19 specific acts showing the existence of a genuine 20 material dispute, and they simply have not done that 21 here.22I'd like now walk through the three bases, 23as you requested, and you know, the first basis 24 relates to the quote-unquote "validation of the MAAP 25 422 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 code." I think it's very clear from the discussion 1that we've had today that while validation and 2verification may be terms of art or have very specific 3 meanings in the safety context, they're not really 4 defined in the NEPA context.

5However, I think it's very clear that, you 6 know, the qualification or confirmation requirements 7for a NEPA-mandated SAMA analysis seek to ensure that 8the methodology used is complete, and provides a 9reasonable representation of the phenomena of 10interest, you know, in this case, the environmental 11source terms that are used in the Level 3 PRA 12 analysis.13You know, in our view, confirmation of 14this sort can be achieved through comparisons to 15available data sets and comparisons to similar codes, 16i.e., benchmarking of the type discussed in our joint 17 declaration and various supporting attachments, and 18then also as evidenced by acceptance by the nuclear 19 safety community at large and by the regulator.

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

25 423 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 I would add that all that notwithstanding, 1the staff does, you know, a careful independent review 2of the SAMA analysis. You know, they typically issue 3RAIs, do environmental site audits, things of that 4 sort, and you know, they do look at how an applicant 5went about developing the source terms that were used 6 in its SAMA analysis.

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

16It's very clear from the terms of that 17document, NUREG-1465, that the source terms are in 18containment source terms. While NUREG-1465 certainly 19discusses various fission product removal mechanisms, 20 it doesn't explicitly and quantitatively account for 21 those.22The point is that the MAAP4 code does 23precisely that. It does it on a site-specific basis.

24So again, that's why we view it as a reasonable tool, 25 424 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 and do not view NUREG-1465 as an adequate substitute 1 or surrogate.

2 The third basis that Intervenors rely on 3 really goes to their pointing to historical studies, 4 a draft version of -- a 1987 draft version of NUREG-51150, as well as a report by Brookhaven National 6 Laboratory. I think it's very clear that, you know, 7those studies are not particularly instructive in 8terms of how we go about developing plant-specific 9 source terms.

10I think there's, you know, a number of 11flaws in the comparisons. For one thing, the 1987 12draft document text that they rely on wasn't even 13included in the final version of NUREG-1150. Compared 14mean source terms generated with MAAP, with maximum 15source terms generated by MELCOR, and again we're 16talking about a significant gap in time, different 17 models. So it makes a, you know, a direct control 18 comparison very difficult.

19 But with all of that, I think our experts 20and the staff's have shown that even if you were to 21 make the requisite adjustments and try to get a more 22apples to apples comparison, you'd see reasonable 23 agreement in the source terms.

24 So it's on these bases, Your Honors, the 25 425 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433FENOC respectfully submits that summary disposition is 1entirely appropriate in this case, that we've met our 2 burden to show that there's no genuine dispute as to 3a material issue of fact. The Intervenors have not 4 met their reciprocal burden.

5It's clear that they have not brought any 6expert support to bear. In fact, to my knowledge, 7they haven't even disclosed another document relevant 8to this contention, you know, since their original 9 petition was filed.

10 You know frankly, we don't have a lot of 11 assurance in the representation that they'll be able 12to support their case, merely through cross-13examination of our experts, you know, should a hearing 14 prove necessary. Thank you, Your Honors.

15JUDGE FROEHLICH: Thank you, Mr. O'Neill.

16At this juncture, I want to thank all the parties for 17 their argument and statements.

18 It's been extremely helpful to the Board 19on this contention, this very technical contention, 20and we appreciate the efforts that the parties have 21extended to prepare for the argument on the subject of 22 the Motion for Summary Disposition of Contention 4.

23We'll now shift gears and burdens to 24Contention 5, which is a new contention. For those in 25 426 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 the audience, a contention is basically an argument, 1in this case an argument that the Intervenors would 2like to raise during the Applicant's relicensing 3 process.4Well, all right. I think, as I see people 5 shifting, we actually have to go and shift our paper 6 folders for this one. Let's take just a five minute 7 break. We'll come back and start with Contention 5, 8going through. I'll give a brief introduction, and 9then we'll hear opening statements from the 10 Intervenors, staff and the Applicant. Five minutes.

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

12 JUDGE FROEHLICH: Thank you.

13 (Whereupon, the above-entitled matter went 14off the record at 2:12 p.m. and resumed at 2:17 p.m.)

15JUDGE FROEHLICH: Please be seated. We 16will now take up the Intervenors' Motion for Admission 17of a New Contention, a contention having to do with 18 the shield building cracking.

19As I had started to say before we took our 20 break, a contention is essentially an argument that, 21in this matter, the Intervenors would like to make, to 22 raise during the Applicant's relicensing process.

23 The Board has to decide if a contention 24should be admitted into the proceeding. There are 25 427 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433several factors for determining if a contention should 1be admitted. One of these factors is whether the 2motion for admission of the contention is timely.

3 Depending on whether the motion for admission, or 4depending on whether the motion is timely or not 5 determines what other factors are used to decide 6 whether the contention should be admitted.

7The NRC regulations don't define or 8specify an exact number of days in which a new or 9amended contention must be filed in order to be 10 considered timely. However, the NRC has regulations 11permitting the Board to specify a deadline for timely 12 filings within the proceeding scheduling order.

13In this case, in this matter, the Board's 14June 15th, 2011 initial scheduling order provides that 15a motion of a proposed new contention shall be deemed 16timely under 10 C.F.R. 2.309(f)(2) if it is filed 17 within 60 days of the date when the material 18information on which it was based first becomes 19 available.

20The Intervenors argue in their Motion for 21Admission of Contention 5 that it is timely. At this 22point in the proceeding, for a new contention to be 23admitted, the Intervenors must show that the shield 24building cracking contention is based information that 25 428 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433was not previously available, that that information is 1materially different from information previously 2available, and that the contention has been submitted 3in a timely fashion based on the availability of that 4subsequent information. These factors are found at 10 5 C.F.R. 2.309(f)(2).

6The applicant in this case argues that the 7 Intervenors' Motion for Admission of Contention 5 is 8 not timely. If indeed it is not timely, the 9Intervenors must satisfy an eight factor test under 10 10 C.F.R. 2.309(c)(1).

11In addition to filing a Motion for 12Admission of a New Contention on Shield Building 13Cracking, the Intervenors have submitted five motions 14to amend the proposed shield building cracking 15 contention.

16The Board will ask questions of the 17parties on whether these motions to amend should be 18considered timely or untimely. The list of 19requirements previously addressed in reference to the 20 Motion for Admission of the Contention also apply to 21 motions to amend the proposed contention.

22So I suppose we'll be discussing a series 23of dates in the coming hours, and we'll go through 24 that very, very carefully with the parties. At this 25 429 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433point, I'd like to hear from the Intervenors, and 1they're entitled to an uninterrupted ten minute 2 opening statement.

3MR. LODGE: Thank you, Judge Froehlich and 4members of the Panel, opposing counsel and parties.

5I think I'm simply going to respond to the rather 6technical level, rather than make some sort of opening 7 argument that one would make to a jury.

8The proposed contention we anticipate 9showing is timely because it was filed on January 10 10th, 2012, which was five days after a public meeting 11that was convened by the Nuclear Regulatory Commission 12to discuss the cracking phenomena that was under 13investigation and still unresolved and undetermined as 14 to cause.15The information that was learned by 16Intervenors on January 5th, 2012 was that the NRC 17Region III staff explained that one or more cracks 18extended approximately 225 feet, essentially the 19height of the reactor shield building at Davis-Besse, 20that those cracks were numerous, that they were not 21confined to the architecturally decorative elements of 22the building, which was contrary to FirstEnergy's 23 repeated statements in the media throughout October, 24 November and December of 2011.

25 430 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 I would like to point out, and we will be 1returning to this point, but when the Board is 2considering timeliness, the Board also has to consider 3of course the regulations of the NRC, that limit, 4constrict the scope of this kind of proceeding to age-5 related matters.

6This is a license renewal, of course, and 7thus it is not effective, not useful to talk simply in 8terms of when did the public know about cracking. The 9public knew about cracking, at a minimum from the 10 Toledo Blade and other regional media, in 11approximately October 12-13 of 2011, that there was 12 cracking.13But the responses and the statements made 14by FirstEnergy and ultimately echoed, to some extent, 15by the NRC staff, were that the cracking is cosmetic.

16 It's occurring in cosmetic, if anything, redundantly 17thick architectural flutes on the shield building 18 itself.19The shield building, as the Panel probably 20knows by now, is approximately 30-inch thick concrete.

21But the architectural flutes that we're talking about 22 add an additional 18 inches of thickness.

23 So when it is said in the press that 24there's no problem here really; these are occurrences 25 431 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433that are in decorative or cosmetic architectural 1features, it's Intervenors' contention that that news, 2 while it's a little troubling, doesn't require the 3 public, that the Intervenors need to ascertain or 4discover at that moment, since they know no more than 5 what the regulator and the utility itself knows.

6The public isn't obliged to run into 7 court, as it were, and file a new contention. So we 8 didn't. We waited for information. We carefully 9monitored the NRC websites and other websites. We 10looked for information. We certainly tried to keep up 11 with media reports, of course.

12Thus, when it was reported, I believe 13November 1st of 2011 in the local press, in the Toledo 14 Blade that an investor advisory letter had gone out 15 from FirstEnergy to investors, that letter continued 16 with the same theme.

17Yes, there's been a few minor cracks 18outside of architectural flutes, but the major and 19 they weren't even calling it major cracking, but the 20 main part of the cracking that's been discovered was 21in architectural features. "Non-structural cracking" 22 was the term.

23So by November 1st, again, Intervenors are 24 reading, trying to stay up with what's going on, but 25 432 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433certainly not obliged to come screaming to the NRC 1 Board that there's a terrible problem here.

2And in fact, the Intervenors have 3representatives that attended the January 5th meeting, 4where some tough questions were asked and to some 5extent answered by the Region III staff and the 6 utility. At that point, it became clear enough, we 7believe, that there was cracking of a structural sort 8that may provide clues or indicators or hints that 9 there is a larger problem here.

10Pursuant to that, the Intervenors filed on 11approximately January 26th a Freedom of Information 12Act request, propounded to the Nuclear Regulatory 13 Commission, requesting documentation internal to the 14NRC, up through the date at the end of January of 15 2012. It was months before that information was 16 forthcoming.

17 So we filed our January 10th motion. We 18supplemented that in February, I believe about 19February 8th. I may be wrong that. Pardon me, 20February 18th, with a motion to amend or supplement 21our initial motion, pardon me February 27th. Correct 22 me again.23We later saw the root cause analysis dated 24 February 28th, 2012, and we later saw the April 5th 25 433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433aging management plan that was propounded, and saw 1additional documents by Performance Improvement 2 International in May. We also came across a revised 3root cause analysis that was published by the utility 4company in May, and we began to receive, only in early 5June 2012, responses to our Freedom of Information Act 6 request.7We intend to show and believe that the 8record actually shows rather clearly this point, that 9all of those supplemental filings were timely, in that 10they were within, and in many cases within well within 11the 60-day window set by the Board's February 2011 12 Order.13 Therefore, we believe the initial filing 14was certainly timely, that the supplements were 15additionally timely. We believe that we, as 16Intervenors, had an obligation not to waste the 17 Board's resources, not to waste time sounding merely 18 alarms. 19We filed a cracking contention and its 20supplements with the utmost seriousness, and as the 21Board and parties can tell, enormous factual evidence, 22we believe, emerged in the form of the Freedom of 23 Information Act responses from the NRC, which are 24 incidentally not yet complete.

