ML14321A146

Transcript of First Energy Nuclear Operating Company, Davis Bess, Unit 1, November 12, 2014, Pages 713-932

ML14321A146
Person / Time
Site:	Davis Besse
Issue date:	11/12/2014
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-1200, RAS 26925
Download: ML14321A146 (221)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSIONTitle:First Energy Nuclear Operating Company Davis Besse Nuclear Power Station, Unit 1Docket Number:50-346-LRASLBP Number:11-907-01-LR-BD01 Location:Rockville, Maryland Date:Wednesday, November 12, 2014Work Order No.:NRC-1200Pages 713-932 NEAL R. GROSS AND CO., INC.

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

Washington, D.C. 20005 (202) 234-4433 713 UNITED STATES OF AMERICA 1 U.S. NUCLEAR REGULATORY COMMISSION 2+ + + + +3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4+ + + + +5______________________

6 In the Matter of:  : Docket No.

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

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

11______________________:

12 Wednesday, 13 November 12, 2014 14 Rockville, Maryland 15 16 17 BEFORE: 18 WILLIAM J. FROEHLICH, Chairman 19 NICHOLAS G. TRIKOUROS, Administrative Judge 20 DR. WILLIAM E. KASTENBERG, Administrative 21 Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 714 APPEARANCES:

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

3 BRIAN HARRIS, ESQ.

4 CATHERINE E. KANATAS, ESQ.

5 U.S. Nuclear Regulatory Commission 6 Office of General Counsel 7 Mail Stop: 0-15 D21 8 Washington, D.C. 20555 9 Tel: (301) 415-1392 (Harris) 10 (301) 415-2321 (Kanatas) 11 Email: catherine.kanatas@nrc.gov 12 brian.harris@nrc.gov 13 14 On Behalf of FirstEnergy Nuclear Operating 15 Company: 16 STEPHEN J. BURDICK, ESQ.

17 TIMOTHY P. MATTHEWS, ESQ.

18of: Morgan, Lewis & Bockius, LLP 19 1111 Pennsylvania Avenue, N.W.

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

1 FirstEnergy Service Company 2 76 South Main Street 3 Akron, OH 44308 4 Tel: (330) 384-5037 5 Fax: (330) 384-3875 6 Email: djenkins@firstenergycorp.com 7 8 On Behalf of Don't Waste Michigan

9 MICHAEL KEEGAN 10 Don't Waste Michigan 11 811 Harrison Street 12 Monroe, MI 48161 13 Email: mkeeganj@comcast.net 14 15 On Behalf of Beyond Nuclear:

16 KEVIN KAMPS 17 Beyond Nuclear 18 6930 Carroll Avenue 19 Suite 400 20 Takoma Park, MD 20912 21 Tel: (301) 270-2209 22 Email: kevin@beyondnuclear.org 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 716 On Behalf of Beyond Nuclear, Citizens 1 Environmental Alliance of Southwestern 2 Ontario, Don't Waste Michigan, and the Green 3 Party of Ohio:

4 TERRY LODGE, ESQ.

5 316 N. Michigan Street 6 Suite 520 7 Toledo, OH 43604 8 Tel: (419) 255-7552 9 Email: tjlodge50@yahoo.com 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.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 717 P R O C E E D I N G S 1 9:01 a.m.2JUDGE FROEHLICH: Thank you. Please be 3seated. Okay. Good morning, all. It's November 4 12th, 9:00 a.m., and we're in the Nuclear Regulatory 5 Commission headquarters building in Rockville, 6 Maryland.7 We're on the second floor, ACRS Conference 8Room. ACRS stands for the Advisory Committee on 9 Reactor Safeguards, and we thank the ACRS for allowing 10 us to use their hearing room, while the ASLBP hearing 11 room is under renovation.

12 The docket number for this proceeding is 13 50-346-LR, which is the docket in which FirstEnergy 14 Operating Company has filed to renew its facility 15 operating license for the Davis-Besse Power Station 16 Unit 1, for an additional 20 years from its current 17 expiration date of April 22nd, 2017.

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 718 Proposed Contention 7 is found in 1 Intervenor's Motion for Admission of Contention 7 on 2 worsening shield building cracking and inadequate 3 Aging Management Programs in the shield building 4 monitoring program, which was filed on September 2nd, 5 2014 as supplemented on September 8th, 2014.

6 Intervenors' proposed Contention 7 7 challenges the adequacy of FENOC's shield building 8 monitoring Aging Management Program, as revised by the 9license application amendment 51. That's FENOC's July 10 3rd, 2014 RAI response.

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

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

22 To my left is Judge William Kastenberg.

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

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

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

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

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

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

2 Our court reporter is Daniel Michon.

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

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

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

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

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

24JUDGE FROEHLICH: Thank you, Mr. Lodge.

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

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

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

14JUDGE FROEHLICH: Thank you, Mr. Matthews.

15 And for the staff.

16MR. HARRIS: Good morning, Your Honor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18 JUDGE TRIKOUROS: No.

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

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

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

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

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

11MR. LODGE: Thank you. Members of the 12 Panel and parties and representatives, we are in our 13 37th month since the discovery in October 2011 of 14 laminar cracking problems that were visible during a 15 maintenance outage at the Davis-Besse nuclear power 16 station, and specifically around and near an opening 17 that was blasted through the wall for purposes of 18 replacing a reactor head.

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

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

16 In July of 2014, FirstEnergy's 17 consultants, in the latest in what we call Root Cause 18 3.0, the apparent cause evaluation, full apparent 19 cause evaluation, indicate that there is now 20 microcracking, an additional type of structural 21 failure in addition to laminar or layered cracking, 22 and that there are going to be possibly continuing 23 difficulties.

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

5 The response after the latest revelation 6 of microcracking and essentially a consensus that this 7 is an aging problem of increasing, potentially 8 increasing seriousness, is to -- is for the utility to 9 have promised that it will initiate three additional 10 core bore drillings at sites on the shield building, 11 which it will identify as being close to visible 12 cracking.13 We have roughly calculated that the 14 interior and exterior surface area of the shield 15building is somewhere in the neighborhood of 180 16square feet. The core bores are, pardon me, 280. The 17core borings themselves are a few inches across. They 18 penetrate perhaps a foot or less into the structure.

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

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

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

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

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

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

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

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

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

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

21JUDGE FROEHLICH: Thank you, Mr. Lodge.

22 Mr. Matthews.

23MR. MATTHEWS: Thank you, Judge Froehlich.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15JUDGE FROEHLICH: Thank you, Mr. Matthews.

16 And for the NRC staff.

17 MS. KANATAS: Good morning, Your Honors.

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

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

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

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

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

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

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

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

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

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

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

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

10 These are exactly the types of changes 11 that FENOC did in response to the recent operating 12experience. They increased the core bores from 20 to 13 23, and increased the inspection frequency to annual 14 inspection to manage the cracks, including the 15 cracking propagation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6 Thank you, Your Honors.

7JUDGE FROEHLICH: Thank you, Ms. Kanatas.

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

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

18 MR. BURDICK: Yes, Your Honor.

19 JUDGE FROEHLICH: Also the licensee?

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

2 But we did make the separate argument that 3 they do identify certain topics that are greater than 4 60 days from before they filed their Contention 7, and 5so untimely purely for that reason as well. But they 6were more on the fringes. They weren't their primary 7 arguments.

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

13 MR. BURDICK: That's correct.

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

18MR. LODGE: A new type of cracking, 19microcracking, is finally conceded. Intervenors were 20accused of merely speculating that there were other 21cracks besides laminar. That's been now confirmed by 22 the July 8th, 2014 disclosure made by FENOC to the 23 Board.24 I might point out that among the things 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 749 that we learned at that point in July were that since 1 February of 2012, that FirstEnergy knew that there was 2 a considerable amount of water being identified in the 3 core drillings that they were taking. Then again in 4 2013, there was some note taken of that, but the 5 significance of it was not summarized, brought 6 together into an identifiable explanation of causation 7 until this July 2014 disclosure.

8 So there also was identified in the July 9 2014 disclosure the propagation, the spreading of 10laminar as well as other cracks. FirstEnergy had 11 decided to use electron microscopic analysis and that 12 is how they began to identify the very fine, sometimes 13 invisible to the naked eye, cracking.

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

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

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

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

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

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

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

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

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

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

23 As it's worded, and they reproduce it in 24 their original Contention 7 or the amended Contention 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 752 7, it's focused on the shield building AMP, and they 1 identified some challenges to things like the number 2 of inspections, the scope of the inspection and the 3 frequency of the inspections.

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

15 The shield building has changed a little 16bit over time, but only to enhance it. It has not 17changed. That is still the functioning, is to monitor 18for any changes in the laminar cracking. So that's 19 where there hasn't been a material difference. This 20 is where we point to, in our brief, to the Oyster 21 Creek case in CLI-09-7, where we believe it's a very 22 similar circumstance.

