ML14330A259

Transcript of Oral Arguments in the Matter of Fermi Nuclear Power Plant, Unit 2, Monroe, Michigan on November 20, 2014, Pages 1-233

ML14330A259
Person / Time
Site:	Fermi
Issue date:	11/20/2014
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-341-LR, ASLBP 14-933-01-LR-BD01, NRC-1233, RAS 26958
Download: ML14330A259 (234)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION

Title:

Oral Arguments in the Matter of:

Fermi Nuclear Power Plant Unit 2 Docket Number: 50-341-LR ASLBP Number: 14-933-01-LR-BD01 Location: Monroe, Michigan Date: Thursday, November 20, 2014 Work Order No.: NRC-1233 Pages 1-233 NEAL R. GROSS AND CO., INC.

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

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

1 1 UNITED STATES OF AMERICA 2 BEFORE THE NUCLEAR REGULATORY COMMISSION 3 Before the Atomic Safety and Licensing Board 4 + + + + +

5 ORAL ARGUMENTS 6 ------------------------------

7 IN THE MATTER OF: Docket No.

8 DTE ELECTRIC COMPANY 50-341-LR 9 FERMI NUCLEAR POWER PLANT ASLBP No.

10 UNIT 2 14-933-01-LR-BD01 11 ------------------------------

12 Thursday 13 November 20, 2014 14 9:00 a.m.

15 Monroe County Courthouse 16 125 East Second Street 17 Board Meeting Room 18 Monroe, Michigan 19 BEFORE:

20 Ronald Spritzer, Administrative Judge 21 Nicholas G. Trikouros, Administrative Judge 22 Gary S. Arnold, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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2 1 PRESENT:

2 For the Office of Commission Appellate:

3 Administrative Judges:

4 Ronald Spritzer 5 Nicholas G. Trikouros 6 Gary S. Arnold 7

8 NRC Staff:

9 Jeremy Wachutka 10 Brian Harris 11 Joseph Lindell 12 Catherine Kanatas 13 14 Counsel for Applicant/DTE Energy:

15 Derani M. Reddick 16 Tyson R. Smith 17 Jon P. Christinidis 18 19 Counsel for Joint Petitioners (Morning Session):

20 Terry Lodge 21 Paul Gunter 22 Kevin Kemps 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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3 1 Counsel for CRAFT (Afternoon Session):

2 James Sherman 3 Jessie Pauline Collins 4 Sandra Bihn 5 David Schonberger 6

7 8

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4 1 P R O C E E D I N G S 2 (9:01 a.m.)

3 JUDGE SPRITZER: Good morning. My name is 4 Ronald Spritzer. I am an Administrative Judge with 5 the Atomic Safety Licensing Board panel. We are here 6 today to hold oral argument on contentions in the case 7 of DTE Electric Company, the application for the 8 licensing of Fermi Nuclear Power Plant Unit 2. This 9 is Docket No. 50-341, also ASLBP No. 14-933-01-LR-10 BD01.

11 The purpose today, for the members of the 12 public who may be here, is to review the arguments for 13 and against the addition of various contentions of 14 legal claims that have been advanced in this 15 proceeding. I've already identified myself. Again, 16 my name is Ron Spritzer, I'm an Administrative Judge 17 and an attorney. I'll ask my two colleagues to my 18 right and left to identify themselves.

19 JUDGE ARNOLD: I am Judge Arnold. I have 20 been a Technical Administrative Judge on the panel for 21 six years. I have a Ph.D. in Nuclear Engineering and 22 my original career was in the Naval Reactors Program.

23 JUDGE TRIKOUROS: I am Nick Trikouros.

24 I've been a full-time Judge for nine years. My 25 degrees are from Fordham and NYU and NYU Polytechnic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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5 1 Institute in Physics and Nuclear Engineering.

2 JUDGE SPRITZER: In addition, we have a 3 court reporter to my far left. Next to him is Mr. Joe 4 Deucher who is our technical expert. If we're having 5 any problems with microphones or any other kind of 6 electronic technical issues, he's the guy to ask. And 7 our law clerk, Nicole Pepperl, is next to him.

8 Why don't we go through and have the 9 representatives who are seated up here in the front 10 identify themselves? We'll get to CRAFT, we'll give 11 you an opportunity to identify CRAFT representatives.

12 Why don't we start with the NRC staff?

13 MR. HARRIS: Good morning, Judges. I am 14 Brian Harris, the legal counsel for the Fermi 15 proceeding. To my right is Jeremy Wachutka who will 16 be handling a lot of the Beyond Nuclear contentions.

17 And seated right behind me are Cathy Kanatas and 18 Joseph Lindell which will be handling some other 19 contentions for this proceeding.

20 JUDGE SPRITZER: Great, glad to have you.

21 And for the Joint Intervenors?

22 MR. LODGE: Good morning, Your Honors.

23 I'm Terry Lodge, I am the counsel for three of the 24 Intervenors, that would be Don't Waste Michigan, the 25 Citizens Environment Alliance, and Beyond Nuclear.

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6 1 Seated to my left is Paul Gunter, he will be the lead 2 presenter on our first contention. I will handle 3 number two. And behind me is Kevin Kemps who will be 4 on contention number four.

5 JUDGE SPRITZER: Great, thank you. And 6 for the Applicant?

7 MR. SMITH: My name is Tyson Smith with 8 Winston & Strawn. With me I have Jon Christinidis who 9 is an attorney for DTE Electric Company. And Derani 10 Reddick is a colleague of mine at Winston & Strawn.

11 JUDGE SPRITZER: Great. Before I proceed 12 any further, I don't know whether there are any county 13 government representatives here, but we'd like to 14 thank them for the opportunity to once again use their 15 facilities. This is my first time here and the people 16 have been extraordinarily accommodating and helpful in 17 making it possible for us to have this hearing.

18 As hopefully you all know, there are break 19 rooms available. We will be taking breaks. This is 20 not an endurance contest. I think we'll probably go 21 an hour, an hour and-a-half or so before we take our 22 first break.

23 Our plan, our tentative plan which is 24 always of course subject to, if we can get through the 25 Beyond Nuclear contention this morning. Hopefully by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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7 1 noon, we will at that point break for lunch, and then 2 we would take up the CRAFT contentions in the 3 afternoon. However, if we happen to finish earlier 4 with Beyond Nuclear contentions, we'll move into those 5 before lunch. So, CRAFT should be prepared to move 6 forward before lunch if that's necessary.

7 It's been emphasized to us by the court 8 reporter, and I'm sure you all will do this, but 9 please speak into the microphone as necessary for the 10 reporter to be able to pick out what you have to say 11 and include that in the transcript. Of course we want 12 to have a complete transcript so we can look at it and 13 provide us a complete record. So, the proceedings are 14 being recorded. Before, at least each representative, 15 before you begin speaking on a particular contention, 16 it would be helpful if you would identify yourself 17 both for our benefits to refresh our recollection and 18 again for the record.

19 We've been over, we have an order that 20 sets forth the order of arguments, so I assume 21 everyone knows that. We'll be starting with the 22 Beyond Nuclear contentions, Contention 1 followed by 23 Contention 2, then Contention 4. Beyond Nuclear Joint 24 Intervenors, or Joint Petitioners I guess I should 25 refer to you as, you'll have 15 minutes per contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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8 1 but you may reserve about five minutes for rebuttal.

2 And I believe we have 10 minutes for staff and for the 3 panel.

4 And so we've covered breaks, we'll take it 5 around 11:00 or 10:30 to 11:00, depending on where we 6 are. I'll ask my colleagues if they have anything to 7 add before we get started.

8 JUDGE ARNOLD: Well, first off, I want to 9 clear up some, Judge Spritzer keeps saying so much 10 time for presentation. You can expect most of your 11 presentation time to be occupied answering our 12 questions. This is not an opportunity to provide new 13 information. We are basically looking for an 14 explanation of the information that's in the petition 15 itself.

16 JUDGE SPRITZER: Yes, that's true.

17 Everybody should, I think we covered that in our order 18 that we're mainly here to, you're mainly here to 19 answer our questions, not introduce new information or 20 new evidence, new arguments that haven't been included 21 in the filings that we have already.

22 All right. Before we get started, do any 23 of the representatives have any questions for us? If 24 not, hearing no questions, we'll move to Beyond 25 Nuclear Contention 1. For any members of the public NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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9 1 who happen to be here, this contention concerns, as 2 several of the Beyond Nuclear contentions, concerns 3 something called Severe Accident and Mitigation 4 Alternatives which is something that the Applicant 5 initially or later the Nuclear Regulatory Commission 6 in its environmental impact statement are required to 7 take into account, that is, alternative action or 8 procedures that would help mitigate, reduce the 9 likelihood of or mitigate the effects of a severe 10 accident should one occur no matter how unlikely that 11 may actually be.

12 All right. Why don't we start with Beyond 13 Nuclear's Contention 1?

14 MR. GUNTER: Okay, thank you. All right.

15 That was the all clear I hope.

16 COURT REPORTER: We might just want to 17 have you move it back just a little.

18 MR. GUNTER: Okay, how is that?

19 JUDGE SPRITZER: Fine for us.

20 MR. GUNTER: Okay, good. Thank you and 21 good morning. My name is Paul Gunter and I am with 22 the Reactor Oversight Project at Beyond Nuclear. And 23 I think that the Judges have basically given the 24 general overview here that this Contention 1 deals 25 with the --

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10 1 (PA microphone feedback.)

2 MR. GUNTER: Paul Gunter, I'm with Beyond 3 Nuclear. The contention before you this morning has 4 to do with our concerns that Detroit Edison's 5 environmental report, Severe Accident and Mitigation 6 Alternative analysis, is significantly deficient. And 7 you know, just, I think the primary point here is that 8 as our contention addressed the very demonstrative and 9 well-articulated NRC staff concerns with regard for a 10 SAMA looking at the filtered hardened vent. We have 11 both the Applicant and the NRC Office of General 12 Counsel who are silent on CEQ 2012-01-57. This CEQ 13 consideration of additional requirements for 14 containment venting systems for boiling water reactors 15 with Mark 1 and Mark 2 containments, we draw upon the 16 staff's own findings, principally through Robert 17 Freds, John Denning, and Robert Moniger whose 18 conclusions and recommendations found that a filtered 19 vent was in fact cost beneficial for the Mark 1 and 20 Fermi 2 being a Mark 1.

21 The staff states that --

22 JUDGE SPRITZER: Mr. Gunter, let me ask a 23 question on that. As I understand it, they either 24 already have or are under NRC order to have the 25 hardened vents. I take it what you want them to add NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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11 1 is some type of, what is it called, engineered filter 2 that would remove radioactive particles in the event 3 of a severe accident?

4 MR. GUNTER: Judge Spritzer, what we 5 really want is for the Applicant to do a thorough NEPA 6 analysis. It's also incumbent upon the Agency to 7 require DTE to meet the standard of NEPA law. And 8 that's, so we're not asking for a proceeding here on 9 a requirement for an action on the part of DTE. What 10 we're asking for is that a thorough analysis be done, 11 and we find the Applicant's application is deficient 12 upon this area.

13 They have outlined that they did a review 14 with SAMA 123. There is no dispute there. What the 15 dispute is, is that the staff in CEQ 2012-01-57, after 16 going through the backfit analysis and all the 17 guidance documents for a backfit analysis, the various 18 NUREGs, they determined that when you do the 19 quantitative and the qualitative analysis, as is 20 incumbent upon this review for a substantial safety 21 enhancement which is what the staff found for the 22 filtered vent, that you come up with a cost benefit 23 analysis.

24 JUDGE SPRITZER: But was that evaluation 25 done specifically for Fermi 2 or was this a generic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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12 1 Mark 1 containment?

2 MR. GUNTER: It was done for the Mark 1.

3 Now, NEPA requires a site specific analysis, and 4 that's where we find the dispute that after, you know, 5 very, you know, we reviewed several Advisory Committee 6 on Reactor Safeguard proceedings. There's extensive 7 staff transcribed testimony that points to a very 8 strong argument for, and a well-documented record 9 again with following all of the procedures before the 10 NRC that concluded that when you do the hard look, you 11 find that the filtered vent is cost beneficial. And 12 --

13 JUDGE TRIKOUROS: Mr. Gunter, let me 14 interrupt you.

15 MR. GUNTER: Yes, sir.

16 JUDGE TRIKOUROS: Are you referring 17 specifically to the SAMA analysis in the ERs? Is that 18 what you're saying that NEPA should look at that, 19 requires them to look at that? Where are you 20 referring to?

21 MR. GUNTER: The Severe Accident and 22 Mitigation analysis.

23 JUDGE TRIKOUROS: Is that what you're 24 referring to?

25 MR. GUNTER: I'm sorry, say it again?

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13 1 JUDGE TRIKOUROS: Is that what you're 2 referring to?

3 MR. GUNTER: Yes, sir. Specifically, 4 we're looking at the SAMA alternative for this 5 particularly vulnerable containment system. I think 6 we all acknowledge that the Mark 1 pressure 7 suppression system is vulnerable. It's no longer 8 hypothetical or theoretical. It's demonstrated by the 9 Fukushima Daiichi accident. And so, it's now 10 incumbent upon the Agency and the Applicant to take 11 this severe accident initiative very seriously and to 12 look at it in the context of NEPA law.

13 JUDGE TRIKOUROS: So, you're --

14 JUDGE SPRITZER: Let me just interrupt for 15 a second. One thing I forgot to mention earlier, 16 Nicole will be holding up the cards. Let's see, you 17 didn't ask to reserve five minutes for rebuttal. Do 18 you want to reserve five minutes for rebuttal?

19 MR. GUNTER: Yes, sir.

20 JUDGE SPRITZER: Okay. So, you have five 21 minutes left. She will be holding up a yellow card in 22 about three minutes.

23 MR. GUNTER: So, was that three minutes 24 for real or that's where we're at right now?

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14 1 demonstrating.

2 MR. GUNTER: Okay, thank you. It was a 3 fast 15.

4 JUDGE SPRITZER: I want to clear this up, 5 within your official ten minutes, but for everybody's 6 benefit, we will be holding up a three-minute card 7 when you're within three minutes of running out of 8 time. And she'll hold up a red card when your time 9 expired. However, if you're in the middle of a 10 question or the Board has additional questions for 11 you, we certainly want to give you the opportunity to 12 answer them.

13 MR. GUNTER: Thank you.

14 JUDGE SPRITZER: It's more interesting to 15 get your answer than finishing at a specific point in 16 time. Please continue.

17 MR. GUNTER: Well, I think again, you 18 know, when the staff, the root of our contention and 19 the genuine dispute here is that the staff did follow 20 regulatory guidance and found a cost-justified, 21 substantial safety enhancement.

22 JUDGE SPRITZER: That's the filters that 23 you were referring to earlier?

24 MR. GUNTER: That's the filtered vent, 25 yes, sir.

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15 1 JUDGE SPRITZER: Filtered vent, as opposed 2 to an unfiltered vent?

3 MR. GUNTER: As opposed to an unfiltered, 4 hardened vent.

5 JUDGE SPRITZER: And what --

6 MR. GUNTER: Now, you know, the industry 7 will argue that the Torus provides a water filter.

8 It's our contention that the staff, with the JLD, what 9 they found was that the most compelling argument here 10 is the need for defense in depth. And the filtered 11 vent provides what the JLD determined to be a 12 reasonably justified, you know, alternative. To put 13 a filter gives you that, not only the direct benefit 14 under severe accident condition of the added ability 15 to filter out radiation, but indirectly it provided 16 operators with the ability to take early action to 17 protect containment from other challenges such as 18 hydrogen gas and such. So --

19 JUDGE SPRITZER: I think the NRC staff 20 document you're referring to is the one where they say 21 in terms of quantitative costs and benefits, the 22 filters don't meet the quantitative test but if you 23 add certain qualitative factors including defense in 24 depth, they think they are advisable.

25 MR. GUNTER: And that's, yes, sir, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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16 1 that's where the substantial safety enhancement 2 determination is important.

3 JUDGE SPRITZER: Now, it doesn't mean that 4 they understood that. Did you find anywhere in the 5 records where the Applicant took into account or 6 grasped that staff recommendation?

7 MR. GUNTER: No, sir. That's, this is our 8 point. In the response to the Petitioner's request 9 for hearing, both the Applicant and the staff were 10 silent on CEQ 2012-01-57.

11 JUDGE SPRITZER: Now, you also referred to 12 a National Academy of Sciences report. Again, I take 13 it this report was not directed specifically at Fermi 14 2 but is more a general review of how the NRC had done 15 a backfit analysis for again these engineered filters?

16 MR. GUNTER: Yes, sir. In Appendix L, in 17 the NAS study, references the cost benefit analysis.

18 And we contend that the NAS, in its report to the NRC 19 which was mandated by Congress, that their findings 20 justify the incorporation of both quantitative and 21 qualitative analysis.

22 JUDGE SPRITZER: And they also refer, 23 again the National Academy of Sciences report, if I 24 recall it, it essentially criticized or suggested that 25 the NRC had used a six-billion-dollar figure for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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17 1 cost of a severe accident at the Peach Bottom Plant.

2 MR. GUNTER: Yes, sir.

3 JUDGE SPRITZER: Whereas, they said, look 4 at Fukushima and the cost of that severe accident was 5 more in the nature of $200 billion.

6 MR. GUNTER: Yes, sir.

7 JUDGE SPRITZER: At least what I got out 8 of that was they were suggesting maybe $200 billion is 9 a little more reasonable estimate of the cost of 10 severe accident.

11 MR. GUNTER: Well, I think that, our 12 interpretation is that the National Academy said that 13 you need to incorporate more broadly the qualitative 14 factors. And again, these are factors that still 15 don't have, they're not bounded by any certainty now, 16 and so again that's a very important factor as we go 17 through the requirements of NEPA and the backfit 18 analysis and the associated NUREGs that incorporate 19 the need for both quantitative and qualitative 20 analysis.

21 And you know, I just, let me just check 22 here with my notes really quick because the SAMA for 23 the hardened vent, the filtered hardened vent that DTE 24 undertook, you know, it's not only silent on the CEQ 25 but they're also silent on whether or not they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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18 1 incorporated external events, whether or not they 2 thoroughly incorporated land contamination, how they 3 factored that in. And I think that that's the level 4 of detail that NEPA requires an answer.

5 JUDGE SPRITZER: Including, you have five 6 minutes left total or five minutes left on the 7 initial.

8 MS. PEPPERL: About four minutes actually.

9 JUDGE ARNOLD: I think this is kind of 10 irrelevant because we've got questions that are going 11 to go long beyond ten minutes.

12 JUDGE SPRITZER: Okay, go ahead.

13 JUDGE ARNOLD: Sure, I can start. I have 14 questions in that I find some of the statements in the 15 contention to be very general rather than more 16 specific. So, I want to go through and ask you to 17 clarify some of the statements. For instance, on page 18 7, the last paragraph says, "The deficiency 19 highlighted in this contention has enormous 20 independent health and safety significance."

21 Now, this is a contention on SAMA which is 22 a NEPA, an environmental law, and really doesn't 23 factor into the safety aspects of the plant. So, how 24 do you get that this has health and safety 25 connections?

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19 1 MR. GUNTER: The impacts of unfiltered 2 radioactive releases raises a concern for the long-3 term consequences of land contamination and population 4 relocations. And that carries with it health impacts.

5 And so, you know, the idea again is you have a 6 mitigation alternative that both directly can benefit, 7 both directly and indirectly benefits because it 8 provides the filter element which can significantly 9 reduce the land contamination event, for example, but 10 it also provides an indirect benefit in that it will 11 give operators the freedom to act early to, in early 12 interventions to prevent containment failure.

13 So, you know, it gives them a broad 14 opportunity to vent without necessarily, you know, 15 with this passive filter in it, they can vent 16 hydrogen, they can vent pressure. So, you know, in 17 fact it has both the operation to keep the plant safe 18 under severe accident condition, but with this passive 19 condition of a filter, it reduces the consequence of 20 a severe accident impact such as land contamination.

21 JUDGE ARNOLD: In that same paragraph, you 22 say, "Applicant does not adequately or accurately 23 account for the long-recognized design and structural 24 vulnerabilities in the Mark 1 pressure suppression 25 containment system," as if there are many NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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20 1 vulnerabilities. What specifically are you talking 2 about?

3 MR. GUNTER: We're talking about the fact 4 that Generic Letter 89-16 did not go through a safety 5 evaluation. And so, this was for the hardened vent 6 that was put on all Mark 1's and that Generic Letter 7 89-16 basically, the NRC requested the hardened vent 8 be installed on these Mark 1's because of where NUREG 9 1150 recognized that the containment was very likely 10 to fail. This has been acknowledged and I think it's 11 in our statements that, as early as 1972, this 12 vulnerability to failure because the Mark 1 13 containment is essentially undersized for the, you 14 know, it was never evaluated --

15 JUDGE ARNOLD: So, briefly, are you saying 16 that they failed to account for the fact that the 17 containment can fail?

18 MR. GUNTER: They, the containment can 19 fail early and the containment never, and the 20 subsequent mitigation actions such as Generic Letter 21 89-16 did not account for severe accidents.

22 JUDGE ARNOLD: On page 8, in paragraph 23 1.3.1, "Petitioners contend that the absence of 24 analysis and neglect of mitigating alternatives 25 including engineered external high capacity filters on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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21 1 hardened containment vents may result in unanalyzed, 2 unmitigated, and uncontrolled releases of 3 radioactivity to the environment." Okay, so right 4 there you specifically say they didn't analyze high 5 capacity filters. Were there other alternatives that 6 you believe they did not analyze? Or did not 7 adequately analyze?

8 MR. GUNTER: We didn't articulate that in 9 the contention, but yes. There are bypass pathways 10 within the containment that --

11 (PA microphone feedback.)

12 MR. GUNTER: Is that me?

13 JUDGE ARNOLD: Keep going.

14 MR. GUNTER: Okay. For example, you know, 15 right now the way that the current order EA-2013-109 16 is progressing, and we've been watching this very 17 carefully, a lot of the Applicant's eggs are going 18 into this basket that they can rely upon maintaining 19 an open vent path through the wet well. And that 20 raises some concerns because the wet well can in fact 21 get flooded, and if you flood the wet well, you 22 exclude the use of that vent path. And while there 23 may be other vent paths out through the dry well, many 24 of them vent directly into the containment building, 25 or into the reactor building, and thereby raises some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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22 1 issues on hydrogen gas generation, detonation ignition 2 points.

3 So, yes, there are a number of extenuating 4 issues here that what the CEQ 2012-01-57 provides in 5 terms of answering defense in depth is that a filter 6 venting system that's hardened both off the wet well 7 and the dry well gives you that defense in depth. And 8 they believe that it's cost beneficial and that they 9 arrived at this idea that it is a substantial safety 10 enhancement.

11 JUDGE ARNOLD: Let me just explain what 12 the problem is with the lack of specificity here. A 13 contention, if it's admissible, has to be sufficiently 14 specific that an applicant or a licensee knows what 15 they have to defend against. They can defend against 16 a claim that it lacks an analysis of a filtered vent 17 but they can't defend against a claim that, and they 18 didn't analyze other things,' because they just don't 19 know what the contention is.

20 MR. GUNTER: Right. Well, the filter 21 component addresses the defense in depth issue that 22 these other extenuating circumstances involve.

23 JUDGE SPRITZER: So, for you, the primary 24 focus of this contention is really the lack in the 25 SAMA relating to --

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23 1 MR. GUNTER: The filter.

2 JUDGE SPRITZER: The filtered vents?

3 MR. GUNTER: Yes, sir.

4 JUDGE SPRITZER: Okay.

5 JUDGE TRIKOUROS: Yes, well, first of all, 6 you keep discussing the Fukushima accident, and I have 7 no problem with that. But one thing I want to make 8 sure is that we really understand the Fukushima 9 accident and that we look at it in its entirety in 10 terms of what also occurred that was good as opposed 11 to what was bad. In the first regard, I'd like to say 12 that, is it your assertion that only Mark 1 BWRs at 13 that site would have experienced severe accident 14 conditions given the conditions that occurred in 15 Fukushima?

16 MR. GUNTER: Well, we're only dealing with 17 the Mark, we're dealing with the Mark 1 in this 18 proceeding. You know, I'm not going to make 19 assertions beyond that.

20 JUDGE TRIKOUROS: I understand. But you 21 have been discussing Mark 1 in the context of 22 Fukushima in a way that makes one believe that a Mark 23 1 is worse than all other, you know, reactor 24 containment designs.

25 MR. GUNTER: Yes, sir.

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24 1 JUDGE TRIKOUROS: Yes. I think what I 2 should love to put on the record here is I think any 3 PWR or BWR, other than the advanced reactors that were 4 at that Fukushima site would likely have experienced 5 the melt.

6 MR. GUNTER: Yes.

7 JUDGE TRIKOUROS: Most certainly, if they 8 lost DC power. So, you know, I just want to put that 9 in perspective.

10 MR. GUNTER: Yes, sir. But you know, I 11 think that when you start incorporating the, you know, 12 the analysis, we've now moved beyond theoretical 13 analysis in that we need to incorporate experience 14 and, you know, where the Applicant could say that, 15 well, you know, the odds here are so remote that we 16 don't really have to worry about this. But we've had, 17 you know, now three severe accidents in roughly the 18 last three decades, and three of those, one of those 19 accidents involved three Mark 1's that were operating.

20 And so, that's why we, you know, feel that 21 the CEQ 2012-01-57, the fact that it's, just that the 22 OGC and the Applicant are silent on that, we find 23 there is no justification for that. They need to 24 address reality and they need to address what the 25 staff provided in terms of regulatory procedure, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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25 1 backfit rule and guidance.

2 JUDGE ARNOLD: On page 10 of the 3 contention, halfway down the page, you said, "However, 4 the Petitioners point out that the Applicant's 5 description of the Mark 1 pressure suppression 6 containment does not acknowledge, factor in, or 7 incorporate analysis of, and otherwise ignores the 8 long recognized and still unresolved vulnerabilities 9 of the General Electric Mark 1 boiling water reactor 10 pressure suppression containment system."

11 Are you contending that there is 12 information in their containment description that is 13 incorrect?

14 MR. GUNTER: Yes, sir. There is no 15 reliable containment on a Mark 1, containment being 16 radiation containment.

17 JUDGE ARNOLD: Can you point to what in 18 their description is wrong?

19 MR. GUNTER: Well, that the, I think that 20 what we point to is the evidence and conclusions and 21 findings of CEQ 2012-01-57, that you need, that in 22 order to have the defense in depth, that in order to 23 meet the letter of NEPA, that you put a filter on a 24 venting system, and that provides with the defense in 25 depth of containment specifically for containing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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26 1 radiation under severe accident conditions.

2 JUDGE ARNOLD: Now, if you say their 3 description of the containment is incorrect, how is 4 this not a concern with the current licensing basis?

5 MR. GUNTER: Well, we're not, you know, 6 again we have raised within the context of the 7 contention generic design criteria 16. But you know, 8 as you've pointed out, I think that's more background 9 than it is relative to this particular proceeding 10 because we're look at the SAMA analysis for the 11 license extension.

12 JUDGE ARNOLD: So, you're not specifically 13 challenging their description; you're just using that 14 as evidence on this?

15 MR. GUNTER: As background, yes, sir.

16 JUDGE ARNOLD: Okay. Page 11, halfway 17 down the page, "The NRC further concluded that the 18 demonstrated safety margin," oh, this is, yes, where 19 first you're talking about the general design 20 criteria. Is this another background to support your 21 SAMA claim?

22 MR. GUNTER: Yes, sir. They, you know, 23 the fact is that it's well established that the 24 containment is vulnerable and that, so, in light of 25 the severe accident analysis that they're currently NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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27 1 required to go through for the license extension, that 2 their SAMA analysis on the filtered vent needs to 3 incorporate these issues.

4 JUDGE TRIKOUROS: Yes, Mr. Gunter, your 5 evaluation in these pages that Judge Arnold is talking 6 about are dealing with the issues raised by Dr.

7 Hanauer years ago.

8 JUDGE SPRITZER: Speak into the mic.

9 JUDGE TRIKOUROS: Yes, unfortunately, this 10 doesn't reach over. Is that better?

11 MR. GUNTER: Yes. Yes, sir.

12 JUDGE TRIKOUROS: Okay. And those 13 vulnerabilities were identified years ago, something 14 in the range of 40 years ago actually. And there were 15 extensive NRC licensing activities associated with all 16 of these Mark 1 issues, and there were modifications 17 made to the plants to overcome these issues. Are 18 these, is this what we're talking about, those 19 vulnerabilities that were identified back in the 70's?

20 MR. GUNTER: I think that what we're 21 talking about in the context of this particular SAMA 22 is the hardened vent that was installed under Generic 23 Letter 89-16. And those were installed by TEPCO at 24 Fukushima Units 1 through 6 on the Mark 1's and the 25 Mark 2 there. And they did not provide the reliable NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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28 1 containment under severe accident conditions.

2 JUDGE TRIKOUROS: Yes, I understand. And 3 even in our country, the hardened vents are very, the 4 hardened vent designs were plant specific, so I agree 5 with that. But you know, we aren't dealing with 6 orders that have been issued by the Nuclear Regulatory 7 Commission to modify all of this, right?

8 MR. GUNTER: Yes, sir. But we're also 9 dealing with the National Environmental Policy Act and 10 the requirement to do the hard look analysis. And so, 11 I think that's what we have to incorporate here.

12 JUDGE TRIKOUROS: In the SAMA analysis?

13 MR. GUNTER: Yes, sir.

14 JUDGE TRIKOUROS: All right. And so, 15 specifically, the Applicant, my understanding, I 16 looked at that and came up with something like a 17 factor of 40, not cost benefit on the basis of 18 something like a factor of 40.

19 MR. GUNTER: Yes, sir. Therein lies the 20 genuine dispute that we have alleged because they do 21 not address, they are silent on CEQ 2012-01-57. And 22 a large body of NRC's own analysis that determined to 23 the contrary that the filtered vent was a cost 24 beneficial substantial safety enhancement, there's a 25 dispute there.

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29 1 JUDGE ARNOLD: I've still got plenty more.

2 Page 13, first paragraph, you mentioned, "Petitioners 3 contend that new information for the 'maximum credible 4 accident' needs to be updated and incorporated into 5 the very Fermi 2 license renewal request." This 6 maximum credible accident, are you suggesting that the 7 SAMA analysis should be based upon worst case 8 accidents?

9 MR. GUNTER: I'm saying it needs to be 10 based on what we've seen to date, that in fact we now 11 have, we don't have a theoretical analysis, we have 12 real life demonstrations with three operating Mark 1's 13 that failed the containment. And the severe accidents 14 are not remote but they are credible. And we view the 15 Fukushima Daiichi accident as a prolonged station 16 blackout accident that happened three times.

17 JUDGE ARNOLD: Once again, okay, on page 18 18, being specific, "Petitioners contend that the 19 state of the art SAMA alternatives that significantly 20 reduce adverse radiological contamination to the 21 environment are readily available for install today 22 and applicable to the requested license renewal period 23 but have not been analyzed in the Applicant's 24 environmental report." So far, the specific 25 alternatives I've heard of is a filter in the vent.

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30 1 Is there anything else specifically that should be 2 analyzed in SAMA and hasn't been?