25 434 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433The last supplemental response we received 1 from the staff in July indicated that there was more 2yet to come. We believe also that there's an argument 3that we filed way early, because the aging management 4 plan is only about to be implemented.

5The shield building has been painted.

6 There's supposed to be core drilling, more analysis, 7more investigation. There's supposed to be some type 8of report, and as I indicated in the argument related 9to SAMA, there's supposed to be some type of 10demonstration by FirstEnergy in December of 2012, 11showing that the shield building, that the facilities, 12once again, are in conformance with its licensing 13 expectations.

14We believe that the Intervenors' filings, 15 individually and collectively, demonstrate issues of 16fact with the environmental report, that indeed there 17 are environmental, i.e. NEPA aspects to the cracking 18problem, that in effect, even by propounding its aging 19 management plan, that we believe that our contention 20is well within the scope of the permissible 21considerations that the Board must cover in its 22 licensing deliberations.

23We also believe that this is an incredibly 24serious issue, that if the public is to rely on the 25 435 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 technical calculations and estimates provided by the 1regulatory staff here, that even a minor earthquake 2event or an accident scenario involving high heat with 3the shield building itself could cause major rapid 4crumbling and deterioration, and thus compromise of 5the filtering and sweeping capabilities presently, 6supposedly, theoretically afforded by the shield 7 building.8We believe that the margin of safety is 9seriously compromised, that if there is an issue of 10utmost importance in this proceeding, that involves 11perhaps immediate questions of public health and 12 safety, this is that issue. Thank you.

13 JUDGE FROEHLICH: Mr. Matthews.

14MR. MATTHEWS: Thank you, Your Honor.

15 Again, I'm Tim Matthews. With me, joining me at 16 counsel table with Mr. Jenkins is Stephen Burdick of 17my firm. We do intend to address the Board's 18questions in the prehearing order in our discussion 19 today, but first, I'd like to return to my earlier 20discussion of some themes in this proceeding, because 21 they directly relate to the contention before us.

22JUDGE KASTENBERG: Can I ask you to put 23 the mic up. When this fan comes on --

24MR. MATTHEWS: Absolutely. Is this any 25 436 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 better?1JUDGE KASTENBERG: Yes, that's much 2 better. Yeah.

3MR. MATTHEWS: Thank you. It brings me no 4 joy to be accused of the Grinch Who Stole Christmas, 5but some of the reasons the Intervenors may feel that 6 they're on the outside looking in is because they've 7 chosen, by their actions, to put themselves there.

8The themes I addressed this morning are 9important to this contention as well, even more so 10 where the Intervenors bear the burdens of production 11and persuasion. The Intervenors must produce facts 12and supporting information in showing -- that together 13must demonstrate a material issue of law sufficient 14 for litigation in an evidentiary hearing.

15Referring back to the Commission's recent 16formulation, Intervenors must demonstrate that they 17have supported a genuine, material controversy, and 18that they'll be knowledgeable litigants. The first 19theme I referenced earlier is respect to continuing 20failure to adhere to the Board's requirements, and 21 those of the Commission.

22For example, several of Intervenors' 23pleadings related to the shield building laminar 24cracking, have been filed without certification of 25 437 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433consultation, without adequate consultation, or in 1 some cases with no consultation at all.

2 Under 10 C.F.R. 2.323 Bravo, the sincere 3effort to confer with the other parties and resolve 4the issues is not an option, and the regulation 5compels dismissal of the contention if that 6 certification is not made.

7This is not a new issue in this 8 proceeding, or as it relates to this contention. In 9fact, the Board cited that very deficiency prior to 10this contention in connection with the Intervenors' 11Fukushima contention. Intervenors continued to ignore 12 the requirement in this proceeding.

13 The Board should uphold the Commission's 14requirements and its own initial scheduling order, and 15dismiss any motion or supplemental motion without 16 certification of proper consultation.

17The Intervenors repeatedly time their 18filings for the last minute of the last hour of the 19last day permitted on the initial scheduling order, 20which is their right. However, when they fail to 21complete their filings in a timely manner, they appear 22to expect the accommodations of the Board and the 23 parties.24The Board has admonished the parties that 25 438 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the timing requirements in the initial scheduling 1order are to be rigorously applied. Accordingly, the 2 Board should reject the untimely pleadings.

3The Intervenors frequently cite new 4documents, recycling previously-available information 5as an alleged basis for timeliness of information 6 contained within. The initial scheduling order, the 7regulations and Commission precedent are not ambiguous 8on this. Only new material information can support 9 timeliness.

10Old information restated in a new document 11cannot support a new contention under 10 C.F.R. 122.309(f)(2) or Charlie. With respect to challenges to 13 the existing Commission rules, Intervenors are aware 14of the requirement to seek a waiver from the 15 Commission to challenge Category 1 issues in the 16 generic Environmental Impact Statement.

17 In fact, they cite to it in their initial 18motion to admit the contention. Inexplicably, they 19never filed that waiver. Accordingly, the 20environmental aspects of the proposed contention must 21 be rejected.

22The second broad theme relevant to this 23contention that I raised this morning is the 24Intervenors' lack of support for this proposed 25 439 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 contention. As FirstEnergy and the staff have noted 1repeatedly in their briefs, and as the Commission 2recently reminded the Intervenors regarding Contention 31, notice pleading is not sufficient for NRC 4 adjudicatory proceedings.

5The Intervenors must provide some 6 supporting basis for the factual assertions of their 7counsel and representatives. The shield building 8laminar cracking phenomena is a complex technical 9 issue. It required highly experienced experts from 10FirstEnergy, the industry, major universities and the 11 NRC to determine the causes.

12Intervenors provide only layman's 13speculation that penetrations through the concrete may 14have played some role. Unsupported speculation is not 15sufficient to support admission of a contention. The 16multiple supplements Intervenors cite -- in their 17multiple supplements, they cite out of context 18statements made by FirstEnergy's or the staff's 19technical experts, in their process of studying the 20 issues.21 The conclusions of FirstEnergy and those 22 of the NRC staff are contained in their own reports, 23issued at the completion of their evaluations.

24Perhaps more importantly, akin to reliance on the NRC 25 440 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 staff's RAIs, Intervenors may not rely on these 1materials alone. Rather, Intervenors must bring their 2own issues, their own supporting bases. They've done 3 neither.4There are two fundamental questions the 5Board needs to address in this argument today, because 6they go directly to the question of whether 7Intervenors have carried their burdens in proposing a 8new contention related to the shield building laminar 9 cracking phenomena.

10The first is have the Intervenors any 11material issue with respect to any aspect of the 12Davis-Besse license renewal application or 13environmental report, or rather have they simply 14expressed general dissatisfaction with FENOC's 15 resolution of the issue, and with NRC's review.

16Second, if the Intervenors have identified 17a specific material issue in dispute, in direct 18contravention of either of those reports, have they 19provided adequate technical basis for that dispute, as 20 the Commission has defined that standard.

21FirstEnergy respectfully submits that the 22answer to both of these questions is a resounding no.

23Accordingly, the proposed contention related to shield 24building laminar cracking must be dismissed. I'd like 25 441 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433to briefly turn to a little background on the 1 contention in my remaining time.

2 More than a year ago, when Davis-Besse 3personnel identified concrete laminar cracking near 4the outer face of the reinforcing steel of the shield 5building, they promptly informed management and 6 FirstEnergy promptly informed the NRC.

7FirstEnergy undertook a comprehensive 8 evaluation to ensure the ability of the shield 9building to preform its intended functions of 10biological shielding, missile shielding for the 11containment vessel, and providing a means of 12 collecting and filtration of fission product leakage 13 into the annulus during accident conditions.

14 The shield building is not designed as a 15secondary containment in the event of accident 16 conditions, notwithstanding Intervenors' speculation 17to the contrary. NRC reviewed FENOC's operability 18 evaluation and did not opposed restart of the plant.

19 FirstEnergy undertook an exhaustive root 20 cause evaluation of the laminar cracking phenomenon, 21considering all potential issues, including those 22related to time-dependent aging phenomena such as 23thermal cycling. FENOC's root cause analysis 24concluded that the laminar cracking phenomenon was the 25 442 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 direct result of the blizzard of 1978.

1Specifically, one root cause, the absence 2 of a coating on the exterior of the shield building, 3and three contributing causes: storm conditions of 4wind-driven rain and rapid freezing and the stress 5concentration factors at the exterior flute shoulders 6and at the dense rebar spacing, such as at the main 7steam line penetrations and also at the upper 20 feet 8 of the shield building.

9The independent laboratory analysis 10supporting the root cause evaluation eliminated the 11possibility of time-related aging factors as a 12 contributor to the laminar cracking phenomenon. The 13 independent analyses showed no micro-cracking in the 14 area of laminar cracking.

15As explained in the root cause evaluation, 16micro-cracking would have been indicia of cracking 17caused by thermal cycling. FENOC's root cause report 18puts to rest the origin of the laminar cracking 19 phenomenon. Intervenors have presented no technical 20challenges to FENOC's method or conclusion, that their 21counsel does not agree with the report's conclusion is 22 of no import to this Board. They provide no support 23 for the disagreement.

24The NRC staff thoroughly evaluated both 25 443 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433FENOC's restart decision and the root cause 1 evaluation. Their conclusions are documented in the 2NRC's inspection reports. The proof of the NRC 3 staff's thoroughness is demonstrated in Intervenors' 4third and fourth supplements, in which they 5demonstrate the staff asking probing questions and 6 posing hypotheticals during their review.

7FENOC's revisions to the root cause report 8 and underlying Performance Improvement International 9report also reflect the addition of supporting and 10corroborating information. No conclusions changed, 11and the staff agreed that the changes were not 12 material.13What is important to this Board is that in 14the end, the NRC staff's own inspection reports speak 15for the staff's conclusions, not Intervenors' 16 selective and out of context quotes of random emails 17obtained through the Freedom of Information Act.

18 Those reports support the reasonableness of the root 19 cause efforts and its conclusions.

20Even though FirstEnergy concluded that the 21 laminar cracking of the shield building was not age-22related, FirstEnergy added a new aging management 23program to its license renewal application, 24specifically to monitor laminar cracking for any 25 444 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 indication of development of time-dependent aspects.

1 The shield building AMP was added on top 2of the existing structure's AMP, that evaluates the 3more routine aspects of aging of structures, including 4concrete structures such as the shield building. The 5shield building AMP periodically evaluates cracked and 6 uncracked areas of the shield building, for evidence 7of widening of the laminar or expansion of the laminar 8 cracks into previously uncracked areas.

