ML14330A259
| 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 1UNITED STATES OF AMERICA 1BEFORE THE NUCLEAR REGULATORY COMMISSION 2Before the Atomic Safety and Licensing Board 3+ + + + +
4ORAL ARGUMENTS 5------------------------------
6IN THE MATTER OF: Docket No.
7DTE ELECTRIC COMPANY 50-341-LR 8FERMI NUCLEAR POWER PLANT ASLBP No.
9UNIT 2 14-933-01-LR-BD01 10------------------------------
11Thursday12November 20, 2014 139:00 a.m.
14Monroe County Courthouse 15125 East Second Street 16Board Meeting Room 17Monroe, Michigan 18BEFORE:19Ronald Spritzer, Administrative Judge 20Nicholas G. Trikouros, Administrative Judge 21Gary S. Arnold, Administrative Judge 2223 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2PRESENT:1For the Office of Commission Appellate:
2Administrative Judges:
3Ronald Spritzer 4Nicholas G. Trikouros 5Gary S. Arnold 67NRC Staff:
8Jeremy Wachutka 9Brian Harris 10Joseph Lindell 11Catherine Kanatas 1213Counsel for Applicant/DTE Energy:
14Derani M. Reddick 15Tyson R. Smith 16Jon P. Christinidis 1718Counsel for Joint Petitioners (Morning Session):
19Terry Lodge 20Paul Gunter 21Kevin Kemps 2223 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 3Counsel for CRAFT (Afternoon Session):
1James Sherman 2Jessie Pauline Collins 3Sandra Bihn 4David Schonberger 56 7
8 910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 4P 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 5today to hold oral argument on contentions in the case 6of DTE Electric Company, the application for the 7licensing of Fermi Nuclear Power Plant Unit 2. This 8is Docket No. 50-341, also ASLBP No. 14-933-01-LR-9BD01.10The purpose today, for the members of the 11public who may be here, is to review the arguments for 12and against the addition of various contentions of 13legal claims that have been advanced in this 14proceeding. I've already identified myself. Again, 15my name is Ron Spritzer, I'm an Administrative Judge 16and an attorney. I'll ask my two colleagues to my 17right and left to identify themselves.
18JUDGE ARNOLD: I am Judge Arnold. I have 19been a Technical Administrative Judge on the panel for 20six years. I have a Ph.D. in Nuclear Engineering and 21my original career was in the Naval Reactors Program.
22JUDGE TRIKOUROS: I am Nick Trikouros.
23I've been a full-time Judge for nine years. My 24degrees are from Fordham and NYU and NYU Polytechnic 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 5Institute 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 4any problems with microphones or any other kind of 5electronic technical issues, he's the guy to ask. And 6our law clerk, Nicole Pepperl, is next to him.
7Why don't we go through and have the 8representatives who are seated up here in the front 9identify themselves? We'll get to CRAFT, we'll give 10you an opportunity to identify CRAFT representatives.
11Why don't we start with the NRC staff?
12MR. HARRIS: Good morning, Judges. I am 13Brian Harris, the legal counsel for the Fermi 14proceeding. To my right is Jeremy Wachutka who will 15be handling a lot of the Beyond Nuclear contentions.
16And seated right behind me are Cathy Kanatas and 17Joseph Lindell which will be handling some other 18contentions for this proceeding.
19JUDGE SPRITZER: Great, glad to have you.
20And for the Joint Intervenors?
21MR. LODGE: Good morning, Your Honors.
22I'm Terry Lodge, I am the counsel for three of the 23Intervenors, that would be Don't Waste Michigan, the 24Citizens Environment Alliance, and Beyond Nuclear.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6Seated 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 3on contention number four.
4JUDGE SPRITZER: Great, thank you. And 5for the Applicant?
6MR. SMITH: My name is Tyson Smith with 7Winston & Strawn. With me I have Jon Christinidis who 8is an attorney for DTE Electric Company. And Derani 9Reddick is a colleague of mine at Winston & Strawn.
10JUDGE SPRITZER: Great. Before I proceed 11any further, I don't know whether there are any county 12government representatives here, but we'd like to 13thank them for the opportunity to once again use their 14facilities. This is my first time here and the people 15have been extraordinarily accommodating and helpful in 16making it possible for us to have this hearing.
17As hopefully you all know, there are break 18rooms available. We will be taking breaks. This is 19not an endurance contest. I think we'll probably go 20an hour, an hour and-a-half or so before we take our 21first break.
22Our plan, our tentative plan which is 23always of course subject to, if we can get through the 24Beyond Nuclear contention this morning. Hopefully by 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7noon, we will at that point break for lunch, and then 1we would take up the CRAFT contentions in the 2afternoon. However, if we happen to finish earlier 3with Beyond Nuclear contentions, we'll move into those 4before lunch. So, CRAFT should be prepared to move 5forward before lunch if that's necessary.
6It's been emphasized to us by the court 7reporter, and I'm sure you all will do this, but 8please speak into the microphone as necessary for the 9reporter to be able to pick out what you have to say 10and include that in the transcript. Of course we want 11to 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, 14before you begin speaking on a particular contention, 15it would be helpful if you would identify yourself 16both for our benefits to refresh our recollection and 17again for the record.
18We've been over, we have an order that 19sets forth the order of arguments, so I assume 20everyone knows that. We'll be starting with the 21Beyond Nuclear contentions, Contention 1 followed by 22Contention 2, then Contention 4. Beyond Nuclear Joint 23Intervenors, or Joint Petitioners I guess I should 24refer to you as, you'll have 15 minutes per contention 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 8but you may reserve about five minutes for rebuttal.
1And I believe we have 10 minutes for staff and for the 2panel.3And so we've covered breaks, we'll take it 4around 11:00 or 10:30 to 11:00, depending on where we 5are. I'll ask my colleagues if they have anything to 6add before we get started.
7JUDGE ARNOLD: Well, first off, I want to 8clear up some, Judge Spritzer keeps saying so much 9time for presentation. You can expect most of your 10presentation time to be occupied answering our 11questions. This is not an opportunity to provide new 12information. We are basically looking for an 13explanation of the information that's in the petition 14itself.15JUDGE SPRITZER: Yes, that's true.
16Everybody should, I think we covered that in our order 17that we're mainly here to, you're mainly here to 18answer our questions, not introduce new information or 19new evidence, new arguments that haven't been included 20in 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 24Nuclear Contention 1. For any members of the public 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 9who happen to be here, this contention concerns, as 1several of the Beyond Nuclear contentions, concerns 2something called Severe Accident and Mitigation 3Alternatives which is something that the Applicant 4initially or later the Nuclear Regulatory Commission 5in its environmental impact statement are required to 6take into account, that is, alternative action or 7procedures that would help mitigate, reduce the 8likelihood of or mitigate the effects of a severe 9accident should one occur no matter how unlikely that 10may actually be.
11All right. Why don't we start with Beyond 12Nuclear's Contention 1?
13MR. GUNTER: Okay, thank you. All right.
14That was the all clear I hope.
15COURT REPORTER: We might just want to 16have you move it back just a little.
17MR. GUNTER: Okay, how is that?
18JUDGE 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 22I think that the Judges have basically given the 23general overview here that this Contention 1 deals 24with the --
25NEAL 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 2Nuclear. The contention before you this morning has 3to do with our concerns that Detroit Edison's 4environmental report, Severe Accident and Mitigation 5Alternative analysis, is significantly deficient. And 6you know, just, I think the primary point here is that 7as our contention addressed the very demonstrative and 8well-articulated NRC staff concerns with regard for a 9SAMA looking at the filtered hardened vent. We have 10both the Applicant and the NRC Office of General 11Counsel who are silent on CEQ 2012-01-57. This CEQ 12consideration of additional requirements for 13containment venting systems for boiling water reactors 14with Mark 1 and Mark 2 containments, we draw upon the 15staff's own findings, principally through Robert 16Freds, John Denning, and Robert Moniger whose 17conclusions and recommendations found that a filtered 18vent was in fact cost beneficial for the Mark 1 and 19Fermi 2 being a Mark 1.
20The 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 24hardened vents. I take it what you want them to add 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11is some type of, what is it called, engineered filter 1that would remove radioactive particles in the event 2of a severe accident?
3MR. GUNTER: Judge Spritzer, what we 4really 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 7that's, so we're not asking for a proceeding here on 8a requirement for an action on the part of DTE. What 9we're asking for is that a thorough analysis be done, 10and we find the Applicant's application is deficient 11upon this area.
12They have outlined that they did a review 13with SAMA 123. There is no dispute there. What the 14dispute is, is that the staff in CEQ 2012-01-57, after 15going through the backfit analysis and all the 16guidance documents for a backfit analysis, the various 17NUREGs, they determined that when you do the 18quantitative and the qualitative analysis, as is 19incumbent upon this review for a substantial safety 20enhancement which is what the staff found for the 21filtered vent, that you come up with a cost benefit 22analysis.
23JUDGE SPRITZER: But was that evaluation 24done specifically for Fermi 2 or was this a generic 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12Mark 1 containment?
1MR. GUNTER: It was done for the Mark 1.
2Now, NEPA requires a site specific analysis, and 3that's where we find the dispute that after, you know, 4very, you know, we reviewed several Advisory Committee 5on Reactor Safeguard proceedings. There's extensive 6staff transcribed testimony that points to a very 7strong argument for, and a well-documented record 8again with following all of the procedures before the 9NRC that concluded that when you do the hard look, you 10find that the filtered vent is cost beneficial. And 11--12JUDGE TRIKOUROS: Mr. Gunter, let me 13interrupt you.
14MR. GUNTER: Yes, sir.
15JUDGE TRIKOUROS: Are you referring 16specifically to the SAMA analysis in the ERs? Is that 17what you're saying that NEPA should look at that, 18requires them to look at that? Where are you 19referring to?
20MR. GUNTER: The Severe Accident and 21Mitigation analysis.
22JUDGE TRIKOUROS: Is that what you're 23referring to?
24MR. GUNTER: I'm sorry, say it again?
25NEAL 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 1referring to?
2MR. GUNTER: Yes, sir. Specifically, 3we're looking at the SAMA alternative for this 4particularly vulnerable containment system. I think 5we 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 9incumbent upon the Agency and the Applicant to take 10this severe accident initiative very seriously and to 11look at it in the context of NEPA law.
12JUDGE TRIKOUROS: So, you're --
13JUDGE SPRITZER: Let me just interrupt for 14a second. One thing I forgot to mention earlier, 15Nicole will be holding up the cards. Let's see, you 16didn't ask to reserve five minutes for rebuttal. Do 17you want to reserve five minutes for rebuttal?
18MR. GUNTER: Yes, sir.
19JUDGE SPRITZER: Okay. So, you have five 20minutes left. She will be holding up a yellow card in 21about three minutes.
22MR. GUNTER: So, was that three minutes 23for real or that's where we're at right now?
24MS. PEPPERL: No, no, no, I was 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14demonstrating.
1MR. GUNTER: Okay, thank you. It was a 2fast 15.3JUDGE SPRITZER: I want to clear this up, 4within your official ten minutes, but for everybody's 5benefit, we will be holding up a three-minute card 6when 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 a9question or the Board has additional questions for 10you, we certainly want to give you the opportunity to 11answer them.
12MR. GUNTER: Thank you.