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

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

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

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

16 JUDGE FROEHLICH: Yes.

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

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

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

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

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

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

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

2 So I wanted to explore that a little bit.

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

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

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

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

22 MR. LODGE: Sure.

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

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

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

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

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

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

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

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

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

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

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

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

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

13MR. BURDICK: And Your Honor, just to 14clarify on that as well. When FENOC was performing 15 its cause evaluation other inspections back in the 16 2011-2012 time frame, it did look at the entire shield 17 building, to characterize where the laminar cracking 18was, and it used impulse response technology. I think 19 it took 60,000 plus impulse response readings to cover 20 all the accessible areas of the shield building, to 21 identify where the laminar cracking is.

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

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

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

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

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

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

6JUDGE TRIKOUROS: That was one of three 7 criteria.8MR. MATTHEWS: Yes. But it's the tight 9rebar spacing, not rebar spacing generally. That 10tight rebar spacing has already cracked. It's not 11 subject to recrack.

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

14 So it's at that spacing, right?

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

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

2 MR. BURDICK: I think, you know, just to 3clarify. There is different rebar spacing around the 4 steam line penetrations and along the top 20 feet of 5 the shield building, and if I recall correctly, the 6 rebar spacing is about six inches between the pieces 7 of rebar.8 So the root cause evaluation looked at 9 that, and looking at the blizzard of '78 with the 10 sharp drop in temperature, the penetrating moisture 11 with the wind-driven rain and the stresses caused by 12 that event, were enough to cause the stresses, the 13 smaller allowable stress with a six inch rebar to 14 cause the laminar cracking.

15 It did not cause it as extensively in 16 other areas of the shield building. There is some 17 laminar cracking -- or beyond those areas, there is 18 some laminar cracking in the shoulders on the shield 19 building, which is also due to that design feature 20 with the shoulders that are sticking out from the 21 shield building.

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

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

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

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

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

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

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

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

7MR. BURDICK: My understanding, there's 8moisture in the concrete. I believe it's certainly a 9 higher amount of moisture towards the exterior of the 10shield building. But we believe it is migrating 11 through the building or dissipating through the shield 12 building.13JUDGE TRIKOUROS: Okay. So the mechanism 14 by which the root cause reports, or at least one of 15 them said it would dissipate, is -- they refer to 16absorption and dispersement mechanisms. Could you 17perhaps -- they never explained that. So you have any 18 explanation for that?

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

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

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

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

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

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

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

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

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

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

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

1 MR. BURDICK: That's correct.

2JUDGE TRIKOUROS: Okay. One other point.

3 In terms of freezing, I mean this is concrete. It's 4 a thermal insulator effectively. The inside surface 5of this thing is seeing probably something like 6reactor building temperatures, I would assume. You 7 know, my memory of PWRs I worked with, it's maybe 120-8 130 degrees in that reactor building, which would get 9 right through that containment and into that annular 10 region.11 I would imagine the annular region is well 12over 100 degrees normally. So some big fraction of 13that shield building is fairly warm. But it wouldn't 14propagate all the way through where you have a cold 15outside. So you would have some 2D distribution. I'm 16 just making the -- I'm just trying to make myself 17 understand the heat transfer situation here.

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

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

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

8JUDGE TRIKOUROS: Okay. I just want to 9understand. All right. Do you have any indication of 10 how long it will take for this moisture to leave that 11 building?12MR. BURDICK: Your Honor, what the 13 apparent cause evaluation concludes is that it's 14 leaving the building. But as far as the exact time 15frame, you know, we have not determined that. I think 16 what's -- another thing that's important here, based 17 on this discussion, is the laminar cracking that we've 18 seen is always in the same layer of rebar in the 19 shield building.

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

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

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

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

14 MR. BURDICK: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20 MR. MATTHEWS: 80 or 82.

21 MR. BURDICK: So the impulse response --

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

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

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

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

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

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

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

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

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

20 I note that this Board has made the point 21 to these Intervenors in I believe both the Contention 22 5 and Contention 6 orders, is they have to provide the 23 support for the contention themselves in their 24pleading. The Board -- and so that's our argument.

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

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

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

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

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

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

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

16 Correct me when I make a mistake here.

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

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

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

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

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

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

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

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

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

20 MR. BURDICK: No.

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

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

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

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

20 JUDGE FROEHLICH: Okay.

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

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

1 MR. LODGE: It is a separate mode.

2JUDGE FROEHLICH: You're suggesting it is?

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

7 There are a number of responses we have.

8 I first think that it is somewhat interesting that 9 even though the staff and the FirstEnergy have argued 10 vigorously that best not incorporate by reference our 11 2012 filings, we're talking about facts from the 2012 12 filings that were raised.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 (Off mic comments.)

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

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

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

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

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

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

23 I think that is the crux of staff's 24 position, that none of the information cited to in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 784 Intervenors' Motion to Admit and Amend is materially 1 different, and that it does not support the 2 contention, and also that there were indications 3 previously in the 2012 AMP that these type of 4 modifications would be made, as well as the Contention 5 5 and 6 filings, which have already been considered by 6 the Board.

7 So that really -- it's the "and materially 8 different" portion, I think, that we primarily focus 9 on.10JUDGE KASTENBERG: So your argument is 11 based on the idea that it has to be both, timely and 12 material?13 MS. KANATAS: Yes, yes.

14JUDGE KASTENBERG: Not just timely or 15 material?16 MS. KANATAS: Yes, correct, correct.

17 JUDGE KASTENBERG: Got it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18JUDGE FROEHLICH: Mr. Lodge, I think 19 you've outlined a number of the new elements. Could 20 you address, I guess, the staff's perspective, that 21 there's nothing materially different in these new 22elements, because I believe that was their point. Not 23 that there are new, issued new facts that are coming 24 to light.25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 789But the second part of that, I guess, 1 according to what the staff had said, is that they 2 have to be materially different from what was 3 previously in the record.

4MR. LODGE: Well the previous 5 understanding was that there was a finite -- that we 6 have identified the laminar cracking, we've identified 7 the source, and we're going to slap a coat of paint on 8 it, for want of a better word, high quality coating 9 material, and we're going to change the penetration 10 ability, of the resistance, if you will, of the shield 11 building.12 Well, that's all been done and as part of 13 a -- what's turning out in retrospect to look like an 14experiment, there are new implications for it. That's 15different. Please remember also, Your Honor, we're 16 talking about when did the public -- when was the 17 public finally let in on this information, and that 18 did not occur until July.

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

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

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

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

11JUDGE FROEHLICH: But Mr. Lodge, I mean 12 let me just tell you what we have to deal with in our 13decision. If the previous AMPs had, you know, Content 14 A in them and this July AMP has Content A plus B in 15 it, the fact that there's a B in it doesn't mean that 16 you have the legal right to go back and question the 17 A part, which was available two or three times earlier 18 in years.19 Now that's what we're being told, is that 20that is not admissible. You never submitted a 21 contention that criticized A before, even though it 22 was available.

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

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

8But the response at the time was "Hey, man. We've 9 done all these impulse tests; we have been all over 10 this building." 11 But there's been a lot of change since 12 that time, much of it initiated by the utility itself, 13 and now a certain number of chickens are coming home 14to roost, and it is creating new problems. They 15 actually could also be because of the more 16 scientifically capable investigatory method of 17electronic microscopy. They may actually simply be 18 identifying things that could have been identified had 19 that technique been used in 2011-2012.

20 But there's also propagation on top of 21that. There is new cracking besides. So I simply 22repeat. We're talking about a wait-and-see monitoring 23 effort that is revealing new information, and the 24utility's saying "hey, the plan works. We're finding 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 792 this stuff, and in fact we're going to now go to an 1 annual basis for a while." 2 But they do not have a knowledge base of 3 the status of the entire building, and they're looking 4at new changes. It is not enough to say that we're 5 going to keep looking at this for the remaining two 6 and a half or three years of license activity under 7 the 40-year license, and then we'll just continue 8 keeping an eye on things.

9There's no plan for mitigation. There is 10 some discussion of how the building is out of 11compliance with this licensing basis. I don't see how 12 that gets -- how that passes muster and justifies a 13 20-year extension at this point.

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

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

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

1 MR. HARRIS: There is -- FENOC had 2 provided a number of responses to RAIs related to the 3 Aging Management Program. There is an April 5, 2012 4 response, and that ML number is ML12097A520, and in 5 the enclosure to it, it discusses cracking of concrete 6 from freezing water that has permeated the concrete.

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

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

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

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

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

4 JUDGE KASTENBERG: Right.

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

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

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

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

2 MR. BURDICK: Judge Froehlich.

3 JUDGE FROEHLICH: Yes?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 800MR. BURDICK: Because there was no laminar 1 cracking identified in the dome and their conclusion 2was it's not susceptible. It's excluded from the 3 extent that the Shield Building Monitoring Program is 4monitoring for additional crack propagation. That 5 same Shield Building Monitoring Program also covers 6the coatings. And so the coating applied to the 7 shield building dome in October 2012 is covered by 8 that AMP.9 JUDGE TRIKOUROS: Okay. Thank you.

