ML14330A259

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

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

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSIONTitle:Oral Arguments in the Matter of:

Fermi Nuclear Power Plant Unit 2Docket Number:50-341-LR ASLBP Number:14-933-01-LR-BD01Location:Monroe, Michigan Date:Thursday, November 20, 2014Work Order No.:NRC-1233Pages 1-233 NEAL R. GROSS AND CO., INC.

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

Washington, D.C. 20005 (202) 234-4433 1 UNITED STATES OF AMERICA 1 BEFORE THE NUCLEAR REGULATORY COMMISSION 2 Before the Atomic Safety and Licensing Board 3+ + + + +

4 ORAL ARGUMENTS 5------------------------------

6 IN THE MATTER OF: Docket No.

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

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

11 Thursday 12 November 20, 2014 13 9:00 a.m.14 Monroe County Courthouse 15 125 East Second Street 16 Board Meeting Room 17 Monroe, Michigan 18 BEFORE: 19 Ronald Spritzer, Administrative Judge 20 Nicholas G. Trikouros, Administrative Judge 21 Gary S. Arnold, Administrative 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 2 PRESENT: 1 For the Office of Commission Appellate:

2 Administrative Judges:

3 Ronald Spritzer 4 Nicholas G. Trikouros 5 Gary S. Arnold 6 7 NRC Staff:

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

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

19 Terry Lodge 20 Paul Gunter 21 Kevin Kemps 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 3 Counsel for CRAFT (Afternoon Session):

1 James Sherman 2 Jessie Pauline Collins 3 Sandra Bihn 4 David Schonberger 5 6 7

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 4 P R O C E E D I N G S 1 (9:01 a.m.)

2JUDGE SPRITZER: Good morning. My name is 3Ronald Spritzer. I am an Administrative Judge with 4the Atomic Safety Licensing Board panel. We are here 5 today to hold oral argument on contentions in the case 6 of DTE Electric Company, the application for the 7 licensing of Fermi Nuclear Power Plant Unit 2. This 8 is Docket No. 50-341, also ASLBP No. 14-933-01-LR-9 BD01.10 The purpose today, for the members of the 11 public who may be here, is to review the arguments for 12 and against the addition of various contentions of 13legal claims that have been advanced in this 14 proceeding. I've already identified myself. Again, 15 my name is Ron Spritzer, I'm an Administrative Judge 16and an attorney. I'll ask my two colleagues to my 17 right and left to identify themselves.

18JUDGE ARNOLD: I am Judge Arnold. I have 19 been a Technical Administrative Judge on the panel for 20six years. I have a Ph.D. in Nuclear Engineering and 21 my original career was in the Naval Reactors Program.

22JUDGE TRIKOUROS: I am Nick Trikouros.

23 I've been a full-time Judge for nine years. My 24 degrees are from Fordham and NYU and NYU Polytechnic 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 5 Institute in Physics and Nuclear Engineering.

1JUDGE SPRITZER: In addition, we have a 2court reporter to my far left. Next to him is Mr. Joe 3Deucher who is our technical expert. If we're having 4 any problems with microphones or any other kind of 5electronic technical issues, he's the guy to ask. And 6 our law clerk, Nicole Pepperl, is next to him.

7Why don't we go through and have the 8 representatives who are seated up here in the front 9 identify themselves? We'll get to CRAFT, we'll give 10 you an opportunity to identify CRAFT representatives.

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

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

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

19JUDGE SPRITZER: Great, glad to have you.

20 And for the Joint Intervenors?

21MR. LODGE: Good morning, Your Honors.

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6 Seated to my left is Paul Gunter, he will be the lead 1presenter on our first contention. I will handle 2number two. And behind me is Kevin Kemps who will be 3 on contention number four.

4JUDGE SPRITZER: Great, thank you. And 5 for the Applicant?

6MR. SMITH: My name is Tyson Smith with 7Winston & Strawn. With me I have Jon Christinidis who 8 is an attorney for DTE Electric Company. And Derani 9 Reddick is a colleague of mine at Winston & Strawn.

10JUDGE SPRITZER: Great. Before I proceed 11 any further, I don't know whether there are any county 12 government representatives here, but we'd like to 13 thank them for the opportunity to once again use their 14facilities. This is my first time here and the people 15 have been extraordinarily accommodating and helpful in 16 making it possible for us to have this hearing.

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

22 Our plan, our tentative plan which is 23 always of course subject to, if we can get through the 24Beyond Nuclear contention this morning. Hopefully by 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7 noon, we will at that point break for lunch, and then 1 we would take up the CRAFT contentions in the 2afternoon. However, if we happen to finish earlier 3 with Beyond Nuclear contentions, we'll move into those 4before lunch. So, CRAFT should be prepared to move 5 forward before lunch if that's necessary.

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

18We've been over, we have an order that 19 sets forth the order of arguments, so I assume 20everyone knows that. We'll be starting with the 21 Beyond Nuclear contentions, Contention 1 followed by 22Contention 2, then Contention 4. Beyond Nuclear Joint 23 Intervenors, or Joint Petitioners I guess I should 24 refer to you as, you'll have 15 minutes per 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 8 but you may reserve about five minutes for rebuttal.

1 And I believe we have 10 minutes for staff and for the 2 panel.3 And so we've covered breaks, we'll take it 4 around 11:00 or 10:30 to 11:00, depending on where we 5are. I'll ask my colleagues if they have anything to 6 add before we get started.

7JUDGE ARNOLD: Well, first off, I want to 8 clear up some, Judge Spritzer keeps saying so much 9time for presentation. You can expect most of your 10 presentation time to be occupied answering our 11questions. This is not an opportunity to provide new 12information. We are basically looking for an 13 explanation of the information that's in the petition 14 itself.15JUDGE SPRITZER: Yes, that's true.

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

21All right. Before we get started, do any 22of the representatives have any questions for us? If 23not, hearing no questions, we'll move to Beyond 24 Nuclear Contention 1. For any members of 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 9 who happen to be here, this contention concerns, as 1 several of the Beyond Nuclear contentions, concerns 2 something called Severe Accident and Mitigation 3 Alternatives which is something that the Applicant 4 initially or later the Nuclear Regulatory Commission 5 in its environmental impact statement are required to 6 take into account, that is, alternative action or 7 procedures that would help mitigate, reduce the 8 likelihood of or mitigate the effects of a severe 9 accident should one occur no matter how unlikely that 10 may actually be.

11All right. Why don't we start with Beyond 12 Nuclear's Contention 1?

13MR. GUNTER: Okay, thank you. All right.

14 That was the all clear I hope.

15COURT REPORTER: We might just want to 16 have you move it back just a little.

17 MR. GUNTER: Okay, how is that?

18 JUDGE SPRITZER: Fine for us.

19MR. GUNTER: Okay, good. Thank you and 20good morning. My name is Paul Gunter and I am with 21the Reactor Oversight Project at Beyond Nuclear. And 22 I think that the Judges have basically given the 23 general overview here that this Contention 1 deals 24 with 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 10 (PA microphone feedback.)

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

20 The staff states that --

21JUDGE SPRITZER: Mr. Gunter, let me ask a 22question on that. As I understand it, they either 23already have or are under NRC order to have the 24 hardened vents. I take it what you want them to add 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11 is some type of, what is it called, engineered filter 1 that would remove radioactive particles in the event 2 of a severe accident?

3MR. GUNTER: Judge Spritzer, what we 4 really want is for the Applicant to do a thorough NEPA 5analysis. It's also incumbent upon the Agency to 6require DTE to meet the standard of NEPA law. And 7 that's, so we're not asking for a proceeding here on 8a requirement for an action on the part of DTE. What 9 we're asking for is that a thorough analysis be done, 10 and we find the Applicant's application is deficient 11 upon this area.

12 They have outlined that they did a review 13 with SAMA 123. There is no dispute there. What the 14 dispute is, is that the staff in CEQ 2012-01-57, after 15 going through the backfit analysis and all the 16 guidance documents for a backfit analysis, the various 17NUREGs, they determined that when you do the 18 quantitative and the qualitative analysis, as is 19 incumbent upon this review for a substantial safety 20 enhancement which is what the staff found for the 21filtered vent, that you come up with a cost benefit 22 analysis.23 JUDGE SPRITZER: But was that evaluation 24 done specifically for Fermi 2 or was this a generic 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12 Mark 1 containment?

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

2 Now, NEPA requires a site specific analysis, and 3 that's where we find the dispute that after, you know, 4 very, you know, we reviewed several Advisory Committee 5 on Reactor Safeguard proceedings. There's extensive 6 staff transcribed testimony that points to a very 7 strong argument for, and a well-documented record 8 again with following all of the procedures before the 9 NRC that concluded that when you do the hard look, you 10 find that the filtered vent is cost beneficial. And 11--12JUDGE TRIKOUROS: Mr. Gunter, let me 13 interrupt you.

14 MR. GUNTER: Yes, sir.

15JUDGE TRIKOUROS: Are you referring 16specifically to the SAMA analysis in the ERs? Is that 17 what you're saying that NEPA should look at that, 18requires them to look at that? Where are you 19 referring to?

20MR. GUNTER: The Severe Accident and 21 Mitigation analysis.

22JUDGE TRIKOUROS: Is that what you're 23 referring to?

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13JUDGE TRIKOUROS: Is that what you're 1 referring to?

2MR. GUNTER: Yes, sir. Specifically, 3 we're looking at the SAMA alternative for this 4 particularly vulnerable containment system. I think 5 we all acknowledge that the Mark 1 pressure 6suppression system is vulnerable. It's no longer 7hypothetical or theoretical. It's demonstrated by the 8Fukushima Daiichi accident. And so, it's now 9 incumbent upon the Agency and the Applicant to take 10 this severe accident initiative very seriously and to 11 look at it in the context of NEPA law.

12 JUDGE TRIKOUROS: So, you're --

13JUDGE SPRITZER: Let me just interrupt for 14a second. One thing I forgot to mention earlier, 15 Nicole will be holding up the cards. Let's see, you 16 didn't ask to reserve five minutes for rebuttal. Do 17 you want to reserve five minutes for rebuttal?

18 MR. GUNTER: Yes, sir.

19JUDGE SPRITZER: Okay. So, you have five 20minutes left. She will be holding up a yellow card in 21 about three minutes.

22MR. GUNTER: So, was that three minutes 23 for real or that's where we're at right now?

24MS. PEPPERL: No, no, no, I was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14 demonstrating.

1MR. GUNTER: Okay, thank you. It was a 2 fast 15.3JUDGE SPRITZER: I want to clear this up, 4 within your official ten minutes, but for everybody's 5 benefit, we will be holding up a three-minute card 6 when you're within three minutes of running out of 7time. And she'll hold up a red card when your time 8expired. However, if you're in the middle of a 9question or the Board has additional questions for 10 you, we certainly want to give you the opportunity to 11 answer them.

12 MR. GUNTER: Thank you.

13JUDGE SPRITZER: It's more interesting to 14 get your answer than finishing at a specific point in 15 time. Please continue.

16MR. GUNTER: Well, I think again, you 17 know, when the staff, the root of our contention and 18 the genuine dispute here is that the staff did follow 19 regulatory guidance and found a cost-justified, 20 substantial safety enhancement.

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

23MR. GUNTER: That's the filtered vent, 24 yes, sir.25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15JUDGE SPRITZER: Filtered vent, as opposed 1 to an unfiltered vent?

2MR. GUNTER: As opposed to an unfiltered, 3 hardened vent.

4 JUDGE SPRITZER: And what --

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

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

18JUDGE SPRITZER: I think the NRC staff 19 document you're referring to is the one where they say 20 in terms of quantitative costs and benefits, the 21 filters don't meet the quantitative test but if you 22 add certain qualitative factors including defense in 23 depth, they think they are advisable.

24MR. GUNTER: And that's, yes, sir, 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 16 that's where the substantial safety enhancement 1 determination is important.

2JUDGE SPRITZER: Now, it doesn't mean that 3they understood that. Did you find anywhere in the 4records where the Applicant took into account or 5 grasped that staff recommendation?

6MR. GUNTER: No, sir. That's, this is our 7point. In the response to the Petitioner's request 8 for hearing, both the Applicant and the staff were 9 silent on CEQ 2012-01-57.

10JUDGE SPRITZER: Now, you also referred to 11a National Academy of Sciences report. Again, I take 12 it this report was not directed specifically at Fermi 13 2 but is more a general review of how the NRC had done 14 a backfit analysis for again these engineered filters?

15MR. GUNTER: Yes, sir. In Appendix L, in 16 the NAS study, references the cost benefit analysis.

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

21JUDGE SPRITZER: And they also refer, 22 again the National Academy of Sciences report, if I 23 recall it, it essentially criticized or suggested that 24 the NRC had used a six-billion-dollar figure for 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 17 cost of a severe accident at the Peach Bottom Plant.

1 MR. GUNTER: Yes, sir.

2JUDGE SPRITZER: Whereas, they said, look 3 at Fukushima and the cost of that severe accident was 4 more in the nature of $200 billion.

5 MR. GUNTER: Yes, sir.

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

10MR. GUNTER: Well, I think that, our 11 interpretation is that the National Academy said that 12 you need to incorporate more broadly the qualitative 13factors. And again, these are factors that still 14 don't have, they're not bounded by any certainty now, 15 and so again that's a very important factor as we go 16through the requirements of NEPA and the backfit 17 analysis and the associated NUREGs that incorporate 18 the need for both quantitative and qualitative 19 analysis.

20 And you know, I just, let me just check 21 here with my notes really quick because the SAMA for 22 the hardened vent, the filtered hardened vent that DTE 23 undertook, you know, it's not only silent on the CEQ 24 but they're also silent on whether or not 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 18 incorporated external events, whether or not they 1 thoroughly incorporated land contamination, how they 2 factored that in. And I think that that's the level 3 of detail that NEPA requires an answer.

4JUDGE SPRITZER: Including, you have five 5 minutes left total or five minutes left on the 6 initial.7MS. PEPPERL: About four minutes actually.

8JUDGE ARNOLD: I think this is kind of 9 irrelevant because we've got questions that are going 10 to go long beyond ten minutes.

11 JUDGE SPRITZER: Okay, go ahead.

12JUDGE ARNOLD: Sure, I can start. I have 13 questions in that I find some of the statements in the 14 contention to be very g eneral rather than more 15specific. So, I want to go through and ask you to 16clarify some of the statements. For instance, on page 17 7, the last paragraph says, "The deficiency 18 highlighted in this contention has enormous 19 independent health and safety significance." 20 Now, this is a contention on SAMA which is 21 a NEPA, an environmental law, and really doesn't 22factor into the safety aspects of the plant. So, how 23 do you get that this has health and safety 24 connections?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19MR. GUNTER: The impacts of unfiltered 1 radioactive releases raises a concern for the long-2 term consequences of land contamination and population 3relocations. And that carries with it health impacts.

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

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

20JUDGE ARNOLD: In that same paragraph, you 21 say, "Applicant does not adequately or accurately 22 account for the long-recognized design and structural 23 vulnerabilities in the Mark 1 pressure suppression 24 containment system," as if there are many 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 20vulnerabilities. What specifically are you talking 1 about?2MR. GUNTER: We're talking about the fact 3 that Generic Letter 89-16 did not go through a safety 4evaluation. And so, this was for the hardened vent 5 that was put on all Mark 1's and that Generic Letter 6 89-16 basically, the NRC requested the hardened vent 7 be installed on these Mark 1's because of where NUREG 8 1150 recognized that the containment was very likely 9to fail. This has been acknowledged and I think it's 10 in our statements that, as early as 1972, this 11 vulnerability to failure because the Mark 1 12 containment is essentially undersized for the, you 13 know, it was never evaluated --

14JUDGE ARNOLD: So, briefly, are you saying 15 that they failed to account for the fact that the 16 containment can fail?

17MR. GUNTER: They, the containment can 18 fail early and the containment never, and the 19 subsequent mitigation actions such as Generic Letter 20 89-16 did not account for severe accidents.

21JUDGE ARNOLD: On page 8, in paragraph 22 1.3.1, "Petitioners contend that the absence of 23 analysis and neglect of mitigating alternatives 24 including engineered external high capacity filters 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 21 hardened containment vents may result in unanalyzed, 1 unmitigated, and uncontrolled releases of 2radioactivity to the environment." Okay, so right 3 there you specifically say they didn't analyze high 4capacity filters. Were there other alternatives that 5you believe they did not analyze? Or did not 6 adequately analyze?

7MR. GUNTER: We didn't articulate that in 8the contention, but yes. There are bypass pathways 9 within the containment that --

10 (PA microphone feedback.)

11 MR. GUNTER: Is that me?

12 JUDGE ARNOLD: Keep going.

13MR. GUNTER: Okay. For example, you know, 14 right now the way that the current order EA-2013-109 15 is progressing, and we've been watching this very 16 carefully, a lot of the Applicant's eggs are going 17 into this basket that they can rely upon maintaining 18an open vent path through the wet well. And that 19 raises some concerns because the wet well can in fact 20get flooded, and if you flood the wet well, you 21exclude the use of that vent path. And while there 22 may be other vent paths out through the dry well, many 23 of them vent directly into the containment building, 24 or into the reactor building, and thereby raises 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 22 issues on hydrogen gas generation, detonation ignition 1 points.2 So, yes, there are a number of extenuating 3 issues here that what the CEQ 2012-01-57 provides in 4 terms of answering defense in depth is that a filter 5 venting system that's hardened both off the wet well 6and the dry well gives you that defense in depth. And 7 they believe that it's cost beneficial and that they 8 arrived at this idea that it is a substantial safety 9 enhancement.

10JUDGE ARNOLD: Let me just explain what 11 the problem is with the lack of specificity here. A 12 contention, if it's admissible, has to be sufficiently 13 specific that an applicant or a licensee knows what 14they have to defend against. They can defend against 15 a claim that it lacks an analysis of a filtered vent 16 but they can't defend against a claim that, and they 17 didn't analyze other things,' because they just don't 18 know what the contention is.

19MR. GUNTER: Right. Well, the filter 20 component addresses the defense in depth issue that 21 these other extenuating circumstances involve.

22JUDGE SPRITZER: So, for you, the primary 23 focus of this contention is r eally the lack in the 24 SAMA relating 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 23 MR. GUNTER: The filter.

1 JUDGE SPRITZER: The filtered vents?

2 MR. GUNTER: Yes, sir.

3 JUDGE SPRITZER: Okay.

4JUDGE TRIKOUROS: Yes, well, first of all, 5 you keep discussing the Fukushima accident, and I have 6no problem with that. But one thing I want to make 7sure is that we really understand the Fukushima 8 accident and that we look at it in its entirety in 9 terms of what also occurred that was good as opposed 10to what was bad. In the first regard, I'd like to say 11 that, is it your assertion that only Mark 1 BWRs at 12 that site would have experienced severe accident 13 conditions given the conditions that occurred in 14 Fukushima?

15MR. GUNTER: Well, we're only dealing with 16 the Mark, we're de aling with the Mark 1 in this 17proceeding. You know, I'm not going to make 18 assertions beyond that.

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

24 MR. GUNTER: Yes, sir.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 24JUDGE TRIKOUROS: Yes. I think what I 1 should love to put on the record here is I think any 2 PWR or BWR, other than the advanced reactors that were 3 at that Fukushima site would likely have experienced 4 the melt.5 MR. GUNTER: Yes.

6JUDGE TRIKOUROS: Most certainly, if they 7lost DC power. So, you know, I just want to put that 8 in perspective.

9MR. GUNTER: Yes, sir. But you know, I 10 think that when you start incorporating the, you know, 11 the analysis, we've now moved beyond theoretical 12analysis in that we need to incorporate experience 13 and, you know, where the Applicant could say that, 14 well, you know, the odds here are so remote that we 15don't really have to worry about this. But we've had, 16 you know, now three severe accidents in roughly the 17 last three decades, and three of those, one of those 18 accidents involved three Mark 1's that were operating.

19 And so, that's why we, you know, feel that 20 the CEQ 2012-01-57, the fact that it's, just that the 21 OGC and the Applicant are silent on that, we find 22there is no justification for that. They need to 23 address reality and they need to address what the 24 staff provided in terms of regulatory procedure, 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 25 backfit rule and guidance.

1JUDGE ARNOLD: On page 10 of the 2 contention, halfway down the page, you said, "However, 3 the Petitioners point out that the Applicant's 4 description of the Mark 1 pressure suppression 5 containment does not acknowledge, factor in, or 6 incorporate analysis of, and otherwise ignores the 7 long recognized and still unresolved vulnerabilities 8 of the General Electric Mark 1 boiling water reactor 9 pressure suppression containment system." 10 Are you contending that there is 11 information in their containment description that is 12 incorrect?

13MR. GUNTER: Yes, sir. There is no 14 reliable containment on a Mark 1, containment being 15 radiation containment.

16JUDGE ARNOLD: Can you point to what in 17 their description is wrong?

18MR. GUNTER: Well, that the, I think that 19 what we point to is the evidence and conclusions and 20 findings of CEQ 2012-01-57, that you need, that in 21 order to have the defense in depth, that in order to 22 meet the letter of NEPA, that you put a filter on a 23 venting system, and that provides with the defense in 24 depth of containment specifically for containing 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26 radiation under severe accident conditions.

1JUDGE ARNOLD: Now, if you say their 2 description of the containment is incorrect, how is 3 this not a concern with the current licensing basis?

4MR. GUNTER: Well, we're not, you know, 5 again we have raised within the context of the 6contention generic design criteria 16. But you know, 7 as you've pointed out, I think that's more background 8 than it is relative to this particular proceeding 9 because we're look at the SAMA analysis for the 10 license extension.

11JUDGE ARNOLD: So, you're not specifically 12 challenging their description; you're just using that 13 as evidence on this?

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

15JUDGE ARNOLD: Okay. Page 11, halfway 16 down the page, "The NRC further concluded that the 17 demonstrated safety margin," oh, this is, yes, where 18 first you're talking about the general design 19criteria. Is this another background to support your 20 SAMA claim?

21MR. GUNTER: Yes, sir. They, you know, 22 the fact is that it's well established that the 23 containment is vulnerable and that, so, in light of 24 the severe accident analysis that they're currently 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27 required to go through for the license extension, that 1 their SAMA analysis on the filtered vent needs to 2 incorporate these issues.

3JUDGE TRIKOUROS: Yes, Mr. Gunter, your 4 evaluation in these pages that Judge Arnold is talking 5 about are dealing with the issues raised by Dr.

6 Hanauer years ago.

7 JUDGE SPRITZER: Speak into the mic.

8JUDGE TRIKOUROS: Yes, unfortunately, this 9 doesn't reach over. Is that better?

10 MR. GUNTER: Yes. Yes, sir.

11JUDGE TRIKOUROS: Okay. And those 12 vulnerabilities were identified years ago, something 13in the range of 40 years ago actually. And there were 14 extensive NRC licensing activities associated with all 15 of these Mark 1 issues, and there were modifications 16made to the plants to overcome these issues. Are 17 these, is this what we're talking about, those 18 vulnerabilities that were identified back in the 70's?

19MR. GUNTER: I think that what we're 20 talking about in the context of this particular SAMA 21 is the hardened vent that was installed under Generic 22Letter 89-16. And those were installed by TEPCO at 23 Fukushima Units 1 through 6 on the Mark 1's and the 24 Mark 2 there. And they did not provide the reliable 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28 containment under severe accident conditions.

1JUDGE TRIKOUROS: Yes, I understand. And 2 even in our country, the hardened vents are very, the 3 hardened vent designs were plant specific, so I agree 4with that. But you know, we aren't dealing with 5 orders that have been issued by the Nuclear Regulatory 6 Commission to modify all of this, right?

7MR. GUNTER: Yes, sir. But we're also 8 dealing with the National Environmental Policy Act and 9the requirement to do the hard look analysis. And so, 10 I think that's what we have to incorporate here.

11 JUDGE TRIKOUROS: In the SAMA analysis?

12 MR. GUNTER: Yes, sir.

13JUDGE TRIKOUROS: All right. And so, 14 specifically, the Applicant, my understanding, I 15 looked at that and came up with something like a 16 factor of 40, not cost benefit on the basis of 17 something like a factor of 40.

18 MR. GUNTER: Yes, sir. Therein lies the 19 genuine dispute that we have alleged because they do 20 not address, they are silent on CEQ 2012-01-57. And 21 a large body of NRC's own analysis that determined to 22 the contrary that the filtered vent was a cost 23 beneficial substantial safety enhancement, there's a 24 dispute 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 29JUDGE ARNOLD: I've still got plenty more.

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

8MR. GUNTER: I'm saying it needs to be 9 based on what we've seen to date, that in fact we now 10 have, we don't have a theoretical analysis, we have 11 real life demonstrations with three operating Mark 1's 12that failed the containment. And the severe accidents 13are not remote but they are credible. And we view the 14 Fukushima Daiichi accident as a prolonged station 15 blackout accident that happened three times.