13JUDGE SPRITZER: It's more interesting to 14get your answer than finishing at a specific point in 15time. Please continue.
16MR. GUNTER: Well, I think again, you 17know, when the staff, the root of our contention and 18the genuine dispute here is that the staff did follow 19regulatory guidance and found a cost-justified, 20substantial safety enhancement.
21JUDGE SPRITZER: That's the filters that 22you were referring to earlier?
23MR. GUNTER: That's the filtered vent, 24yes, sir.
25NEAL 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 1to an unfiltered vent?
2MR. GUNTER: As opposed to an unfiltered, 3hardened vent.
4JUDGE SPRITZER: And what --
5MR. GUNTER: Now, you know, the industry 6will argue that the Torus provides a water filter.
7It's our contention that the staff, with the JLD, what 8they found was that the most compelling argument here 9is the need for defense in depth. And the filtered 10vent provides what the JLD determined to be a 11reasonably justified, you know, alternative. To put 12a filter gives you that, not only the direct benefit 13under severe accident condition of the added ability 14to filter out radiation, but indirectly it provided 15operators with the ability to take early action to 16protect containment from other challenges such as 17hydrogen gas and such. So --
18JUDGE SPRITZER: I think the NRC staff 19document you're referring to is the one where they say 20in terms of quantitative costs and benefits, the 21filters don't meet the quantitative test but if you 22add certain qualitative factors including defense in 23depth, they think they are advisable.
24MR. GUNTER: And that's, yes, sir, and 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 16that's where the substantial safety enhancement 1determination 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 5grasped that staff recommendation?
6MR. GUNTER: No, sir. That's, this is our 7point. In the response to the Petitioner's request 8for hearing, both the Applicant and the staff were 9silent on CEQ 2012-01-57.
10JUDGE SPRITZER: Now, you also referred to 11a National Academy of Sciences report. Again, I take 12it this report was not directed specifically at Fermi 132 but is more a general review of how the NRC had done 14a backfit analysis for again these engineered filters?
15MR. GUNTER: Yes, sir. In Appendix L, in 16the NAS study, references the cost benefit analysis.
17And we contend that the NAS, in its report to the NRC 18which was mandated by Congress, that their findings 19justify the incorporation of both quantitative and 20qualitative analysis.
21JUDGE SPRITZER: And they also refer, 22again the National Academy of Sciences report, if I 23recall it, it essentially criticized or suggested that 24the NRC had used a six-billion-dollar figure for the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17cost of a severe accident at the Peach Bottom Plant.
1MR. GUNTER: Yes, sir.
2JUDGE SPRITZER: Whereas, they said, look 3at Fukushima and the cost of that severe accident was 4more in the nature of $200 billion.
5MR. GUNTER: Yes, sir.
6JUDGE SPRITZER: At least what I got out 7of that was they were suggesting maybe $200 billion is 8a little more reasonable estimate of the cost of 9severe accident.
10MR. GUNTER: Well, I think that, our 11interpretation is that the National Academy said that 12you need to incorporate more broadly the qualitative 13factors. And again, these are factors that still 14don't have, they're not bounded by any certainty now, 15and so again that's a very important factor as we go 16through the requirements of NEPA and the backfit 17analysis and the associated NUREGs that incorporate 18the need for both quantitative and qualitative 19analysis.
20And you know, I just, let me just check 21here with my notes really quick because the SAMA for 22the hardened vent, the filtered hardened vent that DTE 23undertook, you know, it's not only silent on the CEQ 24but they're also silent on whether or not they 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 18incorporated external events, whether or not they 1thoroughly incorporated land contamination, how they 2factored that in. And I think that that's the level 3of detail that NEPA requires an answer.
4JUDGE SPRITZER: Including, you have five 5minutes left total or five minutes left on the 6initial.7MS. PEPPERL: About four minutes actually.
8JUDGE ARNOLD: I think this is kind of 9irrelevant because we've got questions that are going 10to go long beyond ten minutes.
11JUDGE SPRITZER: Okay, go ahead.
12JUDGE ARNOLD: Sure, I can start. I have 13questions in that I find some of the statements in the 14contention 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 177, the last paragraph says, "The deficiency 18highlighted in this contention has enormous 19independent health and safety significance."
20Now, this is a contention on SAMA which is 21a NEPA, an environmental law, and really doesn't 22factor into the safety aspects of the plant. So, how 23do you get that this has health and safety 24connections?
25NEAL 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 1radioactive releases raises a concern for the long-2term consequences of land contamination and population 3relocations. And that carries with it health impacts.
4And so, you know, the idea again is you have a 5mitigation alternative that both directly can benefit, 6both directly and indirectly benefits because it 7provides the filter element which can significantly 8reduce the land contamination event, for example, but 9it also provides an indirect benefit in that it will 10give operators the freedom to act early to, in early 11interventions to prevent containment failure.
12So, you know, it gives them a broad 13opportunity to vent without necessarily, you know, 14with this passive filter in it, they can vent 15hydrogen, they can vent pressure. So, you know, in 16fact it has both the operation to keep the plant safe 17under severe accident condition, but with this passive 18condition of a filter, it reduces the consequence of 19a severe accident impact such as land contamination.
20JUDGE ARNOLD: In that same paragraph, you 21say, "Applicant does not adequately or accurately 22account for the long-recognized design and structural 23vulnerabilities in the Mark 1 pressure suppression 24containment system," as if there are many 25NEAL 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 1about?2MR. GUNTER: We're talking about the fact 3that Generic Letter 89-16 did not go through a safety 4evaluation. And so, this was for the hardened vent 5that was put on all Mark 1's and that Generic Letter 689-16 basically, the NRC requested the hardened vent 7be installed on these Mark 1's because of where NUREG 81150 recognized that the containment was very likely 9to fail. This has been acknowledged and I think it's 10in our statements that, as early as 1972, this 11vulnerability to failure because the Mark 1 12containment is essentially undersized for the, you 13know, it was never evaluated --
14JUDGE ARNOLD: So, briefly, are you saying 15that they failed to account for the fact that the 16containment can fail?
17MR. GUNTER: They, the containment can 18fail early and the containment never, and the 19subsequent mitigation actions such as Generic Letter 2089-16 did not account for severe accidents.
21JUDGE ARNOLD: On page 8, in paragraph 221.3.1, "Petitioners contend that the absence of 23analysis and neglect of mitigating alternatives 24including engineered external high capacity filters on 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 21hardened containment vents may result in unanalyzed, 1unmitigated, and uncontrolled releases of 2radioactivity to the environment." Okay, so right 3there you specifically say they didn't analyze high 4capacity filters. Were there other alternatives that 5you believe they did not analyze? Or did not 6adequately analyze?
7MR. GUNTER: We didn't articulate that in 8the contention, but yes. There are bypass pathways 9within the containment that --
10(PA microphone feedback.)
11MR. GUNTER: Is that me?
12JUDGE ARNOLD: Keep going.
13MR. GUNTER: Okay. For example, you know, 14right now the way that the current order EA-2013-109 15is progressing, and we've been watching this very 16carefully, a lot of the Applicant's eggs are going 17into this basket that they can rely upon maintaining 18an open vent path through the wet well. And that 19raises 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 22may be other vent paths out through the dry well, many 23of them vent directly into the containment building, 24or into the reactor building, and thereby raises some 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 22issues on hydrogen gas generation, detonation ignition 1points.2So, yes, there are a number of extenuating 3issues here that what the CEQ 2012-01-57 provides in 4terms of answering defense in depth is that a filter 5venting system that's hardened both off the wet well 6and the dry well gives you that defense in depth. And 7they believe that it's cost beneficial and that they 8arrived at this idea that it is a substantial safety 9enhancement.
10JUDGE ARNOLD: Let me just explain what 11the problem is with the lack of specificity here. A 12contention, if it's admissible, has to be sufficiently 13specific that an applicant or a licensee knows what 14they have to defend against. They can defend against 15a claim that it lacks an analysis of a filtered vent 16but they can't defend against a claim that, and they 17didn't analyze other things,' because they just don't 18know what the contention is.
19MR. GUNTER: Right. Well, the filter 20component addresses the defense in depth issue that 21these other extenuating circumstances involve.
22JUDGE SPRITZER: So, for you, the primary 23focus of this contention is r eally the lack in the24SAMA relating to --
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 23MR. GUNTER: The filter.
1JUDGE SPRITZER: The filtered vents?
2MR. GUNTER: Yes, sir.
3JUDGE SPRITZER: Okay.
4JUDGE TRIKOUROS: Yes, well, first of all, 5you 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 8accident and that we look at it in its entirety in 9terms of what also occurred that was good as opposed 10to what was bad. In the first regard, I'd like to say 11that, is it your assertion that only Mark 1 BWRs at 12that site would have experienced severe accident 13conditions given the conditions that occurred in 14Fukushima?
15MR. GUNTER: Well, we're only dealing with 16the Mark, we're de aling with the Mark 1 in this 17proceeding. You know, I'm not going to make 18assertions beyond that.
19JUDGE TRIKOUROS: I understand. But you 20have been discussing Mark 1 in the context of 21Fukushima in a way that makes one believe that a Mark 221 is worse than all other, you know, reactor 23containment designs.
24MR. GUNTER: Yes, sir.
25NEAL 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 1should love to put on the record here is I think any 2PWR or BWR, other than the advanced reactors that were 3at that Fukushima site would likely have experienced 4the melt.
5MR. GUNTER: Yes.
6JUDGE TRIKOUROS: Most certainly, if they 7lost DC power. So, you know, I just want to put that 8in perspective.
9MR. GUNTER: Yes, sir. But you know, I 10think that when you start incorporating the, you know, 11the analysis, we've now moved beyond theoretical 12analysis in that we need to incorporate experience 13and, you know, where the Applicant could say that, 14well, you know, the odds here are so remote that we 15don't really have to worry about this. But we've had, 16you know, now three severe accidents in roughly the 17last three decades, and three of those, one of those 18accidents involved three Mark 1's that were operating.
19And so, that's why we, you know, feel that 20the CEQ 2012-01-57, the fact that it's, just that the 21OGC and the Applicant are silent on that, we find 22there is no justification for that. They need to 23address reality and they need to address what the 24staff provided in terms of regulatory procedure, the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 25backfit rule and guidance.
1JUDGE ARNOLD: On page 10 of the 2contention, halfway down the page, you said, "However, 3the Petitioners point out that the Applicant's 4description of the Mark 1 pressure suppression 5containment does not acknowledge, factor in, or 6incorporate analysis of, and otherwise ignores the 7long recognized and still unresolved vulnerabilities 8of the General Electric Mark 1 boiling water reactor 9pressure suppression containment system."
10Are you contending that there is 11information in their containment description that is 12incorrect?
13MR. GUNTER: Yes, sir. There is no 14reliable containment on a Mark 1, containment being 15radiation containment.
16JUDGE ARNOLD: Can you point to what in 17their description is wrong?
18MR. GUNTER: Well, that the, I think that 19what we point to is the evidence and conclusions and 20findings of CEQ 2012-01-57, that you need, that in 21order to have the defense in depth, that in order to 22meet the letter of NEPA, that you put a filter on a 23venting system, and that provides with the defense in 24depth of containment specifically for containing 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26radiation under severe accident conditions.
1JUDGE ARNOLD: Now, if you say their 2description of the containment is incorrect, how is 3this not a concern with the current licensing basis?