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

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

20 So I'm curious about the hypothetical 21accident conditions. And can you say whether that 22 includes both design-basis accidents of a hypothetical 23 nature and/or what used to be called Class 9 or 24 beyond-design-basis, which I think now are called 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 801severe accidents? So can you clarify what you 1 actually mean by "hypothetical accident conditions?" 2MR. BURDICK: Certainly. The shield 3 building, given that it is a two-and-a-half foot thick 4 wall with concrete with rebar in it, provides some 5 amount of biological shielding no matter what just 6because of its nature. Any radiation would be 7directed out the wall. Some of that would be 8mitigated by the wall. And so I think this discussion 9 here is certainly during regular operating conditions, 10 but also would provide some protection.

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

14 MR. HARRIS: Your Honor, I might be able 15to add something to that while he's checking. At 16 least in terms of the technical requirements for the 17 reactor is we're dealing with what are traditionally 18 called design-basis accidents in terms of their 19 intended functions, so these severe accidents, what 20 used to be called Class 9 accidents or beyond-design-21basis accidents. So where this tends to get 22 overlapped is when we start looking at severe accident 23 mitigation analysis. Its intended function would be 24 for the design-basis accidents required as part of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 802 regulations which do include some beyond-design-basis 1 accidents: station blackout, ATWIZ, those kind of 2 things. 3 But in general I think for what you're 4 referring to the severe accidents that are account for 5 in the SAMA don't actually take any credit for the 6 concrete shield building.

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

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

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

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

4 JUDGE KASTENBERG: I get that.

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

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

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

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

4There's nothing there to assess. The discussion we 5 are having or started to have is more on the merits of 6 it, and cracking would have no effect on the SAMA 7 analysis.8JUDGE KASTENBERG: Thank you. Well, 9 perhaps we should ask Mr. Lodge to --

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

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

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

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

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

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

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

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

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

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

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

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

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

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

23 The staff came to that same conclusion.

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

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

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

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

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

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

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

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

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

13 MR. HARRIS: Unresolved item.

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

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

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

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

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

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

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

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

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

23 But I think what's key to point out here 24 is this question though is part of the current 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 813 licensing basis and outside the scope of this 1 proceeding. I know the intervenors raised questions 2 about FENOC's compliance with the current licensing 3 basis and design-basis in a number of different places 4 and we've argued; I think it's in our answer at pages 5 40 to 44, or 42 to 46, that that's outside the scope.

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

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

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

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

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

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

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

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

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

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

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

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

2 MR. BURDICK: That's correct.

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

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

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

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

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

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

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

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

22 MR. BURDICK: Yes.

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

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

11 JUDGE TRIKOUROS: Okay.

12MR. HARRIS: And, Judge Trikouros, just to 13 indicate how long that's been in there, it was 14 actually -- originally that same language about the 15 Corrective Action Program was in their April 5th, 2012 16response under the acceptance criteria. It's on pages 17 13 and 14 of, 15 and it's the enclosure that's 18attached to that response. I mentioned the ML number 19before, which is ML12097A520. But it says basically 20if the acceptance criteria is met, then the 21 indications or conditions will be evaluated under 22 FENOC's Corrective Action Program.

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

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

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

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

16 And I would refer you back to what we've 17 cited by reference, our 2012 filings, which would be 18 the July and perhaps also the August, those three 19 filings, where based on the FOIA return, which is 20 right here, it was very apparent from October-November 21 2011 that the staff, whose emails we have cited 22 repeatedly for all these years, were very concerned 23 about the loss of current licensing basis at Davis-24 Besse. 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 820 And what was really incredible to us was 1 the morning of the confirmatory action letter that 2 allowed the rushed restart, December 3rd of 2011, 3 there were still questions being asked by NRC staff.

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

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

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

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

9 MR. KAMPS: We've certainly --

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

12 MR. KAMPS: I think so. We've certainly 13 raised the interplay between current licensing basis 14and the license renewal application. I thought I just 15 heard FirstEnergy's attorney admit that there is that 16 interplay, that these commitments in the AMP are a 17part of the current licensing basis. Once April 23rd, 18 2017 arrives, what is currently a future commitment 19 during the license extension under the Aging 20 Management Program will then become a part of the 21 current licensing basis.

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

7JUDGE KASTENBERG: Do you have a response 8 for that?9 MR. BURDICK: Well, so first of all, the 10 description of -- I guess my description of the 11 current licensing basis and license renewal simply 12 describing how it works in the license renewal 13 regulations at 10 CFR Part 54, Section 54.29 discusses 14 the current licensing basis in the standard for 15license renewal. And then Section 54.30 specifically 16 addresses that the staff's review should not cover the 17current licensing basis. If something comes up 18 related to the current licensing basis, then I direct 19it to their NRR folks that address the current 20 operating.

21 So I was not making any revelation here.

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

1 This is simply describing how the process works.

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

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

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

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

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

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

7 MR. HARRIS: Yes.

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

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

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

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

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

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

11JUDGE TRIKOUROS: Right. I understand.

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

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

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

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

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

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

16 MR. HARRIS: Yes, Your Honor.

17 JUDGE TRIKOUROS: Okay.

18JUDGE FROEHLICH: Mr. Kamps, a moment ago 19 you referred the Board to I guess footnote 5 on page 20 12 of your pleading.

21 MR. KAMPS: Yes.

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

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

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

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

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

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

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

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

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

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

23MR. BURDICK: The USAR is a licensee-24controlled document. And if we identify some sort of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 830 update that we want to make or need to make, then we 1 go through a process, follow the regulations in 10 CFR 2 50.59 to see if that's something that we can make on 3our own. There are certain screening criteria. If 4 it's a tech spec change, for example, we need a 5license amendment. There's other things it can screen 6out. Then if it passes that screening, we look at 7these eight factors. If none of those are tripped --

8 there are certain ways that we control that document.

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

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

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

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

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

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

4 MR. MATTHEWS: That's correct.

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

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

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

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

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

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

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

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

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

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

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

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

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

1JUDGE FROEHLICH: Okay. Thank you.

2 Anymore?

3 JUDGE KASTENBERG: Not on that subject.

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

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

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

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

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

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

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

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

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

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

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

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

4 Didn't make it better.

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

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

13 MR. LODGE: Can we take a moment?

14 JUDGE KASTENBERG: Sure.

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

17 (Pause)18MR. LODGE: We're trying to find the 19 location where we made the point, but in one of our 20 probably September filings, and probably September 21 8th, we made the point that there was no statistical 22 significance of doing 23 samples in an area this 23 large, in a potential problem area of the magnitude 24 that we have been talking about this morning. And I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 839 guess we are not in a position to give you an express 1 number of what would be an adequate investigation.

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

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

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

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

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

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

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

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

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

14 Finally we're discussing ice wedging, but 15 what I'm seeing is that it's sort of now caused the 16 latest -- it's the latest explanation, it's the latest 17rationale. But there's not redirecting that knowledge 18 into meaningful future projections and understanding 19 how much of the shield building is affected today and 20 how the building will be affected from April 23rd, 21 2017 on into the deeper future.

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

10 And as was mentioned; we could get into so 11 much more detail in a hearing, another detail that 12 hasn't come out yet is that the annular space of the 13 shield building, I think it goes against the scenario 14 that Mr. Trikouros painted earlier of the shield 15 building wall being heated to a certain extent or a 16certain depth outward. Actually that annular space is 17 preventing the heat buildup in the wall to the point 18where FirstEnergy has to install heaters in the 19annular space to heat up the annular space. And many 20 of those, half of those heaters don't work, are 21 malfunctioning. So I think it's wrong to think that 22 heat is traveling outward and preventing the freezing 23 from traveling inward. I think especially given the 24 winter last year that the freezing of that shield 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 843 building wall probably went very deep into that 30 1 inches. 2JUDGE KASTENBERG: Does the licensee have 3 any comments regarding petitioner's statements?

4 MR. BURDICK: Of course.

5 JUDGE TRIKOUROS: I'm sure.

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

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

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

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

19 Let me also on the contention 20 admissibility front -- we discuss this in extensive 21 detail in our answer, b ut one of the largest, most 22 significant deficiencies of this contention is they 23 fail to provide the alleged facts or expert opinion 24 that are required by 10 CFR Section 2.309(f)(1)(5), 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 845 and they also fail to demonstrate a genuine disputed 1 material issue, fact or law under Section 2 2.309(f)(1)(6). And we discuss that in detail. But 3 I think as we've listened to the intervenors describe 4 their contention, that's only been emphasized.

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

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

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

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

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

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

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

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

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

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

17JUDGE KASTENBERG: So you feel you're 18 being conservative compared to this so-called accepted 19 standard?20MR. BURDICK: Yes, especially with 21 frequency.

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

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

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

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

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

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

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

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

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

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 849 With respect to the location of the 1 inspections, some of that is discussed in a November 2 2012 RAI response when we first specifically 3identified that we would do 20 inspections. And as 4 part of that we looked at where the laminar cracking 5 was most prevalent in the shield building. And some 6 of this is -- I mentioned earlier that there was more 7 prevalence on the southern exposure, and some of that 8 is due to the weather during the winter, that I think 9 the wind is prevailing in that direction, in addition 10 to on the top, the 20 feet, and then around the main 11 steam line penetrations because of the rebar 12 configuration. So we looked at that.