3 MR. GUNTER: Well, that's the focus of our 4 contention.

5 JUDGE ARNOLD: Okay, agreed.

6 JUDGE TRIKOUROS: Can I ask the staff one 7 question here? What's the status of filtered vents in 8 the NRC licensing --

9 MR. HARRIS: The status of filtered vents, 10 and it's actually, I believe the title of the 11 rulemaking is, it's not, it's filtering strategies.

12 So, they're looking at filtered vents as a potential 13 rulemaking. That is ongoing. I believe the basis, 14 and I can look that up because I don't remember the 15 exact date that the basis is due, probably sometime in 16 the next six months, but I would want to double check 17 on that particular date. But they're having meetings 18 on the filtered strategies rulemaking, and whether or 19 not that will be a rule that's imposed on licenses in 20 the future.

21 It grew up out of the orders and the CEQ 22 paper that we've been talking about where the 23 Commission took with the staff, actually, you know, 24 suggested that we want to require severe accident 25 capable events, but staff, please take, you know, as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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31 1 an action item to go look at the filtering, you know, 2 in a rulemaking because they did not accept what the 3 staff had recommended at that point.

4 JUDGE TRIKOUROS: I just wanted to point 5 out that one has to be very careful about venting.

6 There are circumstances in a boiling water reactor 7 where venting is a negative thing. And in fact, even 8 at Fukushima, there's Sandia National Laboratories at 9 least indicated --

10 JUDGE ARNOLD: Judge Trikouros, we're not 11 supposed to be giving evidence.

12 MR. GUNTER: But I think that the Judge 13 does point out in reply is that the fact that the NRC 14 is ongoing with rulemaking on the filtered vent and 15 how it may or may not affect the Fermi 2 license 16 renewal proceeding, now is our time. We have standing 17 to address a specific aspect of what NEPA requires in 18 that NEPA mitigation alternative analysis is used in 19 site specific license extensions to identify if there 20 are any additional mitigation alternatives, hardware 21 or procedures, that are cost beneficial to implement 22 at Fermi 2 that can reduce the severe accident risk 23 probability and consequence. So, now is our time.

24 This is what NEPA provides us with. And 25 not to be put off three, four, five, indefinite, you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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32 1 know, years from now, this is our only opportunity 2 and, you know, we wish to exercise it.

3 JUDGE SPRITZER: I take it, however, that 4 if the staff or the NRC did by regulation require 5 vents, this contention would effectively become --

6 MR. GUNTER: Moot.

7 JUDGE SPRITZER: Would it not?

8 MR. GUNTER: If the filtered, if CEQ 2012-9 01-57 option 3 were implemented, this contention would 10 be moot.

11 JUDGE ARNOLD: On page 20, the top 12 paragraph, last sentence says, "These uncontrolled and 13 unfiltered radiological releases and their 14 environmental consequences are not thoroughly or 15 adequately addressed by this Applicant's SAMA 16 analysis." Now, originally, you were saying the 17 filtered vent wasn't analyzed, and now here you're 18 saying the unfiltered releases weren't evaluated. So, 19 is this an expansion of the contention or am I just 20 reading this wrong?

21 MR. GUNTER: If I understand correctly, 22 can I see this? Do you have it right here? Can I 23 have one minute please or less even?

24 (Pause.)

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33 1 that there are pathways of the pressure suppression 2 containment, dry well and wet well, that without a 3 filter aren't analyzed. I mean you can flood up the 4 wet well and preclude the venting for a Mark 1 for 5 Fermi 2. And while you may have other vent paths off 6 of the dry well, they are not adequately analyzed 7 because they open the operator to the same 8 vulnerabilities that we saw at Fukushima where 9 hydrogen venting right along with that radiation is 10 trapped in the reactor building itself, the secondary 11 containment where it can find an ignition point and 12 you have a catastrophic failure.

13 And I think that, again our point here is 14 that this is all analyzed in CEQ 2012-01-57 and the 15 staff's conclusion is that the defense in depth 16 involves a SAMA alternative for a filtered vent of 17 both the dry well and the wet well. And that's been 18 rejected by the Applicant and there again lies our 19 argument that we need to review this as a genuine 20 dispute.

21 JUDGE ARNOLD: Can you tell me of any 22 legal requirement to address CEQ letters in a 23 relicensing application?

24 MR. GUNTER: I think again that we go back 25 to the NEPA mitigation alternative analysis, that, you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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34 1 know, it's you, it's there for the site specific 2 licensing extension to identify viable, cost 3 beneficial mitigation alternatives.

4 JUDGE SPRITZER: Okay, let's move on.

5 We've gone well over your time.

6 MR. GUNTER: Thank you so much.

7 JUDGE SPRITZER: But that's because you 8 were answering our questions and we will not penalize 9 you for the last five minutes of rebuttal. Let's move 10 on to the Applicant.

11 MR. SMITH: Thank you. My name is Tyson 12 Smith for the Applicant. This contention appears to 13 have morphed from what was originally proposed. As 14 originally written, the contention is clearly a 15 contention of omission. The Petitioners note that, or 16 state that the ER fails to account, analyze and 17 consider engineered filtered vents.

18 JUDGE SPRITZER: But the worst of the 19 statements though is to the effect of the adequacy as 20 opposed to omission, so the adequacy of doing the SAMA 21 analysis as opposed to omissions from it. It's really 22 a hodgepodge. It's got a whole bunch of stuff in 23 there. We've obviously spent a great deal of time 24 narrowing and focusing on the issue of this particular 25 SAMA but I take it this was actually considered, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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35 1 filtered vent, is that correct?

2 MR. SMITH: That's correct.

3 JUDGE SPRITZER: It was in SAMA --

4 MR. SMITH: 123.

5 JUDGE SPRITZER: 123. So, it's really, 6 you know, focusing on the adequacy of the 7 consideration and particularly the question of whether 8 this staff document and also the National Academy 9 report, perhaps some other specific documents should 10 have been evaluated. So, can you tell me, were those 11 considered in any way in the SAMA analysis? Was it 12 done for the ER or that particular SAMA 123?

13 MR. SMITH: Sure. That SAMA 123, the SAMA 14 analysis that was performed for Fermi was based on 15 NRC-endorsed industry guidance for performing SAMA 16 analyses. It takes into account the plant condition, 17 looks at a variety of accident sequences, and 18 postulates the consequences in terms of dose and 19 offsite consequences, looks at how those can be 20 reduced by a variety of alternatives. That is the 21 analysis that we presented.

22 Now, the reference to CEQ 12-01-57, I 23 think my initial point was that wasn't really raised 24 and presented in their initial contention. That was 25 really only raised in their reply. So, when Mr.

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36 1 Gunter says repeatedly that we were silent on that, 2 the reason for that is it wasn't really addressed 3 until the report.

4 Though there is a citation to it in their 5 initial contention, that citation, when you actually 6 look at what it says, it says that the staff concludes 7 that based on its regulatory analysis, using standard 8 regulatory analyses techniques, concludes that 9 comparison of a quantifiable cost and benefits would 10 not by themselves demonstrate that the benefits exceed 11 the costs. And that's entirely consistent with the 12 conclusion of our SAMA analysis where we concluded 13 that the benefits of installing a filtered vent are on 14 the order $1.1 million where the cost is on the order 15 of $40 million.

16 In order for the Intervenors, or the 17 Petitioners to have an admissible contention on a SAMA 18 analysis, they must present some basis for concluding 19 that what we've done is "unreasonable." And the 20 Commission has reiterated this many times. The 21 techniques that we used, the standard probabilistic 22 model and techniques are standard and accepted 23 practices. And those are not reasonably disputed by 24 the Intervenors here in this proceeding.

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37 1 I may be confused as to which document we're talking 2 about, on page 13, this is the --

3 MR. SMITH: Correct.

4 JUDGE SPRITZER: They do refer to this NRC 5 staff document, CEQ 2012-01-57 and quote from it 6 including the statement that when you add qualitative 7 factors, I'm paraphrasing here, I'm not quoting 8 literally, but when you add in qualitative factors, 9 that that would tip the balance in favor of the 10 filter. Was that specific document and its conclusion 11 that I just mentioned, was that analyzed in some way 12 in preparing the SAMA analysis or SAMA 123 or for that 13 matter any other SAMA?

14 MR. SMITH: Well, I'll point you to the 15 sentence right before the one you read which says 16 that, "A comparison of the quantifiable cost and 17 benefits of the modifications would not by themselves 18 demonstrate that the benefits exceed the associated 19 costs."

20 JUDGE SPRITZER: Right. No, I understand 21 that.

22 MR. SMITH: So, the staff itself 23 acknowledges that just by using standard regulatory 24 analysis techniques, there is no benefit. It's only 25 when they consider these extra factors, qualitative NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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38 1 factors, that they were able to, that the staff 2 concluded that there were benefits. That's not the 3 outcome of the Commission's vote which is to proceed 4 with a rulemaking to assess whether or not filtered 5 vents are warranted. So, if the question is does our 6 SAMA analysis expressly address qualitative factors, 7 the answer is no because that's not addressed in 8 current NRC accepted regulatory guidance, nor is that 9 the purpose of the SAMA analysis.

10 JUDGE SPRITZER: So, it's your position, 11 in other words, that the qualitative factors that 12 they're stressing, that Petitioners are stressing, are 13 really outside the scope of the SAMA analysis you're 14 required to do?

15 MR. SMITH: Absolutely. And --

16 JUDGE SPRITZER: All right. Was there 17 any, you mentioned guidance, was there any regulation 18 or Commission decision, CLI decision that you can 19 point us to that addresses that issue?

20 MR. SMITH: Sure. And per regulation 21 first, I'll point to 10 CFR 51.71(d) which says that 22 environmental impact statements should, to the fullest 23 extent practicable, quantify the various factors 24 considered. And that's exactly what we did here.

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39 1 doesn't that also say, address qualitative factors?

2 This is 51.71(d)?

3 MR. SMITH: D, correct. And so, it says 4 you may consider qualitative factors, but here 5 Petitioners have not identified what particular 6 qualitative factor we should have but did not 7 consider, nor did they identify how that would affect 8 the outcome of the analysis. They haven't, and the 9 Commission has repeatedly mentioned in numerous CLIs 10 that the purpose of the SAMA analysis is not to, is to 11 identify broadly whether there are likely cost 12 beneficial alternatives.

13 And of course there are other ways you 14 could run the model or different inputs you could do, 15 but the purpose of it is to generally meet this 16 obligation and do a hard look which is also subject to 17 the rule. And that what we have done, what Fermi has 18 done by following standard NRC accepted techniques, 19 and that is by definition a reasonable approach. That 20 means it's incumbent on the Petitioners to identify 21 what is wrong or what factor would change the outcome.

22 And certainly with the filtered vents they have not 23 done so yet.

24 JUDGE TRIKOUROS: While Judge Arnold is 25 looking through his notes, let me ask you, would the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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40 1 SAMA analysis you've done back years ago, would that 2 have allowed for the vents that are there now --

3 MR. SMITH: I can't speculate as to 4 whether that would have been addressed that way at the 5 time or not. I think some of these questions about 6 the filtered vents obviously raise, fundamentally are 7 current licensing basis issues. Their questions are 8 what's the adequate level of safety, and that's a 9 question that the Commission is currently grappling 10 with now in a rulemaking on filtering strategies. And 11 to suggest that somehow that issue is directly related 12 to the SAMA analysis here, I don't see how that's 13 possible and there's certainly no support for that.

14 JUDGE SPRITZER: Let me see if I can, that 15 raises a question that I'll also ask to staff, but is 16 it your position that the fact that, just the fact 17 that the Commission is considering some additional 18 requirements with respect to filtered vents, does that 19 remove this contention regarding the SAMA 123 from our 20 jurisdiction?

21 MR. SMITH: No, it does not. And again, 22 that's because we have considered SAMA 123 in our SAMA 23 analysis, it is part of the environmental report that 24 we provided.

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41 1 agree then that as along as SAMA 123, as long as the 2 Commission is not taking some action that effectively 3 makes the SAMA 123 issue moot, we can still consider 4 their argument that you didn't do a good enough job of 5 analyzing that particular SAMA?

6 MR. SMITH: Yes, that's correct. But 7 their argument that you didn't do a good enough job, 8 that argument must be supported by some reference to 9 our SAMA analysis. And the Commission has repeatedly 10 said that the question is not whether there are other 11 ways you could do that but whether the way that we did 12 it is unreasonable. And they certainly haven't shown 13 that here. They haven't shown what factor or what 14 events or what would have changed the outcome of the 15 SAMA analysis such that SAMA 123 would become cost 16 beneficial, either the cost of installing the filtered 17 vent is less or that the risk is so great that it 18 would make it cost beneficial. And they haven't put 19 forth sufficient information to establish and do not 20 speak on that issue.

21 JUDGE SPRITZER: Let me just ask one other 22 thing and then I'll turn it over to Judge Arnold. We 23 were talking earlier about 10 CFR 51.71(d). That 24 actually is part of a section that deals with the 25 draft environmental impact statement and its contents.

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42 1 Your client of course prepared the environmental 2 report. But do you agree that the language in 3 51.71(d) is something we can look at in terms of 4 defining what the environmental report should contain 5 or no?

6 MR. SMITH: Yes. I mean it's instructive.

7 I mean the point of it I think is consistent with 8 general CEQ guidelines and general NEPA case law is 9 that you should to the extent practical quantify the 10 costs and benefits. Part of the reason for that is 11 that by quantifying it, you make the analysis 12 reproducible in some way. These are things like 13 qualitative factors that hinge upon who the decision 14 maker was at the time of the decision and how much 15 weight to give to some of these various factors. And 16 that again is not the purpose of the NEPA analysis or 17 the SAMA analysis in particular here which is to 18 provide information to the public about what the 19 alternatives were considered, what the costs and 20 benefits are those, and how that might drive some 21 decision making. That's exactly what we've done here 22 and the Petitioners haven't put forth any information 23 to call into question those conclusions.

24 JUDGE SPRITZER: Well, 51.71(d) does say 25 though that to the extent there are important NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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43 1 qualitative considerations or factors that you cannot 2 quantify, these considerations or factors will be 3 discussed in qualitative terms. Can you point us to 4 some, any part of the SAMA analysis with respect to 5 SAMA 123 that did that? If not, if you can't give me 6 that, I'll let --

7 MR. SMITH: Well, I mean I'll, you know, 8 start with the point which is DTE used longstanding 9 accepted SAMA analysis techniques based on NRC-10 endorsed industry guidelines. It relied on site-11 specific meteorological, population data, economic 12 data to estimate the costs and benefits. And it 13 concluded that the probability, weighted consequences 14 were less than the cost of the implementation of a 15 filtered vent.

16 And I haven't heard anything from the 17 Petitioners, and certainly nothing is in their 18 contention or their reply to suggest that 19 consideration of any of these other unknown or unnamed 20 qualitative factors would affect that conclusion. And 21 the Commission has repeatedly said that's what it 22 takes to give a standard contention, they've got to 23 show that what we did was unreasonable. And relying 24 on standard accepted techniques is by definition 25 reasonable.

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44 1 JUDGE SPRITZER: All right.

2 JUDGE ARNOLD: I actually don't have any 3 questions.

4 JUDGE SPRITZER: All right. You're off 5 the hook I guess. There is this other issue related 6 to the National Academy of Sciences report. My rough 7 understanding of how the SAMA analysis would be done 8 is, one part of it is that at some point you would 9 estimate the cost of the severe accident that you're 10 analyzing, environmental and public health costs, is 11 that --

12 MR. SMITH: That's correct. It's based on 13 a probabilistic model that looks at a variety of 14 different scenarios and comes with named consequences 15 based on a year's worth of meteorological data.

16 JUDGE ARNOLD: But it's not just an 17 estimate plucked out of the air?

18 MR. SMITH: Correct, it's not a 19 deterministic analysis. It doesn't come up with a 20 conclusion. The number is, you're referencing $200 21 billion versus $6 billion. That's not how the SAMA 22 analysis worked. It doesn't rely, it doesn't start 23 from the total cost estimate and then work backwards 24 to what the accidents are. It actually does it the 25 other way.

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45 1 JUDGE TRIKOUROS: And in terms of the 2 vulnerabilities of a boiling water reactor, the Mark 3 1 containments that were brought up by the 4 Petitioners, where specifically do you deal with those 5 within the structure of the SAMA analysis?

6 MR. SMITH: All of those issues are 7 embedded in the PRA model that's the input to the SAMA 8 analysis. So, the plant is modeled, like I said, 9 probabilistic risk assessment, a PRA model that models 10 the behavior of the plant in response to certain 11 initiating events, and the frequency and the accident 12 sequences that are addressed in the SAMA analysis 13 incorporating the plan as currently designed and as it 14 has been responded to, making changes to address those 15 issues in the past. So, our starting point is here is 16 what the plan is and looking at all the different 17 accident sequences and scenarios that I think by 18 definition includes the plant's response to mitigate 19 the issues you're addressing in the past.

20 JUDGE TRIKOUROS: And so, a vulnerability 21 in the Mark 1 would show up as a probabilistic number 22 --

23 MR. SMITH: Correct.

24 JUDGE TRIKOUROS: Failure number?

25 MR. SMITH: That's exactly right, correct.

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46 1 JUDGE TRIKOUROS: Okay.

2 JUDGE SPRITZER: And I take it you're 3 telling us that you haven't seen anywhere where the 4 Petitioners have challenged specific numbers you used 5 to say here are the numbers, the different numbers 6 that you should have used that would have potentially 7 at least changed the outcome of the analysis?

8 MR. SMITH: That's exactly right. And 9 that's what the Commission has repeatedly said is 10 required for a SAMA analysis. You must show something 11 to show that the costs and benefits, if done 12 differently and in your way, would have resulted in 13 some SAMA becoming cost beneficial that wasn't before.

14 JUDGE SPRITZER: Let me ask the same 15 essential question with respect to the National 16 Academy's $200 billion cost estimate for the accident 17 that Fukushima had. Is that, how if at all is that 18 factored, that issue of the overall cost estimate?

19 What role does play in the SAMA analysis and would it 20 have made any difference in the National Academy's --

21 MR. SMITH: It plays no role in the SAMA 22 analysis, and there is no way to use that figure in 23 the SAMA analysis. And that's a conclusion, the SAMA 24 analysis is a probabilistic analysis that looks at 25 failure probabilities, event probabilities, and then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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47 1 leads to an assessment of the cost of that accident.

2 So, the bottom line number isn't an output of the SAMA 3 analysis. There is no way to use that bottom line 4 number in the SAMA analysis. That's actually, as I 5 was mentioning before, starting with an endpoint and 6 then working back to look at the results, that's not 7 the purpose the SAMA analysis.

8 JUDGE SPRITZER: Do you, when you do the 9 analysis, do you do it both with and without this 10 particular SAMA that you're looking at?

11 MR. SMITH: That's exactly how you 12 calculate the benefit of a particular SAMA. You run 13 the model without it and you run it with it, and then 14 that delta is the benefit of the SAMA.

15 JUDGE SPRITZER: All right, I think I 16 understand.

17 JUDGE ARNOLD: I did come up with a 18 question. In the contention on page 21, there is a 19 paragraph 1.3.4.2. "Petitioners contend that the 20 Applicant's SAMA alternatives at Table D.1.5 are 21 overly and unrealistically optimistic by not 22 anticipating the potential for fuel damage in the 23 analysis and do not thoroughly or adequately address 24 the failure of the pressure suppression containment 25 with the uncontrolled and unfiltered radiological NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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48 1 releases to the environment."

2 Question one, do you, at any place in your 3 SAMA analysis, just, you know, assume that there is no 4 potential for fuel damage?

5 MR. SMITH: No, the SAMA analysis reflects 6 the potential for fuel damage.

7 JUDGE ARNOLD: Okay. And do you model the 8 pressure suppression containment?

9 MR. SMITH: Absolutely.

10 JUDGE ARNOLD: And is there a mechanism 11 for it to fail in your analysis?

12 MR. SMITH: Yes. And there are a variety 13 of events that look at how that --

14 JUDGE ARNOLD: So, you would basically not 15 agree with that statement?

16 MR. SMITH: That's correct, that's simply 17 wrong.

18 JUDGE ARNOLD: Okay.

19 JUDGE SPRITZER: I wanted to, I did read 20 through a number of, it's Appendix D of the 21 environmental report. I couldn't find anything that 22 specifically addressed SAMA 123, a more general 23 description of how to do the probabilistic risk 24 analysis. But maybe I overlooked something, so is 25 there any particular pages you think that would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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49 1 helpful in understanding the analysis of a particular 2 SAMA?

3 MR. SMITH: Well, SAMA 123 is summarized 4 on page D-120.

5 JUDGE SPRITZER: 123?

6 MR. SMITH: Page D-120 discusses SAMA 123, 7 I'm sorry, yes. And so, that's where it says, "To 8 evaluate the change in plant risk, an analysis was 9 performed, decreasing the concentration of all 10 radionuclides by 50 percent." And so, it says this is 11 about a post accident release, it says no changes in 12 the core damage frequency were used. So, the averted 13 cost risk was calculated by comparing the base, that's 14 why it talks about running it without the SAMA, to the 15 modified events with the SAMA, and then using a 16 similar 50 percent reduction in radionuclide 17 concentrations, the filtering reduced the amount of 18 radionuclides by 50 percent.

19 JUDGE ARNOLD: Is that a reasonable 20 number, 50 percent?

21 MR. SMITH: Yes.

22 JUDGE SPRITZER: Where does it come from?

23 MR. SMITH: I can't explain where it comes 24 from. I assume that that is a standard assumption.

25 My recollection is that that's assumed to be a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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50 1 conservative assumption and that the actual reduction 2 might be more or less, it might be more.

3 JUDGE SPRITZER: But I take it in doing 4 this analysis, you also factor in in some way the 5 likelihood of an accident, a severe accident actually 6 occurring?

7 MR. SMITH: Correct. The core damage 8 frequency estimates are the PRA level 1 analyses, 9 that's the original input to the model is looking for 10 damage frequencies, for core damage frequencies. Then 11 you look at what are the, then level 2 is looking at 12 what are the different ways in which radionuclides 13 might be released in the event of a core damage event.

14 And then level 3 is looking at all the offsite 15 consequences.

16 JUDGE TRIKOUROS: Yes. And again, just to 17 understand the SAMA a little better, is the Mark 1 18 containment more vulnerable to a severe accident than 19 other containments?

20 MR. SMITH: I'm not in a position to opine 21 on that. Certainly the Mark 1 containment at Fermi 22 has been determined to be safe.

23 JUDGE TRIKOUROS: And if there is a severe 24 accident where there is an occurrence, is it required 25 within the design of a plant like Fermi to be able to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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51 1 withstand that without containment unit?

2 MR. SMITH: That is my understanding. But 3 I'm not really in a position to --

4 JUDGE TRIKOUROS: What is your 5 understanding?

6 MR. SMITH: That it would be able to 7 withstand however you just described the containment, 8 not a containment failure but an accident, a core melt 9 that didn't lead to, would be able to withstand that.

10 Did I misunderstand you? Was your question is the 11 plant designed to be able to withstand core damage?

12 JUDGE TRIKOUROS: Well, there are many, I 13 am assuming there are many sequences in your SAMA that 14 lead to core melt that lead to containment error?

15 MR. SMITH: Correct, there are.

16 JUDGE TRIKOUROS: And that is not outside, 17 it is not required by the design basis of the plant?

18 MR. SMITH: I understand what you're 19 saying now.

20 JUDGE TRIKOUROS: Would that not happen?

21 MR. SMITH: Correct. All of these 22 accidents that we're talking about are severe 23 accidents which are by definition accidents beyond the 24 design basis of the plant. So, the plant as designed 25 satisfies all of the NRC's requirements for design NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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52 1 basis accidents.

2 JUDGE TRIKOUROS: Right. And those would 3 still allow it to fail in the event of a severe 4 accident. The NRC requirements do not preclude that?

5 MR. SMITH: Correct.

6 JUDGE SPRITZER: All right, thank you. We 7 will next hear from the NRC staff. Before you get 8 started, maybe you could clarify, I'll ask you the 9 same question I think that I asked Mr. Smith which is 10 the fact that the Commission or the staff is now 11 looking at the issue of in some way modifying 12 requirements that might include these filtered vents, 13 does that in any way impact our jurisdiction to hear 14 this?

15 MR. HARRIS: No, but there is a but to 16 that because we do need to separate that issue out 17 from a NEPA standpoint versus a safety requirement.

18 So, if it was part of a rulemaking, even a rulemaking 19 that there is Commission case law that's something 20 that's subject to a generic rulemaking, it's not 21 something that can be litigated before the ASLB. But 22 that doesn't necessarily preclude you from having to 23 look at it from a NEPA standpoint. But from a safety 24 standpoint, it would remove it from the jurisdiction.

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53 1 kind of safety improvement like this really is sort 2 of, is outside, the current licensing basis is outside 3 the scope of the jurisdiction.

4 JUDGE SPRITZER: Assume that we're focused 5 simply on the issue of whether SAMA 123 was adequate, 6 or I should say narrow their Contention 1, that would 7 be something we could --

8 MR. HARRIS: That would be something that 9 you can look at in terms of how the NEPA, the SAMA 10 analysis under the National Environmental Policy Act, 11 you know, could, it's something that is subject to 12 challenge in this type of proceeding.

13 JUDGE SPRITZER: Okay.

14 MR. HARRIS: There are a couple of issues 15 that I want to address that have come up as we've been 16 talking. Turning back first to this idea of 17 qualitative analysis, I'm looking at the original 18 contention because we have been going back to page 13 19 where they cite to the staff CEQ paper where they made 20 recommendations on installing severe accident capable 21 events engineered filters, that's really, that one 22 quote is the only place where qualitative factors come 23 up in their initial contention, that the staff, you 24 know, as a result of doing a backfit for safety 25 purposes considered qualitative factors of whether or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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54 1 not engineered filtered vents should be required.

2 Nowhere else in their initial contention really 3 discusses that aspect of it.

4 You know, the CEQ paper that we are 5 talking about was, you know, about a thousand pages 6 with all the appendixes that were in it. So, trying 7 to sort of sort through that CEQ paper based on their 8 one reference that they never really come back when 9 the scope of what their contention really was was you 10 didn't analyze filtered vents, and clearly filtered 11 vents were analyzed from a quantitative effect, is 12 that's really sort of asking a lot of the other 13 parties to sort of read into that one single line that 14 that was the crux of their argument. And then it sort 15 of expands out into the reply that really we only care 16 about these qualitative factors. If that was true, 17 they probably should have addressed it more thoroughly 18 in the initial contention.

19 The reason, you know, we didn't address 20 qualitative factors is it did not seem to be within 21 the scope of their contention. They kept complaining 22 about the fact that filtered vents weren't analyzed, 23 and they were.

24 JUDGE SPRITZER: Well, there were some 25 references to them not being adequately analyzed. But NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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55 1 we're here today, so whatever you think you haven't 2 had the chance to argue previously, you can put before 3 us.

4 MR. HARRIS: Right. So, but those 5 adequate analyses are sort of, you know, up in the air 6 of it wasn't adequately done. As Judge Arnold was 7 mentioning is that they're sort of, you know, 8 unspecific, you know, there wasn't sufficient, you 9 know, analysis. You didn't take into account, for 10 example, we've been talking about the design 11 vulnerabilities that were first identified in the 12 70's. Since that time, of course you've had the 13 generic letter that required at that time what were 14 called reliable hardened vents, most of them like when 15 plants put it in. But since then we actually have two 16 orders that have come out that have required both 17 reliable hardened vents and then that order was 18 superseded by the severe accident capable vents.

19 So, now the current licensing basis 20 reflects those changes to it. You know, to the extent 21 that the Petitioners think that those changes don't, 22 are insufficient to provide safety, license renewal is 23 not the place to do it, and not to use the SAMA 24 analysis to attack the safety of the current licensing 25 basis for the plant. Those types of challenges are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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56 1 normally done through rulemaking or 2206 petitions.

2 And I understand that the Petitioners do not like the 3 way the 2206 petition process works, but those are the 4 rules that the Commission set out for how to address 5 a current safety issue within the plant.

6 One of the other things that has --

7 JUDGE SPRITZER: But not a NEPA issue.

8 MR. HARRIS: But not a NEPA issue. But 9 under the NEPA issue, I need to provide a hard look at 10 the environmental impacts.

11 JUDGE SPRITZER: I can't speak for my 12 colleagues, but certainly for me, I understand this 13 purely is a NEPA issue relating to SAMA 123. I 14 understand entirely your position about the safety 15 arguments about whether the Commission should or 16 should not, bottom line the continuing the licensing 17 basis, are outside the scope of licensing basis and 18 are a debatable issue. But I think they've narrowed 19 the contention. I agree, as originally written, it 20 was diffused to say the least. But it's been narrowed 21 somewhat, or not somewhat, a lot as a result of our 22 discussion here today. So, I think it would be best 23 to focus on the NEPA issue.

24 I mean, well, let me ask you this. I 25 asked Mr. Smith about 51.71(d).

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57 1 MR. HARRIS: Right.

2 JUDGE SPRITZER: Which directly addresses 3 the draft EIS, not the environmental report. But do 4 you agree, we can look to the requirements for the 5 contents of the draft EIS in interpreting what should 6 be in the environmental report?

7 MR. HARRIS: That is consistent with the 8 Commission case law. The Commission has indicated 9 that, at least for purposes of DEIS which will 10 eventually be a staff document, at this point of the 11 proceeding the ER somewhat stands in for the staff's 12 EIS for this kind of challenges. So, the requirements 13 of an EIS, you know, is a good instruction point for 14 figuring out what should be in the environmental 15 report. So, that's true.

16 Addressing that particular language in the 17 51.71(d), it does, you know, say that you should 18 quantify. You can consider qualitative factors to the 19 extent that they haven't been quantified. The SAMA 20 analysis which we've heard a little bit about before, 21 you know, does consider a lot of unknowns, a lot of 22 this kind of factors that are very difficult to 23 quantify. It does sensitivity studies, it does 24 uncertainty to try to account for the things that are 25 very difficult to determine.

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58 1 In this particular proceeding, the SAMA 2 analysis that was performed by DTE, they used an 3 uncertainty factor of 2.5. So, they took their 4 baseline, their analysis and multiplied it by 2.5 in 5 terms of the types of benefits that you could actually 6 get to try to account for these things that are both 7 difficult to quantify, unknown, things that, you know, 8 are very difficult to model, and just the uncertainty 9 with the fact that severe accidents, you know, there 10 have been a few but they're not easy to model. And we 11 have uncertainty both with the inputs and, you know, 12 the particular analysis, you know, and the model as it 13 goes out, that there is some unknowns out there.

14 So, one of the things that was addressed 15 with the National Academy of Sciences report, the 16 National Academy of Sciences report, when you actually 17 look at what the National Academy of Sciences has 18 actually said is they weren't commenting on what the 19 NRC did for their SAMA analysis looking at filtered 20 vents. That was not within the scope of their task.

21 And you look at the recommendations, and they 22 specifically say that they didn't think, that they 23 weren't sure that, they didn't look at it enough to 24 make any determinations of whether or not the analysis 25 was okay in their minds.

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59 1 They simply pointed out that for 2 recommendation 5.2(a) and 5.2(c), that it would be in 3 both the industry's and the NRC's, from a prospective 4 basis, to try to improve the ability to model external 5 events and to account for some, you know, to continue 6 to try to improve the model in terms of the 7 consequences because these models are somewhat 8 sensitive to the inputs that you put into it. But you 9 have to put the best inputs that you have at the time.