4MR. GUNTER: Well, we're not, you know, 5again we have raised within the context of the 6contention generic design criteria 16. But you know, 7as you've pointed out, I think that's more background 8than it is relative to this particular proceeding 9because we're look at the SAMA analysis for the 10license extension.
11JUDGE ARNOLD: So, you're not specifically 12challenging their description; you're just using that 13as evidence on this?
14MR. GUNTER: As background, yes, sir.
15JUDGE ARNOLD: Okay. Page 11, halfway 16down the page, "The NRC further concluded that the 17demonstrated safety margin," oh, this is, yes, where 18first you're talking about the general design 19criteria. Is this another background to support your 20SAMA claim?
21MR. GUNTER: Yes, sir. They, you know, 22the fact is that it's well established that the 23containment is vulnerable and that, so, in light of 24the severe accident analysis that they're currently 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27required to go through for the license extension, that 1their SAMA analysis on the filtered vent needs to 2incorporate these issues.
3JUDGE TRIKOUROS: Yes, Mr. Gunter, your 4evaluation in these pages that Judge Arnold is talking 5about are dealing with the issues raised by Dr.
6Hanauer years ago.
7JUDGE SPRITZER: Speak into the mic.
8JUDGE TRIKOUROS: Yes, unfortunately, this 9doesn't reach over. Is that better?
10MR. GUNTER: Yes. Yes, sir.
11JUDGE TRIKOUROS: Okay. And those 12vulnerabilities were identified years ago, something 13in the range of 40 years ago actually. And there were 14extensive NRC licensing activities associated with all 15of these Mark 1 issues, and there were modifications 16made to the plants to overcome these issues. Are 17these, is this what we're talking about, those 18vulnerabilities that were identified back in the 70's?
19MR. GUNTER: I think that what we're 20talking about in the context of this particular SAMA 21is the hardened vent that was installed under Generic 22Letter 89-16. And those were installed by TEPCO at 23Fukushima Units 1 through 6 on the Mark 1's and the 24Mark 2 there. And they did not provide the reliable 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28containment under severe accident conditions.
1JUDGE TRIKOUROS: Yes, I understand. And 2even in our country, the hardened vents are very, the 3hardened vent designs were plant specific, so I agree 4with that. But you know, we aren't dealing with 5orders that have been issued by the Nuclear Regulatory 6Commission to modify all of this, right?
7MR. GUNTER: Yes, sir. But we're also 8dealing with the National Environmental Policy Act and 9the requirement to do the hard look analysis. And so, 10I think that's what we have to incorporate here.
11JUDGE TRIKOUROS: In the SAMA analysis?
12MR. GUNTER: Yes, sir.
13JUDGE TRIKOUROS: All right. And so, 14specifically, the Applicant, my understanding, I 15looked at that and came up with something like a 16factor of 40, not cost benefit on the basis of 17something like a factor of 40.
18MR. GUNTER: Yes, sir. Therein lies the 19genuine dispute that we have alleged because they do 20not address, they are silent on CEQ 2012-01-57. And 21a large body of NRC's own analysis that determined to 22the contrary that the filtered vent was a cost 23beneficial substantial safety enhancement, there's a 24dispute there.
25NEAL 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.
1Page 13, first paragraph, you mentioned, "Petitioners 2contend that new information for the 'maximum credible 3accident' needs to be updated and incorporated into 4the very Fermi 2 license renewal request." This 5maximum credible accident, are you suggesting that the 6SAMA analysis should be based upon worst case 7accidents?
8MR. GUNTER: I'm saying it needs to be 9based on what we've seen to date, that in fact we now 10have, we don't have a theoretical analysis, we have 11real 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 14Fukushima Daiichi accident as a prolonged station 15blackout accident that happened three times.
16JUDGE ARNOLD: Once again, okay, on page 1718, being specific, "Petitioners contend that the 18state of the art SAMA alternatives that significantly 19reduce adverse radiological contamination to the 20environment are readily available for install today 21and applicable to the requested license renewal period 22but have not been analyzed in the Applicant's 23environmental report." So far, the specific 24alternatives I've heard of is a filter in the vent.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30Is there anything else specifically that should be 1analyzed in SAMA and hasn't been?
2MR. GUNTER: Well, that's the focus of our 3contention.
4JUDGE ARNOLD: Okay, agreed.
5JUDGE TRIKOUROS: Can I ask the staff one 6question here? What's the status of filtered vents in 7the NRC licensing --
8MR. HARRIS: The status of filtered vents, 9and it's actually, I believe the title of the 10rulemaking is, it's not, it's filtering strategies.
11So, they're looking at filtered vents as a potential 12rulemaking. That is ongoing. I believe the basis, 13and I can look that up because I don't remember the 14exact date that the basis is due, probably sometime in 15the next six months, but I would want to double check 16on that particular date. But they're having meetings 17on the filtered strategies rulemaking, and whether or 18not that will be a rule that's imposed on licenses in 19the future.
20It grew up out of the orders and the CEQ 21paper that we've been talking about where the 22Commission took with the staff, actually, you know, 23suggested that we want to require severe accident 24capable events, but staff, please take, you know, as 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31an action item to go look at the filtering, you know, 1in a rulemaking because they did not accept what the 2staff had recommended at that point.
3JUDGE TRIKOUROS: I just wanted to point 4out that one has to be very careful about venting.
5There are circumstances in a boiling water reactor 6where venting is a negative thing. And in fact, even 7at Fukushima, there's Sandia National Laboratories at 8least indicated --
9JUDGE ARNOLD: Judge Trikouros, we're not 10supposed to be giving evidence.
11MR. GUNTER: But I think that the Judge 12does point out in reply is that the fact that the NRC 13is ongoing with rulemaking on the filtered vent and 14how it may or may not affect the Fermi 2 license 15renewal proceeding, now is our time. We have standing 16to address a specific aspect of what NEPA requires in 17that NEPA mitigation alternative analysis is used in 18site specific license extensions to identify if there 19are any additional mitigation alternatives, hardware 20or procedures, that are cost beneficial to implement 21at Fermi 2 that can reduce the severe accident risk 22probability and consequence. So, now is our time.
23This is what NEPA provides us with. And 24not to be put off three, four, five, indefinite, you 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 32know, years from now, this is our only opportunity 1and, you know, we wish to exercise it.
2JUDGE SPRITZER: I take it, however, that 3if the staff or the NRC did by regulation require 4vents, this contention would effectively become --
5MR. GUNTER: Moot.
6JUDGE SPRITZER: Would it not?
7MR. GUNTER: If the filtered, if CEQ 2012-801-57 option 3 were implemented, this contention would 9be moot.10JUDGE ARNOLD: On page 20, the top 11paragraph, last sentence says, "These uncontrolled and 12unfiltered radiological releases and their 13environmental consequences are not thoroughly or 14adequately 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, 18is this an expansion of the contention or am I just 19reading this wrong?
20MR. GUNTER: If I understand correctly, 21can I see this? Do you have it right here? Can I 22have one minute please or less even?
23(Pause.)24MR. GUNTER: The concern here is again 25NEAL 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 1containment, dry well and wet well, that without a 2filter aren't analyzed. I mean you can flood up the 3wet well and preclude the venting for a Mark 1 for 4Fermi 2. And while you may have other vent paths off 5of the dry well, they are not adequately analyzed 6because they open the operator to the same 7vulnerabilities that we saw at Fukushima where 8hydrogen venting right along with that radiation is 9trapped in the reactor building itself, the secondary 10containment where it can find an ignition point and 11you have a catastrophic failure.
12And I think that, again our point here is 13that this is all analyzed in CEQ 2012-01-57 and the 14staff's conclusion is that the defense in depth 15involves a SAMA alternative for a filtered vent of 16both the dry well and the wet well. And that's been 17rejected by the Applicant and there again lies our 18argument that we need to review this as a genuine 19dispute.20JUDGE ARNOLD: Can you tell me of any 21legal requirement to address CEQ letters in a 22relicensing application?
23MR. GUNTER: I think again that we go back 24to the NEPA mitigation alternative analysis, that, you 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 34know, it's you, it's there for the site specific 1licensing extension to identify viable, cost 2beneficial mitigation alternatives.
3JUDGE SPRITZER: Okay, let's move on.
4We've gone well over your time.
5MR. GUNTER: Thank you so much.
6JUDGE SPRITZER: But that's because you 7were answering our questions and we will not penalize 8you for the last five minutes of rebuttal. Let's move 9on to the Applicant.
10MR. SMITH: Thank you. My name is Tyson 11Smith for the Applicant. This contention appears to 12have morphed from what was originally proposed. As 13originally written, the contention is clearly a 14contention of omission. The Petitioners note that, or 15state that the ER fails to account, analyze and 16consider engineered filtered vents.
17JUDGE SPRITZER: But the worst of the 18statements though is to the effect of the adequacy as 19opposed 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 23narrowing and focusing on the issue of this particular 24SAMA but I take it this was actually considered, the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 35filtered vent, is that correct?
1MR. SMITH: That's correct.
2JUDGE SPRITZER: It was in SAMA --
3MR. SMITH: 123.
4JUDGE SPRITZER: 123. So, it's really, 5you know, focusing on the adequacy of the 6consideration and particularly the question of whether 7this staff document and also the National Academy 8report, 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 11done for the ER or that particular SAMA 123?
12MR. SMITH: Sure. That SAMA 123, the SAMA 13analysis that was performed for Fermi was based on 14NRC-endorsed industry guidance for performing SAMA 15analyses. It takes into account the plant condition, 16looks at a variety of accident sequences, and 17postulates the consequences in terms of dose and 18offsite consequences, looks at how those can be 19reduced by a variety of alternatives. That is the 20analysis that we presented.
21Now, the reference to CEQ 12-01-57, I 22think my initial point was that wasn't really raised 23and presented in their initial contention. That was 24really only raised in their reply. So, when Mr.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 36Gunter says repeatedly that we were silent on that, 1the reason for that is it wasn't really addressed 2until the report.
3Though there is a citation to it in their 4initial contention, that citation, when you actually 5look at what it says, it says that the staff concludes 6that based on its regulatory analysis, using standard 7regulatory analyses techniques, concludes that 8comparison of a quantifiable cost and benefits would 9not by themselves demonstrate that the benefits exceed 10the costs. And that's entirely consistent with the 11conclusion of our SAMA analysis where we concluded 12that the benefits of installing a filtered vent are on 13the order $1.1 million where the cost is on the order 14of $40 million.
15In order for the Intervenors, or the 16Petitioners to have an admissible contention on a SAMA 17analysis, they must present some basis for concluding 18that what we've done is "unreasonable." And the 19Commission has reiterated this many times. The 20techniques that we used, the standard probabilistic 21model and techniques are standard and accepted 22practices. And those are not reasonably disputed by 23the Intervenors here in this proceeding.
24JUDGE SPRITZER: Okay. Let me just add, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 37I may be confused as to which document we're talking 1about, on page 13, this is the --
2MR. SMITH: Correct.
3JUDGE SPRITZER: They do refer to this NRC 4staff document, CEQ 2012-01-57 and quote from it 5including the statement that when you add qualitative 6factors, I'm paraphrasing here, I'm not quoting 7literally, but when you add in qualitative factors, 8that that would tip the balance in favor of the 9filter. Was that specific document and its conclusion 10that I just mentioned, was that analyzed in some way 11in preparing the SAMA analysis or SAMA 123 or for that 12matter any other SAMA?