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

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

11 In three of those locations the 12 propagation was in plain with existing laminar 13 cracking. So the laminar cracking is not an exactly 14 straight line, but some of it's weaving through the 15 rebar. And so it's not a perfect line. So we found 16 a couple places where there was kind of an offshoot of 17the crack. Well, because that has no impact on our 18 strength calculation for the shield building, we 19 didn't do special or additional inspection for those 20 locations, because it's also where there's existing 21 cracking.22So then that left us with five places.

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

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

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

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

15MR. BURDICK: I think it describes the new 16 three and how these will be at the leading edge of the 17concrete. So that's the explanation. And then I 18 believe some of the RAI responses, including the July 19 3rd have a little more description about the basis for 20 the three, and in addition a more recent RAI response.

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

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

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

5 MR. BURDICK: That's correct.

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

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

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

23 The one mitigative action that was 24 implemented has turned out to be a mistake and has 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 853 serious flaws, and in fact was something to which the 1 intervenors objected or mentioned as a potential 2 problem back in 2012 before the coating took place.

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

11 MR. HARRIS: Your Honor, just --

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

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

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

21MR. LODGE: One second here. It's ACI 22 349.3R-02. I think that was the -- it may have been 23 the one that was cited.

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

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

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

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

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

3JUDGE KASTENBERG: Would you like to 4 comment?5 MS. KANATAS: I'll just cover the points 6that I think haven't been covered. In terms of 7 specific challenges to the shield building monitoring 8 AMP, I think first a question that Judge Kastenberg 9 raised earlier about it seems that intervenors' 10 concern is that the AMP is inadequate because the July 11 8th submittal admitted that cracking propagation is 12age-related. But there's no indication in the 13 Contention 7 of why the root cause of the cracking 14 propagation would impact the staff's license renewal 15 findings or why the shield building monitoring AMP, 16 which monitors cracks through multiple inspections 17 over the period of extended operation, is inadequate.

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

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

14 We've already covered the core bores.

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

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

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

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

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

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

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

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

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

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

1 this same day.)

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

4 JUDGE TRIKOUROS: Am I up?

5 JUDGE FROEHLICH: Yes, you're up.

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

11 Are you going to address this at all?

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

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

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

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

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

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

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

24 JUDGE TRIKOUROS: Oh you are?

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

1 MR. HARRIS: I don't --

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

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

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

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

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

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

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

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

14 JUDGE TRIKOUROS: Okay.

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

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

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

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

10 JUDGE TRIKOUROS: Right.

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

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

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

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

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

24 Is that the staff's understanding?

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

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

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

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

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

20 JUDGE TRIKOUROS: Yes.

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

22 JUDGE TRIKOUROS: Thirty-two. Yes, it's 23 31.24 MR. LODGE: Sorry.

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

2 MR. LODGE: All right.

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

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

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

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

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

14 MR. LODGE: No.

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

17 In your motion to amend and supplement.

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

19 JUDGE TRIKOUROS: Yes.

20 MR. LODGE: Okay.

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

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

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

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

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

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

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

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

18 JUDGE KASTENBERG: Right.

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

24 JUDGE KASTENBERG: Is that correct?

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

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

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

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

14PARTICIPANT: If I might, Judge 15 Kastenberg.

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

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

22 MR. LODGE: Right.

23JUDGE KASTENBERG: So what are we 24 evaluating here, alternatives to Davis-Besse or the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 868 cost of alternatives of to dealing with the shield 1 building?2MR. LODGE: NEPA calls for both. So I 3guess it is both. I'm just trying to recall what must 4 have been in my mind when I was drafting that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9 JUDGE KASTENBERG: That explains that?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18 What I'm trying to understand is is there 19 a requirement to look for any new cracking on this 20 building.21MR. BURDICK: I think the answer is no.

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

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

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

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

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

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

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

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

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

The shield building vacuum 11 propagation was enhanced, worsened, by the application 12of the coating. The water is trapped. We're hearing 13 discussions of it dissipating, no particular analysis 14 of that, no expertise that is explaining exactly that 15 is going to happen and what the anticipated timetable 16 would be nor if there are any other mitigations set to 17 be taken.18 We believe that ice wedging certainly 19existed. I can't find the reference. But we've also 20 seen some mention I think in some FENOC document that 21 basically says in industrial concrete types of 22 applications this sort of problem is not well 23 identified or discussed.

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

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

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

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

12 (No verbal response.)

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

23 MR. LODGE: Yes.

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

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

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

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

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

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

7 MR. LODGE: No.

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

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

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

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

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

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

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

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

6 You seem to identify it as an issue but.

7MR. KAMPS: Is this page 11 of the initial 8 petition?9 JUDGE TRIKOUROS: No, the motion.

10 MR. BURDICK: September 8th.

11 JUDGE TRIKOUROS: No, the motion.

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

23 If there were some comprehensive 24 evaluation undertaken in light of coating the building 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 883 and now we've got a micro-cracking problem. It's 1 possible the Intervenors wouldn't even be here. But 2 you have some analysis being done of the shield 3building, application of the coating. Whoops, new 4 problems have cropped up and looks like we may have 5 caused them. And our solution is simply to engineer 6 15 percent expansion of the core borings and see what 7happens. See what happens next. I don't think -- We 8 don't think collectively that that is a prudent way to 9 proceed with a license extension.

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

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

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

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

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

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

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

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

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

17 MR. LODGE: Yes, it is.

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

21 MR. LODGE: Yes.

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

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

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

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

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

10JUDGE TRIKOUROS: I understand. Okay.

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

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

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

21 PARTICIPANT: Top of page 12.

22 JUDGE TRIKOUROS: Yes, top of page 12.

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

10 And then to learn in 2014 that indeed 11 during the period of time that we were litigating in 12 2012, FENOC knew that there was a propagation problem 13 cropping up. That's rather astonishing. And that's 14 the context in which that comment is made.

15 JUDGE TRIKOUROS: Okay.

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

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

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

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

11 JUDGE TRIKOUROS: Okay.

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

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

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

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

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

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

18There are monthly discovery disclosures. There was no 19 document.20MR. BURDICK: Your Honor, that's simply 21incorrect. There are no monthly discovery disclosures 22 in this proceeding.

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

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

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

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

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

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

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

6 MR. LODGE: No.

7 JUDGE TRIKOUROS: No, okay.

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

10JUDGE TRIKOUROS: Is this some specific --

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

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

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

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

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

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

6 Fifty-three?

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

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

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

15 MR. LODGE: Okay.

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

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

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

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

17Therefore, the AMP is not adequate. I 18 understand that -- We're not saying you made changes 19 to the AMP. Therefore, we should be allowed to have 20an admitted contention. We're saying there are 21 dramatic new explanations being offered and 22 essentially new points being conceded as to the aging 23 relatedness of this and the revelation that the 24 mitigation didn't work and in fact caused more 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 895 problems.1JUDGE TRIKOUROS: So it's the FACE report 2 new information.

3 MR. LODGE: Yes.

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

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

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

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

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

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

2JUDGE TRIKOUROS: And would the root cause 3 have any effect on the type of analysis that you do?

4 For example, whether you use just visual observations 5 or what you refer to as enhanced optics, wouldn't the 6 root cause be determined if it were that as well? I 7 mean, do you really see there's no connection between 8 the root cause and the AMP?

9MR. HARRIS: There is some connection. So 10 if you had some cracking that was not visible that you 11 could not monitor and trend, of course, then a visual 12inspection would probably be insufficient. Yes, in 13 principle, you can.

14 In this case for the shield monitoring AMP 15 we're looking at the cracking propagation from this 16where you have it. It's been detected by visible.

17 You're able to see it in trend the growth of those 18cracks. In this case, you're able to measure that 19trend. I don't know that the ice wedging would impact 20 whether or not the monitoring of the crack growth is 21 material to whether or not the AMP or the laminar 22 crack propagation is adequate.

23JUDGE TRIKOUROS: For me, this is related 24 to the comments made by the Intervenors regarding the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 897 need for additional testing evaluation methods.

1 Whatever methods are in the AMP, they have to be able 2 to see cracks regardless of the root cause. And the 3question is in many cases it's just visual. And it's 4 not clear to me how that plays out.

5MR. HARRIS: That would be true of almost 6 any structure is that there are lots of places in any 7structure that you're not looking at. These 8 challenges could have been brought up before. This is 9not a function of the crack propagation in terms of 10 monitoring for other cracks that are not visible.

11 That was true when they first discovered 12it. It was true when they first put the AMP in place.

13 Those issues have been around since we started 14 discussing this issue.

15JUDGE TRIKOUROS: Right. And the comments 16were not made by the Intervenors regarding the 17structures AMP in general. They were made 18 specifically regarding the shield building AMP which 19 is specifically geared toward certain root cause in a 20sense. So I just wanted to make sure I understood why 21 you said that. That's all.