10 You shouldn't be just putting in extremely large, 11 extremely conservative inputs to generate results, 12 because that would really be turning us into a worst 13 case type of analysis. If I put in inputs that would 14 account for meteors striking the plant and that type 15 of accident, you know, I mean there is always a severe 16 accident bigger than the one that we have considered 17 and you can continue to, you know, postulate even 18 worse severe accidents and worst severe accidents, and 19 you have to use the information that you have.

20 And that's what the Petitioners haven't 21 done is pointed to why that analysis doesn't capture 22 all those types of issues. One of the things that 23 came up here, the current argument is dealing with 24 external, both external events and how that's modeled, 25 but also the contamination, land contamination. Both NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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60 1 of those things are actually considered in the SAMA 2 analysis. The external events, they used a multiplier 3 again to account for the internal events, 11 times.

4 So, the external event multiplier was 11 times the 5 actual accident. Sorry, the time. The internal 6 accident, and they actually accounted for the cost to 7 decontaminate. That's found in their ER.

8 So, those things are not missing, you 9 know. Somehow that would be incumbent on Petitioners 10 to point to why that analysis was wrong.

11 JUDGE SPRITZER: All right. Unless my 12 colleagues have any further questions, I think you've 13 exhausted your time. You still have five minutes for 14 rebuttal. Do you have anything further to add at this 15 point? Petitioners, sorry.

16 MR. GUNTER: Well, thank you. Yes, Paul 17 Gunter of Beyond Nuclear. You know, when you look at 18 SAMA 123, it's scant. There is no idea of what the 19 Applicant has and has not considered. And I think 20 that herein we want the hard look. That's why we 21 requested the hearing.

22 And the fact is that we find it a little 23 awkward that the public has to do what we believe to 24 be the NRC's job to take that hard look. That's what, 25 NEPA wants the federal government to do this look, not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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61 1 people, you know, not the Petitioners necessarily.

2 But we have, you know, it is incumbent upon us to 3 throw a flag on the field and that's essentially what 4 we're doing here.

5 But I wanted to just close by saying that 6 the backfit analysis, it's very clear in 10 CFR 50.109 7 that, you know, it doesn't say that you, it doesn't 8 provide for an option. But it says that when you have 9 these large uncertainties, that you need to 10 incorporate both the quantitative and the qualitative 11 factors. And this is supported in the regulatory 12 guidance by NUREG 1409, NUREG BR0058, and NUREG 13 BR0184. So, you know, the onus is upon the Agency to 14 be taking this hard look and that's what we're asking 15 for.

16 JUDGE SPRITZER: Let me ask one question 17 with regard to the National Academy of Sciences report 18 and their $200 billion cost estimate for a severe 19 accident for the Fukushima accident. He says that 20 even if they had accepted that figure, it wouldn't 21 make any difference to the SAMA analysis done for SAMA 22 123, or I suspect for any of the other SAMAs. Would 23 you agree or disagree?

24 MR. GUNTER: We disagree.

25 JUDGE SPRITZER: Why?

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62 1 MR. GUNTER: Well, in Appendix L, just 2 briefly, it says here, to quote NAS, "The point of 3 this appendix is not to critique the US Nuclear 4 Regulatory Commission's analysis. The committee did 5 not perform an in-depth review of this analysis 6 because it is outside the statement of tasks for the 7 study. The committee offers this example to 8 demonstrate that severe accidents such as occurred in 9 Fukushima Daiichi plant can have large costs and other 10 consequences that are not considered in US NRC backfit 11 analysis. This includes national economic disruption, 12 anxiety and depression, which affected populations and 13 deterioration of social institutions arising from a 14 loss of trust in government operations."

15 So, the NAS basically again says that you 16 need to take this broader qualitative look that now is 17 not theoretical. I also would note that the CEQ 2012-18 01-57, they did the MELCOR analysis, and they say that 19 the MELCOR MAC-S analysis provided technical basis for 20 support of option 3 in the regulatory analysis. They 21 did the MAC-S consequence analysis in CEQ 2012-01-57 22 and they conclude these MAC-S consequence analyses 23 show a clear benefit in applying an external filter to 24 either the wet well or the dry well vent path. Staff 25 also did the probabilistic risk assessment in 01-57 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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63 1 and concluded that the risk evaluation provides a 2 technical basis to support option 3 in the regulatory 3 analysis.

4 So, we're seeing a hard look done by NRC 5 in this mitigation analysis. And this is an excellent 6 opportunity for the NRC to gain significant public 7 confidence that it holds forth to, that the public and 8 the environment, and these are the strong 9 considerations. So, that's why we're requesting that 10 this licensing board provide us with a hearing so that 11 we can sort this dispute out.

12 JUDGE SPRITZER: Okay, thank you. You 13 have exhausted your rebuttal time and I think it's 14 time we took a break. We've been here for about an 15 hour1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> and-a-half. We'll resume in ten minutes and move 16 on to --

17 COURT REPORTER: Judge Spritzer? We need 18 15 minutes for an audio review issue.

19 JUDGE SPRITZER: Okay, 15 minutes. So, 20 please return at 10 minutes after 11:00.

21 (Off the record.)

22 JUDGE SPRITZER: We are now on to Joint 23 Petitioners' environmental Contention 2, another 24 contention that concerns severe accident mitigation 25 alternatives, this one related to spent fuel pool NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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64 1 fires. Petitioners ready to proceed on that?

2 MR. LODGE: Yes.

3 JUDGE SPRITZER: Please do.

4 MR. LODGE: Thank you. I'm Terry Lodge, 5 counsel for three of the Intervenors.

6 JUDGE SPRITZER: You might want to put the 7 microphone a little closer.

8 MR. LODGE: I didn't want to ruin things.

9 JUDGE SPRITZER: Never mind.

10 MR. LODGE: Your Honor, I'll just try to 11 talk loudly.

12 JUDGE SPRITZER: All right, that would be 13 fine.

14 MR. LODGE: If there's a problem, I will 15 assume you'll let me know, or the rest of the panel.

16 Contention 2 deals with the Petitioners' allegation 17 that the Fermi 2 application doesn't satisfy NEPA 18 because it does not consider a range of mitigation 19 measures to mitigate the risk of catastrophic fires in 20 the densely packed, closed frame spent fuel storage 21 pool at Fermi 2.

22 By way of background, the DC Circuit 23 opinion on the waste confidence decision enjoined the 24 NRC to consider the spent fuel fire and leak 25 possibilities. The NRC did some work on a generic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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65 1 analysis of those prospective problems. However, in 2 May of this year, by I believe a 3 to 2 vote, the 3 Commission essentially terminated the responsibility 4 of the staff to continue that assessment.

5 Chairman Macfarlane who voted in the 6 minority, opposed to that vote to terminate, said that 7 there are mitigation opportunities that certainly must 8 be considered including longer transfer times for dry 9 storage, direct spent fuel, direct discharge into 10 varying dispersal patterns, substitution of open rack 11 low density storage racks for high density storage 12 racks, and alternative fuel designs. Pardon me, it 13 was a 4 to 1 vote, I'm corrected. The problem in 14 Fermi 2's case is that it is a fact specific matter.

15 Fermi 2 raises grave concerns. There are 16 approximately 600 metric tons of spent fuel being 17 stored onsite. There has been essentially maximum re-18 racking potential to increase the density of the 19 storage mechanisms in place. And the transfer to dry 20 casks has been delayed because of weld problems that 21 date back more than 30 years, that there are 22 structural problems and concerns as to whether or not 23 the crane assembly would be capable of removing fuel 24 safely. The margin is very, very narrow indeed.

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66 1 of the generic assessment with the fact that we have 2 of course a Contention 3 that is at least a 3 placeholder challenge, continuing challenge to the 4 waste confidence spent fuel storage, long term storage 5 determination, we believe that there must be site 6 specific consideration within this license amendment 7 proceeding of the spent fuel fire potential, both as 8 a straight topic for mitigation discussion within the 9 NEPA as well as within SAMA consideration.

10 JUDGE SPRITZER: With respect to SAMAs, 11 let me ask this, are you saying that they have to 12 consider SAMAs for a spent fuel pool fire that might 13 occur during the course of a severe accident involving 14 the reactor where you have a loss of --

15 MR. LODGE: Of power.

16 JUDGE SPRITZER: When the core becomes 17 uncovered and you have a severe accident in the 18 reactor? Or are you saying totally independent of an 19 accident of that type, they have to look at the 20 possibility of an accident, any type of accident that 21 would result in a spent fuel pool fire including for 22 example inadvertent leakage from a pool that somehow 23 could occur?

24 MR. LODGE: The answer would be both, but 25 we are very concerned that in any type of loss of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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67 1 power circumstance that might be caused by the reactor 2 itself going into some sort of cataclysm, that the 3 spent fuel pool circumstance has to be analyzed at 4 least as a cumulative impact under NEPA.

5 JUDGE SPRITZER: Okay.

6 MR. LODGE: We're aware, and of course in 7 response to the NRC and DTE claims, that there are 8 scoping problems here, that any consideration of the 9 spent fuel pool is outside the license renewal 10 proceeding. They cited the Turkey Point decision from 11 2001. But we also noted in that very same decision 12 that the Commission said that adverse aging effects 13 can result from various number of things, factors, and 14 then that age related degradation can affect among 15 other things the spent fuel pool.

16 We believe that the cumulative effects 17 type of analysis certainly has applicability here. We 18 also believe that the fact that there is no longer 19 what we believe is compliance with the courts, that 20 the DC Circuits order, that now in the Fermi 2 case we 21 have a fact specific situation that is potentially 22 very dire. There is considerably more fuel being 23 stored at Fermi than in all of the reactors at the 24 Fukushima site. The population within 50 miles is 25 nearly five million people within 50 miles of Fermi 2.

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68 1 The fact is that for the long, well, for the 2 indeterminate future, the spent fuel pool is going to 3 be the place where spent fuel is going to be reposed 4 at Fermi 2; for how long, it's extremely difficult to 5 say.

6 JUDGE SPRITZER: What are the specific 7 SAMAs that you say, well, are there specific, let me 8 ask this, are there specific SAMAs that you contend 9 should have been considered to mitigate the risk of 10 catastrophic fires and spent fuel pools? And if so, 11 where did you identify those in Contention 2?

12 MR. LODGE: Your Honor, we brought this as 13 a contention of omission and did not identify this in 14 the SAMAs.

15 JUDGE SPRITZER: So, you're just saying 16 they didn't look at this type of SAMA at all?

17 MR. LODGE: Right.

18 JUDGE SPRITZER: There are no SAMAs that 19 address the risk of catastrophic fires and spent fuel 20 pools and, therefore, the SAMA analysis is deficient, 21 that's your position.

22 MR. LODGE: Correct. Yes.

23 JUDGE SPRITZER: All right, just so I 24 understand. Thank you, go ahead.

25 MR. LODGE: We're prepared to reserve, Ms.

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69 1 Pepperl said we have three minutes left maybe of our 2 15?

3 MS. PEPPERL: That doesn't include the 15.

4 MR. LODGE: Okay.

5 JUDGE SPRITZER: You do, by the way, want 6 to reserve five minutes for rebuttal?

7 MR. LODGE: Yes, thank you.

8 JUDGE SPRITZER: Okay.

9 MR. LODGE: We're going to reserve the 10 remainder of our time.

11 JUDGE SPRITZER: All right. Well, we'll 12 give you five minutes. Let's proceed to the 13 Applicant.

14 MS. REDDICK: Thank you. Derani Reddick 15 for the Applicant. As Mr. Lodge has stated, their 16 claim is really based on a lack of mitigation measures 17 for spent fuel pool accidents. But spent fuel pool 18 accidents are a Category 1 issue under the NRC's 19 rules. What that means is that the NRC has already 20 looked at the impacts of a spent fuel pool accident, 21 and this is considered in the context of the category 22 that's called onsite storage of spent fuel.

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70 1 this is an NRC rule that the impacts of spent fuel 2 pool accidents have small impacts and that further 3 mitigation alternatives need not be considered. The 4 Commission has specifically stated that the 5 requirement to consider SAMAs applies to severe 6 accidents for reactors, it does not apply to spent 7 fuel pool accidents. And in fact --

8 JUDGE SPRITZER: This is probably in your 9 brief, but do you remember the specific rule that, 10 where the Commission has indicated that?

11 MS. REDDICK: In the Turkey Point 12 proceeding, this is CLI-01-17 54 NRC 3. The 13 Commission specifically stated that, and I'm reading 14 here, "Part 51's reference to severe accident 15 mitigation alternatives applies to nuclear reactor 16 accidents, not spent fuel storage accidents."

17 JUDGE SPRITZER: What, all right, I guess 18 the question then would be, in Fukushima at least, my 19 very rough understanding of what happened at 20 Fukushima, there are at least concerns of the 21 possibility of release of radioactivity from the spent 22 fuel pool. I'm not sure whether it's ever been 23 resolved if that occurred or not. Is there, are you 24 interpreting the Commission to say that as part of the 25 analysis of severe accidents, you don't need to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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71 1 consider the possibility that there might be some kind 2 of damage to spent fuel pool that would lead to a 3 release of radioactivity?

4 MS. REDDICK: Right, that this idea that 5 there is sort of a cumulative impact that needed to 6 be assessed --

7 JUDGE SPRITZER: It might be a cumulative 8 impact, it might be a direct impact, I mean let's say 9 as a result of the accident, the pool no longer 10 functions in terms of cooling the rods as it's 11 supposed to, and as a result there's a fire and a 12 release of radioactivity, do they need, has the 13 Commission said you do not need to consider that 14 possibility in your SAMA analysis?

15 MS. REDDICK: I'm not sure the Commission 16 has directly addressed this specific point. The 17 Petitioners have not put forth any specific or 18 plausible scenario whereby that could happen. It's 19 not entirely clear as you were asking, Your Honor, 20 what the contention is alleging with respect to how 21 the spent fuel pool accident would somehow impact the 22 reactor accident or impact the ability to mitigate a 23 reactor accident. It's not clear from their petition.

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72 1 they need to allege a specific deficiency.

2 Here, what they are alleging as a 3 deficiency, there being the lack of mitigation 4 measures, has already been determined by the 5 Commission to not be required for spent fuel pool 6 accident. In fact, the Commission in the GEIS, both 7 the 1996 GEIS and the 2013 GEIS, considered mitigating 8 measures for spent fuel pool accidents. And they 9 determined that no additional plant specific measures 10 would be substantially beneficial in order to warrant 11 their consideration.

12 Additionally, the Petitioners raised 13 allegedly new and significant information regarding 14 the expedited transfer of spent fuel. This is Com CEQ 15 13-30, and this is where they draw the conclusion that 16 certain mitigation measures should be implemented.

17 But what that study shows, and this is the staff's 18 regulatory analysis for the expedited transfer of 19 spent fuel, the staff concluded that the benefit of 20 expedited transfer of spent fuel from the pool to dry 21 cask storage is minor and limited and, therefore, not 22 justified under the expected cost. And the Commission 23 agreed with this. They agree that expedited transfer 24 need not be required.

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73 1 Mr. Lodge alleges some concerns with respect to the 2 ability to move the fuel from the pool to dry cask 3 storage. That has been completed. I believe the 4 first offload from the pool to the cask occurred this 5 past summer and the NRC was there for that. They 6 issued an inspection report and found no concerns and 7 no findings regarding that.

8 JUDGE SPRITZER: While we're on the 9 subject, it reminds me while we're on the subject of 10 current conditions of the plant, this is going back to 11 the earlier contention. For the hardened vents, are 12 there hardened vents now at Fermi? I understand, I 13 take it there are filters of the type that were 14 evaluated in SAMA 123. Are there, is there a hardened 15 vent, and if not, will there be one?

16 MR. SMITH: Yes, there currently is a 17 hardened vent. And then the additional post-Fukushima 18 requirements mandate the installation of some changes 19 or some upgrades to that hardened vent that will be 20 taking place over the next couple of years.

21 JUDGE SPRITZER: But that does not include 22 the filters that were addressed in SAMA 123, is that 23 --

24 MR. SMITH: That's correct.

25 JUDGE SPRITZER: Okay. Sorry, go ahead.

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74 1 Sorry for that digression.

2 MS. REDDICK: I'm prepared to answer your 3 questions, Your Honors.

4 JUDGE SPRITZER: Since neither I nor my 5 colleagues have any further, well, okay, we'll move 6 back to him. Let's hear from the staff first.

7 MR. WACHUTKA: Yes, Your Honors. May it 8 please the Board, my name is Jeremy Wachutka and I'm 9 arguing on behalf of the NRC staff that Joint 10 Petitioners' proposed Contention 2 is inadmissible 11 because it is outside the scope of this license 12 renewal proceeding.

13 As we have heard, proposed Contention 2 14 raises multiple arguments. Of these arguments are 15 other environmental arguments challenging a Commission 16 generic Category 1 determination or they are safety 17 arguments challenging the current licensing basis of 18 Fermi. Proposed Contention 2 does not include 10 CFR 19 Section 2.335 waiver request, nor does it include the 20 necessary information to satisfy the four millstone 21 factors. Therefore, proposed Contention 2 is outside 22 the scope of this license renewal proceeding and 23 should be denied.

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75 1 spent fuel pool fires in their mitigation. Instead, 2 DTE's environmental report incorporates all of the 3 Commission's generic Category 1 findings of 4 environmental impacts of the onsite storage of spent 5 nuclear fire provided in Table B1. In the Turkey 6 Point proceedings, CLI-01-17 and the Pilgrim 7 proceedings, CLI-07-3, the Commission held that a 8 substantively identical challenge to the incorporation 9 of the Commission spent fuel pool storage Category 1 10 determination in license renewal proceedings was not 11 admissible without a waiver because they constitute a 12 challenge to the Commission's regulations.

13 Furthermore, the Commission held that no 14 discussion of mitigation alternatives is necessary for 15 spent fuel Category 1 issues. This is supported by 10 16 CFR Section 51.53(c)(3)(iii) which states that an 17 environmental report is not required to consider 18 alternatives for reducing adverse impacts for Category 19 1 issues. Therefore, according to both the 20 Commission's regulations and case law, the argument of 21 proposed Contention 2 that spent fuel pool fires and 22 their mitigation should be analyzed in DTE's 23 environmental report is inadmissible.

24 JUDGE SPRITZER: SAMA contentions, 25 however, are Category 2 issues, I take it you would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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76 1 agree with that?

2 MR. WACHUTKA: That is true, Your Honors.

3 And so, Joint Petitioners also make that argument that 4 you should look at Table B1 and that their spent fuel 5 fires contention shouldn't fall under the Category 1 6 issue of "onsite storage of spent nuclear fuel," but 7 should instead fall under the Category 2 issue of 8 "severe accidents." This severe accidents category 9 states that the probability weighted consequences of 10 releases and their social and economic impacts as a 11 result of severe accidents is small for all plants.

12 However, it also states that severe accident 13 mitigation alternatives must be considered once for 14 each plant.

15 In Pilgrim, the Commission denied a 16 substantively identical argument stating that Category 17 1 SAMA requirement only applies to "nuclear reactor 18 accidents, not spent fuel storage accidents." Thus, 19 SAMA applies to nuclear reactor accidents as 20 determined on a site by site basis, while the 21 consequences of spent fuel storage accidents is 22 already generically determined under the onsite 23 storage of spent nuclear fuel, section of Table B1.

24 So, in order to rebut this, the Joint Petitioners 25 state that what they are trying to get at is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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77 1 cumulative effects argument that NEPA requires that 2 all this is considered under SAMA. However, this does 3 not necessarily satisfy the Commission's or the NEPA 4 hard look requirement because the Commission has 5 already stated that it does some of its environmental 6 impacts generically, some of its environmental impacts 7 on a case by case basis, and that this process does 8 satisfy NEPA.

9 For instance, in Turkey Point, the 10 Commission said, in the end, "The final supplemental 11 environmental impact statement will weigh all of the 12 expected environmental impacts of license renewal, 13 both those for which there are generic findings and 14 those described in a plant specific analysis."

15 Therefore, the Commission's process already accounts 16 for all the environmental impacts, just some are 17 accounted for generically like spent fuel storage, and 18 some are accounted for case by case like SAMA for 19 reactor accidents. So, there is no gap here. All the 20 environmental impacts are being accounted for.

21 JUDGE SPRITZER: Understood in that. I 22 guess let me ask you the same question I asked the 23 Applicant about. Is there an obligation to consider 24 SAMAs that might or would mitigate a spent fuel pool 25 fire that occurred in the course of, that is as the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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78 1 result of a severe accident? In other words, is there 2 some overlap between those two areas? And how, what 3 would the Applicant do in the ER?

4 MR. WACHUTKA: Your Honor, I would just, 5 I would have to go back to the Pilgrim proceeding 6 where the Commission looked at this substantively 7 identical issue and they said nuclear reactor 8 accidents is what is covered by their Table B1 severe 9 accidents category which we're discussing here. And 10 so, it's the staff's position that this has already 11 been decided by the Commission.

12 Also, Your Honors, Joint Petitioners 13 allege that there is new and significant information 14 and, therefore, because of this new and significant 15 information, they should be granted, this contention 16 should be admitted. However, the Commission has 17 already also directly addressed this issue and denied 18 this argument stating in the Pilgrim proceeding that, 19 "Adjudicating Category 1 issue site by site based 20 merely on a claim of 'new and significant information' 21 would defeat the purpose of resolving generic issues 22 in a generic environmental impact statement."

23 Therefore, although the information alleged to be new 24 and significant by the Joint Petitioners could 25 potentially be used as a basis for say a 10 CFR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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79 1 Section 2.335 waiver petition or a 10 CFR Section 2 2.802 petition for rulemaking, it cannot, based on 3 this Commission direction, serve as the basis for just 4 a contention in a license renewal proceeding.

5 And this is all supported by the fact that 6 there is a petition for rulemaking currently being 7 evaluated by the NRC, PRM-51-31, which addresses this 8 very issue and was submitted in March 2014 and amended 9 in June 2014 and is still under consideration. So, it 10 appears that the appropriate venue for this new and 11 significant information argument is the rulemaking 12 process.

13 In summary, Your Honors, the Commission's 14 regulations at 10 CFR Part 51 and 10 CFR Part 54, as 15 well a the Commission's binding case law in Turkey 16 Point and Pilgrim, demonstrate that all of the 17 arguments of proposed Contention 2 are outside the 18 scope of this license renewal proceeding. Moreover, 19 Joint Petitioners do not request the waiver of these 20 rules according to 10 CFR Section 2.335 or satisfy the 21 millstone factors for a waiver. Therefore, proposed 22 Contention 2 should be denied.

23 JUDGE SPRITZER: All right. Mr. Lodge, 24 you can have five additional minutes.

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80 1 respect to the transport of casks, we anticipate and 2 it's a very realistic anticipation on our parts that 3 like virtually every other operating nuclear utility, 4 that DTE will slow walk its transfers to dry cask 5 storage, that the preferred method of storage is going 6 to be very dense, in fact overpacked storage in racks 7 in a pool. Beyond Nuclear is indeed a party to the 8 rulemaking that Counsel for the NRC staff just talked 9 about. But rulemakings, as I'm sure the ASLB knows, 10 do not go by any hard prescribed time line. There are 11 many things, there are many procedural steps, and 12 there are many considerations that go into so 13 complicated an issue.

14 I'd like to point out, however, that one 15 of the, one set of data that has emerged from the 16 post-Fukushima expedited spent fuel transfer 17 proceeding is the new information that we cite very 18 early in our statement of contention that even a small 19 nuclear reactor pool fire could render 9,400 square 20 miles uninhabitable and displace 4.1 million 21 Americans. And I pointed out a few minutes ago that 22 the greater population of Toledo and Detroit within a 23 50-mile radius of Fermi 2 totals nearly five million 24 people. So, I think the implication, the inference 25 certainly could be that a much larger population would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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81 1 be affected here.

2 Spent fuel can be transferred out of high 3 density storage pools in a cost effective way, and the 4 likelihood of fires can be reduced if that type of 5 thing happens. Pardon me one moment. Yes, there's 6 also Canadian populations that we haven't discussed.

7 The cumulative effects analysis certainly 8 has to take into account specific scenarios that could 9 occur such as a spent fuel disaster that can lead to 10 a reactor accident, especially in a multi-reactor site 11 as Fermi is anticipated to be during the license 12 renewal period, and the opposite also where a reactor 13 causes a spent fuel pool problem or catastrophe. We 14 believe that the nature of the application if you will 15 with the Commission by not following the DC Circuit 16 opinion, that the situation now is such that local 17 fact specific consideration has to be given to the 18 Fermi 2 spent fuel problems for the license renewal 19 period. This is more of course than a current 20 management type of problem because it has been 21 something that has cumulatively developed since Fermi 22 2 went online.

23 Fermi 2 is slated for instance for another 24 fuel outage in 2015. That of course is not within the 25 license renewal period. But presuming that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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82 1 reactor operates more or less on the same basis as it 2 has, there will be considerably more spent fuel onsite 3 probably in the pool or only slowly being removed to 4 casks by the time the license renewal period 5 commences. That's all I have unless there are 6 questions from the panel.

7 JUDGE ARNOLD: I do have a question.

8 Given that the NRC staff has the responsibility to 9 satisfy NEPA and that the Applicant's environmental 10 report need only address 10 CFR 51 requirements, what 11 specifically is it in 10 CFR 51 that requires the 12 analysis that you're asking them to perform?

13 MR. LODGE: Well, I don't have 10 CFR 51 14 entire text here. I believe, first of all, that the 15 CEQ regs must be complied with also by the Commission.

16 And that's been a bone of --

17 JUDGE ARNOLD: Right, by the Commission.

18 But we're talking about the Applicant and his 19 environmental report which is totally needed to 20 satisfy 10 CFR 51. And there's a lot of things 21 required by NEPA that are not required by 10 CFR 51.

22 MR. LODGE: Right.

23 JUDGE ARNOLD: So, I want to see how 24 exactly this analysis is the responsibility of the 25 Applicant.

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83 1 MR. LODGE: Well, if Your Honor is simply 2 suggesting that we have made a premature, raised this 3 prematurely, at least we have raised it, and that has 4 been a problem in nuclear litigation. As I understand 5 it, the environmental report is essentially supposed 6 to be some type of template as to, a suggestion if you 7 will to the Commission staff as to how NEPA should be 8 complied with. Therefore, to the extent that the 9 Applicant has not addressed these concerns in the ER, 10 the ER is deficient and there is an issue of fact I 11 believe.

12 JUDGE ARNOLD: I'm done.

13 JUDGE TRIKOUROS: I'm done, too.

14 JUDGE SPRITZER: All right, thank you. We 15 will now move on to Joint Petitioners' proposed 16 Contention 4. As indicated in our order, we're not 17 going to do argument on proposed Contention 3, we'll 18 move directly to Contention 4. And let me ask at the 19 start, do you want to reserve five minutes for 20 rebuttal on Contention 4?

21 MR. KEMPS: Yes, I would.

22 JUDGE SPRITZER: All right. Please 23 identify yourself and then let's proceed.

24 MR. KEMPS: Your Honors, good morning. My 25 name is Kevin Kemps with Beyond Nuclear, and I will be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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84 1 addressing Contention 4 for Joint Petitioners.

2 At heart, Contention 4 addresses the fact 3 that there is proposed a tremendous concentration of 4 risk at the Fermi Nuclear Power Plant site. In short, 5 it is the worst of both worlds: Fermi 2, a degraded 6 old reactor with breakdown phase risks, and Fermi 3, 7 an untested new reactor with break-in phase risks, 8 sharing a common transmission corridor or right of 9 way, subject to common mode failures which could 10 mutually initiate and/or exacerbate catastrophic 11 radioactivity releases.

12 In our filings, we have cited testimony by 13 Farouk Baxter, an engineer who submitted comments on 14 the Fermi 3 proposal where he identified that this 15 common mode failure mechanism, this common 16 transmission corridor is susceptible to various severe 17 weather and manmade single failure events. He 18 included tornadoes, ice storms, brush fires, galloping 19 conductors, severe solar disturbances, light aircraft 20 impingement.

21 JUDGE SPRITZER: What is a galloping 22 conductor? We all, normally I'm technically 23 handicapped, but my colleagues aren't and they're also 24 somewhat confused about that term, galloping 25 conductor?

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85 1 MR. KEMPS: It's Mr. Baxter's list and I 2 believe that would be a failure of the transmission 3 grid itself, cascading failures. We saw an incident 4 in August of 2003 where 50 million North Americans 5 lost their electricity, and it had a lot to do with 6 the vulnerabilities of the grid, specifically in this 7 area of the country. First Energy Nuclear did not 8 trim its trees, a tree branch touched a power line, 9 and that cascading failure of the grid led to the loss 10 of electricity for 50 million people implicating a 11 large number of atomic reactors, both in the United 12 States and Canada. So, I think his example would just 13 point to vulnerabilities of the grid.

14 To his list, I would add that tornadoes 15 are very significant in this area. In fact, in June 16 of 2010, a tornado did strike the Fermi 2 complex and 17 caused problems that could have been much worse. And 18 we addressed some of that in our filing. The poor 19 record of emergency diesel generator operation at 20 Fermi 2 is a part of this risk matrix. We would add 21 to that list that Mr. Baxter provided a 1988 incident 22 where a raccoon cut off the grid to Fermi. There is 23 also the specter of intentional attacks, and there was 24 a recent incident near San Jose, California just a 25 couple of years ago where an intentional sabotage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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86 1 caused extensive damage to the grid.

2 These are all very serious issues that 3 implicate both reactors, Fermi 2 and Fermi 3, and both 4 units' pools which, as Mr. Lodge indicated, will at 5 Fermi 2 remain full, packed to the gills, densely 6 packed for decades to come. And that very same risk 7 scenario will grow over time at Fermi 3. That's the 8 standard practice of this industry, to take advantage 9 of the cost savings of filling the pools beyond 10 original designs.

11 JUDGE SPRITZER: So, is it your position 12 then that this risk of, what is it called, a common 13 mode failure should have been incorporated in the SAMA 14 analysis?

15 MR. KEMPS: Yes, we did go into some 16 detail in our filings about the inadequacy of the 17 SAMAs as conducted thus far, that they did not take 18 into account the concentrated risk of an 18.6 mile 19 long by 300 yard wide common corridor, that all of 20 these transmission lines, especially the incoming 21 electricity to run the safety systems and cooling 22 systems and monitoring systems are subject to.

23 JUDGE SPRITZER: All right.

24 JUDGE TRIKOUROS: Can I just ask the 25 Applicant, is this corridor the only source of offsite NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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87 1 power for the site?

2 MR. SMITH: There's a couple of different 3 lines in the corridor that are independent and 4 separation meets regulatory requirements. But yes.

5 JUDGE TRIKOUROS: But it is the only 6 offsite power feeding to that site?

7 MR. SMITH: Yes.

8 JUDGE ARNOLD: Well, I have questions if 9 done there. This is another contention where the 10 waters seem to be muddied somewhat. You just added in 11 the part with the spent fuel pool so I am confused.

12 I get the impression that the basis of this contention 13 has to do with the transmission corridor and the fact 14 that that will be common for the two plants and that 15 there might be some interaction between plants because 16 of that common transmission corridor that was not 17 accounted for in the SAMA.