9In the multiple inspections to date 10conducted under current licensing requirements, no 11evidence of potential aging effect has been detected, 12such as widening or propagation of the laminar 13 cracking.14 Intervenors' burden at this stage of the 15proceeding is to produce sufficient factual support to 16create a material issue of fact that the cracking 17 phenomenon is age-related and if it is, that 18FirstEnergy's shield building AMP is not sufficient to 19 address it for the period of extended operation.

20 Significantly, Intervenors have identified 21no challenge either to the need for an AMP or the 22adequacy of FENOC's AMP to detect and address any 23aspect of the laminar cracking phenomenon, regardless 24 of its cause.

25 445 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433The fact that the NRC license renewal 1 staff is performing a thorough review of the license 2 renewal application by submitting RAIs does not make 3a contention. RAIs are the normal process of the 4 staff's work. Intervenors do not simply point to an 5 RAI as supposed basis.

6Rather, they must provide their own issue 7and their own support to state admissible contention.

8So in closing, I return to the two ultimate questions 9 before us today. First, as it relates to the shield 10building and laminar cracking phenomenon, have the 11Intervenors presented any material issue with respect 12to any aspect of the Davis-Besse license renewal 13 application or environmental report.

14Second, if they have identified such a 15specific material in dispute, in direct contravention 16of those documents, have the provided the adequate 17technical support for that dispute that the Commission 18 has defined? Would they be knowledgeable litigants?

19 Again, clearly they have not.

20Accordingly, the proposed contention must 21be rejected. We look forward to discussing the 22 Board's questions. Thank you.

23JUDGE FROEHLICH: Thank you, Mr. Matthews.

24 Ms. Kanatas.

25 446 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433MS. KANATAS: Good afternoon, Your Honors.

1May it please the Court, my name is Cathy Kanatas, and 2I represent the staff in this proceeding. As Judge 3Froehlich noted and as Mr. Lodge noted, the purpose of 4 today's oral argument on proposed Contention 5 is to 5determine whether the Intervenors have met their 6burden of the contention admissibility standards that 7apply, whether or not they have shown that the 8 contention has been timely filed, and whether or not 9they show that the contention meets the contention 10 admissibility standards in 2.309(f)(1).

11I might be repeating some of what's 12already been said by the parties, but I think it's 13important for me to walk through why proposed 14Contention 5 should not be admissible, as the staff 15 initially did take the position that a portion of it 16 could be found admissible when it was filed.

17 Today though, the Board should find that 18this contention is inadmissible. Regardless of 19whether you call these motions amendments or 20supplements, and regardless of whether all of the 21 pleadings were timely, none of the challenges in any 22of Intervenors' motions raise a genuine material 23dispute with the application, and for that reason, 24Commission precedent demands that the proposed 25 447 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433contention, as supplemented or amended, be dismissed.

1When Intervenors initially filed the 2contention, they did raise a single admissible claim.

3Specifically, they raised a safety license renewal 4concern that FENOC's application did not indicate how 5the effects of aging on the shield building will be 6adequately managed, so that the shield building's 7intended functions would be maintained consistent with 8the current licensing basis for the period of extended 9 operation.

10 So the staff agreed that that portion of 11the contention could be admitted. The reinforced 12concrete shield building which surrounds the free-13standing steel containment vessel, is a structure 14within the scope of the staff's safety review, and it 15 requires an aging management review.

16At the time the contention was filed, 17FENOC's application did not indicate how an aging 18management program would manage any aging effects 19 associated with this specific cracking. Because the 20staff must find reasonable assurance that the effects 21of aging will be adequately managed, this did raise a 22 genuine material dispute with the application.

23In fact, the Intervenors, the staff had 24already asked questions regarding this on December 25 448 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-443327th, 2011, and those questions were incorporated into 1 Intervenors' initial motion.

2 However, the staff opposed the remaining 3portions of the Intervenors' contention, as those 4claims -- as Intervenors raised claims outside the 5scope of this proceeding, including claims that the 6 restart and operation of the plant are unsafe, given 7the shield building cracking, that the staff's review 8of the issue has been inadequate, and that challenges 9 to the non-conforming nature of the shield building, 10given the cracks, as well as challenges to generic 11environmental findings codified in the Commission's 12 rules.13The Intervenors also made several 14unsupported and immaterial claims that the 15environmental report was inadequate, and that the 16 staff's environmental impact statement would have to 17 discuss this cracking.

18Therefore, the only admissible portion of 19the Intervenors' initial filing was the safety concern 20 that the license renewal application did not discuss 21how any aging effects associated with these cracks 22 would be managed.

23 As you heard, on April 5th, FENOC 24submitted its plan for managing that cracking, despite 25 449 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433finding that the mechanism of the cracking was not 1 aging-related. Specifically, they submitted and 2 amended their application to provide shield building 3 monitoring AMP.

4Therefore, the admissible portion of 5Intervenors' contention became moot, and had to be 6 modified or dismissed. The Intervenors seemed to 7recognize this, as they filed and were granted a 8 motion to vacate oral argument in May, so that they 9could file an amended contention regarding the shield 10building, based on the shield building monitoring AMP.

11Intervenors, as you heard, then filed 12multiple supplements, claiming that there was new and 13materially different information regarding the shield 14building monitoring AMP, and cited to the root cause, 15the revised root cause, the PII report, FENOC's -- I'm 16sorry, the FOIA documentation, as well as the April 17 5th shield building monitoring AMP.

18However, instead of raising specific 19 supported challenges to the adequacy of FENOC's plan 20to manage aging, Intervenors used their supplements as 21a way to rehash their out of scope, immaterial claims 22 about why the cracking made the shield building non-23functional, unsafe to operate now, why this was an 24inadequate investigation and other claims that are 25 450 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433clearly outside the scope of this limited license 1 renewal proceeding.

2In the last of those supplements was filed 3on August 16th, the fifth supplement based on the FOIA 4 documents. On that same day, FENOC submitted a 5revised shield building monitoring AMP, which was 6served on the parties on August 17th. The staff fully 7 expected the Intervenors to file an amendment, given 8 that the shield building monitoring AMP replaced the 9April 5th AMP in its entirety, and the Intervenors 10 mentioned in an August 24th reply that they may well 11 do so.12 They have not done so. They have yet to 13raise a challenge to either the April 5th or the 14August 16th AMP, or offer any other admissible 15challenge to the application. Therefore, there is no 16 genuine material dispute with the application.

17Intervenors leave the parties guessing as 18to the nature of the deficiencies in FENOC's plans to 19 manage aging, and as to how any of these claimed 20deficiencies would impact the staff's decisions of 21reasonable assurance and other license renewal 22 findings.

23 Our contention admissibility rules require 24more than this. Our adjudicatory proceedings are 25 451 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433limited to issues material for the staff's review.

1Intervenors' proposed contention does not raise a 2single material dispute. For these reasons, the 3 proposed contention, as supplemented or amended, and 4whether timely or not timely, must be dismissed.

5 Thank you, Your Honors.

6 JUDGE FROEHLICH: Thank you. It appears 7 that we have two types of challenges to the proposed 8contention dealing with shield building cracking. One 9is more procedural, and I believe that's what Mr.

10Matthews was alluding to, being the timeliness of the 11 filings and the lack of consultation, that being the 12 procedural aspects of challenges.

13 We also have, I guess, the substantive 14questions that the staff spoke to somewhat more, on 15whether they meet the 2.309 requirement for contention 16 admissibility in general.

17I suppose to move through these in a 18 logical manner, perhaps we'll take up the timeliness 19and consultation challenges, the procedural challenges 20first, and then move onto the more substantive aspects 21of the challenge and the 2.309(f)(1), 1 through 6, 22 requirements.

23So that we're all starting, I guess, from 24the same point, the cracks were discovered by FENOC on 25 452 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433October 10th, 2011, and I guess there a number of 1 intervening -- information was put forward through a 2series of newspaper articles, I suppose, and a letter 3 to the investors that FENOC had sent.

4 Then there was, I guess, a significant 5even being the Camp Perry meeting of January 5th, 62012, which the Intervenors rely on as the trigger for 7when they first received, I guess, the substantive 8scope of the cracking, followed by their motion to 9admit to the contention, which was filed on January 10 10th.11All right. Mr. Lodge, if I understand 12your approach to this, the information that was in the 13 possession of the Intervenors was, as you had stated 14in your opening statement, that they were decorative, 15 cosmetic-type cracks, and that the Intervenors could 16not comprehend the full impact of these cracks or the 17significance of these cracks until that meeting in 18 Camp Perry on January 5th. Do I understand?

19 MR. LODGE: Yes sir, yes sir.

20 JUDGE FROEHLICH: Now what was different 21on January 5th that the Intervenors were unaware of or 22FENOC had not disclosed prior to that? I guess we'll 23have to go through the events that occurred, which Mr.

24Matthews would have us believe that that gave 25 453 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433sufficient notice for you to bring forth your 1 contention at an earlier date?

2 MR. LODGE: Thank you. Perhaps the best 3benchmark statement was in the FirstEnergy letter 4dated October 31st, 2011 to the investment community, 5 which I've referred to and you have, Your Honor.

6 JUDGE FROEHLICH: Yes.

7MR. LODGE: In that letter, now this is 8 October 31st, the formal statement by FirstEnergy is 9that, and I'm quoting, "During investigation of the 10crack of the shield building opening, concrete samples 11and electronic testing found similar subsurface 12hairline cracks in most of the building's 13 architectural elements.

14"The team of industry-recognized 15structural concrete experts and Davis-Besse engineers 16evaluating this condition has determined the cracking 17does not affect the facility's structural integrity or 18 safety." We relied on the veracity of that statement, 19but continued to look for -- cynics that we are --

20 continued to look for additional information.

21Throughout, and I don't have all of the 22press articles with me, but throughout the month of 23 November or during the month of November, there were 24other mentions in the media of -- wherein the NRC 25 454 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433staff was effectively saying that it will insist upon 1understanding the root cause of the cracking prior to 2allowing start-up, which changed somewhere between 3approximately November 18-26, 2011, and a confirmatory 4 action letter was issued on December 2nd, and actual 5 start-up commenced on December 5th.

6And then, as I indicated in an opening 7statement, and as we argued in the initial motion, on 8January 5th, we learned from Region III staff 9statements made in the public domain effectively, that 10one or more of the cracks extended 225 feet, in other 11words, approximately the height of the shield 12building, and that the cracks were numerous, not 13 confined to the architectural elements.

14JUDGE FROEHLICH: That first mention, I 15 guess, of the 225 foot crack?

16 MR. LODGE: Yes.

17JUDGE FROEHLICH: That came about at what 18 date?19 MR. LODGE: January 5, 2012.

20 JUDGE FROEHLICH: And that was at the 21 meeting at Camp Perry?

22MR. LODGE: Yes, convened by the Region 23 III staff.

24JUDGE FROEHLICH: And also, I guess, at 25 455 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433that meeting, the cracks that were discussed were 1different from or described differently that they had 2 been before?

3 MR. LODGE: Yes.

4JUDGE FROEHLICH: And to what do you point 5 in the January 5th, I guess, slides or in the 6 discussion that took place there, that these cracks 7were other than the originally, I guess, reported 8cosmetic or decorative, but cosmetic or decorative 9 elements and --

10MR. LODGE: If memory serves, Congressman 11Kucinich was there and asked several questions at the 12outset of the meeting, after a presentation slide 13show, and asked if there was cracking beyond the 14architectural elements. The response essentially was 15 yes. 16 Unfortunately incidentally, and 17surprisingly to us, this was not a transcribed public 18 meeting. It was not recorded in any official means.