16 JUDGE ARNOLD: Once again, okay, on page 1718, being specific, "Petitioners contend that the 18 state of the art SAMA alternatives that significantly 19 reduce adverse radiological contamination to the 20 environment are readily available for install today 21 and applicable to the requested license renewal period 22 but have not been analyzed in the Applicant's 23environmental report." So far, the specific 24 alternatives I've heard of is a filter in the vent.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30 Is there anything else specifically that should be 1 analyzed in SAMA and hasn't been?

2MR. GUNTER: Well, that's the focus of our 3 contention.

4 JUDGE ARNOLD: Okay, agreed.

5JUDGE TRIKOUROS: Can I ask the staff one 6question here? What's the status of filtered vents in 7 the NRC licensing --

8MR. HARRIS: The status of filtered vents, 9 and it's actually, I believe the title of the 10 rulemaking is, it's not, it's filtering strategies.

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

20 It grew up out of the orders and the CEQ 21 paper that we've been talking about where the 22 Commission took with the staff, actually, you know, 23 suggested that we want to require severe accident 24 capable events, but staff, please take, you know, as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31 an action item to go look at the filtering, you know, 1 in a rulemaking because they did not accept what the 2 staff had recommended at that point.

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

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

9JUDGE ARNOLD: Judge Trikouros, we're not 10 supposed to be giving evidence.

11MR. GUNTER: But I think that the Judge 12 does point out in reply is that the fact that the NRC 13 is ongoing with rulemaking on the filtered vent and 14 how it may or may not affect the Fermi 2 license 15renewal proceeding, now is our time. We have standing 16 to address a specific aspect of what NEPA requires in 17 that NEPA mitigation alternative analysis is used in 18 site specific license extensions to identify if there 19 are any additional mitigation alternatives, hardware 20 or procedures, that are cost beneficial to implement 21 at Fermi 2 that can reduce the severe accident risk 22 probability and consequence. So, now is our time.

23 This is what NEPA provides us with. And 24 not to be put off three, four, five, indefinite, 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 32 know, years from now, this is our only opportunity 1 and, you know, we wish to exercise it.

2JUDGE SPRITZER: I take it, however, that 3 if the staff or the NRC did by regulation require 4 vents, this contention would effectively become --

5 MR. GUNTER: Moot.

6 JUDGE SPRITZER: Would it not?

7MR. GUNTER: If the filtered, if CEQ 2012-8 01-57 option 3 were implemented, this contention would 9 be moot.10JUDGE ARNOLD: On page 20, the top 11 paragraph, last sentence says, "These uncontrolled and 12 unfiltered radiological releases and their 13 environmental consequences are not thoroughly or 14 adequately addressed by this Applicant's SAMA 15analysis." Now, originally, you were saying the 16filtered vent wasn't analyzed, and now here you're 17saying the unfiltered releases weren't evaluated. So, 18 is this an expansion of the contention or am I just 19 reading this wrong?

20MR. GUNTER: If I understand correctly, 21can I see this? Do you have it right here? Can I 22 have one minute please or less even?

23 (Pause.)24MR. GUNTER: The concern here is again 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 33that there are pathways of the pressure suppression 1 containment, dry well and wet well, that without a 2 filter aren't analyzed. I mean you can flood up the 3 wet well and preclude the venting for a Mark 1 for 4Fermi 2. And while you may have other vent paths off 5 of the dry well, they are not adequately analyzed 6 because they open the operator to the same 7 vulnerabilities that we saw at Fukushima where 8 hydrogen venting right along with that radiation is 9 trapped in the reactor building itself, the secondary 10 containment where it can find an ignition point and 11 you have a catastrophic failure.

12 And I think that, again our point here is 13 that this is all analyzed in CEQ 2012-01-57 and the 14 staff's conclusion is that the defense in depth 15 involves a SAMA alternative for a filtered vent of 16 both the dry well and the wet well. And that's been 17 rejected by the Applicant and there again lies our 18 argument that we need to review this as a genuine 19 dispute.20JUDGE ARNOLD: Can you tell me of any 21 legal requirement to address CEQ letters in a 22 relicensing application?

23MR. GUNTER: I think again that we go back 24 to the NEPA mitigation alternative analysis, that, 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 34 know, it's you, it's there for the site specific 1 licensing extension to identify viable, cost 2 beneficial mitigation alternatives.

3JUDGE SPRITZER: Okay, let's move on.

4 We've gone well over your time.

5 MR. GUNTER: Thank you so much.

6JUDGE SPRITZER: But that's because you 7 were answering our questions and we will not penalize 8you for the last five minutes of rebuttal. Let's move 9 on to the Applicant.

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

17JUDGE SPRITZER: But the worst of the 18 statements though is to the effect of the adequacy as 19 opposed to omission, so the adequacy of doing the SAMA 20analysis as opposed to omissions from it. It's really 21a hodgepodge. It's got a whole bunch of stuff in 22there. We've obviously spent a great deal of time 23 narrowing and focusing on the issue of this particular 24 SAMA but I take it this was actually considered, 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 35 filtered vent, is that correct?

1 MR. SMITH: That's correct.

2 JUDGE SPRITZER: It was in SAMA --

3 MR. SMITH: 123.

4JUDGE SPRITZER: 123. So, it's really, 5you know, focusing on the adequacy of the 6 consideration and particularly the question of whether 7 this staff document and also the National Academy 8 report, perhaps some other specific documents should 9have been evaluated. So, can you tell me, were those 10considered in any way in the SAMA analysis? Was it 11 done for the ER or that particular SAMA 123?

12MR. SMITH: Sure. That SAMA 123, the SAMA 13 analysis that was performed for Fermi was based on 14 NRC-endorsed industry guidance for performing SAMA 15analyses. It takes into account the plant condition, 16 looks at a variety of accident sequences, and 17 postulates the consequences in terms of dose and 18 offsite consequences, looks at how those can be 19reduced by a variety of alternatives. That is the 20 analysis that we presented.

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 36 Gunter says repeatedly that we were silent on that, 1 the reason for that is it wasn't really addressed 2 until the report.

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

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

24 JUDGE SPRITZER: Okay. Let me just add, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 37 I may be confused as to which document we're talking 1 about, on page 13, this is the --

2 MR. SMITH: Correct.

3JUDGE SPRITZER: They do refer to this NRC 4 staff document, CEQ 2012-01-57 and quote from it 5 including the statement that when you add qualitative 6 factors, I'm paraphrasing here, I'm not quoting 7 literally, but when you add in qualitative factors, 8 that that would tip the balance in favor of the 9filter. Was that specific document and its conclusion 10 that I just mentioned, was that analyzed in some way 11 in preparing the SAMA analysis or SAMA 123 or for that 12 matter any other SAMA?

13MR. SMITH: Well, I'll point you to the 14 sentence right before the one you read which says 15that, "A comparison of the quantifiable cost and 16 benefits of the modifications would not by themselves 17 demonstrate that the benefits exceed the associated 18 costs." 19JUDGE SPRITZER: Right. No, I understand 20 that.21MR. SMITH: So, the staff itself 22 acknowledges that just by using standard regulatory 23 analysis techniques, there is no benefit. It's only 24 when they consider these extra factors, qualitative 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 38 factors, that they were able to, that the staff 1concluded that there were benefits. That's not the 2 outcome of the Commission's vote which is to proceed 3 with a rulemaking to assess whether or not filtered 4vents are warranted. So, if the question is does our 5 SAMA analysis expressly address qualitative factors, 6 the answer is no because that's not addressed in 7 current NRC accepted regulatory guidance, nor is that 8 the purpose of the SAMA analysis.

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

14 MR. SMITH: Absolutely. And --

15JUDGE SPRITZER: All right. Was there 16 any, you mentioned guidance, was there any regulation 17 or Commission decision, CLI decision that you can 18 point us to that addresses that issue?

19MR. SMITH: Sure. And per regulation 20 first, I'll point to 10 CFR 51.71(d) which says that 21 environmental impact statements should, to the fullest 22 extent practicable, quantify the various factors 23 considered. And that's exactly what we did here.

24JUDGE SPRITZER: If I remember though, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 39 doesn't that also say, address qualitative factors?

1 This is 51.71(d)?

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

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

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

23JUDGE TRIKOUROS: While Judge Arnold is 24 looking through his notes, let me ask you, would 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 40 SAMA analysis you've done back years ago, would that 1 have allowed for the vents that are there now --

2MR. SMITH: I can't speculate as to 3 whether that would have been addressed that way at the 4time or not. I think some of these questions about 5the filtered vents obviously raise, fundamentally are 6 current licensing basis issues. Their questions are 7 what's the adequate level of safety, and that's a 8 question that the Commission is currently grappling 9with now in a rulemaking on filtering strategies. And 10 to suggest that somehow that issue is directly related 11 to the SAMA analysis here, I don't see how that's 12 possible and there's certainly no support for that.

13JUDGE SPRITZER: Let me see if I can, that 14 raises a question that I'll also ask to staff, but is 15 it your position that the fact that, just the fact 16 that the Commission is considering some additional 17 requirements with respect to filtered vents, does that 18 remove this contention regarding the SAMA 123 from our 19 jurisdiction?

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

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

5MR. SMITH: Yes, that's correct. But 6 their argument that you didn't do a good enough job, 7 that argument must be supported by some reference to 8our SAMA analysis. And the Commission has repeatedly 9 said that the question is not whether there are other 10 ways you could do that but whether the way that we did 11it is unreasonable. And they certainly haven't shown 12that here. They haven't shown what factor or what 13 events or what would have changed the outcome of the 14 SAMA analysis such that SAMA 123 would become cost 15 beneficial, either the cost of installing the filtered 16 vent is less or that the risk is so great that it 17 would make it cost beneficial. And they haven't put 18 forth sufficient information to establish and do not 19 speak on that issue.

20JUDGE SPRITZER: Let me just ask one other 21thing and then I'll turn it over to Judge Arnold. We 22were talking earlier about 10 CFR 51.71(d). That 23 actually is part of a section that deals with the 24 draft environmental impact statement and its contents.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 42 Your client of course prepared the environmental 1report. But do you agree that the language in 2 51.71(d) is something we can look at in terms of 3 defining what the environmental report should contain 4 or no?5MR. SMITH: Yes. I mean it's instructive.

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

23 JUDGE SPRITZER: Well, 51.71(d) does say 24 though that to the extent there are important 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 43 qualitative considerations or factors that you cannot 1 quantify, these considerations or factors will be 2 discussed in qualitative terms. Can you point us to 3some, any part of the SAMA analysis with respect to 4SAMA 123 that did that? If not, if you can't give me 5 that, I'll let --

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

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 44 JUDGE SPRITZER: All right.

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

3JUDGE SPRITZER: All right. You're off 4 the hook I guess. There is this other issue related 5to the National Academy of Sciences report. My rough 6 understanding of how the SAMA analysis would be done 7 is, one part of it is that at some point you would 8 estimate the cost of the severe accident that you're 9analyzing, environmental and public health costs, is 10 that --11MR. SMITH: That's correct. It's based on 12 a probabilistic model that looks at a variety of 13 different scenarios and comes with named consequences 14 based on a year's worth of meteorological data.

15JUDGE ARNOLD: But it's not just an 16 estimate plucked out of the air?

17MR. SMITH: Correct, it's not a 18deterministic analysis. It doesn't come up with a 19conclusion. The number is, you're referencing $200 20billion versus $6 billion. That's not how the SAMA 21analysis worked. It doesn't rely, it doesn't start 22 from the total cost estimate and then work backwards 23to what the accidents are. It actually does it the 24 other way.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 45JUDGE TRIKOUROS: And in terms of the 1 vulnerabilities of a boiling water reactor, the Mark 2 1 containments that were brought up by the 3 Petitioners, where specifically do you deal with those 4 within the structure of the SAMA analysis?

5MR. SMITH: All of those issues are 6 embedded in the PRA model that's the input to the SAMA 7analysis. So, the plant is modeled, like I said, 8 probabilistic risk assessment, a PRA model that models 9 the behavior of the plant in response to certain 10 initiating events, and the frequency and the accident 11 sequences that are addressed in the SAMA analysis 12 incorporating the plan as currently designed and as it 13 has been responded to, making changes to address those 14issues in the past. So, our starting point is here is 15 what the plan is and looking at all the different 16accident sequences and scenarios that I think by 17 definition includes the plant's response to mitigate 18 the issues you're addressing in the past.

19JUDGE TRIKOUROS: And so, a vulnerability 20 in the Mark 1 would show up as a probabilistic number 21--22 MR. SMITH: Correct.

23 JUDGE TRIKOUROS: Failure number?

24MR. SMITH: That's exactly right, 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 46 JUDGE TRIKOUROS: Okay.

1JUDGE SPRITZER: And I take it you're 2 telling us that you haven't seen anywhere where the 3 Petitioners have challenged specific numbers you used 4 to say here are the numbers, the different numbers 5 that you should have used that would have potentially 6 at least changed the outcome of the analysis?

7MR. SMITH: That's exactly right. And 8 that's what the Commission has repeatedly said is 9required for a SAMA analysis. You must show something 10 to show that the costs and benefits, if done 11 differently and in your way, would have resulted in 12 some SAMA becoming cost beneficial that wasn't before.

13JUDGE SPRITZER: Let me ask the same 14 essential question with respect to the National 15 Academy's $200 billion cost estimate for the accident 16that Fukushima had. Is that, how if at all is that 17 factored, that issue of the overall cost estimate?

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

20 MR. SMITH: It plays no role in the SAMA 21 analysis, and there is no way to use that figure in 22the SAMA analysis. And that's a conclusion, the SAMA 23 analysis is a probabilistic analysis that looks at 24 failure probabilities, event probabilities, and 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 47 leads to an assessment of the cost of that accident.

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

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

10MR. SMITH: That's exactly how you 11 calculate the benefit of a particular SAMA. You run 12 the model without it and you run it with it, and then 13 that delta is the benefit of the SAMA.

14JUDGE SPRITZER: All right, I think I 15 understand.

16JUDGE ARNOLD: I did come up with a 17question. In the contention on page 21, there is a 18paragraph 1.3.4.2. "Petitioners contend that the 19 Applicant's SAMA alternatives at Table D.1.5 are 20 overly and unrealistically optimistic by not 21anticipating the potential for fuel damage in the 22 analysis and do not thoroughly or adequately address 23 the failure of the pressure suppression containment 24 with the uncontrolled and unfiltered radiological 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 48 releases to the environment." 1 Question one, do you, at any place in your 2 SAMA analysis, just, you know, assume that there is no 3 potential for fuel damage?

4MR. SMITH: No, the SAMA analysis reflects 5 the potential for fuel damage.

6JUDGE ARNOLD: Okay. And do you model the 7 pressure suppression containment?

8 MR. SMITH: Absolutely.

9JUDGE ARNOLD: And is there a mechanism 10 for it to fail in your analysis?

11MR. SMITH: Yes. And there are a variety 12 of events that look at how that --

13JUDGE ARNOLD: So, you would basically not 14 agree with that statement?

15MR. SMITH: That's correct, that's simply 16 wrong.17 JUDGE ARNOLD: Okay.

18 JUDGE SPRITZER: I wanted to, I did read 19 through a number of, it's Appendix D of the 20 environmental report. I couldn't find anything that 21 specifically addressed SAMA 123, a more general 22 description of how to do the probabilistic risk 23analysis. But maybe I overlooked something, so is 24 there any particular pages you think that would 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 49 helpful in understanding the analysis of a particular 1 SAMA?2 MR. SMITH: Well, SAMA 123 is summarized 3 on page D-120.

4 JUDGE SPRITZER: 123?

5MR. SMITH: Page D-120 discusses SAMA 123, 6I'm sorry, yes. And so, that's where it says, "To 7 evaluate the change in plant risk, an analysis was 8 performed, decreasing the concentration of all 9radionuclides by 50 percent." And so, it says this is 10 about a post accident release, it says no changes in 11the core damage frequency were used. So, the averted 12 cost risk was calculated by comparing the base, that's 13 why it talks about running it without the SAMA, to the 14 modified events with the SAMA, and then using a 15 similar 50 percent reduction in radionuclide 16 concentrations, the filtering reduced the amount of 17 radionuclides by 50 percent.

18JUDGE ARNOLD: Is that a reasonable 19 number, 50 percent?

20 MR. SMITH: Yes.

21JUDGE SPRITZER: Where does it come from?

22MR. SMITH: I can't explain where it comes 23from. I assume that that is a standard assumption.

24 My recollection is that that's assumed to be 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 50 conservative assumption and that the actual reduction 1 might be more or less, it might be more.

2JUDGE SPRITZER: But I take it in doing 3 this analysis, you also factor in in some way the 4 likelihood of an accident, a severe accident actually 5 occurring?

6MR. SMITH: Correct. The core damage 7 frequency estimates are the PRA level 1 analyses, 8 that's the original input to the model is looking for 9damage frequencies, for core damage frequencies. Then 10 you look at what are the, then level 2 is looking at 11what are the different ways in which radionuclides 12 might be released in the event of a core damage event.

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

15JUDGE TRIKOUROS: Yes. And again, just to 16 understand the SAMA a little better, is the Mark 1 17 containment more vulnerable to a severe accident than 18 other containments?

19MR. SMITH: I'm not in a position to opine 20on that. Certainly the Mark 1 containment at Fermi 21 has been determined to be safe.

22JUDGE TRIKOUROS: And if there is a severe 23 accident where there is an occurrence, is it required 24 within the design of a plant like Fermi to be able 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 51 withstand that without containment unit?

1MR. SMITH: That is my understanding. But 2 I'm not really in a position to --

3JUDGE TRIKOUROS: What is your 4 understanding?

5MR. SMITH: That it would be able to 6 withstand however you just described the containment, 7 not a containment failure but an accident, a core melt 8 that didn't lead to, would be able to withstand that.

9Did I misunderstand you? Was your question is the 10 plant designed to be able to withstand core damage?

11JUDGE TRIKOUROS: Well, there are many, I 12 am assuming there are many sequences in your SAMA that 13 lead to core melt that lead to containment error?

14 MR. SMITH: Correct, there are.

15JUDGE TRIKOUROS: And that is not outside, 16 it is not required by the design basis of the plant?

17MR. SMITH: I understand what you're 18 saying now.

19 JUDGE TRIKOUROS: Would that not happen?

20MR. SMITH: Correct. All of these 21 accidents that we're talking about are severe 22 accidents which are by definition accidents beyond the 23design basis of the plant. So, the plant as designed 24 satisfies all of the NRC's requirements for design 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 52 basis accidents.

1JUDGE TRIKOUROS: Right. And those would 2 still allow it to fail in the event of a severe 3accident. The NRC requirements do not preclude that?

4 MR. SMITH: Correct.

5JUDGE SPRITZER: All right, thank you. We 6will next hear from the NRC staff. Before you get 7 started, maybe you could clarify, I'll ask you the 8 same question I think that I asked Mr. Smith which is 9the fact that the Commission or the staff is now 10 looking at the issue of in some way modifying 11 requirements that might include these filtered vents, 12 does that in any way impact our jurisdiction to hear 13 this?14MR. HARRIS: No, but there is a but to 15 that because we do need to separate that issue out 16from a NEPA standpoint versus a safety requirement.

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

24 In this case, license renewal, making 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 53 kind of safety improvement like this really is sort 1 of, is outside, the current licensing basis is outside 2 the scope of the jurisdiction.

3JUDGE SPRITZER: Assume that we're focused 4 simply on the issue of whether SAMA 123 was adequate, 5 or I should say narrow their Contention 1, that would 6 be something we could --

7MR. HARRIS: That would be something that 8 you can look at in terms of how the NEPA, the SAMA 9 analysis under the National Environmental Policy Act, 10 you know, could, it's something that is subject to 11 challenge in this type of proceeding.

12 JUDGE SPRITZER: Okay.

13MR. HARRIS: There are a couple of issues 14 that I want to address that have come up as we've been 15talking. Turning back first to this idea of 16 qualitative analysis, I'm looking at the original 17 contention because we have been going back to page 13 18 where they cite to the staff CEQ paper where they made 19 recommendations on installing severe accident capable 20 events engineered filters, that's really, that one 21 quote is the only place where qualitative factors come 22 up in their initial contention, that the staff, you 23 know, as a result of doing a backfit for safety 24 purposes considered qualitative factors of whether or 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 54 not engineered filtered vents should be required.

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

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

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

23JUDGE SPRITZER: Well, there were some 24references to them not being adequately analyzed. But 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 55 we're here today, so whatever you think you haven't 1 had the chance to argue previously, you can put before 2 us.3MR. HARRIS: Right. So, but those 4 adequate analyses are sort of, you know, up in the air 5of it wasn't adequately done. As Judge Arnold was 6 mentioning is that they're sort of, you know, 7 unspecific, you know, there wasn't sufficient, you 8know, analysis. You didn't take into account, for 9 example, we've been talking about the design 10 vulnerabilities that were first identified in the 1170's. Since that time, of course you've had the 12 generic letter that required at that time what were 13 called reliable hardened vents, most of them like when 14plants put it in. But since then we actually have two 15 orders that have come out that have required both 16 reliable hardened vents and then that order was 17 superseded by the severe accident capable vents.

18 So, now the current licensing basis 19reflects those changes to it. You know, to the extent 20 that the Petitioners think that those changes don't, 21 are insufficient to provide safety, license renewal is 22 not the place to do it, and not to use the SAMA 23 analysis to attack the safety of the current licensing 24basis for the plant. Those types of challenges 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 56 normally done through rulemaking or 2206 petitions.

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

5 One of the other things that has --

6 JUDGE SPRITZER: But not a NEPA issue.

7MR. HARRIS: But not a NEPA issue. But 8 under the NEPA issue, I need to provide a hard look at 9 the environmental impacts.

10JUDGE SPRITZER: I can't speak for my 11 colleagues, but certainly for me, I understand this 12purely is a NEPA issue relating to SAMA 123. I 13 understand entirely your position about the safety 14 arguments about whether the Commission should or 15 should not, bottom line the continuing the licensing 16 basis, are outside the scope of licensing basis and 17 are a debatable issue. But I think they've narrowed 18the contention. I agree, as originally written, it 19was diffused to say the least. But it's been narrowed 20 somewhat, or not somewhat, a lot as a result of our 21 discussion here today. So, I think it would be best 22 to focus on the NEPA issue.

23I mean, well, let me ask you this. I 24 asked Mr. Smith about 51.71(d).

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 57 MR. HARRIS: Right.

1JUDGE SPRITZER: Which directly addresses 2 the draft EIS, not the environmental report. But do 3you agree, we can look to the requirements for the 4 contents of the draft EIS in interpreting what should 5 be in the environmental report?

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

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 58 In this particular proceeding, the SAMA 1 analysis that was performed by DTE, they used an 2uncertainty factor of 2.5. So, they took their 3baseline, their analysis and multiplied it by 2.5 in 4 terms of the types of benefits that you could actually 5 get to try to account for these things that are both 6 difficult to quantify, unknown, things that, you know, 7 are very difficult to model, and just the uncertainty 8 with the fact that severe accidents, you know, there 9have been a few but they're not easy to model. And we 10 have uncertainty both with the inputs and, you know, 11 the particular analysis, you know, and the model as it 12 goes out, that there is some unknowns out there.

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

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 59 They simply pointed out that for 1 recommendation 5.2(a) and 5.2(c), that it would be in 2 both the industry's and the NRC's, from a prospective 3 basis, to try to improve the ability to model external 4 events and to account for some, you know, to continue 5 to try to improve the model in terms of the 6 consequences because these models are somewhat 7sensitive to the inputs that you put into it. But you 8 have to put the best inputs that you have at the time.

9You shouldn't be just putting in extremely large, 10 extremely conservative inputs to generate results, 11 because that would really be turning us into a worst 12case type of analysis. If I put in inputs that would 13 account for meteors striking the plant and that type 14 of accident, you know, I mean there is always a severe 15 accident bigger than the one that we have considered 16 and you can continue to, you know, postulate even 17 worse severe accidents and worst severe accidents, and 18 you have to use the information that you have.

19 And that's what the Petitioners haven't 20 done is pointed to why that analysis doesn't capture 21all those types of issues. One of the things that 22 came up here, the current argument is dealing with 23 external, both external events and how that's modeled, 24but also the contamination, land contamination. Both 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 60 of those things are actually considered in the SAMA 1analysis. The external events, they used a multiplier 2 again to account for the internal events, 11 times.

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

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

10JUDGE SPRITZER: All right. Unless my 11 colleagues have any further questions, I think you've 12exhausted your time. You still have five minutes for 13rebuttal. Do you have anything further to add at this 14 point? Petitioners, sorry.

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

21 And the fact is that we find it a little 22 awkward that the public has to do what we believe to 23be the NRC's job to take that hard look. That's what, 24 NEPA wants the federal government to do this look, 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 61 people, you know, not the Petitioners necessarily.

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

4 But I wanted to just close by saying that 5 the backfit analysis, it's very clear in 10 CFR 50.109 6 that, you know, it doesn't say that you, it doesn't 7provide for an option. But it says that when you have 8 these large uncertainties, that you need to 9 incorporate both the quantitative and the qualitative 10factors. And this is supported in the regulatory 11 guidance by NUREG 1409, NUREG BR0058, and NUREG 12BR0184. So, you know, the onus is upon the Agency to 13 be taking this hard look and that's what we're asking 14 for.15 JUDGE SPRITZER: Let me ask one question 16 with regard to the National Academy of Sciences report 17 and their $200 billion cost estimate for a severe 18accident for the Fukushima accident. He says that 19 even if they had accepted that figure, it wouldn't 20 make any difference to the SAMA analysis done for SAMA 21 123, or I suspect for any of the other SAMAs. Would 22 you agree or disagree?