18 Is that the essence of your contention or 19 is it something else?

20 MR. KEMPS: Well, we certainly brought up 21 pools in our original filing on August 18th. Our 22 point is that the transmission corridor is essential 23 to running the safety and cooling systems at both 24 Fermi 2 reactor and pool, and Fermi 3 reactor and 25 pool. So, any disruption of that essential NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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88 1 electricity supply for those safety and cooling 2 systems could implicate both reactors and both pools.

3 And as we saw at Fukushima Daiichi, once reactors 4 begin to melt down and their containments fail, then 5 the pools are also put at tremendous risk. And so, 6 that was very much an issue at Fukushima Daiichi where 7 the risks feared from the pools prevented workers from 8 approaching not only the pools but also the reactors.

9 Mitigations were not possible until it was 10 established, for example, that water was still in the 11 pool at Unit 4 and that led to the dramatic imagery of 12 helicopters dropping water on that unit.

13 JUDGE SPRITZER: I think you acknowledged, 14 I was looking for the specific page and I can't find 15 it at the moment, but somewhere in your Contention 4 16 you acknowledged that the proposed Fermi 3 reactor, 17 what is it called, the economic simplified boiling 18 water reactor is actually supposed to be able, 19 intended to be able to operate without electrical 20 power for some period of time. And it's my 21 understanding that design has now been certified by 22 the Commission. So, aren't we precluded by that 23 certification from looking into any criticism you 24 might have that the ESBWR won't be able to operate if 25 it does lose power?

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89 1 MR. KEMPS: Well, we did cite the warnings 2 from our colleague at Union of Concerned Scientists, 3 Dr. Ed Lyman, that these assumed gravity-fed cooling 4 water flow pathways are very optimistic, that there is 5 much less force behind gravity fed than there would be 6 from active pumping. So, these warnings have been 7 raised throughout the Fermi 3 design control document 8 proceeding for many long years now. And having 9 participated in the Fermi 3 Advisory Committee on 10 Reactor Safeguards meetings, there are many 11 significant unanswered questions. For example, the 12 ability of the so-called improved monitors at Fermi 3 13 storage pool to function in a high radioactivity 14 environment due to a reactor accident, those questions 15 remain unresolved.

16 And so, it appears that these many years 17 post Fukushima, it's still questionable whether the 18 operators and the NRC and other authorities will even 19 be able to determine if there is cooling water in the 20 unit 3 pool during a catastrophic scenario.

21 Yes, Mr. Lodge just points out that on 22 page, we're looking up the page number, in our initial 23 filing we pointed out, given this passive, so-called 24 passive gravity driven design, that no arrangements 25 for -- okay, I'm sorry. The point is that Mr. Farouk NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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90 1 Baxter in his comments on Fermi 3 pointed out that the 2 ESBWR design control document and the Fermi 3 final 3 safety analysis report, chapter 8, have not resolved 4 these issues. And we cited that in our filings thus 5 far.

6 JUDGE ARNOLD: Let me ask you about that.

7 On page 47 on the contention, third paragraph from the 8 bottom, you say, "The FSAR statement that 'there are 9 no single failures that can prevent the Fermi offsite 10 power system from performing its function to provide 11 power to EF3' is without any technical merit." Now, 12 are you saying that, I'm not sure what without any 13 technical merit means. Are you saying that statement 14 is wrong?

15 MR. KEMPS: Yes, we are quote Mr. Baxter's 16 comments bringing severe criticism to the FSAR making 17 such optimistic assumptions and, I reemphasize, the 18 concentration of risk in a 300 yard wide transmission 19 corridor that the Applicant admits is where all the 20 emergency system electricity supply is coming through.

21 JUDGE ARNOLD: Okay. Now, the FSAR 22 statement, isn't that a part of the current licensing 23 basis for Fermi 2?

24 MR. KEMPS: Well, there is a certain 25 overlap of current licensing bases with requirements NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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91 1 for a license renewal application proceeding, we 2 addressed this last week at the Davis-Besse license 3 renewal application proceeding. So, these are risks 4 that will happen between 2025 and 2045 when Fermi 2, 5 if it gets this LRA approved, will be operating, and 6 Fermi 3 presumably will also be operating. So, it 7 certainly needs to be addressed.

8 JUDGE ARNOLD: Now, let me just ask 9 Applicant now to comment on that. Your FSAR states 10 there are no single failures that can prevent the 11 offsite power system from performing its function.

12 That's in your current licensing basis, is it not?

13 MR. SMITH: Correct. I believe that quote 14 though is referencing the FSAR for Fermi 3.

15 JUDGE ARNOLD: Ah, okay. I'm just 16 wondering if there is some way that you can do a SAMA 17 analysis considering failure of offsite power that 18 isn't contradictory to your current licensing basis.

19 MR. SMITH: I'm not sure I'm understanding 20 the question because our SAMA analysis does consider 21 the loss of offsite power. That's considered an 22 initiating event and that's addressed by a number of 23 SAMAs specifically.

24 JUDGE SPRITZER: Let me ask this also 25 about the ESBWR design. As I understand it, it is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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92 1 supposed to be able to operate without, to continue 2 its cooling functions even if there is a loss of 3 offsite power for some period of time. Am I 4 understanding it correctly?

5 MR. SMITH: That's correct.

6 JUDGE SPRITZER: Do you know what that 7 period of time is?

8 MR. SMITH: I'm not certain. My 9 recollection is it's about 7 days.

10 JUDGE SPRITZER: 7 days, all right.

11 MR. SMITH: 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, I'm sorry.

12 JUDGE SPRITZER: 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />? Thank you. To 13 your colleagues who provided you with that 14 information, now where would we obtain a cite for 15 that?

16 MR. SMITH: I can take an action to obtain 17 a cite for you from that over lunch break.

18 JUDGE SPRITZER: Okay.

19 MR. KEMPS: Your Honors, on that last 20 point, could I simply say that at the Advisory 21 Committee on Reactor Safeguards meetings that have 22 happened in recent weeks and months, that we were 23 present and we observed and witnessed many unanswered 24 questions about that 072-hour time period, that 3-day 25 to 7-day time period. There's a lot of assumptions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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93 1 about the FLEX from Memphis, Tennessee being either 2 driven up here on the roads or flown up here by 3 helicopter presumably to be put in place in time to 4 prevent radioactivity releases. We have many 5 questions about that assumption.

6 JUDGE SPRITZER: To your knowledge though, 7 was that, has the design certification for the ESBWR 8 been issued? And does it cover that capability, that 9 is, the capability to operate without offsite power 10 for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />?

11 MR. KEMPS: The design control document 12 was approved earlier this year. We're not contesting 13 that. But as I'm trying to get across, there are lots 14 of unanswered questions about the FLEX assumptions.

15 JUDGE SPRITZER: Right. Well, I mean the 16 reason I'm asking of course is there are limits on our 17 jurisdiction. It might be a very interesting issue 18 but there are just certain things we can't get into.

19 And if a design certification has been issued, I'm not 20 sure how we can look into a question that effectively 21 asks us to ignore that certification. But all right, 22 let's move on and hear from --

23 JUDGE TRIKOUROS: Well, I have one more.

24 JUDGE SPRITZER: Oh, sorry.

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94 1 question. The loss of offsite power, specifically the 2 failure of below lines in that transmission corridor 3 is an event that's contemplated by the design basis of 4 each of those plants, Fermi 2 and Fermi 3, correct?

5 What is different here? I'm trying to understand 6 where you're finding synergism. The only thing I 7 could find in your pleading was that if there is a 8 core melt in one plant, it will result in the 9 abandonment of the other plant and they wouldn't be 10 able to deal with the normal design basis event. Is 11 that the synergism? Without a synergism, it appears 12 to me you're just basically saying you disagree with 13 the individual design bases of each of the plants.

14 MR. KEMPS: As my coworker Paul Gunter 15 addressed earlier, we have real world experience now 16 based on Fukushima Daiichi units 1, 2, 3 and 4. And 17 so, certainly reactor core melt downs with damaged or 18 destroyed containments, reactor pool fires with no 19 containment whatsoever, can and will lead to the 20 abandonment of nuclear power plant sites. There was, 21 Tokyo Electric considered abandoning all workers at 22 one point, and it took the intervention of the Prime 23 Minister of Japan to prevent that. And there were 24 episodes of the workforce leaving the Fukushima 25 Daiichi site, retreating to the Fukushima Daini site NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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95 1 against the orders of the company for their own self 2 protection.

3 So, these are very real world issues that 4 we're concerned about at this proposed multi-reactor 5 site.

6 JUDGE TRIKOUROS: So, with that synergy, 7 I'm sorry, you want to say something? With that 8 synergism, you're making, it's basically an assumption 9 that says that one of those two plants would not be 10 able to handle their design basis event and that that 11 would then lead to the other plant not being able to 12 handle it by virtue of the first plant's effect on the 13 second. That's really what this is about, correct?

14 MR. KEMPS: Just a moment please. Well, 15 the essence of our contention is that there is 16 tremendously concentrated risk at this proposed multi-17 unit site that includes the transmission corridor 18 which is very narrow and shared over a very long 19 distance by these two units and their pools. And 20 there is also the exacerbating factors of, as 21 indicated, the reactors and/or the pools experiencing 22 catastrophic radioactivity releases that then, like a 23 domino effect, like we saw at Fukushima Daiichi, could 24 lead to abandonment of the site by the workers, by 25 emergency responders.

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96 1 JUDGE ARNOLD: But the only data point we 2 have is Fukushima where that didn't happen, is that 3 correct?

4 MR. KEMPS: It didn't happen because Prime 5 Minister Naoto Kan at 5:00 a.m. rushed to the Tokyo 6 Electric headquarters and pleaded with the company and 7 its emergency responders in the control room area of 8 that headquarters building to not abandon their posts 9 for the sake of the future of that nation.

10 JUDGE SPRITZER: All right. Let's move on 11 and hear from the Applicant on contention, Joint 12 Petitioners' Contention 4.

13 MR. SMITH: Tyson Smith for the Applicant.

14 Contention 4 raises a host of issues, none of which 15 are the basis for an admissible contention.

16 First, a number of the issues we've heard 17 about, the ESBWR design, its response to a loss of 18 offsite power, some of its passive safety features, 19 those are all issues outside the scope of this 20 proceeding which is focused on the effects of aging 21 and another 20 years of operation at the Fermi 2.

22 Second, their arguments about the 23 transmission corridor generally, that it's not safe or 24 more concerns that violates defense in depth, that's 25 what's in their contention. That also raises an out-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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97 1 of-scope issue. Fermi 2 or Fermi 3's compliance with 2 requirements related to offsite power or availability 3 of diesel generators which is embedded in their 4 assumption that loss of the transmission corridor is 5 a loss of defense in depth, those are current 6 licensing basis issues that are being addressed now.

7 They are not issues unique to a license renewal.

8 Similarly, concerns about the emergency 9 response organization in the event of a design basis 10 accident is also outside the scope of this proceeding.

11 The emergency response plan is also a currently 12 licensing basis issue.

13 So, what that really brings us down to is 14 the concern that somehow there is some common 15 transmission corridor related SAMA that should be but 16 was not considered in the Fermi 2 SAMA analysis. And 17 there is no basis for that assertion here. There's no 18 facts, there's no expert opinion. As I mentioned 19 earlier, DTE did consider a number of different SAMAs 20 related to the loss of offsite power in diesel 21 generators and ultimately determined that none of 22 those were cost beneficial.

23 The Petitioners haven't put forth any 24 information to suggest that the analysis that DTE has 25 done is unreasonable. And that's what they've got to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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98 1 do to have an admissible SAMA related contention.

2 Petitioners didn't challenge any, didn't say there is 3 some SAMA that we ignored or that we didn't consider.

4 They didn't suggest that the cost of a particular 5 event would be greater, or that the benefits of a 6 particular SAMA would be greater.

7 And simply put, there is nothing here to 8 litigate. I'm at a loss as to what a hearing would be 9 held, would involve if this contention were admitted.

10 JUDGE SPRITZER: Well, I suppose you might 11 read their argument to be at least in part that you 12 should have included in the benefits, if you're taking 13 a measure to improve the reliability of the 14 transmission corridor, there would be benefits both to 15 Fermi 3 and Fermi 2 in the sense of reducing the risk 16 of a severe accident at both plants, and that that 17 somehow should have been factored into the analysis.

18 What's your response to that interpretation?

19 MR. SMITH: Well, I think that's very 20 generous and not one that I would draw from the 21 contention in front of me. I mean I didn't read that 22 in the contention.

23 JUDGE SPRITZER: Well, I admit it involves 24 some interpretation. But do you have any thoughts on 25 that?

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99 1 MR. SMITH: They certainly haven't alleged 2 any scenario by which that would be the case. They 3 haven't said, oh, your SAMA related to mitigating the 4 effects of a loss of offsite power, the cost of that 5 would be reduced because it's spread over Fermi 2 and 6 Fermi 3. Nor have they suggested that the cost would 7 be more because of that event.

8 I mean these units have different designs.

9 As Judge Trikouros pointed out, the Fermi 3 design is 10 intended to operate without, it can function without 11 offsite power for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. So, there is nothing to 12 suggest that concern has any basis in the design of 13 the plant.

14 JUDGE SPRITZER: Is there anything in the 15 NRC guidance when you, it probably isn't unheard of to 16 look at SAMAs at one plant where there is a multi-17 plant site. Does the NRC guidance address that in any 18 way?

19 MR. SMITH: Well, the NRC-endorsed 20 industry guidance does discuss how you handle SAMAs 21 for multi-unit sites. And what it says is similar to 22 what you mentioned which is if you've got a couple of 23 plants that are identical and when you're costing out 24 the cost of implementing a particular SAMA, you have 25 to take into account any efficiencies that might be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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100 1 gained if you implement the same SAMA at multiple 2 units. So, if it's a training SAMA but you're really 3 just training the same staff that works on all three 4 units, then your cost can be divided in thirds or 5 something like that. So, that's the extent to which 6 the SAMA analysis, the guidance discusses treatment of 7 multi-unit sites.

8 JUDGE SPRITZER: In that situation, would 9 you also factor in the benefit of additional training 10 for the operators at the other two reactors or not?

11 MR. SMITH: But that's embedded, that's 12 already embedded in the SAMA of any one unit, so there 13 is no additional benefit. That benefit is reflected 14 in that SAMA unit, you reduce the risk by X amount 15 that resulted in such a benefit.

16 JUDGE SPRITZER: I assume the cites for 17 the guidance you're referring to is in your brief 18 somewhere?

19 MR. SMITH: I'm not certain if that's 20 referenced in our brief. The industry guideline is 21 NEI 05-01, and that's NRC-endorsed guidance on 22 performing SAMA analyses.

23 JUDGE SPRITZER: Okay.

24 JUDGE TRIKOUROS: To your knowledge, did 25 the Fermi 2 SAMA take into account the failure of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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101 1 transmission corridor?

2 MR. SMITH: Yes, it did.

3 JUDGE TRIKOUROS: Did the Fermi 3 SAMA 4 take into account the failure of that transmission 5 corridor?

6 MR. SMITH: It certainly did.

7 JUDGE TRIKOUROS: So, the failure of the 8 transmission corridor has been considered but on an 9 individual basis for each of the two plants. Do you 10 see any connection or any degradation of that scenario 11 because the failure occurs simultaneously?

12 MR. SMITH: No.

13 JUDGE TRIKOUROS: Is there anything in the 14 regulations that requires a different view because 15 they occur simultaneously?

16 MR. SMITH: Not that I'm aware of.

17 JUDGE SPRITZER: All right. Let's move on 18 and hear from the NRC staff on Joint Petitioners' 19 Contention 4.

20 MR. HARRIS: I don't want to repeat some 21 of the things that we're saying here. A couple of 22 things that I wanted to bring up. We talk about, one 23 of the things that was brought up was spent fuel 24 pools, the status of the spent fuel pools in terms of 25 coverage. That is actually the subject of an order NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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102 1 for the plants to be installing reliable spent fuel 2 pool instrumentation so that those issues of, you 3 know, can you approach the pools can be determined 4 remotely. So, the fact that at Fukushima during their 5 event that they had, they could, you know, had trouble 6 determining what the status of the pools were at the 7 time, you know, should not be an issue going forward 8 because that's already been incorporated into their 9 licensing basis and they have to come in compliance I 10 believe by two refueling outages or I think September 11 of 2016 in terms of the spent fuel pool 12 instrumentation order.

13 So, those issues of the status of spent 14 fuel pool really don't weigh into that particular 15 problem. Again, the FLEX orders are also one of the 16 things that, you know, they are currently, you know, 17 required to do. As part of the FLEX order, they are 18 going to have to be able to, they are installing 19 equipment to deal with the first 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> for all the 20 operating plants, all the licensed plants. So, they 21 have to be able to manage without offsite assistance 22 for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. In the case of Fermi 3, of course it's 23 a passive system so it should be able to do that 24 without much additional, anything additional. And 25 then they are able to bring in extra help from staged NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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103 1 equipment at the site or from these two response 2 centers that are located throughout that to be able to 3 deal with these prolonged station blackouts.

4 As the Applicant indicated, the loss of 5 offsite power including loss of the transmission 6 corridor has been accounted for, for both the Fermi 3 7 SAMA, severe action mitigation design analysis, it's 8 called something different slightly different since 9 the plant hasn't actually been built, versus Fermi 2 10 where you look at it as a SAMA analysis. And there is 11 nothing in what the Petitioners have indicated for how 12 those two analyses were somehow incorrect or failed to 13 account for the actual benefit that would be achieved 14 by making improvements to the ability to recover or 15 maintain that offsite power source.

16 The thing that I want to bring up that 17 really hasn't been addressed is the Commission by rule 18 has indicated that we should only be looking at SAMAs 19 one time for a plant, whether that's at the initial 20 licensing stage or at license renewal is that they 21 found when they first imposed the requirement that we 22 only need to do this once, and that we wouldn't expect 23 to find anything different. That has been recently, 24 you know, challenged in the Limerick proceeding. The 25 Commission of course, you know, rejected the challenge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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104 1 to revisit Limerick's SAMA analysis for a second time.

2 In equivalent, that's what we would be 3 doing here by trying to force Fermi 3 to redo its SAMA 4 analysis to account for the licensing that is going on 5 at Fermi 2.

6 JUDGE SPRITZER: Well, I don't understand 7 them to be asking for that. What I think they're 8 saying, or at least one way to look at what they're 9 saying is you should have considered in the Fermi 2 10 SAMA analysis not only benefits to Fermi 2 in terms of 11 reduced likelihood of a severe accident or better 12 mitigation of an accident if it occurred, but also the 13 fact that there would be some synergistic or 14 additional benefit to Fermi 3. I mean if you're doing 15 a complete cost benefit analysis, let's consider all 16 the benefits even if some of them happen to accrue 17 with Fermi 3 instead of, or in addition to Fermi 2.

18 MR. HARRIS: But you would actually, you 19 would have to revisit Fermi 3's SAMA analysis to 20 figure out what those benefits were, you know, in 21 terms of how to calculate that. It's some unknown 22 number without actually redoing the SAMA analysis and 23 how those two things interact.

24 The Applicant brought up the fact that 25 when you're looking at the cost of implementing these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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105 1 particular benefits at multi-unit sites, especially 2 where the sites have generally the same design, that 3 you can spread out the cost of implementing for the 4 site that would reduce the overall cost of 5 implementing that mitigation measure to reduce, you 6 know, to increase the potential cost benefit of a 7 particular SAMA. But it does not work quite the same 8 on different plans.

9 But also from the benefit side, what's the 10 risk of the consequence? That is not something that 11 you can really sort of, you know, tie together. It's 12 something that the staff, the Commission has tasked 13 the research part of the staff to go and look at 14 multi-unit SAMA analyses. We don't have a way that 15 addresses it.

16 NEI guidance that discusses it doesn't 17 actually address how to do, it doesn't give any 18 guidance in terms of how you calculate that benefit on 19 a multi-unit site like that. It's something that's 20 under consideration as a research project.

21 JUDGE TRIKOUROS: And that's how I view 22 the Intervenors' contention in this. Well, let me 23 start by asking you, is there anything in the new 24 guidance that's been required by the NRC for existing 25 reactors and new reactors with respect to the three NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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106 1 orders that have come out that take into account 2 multi-unit sites?

3 MR. HARRIS: The part right now that 4 probably most directly addresses multi-unit sites is 5 multi-unit dose assessments. So, in the event of an 6 actual accident, to be able to do a multi-unit dose 7 assessment, there is again that research project that 8 the Commission has tasked research to do a new level 9 3 PRA that is similar to the PRAs that were done for 10 NUREG 1150. And that is one of the topics that they 11 are intending to look into is how do you integrate the 12 risks across this, you know, relatively independent, 13 you know, units.

14 JUDGE TRIKOUROS: Okay. Now, with respect 15 to equipment and people that are required for each 16 plant as part of these orders, do they specify that 17 that number of people and that equipment has to be of 18 sufficient quantity to handle an ongoing event at more 19 than one plant at a site?

20 MR. HARRIS: Right. As each plant is 21 required to handle, you know, be able to handle any 22 event that occurs on it, so they would need sufficient 23 people to handle both an accident at Fermi 2 and an 24 accident at Fermi 3. And they would need the 25 appropriate amount of equipment to be able to deal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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107 1 with responding to those types of accidents, be that 2 FLEX or in Fermi 3. I don't want to talk too much 3 about the ESBWR because I have not been involved in 4 that, but you know, it's a passive system so it's, in 5 the purposes of loss of offsite power, it should deal 6 with it for the 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />.

7 JUDGE TRIKOUROS: All right. So, that's 8 contemplated in the new orders that are being 9 implemented right now by these plants?

10 MR. HARRIS: Right.

11 JUDGE TRIKOUROS: Okay. With respect then 12 to the SAMA that one does for each plant, and it is a 13 probabilistic risk assessment which the Intervenors 14 have pointed out is, you know, not to their liking in 15 fact, isn't there some probability that what they 16 suggest might happen might happen? In other words, 17 isn't there some probability that people will evacuate 18 that site? It may not be a large probability, but 19 isn't it some probability?

20 MR. HARRIS: The question of would the 21 staff in charge of the plant evacuate the site, you 22 know, of course in the event of whatever accident it 23 is, it's difficult to be prospective and speculate.

24 My own personal experience, you know, as a formal 25 naval nuke is that, and what I've seen here is that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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108 1 they're not because their families are out in, you 2 know, out living near the sites. They want to arrest 3 it. So, there is some possibility that it could 4 happen, you can't drive it to zero, but the 5 uncertainty associated with that low probability is --

6 JUDGE TRIKOUROS: But I think in the 7 petitions, they are basically saying you're giving 8 that a zero probability.

9 MR. HARRIS: We're not giving that a zero 10 probability.

11 JUDGE TRIKOUROS: Or the Applicant is 12 giving that a zero probability.

13 MR. HARRIS: You have uncertainty 14 associated with the SAMA analysis to try to account 15 for those things that are difficult to quantify. So, 16 like I said, you know, the uncertainty applied here 17 was a factor of 2.5 times. So, the benefit is being, 18 you know, increased by 2.5 from what the, you know, 19 before you apply the uncertainty in terms of that.

20 And then of course a lot of times with the cost, you 21 know, you don't account for all the costs that would 22 necessarily go into any particular mitigation measure, 23 and so you're maximizing the chance for something to 24 be identified as potentially cost beneficial.

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109 1 back and have a particular accident, that that 2 mitigation measure wouldn't have been cost beneficial 3 assuming the accident actually occurred. But that's 4 not the way SAMAs are done. We're trying to calculate 5 what's really the expected value of the accident that 6 occurs at some unknown time under unknown 7 circumstances.

8 JUDGE TRIKOUROS: Well, isn't there 9 anything in the SAMA requirements that takes what the 10 Intervenors are saying and, you know, makes it 11 something you don't have to do? In other words, when 12 I read their pleading, they are simply saying that the 13 site might get evacuated, you should consider that.

14 You're saying it's a very low likelihood. But SAMA is 15 a PRA and, therefore, it considers many low likelihood 16 events.

17 MR. HARRIS: True, but it doesn't 18 consider, you know, every low likelihood event that 19 could occur. You know, I mean I mentioned previously, 20 you know, a meteorite happening to hit the plant. You 21 know, the likelihood of that it small, the likelihood 22 of a meteorite hitting the earth, a little larger, but 23 we don't consider that. And it's not, you don't have 24 to consider every potential, you know, accident 25 scenario. I mean even for the accidents that we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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110 1 consider, there are thousands of different ways that 2 you can have an accident in terms of the actual 3 precise way that the accident progresses.

4 But we model that using nine source terms, 5 you know, where you collect the various different 6 accident scenarios and model each accident as a 7 particular source from relief. So, you know, you have 8 to sort of combine some of these things, and some of 9 these things are, you know, they're not specifically 10 addressed but they are addressed by, you know, the 11 fact that we try to look at sensitivities. We try to 12 look at uncertainty. We try to account for those 13 things that now are low likelihood that probably, you 14 know, something with that low likelihood of someone 15 abandoning the site, you get that right accident that 16 forces people to abandon the site for whatever reason 17 that they choose to abandon it, you know, we're going 18 down, you know, lots and lots of probabilities and 19 less and less likelihood. And the chance of it 20 affecting any one of these analyses is small.

21 And that's sort of what they have to show 22 is that they have to show that it would actually make 23 one of the mitigation measures that wasn't identified 24 as potentially cost beneficial cost beneficial. It's 25 not a research project. We are simply trying to do a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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111 1 reasonable analysis of their representation of what we 2 expect to happen. It's not meant to model any 3 particular one accident.

4 JUDGE TRIKOUROS: But the deficiency they 5 are pointing out is not an unreal deficiency. It's 6 simply not considered, no one had considered that in 7 any of the SAMAs for multi-unit sites that happen to 8 have a shared, I don't know if anybody has that 9 situation in fact, a shared corridor that is subject 10 to some sort of an external event that could result in 11 a station blackout in two plants and treating the 12 SAMAs as individual entities without that connection 13 that they're saying should be made. And it is not 14 unreasonable.

15 JUDGE ARNOLD: Well, is the shared 16 corridor actually significant when you're talking 17 about having to evacuate the entire site?

18 JUDGE SPRITZER: Is that a question for --

19 JUDGE ARNOLD: Let me ask you.

20 MR. HARRIS: I was asking he was asking 21 Judge Trikouros.

22 JUDGE ARNOLD: Because what you've been 23 asking back and forth for the last ten minutes sounds 24 to me to be generic to any multi-unit site.

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112 1 multi-unit site. I'm not sure that the shared 2 corridor makes that particular scenario, whether or 3 not the staff, you know, under some unlikely 4 circumstance would just abandon the site and not try 5 to take all the appropriate actions to stop the 6 accident or mitigate their risk of the accident. I 7 don't think that's a function of the shared corridor.

8 These same types of things would show up in things 9 like flooding, seismic risk for any multi-unit site is 10 that you could have those kind of things would show up 11 at any other multi-unit site.

12 JUDGE ARNOLD: Well, this scenario that 13 they're -- I'm sorry. Go ahead.

14 JUDGE SPRITZER: Well, I just want to 15 clarify for the record. We keep talking about the 16 site. Are we talking about Fermi 2, Fermi 3 or both?

17 MR. HARRIS: I'm talking about the 18 combined site because we're talking about the 19 interaction of the two. So, when I talk about the 20 site, I'm talking about Fermi 2, Fermi 3, that you can 21 have some event that would affect both plants at the 22 site here. We're talking about transmission corridors 23 at other sites that are multi-unit, you know, whether 24 they have a shared transmission corridor, they are 25 subject to types of external events that could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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113 1 challenge both, you know, all the plants at the site.

2 Wetting would be an example of that.

3 JUDGE TRIKOUROS: Right. I think that the 4 scenario that I'm hearing from the Petitioners is one 5 in which both plants are in crisis. Both plants 6 require significant amount of staff to be running 7 around that stuff during a situation in which there's 8 a release occurring from at least one of those two 9 plants. If the other plant is not in crisis, then the 10 operators will be in a control room in a stable 11 manner, their control room is filtered from radiation.

12 But from what I hear from the Intervenors' pleading, 13 as I ready the pleading, I'm trying to understand what 14 they're getting at, that's the interpretation that I 15 seem to be coming to is that it only applies when 16 there are two plants on a site in crisis, you know, 17 not just a normal situation where one plant, similar 18 to TMI for example.

19 MR. HARRIS: I don't know that, I read it 20 differently that, you know, you would have some 21 initiating event that would cause one plant to have an 22 accident, and then that plant's accident would cascade 23 into causing an accident at the other plant.

24 JUDGE TRIKOUROS: Do you have, do the 25 Petitioners have a clarification here?

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114 1 MR. LODGE: I think numerous postulation 2 is what was in our thinking. Your Honor, in the 80's, 3 the NIGA regs for the NRC were amended so worst case 4 scenarios were no longer obligatorily to be considered 5 within EIS documents. But 40 CFR 1502.22 was 6 promulgated and that states that where there is 7 incomplete or unavailable information, the EIS has to 8 include certain things like a statement that the 9 information is incomplete or unavailable, relevance of 10 that incomplete or unavailable info to evaluating 11 recently foreseeable significant adverse impacts on 12 the environment, summary of existing credible 13 scientific evidence which is relevant to evaluating 14 those recently foreseeable impacts, and the Agency's 15 evaluation of those impacts. So, where the 16 information is essential to reasonable choice of 17 alternatives, it's required to be discussed and 18 identified in the EIS. So, as you were saying, Judge 19 Trikouros, perhaps the chances of abandonment by 20 staffing and crew, the personnel, is a relatively 21 small prospect. It certainly seems to us that it does 22 have to be tested upon and identified.

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115 1 as of course the Fermi site itself, and planes pass 2 over the transmission corridor at least on a very 3 frequent basis. The problem is that we're really 4 talking about a single fault type of scenario, if 5 there is an accident that befalls the transmission 6 lines. And in 2012, the Commission issued letter 7 2012-05 saying that there have to be two sources of 8 offsite electricity which doesn't exist here for Fermi 9 2.

10 So, we think that this is a very, very 11 problematic contention that we've raised.

12 MR. SMITH: If I may, there's something we 13 haven't discussed that I actually is very relevant to 14 the questions Judge Trikouros is asking which is the 15 SAMA process includes a screening process. So, that's 16 done at the outset. And so, you look at what's the 17 maximum benefit, and then you also look at there's a 18 truncation of events that have a very low likelihood.

19 And this is discussed in our SAMA analysis. It talks 20 about reasons why some might be eliminated, things 21 like excessive implementation costs. If you're 22 talking about automating your onsite emergency 23 response, that's going to be excessively, it's going 24 to have an excessive cost.

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116 1 or the risk itself is very small, and this is exactly 2 why Intervenors have an obligation to come forward 3 with some approximation of the relative costs or 4 benefits because there is a screening process. You 5 can't say, well, there is some possibility. That 6 possibility may be so low that it was appropriately 7 screened out. They've got to put forth some 8 information to show that this is actually something 9 worth considering further, and they haven't done that 10 here.

11 MR. KEMPS: Could I respond just briefly?

12 We did in our filing cite NUREG contractor report 22-13 39, the 1982 Sandia citing study which is most 14 commonly known as CRAC-II. And those figures I think 15 make it difficult for us to get our heads around how 16 these improvements on safety are not cost beneficial.