13MR. SMITH: Well, I'll point you to the 14sentence right before the one you read which says 15that, "A comparison of the quantifiable cost and 16benefits of the modifications would not by themselves 17demonstrate that the benefits exceed the associated 18costs."19JUDGE SPRITZER: Right. No, I understand 20that.21MR. SMITH: So, the staff itself 22acknowledges that just by using standard regulatory 23analysis techniques, there is no benefit. It's only 24when they consider these extra factors, qualitative 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 38factors, that they were able to, that the staff 1concluded that there were benefits. That's not the 2outcome of the Commission's vote which is to proceed 3with a rulemaking to assess whether or not filtered 4vents are warranted. So, if the question is does our 5SAMA analysis expressly address qualitative factors, 6the answer is no because that's not addressed in 7current NRC accepted regulatory guidance, nor is that 8the purpose of the SAMA analysis.
9JUDGE SPRITZER: So, it's your position, 10in other words, that the qualitative factors that 11they're stressing, that Petitioners are stressing, are 12really outside the scope of the SAMA analysis you're 13required to do?
14MR. SMITH: Absolutely. And --
15JUDGE SPRITZER: All right. Was there 16any, you mentioned guidance, was there any regulation 17or Commission decision, CLI decision that you can 18point us to that addresses that issue?
19MR. SMITH: Sure. And per regulation 20first, I'll point to 10 CFR 51.71(d) which says that 21environmental impact statements should, to the fullest 22extent practicable, quantify the various factors 23considered. And that's exactly what we did here.
24JUDGE SPRITZER: If I remember though, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 39doesn't that also say, address qualitative factors?
1This is 51.71(d)?
2MR. SMITH: D, correct. And so, it says 3you may consider qualitative factors, but here 4Petitioners have not identified what particular 5qualitative factor we should have but did not 6consider, nor did they identify how that would affect 7the outcome of the analysis. They haven't, and the 8Commission has repeatedly mentioned in numerous CLIs 9that the purpose of the SAMA analysis is not to, is to 10identify broadly whether there are likely cost 11beneficial alternatives.
12And of course there are other ways you 13could run the model or different inputs you could do, 14but the purpose of it is to generally meet this 15obligation and do a hard look which is also subject to 16the rule. And that what we have done, what Fermi has 17done by following standard NRC accepted techniques, 18and that is by definition a reasonable approach. That 19means it's incumbent on the Petitioners to identify 20what is wrong or what factor would change the outcome.
21And certainly with the filtered vents they have not 22done so yet.
23JUDGE TRIKOUROS: While Judge Arnold is 24looking through his notes, let me ask you, would the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 40SAMA analysis you've done back years ago, would that 1have allowed for the vents that are there now --
2MR. SMITH: I can't speculate as to 3whether 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 6current licensing basis issues. Their questions are 7what's the adequate level of safety, and that's a 8question that the Commission is currently grappling 9with now in a rulemaking on filtering strategies. And 10to suggest that somehow that issue is directly related 11to the SAMA analysis here, I don't see how that's 12possible and there's certainly no support for that.
13JUDGE SPRITZER: Let me see if I can, that 14raises a question that I'll also ask to staff, but is 15it your position that the fact that, just the fact16that the Commission is considering some additional 17requirements with respect to filtered vents, does that 18remove this contention regarding the SAMA 123 from our 19jurisdiction?
20MR. SMITH: No, it does not. And again, 21that's because we have considered SAMA 123 in our SAMA 22analysis, it is part of the environmental report that 23we provided.
24JUDGE SPRITZER: But I take it you would 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 41agree then that as along as SAMA 123, as long as the 1Commission is not taking some action that effectively 2makes the SAMA 123 issue moot, we can still consider 3their argument that you didn't do a good enough job of 4analyzing that particular SAMA?
5MR. SMITH: Yes, that's correct. But 6their argument that you didn't do a good enough job, 7that argument must be supported by some reference to 8our SAMA analysis. And the Commission has repeatedly 9said that the question is not whether there are other 10ways 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 13events or what would have changed the outcome of the 14SAMA analysis such that SAMA 123 would become cost 15beneficial, either the cost of installing the filtered 16vent is less or that the risk is so great that it 17would make it cost beneficial. And they haven't put 18forth sufficient information to establish and do not 19speak 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 23actually is part of a section that deals with the 24draft environmental impact statement and its contents.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 42Your client of course prepared the environmental 1report. But do you agree that the language in 251.71(d) is something we can look at in terms of 3defining what the environmental report should contain 4or no?5MR. SMITH: Yes. I mean it's instructive.
6I mean the point of it I think is consistent with 7general CEQ guidelines and general NEPA case law is 8that you should to the extent practical quantify the 9costs and benefits. Part of the reason for that is 10that by quantifying it, you make the analysis 11reproducible in some way. These are things like 12qualitative factors that hinge upon who the decision 13maker was at the time of the decision and how much 14weight to give to some of these various factors. And 15that again is not the purpose of the NEPA analysis or 16the SAMA analysis in particular here which is to 17provide information to the public about what the 18alternatives were considered, what the costs and 19benefits are those, and how that might drive some 20decision making. That's exactly what we've done here 21and the Petitioners haven't put forth any information 22to call into question those conclusions.
23JUDGE SPRITZER: Well, 51.71(d) does say 24though that to the extent there are important 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 43qualitative considerations or factors that you cannot 1quantify, these considerations or factors will be 2discussed 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 5that, I'll let --
6MR. SMITH: Well, I mean I'll, you know, 7start with the point which is DTE used longstanding 8accepted SAMA analysis techniques based on NRC-9endorsed industry guidelines. It relied on site-10specific meteorological, population data, economic 11data to estimate the costs and benefits. And it 12concluded that the probability, weighted consequences 13were less than the cost of the implementation of a 14filtered vent.
15And I haven't heard anything from the 16Petitioners, and certainly nothing is in their 17contention or their reply to suggest that 18consideration of any of these other unknown or unnamed 19qualitative factors would affect that conclusion. And 20the Commission has repeatedly said that's what it 21takes to give a standard contention, they've got to 22show that what we did was unreasonable. And relying 23on standard accepted techniques is by definition 24reasonable.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 44JUDGE SPRITZER: All right.
1JUDGE ARNOLD: I actually don't have any 2questions.
3JUDGE SPRITZER: All right. You're off 4the hook I guess. There is this other issue related 5to the National Academy of Sciences report. My rough 6understanding of how the SAMA analysis would be done 7is, one part of it is that at some point you would 8estimate the cost of the severe accident that you're 9analyzing, environmental and public health costs, is 10that --11MR. SMITH: That's correct. It's based on 12a probabilistic model that looks at a variety of 13different scenarios and comes with named consequences 14based on a year's worth of meteorological data.
15JUDGE ARNOLD: But it's not just an 16estimate 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 22from the total cost estimate and then work backwards 23to what the accidents are. It actually does it the 24other way.
25NEAL 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 1vulnerabilities of a boiling water reactor, the Mark 21 containments that were brought up by the 3Petitioners, where specifically do you deal with those 4within the structure of the SAMA analysis?
5MR. SMITH: All of those issues are 6embedded in the PRA model that's the input to the SAMA 7analysis. So, the plant is modeled, like I said, 8probabilistic risk assessment, a PRA model that models 9the behavior of the plant in response to certain 10initiating events, and the frequency and the accident 11sequences that are addressed in the SAMA analysis 12incorporating the plan as currently designed and as it 13has been responded to, making changes to address those 14issues in the past. So, our starting point is here is 15what the plan is and looking at all the different 16accident sequences and scenarios that I think by 17definition includes the plant's response to mitigate 18the issues you're addressing in the past.
19JUDGE TRIKOUROS: And so, a vulnerability 20in the Mark 1 would show up as a probabilistic number 21--22MR. SMITH: Correct.
23JUDGE TRIKOUROS: Failure number?
24MR. SMITH: That's exactly right, correct.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 46JUDGE TRIKOUROS: Okay.
1JUDGE SPRITZER: And I take it you're 2telling us that you haven't seen anywhere where the 3Petitioners have challenged specific numbers you used 4to say here are the numbers, the different numbers 5that you should have used that would have potentially 6at least changed the outcome of the analysis?
7MR. SMITH: That's exactly right. And 8that's what the Commission has repeatedly said is 9required for a SAMA analysis. You must show something 10to show that the costs and benefits, if done 11differently and in your way, would have resulted in 12some SAMA becoming cost beneficial that wasn't before.
13JUDGE SPRITZER: Let me ask the same 14essential question with respect to the National 15Academy's $200 billion cost estimate for the accident 16that Fukushima had. Is that, how if at all is that 17factored, that issue of the overall cost estimate?
18What role does play in the SAMA analysis and would it 19have made any difference in the National Academy's --
20MR. SMITH: It plays no role in the SAMA 21analysis, and there is no way to use that figure in 22the SAMA analysis. And that's a conclusion, the SAMA 23analysis is a probabilistic analysis that looks at 24failure probabilities, event probabilities, and then 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 47leads to an assessment of the cost of that accident.
1So, 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 4was mentioning before, starting with an endpoint and 5then working back to look at the results, that's not 6the purpose the SAMA analysis.
7JUDGE SPRITZER: Do you, when you do the 8analysis, do you do it both with and without this 9particular SAMA that you're looking at?
10MR. SMITH: That's exactly how you 11calculate the benefit of a particular SAMA. You run 12the model without it and you run it with it, and then 13that delta is the benefit of the SAMA.
14JUDGE SPRITZER: All right, I think I 15understand.
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 19Applicant's SAMA alternatives at Table D.1.5 are 20overly and unrealistically optimistic by not 21anticipating the potential for fuel damage in the 22analysis and do not thoroughly or adequately address 23the failure of the pressure suppression containment 24with the uncontrolled and unfiltered radiological 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 48releases to the environment."
1Question one, do you, at any place in your 2SAMA analysis, just, you know, assume that there is no 3potential for fuel damage?
4MR. SMITH: No, the SAMA analysis reflects 5the potential for fuel damage.
6JUDGE ARNOLD: Okay. And do you model the 7pressure suppression containment?
8MR. SMITH: Absolutely.
9JUDGE ARNOLD: And is there a mechanism 10for it to fail in your analysis?
11MR. SMITH: Yes. And there are a variety 12of events that look at how that --
13JUDGE ARNOLD: So, you would basically not 14agree with that statement?
15MR. SMITH: That's correct, that's simply 16wrong.17JUDGE ARNOLD: Okay.
18JUDGE SPRITZER: I wanted to, I did read 19through a number of, it's Appendix D of the 20environmental report. I couldn't find anything that 21specifically addressed SAMA 123, a more general 22description of how to do the probabilistic risk 23analysis. But maybe I overlooked something, so is 24there any particular pages you think that would be 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 49helpful in understanding the analysis of a particular 1SAMA?2MR. SMITH: Well, SAMA 123 is summarized 3on page D-120.
4JUDGE SPRITZER: 123?