23 MR. GUNTER: We disagree.

24 JUDGE SPRITZER: Why?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 62MR. GUNTER: Well, in Appendix L, just 1 briefly, it says here, to quote NAS, "The point of 2 this appendix is not to critique the US Nuclear 3 Regulatory Commission's analysis. The committee did 4 not perform an in-depth review of this analysis 5 because it is outside the statement of tasks for the 6study. The committee offers this example to 7 demonstrate that severe accidents such as occurred in 8 Fukushima Daiichi plant can have large costs and other 9 consequences that are not considered in US NRC backfit 10analysis. This includes national economic disruption, 11 anxiety and depression, which affected populations and 12 deterioration of social institutions arising from a 13 loss of trust in government operations." 14 So, the NAS basically again says that you 15 need to take this broader qualitative look that now is 16not theoretical. I also would note that the CEQ 2012-17 01-57, they did the MELCOR analysis, and they say that 18 the MELCOR MAC-S analysis provided technical basis for 19support of option 3 in the regulatory analysis. They 20 did the MAC-S consequence analysis in CEQ 2012-01-57 21 and they conclude these MAC-S consequence analyses 22 show a clear benefit in applying an external filter to 23either the wet well or the dry well vent path. Staff 24 also did the probabilistic risk assessment in 01-57 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 63 and concluded that the risk evaluation provides a 1 technical basis to support option 3 in the regulatory 2 analysis.3 So, we're seeing a hard look done by NRC 4in this mitigation analysis. And this is an excellent 5 opportunity for the NRC to gain significant public 6 confidence that it holds forth to, that the public and 7 the environment, and these are the strong 8considerations. So, that's why we're requesting that 9 this licensing board provide us with a hearing so that 10 we can sort this dispute out.

11JUDGE SPRITZER: Okay, thank you. You 12 have exhausted your rebuttal time and I think it's 13time we took a break. We've been here for about an 14hour and-a-half. We'll resume in ten minutes and move 15 on to --16COURT REPORTER: Judge Spritzer? We need 17 15 minutes for an audio review issue.

18JUDGE SPRITZER: Okay, 15 minutes. So, 19 please return at 10 minutes after 11:00.

20 (Off the record.)

21JUDGE SPRITZER: We are now on to Joint 22 Petitioners' environmental Contention 2, another 23 contention that concerns severe accident mitigation 24 alternatives, this one related to spent fuel pool 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 64 fires. Petitioners ready to proceed on that?

1 MR. LODGE: Yes.

2 JUDGE SPRITZER: Please do.

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

5JUDGE SPRITZER: You might want to put the 6 microphone a little closer.

7MR. LODGE: I didn't want to ruin things.

8 JUDGE SPRITZER: Never mind.

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

11JUDGE SPRITZER: All right, that would be 12 fine.13 MR. LODGE: If there's a problem, I will 14 assume you'll let me know, or the rest of the panel.

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

21 By way of background, the DC Circuit 22 opinion on the waste confidence decision enjoined the 23 NRC to consider the spent fuel fire and leak 24possibilities. The NRC did some work on a generic 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 65 analysis of those prospective problems. However, in 1 May of this year, by I believe a 3 to 2 vote, the 2 Commission essentially terminated the responsibility 3 of the staff to continue that assessment.

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

14Fermi 2 raises grave concerns. There are 15approximately 600 metric tons of spent fuel being 16stored onsite. There has been essentially maximum re-17 racking potential to increase the density of the 18storage mechanisms in place. And the transfer to dry 19 casks has been delayed because of weld problems that 20 date back more than 30 years, that there are 21 structural problems and concerns as to whether or not 22 the crane assembly would be capable of removing fuel 23 safely. The margin is very, very narrow indeed.

24 So, with the termination by the Commission 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 66 of the generic assessment with the fact that we have 1 of course a Contention 3 that is at least a 2 placeholder challenge, continuing challenge to the 3 waste confidence spent fuel storage, long term storage 4determination, we believe that there must be site 5 specific consideration within this license amendment 6 proceeding of the spent fuel fire potential, both as 7 a straight topic for mitigation discussion within the 8 NEPA as well as within SAMA consideration.

9JUDGE SPRITZER: With respect to SAMAs, 10 let me ask this, are you saying that they have to 11 consider SAMAs for a spent fuel pool fire that might 12 occur during the course of a severe accident involving 13 the reactor where you have a loss of --

14 MR. LODGE: Of power.

15JUDGE SPRITZER: When the core becomes 16 uncovered and you have a severe accident in the 17reactor? Or are you saying totally independent of an 18 accident of that type, they have to look at the 19 possibility of an accident, any type of accident that 20 would result in a spent fuel pool fire including for 21 example inadvertent leakage from a pool that somehow 22 could occur?

23MR. LODGE: The answer would be both, but 24 we are very concerned that in any type of loss 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 67 power circumstance that might be caused by the reactor 1 itself going into some sort of cataclysm, that the 2 spent fuel pool circumstance has to be analyzed at 3 least as a cumulative impact under NEPA.

4 JUDGE SPRITZER: Okay.

5MR. LODGE: We're aware, and of course in 6 response to the NRC and DTE claims, that there are 7 scoping problems here, that any consideration of the 8 spent fuel pool is outside the license renewal 9proceeding. They cited the Turkey Point decision from 102001. But we also noted in that very same decision 11 that the Commission said that adverse aging effects 12 can result from various number of things, factors, and 13 then that age related degradation can affect among 14 other things the spent fuel pool.

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 68 The fact is that for the long, well, for the 1 indeterminate future, the spent fuel pool is going to 2 be the place where spent fuel is going to be reposed 3 at Fermi 2; for how long, it's extremely difficult to 4 say.5JUDGE SPRITZER: What are the specific 6 SAMAs that you say, well, are there specific, let me 7 ask this, are there specific SAMAs that you contend 8 should have been considered to mitigate the risk of 9 catastrophic fires and spent fuel pools? And if so, 10 where did you identify those in Contention 2?

11MR. LODGE: Your Honor, we brought this as 12 a contention of omission and did not identify this in 13 the SAMAs.

14JUDGE SPRITZER: So, you're just saying 15 they didn't look at this type of SAMA at all?

16 MR. LODGE: Right.

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

21 MR. LODGE: Correct. Yes.

22JUDGE SPRITZER: All right, just so I 23 understand. Thank you, go ahead.

24MR. LODGE: We're prepared to reserve, Ms.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 69 Pepperl said we have three minutes left maybe of our 1 15?2MS. PEPPERL: That doesn't include the 15.

3 MR. LODGE: Okay.

4JUDGE SPRITZER: You do, by the way, want 5 to reserve five minutes for rebuttal?

6 MR. LODGE: Yes, thank you.

7 JUDGE SPRITZER: Okay.

8MR. LODGE: We're going to reserve the 9 remainder of our time.

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

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

22 The Commission has already determined that 23those impacts are small. They have determined that no 24 additional mitigation measures need to be made. 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 70 this is an NRC rule that the impacts of spent fuel 1 pool accidents have small impacts and that further 2 mitigation alternatives need not be considered. The 3 Commission has specifically stated that the 4 requirement to consider SAMAs applies to severe 5 accidents for reactors, it does not apply to spent 6 fuel pool accidents. And in fact --

7JUDGE SPRITZER: This is probably in your 8 brief, but do you remember the specific rule that, 9 where the Commission has indicated that?

10MS. REDDICK: In the Turkey Point 11proceeding, this is CLI-01-17 54 NRC 3. The 12 Commission specifically stated that, and I'm reading 13 here, "Part 51's reference to severe accident 14 mitigation alternatives applies to nuclear reactor 15 accidents, not spent fuel storage accidents." 16JUDGE SPRITZER: What, all right, I guess 17 the question then would be, in Fukushima at least, my 18 very rough understanding of what happened at 19 Fukushima, there are at least concerns of the 20 possibility of release of radioactivity from the spent 21fuel pool. I'm not sure whether it's ever been 22 resolved if that occurred or not. Is there, are you 23 interpreting the Commission to say that as part of the 24 analysis of severe accidents, you don't need 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 71 consider the possibility that there might be some kind 1 of damage to spent fuel pool that would lead to a 2 release of radioactivity?

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

6JUDGE SPRITZER: It might be a cumulative 7 impact, it might be a direct impact, I mean let's say 8as a result of the accident, the pool no longer 9 functions in terms of cooling the rods as it's 10 supposed to, and as a result there's a fire and a 11 release of radioactivity, do they need, has the 12 Commission said you do not need to consider that 13 possibility in your SAMA analysis?

14MS. REDDICK: I'm not sure the Commission 15has directly addressed this specific point. The 16Petitioners have not put forth any specific or 17plausible scenario whereby that could happen. It's 18 not entirely clear as you were asking, Your Honor, 19 what the contention is alleging with respect to how 20 the spent fuel pool accident would somehow impact the 21 reactor accident or impact the ability to mitigate a 22reactor accident. It's not clear from their petition.

23 And essentially, that is their burden. Their burden 24 is more than just to throw this flag on the field, but 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 72 they need to allege a specific deficiency.

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

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

16But what that study shows, and this is the staff's 17 regulatory analysis for the expedited transfer of 18 spent fuel, the staff concluded that the benefit of 19 expedited transfer of spent fuel from the pool to dry 20 cask storage is minor and limited and, therefore, not 21justified under the expected cost. And the Commission 22agreed with this. They agree that expedited transfer 23 need not be required.

24 Lastly, just as sort of a factual matter, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 73 Mr. Lodge alleges some concerns with respect to the 1 ability to move the fuel from the pool to dry cask 2storage. That has been completed. I believe the 3 first offload from the pool to the cask occurred this 4past summer and the NRC was there for that. They 5 issued an inspection report and found no concerns and 6 no findings regarding that.

7JUDGE SPRITZER: While we're on the 8 subject, it reminds me while we're on the subject of 9 current conditions of the plant, this is going back to 10 the earlier contention. For the hardened vents, are 11there hardened vents now at Fermi? I understand, I 12take it there are filters of the type that were 13evaluated in SAMA 123. Are there, is there a hardened 14 vent, and if not, will there be one?

15MR. SMITH: Yes, there currently is a 16hardened vent. And then the additional post-Fukushima 17 requirements mandate the installation of some changes 18 or some upgrades to that hardened vent that will be 19 taking place over the next couple of years.

20JUDGE SPRITZER: But that does not include 21 the filters that were addressed in SAMA 123, is that 22--23 MR. SMITH: That's correct.

24 JUDGE SPRITZER: Okay. Sorry, go ahead.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 74 Sorry for that digression.

1MS. REDDICK: I'm prepared to answer your 2 questions, Your Honors.

3JUDGE SPRITZER: Since neither I nor my 4 colleagues have any further, well, okay, we'll move 5 back to him. Let's hear from the staff first.

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

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

23 First, proposed Contention 2 faults DTE's 24 environmental report for allegedly not discussing 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 75 spent fuel pool fires in their mitigation. Instead, 1 DTE's environmental report incorporates all of the 2 Commission's generic Category 1 findings of 3 environmental impacts of the onsite storage of spent 4nuclear fire provided in Table B1. In the Turkey 5 Point proceedings, CLI-01-17 and the Pilgrim 6 proceedings, CLI-07-3, the Commission held that a 7 substantively identical challenge to the incorporation 8 of the Commission spent fuel pool storage Category 1 9 determination in license renewal proceedings was not 10 admissible without a waiver because they constitute a 11 challenge to the Commission's regulations.

12 Furthermore, the Commission held that no 13 discussion of mitigation alternatives is necessary for 14spent fuel Category 1 issues. This is supported by 10 15 CFR Section 51.53(c)(3)(iii) which states that an 16 environmental report is not required to consider 17 alternatives for reducing adverse impacts for Category 181 issues. Therefore, according to both the 19 Commission's regulations and case law, the argument of 20 proposed Contention 2 that spent fuel pool fires and 21 their mitigation should be analyzed in DTE's 22 environmental report is inadmissible.

23JUDGE SPRITZER: SAMA contentions, 24however, are Category 2 issues, I take it you 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 76 agree with that?

1MR. WACHUTKA: That is true, Your Honors.

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

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

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

23 So, in order to rebut this, the Joint Petitioners 24 state that what they are trying to get at is 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 77 cumulative effects argument that NEPA requires that 1all this is considered under SAMA. However, this does 2 not necessarily satisfy the Commission's or the NEPA 3 hard look requirement because the Commission has 4 already stated that it does some of its environmental 5 impacts generically, some of its environmental impacts 6 on a case by case basis, and that this process does 7 satisfy NEPA.

8 For instance, in Turkey Point, the 9 Commission said, in the end, "The final supplemental 10 environmental impact statement will weigh all of the 11 expected environmental impacts of license renewal, 12 both those for which there are generic findings and 13 those described in a plant specific analysis." 14 Therefore, the Commission's process already accounts 15 for all the environmental impacts, just some are 16 accounted for generically like spent fuel storage, and 17 some are accounted for case by case like SAMA for 18reactor accidents. So, there is no gap here. All the 19 environmental impacts are being accounted for.

20JUDGE SPRITZER: Understood in that. I 21 guess let me ask you the same question I asked the 22 Applicant about. Is there an obligation to consider 23 SAMAs that might or would mitigate a spent fuel pool 24 fire that occurred in the course of, that is as 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 78result of a severe accident? In other words, is there 1 some overlap between those two areas? And how, what 2 would the Applicant do in the ER?

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

11 Also, Your Honors, Joint Petitioners 12 allege that there is new and significant information 13 and, therefore, because of this new and significant 14 information, they should be granted, this contention 15should be admitted. However, the Commission has 16 already also directly addressed this issue and denied 17 this argument stating in the Pilgrim proceeding that, 18"Adjudicating Category 1 issue site by site based 19 merely on a claim of 'new and significant information' 20 would defeat the purpose of resolving generic issues 21 in a generic environmental impact statement." 22 Therefore, although the information alleged to be new 23 and significant by the Joint Petitioners could 24 potentially be used as a basis for say a 10 CFR 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 79 Section 2.335 waiver petition or a 10 CFR Section 1 2.802 petition for rulemaking, it cannot, based on 2 this Commission direction, serve as the basis for just 3 a contention in a license renewal proceeding.

4 And this is all supported by the fact that 5 there is a petition for rulemaking currently being 6 evaluated by the NRC, PRM-51-31, which addresses this 7 very issue and was submitted in March 2014 and amended 8in June 2014 and is still under consideration. So, it 9 appears that the appropriate venue for this new and 10 significant information argument is the rulemaking 11 process.12 In summary, Your Honors, the Commission's 13 regulations at 10 CFR Part 51 and 10 CFR Part 54, as 14 well a the Commission's binding case law in Turkey 15 Point and Pilgrim, demonstrate that all of the 16arguments of proposed Contention 2 are outside the 17 scope of this license renewal proceeding. Moreover, 18 Joint Petitioners do not request the waiver of these 19 rules according to 10 CFR Section 2.335 or satisfy the 20 millstone factors for a waiver. Therefore, proposed 21 Contention 2 should be denied.

22JUDGE SPRITZER: All right. Mr. Lodge, 23 you can have five additional minutes.

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

13 I'd like to point out, however, that one 14 of the, one set of data that has emerged from the 15 post-Fukushima expedited spent fuel transfer 16 proceeding is the new information that we cite very 17 early in our statement of contention that even a small 18 nuclear reactor pool fire could render 9,400 square 19 miles uninhabitable and displace 4.1 million 20 Americans. And I pointed out a few minutes ago that 21 the greater population of Toledo and Detroit within a 22 50-mile radius of Fermi 2 totals nearly five million 23people. So, I think the implication, the inference 24 certainly could be that a much larger population 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 81 be affected here.

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

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

22 Fermi 2 is slated for instance for another 23fuel outage in 2015. That of course is not within the 24license renewal period.

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

6JUDGE ARNOLD: I do have a question.

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

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

15 And that's been a bone of --

16 JUDGE ARNOLD: Right, by the Commission.

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

21 MR. LODGE: Right.

22JUDGE ARNOLD: So, I want to see how 23 exactly this analysis is the responsibility of the 24 Applicant.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 83MR. LODGE: Well, if Your Honor is simply 1 suggesting that we have made a premature, raised this 2 prematurely, at least we have raised it, and that has 3been a problem in nuclear litigation. As I understand 4 it, the environmental report is essentially supposed 5 to be some type of template as to, a suggestion if you 6 will to the Commission staff as to how NEPA should be 7complied with. Therefore, to the extent that the 8 Applicant has not addressed these concerns in the ER, 9 the ER is deficient and there is an issue of fact I 10 believe.11 JUDGE ARNOLD: I'm done.

12 JUDGE TRIKOUROS: I'm done, too.

13JUDGE SPRITZER: All right, thank you. We 14 will now move on to Joint Petitioners' proposed 15Contention 4. As indicated in our order, we're not 16 going to do argument on proposed Contention 3, we'll 17move directly to Contention 4. And let me ask at the 18 start, do you want to reserve five minutes for 19 rebuttal on Contention 4?

20 MR. KEMPS: Yes, I would.

21JUDGE SPRITZER: All right. Please 22 identify yourself and then let's proceed.

23MR. KEMPS: Your Honors, good morning. My 24 name is Kevin Kemps with Beyond Nuclear, and I will 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 84 addressing Contention 4 for Joint Petitioners.

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

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

20JUDGE SPRITZER: What is a galloping 21conductor? We all, normally I'm technically 22 handicapped, but my colleagues aren't and they're also 23 somewhat confused about that term, galloping 24 conductor?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 85 MR. KEMPS: It's Mr. Baxter's list and I 1 believe that would be a failure of the transmission 2 grid itself, cascading failures. We saw an incident 3 in August of 2003 where 50 million North Americans 4 lost their electricity, and it had a lot to do with 5 the vulnerabilities of the grid, specifically in this 6area of the country. First Energy Nuclear did not 7trim its trees, a tree branch touched a power line, 8 and that cascading failure of the grid led to the loss 9of electricity for 50 million people implicating a 10 large number of atomic reactors, both in the United 11States and Canada. So, I think his example would just 12 point to vulnerabilities of the grid.

13 To his list, I would add that tornadoes 14 are very significant in this area. In fact, in June 15 of 2010, a tornado did strike the Fermi 2 complex and 16caused problems that could have been much worse. And 17we addressed some of that in our filing. The poor 18 record of emergency diesel generator operation at 19 Fermi 2 is a part of this risk matrix. We would add 20 to that list that Mr. Baxter provided a 1988 incident 21 where a raccoon cut off the grid to Fermi. There is 22 also the specter of intentional attacks, and there was 23 a recent incident near San Jose, California just a 24couple of years ago where an intentional sabotage 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 86 caused extensive damage to the grid.

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

10 JUDGE SPRITZER: So, is it your position 11 then that this risk of, what is it called, a common 12 mode failure should have been incorporated in the SAMA 13 analysis?14MR. KEMPS: Yes, we did go into some 15 detail in our filings about the inadequacy of the 16 SAMAs as conducted thus far, that they did not take 17 into account the concentrated risk of an 18.6 mile 18 long by 300 yard wide common corridor, that all of 19 these transmission lines, especially the incoming 20 electricity to run the safety systems and cooling 21 systems and monitoring systems are subject to.

22 JUDGE SPRITZER: All right.

23JUDGE TRIKOUROS: Can I just ask the 24 Applicant, is this corridor the only source of offsite 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 87 power for the site?

1MR. SMITH: There's a couple of different 2lines in the corridor that are independent and 3 separation meets regulatory requirements. But yes.

4JUDGE TRIKOUROS: But it is the only 5 offsite power feeding to that site?

6 MR. SMITH: Yes.

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

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

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

19MR. KEMPS: Well, we certainly brought up 20pools in our original filing on August 18th. Our 21 point is that the transmission corridor is essential 22 to running the safety and cooling systems at both 23 Fermi 2 reactor and pool, and Fermi 3 reactor and 24pool. So, any disruption of that essential 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 88 electricity supply for those safety and cooling 1 systems could implicate both reactors and both pools.

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

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

12JUDGE SPRITZER: I think you acknowledged, 13 I was looking for the specific page and I can't find 14 it at the moment, but somewhere in your Contention 4 15 you acknowledged that the proposed Fermi 3 reactor, 16 what is it called, the economic simplified boiling 17 water reactor is actually supposed to be able, 18 intended to be able to operate without electrical 19power for some period of time. And it's my 20 understanding that design has now been certified by 21the Commission. So, aren't we precluded by that 22 certification from looking into any criticism you 23 might have that the ESBWR won't be able to operate if 24 it does lose power?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 89MR. KEMPS: Well, we did cite the warnings 1 from our colleague at Union of Concerned Scientists, 2 Dr. Ed Lyman, that these assumed gravity-fed cooling 3 water flow pathways are very optimistic, that there is 4 much less force behind gravity fed than there would be 5from active pumping. So, these warnings have been 6 raised throughout the Fermi 3 design control document 7proceeding for many long years now. And having 8participated in the Fermi 3 Advisory Committee on 9 Reactor Safeguards meetings, there are many 10significant unanswered questions. For example, the 11 ability of the so-called improved monitors at Fermi 3 12 storage pool to function in a high radioactivity 13 environment due to a reactor accident, those questions 14 remain unresolved.

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

20 Yes, Mr. Lodge just points out that on 21 page, we're looking up the page number, in our initial 22 filing we pointed out, given this passive, so-called 23 passive gravity driven design, that no arrangements 24for -- okay, I'm sorry. The point is that Mr. Farouk 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 90 Baxter in his comments on Fermi 3 pointed out that the 1 ESBWR design control document and the Fermi 3 final 2 safety analysis report, chapter 8, have not resolved 3 these issues. And we cited that in our filings thus 4 far.5JUDGE ARNOLD: Let me ask you about that.

6 On page 47 on the contention, third paragraph from the 7 bottom, you say, "The FSAR statement that 'there are 8 no single failures that can prevent the Fermi offsite 9 power system from performing its function to provide 10 power to EF3' is without any technical merit." Now, 11are you saying that, I'm not sure what without any 12technical merit means. Are you saying that statement 13 is wrong?14MR. KEMPS: Yes, we are quote Mr. Baxter's 15 comments bringing severe criticism to the FSAR making 16 such optimistic assumptions and, I reemphasize, the 17 concentration of risk in a 300 yard wide transmission 18 corridor that the Applicant admits is where all the 19 emergency system electricity supply is coming through.

20JUDGE ARNOLD: Okay. Now, the FSAR 21 statement, isn't that a part of the current licensing 22 basis for Fermi 2?

23MR. KEMPS: Well, t here is a certain 24 overlap of current licensing bases with 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 91 for a license renewal application proceeding, we 1 addressed this last week at the Davis-Besse license 2 renewal application proceeding. So, these are risks 3 that will happen between 2025 and 2045 when Fermi 2, 4 if it gets this LRA approved, will be operating, and 5Fermi 3 presumably will also be operating. So, it 6 certainly needs to be addressed.

7JUDGE ARNOLD: Now, let me just ask 8Applicant now to comment on that. Your FSAR states 9 there are no single failures that can prevent the 10 offsite power system from performing its function.

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

12MR. SMITH: Correct. I believe that quote 13 though is referencing the FSAR for Fermi 3.

14JUDGE ARNOLD: Ah, okay. I'm just 15 wondering if there is some way that you can do a SAMA 16 analysis considering failure of offsite power that 17 isn't contradictory to your current licensing basis.

18MR. SMITH: I'm not sure I'm understanding 19 the question because our SAMA analysis does consider 20the loss of offsite power. That's considered an 21 initiating event and that's addressed by a number of 22 SAMAs specifically.

23JUDGE SPRITZER: Let me ask this also 24about the ESBWR design. As I understand it, it 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 92 supposed to be able to operate without, to continue 1its cooling functions even if there is a loss of 2offsite power for some period of time. Am I 3 understanding it correctly?

4 MR. SMITH: That's correct.

5JUDGE SPRITZER: Do you know what that 6 period of time is?

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

9 JUDGE SPRITZER: 7 days, all right.

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

11JUDGE SPRITZER: 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />? Thank you. To 12 your colleagues who provided you with that 13 information, now where would we obtain a cite for 14 that?15MR. SMITH: I can take an action to obtain 16 a cite for you from that over lunch break.

17 JUDGE SPRITZER: Okay.

18MR. KEMPS: Your Honors, on that last 19 point, could I simply say that at the Advisory 20 Committee on Reactor Safeguards meetings that have 21 happened in recent weeks and months, that we were 22 present and we observed and witnessed many unanswered 23 questions about that 072-hour time period, that 3-day 24to 7-day time period. There's a lot of assumptions 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 93 about the FLEX from Memphis, Tennessee being either 1 driven up here on the roads or flown up here by 2 helicopter presumably to be put in place in time to 3prevent radioactivity releases. We have many 4 questions about that assumption.