17 And so, just very briefly, those figures are 8,000 18 peak early fatalities, 340,000 peak early injuries, 19 13,000 peak cancer deaths, and adjusted for inflation, 20 over $300 billion in property damages. And I would 21 hasten to add --

22 JUDGE SPRITZER: Are those figures for 23 Fermi 2? Fermi 3?

24 MR. KEMPS: Fermi 2, Fermi unit 2.

25 JUDGE SPRITZER: Okay.

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117 1 MR. KEMPS: And I would hasten to add that 2 the population has likely increased since this report 3 came out.

4 JUDGE TRIKOUROS: That was 1982, that 5 report, wasn't it?

6 MR. KEMPS: Yes, sir.

7 MR. HARRIS: Your Honor, may I address the 8 Sandia citing study? So, if you look at what the 9 Sandia citing study does, there are a lot of caveats 10 in that study in that they don't account for a lot of 11 the contamination removal mechanisms, you know, by the 12 containments. So, they're basically assuming a 13 release from the vessel that doesn't actually get 14 filtered by the containment at all. Even if it does 15 fail in some way, there still is going to be some sort 16 of deposition within the containment, filter through 17 whatever, however the containment may have failed 18 because you can have torturous paths that would cause 19 some bleeding out on that.

20 So, it made very conservative assumptions 21 about what that release would look that they said you 22 would need to take into account. It looked much more 23 as a worst case kind of scenario than an actual NEPA 24 --

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118 1 spectrum of accidents?

2 MR. HARRIS: It looked at a smaller 3 spectrum of accidents. I think there were five source 4 terms used in that. I believe where Mr. Kemps is 5 citing from, not looking at it, I believe that's 6 dealing with what was called source term 1 which was 7 really sort of, you know, a very large failure, you 8 know. It was not trying to model all the types of 9 failures, but they did look at five source terms.

10 Fermi 2 now looks at nine different source terms.

11 A lot of the modeling that's gone on both 12 from the MAP and MELCOR that does level 2 and level 1 13 PRA which is sort of the initial sort of in accident 14 scenario has been improved over the years where what 15 was done determinitivally before is now done more 16 analytically in terms of trying to model the actual 17 physics of these particular scenarios. So, it's 18 giving it more realistic than what you would normally 19 get under the deterministic kind of model.

20 JUDGE TRIKOUROS: Well, I didn't want this 21 to broaden that much. The simple question was when 22 you're doing, when you have a multi-unit site that's 23 subject to a common mode initiating event, do the 24 SAMAs that are done for each plant have to include 25 some probability consideration or staffing not being NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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119 1 available at the plant? That's really all I was 2 asking and that really, and I was coming from the 3 point of view of the Petitioners in terms of what I 4 thought they were saying in their pleading.

5 MR. HARRIS: Right. But for a SAMA, we 6 need to account for, you know, the licensing basis in 7 terms of what the plant is supposed to be doing.

8 That's the model they're doing. That would include 9 the staff taking the appropriate actions being onsite, 10 you know. So, you have to account for the plant as it 11 is and as it is required to be. And that does require 12 staffing, you know, and that staffing to take 13 appropriate actions.

14 JUDGE TRIKOUROS: Would it be true for me 15 to say that the new orders coming out or has been out 16 that are being implemented don't take these things 17 into consideration?

18 MR. HARRIS: Which? I'm not sure which 19 things you're referring to there.

20 JUDGE TRIKOUROS: Well, just assuming that 21 everybody goes running around and does what they're 22 supposed to do with the FLEX strategy and all of that.

23 MR. HARRIS: The FLEX strategy is 24 probably, it's not so deterministic, it's not so 25 proceduralized because when you look at the FLEX NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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120 1 strategy, it's trying to account for beyond design 2 basis events from the order perspective and not 3 knowing exactly what that event is that, you know, 4 you're going to be able to handle some of these 5 external events. So, that doesn't allow you to sort 6 of proceduralize it. So, what you have to do is you 7 have to have the appropriate equipment that you can 8 employ appropriately based on the event that you have 9 from more symptomatic, you know, analysis in response 10 rather than from this alarm came on, that means I need 11 to move these three switches attached to these three 12 pumps, is that you have to look at it holistically how 13 best to respond to it.

14 The idea is that you have sufficient 15 equipment to make all the attachments to preclude, you 16 know, a core melt, you know, an accident. That also 17 means that you have sufficient staff to make all those 18 required connections in the event of some accident, 19 you know. So, it doesn't address that specifically, 20 but you know, they can't just walk away, you know, 21 they have all this equipment that they're supposed to 22 take action for.

23 JUDGE TRIKOUROS: I don't know, I don't 24 think I want to pursue that any further.

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121 1 have anything further they want to add on this last 2 Contention 4?

3 MR. KEMPS: Yes, Your Honor, just on that 4 last point that Mr. Harris raised. It's my 5 understanding that NRC regulations, in terms of 6 personnel staffing levels, can only be applied to the 7 control room and to the security guard force. And so, 8 assumptions about staffing levels to deal with 9 mitigating a potential pool fire or other mitigations 10 that have to take place to prevent a catastrophe from 11 unfolding, I think that's very optimistic for Mr.

12 Harris to just assume that.

13 JUDGE SPRITZER: All right. Very well, I 14 think we've heard all we need to hear on Joint 15 Petitioners' contentions. We'll move on to consider 16 CRAFT's contentions when we come back after lunch.

17 Before we leave, does anybody have 18 anything else they want to raise? As far as timing, 19 I think my recollection is you have to walk a little 20 bit to find some place to eat, so why don't we allow 21 an hour and 15 minutes? So, we'll come back at a 22 quarter to 2:00 and we'll still make our best efforts 23 to get out of here by 4:00. Is there anybody that if 24 they stay a little after 4:00 is going to have a major 25 problem with transportation? Okay. Well, we still NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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122 1 hope to finish by 4:00, we'll do our best. Thank you.

2 (Whereupon at 12:32 p.m. the meeting was 3 adjourned until 1:47 p.m.)

4 JUDGE SPRITZER: We are here at the 5 afternoon session of oral argument in the Fermi 2 6 licensing proceeding, the argument on contention 7 admissibility, and we are ready to move on to consider 8 the contentions proposed by CRAFT, C-R-A-F-T, all 9 capital letters, Citizens Resistance at Fermi 2. A 10 total of 14 contentions which we have grouped for 11 purposes of expedited argument. And we begin, unless 12 there are any questions or issues we need to consider 13 before we get started, we will begin with CRAFT 14 Contention 1, and I believe we'll be hearing from Mr.

15 Sherman.

16 MR. SHERMAN: Yes sir.

17 MR. HARRIS: Judge Spritzer, I hate to 18 interrupt. I told you I would check on the dates for 19 the reg basis for the filtered, the filtering 20 strategies rule making. The reg basis is due this 21 December. And then the following rule is due next 22 year in December.

23 JUDGE SPRITZER: Okay. Well, keep us 24 notified if any development happens that can be 25 relevant, that you think would be relevant to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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123 1 contentions.

2 MR. HARRIS: Yes sir.

3 MR. SMITH: Judge Spritzer, I had action 4 to provide a citation for you.

5 JUDGE SPRITZER: Oh, okay.

6 MR. SMITH: The ESBWR passer design does 7 not require offsite or onsite power for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. And 8 that's in the DCD at 15.5.3, or it's in the Fermi 3 9 COLA at Section 8.3-2.

10 JUDGE SPRITZER: Okay. Great, thank you.

11 All right, you may proceed.

12 MR. SHERMAN: Thank you, sir, and thank 13 you gentlemen of the panel. Your Honors, I want to 14 first thank you sincerely for the opportunity to 15 address you. I feel very honored to be here speaking 16 on these contentions. And so I just wanted to express 17 my heartfelt thank you. My name is James Sherman.

18 I am a steering committee member of the 19 Citizens Resistance at Fermi 2, and I'm here to defend 20 our contention that the public deserves a hearing in 21 reference to these matters, especially with regard to 22 alternatives that are viable and realistic. So the 23 NEPA law requires the Applicant to include in their ER 24 analysis that considers and balances the environmental 25 impacts of alternatives for reducing or avoiding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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124 1 adverse environmental impact.

2 The response to the CRAFT petition claims 3 that CRAFT does not demonstrate feasibility of the 4 renewable mix. And I would say that it's a specious 5 argument, and deflection from DTE's responsibility.

6 Our argument is that the analysis is purposefully 7 neglectful. In their analysis, the position that the 8 Applicant's alternatives is not required to discuss 9 every conceivable alternative to the purposed action 10 NEPA requires. And only consideration of feasible, 11 non-speculative and reasonable alternatives are 12 required by NEPA.

13 Our contention is that DTE has taken a 14 self-serving approach to this analysis. And that 15 wind, solar, and the other renewables that we have 16 mentioned in our contention are absolutely viable.

17 According to Michigan Public Service Commission, there 18 is already more than 12,000 megawatts of wind 19 generation capacity in the state, with more being 20 build every day.

21 JUDGE SPRITZER: I think their position 22 is, basically, that you haven't demonstrated that it's 23 a viable alternative to providing what they call base 24 load power. That's power that's available all the 25 time, even when the wind's not blowing.

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125 1 MR. SHERMAN: Thank you, Your Honor, and 2 I would like to address that directly.

3 JUDGE SPRITZER: Sure.

4 MR. SHERMAN: First of all, Fermi 2 does 5 not run 24/7, 365 days a year. This year alone, we've 6 had a number of outages, both planned and unplanned, 7 for dealing with problems at the plan. When 8 distributing wind power throughout the state, and 9 other renewables such as solar, biomass, then those 10 resources are distributed so less generation capacity 11 is required to be transmitted over long distances.

12 And we would say that it is a very thin 13 argument to suggest that the entire State of Michigan 14 could stop blowing. It's a really difficult argument 15 to make.

16 And I would challenge DTE to show me on day on the 17 record on which there was no wind in the state. And 18 on days where wind resources are lower, sun resources 19 tend to be higher.

20 We would also point out that the claim that DTE 21 made that there is no storage capacity on grid in 22 Michigan is blatantly false. The Luddington power 23 pump station actually is able to pump water up over 24 300 feet into a reservoir. It was built in '69 25 through '73, and when it's at full generation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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126 1 capacity, it can produce 1,800 megawatts of power; 50 2 percent more than the total output of Fermi 2 when 3 running at 100 percent power.

4 So we make the argument that it is not our 5 responsibility to demonstrate in full that renewable 6 power can replace Fermi 2. First of all, the 7 generation capacity is there and being built. And, 8 first of all, as NEPA states, it is the Applicant's 9 responsibility to make an analysis of these 10 alternatives. And we can see that even solar, which 11 tends to be double the cost of wind power, in North 12 Carolina, according to Duke Energy, actually is less 13 expensive than nuclear.

14 So wind power tends to cost about half the 15 cost of nuclear power. But here in Michigan, it has 16 the added benefit that these resources are here in 17 state. We use our manufacturing base to produce the 18 turbines. And the wind is home-grown Michigan wind, 19 as is the solar, the biomass, and all these resources 20 that we can produce here in state. Whereas, our 21 current relying on energy from coal and nuclear is all 22 mined out of state, increasing our cost of energy, 23 driving manufacturing out of the state, as well, oh 24 three already?

25 JUDGE SPRITZER: We'll give you three NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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127 1 minutes for rebuttal. Was that an assumption that he 2 would have three minutes of rebuttal?

3 MS. KANATAS: Yes.

4 MR. SHERMAN: Excellent. So our point is 5 that DTE takes a dualistic approach. On one hand, in 6 their NEPA statements and environmental statements, 7 they're saying that wind is not a viable option.

8 Where, if you see any of their wonderful TV 9 commercials with that great guy from the Dirty Jobs 10 show, showing how these big turbines make energy free 11 of pollution.

12 So, on the one hand, DTE has a public face 13 that is lauding their efforts with renewable energy 14 and, of course not mentioning that all of the steps 15 that they've taken in this direction have been 16 required by law, such as the renewable portfolio 17 standard. Which they laud their adherence to, but 18 behind the scenes are lobbying against things like 19 renewable portfolio standards being increased, better 20 use of metering standards.

21 And they make the argument that there is 22 no storage, which we've established that there is.

23 And the fact that the current state of the grid 24 requires that energy be stored, and that special 25 arrangements be made with certain customers, such as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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128 1 interruptable service and giving better rates for off-2 peak usage.

3 So these strategies are already being 4 used. These strategies will be helpful in mitigating 5 any sort of capacity factor differences in renewable 6 power. And, therefore, the argument that these 7 alternatives are not reasonable and not non-8 speculative and reasonable feasible alternatives, 9 because they're already operating in the state with 10 great success.

11 And the potential for wind alone is barely 12 stretched. With increase of efficiency and siting, 13 using wind resource maps to make sure that the wind 14 resources are placed in the maximum availability of 15 wind, the capacity factor of these plants are steadily 16 increasing. And, because they're distributed 17 throughout the state, the cost of transmission and the 18 impact of the energy used for transmission is greatly 19 reduced throughout the state.

20 JUDGE TRIKOUROS: You know, when you say 21 the capacity for factors is increasing, you're talking 22 about the down time for maintenance or repair or that 23 sort of thing, right?

24 MR. SHERMAN: Correct. Wind power has, 25 historically, been rated between 30 and 15 percent NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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129 1 capacity factor. Meaning that for every 100 2 megawatts, you would potentially get 15 to 30. But 3 those factors have been raising quite steadily, and 4 capacity factor for wind throughout the country has 5 been reaching close to the 50 percent, and well over 6 40.

7 Throughout the world, we're seeing records 8 being set regularly in both the building of wind 9 generating capacity, as well as higher capacity 10 factors. Just recently, the North Sea Off Wind 11 Resources off of Europe had set major records towards 12 running at 100 percent capacity factor for days on 13 end.

14 And the only real problem is that if we 15 build enough capacity in wind to more than make up 16 base load for Fermi 2, at times we will have power 17 overages that can be sold out of state, sold to 18 customers that have flexible demands, like salt mines 19 creating chlorine and sodium resources. Those can be 20 put in place when energy is at a maximum.

21 And we believe that this will create, not 22 only a better environment for the State of Michigan 23 and our rate payers with lower rates in the long run.

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130 1 that economically and environmentally, renewable 2 energy is a boon for Michigan. They're in-state 3 resources.

4 We're not bringing in fuel and uranium 5 from out of state. And we'll be able to lower our 6 rates and keep more manufacturing base here in 7 Michigan. And by using our manufacturing base to 8 create these turbines, we're further increasing the 9 job base in Michigan.

10 JUDGE ARNOLD: I'm going to interrupt you.

11 MR. SHERMAN: Please.

12 JUDGE ARNOLD: You're not answering the 13 question. It was a very brief question. If you 14 continue to answer and answer and repeat things that 15 are in the petition, we're not going to get through 16 today, because we've got a lot of questions. So could 17 you be, please be briefer?

18 MR. SHERMAN: Would you restate the 19 question, please.

20 JUDGE ARNOLD: I'm not worried about him 21 not answering it, but he's going on about --

22 JUDGE SPRITZER: I think he's about done 23 with his time anyway. Why don't we move on in here.

24 JUDGE ARNOLD: Well no, because we have 25 questions.

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131 1 MR. SHERMAN: Please. I would be happy to 2 answer them, sir.

3 JUDGE ARNOLD: Absolutely. Now, the 4 Applicant has already addressed wind power in the 5 application, and said it's not a reasonable 6 alternative. You say it is. The best way that you 7 can support it being a reasonable alternative is to 8 point to someplace that uses wind to get a capacity 9 equivalent to Fermi 2, and that has a capacity factor 10 that is in the order of 90 percent or whatever Fermi 11 2 is. Can you point to anyplace where wind power is 12 producing in that manner?

13 MR. SHERMAN: It is not possible to 14 produce 90 capacity factor with wind. That is why, 15 because it is so much cheaper than nuclear, you can 16 double or triple the capacity for the same financial 17 investment. And produce windfall profits in the 18 future for DTE because once the initial investment is 19 paid off, the energy's produced for free.

20 JUDGE ARNOLD: Is there anyplace that wind 21 produces power 90 percent of the time? I'm not say 22 capacity factor, this is with over capacity, and 23 yields a megawattage equivalent to, or approximately 24 to Fermi 2?

25 MR. SHERMAN: Based on the fact that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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132 1 capacity factor is known to be about 40 percent, and 2 the nuclear capacity factors tends to be about 90, 3 which I believe in some cases an overestimation; you 4 can see a lot of downtime over the years from Fermi 2.

5 All it would take is anywhere you can put together 6 more than double the total capacity, you'll have the 7 capacity factor equivalent of Fermi 2.

8 JUDGE ARNOLD: So this is speculation on 9 your part. You can't point to anyplace that has this 10 amount of wind power, correct?

11 MR. SHERMAN: There's places throughout 12 the world that have that much wind power. You'll see 13 in Denmark and Germany, these countries are close to 14 100 percent renewable power, largely from wind and 15 solar. And they are closing all of their nuclear 16 plants. So I would say that it's not only not 17 speculative, but is demonstrable in other countries 18 throughout the world. And if you look at the wind 19 factors in Michigan, we are barely tapping the 20 available resources we have in the state.

21 JUDGE TRIKOUROS: In your pleadings you 22 point out that the only way to achieve any kind of 23 base load situation is with respect to interconnected 24 wind farms, correct. So let me understand that. Now, 25 in other cases that we've had, we've discussed various NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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133 1 factors associated with this, so I can ask questions 2 from some of that experience.

3 MR. SHERMAN: Please.

4 JUDGE TRIKOUROS: But let me just, okay, 5 so with respect to interconnected wind farms, are you 6 suggesting that to replace, say, the -- let's say 7 1,000 megawatts electric, Fermi's about 1,170, I 8 think.

9 MR. SHERMAN: Yes.

10 JUDGE TRIKOUROS: You would be talking 11 about, let's again say, for the sake of argument, four 12 wind farms at locations that are far enough away from 13 each other that the wind will always blow in at least 14 one of those locations. So you'd be talking about 15 roughly 4,500 megawatts electric of generation. So 16 you have to buy four times as much power as Fermi, 17 such that at any one of those four locations that 18 would be a Fermi? Is that what we're talking about?

19 MR. SHERMAN: That is one mitigation 20 strategy. That is reasonable and feasible.

21 JUDGE TRIKOUROS: Well, when you say, you 22 brought up interconnected wind farms, so I'm just 23 trying to understand what you mean by that. So, we're 24 talking about four Fermis worth of energy at different 25 locations?

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134 1 MR. SHERMAN: And we're more than a 2 quarter of the way there with minimal investment in 3 that type of energy in the state.

4 JUDGE TRIKOUROS: Okay well, when you say 5 interconnected wind farms, is that what you mean?

6 MR. SHERMAN: Well, yeah --

7 JUDGE TRIKOUROS: What I just said?

8 MR. SHERMAN: Yes.

9 JUDGE TRIKOUROS: Okay. I just want to 10 make sure I understand what that means.

11 MR. SHERMAN: Thank you for the 12 clarification. And in our original contention, we 13 said renewable energies such as wind. Wind is only 14 one part of the factor, but more than enough to 15 replace Fermi 2. And with additional renewable 16 resources online, we can start replacing units other 17 than Fermi 2; palisades, the coal plants. We have the 18 resources here in the state. We don't have to go out 19 of state for our energy.

20 JUDGE TRIKOUROS: You talk about, later in 21 your pleading, you talk about some renewable standards 22 that the State of Michigan is --

23 MR. SHERMAN: Yes renewable portfolio 24 standards, RPS.

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135 1 indicate that they have, that they're required for 10 2 percent renewable?

3 MR. SHERMAN: Yes sir.

4 JUDGE TRIKOUROS: And you indicate here 5 that they, basically, are at 9.6 percent. Is that 6 correct? You mention a 9.6 percent number in here.

7 MR. SHERMAN: Did I say 9.6 percent?

8 JUDGE TRIKOUROS: You mention 900 9 megawatts is owned or contracted renewable energy 10 generation by Detroit Energy.

11 MR. SHERMAN: You're not saying verbally 12 just now, you're saying in the contention. Yes sir.

13 JUDGE TRIKOUROS: Right. Okay, and you 14 claim that that 900 megawatts is equivalent to 9.6 15 percent of the electricity that will be sold to retail 16 customers in 2015.

17 MR. SHERMAN: I believe that is correct.

18 I don't have that paper in front of me, but it sounds 19 correct.

20 JUDGE TRIKOUROS: So if there's 900 21 megawatts, and it's at 30 percent capacity factor, how 22 could that be 9.6 percent? Or is the 9.6 percent the 23 900 megawatts, and you're assuming that that 900 24 megawatts will always be operating? I don't 25 understand your numbers, that's why I'm asking.

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136 1 MR. SHERMAN: Well, first of all, there's 2 more than 1,200 megawatts on the grid in wind power 3 alone; not including other renewables, according to 4 Michigan Public Service Commission. And that number 5 is constantly rising. It's the only major form of 6 energy that's being constructed. So my point isn't 7 that we are at a position currently with on-grid 8 renewables in the state that we can now replace Fermi 9 2's base load capacity.

10 But, our contention is that within 11 11 years, with a modest investment, before this license 12 be renewed, we can most certainly replace the base 13 load power with a modest investment. DTE, from my 14 understanding, had some complaints about RPS when it 15 was first forced upon them, saying that it was not 16 feasible. But, from their own words, they are on 17 track to meet the RPS standards. And we have 18 movements in the state to increase that standard, and 19 practice strongly supportive of those measures.

20 JUDGE TRIKOUROS: Now this is just a 21 follow-up on Judge Arnold's comments.

22 MR. SHERMAN: Yes sir.

23 JUDGE TRIKOUROS: This is an assumption on 24 your part. You, for example, can you point to a base 25 load simulation study of that? In other words, you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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137 1 can put into a computer that I have a wind farm here 2 and a wind farm here and wind farm there, give it all 3 the specifications for wind blowing, not blowing, give 4 it everything in terms of repair, you know, 5 maintainability, reliability, do all of that. And it 6 will come out and tell you what the base load is.

7 Now the studies that we've been shown look 8 like 20 percent is achievable, maybe 30 percent is 9 achievable. But not 100 percent. Can you point to 10 even a study, you indicated you couldn't point 11 directly to a situation in the United States that is 12 producing equivalent of a nuclear plant base load.

13 MR. SHERMAN: Actually, if you go into a 14 large enough area you can.

15 JUDGE TRIKOUROS: Can you point to a 16 study? Can you point to anything that is, you know, 17 concrete that would show this?

18 MR. SHERMAN: And you tell me that 19 concretely Fermi 2 will be running at 90 percent 20 power, 24/7, 365? Because if what we're trying to do 21 is replace a constant source of power, that's not what 22 we're proposing to replace. Fermi 2 has down time, as 23 well. The only difference is if you have a wind spill 24 or a solar spill, nobody dies.

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138 1 time of windmills?

2 MR. SHERMAN: No.

3 JUDGE ARNOLD: Okay. Applicant, can you 4 control most of your downtime?

5 MR. SMITH: We do have scheduled outages, 6 yes.

7 MR. SHERMAN: And unscheduled.

8 MR. SMITH: Correct.

9 JUDGE ARNOLD: And what is your capacity 10 factor, historically, do you know?

11 MR. SMITH: I don't know off the top of my 12 head.

13 JUDGE TRIKOUROS: And in the past, when 14 contentions have been, and this was pointed out in the 15 pleadings of the other parties, in the past when 16 contentions have been approved, contentions of this 17 exact nature, they have not been admissible through 18 the Nuclear Regulatory Commission. So, unless you 19 have something additional that you can add with 20 respect to concrete information that says I can shut 21 down this plant and it won't be a problem because of 22 wind.

23 MR. SHERMAN: I understand. Like I said, 24 what we're advocating for is a mix of renewables, such 25 as wind. According to the MSU Land Use Institute, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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139 1 they have documented 300,000 megawatts of wind 2 potential on the Great Lakes. Lake Erie has some of 3 the best wind potential in the U.S. because of the 4 east/west orientation of it.

5 We have massive resources available. The 6 only reason we cannot point to more of them is that 7 these resources have only recently been invested into 8 heavily. The position of DTE has been, in the past, 9 this is not reasonable. But since we passed RPS, they 10 have been on track to meet it. These projections are 11 absolutely reasonable.

12 And the capacity factor of 90 percent on 13 Fermi, I would say, is a specious number. At least 14 two-thirds of that energy does go into waste heat 15 which, as we know, contributes to algae blooms in the 16 lake, and thermal discharge issues. So, with respect 17 to our analysis, I would agree. That fancy computer 18 you talked about, I'd love one. Maybe you could help 19 us with a grant. But in reality, NEPA requires the 20 Applicant --

21 JUDGE TRIKOUROS: You could do those 22 simulations. I mean, you could get somebody to do 23 those.

24 MR. SHERMAN: We would like to.

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140 1 at home.

2 MR. SHERMAN: We would love to do that.

3 JUDGE TRIKOUROS: This is not difficult to 4 do.

5 MR. SHERMAN: Perhaps some of our partners 6 here at the tables with more resources would be 7 willing to do the job that NEPA requires of them, and 8 we wouldn't have to be here arguing for this.

9 JUDGE TRIKOUROS: Well, it would be 10 helpful to have hard data.

11 MR. SHERMAN: One of the problems with 12 getting hard data on wind in Michigan is that, unlike 13 some other states such as Minnesota, there is no real 14 time reporting for wind that's required by the 15 Michigan Public Service Commission. I did try to get 16 more specific numbers for this panel.

17 But between the difficulty of those 18 numbers to get in a concrete, verifiable way, and the 19 fact that we have been, basically, barred from 20 bringing new information, the point is with our 21 contention is that it is on the onus of the Applicant 22 to do a fair and reasonable study of alternatives.

23 And we feel that it's quite obvious that their 24 analysis is self serving.

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141 1 pull their resources from Fermi 2, stop running that 2 plant, and put all the resources into wind, of course 3 the rate payer would win. Of course the state would 4 win. Of course the state environment would win. What 5 would lose is their decommissioning fund. And it's 6 their choice to build a nuclear plant.

7 The rate payers have already been soaked 8 enough with higher rates to support this monstrosity, 9 and we content that it is up to this Board to assign 10 a public hearing to allow the public to weigh in.

11 We're not here to say it's time to shut down Fermi.

12 Trust me, we'd like to suggest that, but we know 13 that's not in the scope of this hearing.

14 It is in the scope of this hearing to 15 select a public hearing. It is time that the public 16 be allowed to weigh in on these facts. As we have 17 witnessed from these proceedings, there's lots of 18 unanswered questions about renewable energy, about the 19 potential dangers to health and the environment. But 20 that's why it is urgent that we allow the public to 21 have a say.

22 We're not going to figure this all out 23 now. But, by the fact that we don't have this all 24 figured out, and that there are still questions, we 25 strongly urge this panel, with all due respect, to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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142 1 hold a public hearing and let the public have these 2 issues aired out.

3 JUDGE SPRITZER: All right, let's move on 4 and hear from the Applicant. I'm sure they have a 5 different perspective.

6 MR. SHERMAN: Thank you, gentlemen.

7 JUDGE SPRITZER: Please proceed.

8 MR. SMITH: Thank you. Tyson Smith for 9 DTE. In this contention, CRAFT alleges that wind 10 power is a viable option. But, as we, some of the 11 Judges have recognized, this is a conclusory statement 12 that fails to recognize that, at bottom, to be 13 reasonable, an alternative must be capable of 14 replacing the 1,170 megawatts of base load generation 15 from Fermi 2. Any alternative that doesn't include 16 replacing that base load capacity is unreasonable 17 under NEPA's purpose and need.

18 Nothing in the proposed contention 19 acknowledges, much less disputes, the conclusion in 20 the ER that wind power alone is not a viable 21 replacement to the base load generation of Fermi 2.

22 First, and our, the ER assesses whether wind, as a 23 discrete energy source, could replace the generation 24 from Fermi 2.

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143 1 generation unit of sufficient size to be able to, 2 given the capacity factors, would not provide 3 consistent power able to approximate base load. So 4 then the ER goes on to consider whether you could have 5 multiple interconnected wind farms over a large area.

6 Whether that could approach base load capacity, 7 exactly the sort of analysis that Mr. Sherman is 8 saying that we should do.

9 And we did that. And we concluded that 10 wind energy would not be able to provide consistent 11 base load generation due to insufficient velocity and 12 duration. And there's been no showing that this is a 13 theoretical approach. It would commercially viable or 14 technologically feasible in time to replace the 15 generation of Fermi 2.

16 And that ER also explains that you could, 17 hypothetically or theoretically, marry wind resources 18 with some sort of energy storage technology, like pump 19 store, like compressed air energy storage, like some 20 sort of battery. And the ER looked at all of those 21 options and concluded that none of those alternatives 22 are sufficiently advanced, technologically or 23 commercially, to be able to work with wind together to 24 approximate base load energy.

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144 1 power is not reasonable based on the lack of adequate 2 wind resources in the DTE service area, the 3 significant shortcomings and reliability of wind as a 4 base load energy source, the limited availability of 5 pump storage, and the undetermined availability of 6 geological formations for compressed air energy 7 storage.

8 So I think the point here is that DTE has 9 looked at all of these options, and has addressed them 10 and put forth information and a basis for its 11 conclusions. And at this stage in the proceeding, 12 it's incumbent on the Petitioners to present some 13 genuine dispute with those conclusions. And nothing 14 in there, the contention or the reply, rises to that 15 level. Contention 1 is inadmissible.

16 JUDGE TRIKOUROS: Go ahead.

17 JUDGE ARNOLD: Just assume for a moment 18 that it was reasonable to replace Fermi 2 with wind 19 power. Just, you know, make the assumption. Now, 20 what would you, how would you compare the continued 21 environmental impact of Fermi 2, that's already there, 22 already been constructed, already in operation, to the 23 impact of building enough windmills to replace Fermi 24 2?

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145 1 that's certainly something that in our ER we also 2 discussed that. We talked about the impacts of 3 installing wind generation. It has impacts on land 4 use and on, you know, on birds and other mammals, like 5 bats. It has, requires more transmission if you're 6 going to have them distribute over a larger area.

7 And even if you build them offshore, then 8 you eliminate some of those impacts. But you've got 9 new ones with the interference with aquatic resources 10 and so on. So, I think the point is that there are 11 impacts to wind. But in this analysis, we don't get 12 there, because we don't reach the point where wind is 13 a viable alternative.

14 And then I just point out, in addition 15 that, as you said, Fermi 2 is already built. So we're 16 talking about the impacts from an additional 20 years 17 of operation versus compared to the impact of building 18 new generation.

19 And, ultimately, in license renewal, the 20 standard is whether the environmental acceptability of 21 the proposed action, which is renewing the license, is 22 whether or not the adverse impacts of license renewal 23 are so great 24 as to making operating another 20 years unreasonable.

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146 1 that's the case.

2 JUDGE ARNOLD: Thank you.

3 JUDGE SPRITZER: NRC staff?

4 MR. LINDELL: Your Honors, Joseph Lindell 5 representing the NRC staff. So as we've discussed 6 here, I mean, in their brief standard argument here, 7 Petitioners have stressed that, you know, in general 8 wind power is a way, a viable means of generating 9 power. Petitioners, however, have failed to show why 10 the alternatives analysis in the ER is insufficient.