19Therefore, I can't point to a page of a transcript and 20show you that those statements were made. However, 21 I've not seen any denial that those representations 22 were made by the Region III staff either.

23JUDGE FROEHLICH: Is there anything in the 24slides presented by FENOC, or the slides presented by 25 456 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 the NRC staff, that you rely upon in your allegations 1that these cracks were other than decorative or 2 cosmetic or in the architectural flutes?

3 MR. LODGE: If I may just have a moment 4 sir.5 JUDGE FROEHLICH: Certainly.

6 (Pause.)7MR. LODGE: I don't know how responsive 8 this may be to you, Your Honor, but in a subsequent 9 filing by the NRC, that being a -- pardon me --

10January 31st, 2012 letter to Barry Allen from the 11 Region III office, which essentially gave the report 12 of an integrated inspection by the staff, there is a 13 statement at page 48 of the PDF.

14JUDGE FROEHLICH: Mr. Lodge, where are you 15 reading from?

16MR. LODGE: I'm sorry. January 31st, 2012 17 inspection report, and it's on the actual page 48.

18JUDGE FROEHLICH: And the date was January 19-20MR. LODGE: January 31st, and it's 21attached to our February 27th motion to amend. Now I 22 understand this is after January 5th.

23JUDGE FROEHLICH: Right, and it's after 24 January 10th, when you made your filing.

25 457 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 MR. LODGE: Correct.

1 JUDGE FROEHLICH: What I'd like to do is 2focus on the January 10th date, which is you allege is 3timely, and which Applicant is telling us was 4 untimely. So need to focus on what information came 5into your possession and when. To answer this, it 6should be before January 10th, because this is the 7 pleading. We're beginning to analyze whether it was 8 timely.9MR. LODGE: Sure, correct. Well, one 10 moment.11 (Pause.)12JUDGE FROEHLICH: Our response effectively 13is what I indicated, that statements were made at that 14meeting on January 5th. We filed within five days 15after that, and as I indicated, there was nothing, and 16 I haven't seen any real viable argument by the other 17 parties saying that we should have been on notice at 18 an earlier date of anything but cracking.

19As I indicate, the differences, we believe 20that the structural cracking, not the cosmetic, 21architectural type, was the issue that needed to be 22 brought to the attention of the Licensing Board.

23We subsequently and in the January 31st 24inspection report certainly backs up the fact that in 25 458 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 October of 2011, the staff identified, I think, a 20 1foot crack in the upper 20 feet of elevation of the 2 shield building.

3But again, that was something that was not 4 in the public domain until on or after January 31st, 5 2011. But it retrospectively confirms that there were 6structural problems that were not being disclosed 7 publicly.8JUDGE TRIKOUROS: So Mr. Lodge, your 9pleading specifically says "Only on January 5th was 10the public told by NRC Region III staff, at a 11 presentation convened at Camp Perry," etcetera, that 12 the situation was more severe.

13JUDGE FROEHLICH: Judge Trikouros is 14 reading from page eight of your Motion to Admit.

15 MR. LODGE: Yes, I have it.

16JUDGE TRIKOUROS: The FENOC indicates 17that, and this is in their answer to the motion, I 18believe it's on pages 13 through 16 of that answer.

19They said -- this is referring to their initial 20statement, that October, early October would have been 21 the appropriate start point or trigger point.

22I guess they mention an October 12th date, 23but they indicate that "Even if the timeliness of the 24motion was not based on the initial public 25 459 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433disclosure," and they mention October 12th, "the 1 motion still would be untimely.

2This is because a significant amount of 3detailed information about the shield building 4cracking was available from other sources more than 60 5 days before the motion was filed." 6 Now can I ask FENOC, what other sources 7 are we talking about here, because as far as I know, 8 they're not identified.

9MR. MATTHEWS: Thank you, Judge Trikouros, 10and I'd like to address that specifically, but I'd 11also like to frame the question in the requirements of 12this Board. The initial scheduling order talks about 13 what the trigger is, if you will.

14It's when the information first becomes 15 available. So it's not actual knowledge, it's 16availability, "of information to the moving party 17through service, publication or any other means." 18 That's the initial scheduling order.

19 So it's not when the NRC sent it to them 20by certified letter; it's when they -- it was 21available to them, and in many places they've said 22they had it. In answer to your question, Judge 23Trikouros, the Intervenors, in their initial pleading, 24 tell us that they had the information on October the 25 460 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12th from the Plain Dealer

.1 They now say well, we had partial 2information; that wasn't sufficient. This 3conversation demonstrates the risk of argument from 4 memory. The October 31st FENOC media advisory that 5 went very broadly to the investment community, has a 6 section that Intervenors don't discuss.

7"Our investigation also identified other 8indications, including among them were subsurface 9laminar hairline cracks in two localized areas of the 10shield building, similar to those found in the 11architectural elements. We have not determined these 12two areas are not associated with the architectural 13element cracking, and are investigating them as a 14separate issue. Our overall investigation analysis 15 continued."

16Now Intervenors will have us believe, and 17perhaps that is a recollection, that they didn't think 18it was structural until January the 5th. But their 19 initial pleading says differently. I've jumped to 20your cite, Judge. I need to go back in our answer, 21rather, the initial pleading. Bear with me one 22 moment.23The initial pleading walks through when 24 the information, when they had the information, and 25 461 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433they talk in some detail about what information was in 1 the Plain Dealer article on that date. They also 2refer to one on October the 21st, that's discussing 3conclusions of David Lochbaum of the Union of 4Concerned Scientists, who's talking specifically about 5 structural issues.

6The Intervenors argue that evidence has 7 appeared that indicates -- referring to that article 8-- that cracking actually involves not only 15 of 16 9architectural concrete structures, but also of an 10inextricably intertwined relationship among those 11architectural structures, and the rest of the concrete 12 shield building itself.

13 To put a finer point on it, and I'm 14 reading from page 17, "However, as indicated in 15 paragraph 18 below, FENOC itself admitted additional 16cracks in "structural parts," that's emphasized, 17 structural parts "of the concrete shield building in 18 a letter to Intervenors on October 31st, 2011.

19"Intervenors recognized in their initial 20pleading that the October 31st submittal discussed 21 structural concrete, structural cracking, structural 22 concerns." 23It's also the error of speaking from --

24potential error of speaking from memory, and it may be 25 462 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433a misunderstanding, because it's reflected in their 1pleadings as well, but the January 5th public meeting 2didn't announce, by the NRC staff or FENOC, that there 3 was a 225 foot crack.

4 There is not, and there has not been a 225 5foot crack. FENOC assumed, for purposes of analysis, 6for the -- beyond the scope of this proceeding, but 7for the current licensing basis calculation, to 8evaluate the operability of the shield building, to 9evaluate its structurability. FENOC conservatively 10assumed that the crack extended 225 feet for the 11purpose of performing its structural analysis, and 12 concluding that the building was structurally sound.

13 So this, by their own pleadings, we have 14to go back to if not October the 12th, certainly 15October the 21st, where they're citing David Lochbaum.

16If we can't rely on that, then October 31st, where 17they clearly say it was structural. In any case, 18they're all more than 60 days, predating the filing in 19 January.20JUDGE TRIKOUROS: How was the Lochbaum 21 letter available? Addressing this to Mr. Lodge, how 22was the Lochbaum letter available to you? Was that 23 something that was sent to you by him?

24 MR. LODGE: Mr. Kamps will answer that.

25 463 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433MR. KAMPS: Thank you. Kevin Kamps for 1the record. Well yeah. We are in communication with 2David Lochbaum in a general sense, so things are sent 3and clearly explained, and another milestone moment 4that hasn't been mentioned is February 8th of 2012, 5when Representative Dennis Kucinich of this area 6clearly explained to the public the structural nature 7 of the cracking.

8JUDGE FROEHLICH: I'm sorry, Kucinich.

9 What was the date?

10MR. KAMPS: February 8th of 2012, 11Representative Kucinich clearly explained the 12structural nature of the cracking to the public, 13 including us, something that NRC and FirstEnergy had 14not done. We have to piece together bits and pieces, 15 little spurts of information.

16I mean one moment of that is October 31st, 17when a major letter is sent by FirstEnergy to the 18investment community, admitting certain things but not 19 other things, that are also dated October 31st. Not 20clearly communicated, cracking in the upper 20 feet of 21the shield building is not clearly communicated in 22that letter. But that is the date that it was 23 supposedly documented there.

24So I know how to add 60 now after this 25 464 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 proceeding. So October 31st to December 31st, that 1would be that deadline. Little spurts of information.

2The significance of the Camp Perry meeting, January 35th, is Barry Allen of FirstEnergy admits what counsel 4just mentioned, that is for calculational purposes, a 5 crack of 225 feet in height.

6 The first time that those words were 7 uttered in the hearing of the public, including 8Intervenors, which makes you sit up and take notice 9when you hear something like that, had not been 10communicated previously before that moment on January 11 5th.12Another interesting date was December 15th 13of 2011, when the Nuclear Regulatory Commission had 14announced a public meeting that we were very much 15looking forward to, because we had so little 16information to go on. We're very much looking forward 17to December 25th or December 15th, 2011, and then that 18 is suddenly postponed until January 5th.

19We don't know why it was postponed. We 20don't know why it was announced for December 15th. So 21we have very little information. We're piecing the 22puzzle together. There is no clear communication from 23 the NRC, who's mandated to protect public health and 24 safety to the public.

25 465 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Another important date is November 17th 1 and November 19th. On November 17, Viktoria Mitlyng 2of Office of Public Affairs, Region III, tells the 3 Toledo Blade newspaper that this issue will be 4 completely resolved before restart is allowed. Then 5 two days later, she says "It's FirstEnergy call when 6 they restart this plant." 7 Then we find out the hard way on December 82nd how serious NRC was about those words. They 9issued a confirmatory action letter allowing restart, 10 when promises had been made, via the media, that the 11root cause of the cracking will be understood, the 12extent of the cracking will be understood, and the 13 corrective actions will be understood before restart 14 is allowed. That obviously was not true.

15So our wake-up call, I mean you're asking 16 for a trigger date. A really big trigger date would 17have been December 2nd, when NRC totally threw out its 18previous commitments, and allowed restart. We knew 19 certainly by December 2nd, we knew by November 19th, 20when Vikka Mitlyng said "No, it's their call." We 21 know that we were in trouble at that point.

22So when November 19th plus 60 is December 2319th, January 19th. So our timeliness is being 24 questioned. It's incredible to me. We worked long 25 466 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433hours to generate that January 10, 2012 contention 1 filing. That took round the clock work to turn that 2 around that quickly.

3JUDGE TRIKOUROS: When did you put pen to 4 paper, so to speak, on that January 10th pleading?

5MR. KAMPS: The morning of January 6th, 6after recovering from a very grueling, all-day January 7 5th public meeting, that got out very late at night.

8JUDGE TRIKOUROS: And was it based 9 entirely on the January 5th meeting, or was it based 10 on all these other things that you mentioned?