5MR. SMITH: Page D-120 discusses SAMA 123, 6I'm sorry, yes. And so, that's where it says, "To 7evaluate the change in plant risk, an analysis was 8performed, decreasing the concentration of all 9radionuclides by 50 percent." And so, it says this is 10about a post accident release, it says no changes in 11the core damage frequency were used. So, the averted 12cost risk was calculated by comparing the base, that's 13why it talks about running it without the SAMA, to the 14modified events with the SAMA, and then using a 15similar 50 percent reduction in radionuclide 16concentrations, the filtering reduced the amount of 17radionuclides by 50 percent.
18JUDGE ARNOLD: Is that a reasonable 19number, 50 percent?
20MR. 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.
24My recollection is that that's assumed to be a 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 50conservative assumption and that the actual reduction 1might be more or less, it might be more.
2JUDGE SPRITZER: But I take it in doing 3this analysis, you also factor in in some way the 4likelihood of an accident, a severe accident actually 5occurring?
6MR. SMITH: Correct. The core damage 7frequency estimates are the PRA level 1 analyses, 8that's the original input to the model is looking for 9damage frequencies, for core damage frequencies. Then 10you look at what are the, then level 2 is looking at 11what are the different ways in which radionuclides 12might be released in the event of a core damage event.
13And then level 3 is looking at all the offsite 14consequences.
15JUDGE TRIKOUROS: Yes. And again, just to 16understand the SAMA a little better, is the Mark 1 17containment more vulnerable to a severe accident than 18other containments?
19MR. SMITH: I'm not in a position to opine 20on that. Certainly the Mark 1 containment at Fermi 21has been determined to be safe.
22JUDGE TRIKOUROS: And if there is a severe 23accident where there is an occurrence, is it required 24within the design of a plant like Fermi to be able to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 51withstand that without containment unit?
1MR. SMITH: That is my understanding. But 2I'm not really in a position to --
3JUDGE TRIKOUROS: What is your 4understanding?
5MR. SMITH: That it would be able to 6withstand however you just described the containment, 7not a containment failure but an accident, a core melt 8that didn't lead to, would be able to withstand that.
9Did I misunderstand you? Was your question is the 10plant designed to be able to withstand core damage?
11JUDGE TRIKOUROS: Well, there are many, I 12am assuming there are many sequences in your SAMA that 13lead to core melt that lead to containment error?
14MR. SMITH: Correct, there are.
15JUDGE TRIKOUROS: And that is not outside, 16it is not required by the design basis of the plant?
17MR. SMITH: I understand what you're 18saying now.
19JUDGE TRIKOUROS: Would that not happen?
20MR. SMITH: Correct. All of these 21accidents that we're talking about are severe 22accidents which are by definition accidents beyond the 23design basis of the plant. So, the plant as designed 24satisfies all of the NRC's requirements for design 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 52basis accidents.
1JUDGE TRIKOUROS: Right. And those would 2still allow it to fail in the event of a severe 3accident. The NRC requirements do not preclude that?
4MR. SMITH: Correct.
5JUDGE SPRITZER: All right, thank you. We 6will next hear from the NRC staff. Before you get 7started, maybe you could clarify, I'll ask you the 8same question I think that I asked Mr. Smith which is 9the fact that the Commission or the staff is now 10looking at the issue of in some way modifying 11requirements that might include these filtered vents, 12does that in any way impact our jurisdiction to hear 13this?14MR. HARRIS: No, but there is a but to 15that because we do need to separate that issue out 16from a NEPA standpoint versus a safety requirement.
17So, if it was part of a rulemaking, even a rulemaking 18that there is Commission case law that's something 19that's subject to a generic rulemaking, it's not 20something that can be litigated before the ASLB. But 21that doesn't necessarily preclude you from having to 22look at it from a NEPA standpoint. But from a safety 23standpoint, it would remove it from the jurisdiction.
24In this case, license renewal, making some 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 53kind of safety improvement like this really is sort 1of, is outside, the current licensing basis is outside 2the scope of the jurisdiction.
3JUDGE SPRITZER: Assume that we're focused 4simply on the issue of whether SAMA 123 was adequate, 5or I should say narrow their Contention 1, that would 6be something we could --
7MR. HARRIS: That would be something that 8you can look at in terms of how the NEPA, the SAMA 9analysis under the National Environmental Policy Act, 10you know, could, it's something that is subject to 11challenge in this type of proceeding.
12JUDGE SPRITZER: Okay.
13MR. HARRIS: There are a couple of issues 14that I want to address that have come up as we've been 15talking. Turning back first to this idea of 16qualitative analysis, I'm looking at the original 17contention because we have been going back to page 13 18where they cite to the staff CEQ paper where they made 19recommendations on installing severe accident capable 20events engineered filters, that's really, that one 21quote is the only place where qualitative factors come 22up in their initial contention, that the staff, you 23know, as a result of doing a backfit for safety 24purposes considered qualitative factors of whether or 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 54not engineered filtered vents should be required.
1Nowhere else in their initial contention really 2discusses that aspect of it.
3You know, the CEQ paper that we are 4talking about was, you know, about a thousand pages 5with all the appendixes that were in it. So, trying 6to sort of sort through that CEQ paper based on their 7one reference that they never really come back when 8the scope of what their contention really was was you 9didn't analyze filtered vents, and clearly filtered 10vents were analyzed from a quantitative effect, is 11that's really sort of asking a lot of the other 12parties to sort of read into that one single line that 13that was the crux of their argument. And then it sort 14of expands out into the reply that really we only care 15about these qualitative factors. If that was true, 16they probably should have addressed it more thoroughly 17in the initial contention.
18The reason, you know, we didn't address 19qualitative factors is it did not seem to be within 20the scope of their contention. They kept complaining 21about the fact that filtered vents weren't analyzed, 22and they were.
23JUDGE SPRITZER: Well, there were some 24references to them not being adequately analyzed. But 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 55we're here today, so whatever you think you haven't 1had the chance to argue previously, you can put before 2us.3MR. HARRIS: Right. So, but those 4adequate analyses are sort of, you know, up in the air 5of it wasn't adequately done. As Judge Arnold was 6mentioning is that they're sort of, you know, 7unspecific, you know, there wasn't sufficient, you 8know, analysis. You didn't take into account, for 9example, we've been talking about the design 10vulnerabilities that were first identified in the 1170's. Since that time, of course you've had the 12generic letter that required at that time what were 13called reliable hardened vents, most of them like when 14plants put it in. But since then we actually have two 15orders that have come out that have required both 16reliable hardened vents and then that order was 17superseded by the severe accident capable vents.
18So, now the current licensing basis 19reflects those changes to it. You know, to the extent 20that the Petitioners think that those changes don't, 21are insufficient to provide safety, license renewal is 22not the place to do it, and not to use the SAMA 23analysis to attack the safety of the current licensing 24basis for the plant. Those types of challenges are 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 56normally done through rulemaking or 2206 petitions.
1And I understand that the Petitioners do not like the 2way the 2206 petition process works, but those are the 3rules that the Commission set out for how to address 4a current safety issue within the plant.
5One of the other things that has --
6JUDGE SPRITZER: But not a NEPA issue.
7MR. HARRIS: But not a NEPA issue. But 8under the NEPA issue, I need to provide a hard look at 9the environmental impacts.
10JUDGE SPRITZER: I can't speak for my 11colleagues, but certainly for me, I understand this 12purely is a NEPA issue relating to SAMA 123. I 13understand entirely your position about the safety 14arguments about whether the Commission should or 15should not, bottom line the continuing the licensing 16basis, are outside the scope of licensing basis and 17are 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 20somewhat, or not somewhat, a lot as a result of our 21discussion here today. So, I think it would be best 22to focus on the NEPA issue.
23I mean, well, let me ask you this. I 24asked Mr. Smith about 51.71(d).
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 57MR. HARRIS: Right.
1JUDGE SPRITZER: Which directly addresses 2the draft EIS, not the environmental report. But do 3you agree, we can look to the requirements for the 4contents of the draft EIS in interpreting what should 5be in the environmental report?
6MR. HARRIS: That is consistent with the 7Commission case law. The Commission has indicated 8that, at least for purposes of DEIS which will 9eventually be a staff document, at this point of the 10proceeding the ER somewhat stands in for the staff's 11EIS for this kind of challenges. So, the requirements 12of an EIS, you know, is a good instruction point for 13figuring out what should be in the environmental 14report. So, that's true.
15Addressing that particular language in the 1651.71(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 19analysis which we've heard a little bit about before, 20you know, does consider a lot of unknowns, a lot of 21this kind of factors that are very difficult to 22quantify. It does sensitivity studies, it does 23uncertainty to try to account for the things that are 24very difficult to determine.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 58In this particular proceeding, the SAMA 1analysis 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 4terms of the types of benefits that you could actually 5get to try to account for these things that are both 6difficult to quantify, unknown, things that, you know, 7are very difficult to model, and just the uncertainty 8with the fact that severe accidents, you know, there 9have been a few but they're not easy to model. And we 10have uncertainty both with the inputs and, you know, 11the particular analysis, you know, and the model as it 12goes out, that there is some unknowns out there.
13So, one of the things that was addressed 14with the National Academy of Sciences report, the 15National Academy of Sciences report, when you actually 16look at what the National Academy of Sciences has 17actually said is they weren't commenting on what the 18NRC did for their SAMA analysis looking at filtered 19vents. That was not within the scope of their task.
20And you look at the recommendations, and they 21specifically say that they didn't think, that they 22weren't sure that, they didn't look at it enough to 23make any determinations of whether or not the analysis 24was okay in their minds.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 59They simply pointed out that for 1recommendation 5.2(a) and 5.2(c), that it would be in 2both the industry's and the NRC's, from a prospective 3basis, to try to improve the ability to model external 4events and to account for some, you know, to continue 5to try to improve the model in terms of the 6consequences because these models are somewhat 7sensitive to the inputs that you put into it. But you 8have to put the best inputs that you have at the time.
9You shouldn't be just putting in extremely large, 10extremely conservative inputs to generate results, 11because that would really be turning us into a worst 12case type of analysis. If I put in inputs that would 13account for meteors striking the plant and that type 14of accident, you know, I mean there is always a severe 15accident bigger than the one that we have considered 16and you can continue to, you know, postulate even 17worse severe accidents and worst severe accidents, and 18you have to use the information that you have.
19And that's what the Petitioners haven't 20done is pointed to why that analysis doesn't capture 21all those types of issues. One of the things that 22came up here, the current argument is dealing with 23external, both external events and how that's modeled, 24but also the contamination, land contamination. Both 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 60of those things are actually considered in the SAMA 1analysis. The external events, they used a multiplier 2again to account for the internal events, 11 times.
3So, the external event multiplier was 11 times the 4actual accident. Sorry, the time. The internal 5accident, and they actually accounted for the cost to 6decontaminate. That's found in their ER.
7So, those things are not missing, you 8know. Somehow that would be incumbent on Petitioners 9to point to why that analysis was wrong.
10JUDGE SPRITZER: All right. Unless my 11colleagues 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 14point? Petitioners, sorry.
15MR. 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 18Applicant has and has not considered. And I think 19that herein we want the hard look. That's why we 20requested the hearing.
21And the fact is that we find it a little 22awkward that the public has to do what we believe to 23be the NRC's job to take that hard look. That's what, 24NEPA wants the federal government to do this look, not 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 61people, you know, not the Petitioners necessarily.
1But we have, you know, it is incumbent upon us to 2throw a flag on the field and that's essentially what 3we're doing here.