11 And, as we pointed out, the Commission has 12 made clear on many occasions that an alternative's 13 contention, to be admissible, it has to raise a 14 genuine dispute with the ER such that the same stain 15 to the alternative can supply base load power in the 16 near term. And that's, for example, the Seabrook 17 case, 75 NRC SP42.

18 Petitioners here have talked a lot about 19 the potential for wind power; you know, at some point 20 down the road, some point in the future, projects 21 overseas and the like. But they haven't made any 22 factual showing for, you know, wind power to replace 23 that base load generation of 1,170 milliwatts in the 24 near term.

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147 1 raise on reply, you know, in a situation where, you 2 know, new arguments can generally not be raised on 3 reply, that point to certain maps from the state that 4 you can access on the State of Michigan's website, 5 where you add up all the milliwatts generated by wind 6 currently, and plus some future expansions that are 7 planned, you do reach a number of 1,170 milliwatts or 8 such.

9 But you know, to the extent that this is, 10 indeed, a challenge to the ER, there are several 11 problems with this. We don't know, for example, how 12 much of this current wind power and projected wind 13 power, although in the State of Michigan, is in the 14 DTE service area. It also assumes that, you know, all 15 of this wind power is now able to, basically, replace 16 the base load demand of Fermi, and it isn't already 17 supplying, you know, other demands throughout the 18 state.

19 And also, as you know, the Applicant 20 pointed as well here, that you know, there are 21 reliability issues with wind power, such as wind has 22 to be blowing sufficient velocity and duration. And 23 the conclusion in the ER was that it would, it would 24 not be able to do so to generate base load power. And 25 CRAFT has failed to challenge this.

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148 1 I guess just the one other thing I would 2 bring up is the, CRAFT also mentioned the potential 3 for offshore wind development. They consider that to 4 be very favorable. Now, the ER addressed this, as 5 well. And, as the Applicant pointed out, there are 6 issues with, you know, impacts caused on the 7 environment by offshore. And also, the ER makes an 8 important point that legislation in Michigan would be 9 required to create such a regulatory framework for 10 offshore wind generation. And, as of the submittal of 11 the ER, they note that no such framework existed.

12 So this doesn't meet the standard of being 13 able to supply the base load power for the near term.

14 You know, at the best, it's potential, it's 15 speculative, theoretical. But that would not meet the 16 contention admissibility standards.

17 JUDGE TRIKOUROS: In terms of the cost of 18 wind, you heard what was said regarding the statement 19 that it was cheaper. Is this something that you can 20 support, that it's actually cheaper than nuclear, for 21 example? For example, if I went on the NEA site right 22 now, website, and I looked at the cost per kilowatt 23 hour2.662037e-4 days <br />0.00639 hours <br />3.80291e-5 weeks <br />8.7515e-6 months <br /> of these different energy sources, would I find 24 wind that would be cheaper than nuclear? Do you have 25 any, do you know?

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149 1 MR. LINDELL: I'm sorry, I can't, I can't 2 really provide any insight on that question.

3 JUDGE ARNOLD: Well, do you expect that 4 you would find any new build wind cheaper and more 5 cost effective and an already constructed nuclear 6 power plant?

7 MR. LINDELL: I also don't have the facts, 8 you know, to support that one way or another. You 9 know, I know that, you know, that you know, something 10 that's already constructed, you know, there are 11 certain, you know, cost effectiveness to that as 12 opposed to constructing something new. But, I mean, 13 other than that, other than sort of a very general 14 knowledge, I can't really supply anymore details on 15 that.

16 JUDGE ARNOLD: Just one more question for 17 the Intervenors, in your responses, you mentioned wind 18 and other renewables.

19 MR. SHERMAN: Yes sir.

20 JUDGE ARNOLD: The actual contention 21 statement is wind energy is a viable alternative. So 22 let me get this clear. You're actually saying wind 23 and other renewables, not just what the contention 24 statement says of wind.

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150 1 I believe all renewables need to be on the table, and 2 whatever works best for the local environment. But, 3 considering that nuclear is well less than 20 percent 4 of the state's grid power, I would be more than happy 5 to stand behind the fact that if we're just talking 6 about replacement of Fermi, we have the resources in 7 Michigan to do it.

8 Now, is each turbine going to produce a 9 very specific amount for every moment it's online? Of 10 course not. But we don't currently have a grid system 11 that has perfect match of supply and demand. That's 12 why we already have use of the Luddington power 13 pumping station. That's why we already have use of 14 contracts with DTE and their customers such as 15 interruptable power supply and lower costs for off-16 peak usage.

17 So DTE has an opportunity to make the most 18 of the new energy future. Whereas, the old ways of 19 burning coal and nuclear are slowly transitioning out, 20 the new ways of making power with no pollution are 21 coming in. And once those resources have the initial 22 investment paid off, the DTE will be able to expect 23 windfall profits. Because there will be times when it 24 is generating a higher capacity factor, and sometimes 25 when there's lower. And the current mitigation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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151 1 strategies is for smoothing out supply and demand on 2 the grid can be applied to these future overruns and 3 under productions.

4 JUDGE TRIKOUROS: When you quote numbers 5 like 12,000 megawatts of wind, are you actually 6 quoting deliverable energy, or are you quoting 7 installed capacity?

8 MR. SHERMAN: I'm glad you asked that 9 question. I would like to clarify. There's a big 10 difference between generating capacity and the actual 11 real time capacity factor. I am not claiming that all 12 12,000 megawatts of wind power currently on the grid 13 is generating at that capacity at all times. That is 14 not our contention.

15 What our contention is that, even with 16 relatively modest investment over the last few years, 17 wind energy has exploded in the state. The resources 18 have just barely begun to be tapped. Between on land 19 and offshore resources, we have more than enough to 20 power the entire state, let alone replacing Fermi 2.

21 Will there be times when the wind is blowing a little 22 less in some places? Of course. But we already have 23 a situation where we have to sometimes massage supply 24 to meet demand.

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152 1 guess you again, why is it that when utilities install 2 wind capacity, they install an equal amount of fossil 3 energy? You know, for example, in California --

4 MR. SHERMAN: I don't know that to be 5 true, sir. I've read studies that say in some of the 6 recent months, the only generating capacity that's 7 been developed statewide, and in some months 8 countrywide, has been wind power. Wind power had 9 definitely been outpacing fossil fuels in terms of new 10 energy on the grid, from what I have studied.

11 Especially here in Michigan and in other states that 12 are picking up the renewable portfolio standards.

13 JUDGE TRIKOUROS: That wasn't my question.

14 I might, I might agree that more wind power is being 15 installed than fossil.

16 MR. SHERMAN: I understand your question 17 was why do companies build simultaneous resources in 18 wind and --

19 JUDGE TRIKOUROS: Yes, and I believe that 20 that's a consistent behavior.

21 MR. SHERMAN: That's not what I've seen, 22 but I'd love to see the study that can prove it. But 23 that's not my experience. And in some months, all of 24 the new generating capacity on the grid has been from 25 renewable resources. It's one of the only things you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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153 1 can build, unless you're trying to bring older plants 2 up to a higher generating capacity or working with 3 some sort of grandfather plan. New plants need to be 4 developed in compliance with the Clean Air and Water 5 Act.

6 JUDGE TRIKOUROS: You know, unlike some 7 organizations in this world, utilities are required to 8 produce electricity constantly. They don't have the 9 luxury, anyone in this room if they lost electricity 10 for five days, they would be jumping all over the 11 utility company, suing, and they might even die.

12 MR. SHERMAN: It happens all the time.

13 JUDGE TRIKOUROS: They might even die.

14 They might even die. So there's no option. When 15 intermittency is installed, it has to be backed up.

16 There has to be a back-up if it's intermittent. They 17 account for downtime of nuclear power plants by 18 installing combustion turbines. They account for the 19 down time of any plant by installing other plants.

20 MR. SHERMAN: So Fermi 2 has opposite or 21 parallel capacity to replace it if it were to be 22 offline is what you're saying?

23 JUDGE TRIKOUROS: Well, what I'm saying is 24 that intermittency can't be counted on. If an energy 25 source is intermittent, it cannot be counted on as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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154 1 base load.

2 MR. SHERMAN: Understood.

3 JUDGE TRIKOUROS: And therein is the 4 problem we're facing here. That nuclear power plants, 5 and I'm sure Fermi falls in the general category of 90 6 percent capacity factor entities. So the utility does 7 have to account for a 10 percent downtime of those 8 plants. In the same way, if it built 30 percent 9 capacity factor assets, it would have to provide 10 energy 70 percent of the time using some other way.

11 That other way could be a nuclear power 12 plant somewhere else, 70 percent of the time. And 13 therein lies our problem, in that we can't replace a 14 nuclear plant with a wind asset, and call it base 15 load. That would not be approved by the Nuclear 16 Regulatory Commission as a base load replacement.

17 MR. SHERMAN: I understand what you're 18 saying. It is my belief that the arguments of DTE and 19 NRC are somewhat self serving. Of course they want to 20 maintain the status quo. Of course they will make 21 more money by keeping Fermi 2 online. But, as a 22 utility, their responsibility is not just to their 23 bottom line. Of course they have a responsibility to 24 their investors.

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155 1 rate payers in the State of Michigan. And the fact 2 that we already have an inconsistent supply on the 3 grid, and we correct for that with contracts with 4 customers like interruptable power and off-peak lower 5 rates, some of these problems, you know, maybe 6 exacerbated briefly in the beginning.

7 But we're not talking about turning off 8 Fermi tomorrow. We're talking about having a public 9 meeting to let the public weigh in on these issues.

10 And there is capacity, not only in wind, but in other 11 factors, other sources. And we're not talking about 12 building capacity overnight for base load power.

13 We're talking about having that base load power on the 14 grid. Using resources from the great State of 15 Michigan before the renewal of this permit in 11 16 years.

17 Eleven years is a long time to build 18 storage. To incentivize individual and community 19 based grids and storage so that people, especially 20 relying on life support at home, can have the security 21 of an un-interruptable power supply. And we believe 22 that that can be incentivized and will actually help 23 DTE in the long term to deal with these already 24 existing separations between supply and demand.

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156 1 used enough time on this, so we heard your --

2 JUDGE SPRITZER: Thank you very sincerely.

3 MR. SHERMAN: Okay.

4 JUDGE SPRITZER: Thank you for your 5 information. And let's move on now to the second 6 group of contentions.

7 MS. COLLINS: If I might, one of the, 8 Sandy Bihn who was to defend Contention 12, which was 9 Group 5, has a scheduling conflict, and we would like 10 to request that she go on next, if that's all right.

11 JUDGE SPRITZER: Does anybody have a 12 problem with that. Fine, that would be fine.

13 MR. SHERMAN: If it pleases the Court, I 14 will relinquish my seat to Sandy.

15 JUDGE SPRITZER: Absolutely. That would 16 be fine.

17 MR. SHERMAN: I will be in the room if I 18 wish to be addressed. Thank you again.

19 MS. COLLINS: Contention 12, thermal 20 pollution.

21 MS. BIHN: Good afternoon, and thank you 22 for allowing me to testify now. I appreciate that.

23 I'm Sandy Bihn and I'm a Lake Erie waterkeeper, and I 24 live on the shores of Maumee Bay and Lake Erie. I've 25 lived there since 1987. I also serve on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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157 1 international joint commission board of water quality 2 advisor board, as well as the Ohio Department of 3 Natural Resources coastal advisory board, and other 4 boards relating to Lake Erie.

5 I've worked on Lake Erie issues for the 6 past 20 years. I strangely --

7 JUDGE SPRITZER: Maybe you can move the 8 microphone a little bit closer.

9 MS. BIHN: Sure.

10 JUDGE SPRITZER: But not too close, 11 because that's the one that gets feedback.

12 MS. BIHN: Is that okay? Does that work?

13 Do you want me to start over?

14 JUDGE SPRITZER: No, no.

15 MS. BIHN: All right. And so I've worked 16 with the Lake Erie waterkeeper program, which actually 17 serves Lake Erie from coast-to-coast from the, on the 18 west from Ohio and Indiana to the east to New York and 19 north and south from Ohio to Ontario. So I work on 20 the whole lake on a regular basis for the past 10 21 years.

22 So I'm just here to kind of talk about the 23 water impacts of the facility, and what is different 24 from the 2008 environmental impacts that were 25 submitted then, and what's going on right now. Most NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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158 1 of you may be aware of the fact that the City of 2 Toledo had a half a million people with a do not drink 3 advisory on August 2nd, which is the water intake on 4 the southern shores of Lake Erie, probably 10-15 miles 5 from the Fermi 2 operation.

6 JUDGE SPRITZER: Yes, we even had an 7 article in the Washington Post about that, so yes.

8 MS. BIHN: Well, it's been all over the 9 world. It's not often that people, you talk about 10 economic impact. The restaurants were all closed. The 11 hospital stopped surgeries. And it was huge in terms 12 of the ripple effect that that had. How does that 13 relate to this hearing, and what here in the 14 contention in terms of algal blooms and mixing zones?

15 The 50 million gallons, 45 average million 16 gallons that Fermi 2 uses increases the water 17 temperature by 18 degrees on average. And what that 18 does is that accelerates, prematurely begins the bloom 19 in Lake Erie. We have satellite imagery from 2011, as 20 verified by Limno Tech for the Army Corps of 21 Engineers, that basically shows that the first algal 22 bloom in Lake Erie actually happens in the Fermi 23 2/Detroit Edison footprint, in their mixing zones on 24 the western basin in Monroe Fermi area.

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159 1 it would normally happen. And that's particularly 2 significant for the Toledo situation in that we had a 3 very warm, or excuse me, a very cold, dry July; almost 4 a record cold, dry July. And yet, we had a bloom 5 early. Algal blooms usually start in mid-summer and 6 peak in September. So it's really unusual that we 7 would have the kind of situation that happened in 8 Toledo on August 2nd.

9 And so the explanation is beginning to 10 evolve that appears to be that the internal load in 11 the lake, the sediments already in the lake that have 12 a high phosphorus content, as proven by recent studies 13 again by the Corps and by ECT Environmental Consulting 14 Technologies in the River Raisin area. Actually 15 those, the temperature is what drives the bloom, and 16 starts the bloom in the beginning of the season.

17 So I guess the point here is that the 18 acceleration of the water temperature and then 19 creating the bloom, the start of the bloom, can I tell 20 you that that bloom, what bloom means to the rest of 21 the lake, and does that start the bloom accelerating 22 across the lake? I can't say that. There's no, that 23 has not been studied yet. What we can say is that is 24 definitely where it starts. Each, almost each and 25 every year you get the satellite imagery. You'll see NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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160 1 it right in the mixing zone of these plants.

2 So in very shallow waters, 12 and 14 feet, 3 it's significant. Western basin average depth is only 4 24 feet. So this whole thing, how it cycles and how 5 the winds blow and move the algae around, is the kind 6 of complications we get and the kind of outcomes we 7 get. Certainly DTE is not producing the phosphorus 8 that is there. That's already in the sediments, as I 9 said, or externally coming in from the streams.

10 But there is a concern that these power 11 plants are accelerating the blooms, and they can start 12 further. I mean, that's certainly a reality of what's 13 going on. And, at a minimum, it would be good if the 14 temperatures were down in the water, if somehow they 15 reduce that, what's causing and creating a bigger 16 bloom in the lake, or at least an earlier bloom in the 17 lake.

18 JUDGE SPRITZER: How many power plants, 19 nuclear or non-nuclear, are there in this general 20 area?

21 MS. BIHN: In the western basin, there's 22 the coal fire power plant, certainly, in Monroe that 23 does two billions gallons of water. So it's much 24 larger, it's footprint is much larger than this one at 25 45 million. And there's Erie Township that has about NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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161 1 135 million, it's a coal fire power plant. Besse on 2 the other side has 45 million. Bay Shore has 3 decreased theirs from 750 million to about 180 million 4 gallons a day.

5 Strangely, Bay Shore does not seem to 6 produce the bloom in its footprint. I live really 7 close to it, and it would seem like it logically 8 should because it's right at the mouth of the Maumee.

9 But it does not. Somehow, the way the winds blow and 10 the currents are in the water, it would appear that in 11 the Monroe area, where Fermi is at, that the waters 12 are a little bit more stagnant. Perhaps they don't 13 move, and the circulation isn't quite as great. I'm 14 not sure, but for some reason, year after year, that's 15 where the bloom starts.

16 JUDGE ARNOLD: Well, looking at the 17 written contention, I can't see anywhere where you've 18 identified or specifically disagreed with anything in 19 the Fermi 2 environmental report.

20 MS. BIHN: The report was based on 21 information before, or it was submitted 2008. The 22 problems with the blooms have happened since then. So 23 in many ways, you know, if there's more information 24 that comes forward and we have a problem in the lake, 25 which we absolutely do, and I think that's widely, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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162 1 publicly recognized, then it would seem to be prudent 2 to include the reality of today, as opposed to, you 3 know, what was known in 2008. And because the blooms 4 in Lake Erie really, the record blooms have been 2011.

5 The next one was 2013 and 2014.

6 JUDGE ARNOLD: Let me just ask that 7 quickly. When was the environmental report submitted 8 to the NRC?

9 MR. SMITH: Earlier this year.

10 JUDGE ARNOLD: So it wasn't 2008.

11 MR. SMITH: No, it was not.

12 MS. BIHN: Well the dates, I thought, were 13 based on 2008. But certainly even earlier this year, 14 this factor in terms of what's going on would not have 15 been allowed. I mean, they just wouldn't have had the 16 information.

17 JUDGE ARNOLD: See, the problem I have is 18 I find that it is addressed in the environmental 19 report, and you haven't directly challenged what's in 20 the environmental report. You've just said well, 21 there's some information that they couldn't possibly 22 have considered from that evaluation.

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163 1 if any, to update the Applicant's environmental 2 report. There's obviously a duty on a Federal agency 3 and the need to address new or supplemental 4 information. I know we had at least one licensing 5 board that looked into that question. You'll have 6 three minutes for rebuttal, so why don't we move on, 7 and I'll ask that.

8 MR. SMITH: Sure, and I'll start by 9 answering that question. There is currently no 10 obligation to an Applicant to update its ER. That's 11 something that, in the Diablo Canyon license renewal 12 proceeding that issue came up. And the Board there 13 concluded that there was no obligation, but referred 14 the issue to the Commission. And the last I heard, 15 the staff was still considering what, if anything, to 16 do with that.

17 JUDGE SPRITZER: So it hasn't been 18 resolved. Now I take it the corollary of that would 19 be if there's no duty on the Applicant in this case to 20 upgrade the ER, we can hardly insist that the 21 Petitioners, or if they become Intervenors, file new 22 contentions every time some new piece of information 23 comes along saying you have to update the ER when, in 24 fact, there's no duty to update the ER.

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164 1 that comes along, you have a duty, as a Petitioner, to 2 file new contentions in a certain period of time.

3 JUDGE SPRITZER: Well, if the argument 4 though is that the ER, they wouldn't be able to argue 5 that the ER needs to be updated.

6 MR. SMITH: The argument wouldn't be that 7 the ER needs to be updated. It's that the information 8 in the ER is incorrect.

9 JUDGE TRIKOUROS: Yes, I think what Diablo 10 found was that the Applicant didn't have an obligation 11 to update the ER, but there was obligation to report 12 new information so the EIS could be updated by the 13 staff.

14 MR. SMITH: Correct. Yes, the staff will 15 still reflect it in their, their Group B documents.

16 Contention 12, as we heard, relates to the 17 effects of Fermi 2 discharges on algae. I think the 18 first point is the contention, as written, says that 19 the thermal discharges are a significant contributing 20 factor, and the Fermi 2 operations cause environmental 21 impacts that are "unknown and unanalyzed."

22 Well DTE's ER, in fact, analyzes the 23 potential for algae blooms, including the harmful 24 algae blooms in Lake Erie. There's an extensive 25 discussion of the impacts. It describes the Lake Erie NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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165 1 invertebrate population in the ER. It mentions the 2 historical occurrences of harmful algae blooms in 3 western Lake Erie.

4 It, specifically, notes the potential for 5 microcystin from blue green algae, and the potential 6 impacts on drinking water. It describes specific 7 studies that have been done at the Fermi 2 outfall in 8 September of 2011, which found a healthy algae 9 community. And it notes that no algae blooms of 10 lyngbya or other nuisance species have been reported 11 at the Fermi site to due to Fermi 2's operations or 12 other NPDES permitted discharges.

13 So, not only is there no emission, there's 14 an assessment in the ER of these impacts. And it 15 concludes that Fermi 2 is not causing or contributing 16 to harmful algae blooms. And that conclusion is 17 based, it specifically refers to a potential for algae 18 blooms in the vicinity of the site, and in Lake Erie 19 generally.

20 So this is something that has been 21 comprehensively addressed in our environmental report.

22 For their part, CRAFT offers no specific information 23 to controvert those conclusions. It doesn't provide 24 any expert or factual support. And the fact that this 25 is an issue of intense interest right now is not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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166 1 enough to render it to be an admissible contention on 2 its own. Contention 12 is inadmissible.

3 JUDGE TRIKOUROS: Do you know if Fermi 2 4 has filed a license amendment to increase the maximum 5 allowable intake temperature?

6 MR. SMITH: I do not know if Fermi 2, I'm 7 not sure, for the intake temperature? I'm not aware 8 that they have. I don't believe that there is a 9 temperature restriction at present. They have not 10 filed anything to increase.

11 JUDGE TRIKOUROS: They did not file.

12 Many, many nuclear plants in the United States have 13 filed license amendments and have had to re-analyze 14 their entire design basis to account for a higher 15 ultimate heat sink.

16 MR. SMITH: Correct. And that's not a 17 circumstance that Fermi has had to --

18 JUDGE TRIKOUROS: But that hasn't happened 19 with them?

20 MR. SMITH: It has not.

21 JUDGE SPRITZER: Did your ER discuss the, 22 what CRAFT refers to as the recent water emergency in 23 Toledo, Ohio caused by toxin algae blooms?

24 MR. SMITH: No, it did not. Obviously, 25 that occurred after, after we filed our ER. But, as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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167 1 I mentioned, our ER does discuss the potential for 2 that to occur. It notes the occurrences of that in 3 the past. And it, specifically, mentions microcystin 4 which, if I remember correctly, was the particular 5 toxin produced by the algae that was this summer.

6 So there's nothing unique about this past 7 summer with respect to the existence of algae blooms, 8 generally. From what I understand, the, the unique 9 nature was that happened to occur in the vicinity of, 10 you know, the water intake structure for the City of 11 Toledo. But, more broadly, that's not a new issue, 12 and it was one that was considered in our ER.

13 JUDGE SPRITZER: All right, let's move on 14 and hear from the staff.

15 MR. LINDELL: Your Honors, the staff 16 wishes to stress similar to, you know, the arguments 17 made by the Applicant. That, in its initial filing, 18 CRAFT didn't make any specific challenge to the ER 19 that was supported by facts or expert opinion when it 20 came to these algal blooms. And I'm not going to go 21 over the entire discussion the Applicant just had 22 about what the ER does actually do to consider this 23 issue.

24 You know, on reply, the Petitioner did 25 point to the fact that studies were done in 2008 and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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168 1 2011. There haven't been any studies since, let's 2 say, the crisis in Toledo or, you know, the algal 3 bloom last summer. Now in their argument that point 4 out that, they make a point that actually the 5 satellite images or other studies show that the 6 origins of the bloom are someway interrelated or 7 connected, start at Fermi 2.

8 But, you know, the problem here is that 9 these arguments are new, and they were never raised 10 initially. And, you know, the staff doesn't, didn't 11 have the, didn't have the opportunity to look into 12 this, and to respond to, to these claims regarding, 13 that they're raising now.

14 And still, there's no particular challenge 15 to the environmental report in terms of what exactly 16 the environmental report filed to state. What needs 17 to be included. you know, what particular information 18 needs to be analyzed that has not been analyzed.

19 More studies, you know, can always be 20 done, but the Applicant has the burden to demonstrate 21 that what has been done is insufficient and that the 22 problem with the algal blooms in Lake Erie is, indeed, 23 linked in some manner to Fermi 2.

24 JUDGE SPRITZER: Well, this August, 2014 25 satellite image, does that in any way, whether it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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169 1 new or not, does that in any way have any bearing on 2 the question of whether Fermi 2 contributes to the 3 algal blooms that have happened?

4 MR. LINDELL: Your Honor, I did take a 5 look at the images that were provided in the petition 6 and their reply. To be honest, two of the images they 7 say are from NOAA, I was unable to locate. The link 8 doesn't appear to work. The link appears to be a dead 9 link. The other image, you know, is from an article, 10 actually, from Business Insider, which I guess comes, 11 does initially come from NOAA.

12 But, as far as I can tell, the images, you 13 know, show, you know, the effects of a bloom on Lake 14 Erie. But they don't, as far as I can tell, the 15 images don't show in any way, you know, linkage 16 between Fermi 2 and the algal bloom problem. They 17 don't, and they never explain how the maps show in any 18 way that, you know, in fact, they don't even, they 19 claim that the maps show there's an exacerbated 20 problem. But they don't show, they haven't shown in 21 their filing how the maps show that.

22 So, to me, the maps seem very unconnected 23 from any, you know, challenge here in this proceeding.

24 I guess the one, if I still have time, one more thing 25 I'd like to point out. In the past when, actually NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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170 1 it's worth noting the Fermi 3 Board, in the CO offer 2 sitting there they did initially admit a contention on 3 algae.

4 And it's worth pointing out that over 5 there Petitioners made specific references to studies.

6 Petitioners showed that there were studies talking 7 about phosphorus concentrations; that they were 8 increasing and the Applicant, there in the ER, had 9 initially stated that such concentrations were 10 decreasing. And also there were university studies 11 that were referenced there.

12 And here, at least, in their, what they 13 provided to us, CRAFT has not provided any level of 14 detail that would reach that and be able to support an 15 admissible contention in this regard. I also just 16 note that, you know, as we've discussed here that the 17 staff will prepare, you know, a supplemental 18 environmental impact statement. And they will look at 19 what new data is out there. And they will analyze how 20 it's developed and, you know, include that in their 21 supplemental environmental impact statement.

22 JUDGE SPRITZER: Let me ask you about the 23 question we talked about with Mr. Smith. That is, 24 first of all, does the staff take the position that an 25 Applicant, when it learns of new and potentially NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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171 1 skewed information relevant to a NEPA issue has a duty 2 to update its ER or not? Or are you still looking at 3 that.

4 MR. LINDELL: Your Honor, I'm, that is not 5 an issue that I am familiar with.

6 JUDGE SPRITZER: You're about to get some 7 assistance.

8 MR. LINDELL: I mean, the staff's position 9 is that the Applicant doesn't have a specific duty to 10 update the ER. But we do continue to ask, request for 11 additional information. And through that RAI process, 12 we do learn more, which then allows us to include that 13 in our environmental impact statement.

14 JUDGE SPRITZER: All right, given that 15 position, then what is the responsibility of the 16 Petitioners or Intervenors? In other words, if they 17 become aware of information that they say is new and 18 significant, do they have the duty to, at that point, 19 to come in and say the ER is wrong, even though it 20 can't really lead to any requirement to change the ER?

21 Or can they wait until the draft EIS comes out, and 22 see whether the staff has actually taken that 23 information into account before they file a new 24 contention?

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172 1 have an obligation to raise new and significant 2 information when they become aware of it. The ER, at 3 this point, is standing in for the EIS. But then, you 4 know, that information will then be addressed in the 5 EIS once we become aware of it.

6 JUDGE SPRITZER: Okay. All right, is this 7 being considered in our rule making of any sort? Or 8 is this just the staff's current position?

9 MR. HARRIS: May I address?

10 JUDGE SPRITZER: You can talk direct. I 11 mean, we don't have --

12 MR. HARRIS: I believe the Commission, in 13 the Diablo case, asked the staff to take a look at the 14 obligation to update the ER. So that is being 15 considered, that particular issue. But it's not been 16 finalized. The staff normally, when it becomes aware 17 of new and significant information, however it becomes 18 aware of that, it would ask RAIs to try to resolve 19 that so it can be addressed in the EIS.

20 JUDGE SPRITZER: Okay. All right, thank 21 you.

22 MR. LINDELL: I think my time has expired.

23 Does the Board have further questions?

24 JUDGE SPRITZER: I don't think we do. All 25 right, the Petitioner's will have, CRAFT will have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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173 1 three minutes for rebuttal.

2 MS. BIHN: I guess, factually speaking, 3 it's really important to know that temperature is what 4 drives a bloom. The blooms don't happen nine months 5 out of the year. What creates the bloom is increased 6 water temperature. There is no doubt that Fermi 2 7 increases the water temperature by 18 degrees in the 8 mixing zone, the footprint of the plant.

9 Applicant said that the algae there is not 10 harmful. I beg to differ. Almost all the algae that 11 come in that period of time in the summer are harmful, 12 and contain cyanobacteria which creates the 13 microcystin which was the problem in Toledo. By 14 having an accelerated bloom at the footprint of the 15 plant, in the mixing zone, you have algae that's 16 there.

17 What happened in Toledo is that algae, the 18 winds were perfect. They blew it from other locations 19 into the intake. It wasn't like the intake itself, 20 the area of the intake is where the bloom occurred.

21 It did not. I mean, I'm sure it had some of the 22 blooms, I don't want to say that. But, in general, it 23 went down 14 feet. I was out there the Sunday after 24 it happened. It's a massive amount of algae.

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174 1 the water intakes, the drinking water intakes in 2 western Lake Erie do not have reservoirs. So they 3 draw the raw water, and they take it in. It's costing 4 more to test and treat. And so there's a concern 5 about the microcystin that's in there.

6 You know, these power plants have been 7 here a long time. You know, this problem has not 8 really gotten as serious as it is. As I said, the 9 record year was 2011. And then next ones were '13 and 10 '14. So this is really a new issue. It's an 11 important issue to, I think the fact that that 12 increase in temperature is where the first blooms 13 occur.

14 It's just the way it is because it's 15 warmer water. And it will happen there every year 16 that way. And I think it's important to take that 17 into consideration in terms of what's happening as a 18 result of this facility and its operations; how it's 19 impacting the rest of the lake.

20 JUDGE SPRITZER: With respect to this 21 August, 2014 satellite image that I believe you 22 included with your reply on this contention, is there 23 anything you can point to that would link what the 24 photograph shows, photograph of a large area of Lake 25 Erie, specifically to Fermi 2, other than we know NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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175 1 Fermi 2 is one of the power plants in that general 2 area?

3 MS. BIHN: The photo, the MODIS photos 4 that are by NOAA that are up, and they're clear when 5 there's no cloud cover. So that's, when you get them, 6 that's where they're coming from. I can give him the 7 link if he'd like. In terms of what you see in that 8 particular picture, that will change with the winds 9 each and every day.

10 And I don't want to be facetious about 11 this, but the reality is the blooms happen because the 12 temperature changes, and it goes up. So, as far as 13 what the photo shows, it shows the concentration of 14 algae in the basin. That absolutely is the case. And 15 we can see that when the season starts.

16 Now, at this time of the year, you won't 17 see the blooms. Of course, the ice begins to cover, 18 the algae kind of remains there dormant. It doesn't 19 go away in the winter. But the blooms and the problem 20 algae don't start until the temperatures rise.

21 JUDGE SPRITZER: Okay, but temperature can 22 rise for a number of reason, including simply that 23 temperature is rising. It's getting warmer.