11MR. KAMPS: It was based on the public 12record up to that point, and us piecing the puzzle 13 together.14MS. KANATAS: Your Honors, if I may. I'm 15 sorry. This is Cathy Kanatas. I'd like to clarify 16for the record what exactly Viktoria Mitlyng said.

17It's referenced on, in Intervenors' initial motion.

18 They're citing to a November 17th Toledo Blade 19article, and it's quoting Ms. Mitlyng saying "Until we 20have confidence that the cracks in the shield building 21don't have any safety implications, the plant won't go 22 back online." 23 That is not the same as saying the plant 24cannot restart until the root cause is known. So I 25 467 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433just want to clarify that for the record, and the 1December 2nd CAL concluded, based on an evaluation of 2FENOC's extent of condition and technical analysis of 3the Davis-Besse shield building laminar cracking, the 4NRC staff concluded that FENOC provided reasonable 5 assurance that the shield building is capable of 6 performing its safety functions.

7 So in line with what NRC representatives 8 relayed, the shield building did not return to 9 operation until we determined that the crackings, as 10 they were, did not impair the function of the shield 11building, which is not an issue for license renewal in 12 any event. But I thank you.

13JUDGE FROEHLICH: Thank you for that 14 clarification.

15JUDGE TRIKOUROS: Well, I mean I think we 16 want to get to the issue, to that issue a little bit 17 later.18But so for right now, with respect to 19timeliness, Mr. Kamps, you're saying that this was an 20evolving process that began approximately October 21 31st, and that it didn't, it wasn't crystal clear to 22 you that you wanted to file a contention until after 23the January, directly after the January 5th public 24 meeting; is that what you're saying?

25 468 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433MR. KAMPS: We were left to puzzle it 1 together, because of the small spurts of information 2 that were provided over a long period of time there, 3over the course of months. The first we were able to 4 detect from Barry Allen's admission of 225 foot 5effective crack on January 5th, that this was very 6 serious in nature.

7It wasn't until actually February 8th, 8when Congressman Kucinich clearly communicated to the 9public, for the first time of anyone involved, that 10 the nature of the cracking was structural. He asked 11 questions on January 5th, which also alerted us that 12there were some questions being asked, is this 13 structural in nature?

14Then on February 8th, Congressman Kucinich 15clearly communicated that yes indeed, it is 16 structural. In terms of that filing, we got that out 17on the 27th, so that was a 19 day turnaround, once we 18had Congressman Kucinich's very clear information. So 19 it's been a game of hide the ball by FirstEnergy and 20 NRC staff.

21MR. MATTHEWS: I'd like to object, Your 22 Honor.23MR. KAMPS: Another significant date in 24 response to --

25 469 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433MR. MATTHEWS: I'd like to object, Your 1 Honor. Judge Froehlich the court has ruled that these 2arguments, these allegations of deceit by the staff or 3FirstEnergy are outside the scope of this proceeding.

4They're inappropriate. There's really no place for 5 them. I'll not belabor it, Your Honor. But --

6JUDGE FROEHLICH: Your objection is noted.

7 But please, I'd like Mr. Kamps to continue.

8 MR. KAMPS: Just another response to NRC 9staff just now, on December 2nd, NRC issued the 10confirmatory action letter approving restart. On 11 December 5th, Abdul Sheikh finally signed off on 12Calculation No. 56, which was for him a very 13significant safety question. So three days after the 14 NRC staff allowed reactor restart, a safety engineer 15 finally signed off.

16 My point about that is what is Mr. Sheikh 17going to do? Say that the agency was wrong on 18 December 2nd in allowing restart? That's a lot of 19 pressure to put on an individual.

20So on December 5th, three days after 21restart is approved, he finally, and this has already 22been put in the record by us, he finally signs off on 23 that.24I think that that sign-off is 25 470 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433questionable, the pressure on him to sign off to 1justify a three day earlier reactor restart approval.

2 So we would --

3JUDGE TRIKOUROS: Isn't that pure 4 speculation on your part?

5MR. KAMPS: Well please, the date sir.

6 December 2nd, reactor restart. December 5th, final 7sign-off on a safety analysis that he found very 8 significant. The timing is wrong there. That 9 shouldn't be after reactor restart --

10JUDGE TRIKOUROS: All right. Well, that's 11not the subject, however, of what we're trying to 12determine right now. Right now, we're trying to 13determine the timeliness issue regarding your 14 contention.

15MR. KAMPS: And we were very much looking 16forward to that December 15th meeting, because the 17questions that we finally got to hear discussed and 18 ask questions that night, on January 5th, would have 19taken place on December 15th. For some reason, NRC 20 postponed that meeting for three weeks.

21So now we're to be penalized because we 22were not in possession of the information that 23obviously FirstEnergy had very early; obviously NRC 24 had much earlier than we did. But we're the ones to 25 471 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 be penalized for this.

1JUDGE FROEHLICH: I want to acknowledge 2that the Board does understand your concerns about the 3restart decision. But at this point, I'd like to 4focus on the timing of the filing of the initial 5 contention. So for my benefit and the benefit of the 6 Board, I'd like to focus on the information that was 7 forthcoming, leading up to the January 10th filing.

8 I think there was the start of this, Mr.

9Matthews, when you wrote to us, I guess, the letter to 10the investors. Would you kindly re-read the quoted 11portions, where the public or whatever, or it was 12 investors at least, would be aware that the cracking 13 was perhaps structural or something more than in the 14 architectural flutes and such.

15 MR. MATTHEWS: I will. Thank you, Judge 16 Froehlich, and I'd point out that whether members of 17the public might have inferred, properly understood 18whether FENOC could have drafted this differently, is 19somewhat of an academic issue, where Intervenors 20 acknowledge that they understood it was structural.

21JUDGE FROEHLICH: And that's your 22 reference to the Lochbaum letter?

23MR. MATTHEWS: No. It's referenced on, 24 I'm sorry. On page 17 of the initial petition, 25 472 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433there's a parenthetical at the bottom of the first 1 paragraph.

2"However, as indicated in paragraph 18 3below, FENOC itself admitted additional cracks and 4emphasized structural," end of emphasis, "parts of the 5concrete shield building, in a letter to investors on 6 October 31, 2011." 7They also trumpet the Lochbaum November 4 8letter, his petition to the NRC. That appears at 9paragraph 19, page 19, and intervening Toledo Blade 10articles talking about the issue, the development.

11 They were following this very closely. Again, going 12 from recollection is a dangerous thing.

13 You know, the Beyond Nuclear website had 14a very passionate piece talking about the shield 15building, contemporaneous with Congressman Kucinich's 16November press release. They were following it 17closely, understood it, monitored what was going on 18 and understood it clearly.

19But I return to your request, Judge 20 Froehlich. I'd be happy to read it again, and this is 21from the October 31, 2011 FENOC letter advisory to the 22investment community. "Our information also 23 identified" -- I'm reading the last paragraph.

24"Our investigation also identified other 25 473 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433indications, including among them were subsurface 1 hairline cracks in two localized areas of the shield 2building, similar to those found in the architectural 3 elements. We have determined that these two areas are 4not associated with the architectural element 5cracking, and are investigating them as a separate 6 issue.7Our overall analysis, our overall 8investigation analysis continues," and they predict a 9 return to service date in November. There are a 10couple of points that Mr. Kamps responded to, and I 11 don't want to get to all of them, but to the extent 12they relate to the Board's earlier question, I'd like 13 the opportunity to address them.

14 We respect the Intervenors' passions and 15 the efforts that they've brought to their pleadings.

16FirstEnergy takes very seriously the laminar cracking 17 issue, as demonstrated by all of their activities to 18 date. But they're suggesting a couple of things 19relate to whether the contention was structural, or 20 there was new information.

21That FENOC discovered at the plant, 22contemporaneous with the investment advisory going out 23that there was cracking in the upper 20 feet of the 24containment structure, if it's structural, it's 25 474 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 structural. Where the additional cracking is, they 1 haven't told us somehow why that's relevant.

2The question is is it age-related? Is it 3an aging phenomenon. The arguments that they're 4 advancing here before this Board are all outside the 5scope of license renewal. I'd go back to Mr. Lodge's 6 initial argument.

7We agree on that, that things outside the 8scope of license renewal should not be before this 9Board, and the laminar cracking phenomenon happens to 10 be one of those issues.

11FENOC and the staff are addressing it with 12 respect to current operations. So all this 13dissatisfaction with their knowledge of FENOC's 14 activities and the staff's review and the status, as 15it relates to restart, is all unrelated to the 16 questions before this Board.

17 The issue is whether the laminar racking 18phenomena is age-related, and there's been nothing to 19 show that. But to their point of --

20JUDGE TRIKOUROS: Well, but I don't 21understand why you're saying that this is not under 22the scope of license renewal. Even before the shield 23 building AMP, there was a structure -- there is and 24 was a structures AMP.

25 475 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 They would have looked at the shield 1 building, I assume, and would have looked for cracks 2in the shield building. So why is it that this is not 3--4MR. MATTHEWS: Well, for exactly the 5reason you cited, Judge Trikouros. Cracking right now 6 is subject to the maintenance rule. Cracking during 7 the period of extended operations, the kinds of 8anticipated expected cracking, would be covered by the 9 structures AMP.

10Laminar cracking, this laminar cracking 11phenomena is unique to Davis-Besse. There's no 12 evidence, none, Intervenors have pointed to none and 13 the root cause has ruled it out, that it's a time-14dependent phenomenon. The cause of the cracking is 15not time-dependent, and we'll be happy to get into 16 that in the Board's questions.

17 For it to be an age -- in the scope of 18license renewal, it somehow has to be an aging related 19 phenomenon. FENOC has voluntarily created an AMP to 20look at this issue, to evaluate whether going forward 21somehow the environmental aspects create some aging 22feature that we don't know about now, and they are 23monitoring it on a periodic basis, to see whether the 24cracks change in length or width, and evaluating that 25 476 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433for exactly that potential, that it could become an 1 aging phenomenon.

2 But the burden here today is have 3Intervenors demonstrated that it is an aging 4 phenomenon. It's their burden to prove that, and if 5 they prove that, their burden is to prove that the AMP 6is insufficient to address it for the period of 7extended operations. They haven't even touched on 8 that.9So these are all very important issues 10with respect to current operations. Operability of 11the plant for restart, restoration of the licensing 12 basis. Very important questions that FENOC and the 13staff are addressing. But as it relates to this Board 14and the Intervenors' contention, they're two simple 15 questions really.

16 Is it aging-related, and if it is, does 17the AMP address it, and they haven't challenged either 18 of those.19JUDGE TRIKOUROS: Let me ask the question 20also to the staff. Is there a distinction between an 21event such as the laminar cracking occurring as a 22result of some situation, environmental situation that 23 was not aging-related, but was caused by this event, 24that once the cracks are in place, the degradation of 25 477 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 those cracks is an age-related consideration?

1MR. MATTHEWS: FENOC considered exactly 2that, Judge Trikouros. The potential that those 3cracks, that aging effects, say thermal cycling, could 4 somehow affect those cracks. Thus far, these cracks 5have been evaluated, I think five times now under the 6 maintenance rule. Five?