4But I wanted to just close by saying that 5the backfit analysis, it's very clear in 10 CFR 50.109 6that, you know, it doesn't say that you, it doesn't 7provide for an option. But it says that when you have 8these large uncertainties, that you need to 9incorporate both the quantitative and the qualitative 10factors. And this is supported in the regulatory 11guidance by NUREG 1409, NUREG BR0058, and NUREG 12BR0184. So, you know, the onus is upon the Agency to 13be taking this hard look and that's what we're asking 14for.15JUDGE SPRITZER: Let me ask one question 16with regard to the National Academy of Sciences report 17and their $200 billion cost estimate for a severe 18accident for the Fukushima accident. He says that 19even if they had accepted that figure, it wouldn't 20make any difference to the SAMA analysis done for SAMA 21123, or I suspect for any of the other SAMAs. Would 22you agree or disagree?
23MR. GUNTER: We disagree.
24JUDGE SPRITZER: Why?
25NEAL 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 1briefly, it says here, to quote NAS, "The point of 2this appendix is not to critique the US Nuclear 3Regulatory Commission's analysis. The committee did 4not perform an in-depth review of this analysis 5because it is outside the statement of tasks for the 6study. The committee offers this example to 7demonstrate that severe accidents such as occurred in 8Fukushima Daiichi plant can have large costs and other 9consequences that are not considered in US NRC backfit 10analysis. This includes national economic disruption, 11anxiety and depression, which affected populations and 12deterioration of social institutions arising from a 13loss of trust in government operations."
14So, the NAS basically again says that you 15need to take this broader qualitative look that now is 16not theoretical. I also would note that the CEQ 2012-1701-57, they did the MELCOR analysis, and they say that 18the MELCOR MAC-S analysis provided technical basis for 19support of option 3 in the regulatory analysis. They 20did the MAC-S consequence analysis in CEQ 2012-01-57 21and they conclude these MAC-S consequence analyses 22show a clear benefit in applying an external filter to 23either the wet well or the dry well vent path. Staff 24also did the probabilistic risk assessment in 01-57 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 63and concluded that the risk evaluation provides a 1technical basis to support option 3 in the regulatory 2analysis.
3So, we're seeing a hard look done by NRC 4in this mitigation analysis. And this is an excellent 5opportunity for the NRC to gain significant public 6confidence that it holds forth to, that the public and 7the environment, and these are the strong 8considerations. So, that's why we're requesting that 9this licensing board provide us with a hearing so that 10we can sort this dispute out.
11JUDGE SPRITZER: Okay, thank you. You 12have 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 15on to --16COURT REPORTER: Judge Spritzer? We need 1715 minutes for an audio review issue.
18JUDGE SPRITZER: Okay, 15 minutes. So, 19please return at 10 minutes after 11:00.
20(Off the record.)
21JUDGE SPRITZER: We are now on to Joint 22Petitioners' environmental Contention 2, another 23contention that concerns severe accident mitigation 24alternatives, this one related to spent fuel pool 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 64fires. Petitioners ready to proceed on that?
1MR. LODGE: Yes.
2JUDGE SPRITZER: Please do.
3MR. LODGE: Thank you. I'm Terry Lodge, 4counsel for three of the Intervenors.
5JUDGE SPRITZER: You might want to put the 6microphone a little closer.
7MR. LODGE: I didn't want to ruin things.
8JUDGE SPRITZER: Never mind.
9MR. LODGE: Your Honor, I'll just try to 10talk loudly.
11JUDGE SPRITZER: All right, that would be 12fine.13MR. LODGE: If there's a problem, I will 14assume you'll let me know, or the rest of the panel.
15Contention 2 deals with the Petitioners' allegation 16that the Fermi 2 application doesn't satisfy NEPA 17because it does not consider a range of mitigation 18measures to mitigate the risk of catastrophic fires in 19the densely packed, closed frame spent fuel storage 20pool at Fermi 2.
21By way of background, the DC Circuit 22opinion on the waste confidence decision enjoined the 23NRC to consider the spent fuel fire and leak 24possibilities. The NRC did some work on a generic 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 65analysis of those prospective problems. However, in 1May of this year, by I believe a 3 to 2 vote, the 2Commission essentially terminated the responsibility 3of the staff to continue that assessment.
4Chairman Macfarlane who voted in the 5minority, opposed to that vote to terminate, said that 6there are mitigation opportunities that certainly must 7be considered including longer transfer times for dry 8storage, direct spent fuel, direct discharge into 9varying dispersal patterns, substitution of open rack 10low 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 13Fermi 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-17racking potential to increase the density of the 18storage mechanisms in place. And the transfer to dry 19casks has been delayed because of weld problems that 20date back more than 30 years, that there are 21structural problems and concerns as to whether or not 22the crane assembly would be capable of removing fuel 23safely. The margin is very, very narrow indeed.
24So, with the termination by the Commission 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 66of the generic assessment with the fact that we have 1of course a Contention 3 that is at least a 2placeholder challenge, continuing challenge to the 3waste confidence spent fuel storage, long term storage 4determination, we believe that there must be site 5specific consideration within this license amendment 6proceeding of the spent fuel fire potential, both as 7a straight topic for mitigation discussion within the 8NEPA as well as within SAMA consideration.
9JUDGE SPRITZER: With respect to SAMAs, 10let me ask this, are you saying that they have to 11consider SAMAs for a spent fuel pool fire that might 12occur during the course of a severe accident involving 13the reactor where you have a loss of --
14MR. LODGE: Of power.
15JUDGE SPRITZER: When the core becomes 16uncovered and you have a severe accident in the 17reactor? Or are you saying totally independent of an 18accident of that type, they have to look at the 19possibility of an accident, any type of accident that 20would result in a spent fuel pool fire including for 21example inadvertent leakage from a pool that somehow 22could occur?
23MR. LODGE: The answer would be both, but 24we are very concerned that in any type of loss of 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 67power circumstance that might be caused by the reactor 1itself going into some sort of cataclysm, that the 2spent fuel pool circumstance has to be analyzed at 3least as a cumulative impact under NEPA.
4JUDGE SPRITZER: Okay.
5MR. LODGE: We're aware, and of course in 6response to the NRC and DTE claims, that there are 7scoping problems here, that any consideration of the 8spent 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 11that the Commission said that adverse aging effects 12can result from various number of things, factors, and 13then that age related degradation can affect among 14other things the spent fuel pool.
15We believe that the cumulative effects 16type of analysis certainly has applicability here. We 17also believe that the fact that there is no longer 18what we believe is compliance with the courts, that 19the DC Circuits order, that now in the Fermi 2 case we 20have a fact specific situation that is potentially 21very dire. There is considerably more fuel being 22stored at Fermi than in all of the reactors at the 23Fukushima site. The population within 50 miles is 24nearly five million people within 50 miles of Fermi 2.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 68The fact is that for the long, well, for the 1indeterminate future, the spent fuel pool is going to 2be the place where spent fuel is going to be reposed 3at Fermi 2; for how long, it's extremely difficult to 4say.5JUDGE SPRITZER: What are the specific 6SAMAs that you say, well, are there specific, let me 7ask this, are there specific SAMAs that you contend 8should have been considered to mitigate the risk of 9catastrophic fires and spent fuel pools? And if so, 10where did you identify those in Contention 2?
11MR. LODGE: Your Honor, we brought this as 12a contention of omission and did not identify this in 13the SAMAs.
14JUDGE SPRITZER: So, you're just saying 15they didn't look at this type of SAMA at all?
16MR. LODGE: Right.
17JUDGE SPRITZER: There are no SAMAs that 18address the risk of catastrophic fires and spent fuel 19pools and, therefore, the SAMA analysis is deficient, 20that's your position.
21MR. LODGE: Correct. Yes.
22JUDGE SPRITZER: All right, just so I 23understand. Thank you, go ahead.
24MR. LODGE: We're prepared to reserve, Ms.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 69Pepperl said we have three minutes left maybe of our 115?2MS. PEPPERL: That doesn't include the 15.
3MR. LODGE: Okay.
4JUDGE SPRITZER: You do, by the way, want 5to reserve five minutes for rebuttal?
6MR. LODGE: Yes, thank you.
7JUDGE SPRITZER: Okay.
8MR. LODGE: We're going to reserve the 9remainder of our time.
10JUDGE SPRITZER: All right. Well, we'll 11give you five minutes. Let's proceed to the 12Applicant.
13MS. REDDICK: Thank you. Derani Reddick 14for the Applicant. As Mr. Lodge has stated, their 15claim is really based on a lack of mitigation measures 16for spent fuel pool accidents. But spent fuel pool 17accidents are a Category 1 issue under the NRC's 18rules. What that means is that the NRC has already 19looked at the impacts of a spent fuel pool accident, 20and this is considered in the context of the category 21that's called onsite storage of spent fuel.
22The Commission has already determined that 23those impacts are small. They have determined that no 24additional mitigation measures need to be made. So, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 70this is an NRC rule that the impacts of spent fuel 1pool accidents have small impacts and that further 2mitigation alternatives need not be considered. The 3Commission has specifically stated that the 4requirement to consider SAMAs applies to severe 5accidents for reactors, it does not apply to spent 6fuel pool accidents. And in fact --
7JUDGE SPRITZER: This is probably in your 8brief, but do you remember the specific rule that, 9where the Commission has indicated that?
10MS. REDDICK: In the Turkey Point 11proceeding, this is CLI-01-17 54 NRC 3. The 12Commission specifically stated that, and I'm reading 13here, "Part 51's reference to severe accident 14mitigation alternatives applies to nuclear reactor 15accidents, not spent fuel storage accidents."
16JUDGE SPRITZER: What, all right, I guess 17the question then would be, in Fukushima at least, my 18very rough understanding of what happened at 19Fukushima, there are at least concerns of the 20possibility of release of radioactivity from the spent 21fuel pool. I'm not sure whether it's ever been 22resolved if that occurred or not. Is there, are you 23interpreting the Commission to say that as part of the 24analysis of severe accidents, you don't need to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 71consider the possibility that there might be some kind 1of damage to spent fuel pool that would lead to a 2release of radioactivity?
3MS. REDDICK: Right, that this idea that 4there is sort of a cumulative impact that needed to 5be assessed --
6JUDGE SPRITZER: It might be a cumulative 7impact, it might be a direct impact, I mean let's say 8as a result of the accident, the pool no longer 9functions in terms of cooling the rods as it's 10supposed to, and as a result there's a fire and a 11release of radioactivity, do they need, has the 12Commission said you do not need to consider that 13possibility 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 18not entirely clear as you were asking, Your Honor, 19what the contention is alleging with respect to how 20the spent fuel pool accident would somehow impact the 21reactor accident or impact the ability to mitigate a 22reactor accident. It's not clear from their petition.
23And essentially, that is their burden. Their burden 24is more than just to throw this flag on the field, but 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 72they need to allege a specific deficiency.
1Here, what they are alleging as a 2deficiency, there being the lack of mitigation 3measures, has already been determined by the 4Commission to not be required for spent fuel pool 5accident. In fact, the Commission in the GEIS, both 6the 1996 GEIS and the 2013 GEIS, considered mitigating 7measures for spent fuel pool accidents. And they 8determined that no additional plant specific measures 9would be substantially beneficial in order to warrant 10their consideration.