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

10MR. KEMPS: The design control document 11was approved earlier this year. We're not contesting 12that. But as I'm trying to get across, there are lots 13 of unanswered questions about the FLEX assumptions.

14JUDGE SPRITZER: Right. Well, I mean the 15 reason I'm asking of course is there are limits on our 16jurisdiction. It might be a very interesting issue 17 but there are just certain things we can't get into.

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

22 JUDGE TRIKOUROS: Well, I have one more.

23 JUDGE SPRITZER: Oh, sorry.

24JUDGE TRIKOUROS: I have one 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 94question. The loss of offsite power, specifically the 1 failure of below lines in that transmission corridor 2 is an event that's contemplated by the design basis of 3 each of those plants, Fermi 2 and Fermi 3, correct?

4What is different here? I'm trying to understand 5where you're finding synergism. The only thing I 6 could find in your pleading was that if there is a 7 core melt in one plant, it will result in the 8 abandonment of the other plant and they wouldn't be 9 able to deal with the normal design basis event. Is 10 that the synergism? Without a synergism, it appears 11 to me you're just basically saying you disagree with 12 the individual design bases of each of the plants.

13MR. KEMPS: As my coworker Paul Gunter 14 addressed earlier, we have real world experience now 15 based on Fukushima Daiichi units 1, 2, 3 and 4. And 16 so, certainly reactor core melt downs with damaged or 17 destroyed containments, reactor pool fires with no 18containment whatsoever, can and will lead to the 19abandonment of nuclear power plant sites. There was, 20 Tokyo Electric considered abandoning all workers at 21 one point, and it took the intervention of the Prime 22 Minister of Japan to prevent that.

And there were 23 episodes of the workforce leaving the Fukushima 24 Daiichi site, retreating to the Fukushima Daini site 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 95 against the orders of the company for their own self 1 protection.

2 So, these are very real world issues that 3 we're concerned about at this proposed multi-reactor 4 site.5 JUDGE TRIKOUROS: So, with that synergy, 6I'm sorry, you want to say something? With that 7 synergism, you're making, it's basically an assumption 8 that says that one of those two plants would not be 9 able to handle their design basis event and that that 10 would then lead to the other plant not being able to 11 handle it by virtue of the first plant's effect on the 12 second. That's really what this is about, correct?

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 96JUDGE ARNOLD: But the only data point we 1 have is Fukushima where that didn't happen, is that 2 correct?3MR. KEMPS: It didn't happen because Prime 4Minister Naoto Kan at 5:00 a.m. rushed to the Tokyo 5 Electric headquarters and pleaded with the company and 6 its emergency responders in the control room area of 7 that headquarters building to not abandon their posts 8 for the sake of the future of that nation.

9JUDGE SPRITZER: All right. Let's move on 10 and hear from the Applicant on contention, Joint 11 Petitioners' Contention 4.

12MR. SMITH: Tyson Smith for the Applicant.

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

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

21 Second, their arguments about the 22 transmission corridor generally, that it's not safe or 23 more concerns that violates defense in depth, that's 24what's in their contention. That also raises an out-25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 97of-scope issue. Fermi 2 or Fermi 3's compliance with 1 requirements related to offsite power or availability 2 of diesel generators which is embedded in their 3 assumption that loss of the transmission corridor is 4 a loss of defense in depth, those are current 5 licensing basis issues that are being addressed now.

6 They are not issues unique to a license renewal.

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

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

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

22 The Petitioners haven't put forth any 23 information to suggest that the analysis that DTE has 24done is unreasonable. And that's what they've got 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 98 do to have an admissible SAMA related contention.

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

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

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

9JUDGE SPRITZER: Well, I suppose you might 10 read their argument to be at least in part that you 11 should have included in the benefits, if you're taking 12 a measure to improve the reliability of the 13 transmission corridor, there would be benefits both to 14 Fermi 3 and Fermi 2 in the sense of reducing the risk 15 of a severe accident at both plants, and that that 16 somehow should have been factored into the analysis.

17 What's your response to that interpretation?

18MR. SMITH: Well, I think that's very 19 generous and not one that I would draw from the 20contention in front of me. I mean I didn't read that 21 in the contention.

22JUDGE SPRITZER: Well, I admit it involves 23some interpretation. But do you have any thoughts on 24 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 99MR. SMITH: They certainly haven't alleged 1any scenario by which that would be the case. They 2 haven't said, oh, your SAMA related to mitigating the 3 effects of a loss of offsite power, the cost of that 4 would be reduced because it's spread over Fermi 2 and 5Fermi 3. Nor have they suggested that the cost would 6 be more because of that event.

7 I mean these units have different designs.

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

13JUDGE SPRITZER: Is there anything in the 14 NRC guidance when you, it probably isn't unheard of to 15 look at SAMAs at one plant where there is a multi-16plant site. Does the NRC guidance address that in any 17 way?18MR. SMITH: Well, the NRC-endorsed 19 industry guidance does discuss how you handle SAMAs 20for multi-unit sites. And what it says is similar to 21 what you mentioned which is if you've got a couple of 22 plants that are identical and when you're costing out 23 the cost of implementing a particular SAMA, you have 24 to take into account any efficiencies that might 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 100 gained if you implement the same SAMA at multiple 1units. So, if it's a training SAMA but you're really 2 just training the same staff that works on all three 3 units, then your cost can be divided in thirds or 4 something like that. So, that's the extent to which 5 the SAMA analysis, the guidance discusses treatment of 6 multi-unit sites.

7JUDGE SPRITZER: In that situation, would 8 you also factor in the benefit of additional training 9 for the operators at the other two reactors or not?

10MR. SMITH: But that's embedded, that's 11 already embedded in the SAMA of any one unit, so there 12 is no additional benefit. That benefit is reflected 13 in that SAMA unit, you reduce the risk by X amount 14 that resulted in such a benefit.

15JUDGE SPRITZER: I assume the cites for 16 the guidance you're referring to is in your brief 17 somewhere?

18MR. SMITH: I'm not certain if that's 19referenced in our brief. The industry guideline is 20 NEI 05-01, and that's NRC-endorsed guidance on 21 performing SAMA analyses.

22 JUDGE SPRITZER: Okay.

23 JUDGE TRIKOUROS: To your knowledge, did 24 the Fermi 2 SAMA take into account the failure 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 101 transmission corridor?

1 MR. SMITH: Yes, it did.

2JUDGE TRIKOUROS: Did the Fermi 3 SAMA 3 take into account the failure of that transmission 4 corridor?5 MR. SMITH: It certainly did.

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

11 MR. SMITH: No.

12JUDGE TRIKOUROS: Is there anything in the 13 regulations that requires a different view because 14 they occur simultaneously?

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

16JUDGE SPRITZER: All right. Let's move on 17 and hear from the NRC staff on Joint Petitioners' 18 Contention 4.

19 MR. HARRIS: I don't want to repeat some 20of the things that we're saying here. A couple of 21things that I wanted to bring up. We talk about, one 22 of the things that was brought up was spent fuel 23 pools, the status of the spent fuel pools in terms of 24coverage. That is actually the subject of an order 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 102 for the plants to be installing reliable spent fuel 1 pool instrumentation so that those issues of, you 2 know, can you approach the pools can be determined 3remotely. So, the fact that at Fukushima during their 4 event that they had, they could, you know, had trouble 5 determining what the status of the pools were at the 6 time, you know, should not be an issue going forward 7 because that's already been incorporated into their 8 licensing basis and they have to come in compliance I 9 believe by two refueling outages or I think September 10 of 2016 in terms of the spent fuel pool 11 instrumentation order.

12 So, those issues of the status of spent 13 fuel pool really don't weigh into that particular 14 problem. Again, the FLEX orders are also one of the 15 things that, you know, they are currently, you know, 16 required to do. As part of the FLEX order, they are 17going to have to be able to, they are installing 18 equipment to deal with the first 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> for all the 19 operating plants, all the licensed plants. So, they 20 have to be able to manage without offsite assistance 21for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. In the case of Fermi 3, of course it's 22 a passive system so it should be able to do that 23without much additional, anything additional. And 24 then they are able to bring in extra help from staged 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 103 equipment at the site or from these two response 1 centers that are located throughout that to be able to 2 deal with these prolonged station blackouts.

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

15 The thing that I want to bring up that 16 really hasn't been addressed is the Commission by rule 17 has indicated that we should only be looking at SAMAs 18 one time for a plant, whether that's at the initial 19 licensing stage or at license renewal is that they 20 found when they first imposed the requirement that we 21 only need to do this once, and that we wouldn't expect 22 to find anything different. That has been recently, 23you know, challenged in the Limerick proceeding. The 24 Commission of course, you know, rejected the challenge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 104 to revisit Limerick's SAMA analysis for a second time.

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

5JUDGE SPRITZER: Well, I don't understand 6them to be asking for that. What I think they're 7 saying, or at least one way to look at what they're 8 saying is you should have considered in the Fermi 2 9 SAMA analysis not only benefits to Fermi 2 in terms of 10 reduced likelihood of a severe accident or better 11 mitigation of an accident if it occurred, but also the 12 fact that there would be some synergistic or 13additional benefit to Fermi 3. I mean if you're doing 14 a complete cost benefit analysis, let's consider all 15 the benefits even if some of them happen to accrue 16 with Fermi 3 instead of, or in addition to Fermi 2.

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

23 The Applicant brought up the fact that 24 when you're looking at the cost of implementing 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 105 particular benefits at multi-unit sites, especially 1 where the sites have generally the same design, that 2 you can spread out the cost of implementing for the 3 site that would reduce the overall cost of 4 implementing that mitigation measure to reduce, you 5 know, to increase the potential cost benefit of a 6particular SAMA. But it does not work quite the same 7 on different plans.

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

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

20JUDGE TRIKOUROS: And that's how I view 21the Intervenors' contention in this. Well, let me 22 start by asking you, is there anything in the new 23 guidance that's been required by the NRC for existing 24 reactors and new reactors with respect to the three 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 106 orders that have come out that take into account 1 multi-unit sites?

2MR. HARRIS: The part right now that 3 probably most directly addresses multi-unit sites is 4 multi-unit dose assessments. So, in the event of an 5 actual accident, to be able to do a multi-unit dose 6 assessment, there is again that research project that 7 the Commission has tasked research to do a new level 8 3 PRA that is similar to the PRAs that were done for 9 NUREG 1150. And that is one of the topics that they 10 are intending to look into is how do you integrate the 11 risks across this, you know, relatively independent, 12 you know, units.

13JUDGE TRIKOUROS: Okay. Now, with respect 14 to equipment and people that are required for each 15 plant as part of these orders, do they specify that 16 that number of people and that equipment has to be of 17 sufficient quantity to handle an ongoing event at more 18 than one plant at a site?

19MR. HARRIS: Right. As each plant is 20 required to handle, you know, be able to handle any 21 event that occurs on it, so they would need sufficient 22 people to handle both an accident at Fermi 2 and an 23accident at Fermi 3. And they would need the 24 appropriate amount of equipment to be able to deal 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 107 with responding to those types of accidents, be that 1FLEX or in Fermi 3. I don't want to talk too much 2about the ESBWR because I have not been involved in 3 that, but you know, it's a passive system so it's, in 4 the purposes of loss of offsite power, it should deal 5 with it for the 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />.

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

9 MR. HARRIS: Right.

10JUDGE TRIKOUROS: Okay. With respect then 11 to the SAMA that one does for each plant, and it is a 12 probabilistic risk assessment which the Intervenors 13 have pointed out is, you know, not to their liking in 14 fact, isn't there some probability that what they 15suggest might happen might happen? In other words, 16 isn't there some probability that people will evacuate 17that site? It may not be a large probability, but 18 isn't it some probability?

19MR. HARRIS: The question of would the 20 staff in charge of the plant evacuate the site, you 21 know, of course in the event of whatever accident it 22 is, it's difficult to be prospective and speculate.

23 My own personal experience, you know, as a formal 24 naval nuke is that, and what I've seen here 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 108 they're not because their families are out in, you 1know, out living near the sites. They want to arrest 2it. So, there is some possibility that it could 3 happen, you can't drive it to zero, but the 4 uncertainty associated with that low probability is --

5JUDGE TRIKOUROS: But I think in the 6 petitions, they are basically saying you're giving 7 that a zero probability.

8MR. HARRIS: We're not giving that a zero 9 probability.

10JUDGE TRIKOUROS: Or the Applicant is 11 giving that a zero probability.

12MR. HARRIS: You have uncertainty 13 associated with the SAMA analysis to try to account 14for those things that are difficult to quantify. So, 15 like I said, you know, the uncertainty applied here 16was a factor of 2.5 times. So, the benefit is being, 17you know, increased by 2.5 from what the, you know, 18 before you apply the uncertainty in terms of that.

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

24 It doesn't mean that, you know, if you go 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 109 back and have a particular accident, that that 1 mitigation measure wouldn't have been cost beneficial 2 assuming the accident actually occurred. But that's 3not the way SAMAs are done. We're trying to calculate 4 what's really the expected value of the accident that 5 occurs at some unknown time under unknown 6 circumstances.

7JUDGE TRIKOUROS: Well, isn't there 8 anything in the SAMA requirements that takes what the 9 Intervenors are saying and, you know, makes it 10something you don't have to do? In other words, when 11 I read their pleading, they are simply saying that the 12 site might get evacuated, you should consider that.

13You're saying it's a very low likelihood. But SAMA is 14 a PRA and, therefore, it considers many low likelihood 15 events.16MR. HARRIS: True, but it doesn't 17 consider, you know, every low likelihood event that 18could occur. You know, I mean I mentioned previously, 19you know, a meteorite happening to hit the plant. You 20 know, the likelihood of that it small, the likelihood 21 of a meteorite hitting the earth, a little larger, but 22we don't consider that. And it's not, you don't have 23 to consider every potential, you know, accident 24scenario. I mean even for the accidents that we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 110 consider, there are thousands of different ways that 1 you can have an accident in terms of the actual 2 precise way that the accident progresses.

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

20 And that's sort of what they have to show 21 is that they have to show that it would actually make 22 one of the mitigation measures that wasn't identified 23as potentially cost beneficial cost beneficial. It's 24not a research project. We are simply trying 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 111 reasonable analysis of their representation of what we 1expect to happen. It's not meant to model any 2 particular one accident.

3JUDGE TRIKOUROS: But the deficiency they 4are pointing out is not an unreal deficiency. It's 5 simply not considered, no one had considered that in 6 any of the SAMAs for multi-unit sites that happen to 7have a shared, I don't know if anybody has that 8 situation in fact, a shared corridor that is subject 9 to some sort of an external event that could result in 10 a station blackout in two plants and treating the 11 SAMAs as individual entities without that connection 12that they're saying should be made. And it is not 13 unreasonable.

14JUDGE ARNOLD: Well, is the shared 15 corridor actually significant when you're talking 16 about having to evacuate the entire site?

17JUDGE SPRITZER: Is that a question for --

18 JUDGE ARNOLD: Let me ask you.

19MR. HARRIS: I was asking he was asking 20 Judge Trikouros.

21JUDGE ARNOLD: Because what you've been 22 asking back and forth for the last ten minutes sounds 23 to me to be generic to any multi-unit site.

24MR. HARRIS: I think it is generic to any 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 112multi-unit site. I'm not sure that the shared 1 corridor makes that particular scenario, whether or 2 not the staff, you know, under some unlikely 3 circumstance would just abandon the site and not try 4 to take all the appropriate actions to stop the 5accident or mitigate their risk of the accident. I 6 don't think that's a function of the shared corridor.

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

11JUDGE ARNOLD: Well, this scenario that 12 they're -- I'm sorry. Go ahead.

13JUDGE SPRITZER: Well, I just want to 14clarify for the record. We keep talking about the 15site. Are we talking about Fermi 2, Fermi 3 or both?

16MR. HARRIS: I'm talking about the 17 combined site because we're talking about the 18interaction of the two. So, when I talk about the 19 site, I'm talking about Fermi 2, Fermi 3, that you can 20 have some event that would affect both plants at the 21site here. We're talking about transmission corridors 22 at other sites that are multi-unit, you know, whether 23 they have a shared transmission corridor, they are 24 subject to types of external events that 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 113 challenge both, you know, all the plants at the site.

1 Wetting would be an example of that.

2JUDGE TRIKOUROS: Right. I think that the 3 scenario that I'm hearing from the Petitioners is one 4in which both plants are in crisis. Both plants 5 require significant amount of staff to be running 6 around that stuff during a situation in which there's 7a release occurring from at least one of those two 8plants. If the other plant is not in crisis, then the 9 operators will be in a control room in a stable 10 manner, their control room is filtered from radiation.

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

18MR. HARRIS: I don't know that, I read it 19 differently that, you know, you would have some 20 initiating event that would cause one plant to have an 21 accident, and then that plant's accident would cascade 22 into causing an accident at the other plant.

23JUDGE TRIKOUROS: Do you have, do the 24 Petitioners have a clarification here?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 114 MR. LODGE: I think numerous postulation 1is what was in our thinking. Your Honor, in the 80's, 2 the NIGA regs for the NRC were amended so worst case 3 scenarios were no longer obligatorily to be considered 4within EIS documents. But 40 CFR 1502.22 was 5promulgated and that states that where there is 6 incomplete or unavailable information, the EIS has to 7 include certain things like a statement that the 8 information is incomplete or unavailable, relevance of 9 that incomplete or unavailable info to evaluating 10 recently foreseeable significant adverse impacts on 11 the environment, summary of existing credible 12 scientific evidence which is relevant to evaluating 13 those recently foreseeable impacts, and the Agency's 14evaluation of those impacts. So, where the 15 information is essential to reasonable choice of 16 alternatives, it's required to be discussed and 17identified in the EIS. So, as you were saying, Judge 18 Trikouros, perhaps the chances of abandonment by 19 staffing and crew, the personnel, is a relatively 20small prospect. It certainly seems to us that it does 21 have to be tested upon and identified.

22 Another thing is the Detroit Metropolitan 23Airport which is an extremely busy North American 24 airport is nearby to the transmission corridor as well 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 115 as of course the Fermi site itself, and planes pass 1 over the transmission corridor at least on a very 2frequent basis. The problem is that we're really 3 talking about a single fault type of scenario, if 4 there is an accident that befalls the transmission 5lines. And in 2012, the Commission issued letter 6 2012-05 saying that there have to be two sources of 7 offsite electricity which doesn't exist here for Fermi 8 2.9 So, we think that this is a very, very 10 problematic contention that we've raised.

11MR. SMITH: If I may, there's something we 12 haven't discussed that I actually is very relevant to 13 the questions Judge Trikouros is asking which is the 14SAMA process includes a screening process. So, that's 15done at the outset. And so, you look at what's the 16 maximum benefit, and then you also look at there's a 17 truncation of events that have a very low likelihood.

18And this is discussed in our SAMA analysis. It talks 19 about reasons why some might be eliminated, things 20like excessive implementation costs. If you're 21 talking about automating your onsite emergency 22 response, that's going to be excessively, it's going 23 to have an excessive cost.

24 Similarly, if there is a very low benefit 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 116 or the risk itself is very small, and this is exactly 1 why Intervenors have an obligation to come forward 2 with some approximation of the relative costs or 3benefits because there is a screening process. You 4can't say, well, there is some possibility. That 5 possibility may be so low that it was appropriately 6screened out. They've got to put forth some 7 information to show that this is actually something 8 worth considering further, and they haven't done that 9 here.10MR. KEMPS: Could I respond just briefly?

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

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

21JUDGE SPRITZER: Are those figures for 22 Fermi 2? Fermi 3?

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

24 JUDGE SPRITZER: 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 117MR. KEMPS: And I would hasten to add that 1 the population has likely increased since this report 2 came out.3JUDGE TRIKOUROS: That was 1982, that 4 report, wasn't it?

5 MR. KEMPS: Yes, sir.

6MR. HARRIS: Your Honor, may I address the 7Sandia citing study? So, if you look at what the 8 Sandia citing study does, there are a lot of caveats 9 in that study in that they don't account for a lot of 10 the contamination removal mechanisms, you know, by the 11containments. So, they're basically assuming a 12 release from the vessel that doesn't actually get 13 filtered by the containment at all. Even if it does 14 fail in some way, there still is going to be some sort 15 of deposition within the containment, filter through 16 whatever, however the containment may have failed 17 because you can have torturous paths that would cause 18 some bleeding out on that.

19 So, it made very conservative assumptions 20 about what that release would look that they said you 21would need to take into account. It looked much more 22 as a worst case kind of scenario than an actual NEPA 23--24JUDGE ARNOLD: It didn't look over 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 118 spectrum of accidents?

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

9 Fermi 2 now looks at nine different source terms.

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

19JUDGE TRIKOUROS: Well, I didn't want this 20to broaden that much. The simple question was when 21 you're doing, when you have a multi-unit site that's 22 subject to a common mode initiating event, do the 23 SAMAs that are done for each plant have to include 24 some probability consideration or staffing not being 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 119available at the plant? That's really all I was 1 asking and that really, and I was coming from the 2 point of view of the Petitioners in terms of what I 3 thought they were saying in their pleading.

4MR. HARRIS: Right. But for a SAMA, we 5 need to account for, you know, the licensing basis in 6terms of what the plant is supposed to be doing.

7That's the model they're doing. That would include 8 the staff taking the appropriate actions being onsite, 9you know. So, you have to account for the plant as it 10is and as it is required to be. And that does require 11 staffing, you know, and that staffing to take 12 appropriate actions.

13JUDGE TRIKOUROS: Would it be true for me 14 to say that the new orders coming out or has been out 15that are being implemented don't take these things 16 into consideration?

17MR. HARRIS: Which? I'm not sure which 18 things you're referring to there.

19JUDGE TRIKOUROS: Well, just assuming that 20 everybody goes running around and does what they're 21 supposed to do with the FLEX strategy and all of that.

22MR. HARRIS: The FLEX strategy is 23 probably, it's not so deterministic, it's not so 24proceduralized because when you look at the FLEX 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 120 strategy, it's trying to account for beyond design 1 basis events from the order perspective and not 2 knowing exactly what that event is that, you know, 3 you're going to be able to handle some of these 4 external events. So, that doesn't allow you to sort 5 of proceduralize it. So, what you have to do is you 6 have to have the appropriate equipment that you can 7 employ appropriately based on the event that you have 8 from more symptomatic, you know, analysis in response 9 rather than from this alarm came on, that means I need 10 to move these three switches attached to these three 11 pumps, is that you have to look at it holistically how 12 best to respond to it.

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

22JUDGE TRIKOUROS: I don't know, I don't 23 think I want to pursue that any further.

24JUDGE SPRITZER: All right. Does anybody 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 121have anything further they want to add on this last 1 Contention 4?

2MR. KEMPS: Yes, Your Honor, just on that 3last point that Mr. Harris raised. It's my 4 understanding that NRC regulations, in terms of 5 personnel staffing levels, can only be applied to the 6control room and to the security guard force. And so, 7 assumptions about staffing levels to deal with 8 mitigating a potential pool fire or other mitigations 9 that have to take place to prevent a catastrophe from 10 unfolding, I think that's very optimistic for Mr.

11 Harris to just assume that.

12JUDGE SPRITZER: All right. Very well, I 13 think we've heard all we need to hear on Joint 14 Petitioners' contentions. We'll move on to consider 15 CRAFT's contentions when we come back after lunch.

16 Before we leave, does anybody have 17 anything else they want to raise? As far as timing, 18 I think my recollection is you have to walk a little 19 bit to find some place to eat, so why don't we allow 20 an hour and 15 minutes? So, we'll come back at a 21 quarter to 2:00 and we'll still make our best efforts 22to get out of here by 4:00. Is there anybody that if 23 they stay a little after 4:00 is going to have a major 24problem with transportation? Okay. Well, we 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 122hope to finish by 4:00, we'll do our best. Thank you.

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

3JUDGE SPRITZER: We are here at the 4 afternoon session of oral argument in the Fermi 2 5 licensing proceeding, the argument on contention 6 admissibility, and we are ready to move on to consider 7 the contentions proposed by CRAFT, C-R-A-F-T, all 8capital letters, Citizens Resistance at Fermi 2. A 9 total of 14 contentions which we have grouped for 10purposes of expedited argument. And we begin, unless 11 there are any questions or issues we need to consider 12 before we get started, we will begin with CRAFT 13 Contention 1, and I believe we'll be hearing from Mr.

14 Sherman.15 MR. SHERMAN: Yes sir.

16MR. HARRIS: Judge Spritzer, I hate to 17interrupt. I told you I would check on the dates for 18 the reg basis for the filtered, the filtering 19 strategies rule making. The reg basis is due this 20December. And then the following rule is due next 21 year in December.

22JUDGE SPRITZER: Okay. Well, keep us 23notified if any development happens that can be 24 relevant, that you think would be relevant 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 123 contentions.

1 MR. HARRIS: Yes sir.

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

4 JUDGE SPRITZER: Oh, okay.

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

9JUDGE SPRITZER: Okay. Great, thank you.