22MR. HARRIS: There's no evidence that 23 there are cracks -- In terms of those cracks, the 24 Intervenors haven't put forward anything that would 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 898 suggest that the cracks, those laminar cracks, that 1 were characterized by the impulse response testing, 2 the core bores, that they haven't been located and 3they can't be found by visual inspection. That there 4 is some crack that we're missing somewhere.

5JUDGE TRIKOUROS: So, Applicant, do you 6 agree that the adequacy of the AMP is not related to 7 the root cause?

8MR. BURDICK: Yes. And I think this goes 9 back to some of our earlier discussion that the shield 10 building monitoring program was put into place to 11address this laminar cracking. And it's focused on 12 the laminar cracking and to see if there are any 13 change in the nature of that cracking.

14When it was implemented or I should say 15 when it was submitted in April 2012, it already did 16that. It still focused on the laminar cracking to see 17if there were any changes in its nature. That hasn't 18 changed in 2013. There have been some enhancements, 19 but still it's looking for changes in the nature of 20 the laminar cracking.

21JUDGE TRIKOUROS: If the AMP finds 22 something, then a root cause is usually done to 23evaluate what's causing the problem. Then isn't it 24 true that the AMP would then be modified to reflect 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 899anything learned from the root cause? I mean the 1 statement that they're just totally distinct I just 2 don't understand.

3MR. BURDICK: If any of the acceptance 4 criterion in the AMP are I guess affected, if they see 5 a change in the width of a crack or the expansion of 6 the crack into an uncracked area, then certainly FENOC 7would investigate that. It may not require a root 8 cause. It depends on what they find.

9 But they're investigate to look if 10anything needs to change. Just like in 2013, still 11 the purpose and what's monitored and the focus on 12 laminar cracking didn't change in those circumstances.

13JUDGE TRIKOUROS: All right. So where the 14 Intervenor has claimed that you need additional 15testing methods, your position is that your current 16testing methods are adequate. But that you would 17 implement new testing methods if there was an 18 observation of something new.

19 MR. BURDICK: I don't know.

20JUDGE TRIKOUROS: I'm trying to 21 understand.

22MR. MATTHEWS: Judge Trikouros, we're here 23today because the monitoring program worked. It 24identified changes in the crack. It identified crack 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 900propagation. That was under the maintenance rule 1 program in the current period that is functionally 2similar to the AMP and now identical. It found it and 3put it in the corrective action program. Under 4 appendix B corrective action program, there was an 5 evaluation of the issue.

6JUDGE TRIKOUROS: It found it because you 7 used enhanced optics.

8 MR. MATTHEWS: Yes.

9JUDGE TRIKOUROS: I mean that 10 specifically.

11MR. MATTHEWS: In the current program.

12 Even in our monitoring program, we used advanced 13optics. Then when we identified indications of 14 cracking it was put in several condition reports into 15the corrective action program. In the corrective 16 action program, then all the appendix B sections that 17 I think you're referring to all applied.

18 FENOC assessed whether this should be a 19 low tiered evaluation, whether it was an apparent 20cause, whether it was root cause. This was a full 21 apparent root cause or full apparent cause evaluation.

22 Nonetheless, they used a contractor who did a root 23cause to help support their apparent cause. And they 24 did extentive condition which they decided to do, a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 901 more comprehensive core bore evaluation, look at all 1 the core bores.

2 In those areas where they suspected there 3 could be possibility of crack propagation, they did 4 impulse response testing which is not the same, not 5 better, than core bore. It's another datapoint. It 6 tells you something different about the concrete, not 7necessarily that it's cracked. But it's an 8 indication. They used that.

9 So the short answer to your question is 10yes. They would use the corrective action program to 11 evaluate what further methods would be necessary to 12 identify the cause and the extent of condition.

13But can we tell you today sitting here 14 that if we found this crack they would do this many 15more core bores or this area for the analysis that 16 might have to do with impulse response testing or 17 chemical testing or whatever else they might do? We 18can't say that. It would be addressed under the 19 corrective action program appropriately as it was.

20 And that's why we're here.

21MR. HARRIS: And, Your Honor, I think 22maybe to clarify. What we were intending to say when 23 we were talking about the relationship of the cause of 24 cracking to the AMP was the method for the cracking is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 902not determinative of the adequacy of the AMP. Whereas 1 you could determine the adequacy of the AMP without 2 necessarily knowing the method of cracking.

3 Now does that feed into how fast the crack 4may be growing? What's the particular mechanism in 5terms of when you might challenge the acceptance 6criteria? Of course. Should you feed that 7information in as they did? Of course. But what 8 we're saying is you can determine the adequacy of the 9 AMP simply because the mechanism -- a new mechanism 10 has been identified.

11 JUDGE TRIKOUROS: Okay. I'm just trying 12 to correlate here the comments made by the Intervenors 13 that there should be additional methods of 14 investigation identified. And the fact that the AMP 15 itself pretty much says visual I believe I don't think 16 there is any -- I'd have to pull it out and look at 17it. But I don't see -- There's a lot of visual 18 inspection using an ACI-approved method.

19 And yet here in this situation we had a 20 very astute consultant, PII, who chose to look at the 21 bore holes using an enhanced optics method which 22 identified the additional cracking only because of 23 that and then preceded to identify an additional root 24 cause, namely ice wedging.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 903MR. MATTHEWS: Judge Trikouros, there's 1just a small factual piece of that that's flip. FENOC 2 used the enhanced method and identified the cracking 3and referred to PII. And the PII used other methods.

4 JUDGE TRIKOUROS: I stand corrected.

5 MR. MATTHEWS: But FENOC on its own.

6JUDGE TRIKOUROS: Okay. That's good to 7know. So FENOC chose to use an enhanced optics method 8 and found the crack. That's good. But the point is 9 that if they hadn't the cracks would have gone 10 undiscovered or so it appears by reading whatever is 11 in front of me.

12MR. MATTHEWS: And they have until the 13 next core bore inspection.

14 JUDGE TRIKOUROS: Again, I'm just trying 15 to relate this to the comment that we're dealing with, 16the contention that we're dealing with, that is 17 addressing the need for additional methods of 18 investigation with respect to the AMP.

19MR. MATTHEWS: But I think we're flipping 20 it again, Judge Trikouros. They haven't said why we 21 should expect cracking anywhere else other than on the 22fringe of the existing laminar crack. We have 23 identified why the crack grew in those areas and 24 through the ACE explained that. They just said they 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 904 want these other testing methods in other areas but 1not why it's necessary. Why that's a deficiency of 2 the shield building AMP or the structures AMP or any 3AMP? They haven't told us why that's necessary at 4 all.5 I understand your question why is FENOC 6comfortable. But we don't need to look in other 7 places.8JUDGE TRIKOUROS: I agree that the comment 9is very broad and broadly applied. Use other methods 10and they mention -- you mention five or six. But you 11 don't identify one in particular or two in particular.

12 There's truth to that.

13 MR. MATTHEWS: And FENOC is not sticking 14its head in the sand. FENOC has evaluated all the 15core bores they had in response to this. They went to 16all 80 and checked. They have a structure monitoring 17 AMP.18 There's just no reason to suspect that 19 this laminar cracking phenomena may pop up somewhere 20else. The building is not coated. So there won't be 21 wind driven rain into it to cause that saturation in 22 these other areas. The rebar is not at that spacing 23in these other areas. Without that, FENOC doesn't 24 have a reason to start drilling holes all over the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 905 shield building or any other building.

1JUDGE TRIKOUROS: All right. I think I'm 2okay with all the rest. Just for my own information, 3 the contentions five and six material, while we did 4 not admit those contentions for a variety of reasons 5 that we documented, what is your position regarding 6 the availability of that material for this contention?

7MS. KANATAS: Certainly, it is 8 Intervenor's right to incorporate by reference past 9filings. But that doesn't excuse Intervenors from 10 having to meet the contention admissibility standards 11 and indicate at this point since we're now almost four 12 years past the deadline for initial petitions for 13 intervention how that information is new and 14 materially different and how it supports admissibility 15by raising a genuine material dispute with the 16 application within the scope of the proceeding.

17And they did not do that. They simply 18 repeated their arguments that they've raised these 19 concerns before and they've possibly should have been 20 admitted before and that they show that there's a 21problem. But they don't -- That's not enough I mean.

22 So it's certainly not our position that 23they cannot cite to past pleadings. But again it 24 doesn't excuse the need to tie those pleadings to a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 906 specific, adequately supported challenge to the 1 application as it stands now.

2JUDGE TRIKOUROS: I understand. Okay.

3 But there's no problem with looking at that 4 information and making a determination as to how it 5 might or might not impact this.

6 MS. KANATAS: Well, it's for the -- This 7 is not -- Certainly, we can look at what they filed in 8their pleadings in support of their contentions. It's 9 not for the staff or the Board or anyone else to build 10a contention for them. They have proposed certain 11 claims based on those filings. And we are here. It 12 is our position that they have not demonstrated that 13 those filings raise a dispute.

14JUDGE TRIKOUROS: Right. Now I 15 understand. Any comments on that?