11Additionally, the Petitioners raised 12allegedly new and significant information regarding 13the expedited transfer of spent fuel. This is Com CEQ 1413-30, and this is where they draw the conclusion that 15certain mitigation measures should be implemented.
16But what that study shows, and this is the staff's 17regulatory analysis for the expedited transfer of 18spent fuel, the staff concluded that the benefit of 19expedited transfer of spent fuel from the pool to dry 20cask storage is minor and limited and, therefore, not 21justified under the expected cost. And the Commission 22agreed with this. They agree that expedited transfer 23need not be required.
24Lastly, just as sort of a factual matter, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 73Mr. Lodge alleges some concerns with respect to the 1ability to move the fuel from the pool to dry cask 2storage. That has been completed. I believe the 3first offload from the pool to the cask occurred this 4past summer and the NRC was there for that. They 5issued an inspection report and found no concerns and 6no findings regarding that.
7JUDGE SPRITZER: While we're on the 8subject, it reminds me while we're on the subject of 9current conditions of the plant, this is going back to 10the 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 14vent, and if not, will there be one?
15MR. SMITH: Yes, there currently is a 16hardened vent. And then the additional post-Fukushima 17requirements mandate the installation of some changes 18or some upgrades to that hardened vent that will be 19taking place over the next couple of years.
20JUDGE SPRITZER: But that does not include 21the filters that were addressed in SAMA 123, is that 22--23MR. SMITH: That's correct.
24JUDGE SPRITZER: Okay. Sorry, go ahead.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 74Sorry for that digression.
1MS. REDDICK: I'm prepared to answer your 2questions, Your Honors.
3JUDGE SPRITZER: Since neither I nor my 4colleagues have any further, well, okay, we'll move 5back to him. Let's hear from the staff first.
6MR. WACHUTKA: Yes, Your Honors. May it 7please the Board, my name is Jeremy Wachutka and I'm 8arguing on behalf of the NRC staff that Joint 9Petitioners' proposed Contention 2 is inadmissible 10because it is outside the scope of this license 11renewal proceeding.
12As we have heard, proposed Contention 2 13raises multiple arguments. Of these arguments are 14other environmental arguments challenging a Commission 15generic Category 1 determination or they are safety 16arguments challenging the current licensing basis of 17Fermi. Proposed Contention 2 does not include 10 CFR 18Section 2.335 waiver request, nor does it include the 19necessary information to satisfy the four millstone 20factors. Therefore, proposed Contention 2 is outside 21the scope of this license renewal proceeding and 22should be denied.
23First, proposed Contention 2 faults DTE's 24environmental report for allegedly not discussing 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 75spent fuel pool fires in their mitigation. Instead, 1DTE's environmental report incorporates all of the 2Commission's generic Category 1 findings of 3environmental impacts of the onsite storage of spent 4nuclear fire provided in Table B1. In the Turkey 5Point proceedings, CLI-01-17 and the Pilgrim 6proceedings, CLI-07-3, the Commission held that a 7substantively identical challenge to the incorporation 8of the Commission spent fuel pool storage Category 1 9determination in license renewal proceedings was not 10admissible without a waiver because they constitute a 11challenge to the Commission's regulations.
12Furthermore, the Commission held that no 13discussion of mitigation alternatives is necessary for 14spent fuel Category 1 issues. This is supported by 10 15CFR Section 51.53(c)(3)(iii) which states that an 16environmental report is not required to consider 17alternatives for reducing adverse impacts for Category 181 issues. Therefore, according to both the 19Commission's regulations and case law, the argument of 20proposed Contention 2 that spent fuel pool fires and 21their mitigation should be analyzed in DTE's 22environmental report is inadmissible.
23JUDGE SPRITZER: SAMA contentions, 24however, are Category 2 issues, I take it you would 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 76agree with that?
1MR. WACHUTKA: That is true, Your Honors.
2And so, Joint Petitioners also make that argument that 3you should look at Table B1 and that their spent fuel 4fires contention shouldn't fall under the Category 1 5issue of "onsite storage of spent nuclear fuel," but 6should instead fall under the Category 2 issue of 7"severe accidents." This severe accidents category 8states that the probability weighted consequences of 9releases and their social and economic impacts as a 10result of severe accidents is small for all plants.
11However, it also states that severe accident 12mitigation alternatives must be considered once for 13each plant.
14In Pilgrim, the Commission denied a 15substantively identical argument stating that Category 161 SAMA requirement only applies to "nuclear reactor 17accidents, not spent fuel storage accidents." Thus, 18SAMA applies to nuclear reactor accidents as 19determined on a site by site basis, while the 20consequences of spent fuel storage accidents is 21already generically determined under the onsite 22storage of spent nuclear fuel, section of Table B1.
23So, in order to rebut this, the Joint Petitioners 24state that what they are trying to get at is a 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 77cumulative effects argument that NEPA requires that 1all this is considered under SAMA. However, this does 2not necessarily satisfy the Commission's or the NEPA 3hard look requirement because the Commission has 4already stated that it does some of its environmental 5impacts generically, some of its environmental impacts 6on a case by case basis, and that this process does 7satisfy NEPA.
8For instance, in Turkey Point, the 9Commission said, in the end, "The final supplemental 10environmental impact statement will weigh all of the 11expected environmental impacts of license renewal, 12both those for which there are generic findings and 13those described in a plant specific analysis."
14Therefore, the Commission's process already accounts 15for all the environmental impacts, just some are 16accounted for generically like spent fuel storage, and 17some are accounted for case by case like SAMA for 18reactor accidents. So, there is no gap here. All the 19environmental impacts are being accounted for.
20JUDGE SPRITZER: Understood in that. I 21guess let me ask you the same question I asked the 22Applicant about. Is there an obligation to consider 23SAMAs that might or would mitigate a spent fuel pool 24fire that occurred in the course of, that is as the 25NEAL 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 1some overlap between those two areas? And how, what 2would the Applicant do in the ER?
3MR. WACHUTKA: Your Honor, I would just, 4I would have to go back to the Pilgrim proceeding 5where the Commission looked at this substantively 6identical issue and they said nuclear reactor 7accidents is what is covered by their Table B1 severe 8accidents category which we're discussing here. And 9so, it's the staff's position that this has already 10been decided by the Commission.
11Also, Your Honors, Joint Petitioners 12allege that there is new and significant information 13and, therefore, because of this new and significant 14information, they should be granted, this contention 15should be admitted. However, the Commission has 16already also directly addressed this issue and denied 17this argument stating in the Pilgrim proceeding that, 18"Adjudicating Category 1 issue site by site based 19merely on a claim of 'new and significant information' 20would defeat the purpose of resolving generic issues 21in a generic environmental impact statement."
22Therefore, although the information alleged to be new 23and significant by the Joint Petitioners could 24potentially be used as a basis for say a 10 CFR 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 79Section 2.335 waiver petition or a 10 CFR Section 12.802 petition for rulemaking, it cannot, based on 2this Commission direction, serve as the basis for just 3a contention in a license renewal proceeding.
4And this is all supported by the fact that 5there is a petition for rulemaking currently being 6evaluated by the NRC, PRM-51-31, which addresses this 7very issue and was submitted in March 2014 and amended 8in June 2014 and is still under consideration. So, it 9appears that the appropriate venue for this new and 10significant information argument is the rulemaking 11process.12In summary, Your Honors, the Commission's 13regulations at 10 CFR Part 51 and 10 CFR Part 54, as 14well a the Commission's binding case law in Turkey 15Point and Pilgrim, demonstrate that all of the 16arguments of proposed Contention 2 are outside the 17scope of this license renewal proceeding. Moreover, 18Joint Petitioners do not request the waiver of these 19rules according to 10 CFR Section 2.335 or satisfy the 20millstone factors for a waiver. Therefore, proposed 21Contention 2 should be denied.
22JUDGE SPRITZER: All right. Mr. Lodge, 23you can have five additional minutes.
24MR. LODGE: Thank you. All right. With 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 80respect to the transport of casks, we anticipate and 1it's a very realistic anticipation on our parts that 2like virtually every other operating nuclear utility, 3that DTE will slow walk its transfers to dry cask 4storage, that the preferred method of storage is going 5to be very dense, in fact overpacked storage in racks 6in a pool. Beyond Nuclear is indeed a party to the 7rulemaking that Counsel for the NRC staff just talked 8about. But rulemakings, as I'm sure the ASLB knows, 9do not go by any hard prescribed time line. There are 10many things, there are many procedural steps, and 11there are many considerations that go into so 12complicated an issue.
13I'd like to point out, however, that one 14of the, one set of data that has emerged from the 15post-Fukushima expedited spent fuel transfer 16proceeding is the new information that we cite very 17early in our statement of contention that even a small 18nuclear reactor pool fire could render 9,400 square 19miles uninhabitable and displace 4.1 million 20Americans. And I pointed out a few minutes ago that 21the greater population of Toledo and Detroit within a 2250-mile radius of Fermi 2 totals nearly five million 23people. So, I think the implication, the inference 24certainly could be that a much larger population would 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 81be affected here.
1Spent fuel can be transferred out of high 2density 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 5also Canadian populations that we haven't discussed.
6The cumulative effects analysis certainly 7has to take into account specific scenarios that could 8occur such as a spent fuel disaster that can lead to 9a reactor accident, especially in a multi-reactor site 10as Fermi is anticipated to be during the license 11renewal period, and the opposite also where a reactor 12causes a spent fuel pool problem or catastrophe. We 13believe that the nature of the application if you will 14with the Commission by not following the DC Circuit 15opinion, that the situation now is such that local 16fact specific consideration has to be given to the 17Fermi 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 20something that has cumulatively developed since Fermi 212 went online.
22Fermi 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 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 82reactor operates more or less on the same basis as it 1has, there will be considerably more spent fuel onsite 2probably 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 5questions from the panel.
6JUDGE ARNOLD: I do have a question.
7Given that the NRC staff has the responsibility to 8satisfy NEPA and that the Applicant's environmental 9report need only address 10 CFR 51 requirements, what 10specifically is it in 10 CFR 51 that requires the 11analysis that you're asking them to perform?
12MR. LODGE: Well, I don't have 10 CFR 51 13entire text here. I believe, first of all, that the 14CEQ regs must be complied with also by the Commission.
15And that's been a bone of --
16JUDGE ARNOLD: Right, by the Commission.
17But we're talking about the Applicant and his 18environmental report which is totally needed to 19satisfy 10 CFR 51. And there's a lot of things 20required by NEPA that are not required by 10 CFR 51.
21MR. LODGE: Right.
22JUDGE ARNOLD: So, I want to see how 23exactly this analysis is the responsibility of the 24Applicant.
25NEAL 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 1suggesting that we have made a premature, raised this 2prematurely, at least we have raised it, and that has 3been a problem in nuclear litigation. As I understand 4it, the environmental report is essentially supposed 5to be some type of template as to, a suggestion if you 6will to the Commission staff as to how NEPA should be 7complied with. Therefore, to the extent that the 8Applicant has not addressed these concerns in the ER, 9the ER is deficient and there is an issue of fact I 10believe.11JUDGE ARNOLD: I'm done.
12JUDGE TRIKOUROS: I'm done, too.