10 All right, you may proceed.

11MR. SHERMAN: Thank you, sir, and thank 12you gentlemen of the panel. Your Honors, I want to 13 first thank you sincerely for the opportunity to 14address you. I feel very honored to be here speaking 15on these contentions. And so I just wanted to express 16 my heartfelt thank you. My name is James Sherman.

17 I am a steering committee member of the 18 Citizens Resistance at Fermi 2, and I'm here to defend 19 our contention that the public deserves a hearing in 20 reference to these matters, especially with regard to 21alternatives that are viable and realistic. So the 22 NEPA law requires the Applicant to include in their ER 23 analysis that considers and balances the environmental 24 impacts of alternatives for reducing or avoiding 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 124 adverse environmental impact.

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

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

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

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

20JUDGE SPRITZER: I think their position 21 is, basically, that you haven't demonstrated that it's 22 a viable alternative to providing what they call base 23load power. That's power that's available all the 24 time, even when the wind's not blowing.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 125 MR. SHERMAN: Thank you, Your Honor, and 1 I would like to address that directly.

2 JUDGE SPRITZER: Sure.

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

11 And we would say that it is a very thin 12 argument to suggest that the entire State of Michigan 13could stop blowing. It's a really difficult argument 14 to make.15 And I would challenge DTE to show me on day on the 16 record on which there was no wind in the state. And 17 on days where wind resources are lower, sun resources 18 tend to be higher.

19 We would also point out that the claim that DTE 20 made that there is no storage capacity on grid in 21Michigan is blatantly false. The Luddington power 22 pump station actually is able to pump water up over 23300 feet into a reservoir. It was built in '69 24 through '73, and when it's at full generation 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 126 capacity, it can produce 1,800 megawatts of power; 50 1 percent more than the total output of Fermi 2 when 2 running at 100 percent power.

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

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

24JUDGE SPRITZER: We'll give you three 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 127minutes for rebuttal. Was that an assumption that he 1 would have three minutes of rebuttal?

2 MS. KANATAS: Yes.

3MR. SHERMAN: Excellent. So our point is 4that DTE takes a dualistic approach. On one hand, in 5 their NEPA statements and environmental statements, 6 they're saying that wind is not a viable option.

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

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

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

22 And the fact that the current state of the grid 23requires that energy be stored, and that special 24 arrangements be made with certain customers, such as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 128 interruptable service and giving better rates for off-1 peak usage.

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

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

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

23MR. SHERMAN: Correct. Wind power has, 24 historically, been rated between 30 and 15 percent 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 129capacity factor. Meaning that for every 100 1megawatts, you would potentially get 15 to 30. But 2 those factors have been raising quite steadily, and 3 capacity factor for wind throughout the country has 4 been reaching close to the 50 percent, and well over 5 40.6 Throughout the world, we're seeing records 7 being set regularly in both the building of wind 8 generating capacity, as well as higher capacity 9factors. Just recently, the North Sea Off Wind 10 Resources off of Europe had set major records towards 11 running at 100 percent capacity factor for days on 12 end.13 And the only real problem is that if we 14 build enough capacity in wind to more than make up 15 base load for Fermi 2, at times we will have power 16overages that can be sold out of state, sold to 17 customers that have flexible demands, like salt mines 18creating chlorine and sodium resources. Those can be 19 put in place when energy is at a maximum.

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

23 Because once these resources have been paid off, they 24produce energy for free. So the fact of the matter 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 130 that economically and environmentally, renewable 1energy is a boon for Michigan. They're in-state 2 resources.

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

9JUDGE ARNOLD: I'm going to interrupt you.

10 MR. SHERMAN: Please.

11JUDGE ARNOLD: You're not answering the 12question. It was a very brief question. If you 13 continue to answer and answer and repeat things that 14 are in the petition, we're not going to get through 15today, because we've got a lot of questions. So could 16 you be, please be briefer?

17MR. SHERMAN: Would you restate the 18 question, please.

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

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

23JUDGE ARNOLD: Well no, because we have 24 questions.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 131MR. SHERMAN: Please. I would be happy to 1 answer them, sir.

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

12MR. SHERMAN: It is not possible to 13produce 90 capacity factor with wind. That is why, 14 because it is so much cheaper than nuclear, you can 15 double or triple the capacity for the same financial 16investment. And produce windfall profits in the 17 future for DTE because once the initial investment is 18 paid off, the energy's produced for free.

19JUDGE ARNOLD: Is there anyplace that wind 20produces power 90 percent of the time? I'm not say 21capacity factor, this is with over capacity, and 22 yields a megawattage equivalent to, or approximately 23 to Fermi 2?

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

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

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

10MR. SHERMAN: There's places throughout 11the world that have that much wind power. You'll see 12 in Denmark and Germany, these countries are close to 13 100 percent renewable power, largely from wind and 14solar. And they are closing all of their nuclear 15plants. So I would say that it's not only not 16 speculative, but is demonstrable in other countries 17throughout the world. And if you look at the wind 18 factors in Michigan, we are barely tapping the 19 available resources we have in the state.

20JUDGE TRIKOUROS: In your pleadings you 21 point out that the only way to achieve any kind of 22 base load situation is with respect to interconnected 23wind farms, correct. So let me understand that. Now, 24 in other cases that we've had, we've discussed various 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 133 factors associated with this, so I can ask questions 1 from some of that experience.

2 MR. SHERMAN: Please.

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

9JUDGE TRIKOUROS: You would be talking 10 about, let's again say, for the sake of argument, four 11 wind farms at locations that are far enough away from 12 each other that the wind will always blow in at least 13one of those locations.

So you'd be talking about 14roughly 4,500 megawatts electric of generation. So 15 you have to buy four times as much power as Fermi, 16 such that at any one of those four locations that 17 would be a Fermi? Is that what we're talking about?

18MR. SHERMAN: That is one mitigation 19 strategy. That is reasonable and feasible.

20JUDGE TRIKOUROS: Well, when you say, you 21 brought up interconnected wind farms, so I'm just 22trying to understand what you mean by that. So, we're 23 talking about four Fermis worth of energy at different 24 locations?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 134MR. SHERMAN: And we're more than a 1 quarter of the way there with minimal investment in 2 that type of energy in the state.

3JUDGE TRIKOUROS: Okay well, when you say 4 interconnected wind farms, is that what you mean?

5 MR. SHERMAN: Well, yeah --

6 JUDGE TRIKOUROS: What I just said?

7 MR. SHERMAN: Yes.

8JUDGE TRIKOUROS: Okay. I just want to 9 make sure I understand what that means.

10MR. SHERMAN: Thank you for the 11clarification. And in our original contention, we 12said renewable energies such as wind. Wind is only 13 one part of the factor, but more than enough to 14replace Fermi 2. And with additional renewable 15 resources online, we can start replacing units other 16than Fermi 2; palisades, the coal plants. We have the 17resources here in the state. We don't have to go out 18 of state for our energy.

19JUDGE TRIKOUROS: You talk about, later in 20 your pleading, you talk about some renewable standards 21 that the State of Michigan is --

22MR. SHERMAN: Yes renewable portfolio 23 standards, RPS.

24JUDGE TRIKOUROS: And, you know, 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 135 indicate that they have, that they're required for 10 1 percent renewable?

2 MR. SHERMAN: Yes sir.

3JUDGE TRIKOUROS: And you indicate here 4 that they, basi cally, are at 9.6 percent. Is that 5 correct? You mention a 9.6 percent number in here.

6 MR. SHERMAN: Did I say 9.6 percent?

7JUDGE TRIKOUROS: You mention 900 8 megawatts is owned or contracted renewable energy 9 generation by Detroit Energy.

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

12JUDGE TRIKOUROS: Right. Okay, and you 13 claim that that 900 megawatts is equivalent to 9.6 14 percent of the electricity that will be sold to retail 15 customers in 2015.

16 MR. SHERMAN: I believe that is correct.

17 I don't have that paper in front of me, but it sounds 18 correct.19JUDGE TRIKOUROS: So if there's 900 20 megawatts, and it's at 30 percent capacity factor, how 21could that be 9.6 percent? Or is the 9.6 percent the 22 900 megawatts, and you're assuming that that 900 23megawatts will always be operating? I don't 24 understand your numbers, that's why I'm asking.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 136MR. SHERMAN: Well, first of all, there's 1 more than 1,200 megawatts on the grid in wind power 2 alone; not including other renewables, according to 3 Michigan Public Service Commission. And that number 4 is constantly rising. It's the only major form of 5energy that's being constructed. So my point isn't 6 that we are at a position currently with on-grid 7 renewables in the state that we can now replace Fermi 8 2's base load capacity.

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

19JUDGE TRIKOUROS: Now this is just a 20 follow-up on Judge Arnold's comments.

21 MR. SHERMAN: Yes sir.

22JUDGE TRIKOUROS: This is an assumption on 23your part. You, for example, can you point to a base 24load simulation study of that? In other words, 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 137 can put into a computer that I have a wind farm here 1 and a wind farm here and wind farm there, give it all 2 the specifications for wind blowing, not blowing, give 3 it everything in terms of repair, you know, 4maintainability, reliability, do all of that. And it 5 will come out and tell you what the base load is.

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

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

14JUDGE TRIKOUROS: Can you point to a 15 study? Can you point to anything that is, you know, 16 concrete that would show this?

17MR. SHERMAN: And you tell me that 18 concretely Fermi 2 will be running at 90 percent 19power, 24/7, 365? Because if what we're trying to do 20 is replace a constant source of power, that's not what 21we're proposing to replace. Fermi 2 has down time, as 22well. The only difference is if you have a wind spill 23 or a solar spill, nobody dies.

24JUDGE ARNOLD: Can you control the outage 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 138 time of windmills?

1 MR. SHERMAN: No.

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

4MR. SMITH: We do have scheduled outages, 5 yes. 6 MR. SHERMAN: And unscheduled.

7 MR. SMITH: Correct.

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

10MR. SMITH: I don't know off the top of my 11 head.12JUDGE TRIKOUROS: And in the past, when 13 contentions have been, and this was pointed out in the 14 pleadings of the other parties, in the past when 15 contentions have been approved, contentions of this 16 exact nature, they have not been admissible through 17the Nuclear Regulatory Commission. So, unless you 18have something additional that you can add with 19 respect to concrete information that says I can shut 20 down this plant and it won't be a problem because of 21 wind.22MR. SHERMAN: I understand. Like I said, 23 what we're advocating for is a mix of renewables, such 24as wind. According to the MSU Land Use Institute, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 139 they have documented 300,000 megawatts of wind 1 potential on the Great Lakes. Lake Erie has some of 2 the best wind potential in the U.S. because of the 3 east/west orientation of it.

4We have massive resources available. The 5 only reason we cannot point to more of them is that 6 these resources have only recently been invested into 7 heavily. The position of DTE has been, in the past, 8this is not reasonable. But since we passed RPS, they 9have been on track to meet it. These projections are 10 absolutely reasonable.

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

20JUDGE TRIKOUROS: You could do those 21simulations. I mean, y ou could get somebody to do 22 those.23 MR. SHERMAN: We would like to.

24 JUDGE ARNOLD: You could do that on a PC 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 140 at home.1 MR. SHERMAN: We would love to do that.

2JUDGE TRIKOUROS: This is not difficult to 3 do.4MR. SHERMAN: Perhaps some of our partners 5 here at the tables with more resources would be 6 willing to do the job that NEPA requires of them, and 7 we wouldn't have to be here arguing for this.

8JUDGE TRIKOUROS: Well, it would be 9 helpful to have hard data.

10MR. SHERMAN: One of the problems with 11 getting hard data on wind in Michigan is that, unlike 12 some other states such as Minnesota, there is no real 13 time reporting for wind that's required by the 14Michigan Public Service Commission. I did try to get 15 more specific numbers for this panel.

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

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

24And we understand. But if DTE were 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 141 pull their resources from Fermi 2, stop running that 1 plant, and put all the resources into wind, of course 2 the rate payer would win. Of course the state would 3win. Of course the state environment would win. What 4would lose is their decommissioning fund. And it's 5 their choice to build a nuclear plant.

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

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

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

13 It is in the scope of this hearing to 14 select a public hearing. It is time that the public 15 be allowed to weigh in on these facts.

As we have 16 witnessed from these proceedings, there's lots of 17 unanswered questions about renewable energy, about the 18potential dangers to health and the environment. But 19 that's why it is urgent that we allow the public to 20 have a say.

21 We're not going to figure this all out 22now. But, by the fact that we don't have this all 23 figured out, and that there are still questions, we 24 strongly urge this panel, with all due respect, 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 142hold a public hearing and let the public have these 1 issues aired out.

2JUDGE SPRITZER: All right, let's move on 3and hear from the Applicant. I'm sure they have a 4 different perspective.

5 MR. SHERMAN: Thank you, gentlemen.

6 JUDGE SPRITZER: Please proceed.

7MR. SMITH: Thank you. Tyson Smith for 8DTE. In this contention, CRAFT alleges that wind 9 power is a viable option. But, as we, some of the 10 Judges have recognized, this is a conclusory statement 11 that fails to recognize that, at bottom, to be 12 reasonable, an alternative must be capable of 13 replacing the 1,170 megawatts of base load generation 14from Fermi 2. Any alternative that doesn't include 15 replacing that base load capacity is unreasonable 16 under NEPA's purpose and need.

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

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

24 It explains that a single wind farm 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 143 generation unit of sufficient size to be able to, 1 given the capacity factors, would not provide 2consistent power able to approximate base load. So 3 then the ER goes on to consider whether you could have 4 multiple interconnected wind farms over a large area.

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

8And we did that. And we concluded that 9 wind energy would not be able to provide consistent 10 base load generation due to insufficient velocity and 11duration. And there's been no showing that this is a 12theoretical approach. It would commercially viable or 13 technologically feasible in time to replace the 14 generation of Fermi 2.

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

24 So, at bottom, the ER concludes that wind 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 144 power is not reasonable based on the lack of adequate 1wind resources in the DTE service area, the 2 significant shortcomings and reliability of wind as a 3 base load energy source, the limited availability of 4 pump storage, and the undetermined availability of 5 geological formations for compressed air energy 6 storage.7 So I think the point here is that DTE has 8 looked at all of these options, and has addressed them 9 and put forth information and a basis for its 10conclusions. And at this stage in the proceeding, 11 it's incumbent on the Petitioners to present some 12 genuine dispute with those conclusions. And nothing 13 in there, the contention or the reply, rises to that 14 level. Contention 1 is inadmissible.

15 JUDGE TRIKOUROS: Go ahead.

16JUDGE ARNOLD: Just assume for a moment 17 that it was reasonable to replace Fermi 2 with wind 18power. Just, you know, make the assumption. Now, 19 what would you, how would you compare the continued 20 environmental impact of Fermi 2, that's already there, 21 already been constructed, already in operation, to the 22 impact of building enough windmills to replace Fermi 23 2?24 MR. SMITH: And that's a good point, 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 145 that's certainly something that in our ER we also 1discussed that. We talked about the impacts of 2installing wind generation. It has impacts on land 3 use and on, you know, on birds and other mammals, like 4bats. It has, requires more transmission if you're 5 going to have them distribute over a larger area.

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

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

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

24 And, certainly, there's nothing here to suggest 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 146 that's the case.

1 JUDGE ARNOLD: Thank you.

2 JUDGE SPRITZER: NRC staff?

3MR. LINDELL: Your Honors, Joseph Lindell 4representing the NRC staff. So as we've discussed 5 here, I mean, in their brief standard argument here, 6 Petitioners have stressed that, you know, in general 7 wind power is a way, a viable means of generating 8power. Petitioners, however, have failed to show why 9 the alternatives analysis in the ER is insufficient.

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

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

24 As also Petitioners pointed out, they did 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 147 raise on reply, you know, in a situation where, you 1 know, new arguments can generally not be raised on 2 reply, that point to certain maps from the state that 3 you can access on the State of Michigan's website, 4 where you add up all the milliwatts generated by wind 5 currently, and plus some future expansions that are 6 planned, you do reach a number of 1,170 milliwatts or 7 such. 8 But you know, to the extent that this is, 9 indeed, a challenge to the ER, there are several 10 problems with this. We don't know, for example, how 11 much of this current wind power and projected wind 12power, although in the State of Michigan, is in the 13DTE service area. It also assumes that, you know, all 14 of this wind power is now able to, basically, replace 15 the base load demand of Fermi, and it isn't already 16 supplying, you know, other demands throughout the 17 state.18 And also, as you know, the Applicant 19 pointed as well here, that you know, there are 20 reliability issues with wind power, such as wind has 21 to be blowing sufficient velocity and duration. And 22 the conclusion in the ER was that it would, it would 23not be able to do so to generate base load power. And 24 CRAFT has failed to challenge 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 148 I guess just the one other thing I would 1 bring up is the, CRAFT also mentioned the potential 2for offshore wind development. They consider that to 3 be very favorable. Now, the ER addressed this, as 4well. And, as the Applicant pointed out, there are 5issues with, you know, impacts caused on the 6environment by offshore. And also, the ER makes an 7 important point that legislation in Michigan would be 8 required to create such a regulatory framework for 9offshore wind generation. And, as of the submittal of 10 the ER, they note that no such framework existed.

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

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

16JUDGE TRIKOUROS: In terms of the cost of 17 wind, you heard what was said regarding the statement 18 that it was cheaper. Is this something that you can 19 support, that it's actually cheaper than nuclear, for 20example? For example, if I went on the NEA site right 21now, website, and I looked at the cost per kilowatt 22 hour2.546296e-4 days <br />0.00611 hours <br />3.637566e-5 weeks <br />8.371e-6 months <br /> of these different energy sources, would I find 23wind that would be cheaper than nuclear? Do you have 24 any, do you 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 149MR. LINDELL: I'm sorry, I can't, I can't 1 really provide any insight on that question.

2JUDGE ARNOLD: Well, do you expect that 3 you would find any new build wind cheaper and more 4 cost effective and an already constructed nuclear 5 power plant?

6MR. LINDELL: I also don't have the facts, 7you know, to support that one way or another. You 8 know, I know that, you know, that you know, something 9 that's already constructed, you know, there are 10 certain, you know, cost effectiveness to that as 11 opposed to constructing something new. But, I mean, 12 other than that, other than sort of a very general 13 knowledge, I can't really supply anymore details on 14 that. 15JUDGE ARNOLD: Just one more question for 16 the Intervenors, in your responses, you mentioned wind 17 and other renewables.

18 MR. SHERMAN: Yes sir.

19JUDGE ARNOLD: The actual contention 20statement is wind energy is a viable alternative. So 21let me get this clear. You're actually saying wind 22 and other renewables, not just what the contention 23 statement says of wind.

24MR. SHERMAN: For the future of Michigan, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 150 I believe all renewables need to be on the table, and 1 whatever works best for the local environment. But, 2 considering that nuclear is well less than 20 percent 3 of the state's grid power, I would be more than happy 4 to stand behind the fact that if we're just talking 5 about replacement of Fermi, we have the resources in 6 Michigan to do it.

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

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

And the current mitigation 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 151 strategies is for smoothing out supply and demand on 1 the grid can be applied to these future overruns and 2 under productions.

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

7MR. SHERMAN: I'm glad you asked that 8question. I would like to clarify. There's a big 9 difference between generating capacity and the actual 10real time capacity factor. I am not claiming that all 11 12,000 megawatts of wind power currently on the grid 12is generating at that capacity at all times. That is 13 not our contention.

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

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

24JUDGE TRIKOUROS: Also I wanted to ask, 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 152 guess you again, why is it that when utilities install 1 wind capacity, they install an equal amount of fossil 2 energy? You know, for example, in California --

3MR. SHERMAN: I don't know that to be 4true, sir. I've read studies that say in some of the 5 recent months, the only generating capacity that's 6 been developed statewide, and in some months 7countrywide, has been wind power. Wind power had 8 definitely been outpacing fossil fuels in terms of new 9 energy on the grid, from what I have studied.

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

12JUDGE TRIKOUROS: That wasn't my question.

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

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

18JUDGE TRIKOUROS: Yes, and I believe that 19 that's a consistent behavior.

20 MR. SHERMAN: That's not what I've seen, 21but I'd love to see the study that can prove it. But 22that's not my experience. And in some months, all of 23 the new generating capacity on the grid has been from 24renewable resources. It's one of the only things 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 153 can build, unless you're trying to bring older plants 1 up to a higher generating capacity or working with 2some sort of grandfather plan. New plants need to be 3 developed in compliance with the Clean Air and Water 4 Act. 5JUDGE TRIKOUROS: You know, unlike some 6 organizations in this world, utilities are required to 7 produce electricity constantly. They don't have the 8 luxury, anyone in this room if they lost electricity 9 for five days, they would be jumping all over the 10 utility company, suing, and they might even die.

11 MR. SHERMAN: It happens all the time.

12JUDGE TRIKOUROS: They might even die.

13They might even die. So there's no option. When 14 intermittency is installed, it has to be backed up.

15There has to be a back-up if it's intermittent. They 16 account for downtime of nuclear power plants by 17installing combustion turbines. They account for the 18 down time of any plant by installing other plants.

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

22JUDGE TRIKOUROS: Well, what I'm saying is 23that intermittency can't be counted on. If an energy 24 source is intermittent, it cannot be counted on as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 154 base load.

1 MR. SHERMAN: Understood.

2JUDGE TRIKOUROS: And therein is the 3problem we're facing here. That nuclear power plants, 4 and I'm sure Fermi falls in the general category of 90 5percent capacity factor entities. So the utility does 6 have to account for a 10 percent downtime of those 7plants. In the same way, if it built 30 percent 8capacity factor assets, it would have to provide 9 energy 70 percent of the time using some other way.

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

16MR. SHERMAN: I understand what you're 17saying. It is my belief that the arguments of DTE and 18NRC are somewhat self serving. Of course they want to 19maintain the status quo. Of course they will make 20more money by keeping Fermi 2 online. But, as a 21 utility, their responsibility is not just to their 22bottom line. Of course they have a responsibility to 23 their investors.

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

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

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

12 We're talking about having that base load power on the 13grid. Using resources from the great State of 14 Michigan before the renewal of this permit in 11 15 years. 16 Eleven years is a long time to build 17storage. To incentivize individual and community 18 based grids and storage so that people, especially 19 relying on life support at home, can have the security 20 of an un-interruptable power supply. And we believe 21 that that can be incentivized and will actually help 22 DTE in the long term to deal with these already 23 existing separations between supply and demand.

24JUDGE TRIKOUROS: Okay well, I think we've 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 156 used enough time on this, so we heard your --

1JUDGE SPRITZER: Thank you very sincerely.

2 MR. SHERMAN: Okay.

3JUDGE SPRITZER: Thank you for your 4information. And let's move on now to the second 5 group of contentions.

6MS. COLLINS: If I might, one of the, 7 Sandy Bihn who was to defend Contention 12, which was 8 Group 5, has a scheduling conflict, and we would like 9 to request that she go on next, if that's all right.

10JUDGE SPRITZER: Does anybody have a 11 problem with that. Fine, that would be fine.

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

14 JUDGE SPRITZER: Absolutely. That would 15 be fine. 16 MR. SHERMAN: I will be in the room if I 17 wish to be addressed. Thank you again.

18MS. COLLINS: Contention 12, thermal 19 pollution.

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

22 I'm Sandy Bihn and I'm a Lake Erie waterkeeper, and I 23live on the shores of Maumee Bay and Lake Erie. I've 24lived there since 1987. I also serve 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 157 international joint commission board of water quality 1 advisor board, as well as the Ohio Department of 2 Natural Resources coastal advisory board, and other 3 boards relating to Lake Erie.

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

6JUDGE SPRITZER: Maybe you can move the 7 microphone a little bit closer.

8 MS. BIHN: Sure.

9JUDGE SPRITZER: But not too close, 10 because that's the one that gets feedback.

11MS. BIHN: Is that okay? Does that work?

12 Do you want me to start over?

13 JUDGE SPRITZER: No, no.

14MS. BIHN: All right. And so I've worked 15 with the Lake Erie waterkeeper program, which actually 16 serves Lake Erie from coast-to-coast from the, on the 17 west from Ohio and Indiana to the east to New York and 18north and south from Ohio to Ontario. So I work on 19 the whole lake on a regular basis for the past 10 20 years. 21 So I'm just here to kind of talk about the 22 water impacts of the facility, and what is different 23 from the 2008 environmental impacts that were 24 submitted then, and what's going on right now. Most 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 158 of you may be aware of the fact that the City of 1 Toledo had a half a million people with a do not drink 2 advisory on August 2nd, which is the water intake on 3 the southern shores of Lake Erie, probably 10-15 miles 4 from the Fermi 2 operation.

5JUDGE SPRITZER: Yes, we even had an 6 article in the Washington Post about that, so yes.

7MS. BIHN: Well, it's been all over the 8world. It's not often that people, you talk about 9economic impact. The restaurants were all closed. The 10hospital stopped surgeries. And it was huge in terms 11of the ripple effect that that had. How does that 12 relate to this hearing, and what here in the 13 contention in terms of algal blooms and mixing zones?

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

24 And so this starts the bloom sooner than 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 159it would normally happen. And that's particularly 1 significant for the Toledo situation in that we had a 2 very warm, or excuse me, a very cold, dry July; almost 3a record cold, dry July.