16MR. BURDICK: I agree with that. Their 17contention is certain building requirements. We 18talked about them multiple times today. There are 19timeliness requirements. Those all have to be 20 satisfied for that information as well.

21 So there is a burden on the Intervenors to 22demonstrate it is timely. If they're raising the 23 document to make an argument that they could have made 24 back when the information first became available then 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 907that would be untimely. And if they try to use it, 1 for some reason it is timely and they try to use it, 2 they still have to meet the six other contention 3 admissibility factors including providing the alleged 4 facts and expert opinion or identifying the genuine 5 dispute. So they can't just cite the information or 6 incorporate it and assume that meets that hurdle.

7They still have to demonstrate it. And that's 8 certainly one thing they have not done is try to pull 9 the argument together.

10JUDGE TRIKOUROS: Okay. Now I have a 11 question on the Intervenor reply on -- It would be on 12page four. I don't quite understand what you said 13 that 10 CFR 54.29 -- I'm sorry. It says "FENOC and 14 the NRC staff has made conjectural arrangements 15 commencing in 2017 to be predicated upon information 16learned about the cracking FirstEnergy has not yet 17 identified much less absorbed." I didn't understand 18 that.19 (Off microphone comments) 20MR. BURDICK: Judge Trikouros, I think it 21 might be on the top of page 15 of the reply.

22 JUDGE TRIKOUROS: Yes.

23 MR. LODGE: Sorry. I didn't realize you 24were still looking for it. It is the first full 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 908 sentence.1JUDGE TRIKOUROS: Okay. Sorry. I had the 2wrong reference there. Could you explain that to me?

3 MR. LODGE: Yes sir. I apologize. This 4 is again draftsmanship.

5 JUDGE TRIKOUROS: Of what?

6MR. LODGE: Of the meaning of that 7 statement was that FirstEnergy is proposing aging 8 management plan arrangements commencing for the 20 9year renewal period based upon unknown unknowns. That 10 essentially until there's a baseline set of data 11 established as to the cracking status of the overall 12 shield building that to come up with in 2014 with an 13aging management plan for 2017 is fatuous. That's 14 what we meant.

15JUDGE TRIKOUROS: Okay. All right. On 16 page 16, you make the statement "Contention 7 must be 17 adjudicated by the Board not as a determination of the 18adequacy of present CLB activities but to ascertain 19 whether there was reasonable assurance that the 20 present CLB efforts will tandem into the obligatory 21shield building CLB activities." Perhaps you can give 22 me a little more on that.

23MR. LODGE: We were respecting the fact 24 that it is by regulation not permissible to litigate 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 909 what is done by way of corrective action or the things 1 related to continuing license basis between now and 2April 22, 2017. But we believe it's incumbent on the 3 Board in terms of an adjudication to determine whether 4 the continuing licensing basis activities in the 5 extension period are in any way logically related to 6 whatever happens over the next two and a half to three 7 year period.

8 We've haggled a lot today about the hands-9 off circumstance over continuing license regulatory 10 activity between now and the end of the four year 11 period in our very limited recourse to question or 12challenge that. But the FirstEnergy approach has been 13 to treat this as a day-to-day management problem.

14 We contend that so long as there is a lack 15of comprehensive understanding of the status of the 16structure that they get that pass. It would be a 17 different picture and it might even make the 18 Intervenors go away if there were comprehensive 19knowledge of the status of the shield building. We 20 believe that after the coating was applied which was 21 a big game changer that that's a very different 22 circumstance which has apparently caused additional 23 cracking.24 And I'd like to take this opportunity to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 910 point out that from 1978 until 2011 either because 1 they weren't visible or because they weren't being 2looked for cracking was not noticed. We're talking 3 about the blizzard of '78 setting up the preconditions 4 for the cracking to commence and have to presume that 5 it was under way continuously through 2011.

6 In 2002, there was a maintenance breach of 7the shield building. The cracking is not noticed.

8 Perhaps it was not visible. But it existed. It had 9to exist in some form. The deterioration was 10 happening.

11 So we're talking about decades where 12 cracking is not identified. And then we sort of get 13 into this anecdotal phase where in 2011 in a 14 maintenance breach circumstance laminar cracks are 15noticed. And there is an investigation performed.

16 And even if you were to concede that the 17 impulse testing done at that time were done and it was 18 relatively comprehensive it was not the -- it 19 certainly was not exactly the best available 20technology. But even if it were, the later technology 21 that has been applied has shown that there's 22 microcracking that has not been identified.

23 Our point is that this panel has to --

24 Certainly, we think it is relevant to look at what the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 911plan is right now, the aging management is at this 1moment. But you have to make inferences as to its 2 adequacy during the 20 year period that would follow 3 if an extension were to be granted. And based upon 4 historical cracking, I think that there's a lot of 5 data that's missing that would be very necessary for 6 consideration in that proceeding.

7 (Off microphone comments) 8 JUDGE TRIKOUROS: Okay. I'm done with my 9questions regarding the pleading. Just again to 10 understand this a little better, laminar cracking 11appears the winter of '78. Does ice wedging not occur 12 from that point forward or does it occur?

13MR. BURDICK: There is no evidence of ice 14 wedging prior to when it was identified in 2013.

15 JUDGE TRIKOUROS: Prior to what?

16 MR. BURDICK: Prior to when it was first 17 identified in 2013. So our conclusion from the root 18 cause evaluation in 2011-2012 was that there was the 19 one event laminar cracking that was by the '78 20 blizzard. Only through that event and the design of 21 the shield building that caused one laminar cracking.

22 So it was only after that point when the ice wedging 23 occurred. So after -- In the last couple of years.

24JUDGE TRIKOUROS: What is it about the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 912 last couple of years that's different.

1MR. BURDICK: So the apparent cause 2 evaluation identifies the attributing cause as 3coating. So there's the application of the coating to 4the shield building. So there's no evidence that 5 there was any ice wedging before application of that 6 coating.7 MR. MATTHEWS: Retrospectively to see if 8 there had been indications of step fracture prior to 9 2012 and did not find indications of step fracture 10 which would be indicative of ice wedging.

11 JUDGE TRIKOUROS: So really applying the 12 coating did it.

13MR. MATTHEWS: The ACE concluded that was 14 a contributing cause.

15 JUDGE TRIKOUROS: Yeah, I've had trouble 16understanding. I'm not a structural guy, but I've had 17 trouble understanding why applying the coating would 18 cause that to happen.

19MR. MATTHEWS: And that same analysis 20 affirmed the evidence earlier of the initial freeze as 21 causing one continuous crack and not the suggestion 22 that's been tossed out here without basis that it's 23 some type of living phenomena.

24 JUDGE TRIKOUROS: Okay.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 913 JUDGE FROEHLICH: At this stage, I would 1propose that we take a ten minute break. If people 2 would please correct your closing arguments, we'll 3 hear them in the order of staff, the Licensee, closing 4finally with the Petitioners. Then we'll call it a 5day. We'll take ten minutes and then proceed directly 6 to closing arguments. Off the record.

7 (Whereupon, the above-entitled matter went 8 off the record at 3:13 p.m. and resumed at 3:26 p.m.)

9JUDGE FROEHLICH: On the record. Start 10 from the top.

11MS. KANATAS: Okay. Thank you, Your 12Honors. This oral argument is about the admissibility 13of Contention 7. Have Intervenors met their burden in 14 submitting an adequately supported contention that 15 raises a material, genuine dispute with FENOC's Davis-16 Besse's license renewal application and meets the 17 Commission's standards for contentions filed after the 18 deadline for petitions to intervene.

19 The answer to that question is no.

20 Intervenors proposed Contention 7 should not be 21 admitted to this proceeding because Intervenors have 22 not shown that the contention is based on new and 23 materially different information or that the 24 contention raises a genuine material dispute with 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 914FENOC's license renewal application. In support of 1 Contention 7, Intervenors incorporate all of their 2 Contention 5 filings and provide a history of the 3 shield building issues that led to the filing of 4 Contention 6.

5 While the staff recognized that Contention 6 5 raised a single admissible safety claim at the time 7 it was filed, that claim was mooted by FENOC's 8submission of a shield building monitoring AMP. Since 9 April 2012, FENOC's application has included plant 10 specific shield building monitoring program to monitor 11 the shield building cracking during the period of 12 extended operation.

13 Intervenors claim that changes made to 14 this AMP by FENOC's July 3, 2014 submittal are new and 15materially different information. Intervenors also 16 claim that the full apparent cause evaluation contains 17 new and materially different information given its 18conclusions on ice wedging. However, Intervenors have 19 not shown that the changes made to the AMP or the 20 conclusions in the full apparent cause evaluation are 21 new and materially different information.

22 The shield building monitoring AMP always 23 contemplated the possibility of an aging mechanism and 24 increasing monitoring and augmenting inspections if 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 915new cracks were identified. And this is exactly what 1 FENOC did in response to operating experience.