7Four times. These cracks have been --

8they've gone in and looked at these cracks. It's only 9 since 2011. Clearly, they understand that. But the 10AMP does exactly that, and for purposes of satisfying 11its responsibilities under the license renewal rule 12 and satisfying the staff's questions, FENOC prepared 13 an AMP to address exactly that question.

14But there's nothing in the Intervenors' 15initial pleading or any of the subsequent contentions, 16that makes that hypothetical argument. It's not 17 there.18JUDGE TRIKOUROS: Would there have been 19 shield building AMP if there weren't a contention?

20MR. MATTHEWS: Oh absolutely. The 21contention has nothing to do with the shield building 22 AMP. The shield building AMP, FENOC, in connection 23with the restart and the confirmatory order, or the 24CAL going along with restart, FENOC listed the 25 478 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433corrective actions it was going to do, and one of 1 those was to prepare an aging monitoring, an AMP for 2 the period of extended operation.

3 They were going to do these inspections, 4they were going to restore the licensing basis, and 5prepare a shield building AMP. So that had nothing to 6 do with the Intervenors. It was FENOC and the staff 7 that thought that that was appropriate.

8JUDGE TRIKOUROS: Could I ask that 9question in yet another way. Again, if there were no 10contention, would the AMP be part of the license 11 renewal application?

12 MR. MATTHEWS: Absolutely.

13 JUDGE TRIKOUROS: It would be --

14 MR. MATTHEWS: Absolutely. The staff --

15FENOC committed to do it. The staff asked about it in 16a request for additional information, and FENOC 17acknowledges that it wants to study this phenomena.

18It wants to look at it, evaluate it on a periodic 19basic, in accordance with the standard set out by the 20 American Concrete Institute for periodic monitoring, 21 normally five years for concrete structures.

22FENOC proposed doing it on a two-year 23interval, and they're doing it on a two-year interval 24 and for a period of cycles through I think 2019, and 25 479 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433if there's no evidence by that point, then the AMP has 1 it moved to a five-year cycle.

2JUDGE TRIKOUROS: but if the cracking had 3 not occurred, I'm assuming the staff would have been 4content with the structures AMP? There was no plan to 5 put in place a separate shield building AMP?

6MS. KANATAS: No Your Honor, there was 7 not. The questions asked on December 27th related to 8the structures monitoring AMP, as it was already in 9 place in the license renewal application, asking how 10 that AMP would be able to, what was its plan to 11adequately manage any aging effects associated with 12 the October 10th, 2011 cracking.

13So we had, did not question the structures 14AMP, and then when the cracking was identified, we 15then asked how will any aging effects be managed.

16 That was in response to those questions.

17The Applicant submitted its shield 18building monitoring AMP to decide that even though the 19root cause determined that it was not an aging 20mechanism going forward, it was going to monitor to 21see if there were any aging effects that could impact 22 the functionality.

23JUDGE TRIKOUROS: Were those RAIs -- I 24 don't remember the timing of the RAIs.

25 480 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 MS. KANATAS: December 27th, 2011. They 1were incorporated by the Intervenors into their first 2 initial pleading.

3JUDGE TRIKOUROS: So they were prior to 4 the contention being filed?

5 MS. KANATAS: Yes they were, Your Honor.

6 JUDGE FROEHLICH: Am I correct that that 7December, the end of December RAI that went out, that 8would indicate the point in time when the staff 9considered the possibility or perhaps the necessity of 10 having a separate shield building AMP?

11MS. KANATAS: Well, the staff had not yet 12determined what needed to happen at that point. They 13were asking the question of the existing program, and 14because it's FENOC's application that has to make the 15demonstration of how it will adequately manage aging, 16 and we were not sure what the extent was or how their 17 existing application would manage those.

18So we had not -- we were awaiting their 19responses and then, as the Applicant pointed out, it's 20an iterative process with RAIs, in order for us to 21understand what's being proposed and whether or not we 22 can make a determination on that.

23 JUDGE FROEHLICH: Thank you.

24MR. MATTHEWS: If I might supplement that, 25 481 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433Your Honor, the staff's initial RAI asked about the 1structures AMP, and in response, when FENOC responded 2to the RAI, it submitted an entirely new supplemental 3 AMP, the shield building monitoring AMP.

4JUDGE FROEHLICH: Much of the discussion, 5 and a number of your answers, Mr. Matthews, refer to 6the cracking as laminar cracking, and the other 7parties at times have referred to many other types of 8cracking, and I guess we'll get into that, more detail 9 later.10 The definition that's used in the use of 11laminar cracking, could you provide that for me, or 12 how it's used?

13MR. MATTHEWS: I used that term 14specifically and deliberately to identify the 15phenomena that was discovered in 2011 at Davis-Besse, 16and I would distinguish it from the more expected 17kinds of cracking that is observed in concrete 18structures, is expected in concrete structures, and is 19 addressed through the structures AMP.

20There are -- I'm not a civil engineer, so 21please forgive me. But from the record, certainly 22there's spalling of the concrete from the exterior 23 surface. There is micro-cracking, which can be 24evidence of aging effects. The laminar cracking is 25 482 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433what we're talking about specifically though, is what 1 FENOC discovered what was new and different, and not 2 comprehended within the structures AMP.

3That was along the outer surface of the 4rebar mat, and I think it might be helpful in the 5response to the fifth supplement, third and fourth 6supplement, we have a presentation that there are some 7 pictures that might be helpful to the Board.

8JUDGE KASTENBERG: I have one from the --

9 Mr. Harris sent us this letter on May 10th, which has 10the, I guess it's the inspection report, and it's got 11a really nice picture. I think a picture is worth 12 1,000 words, and in fact I was going to ask, before we 13get into the next aspect of the questioning, to maybe 14 set a frame for some of the questions in delineating 15 what we mean by such things as an architectural 16 feature, what we mean by a flute.

17Is there any function at all served by 18 these kind of rectangular --

19MR. MATTHEWS: I'd be happy to. There was 20--21JUDGE KASTENBERG: It would be helpful to 22have, you know, kind of a setting of what actually it 23 is that we're talking about.

24 MR. MATTHEWS: I have a -- I will not do 25 483 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433service to this the way our client could. He has made 1this presentation multiple times in multiple public 2 fora. But there are a couple of points that I would 3like to point out to the Board in response to your 4question, and that is in FENOC's response to 5Supplements 3 and 4, there's a slide presentation that 6has the picture you just held up, Judge Kastenberg, 7 and some others.

8Attachment 1 is what I'll refer to in the 9page citations. If you look on page six, there's a 10 photograph in the lower right --

11JUDGE FROEHLICH: Just so we're all 12 looking at the same diagram at the same time, and so 13that the record is clear, this will be in which 14 filing? The date, if you could and the page?

15MR. MATTHEWS: Yes. It's FENOC's response 16to supplement -- answer to Supplements 3 and 4, and 17 that response is dated --

18JUDGE FROEHLICH: It's the combined 19 response?20MR. MATTHEWS: Combined response. It's 21 August 17th, and I'm referring to Exhibit 1.

22JUDGE FROEHLICH: Okay. Give me one 23 moment. 24 MR. MATTHEWS: Or Attachment 1.

25 484 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 (Pause.)1JUDGE FROEHLICH: Give me a moment as I 2 try to call this up.

3 MR. MATTHEWS: Sure.

4 (Pause.)5JUDGE KASTENBERG: See, hard copies are 6 really good things to have.

7 JUDGE FROEHLICH: Yes.

8JUDGE KASTENBERG: Okay. That's the same 9 picture that's in the --

10MR. MATTHEWS: We have to have both these 11 days now.12 JUDGE KASTENBERG: Okay, great.

13MR. MATTHEWS: I note that this 14 presentation is one made by FENOC on August the 9th.

15It's very similar to the one that Mr. Lodge is 16referring to on August the 5th. FENOC, I'm sorry 17January 5th, thank you. FENOC has made a number of 18presentations, talking about these issues and the 19 slides have been updated.

20 This is the most recent in the record of 21this proceeding. So on page six is a photograph of 22the shield building, and specifically at the center of 23the photograph is one of the flutes. The shield 24 building is not a simple cylinder.

25 485 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433It has these architectural flutes and each 1 flute has a shoulder. If you look at the next page, 25-7, you see a top-down plan view of the exterior wall 3of the shield building, and working from the inside 4out, on the bottom here at the annulus, in between the 5 shield building and the containment vessel.

6 Then the first line you see is the inner 7mass of rebar, about three to four inches in. On the 8second line you see circumferentially is the outer mat 9 of rebar. Then if you look at the two angle pieces 10 and the cut in the middle at the center of the 11drawing, that is the flute and the flute shoulders are 12 on the right and left of that gap.

13JUDGE KASTENBERG: Could you say what that 14 looks like a fish hook? What is that?

15 MR. MATTHEWS: That hook is rebar.

16 JUDGE KASTENBERG: That is rebar.

17MR. MATTHEWS: It's rebar. It connects 18 the flute shoulder to the outer rebar mat, and early 19on in the discussions about whether it was structural 20or not, that's what Congressman Kucinich and Mr.

21Lochbaum were pointing out, that although these 22 flutes, the shoulders that First Energy was pointing 23to the flutes overall and the shoulders are 24 decorative, they don't have a design purpose.

25 486 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 If you look back to page six, the purposes 1of the shield building, the flutes don't support those 2 purposes. They're decorative.

3JUDGE KASTENBERG: but yet they also have 4 rebar?5 MR. MATTHEWS: They also have rebar, and 6they're put in the same pore. So the argument was 7 well, if they're connected, they're structural, they 8affect the structure, and that's what Intervenors were 9 arguing. That's exactly what Mr. Lochbaum was 10arguing, that's what Congressman Kucinich was arguing.

11 So to say that they didn't know or didn't 12believe it was structural, or believed FENOC's 13 assertions that the flutes are not structural, is 14somewhat disingenuous. But to go to FENOC's purpose, 15 you know, maybe we're divided by a common language.

16The purpose of the shield building, if you 17 look at page eight, this is the bottom of one of those 18flute shoulders, and you see it doesn't run all the 19way down. It doesn't run to the ground. It stops 20 some distance above.

21This is where the ops building connects to 22the, abuts the shield building. It doesn't stretch 23all the way down there, and I'll note the -- we may 24 come back to this.

25 487 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 These blue dots that you see on the shield 1building are places where FirstEnergy performed 2impulse response testing, 60,000 spots around the 3 entire shield building. The red mark you see in the 4photograph is a plug. That's where one of the core 5 bores was taken.

6So I think that probably responds. I'd be 7 happy to talk more or less about -- I can't talk less, 8about the presentation. But I think that responds to 9 your question, Judge Kastenberg and Judge Froehlich, 10of what I mean by -- well maybe it doesn't, with 11 respect to structural.

12 The circumferential cracking that led us 13 down this path is, I'm referring back to Slide 7, at 14the outer rebar mat, FENOC observed cracking along the 15 outer edge of the rebar mat. So the --

16JUDGE FROEHLICH: And the outer rebar mat 17 that you refer to that's in the architectural flute?