And yet, we had a bloom 4 early. Algal blooms usually start in mid-summer and 5peak in September. So it's really unusual that we 6 would have the kind of situation that happened in 7 Toledo on August 2nd.

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

16 So I guess the point here is that the 17 acceleration of the water temperature and then 18 creating the bloom, the start of the bloom, can I tell 19 you that that bloom, what bloom means to the rest of 20 the lake, and does that start the bloom accelerating 21across the lake? I can't say that. There's no, that 22has not been studied yet. What we can say is that is 23definitely where it starts. Each, almost each and 24every year you get the satellite imagery. You'll see 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 160 it right in the mixing zone of these plants.

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

9 But there is a concern that these power 10 plants are accelerating the blooms, and they can start 11further. I mean, that's certainly a reality of what's 12going on. And, at a minimum, it would be good if the 13 temperatures were down in the water, if somehow they 14 reduce that, what's causing and creating a bigger 15 bloom in the lake, or at least an earlier bloom in the 16 lake. 17JUDGE SPRITZER: How many power plants, 18nuclear or non-nuclear, are there in this general 19 area?20 MS. BIHN: In the western basin, there's 21 the coal fire power plant, certainly, in Monroe that 22does two billions gallons of water. So it's much 23 larger, it's footprint is much larger than this one at 2445 million. And there's Erie Township that has 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 161 135 million, it's a coal fire power plant. Besse on 1the other side has 45 million. Bay Shore has 2 decreased theirs from 750 million to about 180 million 3 gallons a day.

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

8But it does not. Somehow, the way the winds blow and 9 the currents are in the water, it would appear that in 10 the Monroe area, where Fermi is at, that the waters 11are a little bit more stagnant. Perhaps they don't 12 move, and the circulation isn't quite as great. I'm 13 not sure, but for some reason, year after year, that's 14 where the bloom starts.

15JUDGE ARNOLD: Well, looking at the 16 written contention, I can't see anywhere where you've 17 identified or specifically disagreed with anything in 18 the Fermi 2 environmental report.

19MS. BIHN: The report was based on 20information before, or it was submitted 2008. The 21problems with the blooms have happened since then. So 22 in many ways, you know, if there's more information 23 that comes forward and we have a problem in the lake, 24 which we absolutely do, and I think that's widely, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 162 publicly recognized, then it would seem to be prudent 1 to include the reality of today, as opposed to, you 2know, what was known in 2008. And because the blooms 3 in Lake Erie really, the record blooms have been 2011.

4 The next one was 2013 and 2014.

5JUDGE ARNOLD: Let me just ask that 6quickly. When was the environmental report submitted 7 to the NRC?

8 MR. SMITH: Earlier this year.

9 JUDGE ARNOLD: So it wasn't 2008.

10 MR. SMITH: No, it was not.

11MS. BIHN: Well the dates, I thought, were 12based on 2008. But certainly even earlier this year, 13 this factor in terms of what's going on would not have 14been allowed. I mean, they just wouldn't have had the 15 information.

16JUDGE ARNOLD: See, the problem I have is 17 I find that it is addressed in the environmental 18 report, and you haven't directly challenged what's in 19the environmental report. You've just said well, 20 there's some information that they couldn't possibly 21 have considered from that evaluation.

22JUDGE SPRITZER: That might be an 23 interesting question, but we'll maybe save it for the 24 staff and the Applicant of whether, what is the duty, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 163 if any, to update the Applicant's environmental 1report. There's obviously a duty on a Federal agency 2 and the need to address new or supplemental 3information. I know we had at least one licensing 4board that looked into that question. You'll have 5 three minutes for rebuttal, so why don't we move on, 6 and I'll ask that.

7MR. SMITH: Sure, and I'll start by 8answering that question. There is currently no 9 obligation to an Applicant to update its ER. That's 10 something that, in the Diablo Canyon license renewal 11proceeding that issue came up. And the Board there 12 concluded that there was no obligation, but referred 13the issue to the Commission. And the last I heard, 14 the staff was still considering what, if anything, to 15 do with that.

16JUDGE SPRITZER: So it hasn't been 17 resolved. Now I take it the corollary of that would 18 be if there's no duty on the Applicant in this case to 19 upgrade the ER, we can hardly insist that the 20 Petitioners, or if they become Intervenors, file new 21 contentions every time some new piece of information 22 comes along saying you have to update the ER when, in 23 fact, there's no duty to update the ER.

24MR. SMITH: No, if there's new information 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 164 that comes along, you have a duty, as a Petitioner, to 1 file new contentions in a certain period of time.

2JUDGE SPRITZER: Well, if the argument 3 though is that the ER, they wouldn't be able to argue 4 that the ER needs to be updated.

5MR. SMITH: The argument wouldn't be that 6the ER needs to be updated. It's that the information 7 in the ER is incorrect.

8JUDGE TRIKOUROS: Yes, I think what Diablo 9 found was that the Applicant didn't have an obligation 10 to update the ER, but there was obligation to report 11 new information so the EIS could be updated by the 12 staff.13MR. SMITH: Correct. Yes, the staff will 14 still reflect it in their, their Group B documents.

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

21 Well DTE's ER, in fact, analyzes the 22 potential for algae blooms, including the harmful 23algae blooms in Lake Erie. There's an extensive 24discussion of the impacts. It describes the Lake Erie 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 165invertebrate population in the ER. It mentions the 1 historical occurrences of harmful algae blooms in 2 western Lake Erie.

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

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

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

21 For their part, CRAFT offers no specific information 22 to controvert those conclusions. It doesn't provide 23any expert or factual support. And the fact that this 24 is an issue of intense interest right now is 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 166 enough to render it to be an admissible contention on 1 its own. Contention 12 is inadmissible.

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

5MR. SMITH: I do not know if Fermi 2, I'm 6 not sure, for the intake temperature? I'm not aware 7that they have. I don't believe that there is a 8temperature restriction at present. They have not 9 filed anything to increase.

10JUDGE TRIKOUROS: They did not file.

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

15MR. SMITH: Correct. And that's not a 16 circumstance that Fermi has had to --

17JUDGE TRIKOUROS: But that hasn't happened 18 with them?

19 MR. SMITH: It has not.

20JUDGE SPRITZER: Did your ER discuss the, 21 what CRAFT refers to as the recent water emergency in 22 Toledo, Ohio caused by toxin algae blooms?

23MR. SMITH: No, it did not. Obviously, 24 that occurred after, after we filed our ER. But, as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 167 I mentioned, our ER does discuss the potential for 1that to occur. It notes the occurrences of that in 2the past. And it, specifically, mentions microcystin 3 which, if I remember correctly, was the particular 4 toxin produced by the algae that was this summer.

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

12JUDGE SPRITZER: All right, let's move on 13 and hear from the staff.

14MR. LINDELL: Your Honors, the staff 15 wishes to stress similar to, you know, the arguments 16 made by the Applicant. That, in its initial filing, 17 CRAFT didn't make any specific challenge to the ER 18 that was supported by facts or expert opinion when it 19 came to these algal blooms. And I'm not going to go 20 over the entire discussion the Applicant just had 21about what the ER does actually do to consider this 22 issue.23 You know, on reply, the Petitioner did 24 point to the fact that studies were done in 2008 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 1682011. There haven't been any studies since, let's 1 say, the crisis in Toledo or, you know, the algal 2 bloom last summer. Now in their argument that point 3 out that, they make a point that actually the 4 satellite images or other studies show that the 5 origins of the bloom are someway interrelated or 6 connected, start at Fermi 2.

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

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

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

23 JUDGE SPRITZER: Well, this August, 2014 24 satellite image, does that in any way, whether it's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 169 new or not, does that in any way have any bearing on 1 the question of whether Fermi 2 contributes to the 2 algal blooms that have happened?

3MR. LINDELL: Your Honor, I did take a 4 look at the images that were provided in the petition 5and their reply. To be honest, two of the images they 6 say are from NOAA, I was unable to locate. The link 7doesn't appear to work. The link appears to be a dead 8link. The other image, you know, is from an article, 9 actually, from Business Insider, which I guess comes, 10 does initially come from NOAA.

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

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

23 I guess the one, if I still have time, one more thing 24I'd like to point out. In the past when, actually 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 170 it's worth noting the Fermi 3 Board, in the CO offer 1 sitting there they did initially admit a contention on 2 algae. 3 And it's worth pointing out that over 4 there Petitioners made specific references to studies.

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

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

21JUDGE SPRITZER: Let me ask you about the 22question we talked about with Mr. Smith. That is, 23 first of all, does the staff take the position that an 24Applicant, when it learns of new and potentially 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 171 skewed information relevant to a NEPA issue has a duty 1to update its ER or not? Or are you still looking at 2 that.3MR. LINDELL: Your Honor, I'm, that is not 4 an issue that I am familiar with.

5JUDGE SPRITZER: You're about to get some 6 assistance.

7MR. LINDELL: I mean, the staff's position 8 is that the Applicant doesn't have a specific duty to 9update the ER. But we do continue to ask, request for 10additional information. And through that RAI process, 11 we do learn more, which then allows us to include that 12 in our environmental impact statement.

13JUDGE SPRITZER: All right, given that 14 position, then what is the responsibility of the 15 Petitioners or Intervenors? In other words, if they 16 become aware of information that they say is new and 17 significant, do they have the duty to, at that point, 18 to come in and say the ER is wrong, even though it 19 can't really lead to any requirement to change the ER?

20 Or can they wait until the draft EIS comes out, and 21 see whether the staff has actually taken that 22 information into account before they file a new 23 contention?

24MR. LINDELL: Our position is that they do 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 172 have an obligation to raise new and significant 1information when they become aware of it. The ER, at 2this point, is standing in for the EIS. But then, you 3 know, that information will then be addressed in the 4 EIS once we become aware of it.

5JUDGE SPRITZER: Okay. All right, is this 6 being considered in our rule making of any sort? Or 7 is this just the staff's current position?

8 MR. HARRIS: May I address?

9 JUDGE SPRITZER: You can talk direct. I 10 mean, we don't have --

11MR. HARRIS: I believe the Commission, in 12 the Diablo case, asked the staff to take a look at the 13obligation to update the ER. So that is being 14considered, that particular issue. But it's not been 15finalized. The staff normally, when it becomes aware 16 of new and significant information, however it becomes 17 aware of that, it would ask RAIs to try to resolve 18 that so it can be addressed in the EIS.

19 JUDGE SPRITZER: Okay. All right, thank 20 you. 21MR. LINDELL: I think my time has expired.

22 Does the Board have further questions?

23JUDGE SPRITZER: I don't think we do. All 24 right, the Petitioner's will have, CRAFT will 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 173 three minutes for rebuttal.

1MS. BIHN: I guess, factually speaking, 2 it's really important to know that temperature is what 3 drives a bloom. The blooms don't happen nine months 4out of the year. What creates the bloom is increased 5water temperature. There is no doubt that Fermi 2 6 increases the water temperature by 18 degrees in the 7 mixing zone, the footprint of the plant.

8 Applicant said that the algae there is not 9harmful. I beg to differ. Almost all the algae that 10 come in that period of time in the summer are harmful, 11 and contain cyanobacteria which creates the 12microcystin which was the problem in Toledo. By 13 having an accelerated bloom at the footprint of the 14 plant, in the mixing zone, you have algae that's 15 there. 16 What happened in Toledo is that algae, the 17winds were perfect. They blew it from other locations 18into the intake. It wasn't like the intake itself, 19 the area of the intake is where the bloom occurred.

20It did not. I mean, I'm sure it had some of the 21blooms, I don't want to say that. But, in general, it 22 went down 14 feet. I was out there the Sunday after 23 it happened. It's a massive amount of algae.

24 And so we have a major problem, because 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 174 the water intakes, the drinking water intakes in 1western Lake Erie do not have reservoirs. So they 2draw the raw water, and they take it in. It's costing 3more to test and treat. And so there's a concern 4 about the microcystin that's in there.

5 You know, these power plants have been 6here a long time. You know, this problem has not 7 really gotten as serious as it is. As I said, the 8record year was 2011. And then next ones were '13 and 9'14. So this is really a new issue. It's an 10 important issue to, I think the fact that that 11increase in temperature is where the first blooms 12 occur. 13 It's just the way it is because it's 14warmer water. And it will happen there every year 15that way. And I think it's important to take that 16 into consideration in terms of what's happening as a 17 result of this facility and its operations; how it's 18 impacting the rest of the lake.

19JUDGE SPRITZER: With respect to this 20 August, 2014 satellite image that I believe you 21 included with your reply on this contention, is there 22anything you can point to that would link what the 23 photograph shows, photograph of a large area of Lake 24 Erie, specifically to Fermi 2, other than we 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 175 Fermi 2 is one of the power plants in that general 1 area?2MS. BIHN: The photo, the MODIS photos 3 that are by NOAA that are up, and they're clear when 4there's no cloud cover. So that's, when you get them, 5that's where they're coming from. I can give him the 6 link if he'd like. In terms of what you see in that 7 particular picture, that will change with the winds 8 each and every day.

9 And I don't want to be facetious about 10 this, but the reality is the blooms happen because the 11temperature changes, and it goes up. So, as far as 12 what the photo shows, it shows the concentration of 13algae in the basin. That absolutely is the case. And 14 we can see that when the season starts.

15 Now, at this time of the year, you won't 16 see the blooms. Of course, the ice begins to cover, 17 the algae kind of remains there dormant. It doesn't 18go away in the winter. But the blooms and the problem 19 algae don't start until the temperatures rise.

20JUDGE SPRITZER: Okay, but temperature can 21 rise for a number of reason, including simply that 22 temperature is rising. It's getting warmer.

23MS. BIHN: That's exactly right. And the 24 only, the comment I have is this begins earlier 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 176 because of the mixing zones.

1 JUDGE SPRITZER: All right.

2MS. BIHN: I mean, that's really where the 3 rubber meets the road.

4JUDGE SPRITZER: Okay, I think I 5 understand your position.

6JUDGE TRIKOUROS: Have there been new 7 power plants built since Fermi?

8MS. BIHN: There have not been any new 9power plants in the basin that have been built and 10have the water usage since Fermi, no. So you know, 11 the problem is the western basin is a very sensitive 12 area because of its shallowness is really what the, 13 that's really where the crux of it is at.

14 In the rest of the Great Lakes, the water 15 is much deeper. Western basin average depth is only 16 24 feet. The outfall here is only 14 feet. So, you 17 know, it's really shallow water. And it becomes, as 18I say, it gets sick quicker and it heals quicker. You 19 know, if we could get down the sources in things, we 20 may not have to have this discussion.

21 As long as that phosphorus is in there, 22 the nutrients are in there, and we have these massive 23 blooms, we have the threat of turning off our drinking 24 water. That's the reality of 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 177JUDGE SPRITZER: All right, let's move on 1to the next contention, or in this case group of 2contentions. That would be Contentions 4, 5, 6 and 314. I take it we'll be hearing from Mr. Schonberger.

4 I guess we can take a 10 minute break. So we'll get 5 started with you as soon as we get back in 10 minutes.

6 (Off the record.)

7JUDGE SPRITZER: And we will proceed to 8 hear argument on Contentions 4, 5, 6 and 14 from Mr.

9Schonberger. Would you like to reserve three minutes 10 for rebuttal?

11MR. SCHONBERGER: Yes sir, Chairman, thank 12you. Three minutes for rebuttal. Chairman Spritzer, 13 Judge Trikouras, Judge Arnold, my name is David 14Schonberger, for the record. And volunteer to service 15 as an agent representative for the pro se Petitioner 16 CRAFT in this proceeding in order to help the Board 17 gain a better understanding of our pleadings and where 18 we are coming from for the public record.

19 With full disclosure, I am not prepared 20 today to provide the quality of an oral argument of an 21 expert witness, so please confine your questions to 22Part 2.309. I must point out, for the record, that 23 our groupings, our grouping arrangement was based on 24 the goal of maximum public participation, rather than 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 178 contention similarities, per se. So this allows us, 1this grouping allows us to have the most members of 2 the public as we can to participate.

3And Mr. Sherman, for his part, did an 4 excellent job of answering the panel's certainly 5 adversarial, possibly prejudiced, as well, questions 6 that were in the nature of an evidentiary hearing of 7an admitted contention, beyond the scope of Part 82.309(f)(I). And the nature of the panel's questions 9 demonstrated that an evidentiary hearing is warranted.

10 A concise statement I have pertaining to 11 the staff's Motion to Strike, the NRC's Motion to 12 Strike the incorporation by reference arguments from 13CRAFT's reply brief. We content that in a 14 hypothetical, board clarified and narrowed admission, 15it would be reasonable and consistent with the 16 Administrative Procedure Act to combine the 17 overlapping and parallel contentions together, in 18 order to conduct a concurrent adjudication.

19 We content that proposed Contentions 6, 5, 20 and 4 in this grouping, 6, 5, and 4 correspond, 21 respectively, to the joint Petitioners' proposed 22 contentions 1, 2 and 4, respectively, in an apples-to-23 apples fashion, alleging essentially the same 24fundamental concerns. Mr. Lindell, for 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 179mentioned earlier that the staff, the Applicant did 1 not have the opportunity to reply to, allegedly, new 2 arguments.

3 And, Chairman, as we pointed out in the 4 answer to the Motion to Strike, we remind the panel of 5 Judge Spritzer's panel's admission of Contention 15 in 6the Fermi 3 COLA proceeding. As we pointed out in the 7 answer to the Motion to Strike, the panel permitted a 8 subsequent round of replies, subsequent round of 9 replies, and did not rule out presentation of new 10 arguments in the reply brief, based on that procedural 11 deficiency. So, as that would pertain to Contention 12 12 just argued --

13 JUDGE SPRITZER: Well, let me ask this.

14 MR. SCHONBERGER: Yes.

15JUDGE SPRITZER: Maybe we can move things 16along a little bit. These four contentions that 17 you're arguing seem to overlap, to a considerable 18 extent, with the ones presented by Beyond Nuclear and 19the other joint Petitioners as we've called them. Are 20 there any material respects in which your, these four 21 contentions differ from what the joint Petitioners 22 presented us with in their petition and here this 23morning? Do you have anything to add, in other words, 24 to what we've already heard from them?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 180MR. SCHONBERGER: We would stand by the 1 answer that, in an apples-to-apples fashion, 6, 5, and 2 4 of CRAFT correspond, respectively, to 1, 2 and 4 of 3 the joint Petitioners, alleging essentially the same 4fundamental concerns. And it is the, it is the Board 5 panel's prerogative to narrow and to clarify proposed 6 contentions for admissibility.

7JUDGE SPRITZER: Okay. Why don't we move 8 on now, and hear from the Applicant if you have 9 anything to add to what you've already said this 10 morning about the very similar contentions filed by 11 the joint Petitioners.

12MS. REDDICK: Thank you, Your Honor.

13Derani Reddick for the Applicant. I'm not going to 14 repeat everything that we went over this morning.

15 JUDGE SPRITZER: Thank God.

16MS. REDDICK: But I will say that I 17 believe the CRAFT petition provides even less 18 specificity, and provides even less basis than what we 19talked about this morning. For example, Contention 4 20 for CRAFT, this is the loss of offsite power, doesn't 21even cite to the ER. There's no reference to any 22specific SAMA in the ER. There's just, there's 23 nothing there that alleges a specific deficiency.

24 With respect to Contentions 5 and 6, 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 181 particular, their challenges to the compliance with 1post- Fukushima orders. I don't think we talked about 2that too much so far today. I will say that those are 3current operating issues. Those orders amended the 4 licensing basis for the plant. They are, therefore, 5 outside the scope of license renewal.

6 In fact, with respect to Contention 5, 7 that is regarding spent fuel pool instrumentation, my 8 understanding is that the plant is required to have 9 that implemented by November of 2015, but has actually 10 just installed that instrumentation this past week.

11 So that's already in effect.

12 JUDGE SPRITZER: Are any of those orders 13that DTE is contesting in any way? That is contesting 14 their applicability to Fermi 2?

15MS. REDDICK: No. Lastly, really just 16 with respect with Contention 14 of CRAFT, this again, 17 this is not one that is being alleged to have a 18 specific overlap with any of the earlier contentions 19we heard today. This is a challenge, essentially, to 20 the treatment of spent fuel pool accidents as a 21 Category 1 issue.

22 And we have already talked about that; 23 about the inability to challenge a Category 1 issue 24 absent a waiver that the Petitioners have 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 182requested. This contention also asks, I believe, the 1 words are for seeking a rehearing or reconsideration 2 of the Board's decision in the Pilgrim license renewal 3 proceeding, which clearly is outside the scope of this 4 proceeding.

5JUDGE SPRITZER: All right. Thank you.

6 Does that staff have anything to add on these four 7 contentions beyond what you've already told us?

8 MR. WACHUTKA: Yes, Your Honor. This is 9Jeremy Wachutka from the NRC staff. First of all, I'd 10 like to say that there is a significant difference 11 between proposed Contentions 4, 5 and 6 and the other 12 contentions we previously spoke about. All three of 13 these contentions, basically in their very first line, 14 they are challenging the implementation of Fukushima 15 orders. 16 Whereas, the previous contentions that we 17 discussed do not challenge the implementation of 18Fukushima orders. And this sort of challenge is 19 outside the scope of this license renewal proceeding.

20 These Fukushima orders were immediately effective, 21 meaning that upon their issuance in 2012, they current 22 licensing basis for Fermi 2 was modified consistent 23 with these orders.

24 Now, therefore, any discussion 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 183 orders with respect to Fermi 2 is, effectively, a 1 discussion of Fermi 2's current licensing basis. In 2the Turkey Point proceeding, CLI 01-17, and the 3 Pilgrim proceeding, CLI-07-13, the Commission 4explained that the scope of license renewal safety 5 contentions is limited to issues of aging management, 6 and not issues with the current licensing basis.

7 Therefore, CRAFT's discussion about the 8 implementation of these Fukushima orders is outside 9the scope of this license renewal proceeding. And for 10 that reason alone, they are inadmissible.

11 Additionally, Your Honors, CRAFT attempts to avoid 12 this result by arguing that its safety concerns 13 regarding the implementation of these orders may 14 affect aging management plans.

15 However, this argument fails for numerous 16reasons. First, the period of extended operations for 17 Fermi 2 would begin in March, 2025. The Fukushima 18 orders required all licensees, including DTE, to 19 provide the NRC with their plans for implementing 20these orders. DTE has provided that it would complete 21the orders by 2016. Therefore, the actual 22 implementation of these orders will occur before the 23Fermi 2 period of extended operations begins. And 24 thus, their implementation is not an issue within 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 184 scope of this license renewal proceeding.

1 Second, CRAFT asserts that DTE's aging 2 management plan fails to address equipment aging 3 issues in the context of multi-unit facilities.

4 According to 10 CFR Part 54, aging management plans 5 must demonstrate that the effects of aging will be 6 adequately managed so that the intended functions of 7 the system structures and components within the scope 8 of Part 51 will be maintained consistent with their 9 current license basis for the period of extended 10 operations.

11 However, CRAFT has not explained how the 12 existence of a Fermi Unit 3 would affect the intended 13 functions of the Fermi 2 components that are required 14to be managed for aging.

Therefore, CRAFT has not 15 demonstrated that proposed Contention 4 is within the 16 scope of this license renewal proceeding.

17 Otherwise, Your Honors, the other 18 arguments that we discussed with proposed Contention 19 5, having to be a challenge to a Category 1 finding 20 and, therefore by rule, outside the scope of these 21proceedings. And proposed Contention 6 does not 22 satisfy 10 CFR Section 2.309(f)(i)(V) because, for 23 instance, CRAFT identifies the National Academy of 24 Sciences report, but it does not explain how report 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 185supports its argument in any way. It just attaches it 1 to its pleading.

2 Finally, proposed Contention 4 explicitly 3asks for this Board to reconsider a Commission 4finding. And since Commission findings are binding 5 upon this Board, this is not something that the Board 6has the ability to do. So therefore, proposed 7Contention 14 is also inadmissible. And for these 8 reasons, all of these proposed contentions are 9 inadmissible.

10JUDGE TRIKOUROS: The Contention 4, on 11 page, the petition at 17, says the Petitioner submits 12 that the Applicant's SAMA analysis and overall license 13 renewal application hastily fails to comprehensively 14 analyze reasonable foreseeable links, consequences and 15mitigational terms. I'm going to ask later for 16 clarification.

17 But one way to read that is to ask the 18 question should the SAMA analysis, specifically the 19 PRA in the SAMA that uses, that the SAMA uses, doesn't 20 take into account flex strategies and, you know, 21 various other changes to the plant that are being 22 implemented as a result of those orders.

23 Now, I think I can say that's true. But 24 I don't know that the NRC is going to require 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 186I haven't seen anything that says they will. Could 1 you address that?

2MR. WACHUTKA: Well, Your Honor, with 3respect to multi-unit events in the SAMA analysis, 4 like we just --

5JUDGE TRIKOUROS: I'm not talking about 6multi-unit now. I'm talking about any individual 7 unit, when they do a PRA, they have you know the 8sequence studies that they do. They would include 9 options that are associated with flex strategies if 10they had them in the PRA, right? They would say 11System A, System B, System C fails. You know, now the 12core is heating up. Gee, I have flex strategies that 13 I can implement now to keep the core from heating up.