24 MS. BIHN: That's exactly right. And the 25 only, the comment I have is this begins earlier NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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176 1 because of the mixing zones.

2 JUDGE SPRITZER: All right.

3 MS. BIHN: I mean, that's really where the 4 rubber meets the road.

5 JUDGE SPRITZER: Okay, I think I 6 understand your position.

7 JUDGE TRIKOUROS: Have there been new 8 power plants built since Fermi?

9 MS. BIHN: There have not been any new 10 power plants in the basin that have been built and 11 have the water usage since Fermi, no. So you know, 12 the problem is the western basin is a very sensitive 13 area because of its shallowness is really what the, 14 that's really where the crux of it is at.

15 In the rest of the Great Lakes, the water 16 is much deeper. Western basin average depth is only 17 24 feet. The outfall here is only 14 feet. So, you 18 know, it's really shallow water. And it becomes, as 19 I say, it gets sick quicker and it heals quicker. You 20 know, if we could get down the sources in things, we 21 may not have to have this discussion.

22 As long as that phosphorus is in there, 23 the nutrients are in there, and we have these massive 24 blooms, we have the threat of turning off our drinking 25 water. That's the reality of it.

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177 1 JUDGE SPRITZER: All right, let's move on 2 to the next contention, or in this case group of 3 contentions. That would be Contentions 4, 5, 6 and 4 14. I take it we'll be hearing from Mr. Schonberger.

5 I guess we can take a 10 minute break. So we'll get 6 started with you as soon as we get back in 10 minutes.

7 (Off the record.)

8 JUDGE SPRITZER: And we will proceed to 9 hear argument on Contentions 4, 5, 6 and 14 from Mr.

10 Schonberger. Would you like to reserve three minutes 11 for rebuttal?

12 MR. SCHONBERGER: Yes sir, Chairman, thank 13 you. Three minutes for rebuttal. Chairman Spritzer, 14 Judge Trikouras, Judge Arnold, my name is David 15 Schonberger, for the record. And volunteer to service 16 as an agent representative for the pro se Petitioner 17 CRAFT in this proceeding in order to help the Board 18 gain a better understanding of our pleadings and where 19 we are coming from for the public record.

20 With full disclosure, I am not prepared 21 today to provide the quality of an oral argument of an 22 expert witness, so please confine your questions to 23 Part 2.309. I must point out, for the record, that 24 our groupings, our grouping arrangement was based on 25 the goal of maximum public participation, rather than NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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178 1 contention similarities, per se. So this allows us, 2 this grouping allows us to have the most members of 3 the public as we can to participate.

4 And Mr. Sherman, for his part, did an 5 excellent job of answering the panel's certainly 6 adversarial, possibly prejudiced, as well, questions 7 that were in the nature of an evidentiary hearing of 8 an admitted contention, beyond the scope of Part 9 2.309(f)(I). And the nature of the panel's questions 10 demonstrated that an evidentiary hearing is warranted.

11 A concise statement I have pertaining to 12 the staff's Motion to Strike, the NRC's Motion to 13 Strike the incorporation by reference arguments from 14 CRAFT's reply brief. We content that in a 15 hypothetical, board clarified and narrowed admission, 16 it would be reasonable and consistent with the 17 Administrative Procedure Act to combine the 18 overlapping and parallel contentions together, in 19 order to conduct a concurrent adjudication.

20 We content that proposed Contentions 6, 5, 21 and 4 in this grouping, 6, 5, and 4 correspond, 22 respectively, to the joint Petitioners' proposed 23 contentions 1, 2 and 4, respectively, in an apples-to-24 apples fashion, alleging essentially the same 25 fundamental concerns. Mr. Lindell, for the staff, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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179 1 mentioned earlier that the staff, the Applicant did 2 not have the opportunity to reply to, allegedly, new 3 arguments.

4 And, Chairman, as we pointed out in the 5 answer to the Motion to Strike, we remind the panel of 6 Judge Spritzer's panel's admission of Contention 15 in 7 the Fermi 3 COLA proceeding. As we pointed out in the 8 answer to the Motion to Strike, the panel permitted a 9 subsequent round of replies, subsequent round of 10 replies, and did not rule out presentation of new 11 arguments in the reply brief, based on that procedural 12 deficiency. So, as that would pertain to Contention 13 12 just argued --

14 JUDGE SPRITZER: Well, let me ask this.

15 MR. SCHONBERGER: Yes.

16 JUDGE SPRITZER: Maybe we can move things 17 along a little bit. These four contentions that 18 you're arguing seem to overlap, to a considerable 19 extent, with the ones presented by Beyond Nuclear and 20 the other joint Petitioners as we've called them. Are 21 there any material respects in which your, these four 22 contentions differ from what the joint Petitioners 23 presented us with in their petition and here this 24 morning? Do you have anything to add, in other words, 25 to what we've already heard from them?

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180 1 MR. SCHONBERGER: We would stand by the 2 answer that, in an apples-to-apples fashion, 6, 5, and 3 4 of CRAFT correspond, respectively, to 1, 2 and 4 of 4 the joint Petitioners, alleging essentially the same 5 fundamental concerns. And it is the, it is the Board 6 panel's prerogative to narrow and to clarify proposed 7 contentions for admissibility.

8 JUDGE SPRITZER: Okay. Why don't we move 9 on now, and hear from the Applicant if you have 10 anything to add to what you've already said this 11 morning about the very similar contentions filed by 12 the joint Petitioners.

13 MS. REDDICK: Thank you, Your Honor.

14 Derani Reddick for the Applicant. I'm not going to 15 repeat everything that we went over this morning.

16 JUDGE SPRITZER: Thank God.

17 MS. REDDICK: But I will say that I 18 believe the CRAFT petition provides even less 19 specificity, and provides even less basis than what we 20 talked about this morning. For example, Contention 4 21 for CRAFT, this is the loss of offsite power, doesn't 22 even cite to the ER. There's no reference to any 23 specific SAMA in the ER. There's just, there's 24 nothing there that alleges a specific deficiency.

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181 1 particular, their challenges to the compliance with 2 post- Fukushima orders. I don't think we talked about 3 that too much so far today. I will say that those are 4 current operating issues. Those orders amended the 5 licensing basis for the plant. They are, therefore, 6 outside the scope of license renewal.

7 In fact, with respect to Contention 5, 8 that is regarding spent fuel pool instrumentation, my 9 understanding is that the plant is required to have 10 that implemented by November of 2015, but has actually 11 just installed that instrumentation this past week.

12 So that's already in effect.

13 JUDGE SPRITZER: Are any of those orders 14 that DTE is contesting in any way? That is contesting 15 their applicability to Fermi 2?

16 MS. REDDICK: No. Lastly, really just 17 with respect with Contention 14 of CRAFT, this again, 18 this is not one that is being alleged to have a 19 specific overlap with any of the earlier contentions 20 we heard today. This is a challenge, essentially, to 21 the treatment of spent fuel pool accidents as a 22 Category 1 issue.

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182 1 requested. This contention also asks, I believe, the 2 words are for seeking a rehearing or reconsideration 3 of the Board's decision in the Pilgrim license renewal 4 proceeding, which clearly is outside the scope of this 5 proceeding.

6 JUDGE SPRITZER: All right. Thank you.

7 Does that staff have anything to add on these four 8 contentions beyond what you've already told us?

9 MR. WACHUTKA: Yes, Your Honor. This is 10 Jeremy Wachutka from the NRC staff. First of all, I'd 11 like to say that there is a significant difference 12 between proposed Contentions 4, 5 and 6 and the other 13 contentions we previously spoke about. All three of 14 these contentions, basically in their very first line, 15 they are challenging the implementation of Fukushima 16 orders.

17 Whereas, the previous contentions that we 18 discussed do not challenge the implementation of 19 Fukushima orders. And this sort of challenge is 20 outside the scope of this license renewal proceeding.

21 These Fukushima orders were immediately effective, 22 meaning that upon their issuance in 2012, they current 23 licensing basis for Fermi 2 was modified consistent 24 with these orders.

25 Now, therefore, any discussion of these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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183 1 orders with respect to Fermi 2 is, effectively, a 2 discussion of Fermi 2's current licensing basis. In 3 the Turkey Point proceeding, CLI 01-17, and the 4 Pilgrim proceeding, CLI-07-13, the Commission 5 explained that the scope of license renewal safety 6 contentions is limited to issues of aging management, 7 and not issues with the current licensing basis.

8 Therefore, CRAFT's discussion about the 9 implementation of these Fukushima orders is outside 10 the scope of this license renewal proceeding. And for 11 that reason alone, they are inadmissible.

12 Additionally, Your Honors, CRAFT attempts to avoid 13 this result by arguing that its safety concerns 14 regarding the implementation of these orders may 15 affect aging management plans.

16 However, this argument fails for numerous 17 reasons. First, the period of extended operations for 18 Fermi 2 would begin in March, 2025. The Fukushima 19 orders required all licensees, including DTE, to 20 provide the NRC with their plans for implementing 21 these orders. DTE has provided that it would complete 22 the orders by 2016. Therefore, the actual 23 implementation of these orders will occur before the 24 Fermi 2 period of extended operations begins. And 25 thus, their implementation is not an issue within the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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184 1 scope of this license renewal proceeding.

2 Second, CRAFT asserts that DTE's aging 3 management plan fails to address equipment aging 4 issues in the context of multi-unit facilities.

5 According to 10 CFR Part 54, aging management plans 6 must demonstrate that the effects of aging will be 7 adequately managed so that the intended functions of 8 the system structures and components within the scope 9 of Part 51 will be maintained consistent with their 10 current license basis for the period of extended 11 operations.

12 However, CRAFT has not explained how the 13 existence of a Fermi Unit 3 would affect the intended 14 functions of the Fermi 2 components that are required 15 to be managed for aging. Therefore, CRAFT has not 16 demonstrated that proposed Contention 4 is within the 17 scope of this license renewal proceeding.

18 Otherwise, Your Honors, the other 19 arguments that we discussed with proposed Contention 20 5, having to be a challenge to a Category 1 finding 21 and, therefore by rule, outside the scope of these 22 proceedings. And proposed Contention 6 does not 23 satisfy 10 CFR Section 2.309(f)(i)(V) because, for 24 instance, CRAFT identifies the National Academy of 25 Sciences report, but it does not explain how report NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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185 1 supports its argument in any way. It just attaches it 2 to its pleading.

3 Finally, proposed Contention 4 explicitly 4 asks for this Board to reconsider a Commission 5 finding. And since Commission findings are binding 6 upon this Board, this is not something that the Board 7 has the ability to do. So therefore, proposed 8 Contention 14 is also inadmissible. And for these 9 reasons, all of these proposed contentions are 10 inadmissible.

11 JUDGE TRIKOUROS: The Contention 4, on 12 page, the petition at 17, says the Petitioner submits 13 that the Applicant's SAMA analysis and overall license 14 renewal application hastily fails to comprehensively 15 analyze reasonable foreseeable links, consequences and 16 mitigational terms. I'm going to ask later for 17 clarification.

18 But one way to read that is to ask the 19 question should the SAMA analysis, specifically the 20 PRA in the SAMA that uses, that the SAMA uses, doesn't 21 take into account flex strategies and, you know, 22 various other changes to the plant that are being 23 implemented as a result of those orders.

24 Now, I think I can say that's true. But 25 I don't know that the NRC is going to require that.

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186 1 I haven't seen anything that says they will. Could 2 you address that?

3 MR. WACHUTKA: Well, Your Honor, with 4 respect to multi-unit events in the SAMA analysis, 5 like we just --

6 JUDGE TRIKOUROS: I'm not talking about 7 multi-unit now. I'm talking about any individual 8 unit, when they do a PRA, they have you know the 9 sequence studies that they do. They would include 10 options that are associated with flex strategies if 11 they had them in the PRA, right? They would say 12 System A, System B, System C fails. You know, now the 13 core is heating up. Gee, I have flex strategies that 14 I can implement now to keep the core from heating up.

15 Why wouldn't I do that? That isn't done up to now.

16 MR. WACHUTKA: Right, okay so Your Honor, 17 in reply to your question, I think the issue is that 18 the PRA's haven't been updated with these orders that 19 have been put out that you're discussing with the flex 20 plan and such. But if they had, these orders have 21 been found to be beneficial. So in any way that they 22 would affect the PRA analysis would only be to show 23 that the plant was safer, and not less safe.

24 JUDGE TRIKOUROS: Yes, I understand that.

25 But the statement in the Petitioner's, in the numerous NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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187 1 petitions says you haven't included them. They're 2 saying it's a omission. You haven't included that.

3 At least that's how I read it.

4 MR. WACHUTKA: Well --

5 JUDGE TRIKOUROS: Is there any plan in the 6 future to require licensees to do that? Or is that up 7 to the licensee on a case-by-case basis?

8 MR. HARRIS: Your Honor, if I may address, 9 I mean, that particular, that particular issue of 10 updating PRAs is within the control of the licensees.

11 So, for they, if they're going to use it for some risk 12 informed kind of license amendment, you know, they 13 would have to be updating PRAs to show the latest 14 licensing basis.

15 These PRAs were last updated before these 16 most recent changes. But the expectation, at least in 17 terms of SAMA analysis is whether or not the analysis 18 was reasonable. And you know, in light of what the 19 flex strategies are meant to do, it's not likely to 20 show that one of the mitigation measures would, all of 21 a sudden, become potentially cost beneficial, you 22 know, if you're accounting for this increased level of 23 redundance potential to mitigate a core accident.

24 JUDGE TRIKOUROS: All right, so you're 25 saying it would make it better. It's adequate now.

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188 1 No requirement for them to do it.

2 MR. HARRIS: Well, it's reasonable under 3 NEPA.

4 JUDGE TRIKOUROS: I understand.

5 MR. WACHUTKA: And another issue, Your 6 Honor, is that they, CRAFT in this case appears to be 7 challenging these orders. And yet, this is not the 8 proper forum in which to challenge the orders. Under 9 10 CFR Section 2.202, within 20 days of the orders 10 being issued they could have been challenged. And, in 11 fact, some of them were, in the Pilgrim proceeding, 12 challenged the orders. But the license renewal 13 proceeding is not the place to challenge these orders.

14 JUDGE TRIKOUROS: I understand.

15 JUDGE ARNOLD: I'm just a little bit 16 confused by some of these contentions in that they're 17 listed as environmental contentions and, yet, several 18 of them have to do with whether or not we, the 19 licensee has implemented requirements of orders that 20 are, basically, safety enhancements. And I'm 21 wondering how to you come to it being an environmental 22 contention when it's really a current licensing basis 23 challenge?

24 MR. SCHONBERGER: Yes, I hear your 25 question. And primarily, the overlapping with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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189 1 joint Petitioners is an environmental contention of 2 omissions of a proper station blackout SAMA analysis.

3 However, we do use Part 54 language to, as background 4 support, to allege the importance of consideration of 5 these so-called out-of-scope transmission lines and 6 the out-of-scope corridor.

7 Because we, fundamentally, dispute the 8 Applicant's finding in the LRA that Unit 2 is supplied 9 by physically independent sources of offsite power, 10 which could qualify as separate. And the public 11 should be able to reasonably anticipate and expect 12 that the offsite AC power supply transmission system 13 must be within the scope of the environmental review 14 and the safety review for the period of extended 15 operation, which must presume the Fermi 3 COLA as it 16 actively stands pending. So we do borrow language 17 from Part 54.

18 As the intended function of this passive 19 system, the transmission lines and corridor, the 20 intended function is to ensure reliable and 21 uninterrupted AC electric power supply, and the AEA 22 mandated safe operation of Unit 2 during the period of 23 extended operation. And should, therefore, be a 24 necessary basis for establishing an AEA mandated 25 reasonable assurance finding for pass system NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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190 1 structures and components that are or principal 2 importance to safety.

3 JUDGE ARNOLD: So, for instance in 4 Contention 5, spent fuel pool instrumentation, are you 5 saying that when they have fully installed the 6 instrumentation, the environmental impacts will become 7 more severe? Or are just saying they haven't properly 8 characterized the environmental impacts?

9 MR. SCHONBERGER: Well, Judge Arnold, if 10 we're moving in to Contention 5, the genuine dispute 11 with the Applicant's LRA finding, which they made 12 pursuant to 10 CFR Part 51.95 and Turkey Point, 13 pursuant to 51.95 and Turkey Point, the Applicant 14 determined that no new and significant information 15 exists as it relates to onsite storage spent fuel such 16 that further analysis would be called for and required 17 by a hard look requirement.

18 So, CRAFT would allege that unique and 19 special circumstances exist which, effectively, 20 preclude the Applicant's claim of entitlement to 21 incorporate the Category 1 generic determinations of 22 NUREG 1437 which is codified in Table B(1) and applied 23 in Part 51.53.

24 JUDGE ARNOLD: Okay, thank you.

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191 1 have concluded our discussions of those four 2 contentions. Let's move on to Contention 2 and Ms.

3 Collins.

4 MS. COLLINS: Greetings. I'm Jessie 5 Collins, and Contention 2 is that Walpole Island First 6 Nation have been excluded from the NRC proceedings.

7 As we stated in the original petition, all sovereign 8 Indian tribes are grated automatic standing in NRC 9 proceedings. 10 CFR 51.28(a)(5) says that NRC has the 10 legal obligation, under NEPA, to notify those tribes.

11 That didn't happen because the NRC decided 12 that Walpole Island are Canadians. Wrong. They are 13 on unseated lands in between Canada and the United 14 States. Some imaginary line that someone drew says 15 they're on the Canadian side. But these are unseated 16 lands. There are treaties governing these people.

17 JUDGE SPRITZER: Let me ask this. What, 18 at what point do you contend the NRC was required to 19 notify the tribe, and what were they required to 20 notify them, what they were required to notify them 21 of, and at what point in time?

22 MS. COLLINS: Of the hearing and of the 23 plan to, of Fermi's application. The tribe should 24 have government-to-government status with the United 25 States. They have treaty rights on the western basin, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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192 1 and on the lands were Fermi are situated. The tribe 2 is within the 50-mile radius. And so, therefore, they 3 definitely should have standing, besides being a 4 nation.

5 JUDGE SPRITZER: As a practical matter, is 6 the tribe aware of this proceeding now?

7 MS. COLLINS: I beg your pardon.

8 JUDGE SPRITZER: Is the tribe aware of 9 this proceeding now, if you know?

10 MS. COLLINS: Yes. The tribe is aware of 11 the proceedings now, but --

12 JUDGE SPRITZER: Have they moved, to my 13 knowledge, they haven't moved to intervene. You may 14 have some members of the organization that are tribal 15 members. In fact, I think you indicated that some 16 are. But we don't have the request by the tribe to 17 intervene, at least not yet.

18 MS. COLLINS: I beg your pardon.

19 JUDGE SPRITZER: We don't have, at least 20 not yet, an application from the tribe itself, to 21 participate, do we? I haven't seen any such request 22 in this proceeding.

23 MS. COLLINS: No, in the Fermi 3, they are 24 part of our request. In the Fermi 3 proceedings, they 25 tried to be involved, and the NRC ruled that they were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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193 1 Canadians, not Americans so, therefore, they had no 2 say. So they did not apply for the Fermi 2 because of 3 the previous ruling. But we're representing them.

4 Some of their tribal members are our members.

5 JUDGE SPRITZER: So you represent some 6 members of the Walpole Nation?

7 MS. COLLINS: Yes.

8 JUDGE SPRITZER: Okay.

9 MS. COLLINS: And the Boundary Waters 10 Treaty, Article 3, sets out that the international 11 joint commission should deal with any issues involving 12 the waters. The thermal pollution that Sandy Bihn 13 talked about, those waters, that is affecting Walpole 14 Island as their fishing rights. I'm limited to three 15 minutes.

16 JUDGE SPRITZER: No, you're not.

17 MS. COLLINS: But what I want to say, what 18 I want to say is these people are on an island.

19 Should anything happen, go wrong God forbid, at Fermi 20 2, they're doomed. In my mind, this is the same as 21 committing genocide, if you have people that you're 22 polluting their waters. They are in prevailing wind 23 direction. The air is going there.

24 Their fish are being polluted. Fermi 3 25 has a plan to dredge the tributaries where the fish go NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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194 1 up to spawn, which is another issue. But we're here 2 to get a hearing so that we can air all these 3 disputes.

4 JUDGE SPRITZER: If we had such a hearing, 5 what precise arguments would you present on behalf of 6 your members who are also members of the Walpole 7 Nation?

8 MS. COLLINS: That their lives and 9 livelihood are endangered, would be further 10 endangered. That this is a violation of international 11 law and international treaty rights. And that they 12 need to be a full partner in the hearings, not just 13 us, not just CRAFT representing a few of their 14 members.

15 JUDGE SPRITZER: Well, we can't, we can't 16 make somebody a member. Normally what happens, 17 whether it's an Indian tribe, a state part of the 18 organization such as CRAFT, whatever, we don't make 19 them parties. They apply to be parties, as you have 20 done. I'm not, I'm trying to understand the 21 contention. I mean, if they want to apply to be 22 parties, the tribe wants to apply to be a party to 23 this proceeding, it can do that. But at least as I've 24 seen so far, they haven't. Do you have any reason to 25 think they are inclined to do that in the near future?

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195 1

2 MS. COLLINS: Since their past application 3 was not respected, they did not apply. They have a 4 representative here today that's observing this 5 hearing, a tribal representative.

6 JUDGE SPRITZER: I mean, they would have 7 to meet, if they want to file contentions, they would 8 have to meet all the requirements that your 9 organization has to meet, and the joint Petitioners 10 have to meet. But there's no impediment that I know 11 of that would prohibit them from filing a petition and 12 having a board, this Board presumably, review their 13 contentions and decide if they're admissible or not.

14 But until they actually come forward with 15 some contentions, I'm not sure if there's anything we 16 could do without their taking that initiative. All 17 right, continue. I don't mean to cut you off. Was 18 there anything more you wanted to tell us about this 19 contention?

20 MS. COLLINS: Well, just in our, the 21 Motion to Strike, the NRC staff said that we were 22 bringing up new information. We did not bring in any 23 new information. We just clarified things and alluded 24 to the Boundary Treaty, and other treaties, but I 25 didn't say exactly what. And so, I want to ask the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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196 1 Court that the Motion to Strike be eliminated because 2 our arguments need to, are viable, and they need to 3 stand, and we need a hearing.

4 JUDGE SPRITZER: Well, you said that there 5 were some members of the Walpole Nation that are 6 members of your organization. Now, are there specific 7 deficiencies that you've identified in Contention 2, 8 either the original contention or in your reply, 9 specific deficiencies in the environmental report 10 related to the Walpole Nation, other than this failure 11 to provide notice issue. Things that you content 12 should have been included, should have been discussed 13 in the environmental report concerning the Walpole 14 Nation that weren't covered?

15 MS. COLLINS: I'm not sure of your 16 question.

17 JUDGE SPRITZER: Okay. Are you familiar 18 with the environmental report that was prepared?

19 MS. COLLINS: Yes.

20 JUDGE SPRITZER: Did you look through that 21 to see if there was any discussion of the Walpole 22 Nation concerns?

23 MS. COLLINS: No, there was not. They, 24 the environmental report talked about the black areas 25 and there was no problem and things. But they did not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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197 1 talk about Walpole Island as under environmental 2 justice. And they said, in the Motion to Strike, that 3 I hadn't even brought in in the petition, in the 4 original petition environmental justice issues.

5 I had a whole contention on Walpole Island 6 being excluded. And I'm not a lawyer, you know. But 7 you would think, with the whole contention being about 8 them being excluded, what else could that be besides 9 environmental justice? But obviously, common sense is 10 not part the items.

11 JUDGE SPRITZER: Did you look in, all 12 right.

13 JUDGE ARNOLD: My understanding is that 14 the notice of opportunity for a hearing actually 15 doesn't go out to any individuals or groups or tribes 16 or governments. It's just published in the Federal 17 Register. So, and it's not until after that that the 18 Commission starts the review of the environmental 19 report. And it's in, yes, 10 CFR 51, the NEPA part, 20 that tribes have to be notified.

21 But it just seems that, from the steps, 22 you know, applications submitted, application accepted 23 and the notification going into the Federal Register, 24 and then the start of the NEPA review, that you 25 wouldn't expect the tribes to be notified at the stage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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198 1 of the notice of the opportunity to intervene. So can 2 you tell me, did any group get a notice?

3 MS. COLLINS: Yes. Eighteen, they 4 notified 18 federally recognized by the United States 5 Government tribes, including tribes that, three tribes 6 in Oklahoma, two in Wisconsin, several around the 7 State of Michigan.

8 JUDGE ARNOLD: Were they notified of the 9 opportunity to intervene, specifically?

10 MS. COLLINS: Yes.

11 JUDGE ARNOLD: Thank you.

12 JUDGE SPRITZER: But the Walpole was not 13 one of those 18. Is that correct?

14 MS. COLLINS: I beg your pardon.

15 JUDGE SPRITZER: The Walpole were not one 16 of those 18?

17 MS. COLLINS: Right. And Walpole Island, 18 being within the 50 mile radius, was not notified.

19 And then the staff, who was so cavalier as to write in 20 their reply to strike that well, it was published in 21 the Federal Register, therefore they should have 22 known. Like the world reads the Federal Register to 23 find out what's going on, or what's planned to go on.

24 Pretty cavalier, I thought.

25 JUDGE SPRITZER: Well, that is the law, to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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199 1 some extent. It may seem a bit harsh and unfair, but 2 generally notice in the Federal Register is considered 3 notice to the world, whether the world reads the 4 Federal Register or not. Let's move on and hear from, 5 all right, let's hear from the Applicant on this 6 contention.

7 MS. REDDICK: Thank you, Derani Reddick 8 for the Applicant. CRAFT Contention 2 is 9 inadmissible. It, essentially, alleges a deficiency 10 that's focused on the NRC staff actions; nothing that 11 is specific to the environmental report, or the 12 obligations of DTE. There are two flaws with this 13 argument.

14 First is that the challenge is premature, 15 as you're asking Your Honor, regarding the timing of 16 when this notice should happen. The staff's 17 environmental process is still ongoing. It is not yet 18 complete. The Commission has ruled, in a similar 19 proceeding in Crow Butte, that a similar challenge or 20 a contention that was challenging the staff's NEPA 21 process was not right because the staff had not 22 completed its process.

23 Second, even if that claim were right, the 24 obligation to notify does not extend to any tribe, 25 other than a U.S. federally recognized tribe, which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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200 1 the Walpole Island First Nation is not. So, 2 ultimately, this claim is really based on what the 3 staff is obligated to do, which is still an ongoing 4 process. There is no deficiency in the ER. The 5 Petitioners do not allege any deficiency in the ER.

6 In fact, the ER very specifically states 7 that the Applicant, DTE, did notify several tribes.

8 They sent letters to several tribes notifying them of 9 the environmental process for the Fermi 2 license 10 renewal application. And notifying them of the 11 opportunity to participate in that environmental 12 process. This is described Table 9.1-2. It's also 13 described in pages C-15 to C-34 of the environmental 14 report.

15 JUDGE SPRITZER: So was the Walpole one of 16 those tribes?

17 MS. REDDICK: Yes they were.

18 JUDGE SPRITZER: They were. Okay.

19 MS. REDDICK: Yes.

20 JUDGE SPRITZER: And response, if any, did 21 you get from them?

22 MS. REDDICK: None.

23 JUDGE SPRITZER: Let me ask this on 24 Contention 2. Is there any mention in the 25 environmental report of Native Americans hunting or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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201 1 fishing near the site, the Fermi 2 site?

2 MS. REDDICK: I believe the environmental 3 report discusses, in the environmental justice section 4 that there are no subsistence fishing or farming that 5 goes on within the vicinity of the site.

6 JUDGE SPRITZER: How did they arrive at 7 that determination?

8 MS. REDDICK: I can't say offhand, Your 9 Honor. With respect to the issue, though 10 specifically, as you asked, the environmental justice 11 discussion of the ER was not something that was cited 12 in the Petitioners' original petition. This was only 13 something they raised in the reply which is why the 14 Applicant supported the staff's Motion to Strike on 15 this point.

16 JUDGE SPRITZER: Right. I understand your 17 position on that. Let me ask a related question.

18 Sorry, Mr. Smith can maybe point us to the, okay, you 19 don't have anything else to add to my earlier 20 questions at this point?

21 MS. REDDICK: With respect to your earlier 22 question, the ER does state that there are no Indian 23 reservations or Native American controlled areas 24 within the U.S. portion of the 50-mile radius of the 25 site. And that is page 3-5. And the Walpole Island, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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202 1 it does talk about the Walpole Reserve being a parcel 2 of land that extends beyond, beyond that region.

3 JUDGE SPRITZER: Okay, on environmental 4 justice, I seem to remember there was an issue at one 5 point; maybe it's been resolved, whether the ER had to 6 discuss environmental justice at all. But I take it 7 your ER did, so I guess that's really not an issue 8 here. Unless you have anything further, let's move 9 over to the staff. This is really, as you said, more 10 their issue, perhaps, than yours. Why don't we hear 11 from the staff on Contention 2.

12 MR. LINDELL: Your Honor, Joseph Lindell 13 representing the NRC staff. First I'd like to just 14 say that, as the Applicant stated, the contention 15 needs to challenge something in the application, 16 whether safety related or environmental. And here, 17 it's hard to see the challenge to the application.

18 Let me then, try then to explain a little 19 bit about the process here so, you know, after the 20 application is, you know, an accepted document, there 21 is a notice published in the Federal Register of the 22 opportunity to intervene. There's, now, I don't 23 believe that, you know, that notice is anything but a 24 Federal Register notice. We don't send out, you know, 25 specific notices of that opportunity to particular NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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203 1 tribes or other individuals.

2 Now, what we do do is for the 3 environmental scoping process, we do send out a notice 4 providing them the opportunity to participate, to 5 federally recognized tribes, though you know, the 6 Walpole Island First Nation is not listed in the list 7 of federally recognized tribes. We also contact 8 individual tribes per the National Historic 9 Preservation Act. And that's another process that --

10 JUDGE SPRITZER: When does that occur?

11 MR. LINDELL: I'm not positive of the 12 exact thing. Someone, hopefully, will correct me if 13 I'm wrong. I believe that that, that we did already 14 send out the notices for the both the National 15 Historic Preservation Act and for the, and we did also 16 did the scoping process.

17 JUDGE SPRITZER: Now, is that something 18 the staff does because it's required to, or simply as 19 a matter of courtesy, giving the tribes an extra bit 20 of notice that maybe isn't required by law?

21 MR. LINDELL: In our regulations, we are 22 required to send out a notice to Indian tribes for the 23 environmental scoping process.

24 JUDGE SPRITZER: All right. I take it 25 it's your position that you weren't required to do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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204 1 that with respect to the Walpole?

2 MR. LINDELL: We were not required to do 3 that with respect to the Walpole.

4 JUDGE SPRITZER: Because?

5 MR. LINDELL: Number one, they're not a 6 federally recognized tribe. And number two, as 7 actually the Fermi 3 Board recognized in a prior 8 proceeding, that our NEPA process, according to our 9 Regulations 51.1 and 51.10, it doesn't look at 10 environmental affects on foreign nations. And, you 11 know, Walpole Island being in Canada, would not, 12 indeed, be included.

13 However I want to stress that, you know, 14 the Walpole Island First Nation had, indeed, not been 15 excluded, you know, from the EIS preparation process.