2 Intervenors could have and did raise challenges that 3 the scope, method and frequency of the testing was 4inadequate prior to this September. But those 5previous challenges were rejected. Under Oyster 6 Creek, Intervenors' attempts to challenge the 7 augmented shield building monitoring AMP must fail.

8 In terms of the coating being a 9 contributing cause to the crack propagation, the 10 Intervenors do not indicate why this suggests 11inadequacy in the monitoring proposed by the shield 12building monitoring AMP. Likewise, while Intervenors 13 might incorporate by reference their previous filings 14 on the shield building, that does not excuse them from 15 showing how that information is new and materially 16 different.

17 Intervenors do not indicate how any of the 18 information in the Contentions 5 or 6 filings is new 19 or materially different. Instead Intervenors repeat 20 arguments considered and rejected by the Board and 21 suggest that the Board was wrong to reject them in the 22 first instance.

23 This rehash of previous arguments does not 24support admissibility of Contention 7. Even assuming 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 916 the Board finds that Contention 7 is based on new and 1 materially different information, Contention 7 should 2still be found inadmissible. Intervenors have not 3 shown that the Contention 7 satisfies the Commission's 4 contention admissibility standards.

5 Intervenors' challenges to the shield 6 building monitoring AMP while in scope do not raise a 7 genuine material dispute with the application.

8 Intervenors only point to enhancements made to the AMP 9 and assert without support that more is needed, more 10 core bores, more monitoring, more tests or they raise 11 nonspecific and nonsupportive challenges that other 12AMPs are inadequate. This is not enough to trigger an 13 adjudicatory hearing.

14 The rest of Contention 7 safety claims are 15 issues that are outside the scope of this limited 16 proceeding such as current operating issues, safety 17 culture claims and challenges to the staff's review.

18 This Board has made clear that these issues are not to 19 be adjudicated in this license renewal proceeding.

20 Even assuming these claims were in scope, Intervenors 21 claim that basis.

22 Intervenors do not explain why using facts 23 or expert opinion the shield building cracks impact 24 the shield building's ability to perform its intended 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 917functions. Likewise, Intervenors' environmental 1 claims do not satisfy the Commission's contention 2 admissibility standards because their lack of support 3 and specificity and do not raise a genuine material 4 dispute with FENOC's environmental report and the 5 staff's draft environmental impact statement.

6 Intervenors assert that the SAMA is 7 inadequate, but Intervenors offer no support for this 8 assertion and do not point to any specific portion of 9 the SAMA or the DSEIS or indicate how those analyses 10are inadequate. Likewise, Intervenors claim that the 11 alternatives analysis is inadequate, but do not 12specify how the analysis is flawed. Instead 13Intervenors claim that the shield building must be 14repaired because it is not able to meet its design 15 basis functions.

16 But Intervenors do not offer support for 17 these claims or explain how using facts or expert 18 opinion the shield building cracking are connected to 19 an environmental impact that is relevant to the 20 20 more years of operating the plant. Therefore, it is 21clear the Intervenors believe there are errors or 22 deficiencies in FENOC's license renewal application.

23 Intervenors have not indicated some significant link 24 between a claim deficiency and the health and safety 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 918 of the public or the environment.

1 While the staff has not made its findings 2 on the shield building monitoring AMP, Intervenors 3 have not raised a support of genuine dispute with the 4AMP. The staff continues to review the shield 5building monitoring AMP. FENOC's October 28, 2014 6 response to the staff's September 29th RAI and may ask 7 additional questions.

8 But this does not give rise to an 9 evidentiary hearing. The RAI process is routine and 10customary in licensing reviews. To admit a contention 11 into this proceeding, Intervenors must do more than 12 point to FENOC's responses and claim that they are 13 inadequate.

14 In closing, I'd like to repeat a point 15that I opened with. The staff recognizes that the 16 shield building is a structure within the scope of 17 license renewal and that is subject to aging 18management review. The staff also recognizes that the 19 shield building performs important design basis 20functions. The staff will not issue a renewed license 21 unless and until it finds that FENOC has met all 22 applicable requirements. Thank you.

23 JUDGE FROEHLICH: The Licensee.

24MR. MATTHEWS: Thank you, Judge Froehlich.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 919 FENOC appreciates this opportunity to address the 1Board today. I'd like to recognize the zeal of the 2 Intervenors, the efforts on the part of the NRC staff, 3 staff counsel and also recognize the obvious effort of 4 the Board to dig into these issues so that we can have 5 this constructive discussion I think we had today.

6 As Judge Froehlich noted in his opening 7 remarks this morning, the only purpose for which we're 8 here this morning or today is to discuss the 9 timeliness and sufficiency of the Intervenors' 10 proposed contention. We touched on a lot of things, 11 but that's the only reason we're here.

12 As both the staff and FENOC explained in 13 their written briefs and discussed further today, the 14Intervenors have not. The proposed contention should 15 not be admitted.

16 With respect to timeliness, the 17 Intervenors have not identified any materially 18 different, new information in FENOC's revised aging 19 management program or the full apparent cause 20evaluation. FENOC has always been focused on 21 identification of any observable change in the laminar 22cracks. The methods specified in the AMP worked. The 23challenge is now to those inspection methods are 24 untimely.25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 920 Improvements practices in the AMP, 1 improvements in the AMP, do not open the entire AMP to 2 new attack as the Commission and the Board found in 3 the Oyster Creek proceeding.

4 With respect to sufficiency of the 5 proposed Contention 7, Intervenors also failed to meet 6 the requirements specified in 10 CFR 2.309(f)(1).

7 Many of the topics contained in the contention fall 8 well outside the scope of the license renewal 9 proceeding.

10 Most of those we have not spent time on 11 today addressing safety culture or NRC disclosure 12practices. But we did spend some time on current 13 licensing basis, again outside the scope of license 14renewal. In fact, they're specifically excluded from 15 license renewal under the sections of regulation we 16 talked about today.

17 To the extent Intervenors do refer to 18 FENOC's aging management program at all, they fail to 19satisfy the requirements of 309(f)(1). They never, 20 not in their initial contention, not in the amended 21 contention, not in the reply brief and not here today 22 identified any reason, any basis, to say why FENOC's 23 AMP is not adequate for its purpose.

24 They don't say why they believe monitoring 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 921of core bores is insufficient. Even in the face of 1 the demonstrated success, the identification of crack 2propagation is why we're here today. They don't 3 identify any deficiency in the scope, method, 4 frequency, number or location of our inspections.

5 They say they want all of these aspects 6 expanded, but do not say why the enhancements FENOC 7has already submitted are not sufficient. When 8 pressed today, they identified none.

9 Of course, without having identified any 10 deficiency nor have they identified supporting basis, 11 either expert opinion or other technical authority, 12 again pressed today, they found none. They have not 13 demonstrated how their concerns or curiosities as they 14 characterized them impact any finding the staff must 15 make in order to issue a renewed license.

16 There's been some discussion today about 17 other concrete failure mechanisms such as freeze/thaw 18or microcrack. Intervenors never challenged the 19structures AMP. If they had, that too would have been 20 without basis and probably untimely, but they did not.

21 This discussion today does not cure that deficiency.

22 The shield building monitoring AMP, there 23 was a couple of housekeeping issues I'd like to 24address in this. The shield building monitoring AMP, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 922 there was a question about limited to visual 1inspection. And, Judge Trikouros, I think it was 2yours. I think you'll see that it's not limited to 3visual inspection. At page four of six, its visual 4 inspection supported by a nondestructive evaluation as 5 appropriate.

6 Similarly, the parallel program in the 7 current period took us to impulse response testing as 8a nondestructive evaluation technique. So it is 9 certainly not -- FENOC is not constrained to visual 10 testing.11 It does in fact refer indications to the 12corrective action program. And the corrective action 13 program as the Commission recognized when 14 incorporating or continuing the current license basis 15 and the renewal term is sufficient for a monitoring 16 AMP.17 FENOC has extent of condition evaluation, 18 extent of cause evaluation and its appropriate 19 developed correction actions under that appendix B 20program. So there should be no concern about the 21 adequacy of the corrective action program to address 22 concerns, issues, technical changes should they be 23 identified.

24 There was also a reference today to the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 923 thermal conductivity of the shield building and 1 whether we should be concerned about the depth of 2freezing. I think you'll see in the original root 3 cause that you discussed earlier today, Judge 4 Trikouros, at page 26, paragraph four they discuss the 5 properties of the concrete and conclude that the 6 thermal conductivity of the shield building was within 7 the acceptable range.

8 With respect to the proffered 9 environmental contention, whether we call it the SAMA 10 contention, the no alternative or other, that 11 contention failed for all the same reasons I addressed 12 related to safety basis. And I won't repeat them.

13 There have been some suggestions today 14 that FENOC doesn't understand the status of the shield 15building without basis. But those statements fall 16 into a pattern of tax on FENOC, the men and women of 17FENOC. It's not the three attorney sitting at the 18table. There are hard-working people at FENOC who 19 study these issues who have evaluated the condition of 20 the shield building, have looked at the calculations, 21 have assessed the calculations, answered the NRC's 22questions. They've been very open. They've been very 23 honest.24 We're here today because of the hard work 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 924 they did in identifying it, studying it and revising 1the AMP. Those kinds of suggestions are without basis 2 and I wanted to bring that to the Board's attention.