14 Why wouldn't I do that? That isn't done up to now.

15MR. WACHUTKA: Right, okay so Your Honor, 16 in reply to your question, I think the issue is that 17 the PRA's haven't been updated with these orders that 18 have been put out that you're discussing with the flex 19plan and such. But if they had, these orders have 20been found to be beneficial. So in any way that they 21 would affect the PRA analysis would only be to show 22 that the plant was safer, and not less safe.

23JUDGE TRIKOUROS: Yes, I understand that.

24 But the statement in the Petitioner's, in the numerous 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 187petitions says you haven't included them. They're 1saying it's a omission. You haven't included that.

2 At least that's how I read it.

3 MR. WACHUTKA: Well --

4JUDGE TRIKOUROS: Is there any plan in the 5future to require licensees to do that? Or is that up 6 to the licensee on a case-by-case basis?

7MR. HARRIS: Your Honor, if I may address, 8 I mean, that particular, that particular issue of 9 updating PRAs is within the control of the licensees.

10 So, for they, if they're going to use it for some risk 11informed kind of license amendment, you know, they 12 would have to be updating PRAs to show the latest 13 licensing basis.

14 These PRAs were last updated before these 15most recent changes. But the expectation, at least in 16 terms of SAMA analysis is whether or not the analysis 17was reasonable. And you know, in light of what the 18 flex strategies are meant to do, it's not likely to 19 show that one of the mitigation measures would, all of 20 a sudden, become potentially cost beneficial, you 21 know, if you're accounting for this increased level of 22 redundance potential to mitigate a core accident.

23JUDGE TRIKOUROS: All right, so you're 24saying it would make it better. It's adequate now.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 188 No requirement for them to do it.

1 MR. HARRIS: Well, it's reasonable under 2 NEPA.3 JUDGE TRIKOUROS: I understand.

4MR. WACHUTKA: And another issue, Your 5 Honor, is that they, CRAFT in this case appears to be 6challenging these orders. And yet, this is not the 7proper forum in which to challenge the orders. Under 8 10 CFR Section 2.202, within 20 days of the orders 9being issued they could have been challenged. And, in 10 fact, some of them were, in the Pilgrim proceeding, 11challenged the orders. But the license renewal 12 proceeding is not the place to challenge these orders.

13 JUDGE TRIKOUROS: I understand.

14JUDGE ARNOLD: I'm just a little bit 15 confused by some of these contentions in that they're 16 listed as environmental contentions and, yet, several 17 of them have to do with whether or not we, the 18 licensee has implemented requirements of orders that 19are, basically, safety enhancements. And I'm 20 wondering how to you come to it being an environmental 21 contention when it's really a current licensing basis 22 challenge?

23MR. SCHONBERGER: Yes, I hear your 24question. And primarily, the overlapping with 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 189 joint Petitioners is an environmental contention of 1 omissions of a proper station blackout SAMA analysis.

2 However, we do use Part 54 language to, as background 3 support, to allege the importance of consideration of 4 these so-called out-of-scope transmission lines and 5 the out-of-scope corridor.

6 Because we, fundamentally, dispute the 7 Applicant's finding in the LRA that Unit 2 is supplied 8 by physically independent sources of offsite power, 9which could qualify as separate. And the public 10 should be able to reasonably anticipate and expect 11 that the offsite AC power supply transmission system 12 must be within the scope of the environmental review 13 and the safety review for the period of extended 14 operation, which must presume the Fermi 3 COLA as it 15actively stands pending. So we do borrow language 16 from Part 54.

17 As the intended function of this passive 18 system, the transmission lines and corridor, the 19 intended function is to ensure reliable and 20 uninterrupted AC electric power supply, and the AEA 21 mandated safe operation of Unit 2 during the period of 22extended operation. And should, therefore, be a 23 necessary basis for establishing an AEA mandated 24 reasonable assurance finding for pass system 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 190 structures and components that are or principal 1 importance to safety.

2JUDGE ARNOLD: So, for instance in 3 Contention 5, spent fuel pool instrumentation, are you 4 saying that when they h ave fully installed the 5 instrumentation, the environmental impacts will become 6more severe? Or are just saying they haven't properly 7 characterized the environmental impacts?

8 MR. SCHONBERGER: Well, Judge Arnold, if 9 we're moving in to Contention 5, the genuine dispute 10 with the Applicant's LRA finding, which they made 11 pursuant to 10 CFR Part 51.95 and Turkey Point, 12 pursuant to 51.95 and Turkey Point, the Applicant 13 determined that no new and significant information 14 exists as it relates to onsite storage spent fuel such 15 that further analysis would be called for and required 16 by a hard look requirement.

17 So, CRAFT would allege that unique and 18 special circumstances exist which, effectively, 19 preclude the Applicant's claim of entitlement to 20 incorporate the Category 1 generic determinations of 21 NUREG 1437 which is codified in Table B(1) and applied 22 in Part 51.53.

23 JUDGE ARNOLD: Okay, thank you.

24JUDGE SPRITZER: All right, I think we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 191 have concluded our discussions of those four 1contentions. Let's move on to Contention 2 and Ms.

2 Collins.3MS. COLLINS: Greetings. I'm Jessie 4 Collins, and Contention 2 is that Walpole Island First 5Nation have been excluded from the NRC proceedings.

6 As we stated in the original petition, all sovereign 7Indian tribes are grated automatic standing in NRC 8proceedings. 10 CFR 51.28(a)(5) says that NRC has the 9 legal obligation, under NEPA, to notify those tribes.

10 That didn't happen because the NRC decided 11 that Walpole Island are Canadians. Wrong. They are 12 on unseated lands in between Canada and the United 13States. Some imaginary line that someone drew says 14they're on the Canadian side. But these are unseated 15 lands. There are treaties governing these people.

16 JUDGE SPRITZER: Let me ask this. What, 17 at what point do you contend the NRC was required to 18 notify the tribe, and what were they required to 19 notify them, what they were required to notify them 20 of, and at what point in time?

21MS. COLLINS: Of the hearing and of the 22plan to, of Fermi's application. The tribe should 23 have government-to-government status with the United 24States. They have treaty rights on the western basin, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 192 and on the lands were Fermi are situated. The tribe 1is within the 50-mile radius. And so, therefore, they 2 definitely should have standing, besides being a 3 nation. 4JUDGE SPRITZER: As a practical matter, is 5 the tribe aware of this proceeding now?

6 MS. COLLINS: I beg your pardon.

7JUDGE SPRITZER: Is the tribe aware of 8 this proceeding now, if you know?

9MS. COLLINS: Yes. The tribe is aware of 10 the proceedings now, but --

11JUDGE SPRITZER: Have they moved, to my 12 knowledge, they haven't moved to intervene. You may 13 have some members of the organization that are tribal 14members. In fact, I think you indicated that some 15are. But we don't have the request by the tribe to 16 intervene, at least not yet.

17 MS. COLLINS: I beg your pardon.

18 JUDGE SPRITZER: We don't have, at least 19 not yet, an application from the tribe itself, to 20 participate, do we? I haven't seen any such request 21 in this proceeding.

22MS. COLLINS: No, in the Fermi 3, they are 23part of our request. In the Fermi 3 proceedings, they 24 tried to be involved, and the NRC ruled that they 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 193 Canadians, not Americans so, therefore, they had no 1say. So they did not apply for the Fermi 2 because of 2the previous ruling. But we're representing them.

3 Some of their tribal members are our members.

4JUDGE SPRITZER: So you represent some 5 members of the Walpole Nation?

6 MS. COLLINS: Yes.

7 JUDGE SPRITZER: Okay.

8MS. COLLINS: And the Boundary Waters 9 Treaty, Article 3, sets out that the international 10 joint commission should deal with any issues involving 11the waters. The thermal pollution that Sandy Bihn 12 talked about, those waters, that is affecting Walpole 13Island as their fishing rights. I'm limited to three 14 minutes.

15 JUDGE SPRITZER: No, you're not.

16MS. COLLINS: But what I want to say, what 17 I want to say is these people are on an island.

18 Should anything happen, go wrong God forbid, at Fermi 192, they're doomed. In my mind, this is the same as 20 committing genocide, if you have people that you're 21 polluting their waters. They are in prevailing wind 22 direction. The air is going there.

23Their fish are being polluted. Fermi 3 24 has a plan to dredge the tributaries where the fish go 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 194 up to spawn, which is another issue. But we're here 1 to get a hearing so that we can air all these 2 disputes.3JUDGE SPRITZER: If we had such a hearing, 4 what precise arguments would you present on behalf of 5 your members who are also members of the Walpole 6 Nation?7MS. COLLINS: That their lives and 8 livelihood are endangered, would be further 9endangered. That this is a violation of international 10law and international treaty rights. And that they 11 need to be a full partner in the hearings, not just 12 us, not just CRAFT representing a few of their 13 members.14JUDGE SPRITZER: Well, we can't, we can't 15make somebody a member. Normally what happens, 16 whether it's an Indian tribe, a state part of the 17 organization such as CRAFT, whatever, we don't make 18 them parties. They apply to be parties, as you have 19done. I'm not, I'm trying to understand the 20contention. I mean, if they want to apply to be 21 parties, the tribe wants to apply to be a party to 22this proceeding, it can do that. But at least as I've 23seen so far, they haven't. Do you have any reason to 24 think they are inclined to do that in the near future?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 195 1MS. COLLINS: Since their past application 2was not respected, they did not apply. They have a 3 representative here today that's observing this 4 hearing, a tribal representative.

5 JUDGE SPRITZER: I mean, they would have 6 to meet, if they want to file contentions, they would 7have to meet all the requirements that your 8 organization has to meet, and the joint Petitioners 9 have to meet. But there's no impediment that I know 10 of that would prohibit them from filing a petition and 11 having a board, this Board presumably, review their 12 contentions and decide if they're admissible or not.

13 But until they actually come forward with 14 some contentions, I'm not sure if there's anything we 15could do without their taking that initiative. All 16right, continue. I don't mean to cut you off. Was 17 there anything more you wanted to tell us about this 18 contention?

19MS. COLLINS: Well, just in our, the 20 Motion to Strike, the NRC staff said that we were 21bringing up new information. We did not bring in any 22new information. We just clarified things and alluded 23 to the Boundary Treaty, and other treaties, but I 24didn't say exactly what. And so, I want to ask 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 196 Court that the Motion to Strike be eliminated because 1our arguments need to, are viable, and they need to 2 stand, and we need a hearing.

3JUDGE SPRITZER: Well, you said that there 4 were some members of the Walpole Nation that are 5members of your organization. Now, are there specific 6 deficiencies that you've identified in Contention 2, 7 either the original contention or in your reply, 8 specific deficiencies in the environmental report 9 related to the Walpole Nation, other than this failure 10to provide notice issue. Things that you content 11 should have been included, should have been discussed 12 in the environmental report concerning the Walpole 13 Nation that weren't covered?

14MS. COLLINS: I'm not sure of your 15 question.16 JUDGE SPRITZER: Okay. Are you familiar 17 with the environmental report that was prepared?

18 MS. COLLINS: Yes.

19JUDGE SPRITZER: Did you look through that 20 to see if there was any discussion of the Walpole 21 Nation concerns?

22MS. COLLINS: No, there was not. They, 23 the environmental report talked about the black areas 24and there was no problem and things. But they did 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 197 talk about Walpole Island as under environmental 1justice. And they said, in the Motion to Strike, that 2 I hadn't even brought in in the petition, in the 3 original petition environmental justice issues.

4 I had a whole contention on Walpole Island 5being excluded. And I'm not a lawyer, you know. But 6 you would think, with the whole contention being about 7 them being excluded, what else could that be besides 8environmental justice? But obviously, common sense is 9 not part the items.

10JUDGE SPRITZER: Did you look in, all 11 right.12JUDGE ARNOLD: My understanding is that 13 the notice of opportunity for a hearing actually 14 doesn't go out to any individuals or groups or tribes 15or governments. It's just published in the Federal 16Register. So, and it's not until after that that the 17 Commission starts the review of the environmental 18 report. And it's in, yes, 10 CFR 51, the NEPA part, 19 that tribes have to be notified.

20But it just seems that, from the steps, 21 you know, applications submitted, application accepted 22 and the notification going into the Federal Register, 23 and then the start of the NEPA review, that you 24 wouldn't expect the tribes to be notified at the stage 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 198of the notice of the opportunity to intervene. So can 1 you tell me, did any group get a notice?

2MS. COLLINS: Yes. Eighteen, they 3 notified 18 federally recognized by the United States 4 Government tribes, including tribes that, three tribes 5 in Oklahoma, two in Wisconsin, several around the 6 State of Michigan.

7 JUDGE ARNOLD: Were they notified of the 8 opportunity to intervene, specifically?

9 MS. COLLINS: Yes.

10 JUDGE ARNOLD: Thank you.

11 JUDGE SPRITZER: But the Walpole was not 12 one of those 18. Is that correct?

13 MS. COLLINS: I beg your pardon.

14JUDGE SPRITZER: The Walpole were not one 15 of those 18?

16MS. COLLINS: Right. And Walpole Island, 17 being within the 50 mile radius, was not notified.

18 And then the staff, who was so cavalier as to write in 19 their reply to strike that well, it was published in 20 the Federal Register, therefore they should have 21 known. Like the world reads the Federal Register to 22 find out what's going on, or what's planned to go on.

23 Pretty cavalier, I thought.

24JUDGE SPRITZER: Well, that is the law, 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 199some extent. It may seem a bit harsh and unfair, but 1 generally notice in the Federal Register is considered 2 notice to the world, whether the world reads the 3Federal Register or not. Let's move on and hear from, 4 all right, let's hear from the Applicant on this 5 contention.

6MS. REDDICK: Thank you, Derani Reddick 7for the Applicant. CRAFT Contention 2 is 8 inadmissible. It, essentially, alleges a deficiency 9 that's focused on the NRC staff actions; nothing that 10is specific to the environmental report, or the 11obligations of DTE.

There are two flaws with this 12 argument.

13 First is that the challenge is premature, 14 as you're asking Your Honor, regarding the timing of 15when this notice should happen. The staff's 16environmental process is still ongoing. It is not yet 17complete. The Commission has ruled, in a similar 18 proceeding in Crow Butte, that a similar challenge or 19 a contention that was challenging the staff's NEPA 20 process was not right because the staff had not 21 completed its process.

22 Second, even if that claim were right, the 23 obligation to notify does not extend to any tribe, 24other than a U.S. federally recognized tribe, which 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 200the Walpole Island First Nation is not. So, 1 ultimately, this claim is really based on what the 2 staff is obligated to do, which is still an ongoing 3process. There is no deficiency in the ER. The 4 Petitioners do not allege any deficiency in the ER.

5 In fact, the ER very specifically states 6that the Applicant, DTE, did notify several tribes.

7 They sent letters to several tribes notifying them of 8the environmental process for the Fermi 2 license 9renewal application. And notifying them of the 10 opportunity to participate in that environmental 11process. This is described Table 9.1-2. It's also 12 described in pages C-15 to C-34 of the environmental 13 report.14JUDGE SPRITZER: So was the Walpole one of 15 those tribes?

16 MS. REDDICK: Yes they were.

17 JUDGE SPRITZER: They were. Okay.

18 MS. REDDICK: Yes.

19JUDGE SPRITZER: And response, if any, did 20 you get from them?

21 MS. REDDICK: None.

22JUDGE SPRITZER: Let me ask this on 23Contention 2. Is there any mention in the 24 environmental report of Native Americans hunting or 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 201 fishing near the site, the Fermi 2 site?

1MS. REDDICK: I believe the environmental 2 report discusses, in the environmental justice section 3 that there are no subsistence fishing or farming that 4 goes on within the vicinity of the site.

5JUDGE SPRITZER: How did they arrive at 6 that determination?

7MS. REDDICK: I can't say offhand, Your 8Honor. With respect to the issue, though 9 specifically, as you asked, the environmental justice 10 discussion of the ER was not something that was cited 11in the Petitioners' original petition. This was only 12 something they raised in the reply which is why the 13Applicant supported the staff's Motion to Strike on 14 this point.

15JUDGE SPRITZER: Right. I understand your 16position on that. Let me ask a related question.

17 Sorry, Mr. Smith can maybe point us to the, okay, you 18 don't have anything else to add to my earlier 19 questions at this point?

20MS. REDDICK: With respect to your earlier 21 question, the ER does state that there are no Indian 22 reservations or Native American controlled areas 23 within the U.S. portion of the 50-mile radius of the 24site. And that is page 3-5. And the Walpole Island, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 202 it does talk about the Walpole Reserve being a parcel 1 of land that extends beyond, beyond that region.

2JUDGE SPRITZER: Okay, on environmental 3 justice, I seem to remember there was an issue at one 4 point; maybe it's been resolved, whether the ER had to 5 discuss environmental justice at all. But I take it 6 your ER did, so I guess that's really not an issue 7here. Unless you have anything further, let's move 8over to the staff. This is really, as you said, more 9 their issue, perhaps, than yours. Why don't we hear 10 from the staff on Contention 2.

11 MR. LINDELL: Your Honor, Joseph Lindell 12representing the NRC staff. First I'd like to just 13 say that, as the Applicant stated, the contention 14 needs to challenge something in the application, 15whether safety related or environmental. And here, 16 it's hard to see the challenge to the application.

17 Let me then, try then to explain a little 18 bit about the process here so, you know, after the 19 application is, you know, an accepted document, there 20 is a notice published in the Federal Register of the 21opportunity to intervene.

There's, now, I don't 22 believe that, you know, that notice is anything but a 23Federal Register notice. We don't send out, you know, 24 specific notices of that opportunity to particular 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 203 tribes or other individuals.

1 Now, what we do do is for the 2 environmental scoping process, we do send out a notice 3 providing them the opportunity to participate, to 4 federally recognized tribes, though you know, the 5 Walpole Island First Nation is not listed in the list 6of federally recognized tribes. We also contact 7 individual tribes per the National Historic 8Preservation Act. And that's another process that --

9 JUDGE SPRITZER: When does that occur?

10MR. LINDELL: I'm not positive of the 11 exact thing. Someone, hopefully, will correct me if 12 I'm wrong. I believe that that, that we did already 13 send out the notices for the both the National 14 Historic Preservation Act and for the, and we did also 15 did the scoping process.

16JUDGE SPRITZER: Now, is that something 17 the staff does because it's required to, or simply as 18 a matter of courtesy, giving the tribes an extra bit 19 of notice that maybe isn't required by law?

20 MR. LINDELL: In our regulations, we are 21 required to send out a notice to Indian tribes for the 22 environmental scoping process.

23JUDGE SPRITZER: All right. I take it 24 it's your position that you weren't required to do 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 204 that with respect to the Walpole?

1 MR. LINDELL: We were not required to do 2 that with respect to the Walpole.

3 JUDGE SPRITZER: Because?

4MR. LINDELL: Number one, they're not a 5federally recognized tribe. And number two, as 6 actually the Fermi 3 Board recognized in a prior 7 proceeding, that our NEPA process, according to our 8 Regulations 51.1 and 51.10, it doesn't look at 9environmental affects on foreign nations. And, you 10 know, Walpole Island being in Canada, would not, 11 indeed, be included.

12 However I want to stress that, you know, 13 the Walpole Island First Nation had, indeed, not been 14 excluded, you know, from the EIS preparation process.

15Because, actually toward the end of September, the 16 chief of the Walpole Island First Nation sent the NRC 17 a letter, asking to review the license renewal process 18 to ensure that its rights to hunt and fish were, 19 indeed, protected.

20 And the NRC responded to this letter and 21 the response, essentially, raised three things.

22 First, they provided general information about how the 23license renewal process works. And invited, most 24 importantly, invited Walpole Island to comment 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 205 draft supplemental environmental impact statement when 1that is issued in mid-2015. And also pointed, just 2 pointed out that DTE stated that it has no plans to 3 alter Fermi 2's current operations during the license 4 renewal period.

5 So we would say that, you know, although 6 we were not required and did not contact the Walpole 7 Island initially, we have, you know, responded to 8 their request to be included, and we welcome, you 9 know, their comments on this process.

10JUDGE SPRITZER: Let me just ask this.

11 Suppose they had filed a Motion to Intervene in this 12 proceeding, is there anything that would exclude them?

13 Would the fact that they're not an American listed 14 tribe make a difference?

15 MR. LINDELL: No, no. They would not be 16excluded from the process, from the proceeding. I 17 mean, they would have to, you know, they would have to 18show standing as, you know, any other group. But, you 19 know, they would not certainly be automatically 20excluded. I'd like to also point out, though, that 21 they don't have automatic standing.

22 You know, our regulations do provide for 23that in very specific instances. That, number one, 24 they have to be a federally recognized tribe, 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 206 number, the action, the federal action has to be 1 taking place on the tribe's land, which is not the 2 case here. But they certainly, you know, could have 3 filed a Petition to Intervene, and you know, and that 4 would be looked at as any other Petition to Intervene.

5JUDGE SPRITZER: With respect to the 6 environmental justice issue, I understand your 7position in the Motion to Strike. But that's not 8properly before us. But leaving that aside for the 9moment, how does environmental justice work in the 10 context of a non, a tribe whose members may use land 11 or water, whatever, in the vicinity of a nuclear 12 facility, but the tribe itself is not an American 13 federally listed Indian tribe?

14MR. LINDELL: Your Honor, I don't know the 15 answer to that specific question. What I can say is 16 that CRAFT would have to, you know, demonstrate that 17 the Walpole Island is, indeed, such a minority 18 population that would be disproportionately impacted.

19 And it's worth noting, at least, that what the ER 20 concluded with regard to environmental justice is that 21 there will be no significant offsite impacts created 22 by the license renewal of Fermi 2.

23 And they base this conclusion on the 24 analysis of all of the various other Category 2 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 207issues, which are looked at in the ER. And they talk, 1 also, about previous radiological environmental 2 sampling. So I would say that, you know, aside from 3 the fact that CRAFT has not really made, you know, 4 provided facts to support, you know, the tribe's 5 status as, you know, sort of a low-income population 6 group that has to be examined, nonetheless, I think 7 that, you know, the ER's conclusions would extend them 8 to, as well.

9JUDGE SPRITZER: Let me ask this. Does 10 the staff, as I said earlier, I seem to remember some 11 debate some time ago as to whether an ER was required 12 to address environmental justice. Has that now been 13resolved? Is it clear that the ER should consider 14 environmental justice issues?

15MR. LINDELL: Yeah, so if you look at 16 Table B(1), which talks about the Category 1, Category 17 2 issues.18 JUDGE SPRITZER: Sure.

19MR. LINDELL: So it does list 20 environmental justice as a Category 2 issue such that, 21 you know, the ER then would look at that. And then 22 the staff, as well you know, in the environmental 23 impact statement it prepares.

24 JUDGE SPRITZER: 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 208 MR. LINDELL: I think --

1JUDGE ARNOLD: I'm not sure that's 2correct. I know the ER is required to provide 3 demographic input to the environmental justice report, 4 but I believe somewhere in 10 CFR, in the Federal 5 Register the policy on environmental justice, it 6 outlines what the requirements are.

7 MS. COLLINS: I have it here. Executive 8 Order 12898, published in the Federal Register, Volume 959, No. 32, which I'm sure you've all read, states 10 that each Federal agency shall conduct its programs, 11policies and activities in the manner that ensures 12 such programs do not have the effect of excluding 13 persons from participation because of their race, 14 color or national origin. That's Section 2.2.

15 Section 5.5(b) says Federal agencies must 16 provide translations of their documents for limited 17English speaking populations. I just thought I would 18 throw that in because most people, a lot of people do 19 not speak English on Walpole Island.

20JUDGE SPRITZER: Okay, thank you. Does 21 the staff have anything else to add on this 22 contention?

23MR. LINDELL: Your Honor, I would say just 24 that, you know, in its reply, also, CRAFT raised 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 209violations of the Executive Order that Ms. Collins 1just read from. As far as we're concerned, we haven't 2 seen any factual support for any violation, you know, 3of that Executive Order or the Michigan Executive 4 Directive, which they also raised, which places 5 requirements on the state Department of Environmental 6 Quality, the Mich igan state department. But it 7 doesn't place any obligations on anyone else, as far 8 as I can tell.

9 And, other than that, and also, I did look 10 the treaties that are mentioned in the petition and 11 the reply, and I didn't see any particular, you know, 12 obligations in those treaties that the, that the staff 13 was, you know, not in compliance with relative to this 14 license renewal proceeding.

15JUDGE SPRITZER: Let me ask this. Does 16 the staff have a position on the SAMA analysis insofar 17 as whether the SAMA analysis is required to consider 18 environmental and public health impacts beyond the 19 border of the United States?

20MR. HARRIS: Your Honor, may I answer 21that. The SAMA analysis models the 50-mile radius 22around the plant. It doesn't account for borders. So 23 it would be looking at populations outside 50 miles, 24 the clean ups of contamination, using U.S.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 210 requirements. So it is modeling the consequences of 1 an accident anywhere within that 50-mile radius around 2 the plant.