18 That's not --

19 MR. MATTHEWS: They discovered it in the 20 shoulders of the architectural flute.

21 JUDGE FROEHLICH: Okay.

22 JUDGE KASTENBERG: So that would be --

23 MR. MATTHEWS: Behind here -

24JUDGE KASTENBERG: --in the inspection 25 488 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 report of May, well I think -- well, we got it on --

1 MS. KANATAS: It's May 7th, Your Honor.

2JUDGE KASTENBERG: May 7th. So this 3Figure 3 in the inspection report, that's the laminar 4 crack that's shown on that figure.

5MR. MATTHEWS: That's correct, Judge 6 Kastenberg. And I guess I may have created some 7 confusion. That's where FENOC found the cracking in 8 connection with the impulse response testing in core 9 bores. The initial discovery was in the area of the 10shield building penetration, the access openings, and 11one happened to be in an area, and Stephen, where's my 12perfect page? Twenty-two. I'm sorry, 42, of the same 13 exhibit, Attachment 1.

14 (Pause.)15MR. MATTHEWS: In the lower left-hand 16 corner of this, you'll see a rectangle circumscribed 17 by white dots, and you'll see a blue dot, blue one 18next to it. These are the access penetrations. So 19it's in connection with looking at an access during 20 the head replacement evolution in October 2011, that 21personnel at the site discovered the cracking 22 phenomena.

23They saw a laminar crack -- they saw 24 cracks and reported it. That led to the evaluation, 25 489 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433the inspection, the impulse response testing, the core 1boring, that ultimately -- this is July, as of July 22012, and this is exhausted. You know, it's the 3evaluation of the entire shield building, based on the 4 laminar response testing.

5So this is where the cracking is 6 understood to be.

7JUDGE TRIKOUROS: I want to get done with 8this timeliness issue, because that's where we started 9and we wanted to get through with that before we moved 10 on. What's been described by the Intervenors -- let 11 me back up.

12Mr. Matthews, you're looking for a 13 discrete trigger point, a discrete day, October 31st, 14November 4th, a day that says they knew, and then add 1560 days to that. That's what you're looking for.

16 That's what you're trying to tell us.

17MR. MATTHEWS: They've told us those days, 18 Judge.19JUDGE TRIKOUROS: I understand, but that's 20 what you're trying to do, is put this to a day.

21MR. MATTHEWS: I think that's what the 22initial scheduling order and the Commission's 23 regulations call for.

24JUDGE TRIKOUROS: I understand, I 25 490 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 understand. But you know, the regulations can't 1cover every, you know, possible situation. The 2Intervenors are describing a process. They're saying 3well, I can't -- it wasn't so much a trigger point.

4It was more the only trigger point was actually to 5start a process for us, and we sort of developed from 6 there.7The staff, in their document, their 8answer, specifically say, you know, Intervenors 9accurately note that there have been fast-emerging 10developments following discovery of cracking. They 11actually go on to say that thus, there's good cause 12for Intervenors' late-filing of Contention 6. So the 13 staff stretched across --

14MR. MATTHEWS: Intervenors, I'm sorry, the 15staff notes that the Intervenors were close, but 16 didn't make it, and says "uhh, we'll give it to them." 17 That's not what the Board says. The Board says that 18the timing requirements are to be strictly construed, 19 vigorously construed.

20 JUDGE TRIKOUROS: Well, the Board hasn't 21ruled on this yet. This particular issue, November 221st is the date I believe the staff has identified as 23the sort of, if you want to call it a trigger, and 24that's where they got the ten days late thing. But 25 491 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433they do acknowledge that this is more of a process 1 situation, not a finite, discrete situation.

2That's what the Intervenors seem to be 3 describing. Now from your point of view, I 4 understand. You're trying to set it to a date, and 5you want that date to be more than 60 days, right? I 6 mean --7MR. MATTHEWS: I don't think that's 8 correct, Judge Trikouros. It's not at any cost the 9 contention can't come in. We are trying to live 10 within the rules that this Board has set, and the same 11rules the Board has applied to us and the other 12 parties, with respect to Contention 1.

13 It wasn't just our motion to be stricken; 14all the pleadings were stricken. The initial 15scheduling order isn't ambiguous. It's not "about 60 16 days." It's very clear.

17JUDGE TRIKOUROS: Well, the 60 days is 18 clear. The starting point is what we're discussing 19 here, and it sounds as if at least two of the parties 20in this room are not, are clearly saying that this, it 21was diffuse, that the situation was diffuse and 22 developments were emerging.

23 Yet so I really would like to hear if you 24 have any more. I really would like to hear how you 25 492 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 think it's discrete? I mean why, you know, what --

1MR. MATTHEWS: Thank you, Judge Trikouros.

2 I appreciate that. The information -- FENOC learned 3the information incrementally. FENOC shared that 4information with the NRC as it learned it. FENOC and 5the NRC shared that information with the public.

6Intervenors, through the licensee, the agency and the 7 media, picked up the information in real time.

8But the date depends very much on what the 9contention is. If the contention is that the 10structure's AMP isn't sufficient for age-related 11degradation, that's different once there's a shield 12 building AMP, as is the case here. Once there was a 13 shield building AMP, everything prior was mooted.

14 But once they -- once it was known that 15 available, that the cracking affected the ability of 16the shield building to perform its function, or 17believed that it could be, then the burden was on the 18Intervenors to propose a contention, that it couldn't 19-- not only could it not perform its function, because 20that's not the scope of license renewal, but that this 21 phenomena is age-related.

22 And they speculate about that. They try 23to say well, it's because you opened the shield 24building, and they leave for the Board to speculate 25 493 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433what the mechanism would be if penetrating the 1concrete and rebar, that somehow would lead to laminar 2 cracking. There's no affidavit of an expert or a 3 report explaining that.

4 So it depends. But yes, the information 5was evolving, but not the information upon which they 6cite to support their contention. Mr. Lodge opened 7 with the point that it was structural.

8 That's his hook, that this is an important 9 contention, and points to the January 5 public 10meeting, where FENOC is talking about its analysis of 11the ability, again, not in the scope of license 12 renewal; in the context of their decision to restart 13 the plant and assuring the public about the activity 14that they're doing to restore the licensing basis; 15that they examined the ability of the plant to perform 16its functions, and made a very conservative assumption 17 for the structural analysis.

18But that the issue was structural goes 19back, as we've seen by their own acknowledgment to 20October 31. You can take it to November 4 with the 21Lochbaum piece, talking about those fish hooks, Judge 22Kastenberg, or to the Kucinich pieces in November 23talking about the fish hooks, or the change to the 24Beyond Nuclear website trumpeting those Kucinich 25 494 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 pieces.1So in some sense, it doesn't matter which 2of those dates the Board pins it to; they're all well 3 more than 60 days.

4 JUDGE FROEHLICH: Anymore?

5MR. KAMPS: Could I clarify something that 6 I was speaking about earlier?

7 JUDGE FROEHLICH: Yes.

8MR. KAMPS: You may have wondered why I 9brought up December 2nd confirmatory action letter, 10reactor restart approval; it's current operations, 11it's not 2017 extended operations. I mean you're 12 asking for a trigger date, that's why I told some of 13 those dates before.

14A trigger date for me was, as I mentioned, 15November 19th, when Region III Office of Public 16 Affairs reversed its earlier position of two days 17earlier, and all of the sudden it was off to the 18 races; FirstEnergy can decide when it restarts.

19Then a very clear trigger date for us, for 20 Intervenors was December 2nd, when as we later 21learned, after many months later after we finally got 22our Freedom of Information Act response, December 2nd, 23 a CAL reactor restart approval, without a root cause 24determination, without an extent of condition 25 495 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433determination, without a corrective action 1determination, as had been promised repeatedly in the 2 media.3That's what we meant by October, November, 4December media statements by FirstEnergy and NRC.

5These questions will be solved before the reactor 6 restarts. Well, we were pretty darned clear. We're 7concerned about current operations, as you can 8 probably tell.

9But we're also concerned about extended 10 operations. That's the limits of this proceeding. So 11that trigger date, that was another trigger date, 12 December 2nd. The trigger was it was clear now that 13NRC was willing to sign off on reactor restart in real 14time, even before their safety analyses were finished.

15So that was a real trigger for us, that we 16had better take action here, and file a contention in 17this proceeding, because obviously we can't trust NRC 18to protect public health and safety in the 19 environment. This is a billion dollar a year agency.

20 It has 4,000 staff people.

21These are underestimates; it's bigger than 22 that. We are a non-profit coalition, mostly comprised 23of volunteers, doing the job for a billion dollar a 24year agency with 4,000 staff people, who did not 25 496 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 completely divulge. I don't know how to word it. I 1 said hide the ball earlier.

2The information that we needed to 3 effectively launch our contention was being withheld 4from us. In fact, some of the most important 5 information that we've yet filed in this proceeding 6more recently was the Freedom of Information Act 7response, Appendix B of Response No. 1, where NRC's 8own safety engineers identify very clearly the 9 structural significance of the cracking problem.

10 We were relying on Congressman Kucinich, 11who was doing his best, as quickly as he could, to get 12this information out the public. The NRC was not 13divulging this information, FirstEnergy was not 14 divulging this information. This October 31st, 2011 15letter to investors, I mean it is not clear. It's 16 ambiguous as to what is meant.

17If this was supposed to be our trigger, 18that this was structural and safety-significant in 19 nature. I mean a question is what was the response of 20the investment community? Was there a large-scale 21disinvestment from FirstEnergy, based on the contents 22 of this letter?

23 I don't think there was, and I think it's 24 because this letter is so calming, it's so sedating.

25 497 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433There's really not a big problem here. Yeah, there's 1some more areas where there's cracking that's very 2 similar to the architectural cracking. It's similar 3 in nature.

4 So all of this, these are sedatives, and 5we did not regard this as a trigger date for filing 6the contention, but the evidence mounted with time.

7David Lochbaum's letter of November 4th, remember, 8that this was written, this initial contention was 9written January 6th to January 10th when we filed it.

10This was a retrospective piecing the 11 puzzle together, based on what we could get ahold of 12at the time. And you know, we're not discussing -- I 13 guess we're discussing initial contention timeliness 14is what we're discussing. But at each of our filings, 15 we have filed timely, based on the public piece that 16 we were now privy to.

17The Freedom of Information Act response 18 was many very significant puzzle pieces, smoking gun 19 emails that we had not seen before, that said things 20like a small additional load could fail the shield 21building 90 percent. 27 of the 30 inches of the 22shield building wall could collapse from a small 23additional load, and later, the same individual, Abdul 24Sheikh, says the shield building was not designed for 25 498 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 reactor accident pressures --

1JUDGE KASTENBERG: We'll, yeah. Let's 2take this in -- we're going to get to all of this 3before we're done here. Right now, it's timeliness is 4 the issue we're trying to deal with.

5JUDGE FROEHLICH: In the arena of 6timeliness, could I ask Mr. Matthews, the letter to 7which both you and Mr. Kamps have referred to, the 8letter to investors, to whom is that sent? What is 9 the scope of its distribution?

10MR. MATTHEWS: May I have one moment, 11 Judge Froehlich?

12 JUDGE FROEHLICH: Sure.

13 (Pause.)14MR. MATTHEWS: Judge Froehlich, we'll have 15to take that as an action to follow-up with you, as to 16where it went. It went to news outlets. It was 17certainly picked up in the financial media. I know 18that one of the Bloomberg reports picked it up. That 19 was my copy of it.