3 There are real people behind these allegations that 4 are thrown around.

5 To that point, Intervenors challenge a lot 6of things. They make allegations about the shield 7building AMP. They make allegations about FENOC 8 disclosing information. They make allegations about 9the staff's review. They even seem to be making 10 allegations about the Board's earlier decisions.

11 One thing they haven't really looked at is 12 the sufficiency of their own contention and explain 13today why it should be admitted. For the reasons, 14 we've discussed in our briefs and here today, the 15 proposed Contention 7 should be rejected in its 16entirety. Again, we appreciate this opportunity to 17 address you.

18 JUDGE FROEHLICH: Thank you.

19 MR. LODGE: Thank you. Let's dispose of 20the simple issues first. We timely filed. We timely 21 filed within 60 days. Actually, it was 62 days, but 22 that was because of the Labor Day holiday. I didn't 23 take Labor Day off.

24The timeliness requirements were met. The 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 925new and material information. I guess there's no new 1 and material information if you ignore the damaging 2 revelation that coating the shield building worsened 3 the problem. That is new and material information.

4 The unanswered end of that, however, is 5now what? What happens to the saturation status of 6 the outer 10 inches apparently 360 degrees around the 7shield building? We've adequately supported in a 8 timely fashion with material new information our 9 contention.

10 And there is some very hard working people 11no doubt at FirstEnergy. Intervenors question the 12direction of those efforts. We still haven't heard 13 that there's been a comprehensive analysis of the 14 entire shield building.

15 And let me explain something. You heard a 16 little while ago the representations of FENOC's 17 counsel about ice wedging. "Ice wedging" -- and I'm 18 reading from the FACE analysis -- "requires the three 19 following conditions to occur: a preexisting crack, 20 water present in the crack at localized saturation, an 21 ice wedge cycle that contains a freezing condition."

22So explain for me how it could be that there was no 23 ice wedging until they coated the shield building.

24 You had at some point laminar cracking.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 926You had subsurface laminar cracking. So you had 1 preexisting cracks. And you had water. And you had 2freezing and thawing. So how can it be that we're 3 sitting here haggling as lawyers making 4representations to the Board as to engineering or 5 scientific co nclusions that we kind of have no 6 business making instead of adjudicating this thing.

7I almost wanted to slip notes to the 8 Licensing Board as to cross examination questions to 9 ask counsel just to inquire behind that conclusory 10 assurance that FirstEnergy is giving you that "Oh no.

11 There's no ice wedging until we identified it from the 12 2012-2013 debacle" 13 In fact, I appreciate, the Intervenors 14 appreciate, the intensive scrutiny that the Board has 15applied to this issue and before today and in 2012.

16 We're not trying to relitigate the findings that Board 17 rendered in 2012. We are simply trying to make sure 18 that the record contained the historic data, the FOIA 19request of the facts. And the Board has certainly 20 reflected that it has gone back into the historic 21 filings and the historic facts which are quite 22 important and relevant to understanding things today.

23 PII has called the shield building 24situation unique. And indeed when you think how could 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 927it possibly be that more than 35 years after the 1 building is constructed someone apparently looks at 2old specs and realizing "Oh my God. We didn't coat 3 the shield building" and then has to reconstruct how 4 it came to be that there were laminar cracks.

5 But the problem that follows upon that is 6 that FirstEnergy confined its investigation to laminar 7and sublaminar cracking. The Intervenors did not 8 confine their analysis, their arguments and their 9 facts to merely laminar cracking. And we have been 10 proven, we've been vindicated, to some extent by what 11has happened and the discoveries made with better 12 technology and the error made by FirstEnergy in 13 coating the shield building.

14 The ACI monitoring advice does not cover 15the situation. I think that was pretty clearly shown.

16 And finally I often -- I've done a lot of 17 summary judgment and summary disposition litigation in 18my career as have a lot of attorneys. And probably as 19 Judges, your eyes glass over as mine do when you read 20 the recitations of standards and what you may and may 21 not consider in the course of determining whether or 22 not to admit a contention.

23 And I found my admittedly rather 24 boilerplate discussion of contention admissibility 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 928 requirements at the end of I think our reply that was 1filed October 10th. But I think these words mean 2something. We have gone way into this issue today.

3 We have explored it through the helpful discussions, 4 arguments and points made by all of the attorneys 5 sometimes with the advice of experts.

6 But the threshold admissibility 7 requirements of a contention should not be turned into 8a "fortress to deny intervention." And that's the 9 Power Authority of the State of New York was the most 10 recent recitation I could find of that from 2000 CLI-1100-22. But the principle has been elaborated and 12 applied since the mid '70s.

13 There's not a requirement on us, on the 14 Intervenors, on the Petitioners, today to have made 15 our substantial case at this stage. And very many 16 times during the course of the dialogue today, I've 17 had the distinct impression that we're being held to 18 this standard of proof beyond a reasonable doubt.

19 We have demonstrated from expert engineers 20 and perhaps other specialties in the employ of the NRC 21 and FirstEnergy a continuing history of -- I should 22 say a continuing saga that perhaps as I've said before 23may not be concluded even now. We have three 24 different root causes. I agree and admit that there 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 929is synergistic effect probably among some of those 1 causal factors.

2 But today isn't the day when you as the 3jurists in this proceeding weigh the evidence and 4 decide whether or not the Intervenors should be 5 rewarded by a chance to go to trial or punished by 6being denied that opportunity. Today is simply the 7 opportunity the Board has made for us to articulate in 8 detail what our respective positions are.

9 We believe that we aren't called upon to 10 make our case. We're here to indicate what facts or 11 expert opinions that we're relying on and we have 12articulated a contention that we believe must be 13adjudicated. That contention is that there are safety 14-- SER and NEPA implications which were spelled out 15 but at least explained and mentioned and referenced in 16the contention wording itself. There are Atomic 17 Energy Act implications.

18 The problem with the shield building is 19 that it is being treated as though it's pristine.

20 That despite incremental, damning evidence that there 21 is a deterioration going on notwithstanding the 22warnings of engineers on the Commission's own staff 23 that there could be a crisis that there could be a 24 very serious problem, notwithstanding new cracking 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 930 actually caused by the utility company itself, these 1 are surmountable obstacles that simply can be ignored 2 because right now that building is standing and it 3looks like it's performing its function. Therefore 4 the aging manag ement plan up to the this point has 5 been a success.

6 I appreciate that the aging management 7plan has identified further problems. Our concern 8 however is that there is not an end to the 9 identification of the damage that is being done that 10 is on going nor what the future holds in terms of 11 identification of new causes that follow upon new 12problems. We respectfully request that the panel 13 admit Contention 7 and that this matter be allowed to 14 go to trial. Thank you.

15JUDGE FROEHLICH: Thank you. At this 16 point, the Board would like to thank all parties for 17their arguments today. The answers that were given 18 will be helpful to the Board deciding the 19admissibility of this contention. The Board will take 20the transcript of this argument together with the 21 pleadings that have been filed in this docket and hope 22 that we show our decision before the end of the year.

23 I want to thank the ACRS for allowing us 24 to use the facilities while the ASLBP courtroom is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 931being refurbished. I want to thank our court reporter 1 for his work today.

2 If there is nothing further, thank you 3 all.4MR. HARRIS: Your Honor, transcript 5 corrections.

6JUDGE FROEHLICH: Transcript corrections.

7 We should have the transcript I believe within a week.

8 I consider just a day or perhaps one week to peruse it 9 and submit any transcript corrections. Will that be 10 acceptable to the parties?

11 MR. HARRIS: Your Honor, that may be. I 12 would mention that Mr. Lodge and both Ms. Kanatas and 13I have an argument next week at Fermi. So that might 14 impact our ability to turn that around very quickly 15 depending on what day that came out.

16JUDGE FROEHLICH: Why don't we make it 17 seven days from when it comes out and Fermi is an 18 argument one day.

19 MS. KANATAS: The 20th.

20 JUDGE FROEHLICH: Next Thursday.

21MS. KANATAS: Yes. We'll be traveling on 22 the 19th and returning on the 21st.

23JUDGE FROEHLICH: Proposed date for 24 transcript corrections, counsel?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 932MS. KANATAS: Happy Thanksgiving. No.

1 Your Honor, I'll leave it to you.

2 (Off microphone comments) 3JUDGE FROEHLICH: What's the Monday after 4 Thanksgiving?

5JUDGE TRIKOUROS: December 1st. Does that 6 work for everyone?

7 MR. LODGE: Sure.

8 MR. MATTHEWS: Fine.

9JUDGE TRIKOUROS: For transcript 10 corrections. They're very controversial. December 11 1st for transcript corrections.

12 MS. KANATAS: All right. Thank you.

13JUDGE FROEHLICH: Thank you. We are 14 adjourned.

15 (Whereupon, at 3:54 p.m., the above-16 entitled matter was concluded.)

17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433