3 But you know, in terms of I think this 4 particular issue, for purposes of the SAMA in terms of 5 your dose, it doesn't, you status doesn't matter in 6 terms of what the dose cost conversion is of persons 7 or the person for purposes of the SAMA.

8JUDGE SPRITZER: So if a 50-mile radius 9 extends into Canada, it doesn't change how you do the 10 analysis?11MR. HARRIS: It does not change how you do 12 the analysis. You model the same 50-mile radius.

13MR. SMITH: And I can just confirm that 14that's what the Fermi 2 SAMA analysis did. It modeled 15 the population within 50 miles irrespective of the, 16 whether that location was within the United States or 17 Canada or the Walpole Island.

18JUDGE SPRITZER: Okay. So DTE did include 19 Canadians within 50 miles in its estimated cost of a 20 severe accident?

21 MR. SMITH: Absolutely.

22 JUDGE SPRITZER: All right. Now someone 23 just pointed out to me that the ER, at page D-96, 24 lists only 560 people northeast of the site?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 211MR. SMITH: That's in the particular 1 quadrant, yes. And that's in the --

2 JUDGE SPRITZER: Which page are you on?

3 MR. SMITH: D-96.

4JUDGE TRIKOUROS: Ms. Collins, while 5 they're looking at that, the United States does 6 recognize the Walpole Nation, you said --

7MS. COLLINS: As a United States federally 8 recognized tribe.

9 JUDGE TRIKOUROS: What about Canada? Do 10they recognize the Walpole Nation as a recognized 11 tribe? Do they have such a list there?

12MS. COLLINS: They're on the imaginary 13 line that says they're in Canada. But --

14JUDGE TRIKOUROS: So the Canadian would 15 have them on their --

16MS. COLLINS: No, they were, well they're 17 not Canadians. They're unseated land. They ran for 18 safety when troops were, you know, gathering up, well, 19 it's unseated land.

20JUDGE TRIKOUROS: So they're listed status 21 is the same with Canada as it is with the United 22States, basically. Is that what you're saying? Sort 23 of unlisted in either country.

24 MS. COLLINS: Recognized by Canada, 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 212 JUDGE TRIKOUROS: I'm sorry.

1MR. SHERMAN: They are recognized by 2 Canada.3 MS. COLLINS: And they --

4 JUDGE TRIKOUROS: They are recognized by 5 Canada.6MS. COLLINS: They wrote, I have a copy of 7 a letter that they wrote to the Canadian government 8 objecting that, because they weren't in, allowed in 9the Fermi 3 proceedings. But the Canadian wrote back 10 and said oh well, that's the United States business, 11 and we're not getting into it.

12 They asked them to intervene on their 13behalf. But that, but I guess everybody's bringing up 14Fermi 3 here, so I can bring it up, too. Maybe I 15don't have that with me. But I found the list of all 16the ones they did contact. I guess I don't, sorry.

17 I don't, but they, at one time they asked the Canadian 18 government, complained to them and asked them to 19 intercede on their behalf, because the NRC would not 20 let them be a part of the Fermi 3.

21 And the, I have a copy of the letter that 22 the Canadian government sent back and said it's the 23United States business. We're not in it. So no one, 24they did not help them on that. And so, I'm thinking 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 213 maybe the international joint commission may, I don't 1 know. We'll see.

2 JUDGE TRIKOUROS: Okay, thank you.

3JUDGE SPRITZER: Mr. Smith, I'm just 4 trying to figure out what this, I'm looking at Table 5D.1-22 of the Applicant's environmental report. This 6 is Appendix D, and the line that says with direction 7 northeast has 547 people within zero to 10 miles, and 8 then another 13 at 41 to 50 miles, for a total of 560.

9 Is that the direction, or radius I guess you would 10 call it that would include the, what is it called 11 Walpole Island?

12MR. SMITH: I don't know that, I don't 13 know that it is. It doesn't appear to be.

14 JUDGE SPRITZER: Okay. Where is Walpole 15 in relation?

16MR. SMITH: Well sir, if you look on page 17 3-19 or 3-20.

18 JUDGE SPRITZER: Okay.

19MR. SMITH: It's just, it's a figure in 20the map, in the ER that shows the 50-mile radius. The 21 Walpole Island is on the, sort of the northeast, 22 north, northeast piece of Lake St. Clair.

23JUDGE SPRITZER: Okay. This is page 3-19 24 or --25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 214 MR. SMITH: Page 3-19 of the ER.

1 JUDGE SPRITZER: So they might be beyond 2 the 50-mile --

3MR. SMITH: No. I mean, the ER on page 4 3.3-5 says that, as illustrated in Figure 3.0-6, which 5 is on page 3-20, a small portion of Walpole First 6 Nation reserve northeast of the Fermi site in Ontario 7 Canada lies just inside the 50-mile radius.

8 JUDGE SPRITZER: Okay. All right, thank 9you. All right, I think we're finished with this 10contention. Let's move on to the final group of 11 contentions which are Contentions 7, 8, 9, 10 and 11.

12 Mr. Schonberger.

13MR. SCHONBERGER: Thank you, Chairman.

14 David Schonberger, for the record, designated 15 representative for CRAFT for Contention 7, 8, 9, 10 16and 11. So, reserving my rebuttal time, let me first 17 take your questions.

18JUDGE TRIKOUROS: All right. NUREG, well, 19 the license renewal application aging management 20 program for this subject of, the subject of inspecting 21 and monitoring for leaks, which is your Contention 7.

22 The aging management, the license renewal application 23 indicates that it implements NUREG 1801 without 24exceptions. Yet you didn't, specifically, go in 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 215 your contention and say this is what's wrong with 1 that. 2 So we're kind of in a situation where we 3 have your statement and your basis that says they 4don't adequately do this job. We don't really, 5 specifically, know why you have that language in 6 there.7MR. SCHONBERGER: So let me clarify for 8the panel where we're coming from. We allege that, 9 that because both, because full cathodic protection 10coverage has not been implemented at Unit 2, by the 11 Applicant's own admission, and that the Applicant 12 admits that it could do better, and more improvements 13 are planned to increase system coverage.

14 So these are explicit notions in the LRA, 15 and the Applicant, therefore, acknowledges two 16important facts which support our contention. First, 17 that the Applicant acknowledges that it has failed to 18 fully install the best available system to a degree 19 that CRAFT Alleges would qualify as in compliance with 20 as low as reasonably achievable standards, LRS 21 standards for buried and underground piping leakages 22 and dose exposure to the public.

23 Because, by definition, as low as 24reasonably achievable has not been implemented. It 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 216 reasonably achievable and planned by the Applicant to 1do better and to do more. And secondly, the Applicant 2acknowledges, by omission in its answer to our 3 petition, that it is unable to prove an undefined 4 reasonable assurance standard by a clear preponderance 5 of evidence as required by Part 54 pertaining to the 6 buried and underground piping act.

7 Apparently, the Applicant believes that it 8 can take advantage of the regulator's unclear and 9 poorly defined standards for establishing reasonable 10assurance. And the Applicant appears to believe that 11 the agency will approve whatever the Applicant submits 12 for consideration. And that the agency will dismiss 13 whatever reasonable assurance standards that the 14Petitioner would allege that might be necessary in 15 order to achieve adequate protection as mandated by 16 the AEA, such as full system coverage, full cathodic 17 protection.

18 JUDGE TRIKOUROS: All right, thank you.

19JUDGE ARNOLD: Well, in the amps, for 20instance on page 24 of the petition. Petitioner 21 maintains that neither the amp program for buried 22 pipes and tanks, nor the inspections and tests 23 performed as part of the team maintenance and 24 operation provide reasonable assurance that 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 217effects of aging will be managed. Can you be more 1 specific as to what specific aging management program 2is lacking? Now, either point it out on a table or --

3MR. SCHONBERGER: Judge Arnold, two 4answers to that. First, in the same paragraph, we 5 specify that in order to protect public safety the 6 aging management program must be enhanced or 7 supplemented with a more robust inspection system, 8cathodic protection, and so forth. We are narrowing, 9 narrowing the contention to full cathodic protection.

10 And the specificity requirements that the 11 panel would expect as part of Part 302.309(f)(i)(5) 12and (f)(I)(6). We claim that our concise statement 13 satisfies the requirements for a pro se Petitioner 14 based on forty years of case law precedent going back 15 to Wolf Creek, 1975, where specificity for pro se 16 Petitioners is not expected to the same degree as it 17 is expected for counseled Petitioners.

18 So our concise statement consistent with 19 Part 2.309(f)(I)(5) should be considered sufficient 20 with regard to that the aging management program must 21be enhanced or supplemented with. No. 2, cathodic 22protection, and we allege that full cathodic system 23 coverage would be necessary in order to comply with a 24 reasonable assurance standard.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 218 JUDGE ARNOLD: Are you saying that every 1buried component for which there is an aging 2 management program should include full cathodic 3 protection?

4 MR. SCHONBERGER: Please repeat that.

5 JUDGE ARNOLD: Are you saying that every 6 buried pipe in the system that is required to be 7 covered with an aging management program should, as 8 part of that aging management program, include 9cathodic protection? Or are you just saying the 10 systems that have it now should be more complete?

11 MR. SCHONBERGER: Our contention alleges 12 that full cathodic protection coverage has not been 13 implemented to the extent that it could be, as the 14Applicant acknowledges. And that the Applicant 15 acknowledges that it has plans to increase system 16coverage. And, to the extent that they acknowledge 17that, we allege that our definition of reasonable 18 assurance would require for adequate protection, that 19 there must be full system coverage to ensure that 20 ALARA standards are met, by definition, as low as 21 reasonably achievable.

22 If the Applicant admits it's reasonably 23 achievable, then it should be implemented as part of 24the application. And not presumed that the can 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 219 kicked down the road.

1 JUDGE ARNOLD: Okay. I understand.

2 JUDGE SPRITZER: Okay, let's move.

3 JUDGE ARNOLD: Question on Contention 8, 4having to do with SAMA. On page 27, right at the top, 5you say: The Applicant's cost calculations assume an 6 arbitrary and scientifically inappropriate emergency 7 planning zone probabilistic models for the Fermi site.

8 And, as a result, that a radiological release will 9 affect only a relatively small area.

10 Now, just a few minutes ago, we heard that 11 the SAMA analysis looks at 50 miles around the plant, 12not just to the emergency planning zone. So could you 13 be more specific as to how a large EPZ would change 14 the outcome of the SAMA analysis?

15 MR. SCHONBERGER: Yes, Judge Arnold. It 16 pertains to the evacuation time estimate calculations.

17 There's a sequential logic going on here in our 18 contention, which starts with that the Applicant's 19 meteorological model is bogus and knowingly 20 unreasonable, knowingly inaccurate.

21 And fundamentally, you can see for 22 yourself that this is not the state of Hawaii. It's 23not the state of Florida. It's clearly a location in 24 this country where we get severe winter snow 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 220conditions. This is November. Wait until January.

1 So, In January --

2JUDGE SPRITZER: We're not coming back in 3 January.4MR. SCHONBERGER: Fair enough. But 5Chairman, we have to live here. And we all live here 6through the winter. And we allege that the 7 Applicant's SAMA analysis is deficient, based on a 8 sequential logic that goes all the way back to an 9 unrealistic meteorological assumption that, as we 10 state explicitly, that the presumption is that there 11 will, for evacuation time estimate determination, that 12 there would be no more than a 20 percent impairment of 13 evacuation time.

14 In fact, the Applicant has reduced that 15maximum impact of snow conditions. In the updated 16 modeling, they've actually reduced it to 20 percent.

17 And we allege that there's no rational basis for 18 alleging only a 20 percent maximum impairment due to 19 severe snow conditions in a Michigan winter situation.

20 So if you start with that, it provides the basis for 21 an inaccurate and unreasonable evacuation time 22 estimate and emergency plan.

23 Which we acknowledge, we acknowledge that 24 the emergency plan is outside the scope of the, 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 221license renewal proceeding. So our contention, to 1 clarify for the board, our contention is not to allege 2 deficiency of the emergency plan or the evacuation 3 time estimate as it pertains to the emergency plan.

4 Our contention is based on an allegation of an 5inaccurate, unreasonable SAMA analysis. That through 6 sequential logic, to continue an inaccurate evacuation 7 time estimate creates an inaccurate projected offsite 8 dose exposure within the 50-mile radius.

9 Within the 50-mile radius, the evacuation 10 time estimate is fundamental to determining dose 11exposure to the public. So it is not sufficient to 12 claim the 50-mile radius of consideration is all that 13is necessary to have that point covered. The 14 evacuation time estimate is fundamental to the outcome 15 of dose exposure to the public within the 50-mile 16 radius. 17 Different evacuation time estimate models 18 would result in different dose exposure estimates.

19 And different dose exposure estimates would yield 20 different projected cost impacts.

21JUDGE TRIKOUROS: Now, you're talking 22 about dose estimates in the 10-mile EPZ, correct?

23 You're saying the 10-mile EPZ is not being evacuated, 24 is being evacuated too quickly than would occur 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 222 reality and, therefore, there would be more people in 1the 10-mile EPZ getting a larger dose than the SAMA 2analysis assumes. Is that, basically, what you're 3 saying?4 MR. SCHONBERGER: I would say that, that 5 an accurate evacuation time estimate of whatever 6 radius we're talking about is fundamental to 7 determination of the projected probability weighted 8 economic costs and consequences for a severe accident.

9JUDGE TRIKOUROS: As a corollary to that, 10 you also seem to be saying in this pleading the 11 evacuation zone should be not 10 miles, but 50 miles.

12 Is that correct? It seems to be what you're saying.

13MR. SCHONBERGER: Indeed. We do, we do 14 allege, we do allege an out-of-scope argument to 15 support as background the in-scope argument.

16 JUDGE TRIKOUROS: Okay.

17JUDGE ARNOLD: Can I make a quick question 18to Applicant? I just want to ask in your SAMA 19 analysis, your evacuation times, do you provide 20 justification of why you use specific times and 21 specific decrement for winter weather?

22MR. SMITH: Yes. The evacuation time 23estimate for Fermi 2 was updated in 2012. The mean 24 speed was 12.8 meters per second. That's 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 223evacuation estimated. For the SAMA analysis, we 1 conservatively looked, lowered that to 10 meters per 2 second as the average evacuation time. And then, as 3 a sensitivity case, we looked at either a 15 meter per 4 second or a 5 meter per second evacuation time, and 5 found that it doesn't have significant effect on the 6 results.7 JUDGE ARNOLD: Okay. Have you looked at 8 how they came up with their evacuation time? And if 9 so, do you have any specific, you know, statements of 10 what they did wrong? Or are you just saying it just 11 can't be done that quickly?

12MR. SCHONBERGER: Judge Arnold, I, the 13 answer to that question goes back to the allegation, 14 sequentially, that a 20 percent maximum impairment of 15 evacuation time estimates in a severe, due to a severe 16 winter condition, that that is unsupportable and 17 unreasonable, and contaminates, sequentially, all 18 further probability weighted consequence 19 determinations in the application.

20JUDGE ARNOLD: I think I understand.

21 Nick?22JUDGE TRIKOUROS: Yes, you're also 23questioning the method of analysis, correct? The rad 24 dose program?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 224MR. SCHONBERGER: Yes, Judge Trikouras, we 1 used the rad dose software program. We used that as 2 a background to explain, to explain where we're coming 3 from.4JUDGE TRIKOUROS: But are you specifically 5challenging the use of the straight line Gaussian 6 distribution model versus a variable trajectory plume 7dispersion? Is that, are you challenging that, or are 8 you -- 9MR. SCHONBERGER: No, no, to the contrary.

10 We acknowledge that a variable trajectory plume 11 distribution model is assumed in the rad dose 12 methodology. And our point of raising that issue is 13 to allege that the 10-mile EPZ should be expanded to 14 go hand-in-hand, consistent with a variable trajectory 15 plume distribution model.

16 But we recognize that that portion of the 17 contention is outside the scope of a Part 51 or Part 1854 license renewal proceeding. That's not, the point, 19 we did not bring that information into the contention 20 in order to dispute that.

21 JUDGE ARNOLD: Okay, Applicant, on this, 22 for the evacuation, the 20 percent impairment factor, 23was that a maximum factor? You know, that the 24 evacuation's going to take 20 percent longer as 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 225 greatest, or is that used more like it's a 1 representative of average over all of winter?

2MR. SMITH: I'm not that familiar with the 3specifics of the Fermi 2 evacuation time estimate.

4 But again, what I can say is that for purposes of the 5 SAMA analysis, we took the mean speed from the 6 evacuation time estimate, which was 12.8 meters per 7second, and we modeled 15, 10 and 5. So we looked at 8 something that is greater than a 50 percent 9impairment. And we found that that does not have much 10 of an effect on the outcome.

11 In fact, the difference between those 12evacuation speeds and person-rem per year is the 13difference between 4.96 and 4.89. So it's a 14relatively small difference. That's on page D-100 of 15 our SAMA analysis.

16 And we also modeled for, just to finish 17 the assessment of sensitivity that we did in the SAMA 18 analysis, we also looked at different fractions of the 19 population that do evacuate, between 90 and 99.5 20 percent of the population. So we modeled both broad 21 changes in evacuation time, as well as broad changes 22 in the percentage of the population that, in fact, 23 evacuates.

24JUDGE TRIKOUROS: Thank you. Do you 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 226 if the evacuation time analysis too into account this 1 shadow evacuation that's discussed in the pleading?

2MR. SMITH: I don't know that the 3evacuation time estimate did, in particular. But part 4 of the way in which we address that is through the 5 sensitivity analysis in the SAMA. And so we did, as 6 I just mentioned, we varied the fractions of the 7 population that is assumed to evacuate.

8JUDGE TRIKOUROS: You didn't look at zero 9 evacuation, did you?

10 MR. SMITH: We did, not for the purposes 11 of the SAMA, no.

12JUDGE SPRITZER: Okay, does the Applicant 13 anything else to add on this group of contentions?

14MR. SMITH: I'm sorry, certainly. I think 15 we've discussed the SAMA portion of the contention in 16detail. The one thing that I would add is that the 17 Fermi 2 SAMA analysis does use the MAX code, which 18 imbedded in that is a Gaussian straight-line air 19 dispersion model. So I just wanted to clarify that, 20 in case there was any question on the Board's part.

21 I think the one part we haven't discussed 22 is going back to the aging management plan for buried 23piping and tanks. And, you know, I first want to note 24 that this contention, I'm sorry, our program was based 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 227 on industry guidance on the NRC's generic aging 1lessons learned report. And the inspections 2 corrective actions and assessments that we have 3 performed and would perform are addressed in the aging 4 management plan.

5 And we also, specifically, incorporate 6 Fermi's unique operating experience as it relates to 7buried piping integrity at the Fermi site. And there 8 was also some discussion about the cathodic 9protection. And as we do note in the aging management 10 plan, that we have plans to expand that program.

11 And just for purposes of factual 12 information, we currently have on the order of 78 13percent coverage of piping. By 2015, that coverage 14 will be up to 93 percent of piping will be covered by 15 cathodic protection. And remaining percentage is in 16 piping that's anticipated to be replaced before long.

17 And so that will, at that point, have effectively 100 18 coverage of buried piping at the Fermi site.

19 So to the extent there's anything in that 20 piece of the contention, I think that explains it.

21 That's not something that's going to be an issue once 22 we get to the license renewal term, which of course is 23 the focus of our aging management plan. It doesn't, 24it's not required to be implemented until we get 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 228 the license renewal period.

1 I think the rest of that has been, 2primarily, addressed in our briefings. I don't think 3 I need to expand in great detail. Only to note that 4 a number of their specific concerns related to buried 5 tanks, the site doesn't have any buried tanks in this 6system. Other concerns of theirs with respect to what 7 programs are covered, what buried tank programs are 8 covered, those are covered by other amps.

9 So they haven't demonstrated that there's 10 any system that is not covered by the program, or any 11 way in which the program itself is deficient. Thank 12 you very much.

13JUDGE SPRITZER: The NRC staff, do you 14 have anything to add on these contentions?

15MS. KANATAS: Good afternoon, Your Honors, 16this is Cathy Kanatas for the staff. I don't have 17 much to add, Your Honors, but I would just like to 18reiterate that, in terms of Contention 7, DTE's 19 application provides for the buried and underground 20piping amp. And it provides for maintaining the 21 intended functions of the structure's systems and 22 components that are within the scope of license 23 renewal.24 And, as we've heard multiple times, it 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 229 consistent with GALL Rev. 2. And the Commission has 1 specified in Seabrook, CLI 12-5, that if an amp is 2 consistent with GALL, it is assumed to be adequate.

3 CRAFT wants more, including full cathodic protection, 4 but it does not indicate why more is needed or 5required. Therefore, it does not raise an adequately 6 supported or genuine dispute with the application.

7 In terms of the other claims raised 8 related to ALARA and leaking, as well as reasonable 9 assurance claims, the Commission has rejected similar 10claims in Pilgrim, CLI 10-14, 71 NRC 449. Those raise 11 currently operating issues that are outside the scope 12of this proceeding. In terms of the SAMA, I think 13 we've covered that quite thoroughly today.

14 But again, as I think the Commission has 15 repeatedly stated, it's not enough to point to the 16 SAMA and claim that another model should be used or 17another input. You have to do more. And here, CRAFT 18has not done that. As they recognize the claims about 19 emergency planning and EPZ are outside the scope of 20 this license renewal proceeding.

21And to the extent that they claim that 22SAMA's meteorology is bogus or unreasonable. There's 23just no basis. They cite only to a Dr. Eagan's 24 declaration in a different license renewal proceeding, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 230 and don't tie anything in that declaration to anything 1 in the DTE SAMA analysis.

2 Likewise, for the economic consequences.

3 They cite to Mr. Channon's declaration in the Pilgrim 4 license renewal proceeding for the proposition that 5 MAX and MAX 2 are not valid, where they provide no 6 support for that claim; no tie to anything in the 7declaration from Mr. Channon to DTE's SAMA. Nor do 8 they explain why the CRAC-II from the Sandia report 9cited in their petition is more appropriate or 10reasonable. Mr. Harris covered some of the 11 conservatisms in the CRAC-II earlier today, so I won't 12 repeat that. That's it. Thank you.

13JUDGE SPRITZER: Very well. All right, 14 we'll give Petitioners just an additional three 15minutes for rebuttal. But let's keep it to three 16 minutes, because we do need to get out of here.

17 MR. SCHONBERGER: So, as you just heard, 18 as the Board panel just heard, the staff's position is 19indistinguishable from the Applicant's. We believe 20 that the, a public hearing is necessary in order to 21 provide an alternative perspective that we believe 22 we've satisfied the requirements for today in order to 23 represent the public interest which we attempt to do 24 in a pro se fashion.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 231 With indistinguishable argument proffered 1 by the staff relative to the Applicant, somebody needs 2 to represent the public interest, and we attempted to 3 do that.

4JUDGE SPRITZER: All right, very well. I 5 think we understand your position on that, and this 6group of contentions. Unless my colleagues have 7 anything further, I think we're ready to conclude.

8 The building will be locked at 5:00, it our 9understanding. So if you go out, don't plan on coming 10back in after 5:00. But I assume everybody will be 11 gone by then.

12 Thank you for your participation today.

13 It's been very educational for us and, hopefully, some 14value to you all, as well. And we will try and get a 15 ruling out as soon as we can. Our official deadline 16is 45 days. Though, the fact that we have the holiday 17 season upcoming, probably that's not --

18MR. LODGE: Your Honor, we assume there 19 will be a transcript generated.

20JUDGE SPRITZER: This gentleman to our 21 left is here to prepare that, and if you want a copy 22 contact him.

23MR. LODGE: And we'll have the opportunity 24 to make corrections?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 232JUDGE SPRITZER: Well this is for, this is 1not an evidentiary hearing. If you find anything 2 that's of concern, let us know. But we don't, we're 3not going to have a formal period for transcript. We 4 don't usually do that with, this isn't legal argument.

5 So, as I said, we'll try and get the 6ruling out. It's realistic to assume we probably 7 won't meet the 45 days, but by end of January would be 8realistic. Thank you. Unless there's anything else, 9 anybody have any questions? Yes sir.

10MR. SHERMAN: Is there any way we can get 11 a copy of the audio? I would love to hear it.

12JUDGE SPRITZER: There is really no, there 13 really is not, there's a transcript that, as I said, 14 this --15 MR. SHERMAN: Okay, we didn't record the 16 audio?17JUDGE SPRITZER: But I don't know that he 18 records the audio per se. I'm not usually --

19MR. SHERMAN: That's fine. The transcript 20 will be fine.

21JUDGE ARNOLD: Well, if you wait until he 22 gets off the earphones, and ask him, he might be able 23 to provide you with it.

24 MR. SHERMAN: Thank 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 233JUDGE SPRITZER: I know he prepares a 1transcript. Beyond that, you'll have to check with 2 him.3 MR. SHERMAN: Very good.

4JUDGE SPRITZER: Thank you. We're 5 adjourned.

6 (Whereupon at 4:41 p.m. the afternoon 7 session meeting was concluded.)

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433