20JUDGE FROEHLICH: Okay. That's his 21 position, that that letter to investors was then 22 picked up by the media, and from the -- either from 23the letter itself or from the media, whenever the 24Intervenors had access to it, that should be a 25 499 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 milestone.

1MR. MATTHEWS: The company posted it on 2its Media Relations or the Industrial Relations 3website, which is their investment community website, 4and made it available. News outlets picked it up, and 5I don't remember off the top of my head whether it was 6 a Plain Dealer article.7But I don't think there's been any dispute 8that Intervenors were aware of it. I mean whether or 9 not it was available, Intervenors purport to have 10 actual knowledge of it.

11 MR. KAMPS: but my point was that it was 12not a trigger. It was downplaying the significance of 13 the cracking.

14JUDGE FROEHLICH: Okay. Because we're 15talking about timing, does your objection, Mr.

16Matthews, to the consultation requirement apply to the 17 initial contention?

18MR. MATTHEWS: It does not, Judge 19 Froehlich.

20JUDGE FROEHLICH: It does not. So in our 21discussion of the timeliness of the, for the admission 22 purposes, we'll focus on timing, the objection, and 23the concern about the consultation doesn't apply to 24 the initial filing; is that correct?

25 500 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 MR. MATTHEWS: That's correct.

1 JUDGE FROEHLICH: Okay.

2JUDGE TRIKOUROS: I'd like to get started 3by asking first of all, is this a safety contention or 4 an environmental contention?

5MR. LODGE: I assume you're asking us 6 that?7JUDGE TRIKOUROS: Yes, and I thought I was 8 looking your way.

9MR. LODGE: You were, but then you looked 10 at everybody else.

11 JUDGE TRIKOUROS: Okay.

12MR. LODGE: Both. The answer is we 13 believe it is both.

14 JUDGE TRIKOUROS: Both?

15 MR. LODGE: Yes.

16JUDGE FROEHLICH: And I guess we should 17look at the contention itself. I notice that the 18contention was first put forward in the motion, and 19then it remained the same, as I understand it, through 20 the five amendments; is that correct?

21 MR. LODGE: Yes.

22 JUDGE FROEHLICH: All right.

23JUDGE TRIKOUROS: I guess I can understand 24 the safety aspects of this contention, as it relates 25 501 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433directly to license renewal. What is the 1environmental side of this contention? Is it, how 2 does it -- can you help me with that?

3 MR. LODGE: If there were serious damage 4accomplished as a result of the cracking to the 5structure, it could then be subject to external 6events, whether it be a plane crash, an earthquake, 7 more bad weather.

8JUDGE TRIKOUROS: but every safety 9contention you could make that argument for, right?

10I mean there's nothing in the environmental report or 11that's associated with this, right? This is all in 12the license renewal application safety side, right?

13 It's not in the environmental side of this LRA?

14 MR. LODGE: I wonder if I might defer an 15 answer to that until tomorrow? I believe there is a 16 reference in the environmental report.

17JUDGE FROEHLICH: I'm sorry. Could you 18 speak up please?

19MR. LODGE: I'm sorry. I wonder if I 20might answer you, Judge Trikouros tomorrow on that 21 question, because --

22JUDGE FROEHLICH: That's fine. We're 23 getting towards the end of the day anyway, so that's 24 fine.25 502 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 (Simultaneous speaking.)

1JUDGE KASTENBERG: Could I follow up on 2 that?3 JUDGE FROEHLICH: Yes, certainly.

4JUDGE KASTENBERG: It would be helpful for 5 me to just read the contention, which then stays the 6 same through all five amendments?

7 MR. LODGE: Yes.

8JUDGE KASTENBERG: So the contention reads 9"Intervenors contend that FirstEnergy's recently-10discovered extensive cracking of unknown origin in the 11Davis-Besse shield building secondary reactor 12radiological containment, is an aging-related feature 13of the plant, the condition of which precludes safe 14operation of the atomic reactor beyond 2017 for any 15period of time, let alone the proposed 20-year 16 license." 17I assume you mean "relicense period." So 18here you state it's an aging-related feature, and 19 Judge Trikouros just asked is it safety or 20environmental, and this is what, basically what you're 21 saying. It's aging-related. Does that make a 22difference, whether it's environmental or whether it's 23--24That's something you can ponder tonight 25 503 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433and perhaps come back with us tomorrow. The other 1 question I have here is to explore with you, is this 2 question of unknown origin. Now they've done a root 3 cause analysis, and so I'd like to hear a little bit 4about that, and perhaps it's getting late, but perhaps 5 tomorrow or today.

6 But there are aspects of this contention 7which on first reading and second reading, fifth 8reading through each, that there's a very dynamic 9situation here. Yet the contention is basically --

10well, not basically, is that it stayed the same.

11You've not changed the contention, and I'd like to 12 hear more about that.

13JUDGE TRIKOUROS: I mean one could take 14the position that this contention has been mooted, Mr.

15 Lodge. 16 MR. LODGE: Yes.

17JUDGE TRIKOUROS: One could easily take 18that position, and we'd like to understand why we 19shouldn't take that position. Also, all of these 20amendments have never resulted in an amended 21contention, all of these supplements and what you call 22 amendments/supplements. What are we -- what are you 23-- what is your position with respect to what you 24 wanted all of those supplement amendments to do with 25 504 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 respect to the initial contention?

1 So we don't have to get into that tonight.

2I would just want to give you that, because that 3should be something we discuss tomorrow perhaps at 4length, because you know, you've done this five times 5and, you know, we need to understand what your 6 intention was in the way that you did this.

7 MR. LODGE: Fine, thank you.

8 (Off record discussion.)

9JUDGE KASTENBERG: You so eloquently spoke 10 to the fact that there are two aspects of this: one 11is procedural and one is, you know, under the various 12 aspects of the contention itself, and we may be at a 13 good breaking point, I think, if we're finished with 14 the procedural portion, at least from my view.

15JUDGE FROEHLICH: I agree with my 16 colleague. I think we have talked about the 17 procedural point as to the motion itself, and that's 18probably going to be the most important procedural 19date, as I understand it, because as my colleagues 20have alluded to, all the amendments or all the 21 supplements don't change the original contention.

22I hope I'm saying that correctly. If I'm 23not, you'll correct me overnight when you come back 24 tomorrow. So I think all the supplements are 25 505 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 contingent on the initial contention being admitted.

1 I don't think it's your intent that any of the 2supplements could or should stand by themselves, or 3could stand by themselves. If I'm wrong on that, 4 you'll correct me tomorrow as well.

5So with that caveat, I think we've 6 finished the procedural questions as to the original 7 motion. It is late in the day. I think we will 8adjourn for today, and pick up tomorrow, and hopefully 9get into the substantive aspects of this, and by that 10 I mean following up to Judge Trikouros' questions on 11where the contention is going, what it is that the 12 Intervenors want done that I guess the staff at this 13point is satisfied has been done, or what the 14 Applicant should be doing that they're not doing.

15Anything that any of the parties wish the 16Board to be thinking about overnight, as we proceed 17tomorrow with the substantive matters? It's not quite 18fair that we give you homework. You can give us 19 homework at this point, if you want to focus our 20attention for the overnight hours, to help get through 21 tomorrow, the substantive matters. Staff?

22MS. KANATAS: Yes, Your Honor. I 23appreciate the opportunity. Since we have gotten over 24the first hurdle, in terms of the timeliness, the 25 506 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 procedural aspect of the burden that the Intervenors 1bear, and tomorrow we will focus on the substantive 22.309(f)(1) standards, I think it's important for the 3Board to note that in the first three supplements, the 4Intervenors did not even address the 2.309(f)(1) 5 standards.

6In the fourth and fifth supplements, they 7did address them, but they indicated in their, I 8believe in the fifth motion to supplement, it started 9on page 92 through 95, exactly what the basis of their 10 concern was, which was that the restart was improper 11and the scope of their contention was the plan to have 12a plan to reestablish design basis, which is not 13 within the scope of this proceeding.

14So even when they did address the 152.309(f)(1) factors, they only served to reinforce 16 that the claims that they were making were out of 17scope and immaterial to the findings that the staff 18 had to make. Thank you.

19JUDGE FROEHLICH: Thank you. Mr.

20 Matthews?21MR. MATTHEWS: I'd return to the two 22questions I had in the beginning that I think are 23 central, despite how convoluted the record might be, 24and we'll walk through the rest of the procedural 25 507 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 issues. The Board will determine what's left in or 1 what's not.

2 But from what's left in, the real question 3is have the intervenors identified some aspect of the 4 license renewal application or environmental report, 5a citation to some section of either of those 6documents, that is somehow inadequate, and if they 7 have, have they supported it?

8Have they provided some basis, as the 9Commission has instructed us, for that material issue?

10 I don't think that either of those questions is very 11difficult to resolve, regardless of how much of the 12 record is timely or not.

13 JUDGE FROEHLICH: Intervenors.

14MR. KAMPS: Just since it sounds like 15we're closing out the discussion of timeliness and 16that process, I just wanted to respond to what 17 FirstEnergy's counsel had said.

18I responded to the October 31st, 2011 19investor letter already, but I hadn't responded yet to 20the David Lochbaum letter, which is dated November 21 4th, 2011, as cited in our initial contention.

22 Again, this was written in hindsight, as 23we put pieces of the puzzle together after the Camp 24 Perry meeting. What I wanted to point out is at the 25 508 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433time on November 4th, if you look at the David 1 Lochbaum letter, it itself is asking questions.

2These are not statements of fact. In 3fact, Lochbaum summarizes by expressing these as 4conditional allegations, and I'll just read them, 5 they're short.

6"The Union of Concerned Scientists would 7prefer that the NRC answer the questions above before 8Davis-Besse restarts, but we realize the NRC may lack 9the process and means to do so. If that is the case, 10please consider the following two items with the 11 agency's allegations program.

12"Number one, the design evaluation and 13 analysis for the shield building did not properly 14consider the dead load from the 'non-structural 15architectural concrete' attached to it, and number 16two, the shield building wall was not sufficiently 17 examined for an indication of cracking." 18So this was not a triggering event for us.

19This was more asking of questions, just as Congressman 20Kucinich did on January 5th at Camp Perry. Those were 21mounting pieces of the puzzle, that January 5th 22 finally was a critical mass that caused us to act.

23So I just had to respond, that that 24November 4th date is not a trigger that would have 25 509 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433resulted in a January 6th deadline for filing. Our 1perspective is that we filed not within 60 days but 2 within five days actually.

3JUDGE FROEHLICH: I think our evening 4work, all across the parties and the Board, is set 5 now. We'll resume tomorrow morning at 9:00 a.m.

6 Hopefully, we'll go through the substantive aspects.

7We will use the standards in 2.309 to evaluate the 8contention and its amendments. With that, we'll stand 9 adjourned and resume tomorrow at 9:00 a.m.

10(Whereupon, at 4:09 p.m., the hearing was 11recessed, to reconvene on Tuesday, November 6, 2012 at 12 9:00 a.m.)

13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com CERTIFICATE

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