16 Because, actually toward the end of September, the 17 chief of the Walpole Island First Nation sent the NRC 18 a letter, asking to review the license renewal process 19 to ensure that its rights to hunt and fish were, 20 indeed, protected.

21 And the NRC responded to this letter and 22 the response, essentially, raised three things.

23 First, they provided general information about how the 24 license renewal process works. And invited, most 25 importantly, invited Walpole Island to comment on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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205 1 draft supplemental environmental impact statement when 2 that is issued in mid-2015. And also pointed, just 3 pointed out that DTE stated that it has no plans to 4 alter Fermi 2's current operations during the license 5 renewal period.

6 So we would say that, you know, although 7 we were not required and did not contact the Walpole 8 Island initially, we have, you know, responded to 9 their request to be included, and we welcome, you 10 know, their comments on this process.

11 JUDGE SPRITZER: Let me just ask this.

12 Suppose they had filed a Motion to Intervene in this 13 proceeding, is there anything that would exclude them?

14 Would the fact that they're not an American listed 15 tribe make a difference?

16 MR. LINDELL: No, no. They would not be 17 excluded from the process, from the proceeding. I 18 mean, they would have to, you know, they would have to 19 show standing as, you know, any other group. But, you 20 know, they would not certainly be automatically 21 excluded. I'd like to also point out, though, that 22 they don't have automatic standing.

23 You know, our regulations do provide for 24 that in very specific instances. That, number one, 25 they have to be a federally recognized tribe, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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206 1 number, the action, the federal action has to be 2 taking place on the tribe's land, which is not the 3 case here. But they certainly, you know, could have 4 filed a Petition to Intervene, and you know, and that 5 would be looked at as any other Petition to Intervene.

6 JUDGE SPRITZER: With respect to the 7 environmental justice issue, I understand your 8 position in the Motion to Strike. But that's not 9 properly before us. But leaving that aside for the 10 moment, how does environmental justice work in the 11 context of a non, a tribe whose members may use land 12 or water, whatever, in the vicinity of a nuclear 13 facility, but the tribe itself is not an American 14 federally listed Indian tribe?

15 MR. LINDELL: Your Honor, I don't know the 16 answer to that specific question. What I can say is 17 that CRAFT would have to, you know, demonstrate that 18 the Walpole Island is, indeed, such a minority 19 population that would be disproportionately impacted.

20 And it's worth noting, at least, that what the ER 21 concluded with regard to environmental justice is that 22 there will be no significant offsite impacts created 23 by the license renewal of Fermi 2.

24 And they base this conclusion on the 25 analysis of all of the various other Category 2 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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207 1 issues, which are looked at in the ER. And they talk, 2 also, about previous radiological environmental 3 sampling. So I would say that, you know, aside from 4 the fact that CRAFT has not really made, you know, 5 provided facts to support, you know, the tribe's 6 status as, you know, sort of a low-income population 7 group that has to be examined, nonetheless, I think 8 that, you know, the ER's conclusions would extend them 9 to, as well.

10 JUDGE SPRITZER: Let me ask this. Does 11 the staff, as I said earlier, I seem to remember some 12 debate some time ago as to whether an ER was required 13 to address environmental justice. Has that now been 14 resolved? Is it clear that the ER should consider 15 environmental justice issues?

16 MR. LINDELL: Yeah, so if you look at 17 Table B(1), which talks about the Category 1, Category 18 2 issues.

19 JUDGE SPRITZER: Sure.

20 MR. LINDELL: So it does list 21 environmental justice as a Category 2 issue such that, 22 you know, the ER then would look at that. And then 23 the staff, as well you know, in the environmental 24 impact statement it prepares.

25 JUDGE SPRITZER: Okay.

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208 1 MR. LINDELL: I think --

2 JUDGE ARNOLD: I'm not sure that's 3 correct. I know the ER is required to provide 4 demographic input to the environmental justice report, 5 but I believe somewhere in 10 CFR, in the Federal 6 Register the policy on environmental justice, it 7 outlines what the requirements are.

8 MS. COLLINS: I have it here. Executive 9 Order 12898, published in the Federal Register, Volume 10 59, No. 32, which I'm sure you've all read, states 11 that each Federal agency shall conduct its programs, 12 policies and activities in the manner that ensures 13 such programs do not have the effect of excluding 14 persons from participation because of their race, 15 color or national origin. That's Section 2.2.

16 Section 5.5(b) says Federal agencies must 17 provide translations of their documents for limited 18 English speaking populations. I just thought I would 19 throw that in because most people, a lot of people do 20 not speak English on Walpole Island.

21 JUDGE SPRITZER: Okay, thank you. Does 22 the staff have anything else to add on this 23 contention?

24 MR. LINDELL: Your Honor, I would say just 25 that, you know, in its reply, also, CRAFT raised NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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209 1 violations of the Executive Order that Ms. Collins 2 just read from. As far as we're concerned, we haven't 3 seen any factual support for any violation, you know, 4 of that Executive Order or the Michigan Executive 5 Directive, which they also raised, which places 6 requirements on the state Department of Environmental 7 Quality, the Michigan state department. But it 8 doesn't place any obligations on anyone else, as far 9 as I can tell.

10 And, other than that, and also, I did look 11 the treaties that are mentioned in the petition and 12 the reply, and I didn't see any particular, you know, 13 obligations in those treaties that the, that the staff 14 was, you know, not in compliance with relative to this 15 license renewal proceeding.

16 JUDGE SPRITZER: Let me ask this. Does 17 the staff have a position on the SAMA analysis insofar 18 as whether the SAMA analysis is required to consider 19 environmental and public health impacts beyond the 20 border of the United States?

21 MR. HARRIS: Your Honor, may I answer 22 that. The SAMA analysis models the 50-mile radius 23 around the plant. It doesn't account for borders. So 24 it would be looking at populations outside 50 miles, 25 the clean ups of contamination, using U.S.

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210 1 requirements. So it is modeling the consequences of 2 an accident anywhere within that 50-mile radius around 3 the plant.

4 But you know, in terms of I think this 5 particular issue, for purposes of the SAMA in terms of 6 your dose, it doesn't, you status doesn't matter in 7 terms of what the dose cost conversion is of persons 8 or the person for purposes of the SAMA.

9 JUDGE SPRITZER: So if a 50-mile radius 10 extends into Canada, it doesn't change how you do the 11 analysis?

12 MR. HARRIS: It does not change how you do 13 the analysis. You model the same 50-mile radius.

14 MR. SMITH: And I can just confirm that 15 that's what the Fermi 2 SAMA analysis did. It modeled 16 the population within 50 miles irrespective of the, 17 whether that location was within the United States or 18 Canada or the Walpole Island.

19 JUDGE SPRITZER: Okay. So DTE did include 20 Canadians within 50 miles in its estimated cost of a 21 severe accident?

22 MR. SMITH: Absolutely.

23 JUDGE SPRITZER: All right. Now someone 24 just pointed out to me that the ER, at page D-96, 25 lists only 560 people northeast of the site?

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211 1 MR. SMITH: That's in the particular 2 quadrant, yes. And that's in the --

3 JUDGE SPRITZER: Which page are you on?

4 MR. SMITH: D-96.

5 JUDGE TRIKOUROS: Ms. Collins, while 6 they're looking at that, the United States does 7 recognize the Walpole Nation, you said --

8 MS. COLLINS: As a United States federally 9 recognized tribe.

10 JUDGE TRIKOUROS: What about Canada? Do 11 they recognize the Walpole Nation as a recognized 12 tribe? Do they have such a list there?

13 MS. COLLINS: They're on the imaginary 14 line that says they're in Canada. But --

15 JUDGE TRIKOUROS: So the Canadian would 16 have them on their --

17 MS. COLLINS: No, they were, well they're 18 not Canadians. They're unseated land. They ran for 19 safety when troops were, you know, gathering up, well, 20 it's unseated land.

21 JUDGE TRIKOUROS: So they're listed status 22 is the same with Canada as it is with the United 23 States, basically. Is that what you're saying? Sort 24 of unlisted in either country.

25 MS. COLLINS: Recognized by Canada, yes.

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212 1 JUDGE TRIKOUROS: I'm sorry.

2 MR. SHERMAN: They are recognized by 3 Canada.

4 MS. COLLINS: And they --

5 JUDGE TRIKOUROS: They are recognized by 6 Canada.

7 MS. COLLINS: They wrote, I have a copy of 8 a letter that they wrote to the Canadian government 9 objecting that, because they weren't in, allowed in 10 the Fermi 3 proceedings. But the Canadian wrote back 11 and said oh well, that's the United States business, 12 and we're not getting into it.

13 They asked them to intervene on their 14 behalf. But that, but I guess everybody's bringing up 15 Fermi 3 here, so I can bring it up, too. Maybe I 16 don't have that with me. But I found the list of all 17 the ones they did contact. I guess I don't, sorry.

18 I don't, but they, at one time they asked the Canadian 19 government, complained to them and asked them to 20 intercede on their behalf, because the NRC would not 21 let them be a part of the Fermi 3.

22 And the, I have a copy of the letter that 23 the Canadian government sent back and said it's the 24 United States business. We're not in it. So no one, 25 they did not help them on that. And so, I'm thinking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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213 1 maybe the international joint commission may, I don't 2 know. We'll see.

3 JUDGE TRIKOUROS: Okay, thank you.

4 JUDGE SPRITZER: Mr. Smith, I'm just 5 trying to figure out what this, I'm looking at Table 6 D.1-22 of the Applicant's environmental report. This 7 is Appendix D, and the line that says with direction 8 northeast has 547 people within zero to 10 miles, and 9 then another 13 at 41 to 50 miles, for a total of 560.

10 Is that the direction, or radius I guess you would 11 call it that would include the, what is it called 12 Walpole Island?

13 MR. SMITH: I don't know that, I don't 14 know that it is. It doesn't appear to be.

15 JUDGE SPRITZER: Okay. Where is Walpole 16 in relation?

17 MR. SMITH: Well sir, if you look on page 18 3-19 or 3-20.

19 JUDGE SPRITZER: Okay.

20 MR. SMITH: It's just, it's a figure in 21 the map, in the ER that shows the 50-mile radius. The 22 Walpole Island is on the, sort of the northeast, 23 north, northeast piece of Lake St. Clair.

24 JUDGE SPRITZER: Okay. This is page 3-19 25 or --

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214 1 MR. SMITH: Page 3-19 of the ER.

2 JUDGE SPRITZER: So they might be beyond 3 the 50-mile --

4 MR. SMITH: No. I mean, the ER on page 5 3.3-5 says that, as illustrated in Figure 3.0-6, which 6 is on page 3-20, a small portion of Walpole First 7 Nation reserve northeast of the Fermi site in Ontario 8 Canada lies just inside the 50-mile radius.

9 JUDGE SPRITZER: Okay. All right, thank 10 you. All right, I think we're finished with this 11 contention. Let's move on to the final group of 12 contentions which are Contentions 7, 8, 9, 10 and 11.

13 Mr. Schonberger.

14 MR. SCHONBERGER: Thank you, Chairman.

15 David Schonberger, for the record, designated 16 representative for CRAFT for Contention 7, 8, 9, 10 17 and 11. So, reserving my rebuttal time, let me first 18 take your questions.

19 JUDGE TRIKOUROS: All right. NUREG, well, 20 the license renewal application aging management 21 program for this subject of, the subject of inspecting 22 and monitoring for leaks, which is your Contention 7.

23 The aging management, the license renewal application 24 indicates that it implements NUREG 1801 without 25 exceptions. Yet you didn't, specifically, go in in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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215 1 your contention and say this is what's wrong with 2 that.

3 So we're kind of in a situation where we 4 have your statement and your basis that says they 5 don't adequately do this job. We don't really, 6 specifically, know why you have that language in 7 there.

8 MR. SCHONBERGER: So let me clarify for 9 the panel where we're coming from. We allege that, 10 that because both, because full cathodic protection 11 coverage has not been implemented at Unit 2, by the 12 Applicant's own admission, and that the Applicant 13 admits that it could do better, and more improvements 14 are planned to increase system coverage.

15 So these are explicit notions in the LRA, 16 and the Applicant, therefore, acknowledges two 17 important facts which support our contention. First, 18 that the Applicant acknowledges that it has failed to 19 fully install the best available system to a degree 20 that CRAFT Alleges would qualify as in compliance with 21 as low as reasonably achievable standards, LRS 22 standards for buried and underground piping leakages 23 and dose exposure to the public.

24 Because, by definition, as low as 25 reasonably achievable has not been implemented. It is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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216 1 reasonably achievable and planned by the Applicant to 2 do better and to do more. And secondly, the Applicant 3 acknowledges, by omission in its answer to our 4 petition, that it is unable to prove an undefined 5 reasonable assurance standard by a clear preponderance 6 of evidence as required by Part 54 pertaining to the 7 buried and underground piping act.

8 Apparently, the Applicant believes that it 9 can take advantage of the regulator's unclear and 10 poorly defined standards for establishing reasonable 11 assurance. And the Applicant appears to believe that 12 the agency will approve whatever the Applicant submits 13 for consideration. And that the agency will dismiss 14 whatever reasonable assurance standards that the 15 Petitioner would allege that might be necessary in 16 order to achieve adequate protection as mandated by 17 the AEA, such as full system coverage, full cathodic 18 protection.

19 JUDGE TRIKOUROS: All right, thank you.

20 JUDGE ARNOLD: Well, in the amps, for 21 instance on page 24 of the petition. Petitioner 22 maintains that neither the amp program for buried 23 pipes and tanks, nor the inspections and tests 24 performed as part of the team maintenance and 25 operation provide reasonable assurance that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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217 1 effects of aging will be managed. Can you be more 2 specific as to what specific aging management program 3 is lacking? Now, either point it out on a table or --

4 MR. SCHONBERGER: Judge Arnold, two 5 answers to that. First, in the same paragraph, we 6 specify that in order to protect public safety the 7 aging management program must be enhanced or 8 supplemented with a more robust inspection system, 9 cathodic protection, and so forth. We are narrowing, 10 narrowing the contention to full cathodic protection.

11 And the specificity requirements that the 12 panel would expect as part of Part 302.309(f)(i)(5) 13 and (f)(I)(6). We claim that our concise statement 14 satisfies the requirements for a pro se Petitioner 15 based on forty years of case law precedent going back 16 to Wolf Creek, 1975, where specificity for pro se 17 Petitioners is not expected to the same degree as it 18 is expected for counseled Petitioners.

19 So our concise statement consistent with 20 Part 2.309(f)(I)(5) should be considered sufficient 21 with regard to that the aging management program must 22 be enhanced or supplemented with. No. 2, cathodic 23 protection, and we allege that full cathodic system 24 coverage would be necessary in order to comply with a 25 reasonable assurance standard.

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218 1 JUDGE ARNOLD: Are you saying that every 2 buried component for which there is an aging 3 management program should include full cathodic 4 protection?

5 MR. SCHONBERGER: Please repeat that.

6 JUDGE ARNOLD: Are you saying that every 7 buried pipe in the system that is required to be 8 covered with an aging management program should, as 9 part of that aging management program, include 10 cathodic protection? Or are you just saying the 11 systems that have it now should be more complete?

12 MR. SCHONBERGER: Our contention alleges 13 that full cathodic protection coverage has not been 14 implemented to the extent that it could be, as the 15 Applicant acknowledges. And that the Applicant 16 acknowledges that it has plans to increase system 17 coverage. And, to the extent that they acknowledge 18 that, we allege that our definition of reasonable 19 assurance would require for adequate protection, that 20 there must be full system coverage to ensure that 21 ALARA standards are met, by definition, as low as 22 reasonably achievable.

23 If the Applicant admits it's reasonably 24 achievable, then it should be implemented as part of 25 the application. And not presumed that the can is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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219 1 kicked down the road.

2 JUDGE ARNOLD: Okay. I understand.

3 JUDGE SPRITZER: Okay, let's move.

4 JUDGE ARNOLD: Question on Contention 8, 5 having to do with SAMA. On page 27, right at the top, 6 you say: The Applicant's cost calculations assume an 7 arbitrary and scientifically inappropriate emergency 8 planning zone probabilistic models for the Fermi site.

9 And, as a result, that a radiological release will 10 affect only a relatively small area.

11 Now, just a few minutes ago, we heard that 12 the SAMA analysis looks at 50 miles around the plant, 13 not just to the emergency planning zone. So could you 14 be more specific as to how a large EPZ would change 15 the outcome of the SAMA analysis?

16 MR. SCHONBERGER: Yes, Judge Arnold. It 17 pertains to the evacuation time estimate calculations.

18 There's a sequential logic going on here in our 19 contention, which starts with that the Applicant's 20 meteorological model is bogus and knowingly 21 unreasonable, knowingly inaccurate.

22 And fundamentally, you can see for 23 yourself that this is not the state of Hawaii. It's 24 not the state of Florida. It's clearly a location in 25 this country where we get severe winter snow NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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220 1 conditions. This is November. Wait until January.

2 So, In January --

3 JUDGE SPRITZER: We're not coming back in 4 January.

5 MR. SCHONBERGER: Fair enough. But 6 Chairman, we have to live here. And we all live here 7 through the winter. And we allege that the 8 Applicant's SAMA analysis is deficient, based on a 9 sequential logic that goes all the way back to an 10 unrealistic meteorological assumption that, as we 11 state explicitly, that the presumption is that there 12 will, for evacuation time estimate determination, that 13 there would be no more than a 20 percent impairment of 14 evacuation time.

15 In fact, the Applicant has reduced that 16 maximum impact of snow conditions. In the updated 17 modeling, they've actually reduced it to 20 percent.

18 And we allege that there's no rational basis for 19 alleging only a 20 percent maximum impairment due to 20 severe snow conditions in a Michigan winter situation.

21 So if you start with that, it provides the basis for 22 an inaccurate and unreasonable evacuation time 23 estimate and emergency plan.

24 Which we acknowledge, we acknowledge that 25 the emergency plan is outside the scope of the, this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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221 1 license renewal proceeding. So our contention, to 2 clarify for the board, our contention is not to allege 3 deficiency of the emergency plan or the evacuation 4 time estimate as it pertains to the emergency plan.

5 Our contention is based on an allegation of an 6 inaccurate, unreasonable SAMA analysis. That through 7 sequential logic, to continue an inaccurate evacuation 8 time estimate creates an inaccurate projected offsite 9 dose exposure within the 50-mile radius.

10 Within the 50-mile radius, the evacuation 11 time estimate is fundamental to determining dose 12 exposure to the public. So it is not sufficient to 13 claim the 50-mile radius of consideration is all that 14 is necessary to have that point covered. The 15 evacuation time estimate is fundamental to the outcome 16 of dose exposure to the public within the 50-mile 17 radius.

18 Different evacuation time estimate models 19 would result in different dose exposure estimates.

20 And different dose exposure estimates would yield 21 different projected cost impacts.

22 JUDGE TRIKOUROS: Now, you're talking 23 about dose estimates in the 10-mile EPZ, correct?

24 You're saying the 10-mile EPZ is not being evacuated, 25 is being evacuated too quickly than would occur in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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222 1 reality and, therefore, there would be more people in 2 the 10-mile EPZ getting a larger dose than the SAMA 3 analysis assumes. Is that, basically, what you're 4 saying?

5 MR. SCHONBERGER: I would say that, that 6 an accurate evacuation time estimate of whatever 7 radius we're talking about is fundamental to 8 determination of the projected probability weighted 9 economic costs and consequences for a severe accident.

10 JUDGE TRIKOUROS: As a corollary to that, 11 you also seem to be saying in this pleading the 12 evacuation zone should be not 10 miles, but 50 miles.

13 Is that correct? It seems to be what you're saying.

14 MR. SCHONBERGER: Indeed. We do, we do 15 allege, we do allege an out-of-scope argument to 16 support as background the in-scope argument.

17 JUDGE TRIKOUROS: Okay.

18 JUDGE ARNOLD: Can I make a quick question 19 to Applicant? I just want to ask in your SAMA 20 analysis, your evacuation times, do you provide 21 justification of why you use specific times and 22 specific decrement for winter weather?

23 MR. SMITH: Yes. The evacuation time 24 estimate for Fermi 2 was updated in 2012. The mean 25 speed was 12.8 meters per second. That's what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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223 1 evacuation estimated. For the SAMA analysis, we 2 conservatively looked, lowered that to 10 meters per 3 second as the average evacuation time. And then, as 4 a sensitivity case, we looked at either a 15 meter per 5 second or a 5 meter per second evacuation time, and 6 found that it doesn't have significant effect on the 7 results.

8 JUDGE ARNOLD: Okay. Have you looked at 9 how they came up with their evacuation time? And if 10 so, do you have any specific, you know, statements of 11 what they did wrong? Or are you just saying it just 12 can't be done that quickly?

13 MR. SCHONBERGER: Judge Arnold, I, the 14 answer to that question goes back to the allegation, 15 sequentially, that a 20 percent maximum impairment of 16 evacuation time estimates in a severe, due to a severe 17 winter condition, that that is unsupportable and 18 unreasonable, and contaminates, sequentially, all 19 further probability weighted consequence 20 determinations in the application.

21 JUDGE ARNOLD: I think I understand.

22 Nick?

23 JUDGE TRIKOUROS: Yes, you're also 24 questioning the method of analysis, correct? The rad 25 dose program?

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224 1 MR. SCHONBERGER: Yes, Judge Trikouras, we 2 used the rad dose software program. We used that as 3 a background to explain, to explain where we're coming 4 from.

5 JUDGE TRIKOUROS: But are you specifically 6 challenging the use of the straight line Gaussian 7 distribution model versus a variable trajectory plume 8 dispersion? Is that, are you challenging that, or are 9 you --

10 MR. SCHONBERGER: No, no, to the contrary.

11 We acknowledge that a variable trajectory plume 12 distribution model is assumed in the rad dose 13 methodology. And our point of raising that issue is 14 to allege that the 10-mile EPZ should be expanded to 15 go hand-in-hand, consistent with a variable trajectory 16 plume distribution model.

17 But we recognize that that portion of the 18 contention is outside the scope of a Part 51 or Part 19 54 license renewal proceeding. That's not, the point, 20 we did not bring that information into the contention 21 in order to dispute that.

22 JUDGE ARNOLD: Okay, Applicant, on this, 23 for the evacuation, the 20 percent impairment factor, 24 was that a maximum factor? You know, that the 25 evacuation's going to take 20 percent longer as the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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225 1 greatest, or is that used more like it's a 2 representative of average over all of winter?

3 MR. SMITH: I'm not that familiar with the 4 specifics of the Fermi 2 evacuation time estimate.

5 But again, what I can say is that for purposes of the 6 SAMA analysis, we took the mean speed from the 7 evacuation time estimate, which was 12.8 meters per 8 second, and we modeled 15, 10 and 5. So we looked at 9 something that is greater than a 50 percent 10 impairment. And we found that that does not have much 11 of an effect on the outcome.

12 In fact, the difference between those 13 evacuation speeds and person-rem per year is the 14 difference between 4.96 and 4.89. So it's a 15 relatively small difference. That's on page D-100 of 16 our SAMA analysis.

17 And we also modeled for, just to finish 18 the assessment of sensitivity that we did in the SAMA 19 analysis, we also looked at different fractions of the 20 population that do evacuate, between 90 and 99.5 21 percent of the population. So we modeled both broad 22 changes in evacuation time, as well as broad changes 23 in the percentage of the population that, in fact, 24 evacuates.

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226 1 if the evacuation time analysis too into account this 2 shadow evacuation that's discussed in the pleading?

3 MR. SMITH: I don't know that the 4 evacuation time estimate did, in particular. But part 5 of the way in which we address that is through the 6 sensitivity analysis in the SAMA. And so we did, as 7 I just mentioned, we varied the fractions of the 8 population that is assumed to evacuate.

9 JUDGE TRIKOUROS: You didn't look at zero 10 evacuation, did you?

11 MR. SMITH: We did, not for the purposes 12 of the SAMA, no.

13 JUDGE SPRITZER: Okay, does the Applicant 14 anything else to add on this group of contentions?

15 MR. SMITH: I'm sorry, certainly. I think 16 we've discussed the SAMA portion of the contention in 17 detail. The one thing that I would add is that the 18 Fermi 2 SAMA analysis does use the MAX code, which 19 imbedded in that is a Gaussian straight-line air 20 dispersion model. So I just wanted to clarify that, 21 in case there was any question on the Board's part.

22 I think the one part we haven't discussed 23 is going back to the aging management plan for buried 24 piping and tanks. And, you know, I first want to note 25 that this contention, I'm sorry, our program was based NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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227 1 on industry guidance on the NRC's generic aging 2 lessons learned report. And the inspections 3 corrective actions and assessments that we have 4 performed and would perform are addressed in the aging 5 management plan.

6 And we also, specifically, incorporate 7 Fermi's unique operating experience as it relates to 8 buried piping integrity at the Fermi site. And there 9 was also some discussion about the cathodic 10 protection. And as we do note in the aging management 11 plan, that we have plans to expand that program.

12 And just for purposes of factual 13 information, we currently have on the order of 78 14 percent coverage of piping. By 2015, that coverage 15 will be up to 93 percent of piping will be covered by 16 cathodic protection. And remaining percentage is in 17 piping that's anticipated to be replaced before long.

18 And so that will, at that point, have effectively 100 19 coverage of buried piping at the Fermi site.

20 So to the extent there's anything in that 21 piece of the contention, I think that explains it.

22 That's not something that's going to be an issue once 23 we get to the license renewal term, which of course is 24 the focus of our aging management plan. It doesn't, 25 it's not required to be implemented until we get to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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228 1 the license renewal period.

2 I think the rest of that has been, 3 primarily, addressed in our briefings. I don't think 4 I need to expand in great detail. Only to note that 5 a number of their specific concerns related to buried 6 tanks, the site doesn't have any buried tanks in this 7 system. Other concerns of theirs with respect to what 8 programs are covered, what buried tank programs are 9 covered, those are covered by other amps.

10 So they haven't demonstrated that there's 11 any system that is not covered by the program, or any 12 way in which the program itself is deficient. Thank 13 you very much.

14 JUDGE SPRITZER: The NRC staff, do you 15 have anything to add on these contentions?

16 MS. KANATAS: Good afternoon, Your Honors, 17 this is Cathy Kanatas for the staff. I don't have 18 much to add, Your Honors, but I would just like to 19 reiterate that, in terms of Contention 7, DTE's 20 application provides for the buried and underground 21 piping amp. And it provides for maintaining the 22 intended functions of the structure's systems and 23 components that are within the scope of license 24 renewal.

25 And, as we've heard multiple times, it is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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229 1 consistent with GALL Rev. 2. And the Commission has 2 specified in Seabrook, CLI 12-5, that if an amp is 3 consistent with GALL, it is assumed to be adequate.

4 CRAFT wants more, including full cathodic protection, 5 but it does not indicate why more is needed or 6 required. Therefore, it does not raise an adequately 7 supported or genuine dispute with the application.

8 In terms of the other claims raised 9 related to ALARA and leaking, as well as reasonable 10 assurance claims, the Commission has rejected similar 11 claims in Pilgrim, CLI 10-14, 71 NRC 449. Those raise 12 currently operating issues that are outside the scope 13 of this proceeding. In terms of the SAMA, I think 14 we've covered that quite thoroughly today.

15 But again, as I think the Commission has 16 repeatedly stated, it's not enough to point to the 17 SAMA and claim that another model should be used or 18 another input. You have to do more. And here, CRAFT 19 has not done that. As they recognize the claims about 20 emergency planning and EPZ are outside the scope of 21 this license renewal proceeding.

22 And to the extent that they claim that 23 SAMA's meteorology is bogus or unreasonable. There's 24 just no basis. They cite only to a Dr. Eagan's 25 declaration in a different license renewal proceeding, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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230 1 and don't tie anything in that declaration to anything 2 in the DTE SAMA analysis.

3 Likewise, for the economic consequences.

4 They cite to Mr. Channon's declaration in the Pilgrim 5 license renewal proceeding for the proposition that 6 MAX and MAX 2 are not valid, where they provide no 7 support for that claim; no tie to anything in the 8 declaration from Mr. Channon to DTE's SAMA. Nor do 9 they explain why the CRAC-II from the Sandia report 10 cited in their petition is more appropriate or 11 reasonable. Mr. Harris covered some of the 12 conservatisms in the CRAC-II earlier today, so I won't 13 repeat that. That's it. Thank you.

14 JUDGE SPRITZER: Very well. All right, 15 we'll give Petitioners just an additional three 16 minutes for rebuttal. But let's keep it to three 17 minutes, because we do need to get out of here.

18 MR. SCHONBERGER: So, as you just heard, 19 as the Board panel just heard, the staff's position is 20 indistinguishable from the Applicant's. We believe 21 that the, a public hearing is necessary in order to 22 provide an alternative perspective that we believe 23 we've satisfied the requirements for today in order to 24 represent the public interest which we attempt to do 25 in a pro se fashion.

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231 1 With indistinguishable argument proffered 2 by the staff relative to the Applicant, somebody needs 3 to represent the public interest, and we attempted to 4 do that.

5 JUDGE SPRITZER: All right, very well. I 6 think we understand your position on that, and this 7 group of contentions. Unless my colleagues have 8 anything further, I think we're ready to conclude.

9 The building will be locked at 5:00, it our 10 understanding. So if you go out, don't plan on coming 11 back in after 5:00. But I assume everybody will be 12 gone by then.

13 Thank you for your participation today.

14 It's been very educational for us and, hopefully, some 15 value to you all, as well. And we will try and get a 16 ruling out as soon as we can. Our official deadline 17 is 45 days. Though, the fact that we have the holiday 18 season upcoming, probably that's not --

19 MR. LODGE: Your Honor, we assume there 20 will be a transcript generated.

21 JUDGE SPRITZER: This gentleman to our 22 left is here to prepare that, and if you want a copy 23 contact him.

24 MR. LODGE: And we'll have the opportunity 25 to make corrections?

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232 1 JUDGE SPRITZER: Well this is for, this is 2 not an evidentiary hearing. If you find anything 3 that's of concern, let us know. But we don't, we're 4 not going to have a formal period for transcript. We 5 don't usually do that with, this isn't legal argument.

6 So, as I said, we'll try and get the 7 ruling out. It's realistic to assume we probably 8 won't meet the 45 days, but by end of January would be 9 realistic. Thank you. Unless there's anything else, 10 anybody have any questions? Yes sir.

11 MR. SHERMAN: Is there any way we can get 12 a copy of the audio? I would love to hear it.

13 JUDGE SPRITZER: There is really no, there 14 really is not, there's a transcript that, as I said, 15 this --

16 MR. SHERMAN: Okay, we didn't record the 17 audio?

18 JUDGE SPRITZER: But I don't know that he 19 records the audio per se. I'm not usually --

20 MR. SHERMAN: That's fine. The transcript 21 will be fine.

22 JUDGE ARNOLD: Well, if you wait until he 23 gets off the earphones, and ask him, he might be able 24 to provide you with it.

25 MR. SHERMAN: Thank you.

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233 1 JUDGE SPRITZER: I know he prepares a 2 transcript. Beyond that, you'll have to check with 3 him.

4 MR. SHERMAN: Very good.

5 JUDGE SPRITZER: Thank you. We're 6 adjourned.

7 (Whereupon at 4:41 p.m. the afternoon 8 session meeting was concluded.)

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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