13JUDGE SPRITZER: All right, thank you. We 14will now move on to Joint Petitioners' proposed 15Contention 4. As indicated in our order, we're not 16going to do argument on proposed Contention 3, we'll 17move directly to Contention 4. And let me ask at the 18start, do you want to reserve five minutes for 19rebuttal on Contention 4?
20MR. KEMPS: Yes, I would.
21JUDGE SPRITZER: All right. Please 22identify yourself and then let's proceed.
23MR. KEMPS: Your Honors, good morning. My 24name is Kevin Kemps with Beyond Nuclear, and I will be 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 84addressing Contention 4 for Joint Petitioners.
1At heart, Contention 4 addresses the fact 2that there is proposed a tremendous concentration of 3risk at the Fermi Nuclear Power Plant site. In short, 4it is the worst of both worlds: Fermi 2, a degraded 5old reactor with breakdown phase risks, and Fermi 3, 6an untested new reactor with break-in phase risks, 7sharing a common transmission corridor or right of 8way, subject to common mode failures which could 9mutually initiate and/or exacerbate catastrophic 10radioactivity releases.
11In our filings, we have cited testimony by 12Farouk Baxter, an engineer who submitted comments on 13the Fermi 3 proposal where he identified that this 14common mode failure mechanism, this common 15transmission corridor is susceptible to various severe 16weather and manmade single failure events. He 17included tornadoes, ice storms, brush fires, galloping 18conductors, severe solar disturbances, light aircraft 19impingement.
20JUDGE SPRITZER: What is a galloping 21conductor? We all, normally I'm technically 22handicapped, but my colleagues aren't and they're also 23somewhat confused about that term, galloping 24conductor?
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 85MR. KEMPS: It's Mr. Baxter's list and I 1believe that would be a failure of the transmission 2grid itself, cascading failures. We saw an incident 3in August of 2003 where 50 million North Americans 4lost their electricity, and it had a lot to do with 5the vulnerabilities of the grid, specifically in this 6area of the country. First Energy Nuclear did not7trim its trees, a tree branch touched a power line, 8and that cascading failure of the grid led to the loss 9of electricity for 50 million people implicating a 10large number of atomic reactors, both in the United 11States and Canada. So, I think his example would just 12point to vulnerabilities of the grid.
13To his list, I would add that tornadoes 14are very significant in this area. In fact, in June 15of 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 18record of emergency diesel generator operation at 19Fermi 2 is a part of this risk matrix. We would add 20to that list that Mr. Baxter provided a 1988 incident 21where a raccoon cut off the grid to Fermi. There is 22also the specter of intentional attacks, and there was 23a recent incident near San Jose, California just a 24couple of years ago where an intentional sabotage 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 86caused extensive damage to the grid.
1These are all very serious issues that 2implicate both reactors, Fermi 2 and Fermi 3, and both 3units' pools which, as Mr. Lodge indicated, will at 4Fermi 2 remain full, packed to the gills, densely 5packed for decades to come. And that very same risk 6scenario will grow over time at Fermi 3. That's the 7standard practice of this industry, to take advantage 8of the cost savings of filling the pools beyond 9original designs.
10JUDGE SPRITZER: So, is it your position 11then that this risk of, what is it called, a common 12mode failure should have been incorporated in the SAMA 13analysis?
14MR. KEMPS: Yes, we did go into some 15detail in our filings about the inadequacy of the 16SAMAs as conducted thus far, that they did not take 17into account the concentrated risk of an 18.6 mile 18long by 300 yard wide common corridor, that all of 19these transmission lines, especially the incoming 20electricity to run the safety systems and cooling 21systems and monitoring systems are subject to.
22JUDGE SPRITZER: All right.
23JUDGE TRIKOUROS: Can I just ask the 24Applicant, is this corridor the only source of offsite 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 87power for the site?
1MR. SMITH: There's a couple of different 2lines in the corridor that are independent and 3separation meets regulatory requirements. But yes.
4JUDGE TRIKOUROS: But it is the only 5offsite power feeding to that site?
6MR. SMITH: Yes.
7JUDGE ARNOLD: Well, I have questions if 8done there. This is another contention where the 9waters seem to be muddied somewhat. You just added in 10the part with the spent fuel pool so I am confused.
11I get the impression that the basis of this contention 12has to do with the transmission corridor and the fact 13that that will be common for the two plants and that 14there might be some interaction between plants because 15of that common transmission corridor that was not 16accounted for in the SAMA.
17Is that the essence of your contention or 18is it something else?
19MR. KEMPS: Well, we certainly brought up 20pools in our original filing on August 18th. Our 21point is that the transmission corridor is essential 22to running the safety and cooling systems at both 23Fermi 2 reactor and pool, and Fermi 3 reactor and 24pool. So, any disruption of that essential 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 88electricity supply for those safety and cooling 1systems could implicate both reactors and both pools.
2And as we saw at Fukushima Daiichi, once reactors 3begin to melt down and their containments fail, then 4the pools are also put at tremendous risk. And so, 5that was very much an issue at Fukushima Daiichi where 6the risks feared from the pools prevented workers from 7approaching not only the pools but also the reactors.
8Mitigations were not possible until it was 9established, for example, that water was still in the 10pool at Unit 4 and that led to the dramatic imagery of 11helicopters dropping water on that unit.
12JUDGE SPRITZER: I think you acknowledged, 13I was looking for the specific page and I can't find 14it at the moment, but somewhere in your Contention 4 15you acknowledged that the proposed Fermi 3 reactor, 16what is it called, the economic simplified boiling 17water reactor is actually supposed to be able, 18intended to be able to operate without electrical 19power for some period of time. And it's my 20understanding that design has now been certified by 21the Commission. So, aren't we precluded by that 22certification from looking into any criticism you 23might have that the ESBWR won't be able to operate if 24it does lose power?
25NEAL 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 1from our colleague at Union of Concerned Scientists, 2Dr. Ed Lyman, that these assumed gravity-fed cooling 3water flow pathways are very optimistic, that there is 4much less force behind gravity fed than there would be 5from active pumping. So, these warnings have been 6raised throughout the Fermi 3 design control document 7proceeding for many long years now. And having 8participated in the Fermi 3 Advisory Committee on 9Reactor Safeguards meetings, there are many 10significant unanswered questions. For example, the 11ability of the so-called improved monitors at Fermi 3 12storage pool to function in a high radioactivity 13environment due to a reactor accident, those questions 14remain unresolved.
15And so, it appears that these many years 16post Fukushima, it's still questionable whether the 17operators and the NRC and other authorities will even 18be able to determine if there is cooling water in the 19unit 3 pool during a catastrophic scenario.
20Yes, Mr. Lodge just points out that on 21page, we're looking up the page number, in our initial 22filing we pointed out, given this passive, so-called 23passive gravity driven design, that no arrangements 24for -- okay, I'm sorry. The point is that Mr. Farouk 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 90Baxter in his comments on Fermi 3 pointed out that the 1ESBWR design control document and the Fermi 3 final 2safety analysis report, chapter 8, have not resolved 3these issues. And we cited that in our filings thus 4far.5JUDGE ARNOLD: Let me ask you about that.
6On page 47 on the contention, third paragraph from the 7bottom, you say, "The FSAR statement that 'there are 8no single failures that can prevent the Fermi offsite 9power system from performing its function to provide 10power 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 13is wrong?
14MR. KEMPS: Yes, we are quote Mr. Baxter's 15comments bringing severe criticism to the FSAR making 16such optimistic assumptions and, I reemphasize, the 17concentration of risk in a 300 yard wide transmission 18corridor that the Applicant admits is where all the 19emergency system electricity supply is coming through.
20JUDGE ARNOLD: Okay. Now, the FSAR 21statement, isn't that a part of the current licensing 22basis for Fermi 2?
23MR. KEMPS: Well, t here is a certain 24overlap of current licensing bases with requirements 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 91for a license renewal application proceeding, we 1addressed this last week at the Davis-Besse license 2renewal application proceeding. So, these are risks 3that will happen between 2025 and 2045 when Fermi 2, 4if it gets this LRA approved, will be operating, and 5Fermi 3 presumably will also be operating. So, it 6certainly needs to be addressed.
7JUDGE ARNOLD: Now, let me just ask 8Applicant now to comment on that. Your FSAR states 9there are no single failures that can prevent the 10offsite power system from performing its function.
11That's in your current licensing basis, is it not?
12MR. SMITH: Correct. I believe that quote 13though is referencing the FSAR for Fermi 3.
14JUDGE ARNOLD: Ah, okay. I'm just 15wondering if there is some way that you can do a SAMA 16analysis considering failure of offsite power that 17isn't contradictory to your current licensing basis.
18MR. SMITH: I'm not sure I'm understanding 19the question because our SAMA analysis does consider 20the loss of offsite power. That's considered an 21initiating event and that's addressed by a number of 22SAMAs specifically.
23JUDGE SPRITZER: Let me ask this also 24about the ESBWR design. As I understand it, it is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 92supposed 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 3understanding it correctly?
4MR. SMITH: That's correct.
5JUDGE SPRITZER: Do you know what that 6period of time is?
7MR. SMITH: I'm not certain. My 8recollection is it's about 7 days.
9JUDGE SPRITZER: 7 days, all right.
10MR. 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 12your colleagues who provided you with that 13information, now where would we obtain a cite for 14that?15MR. SMITH: I can take an action to obtain 16a cite for you from that over lunch break.
17JUDGE SPRITZER: Okay.
18MR. KEMPS: Your Honors, on that last 19point, could I simply say that at the Advisory 20Committee on Reactor Safeguards meetings that have 21happened in recent weeks and months, that we were 22present and we observed and witnessed many unanswered 23questions about that 072-hour time period, that 3-day 24to 7-day time period. There's a lot of assumptions 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 93about the FLEX from Memphis, Tennessee being either 1driven up here on the roads or flown up here by 2helicopter presumably to be put in place in time to 3prevent radioactivity releases. We have many 4questions about that assumption.
5JUDGE SPRITZER: To your knowledge though, 6was that, has the design certification for the ESBWR 7been issued? And does it cover that capability, that 8is, the capability to operate without offsite power 9for 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 13of unanswered questions about the FLEX assumptions.
14JUDGE SPRITZER: Right. Well, I mean the 15reason I'm asking of course is there are limits on our 16jurisdiction. It might be a very interesting issue 17but there are just certain things we can't get into.
18And if a design certification has been issued, I'm not 19sure how we can look into a question that effectively 20asks us to ignore that certification. But all right, 21let's move on and hear from --
22JUDGE TRIKOUROS: Well, I have one more.
23JUDGE SPRITZER: Oh, sorry.
24JUDGE TRIKOUROS: I have one more 25NEAL 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 1failure of below lines in that transmission corridor 2is an event that's contemplated by the design basis of 3each 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 6could find in your pleading was that if there is a 7core melt in one plant, it will result in the 8abandonment of the other plant and they wouldn't be 9able to deal with the normal design basis event. Is 10that the synergism? Without a synergism, it appears 11to me you're just basically saying you disagree with 12the individual design bases of each of the plants.
13MR. KEMPS: As my coworker Paul Gunter 14addressed earlier, we have real world experience now 15based on Fukushima Daiichi units 1, 2, 3 and 4. And 16so, certainly reactor core melt downs with damaged or 17destroyed containments, reactor pool fires with no 18containment whatsoever, can and will lead to the 19abandonment of nuclear power plant sites. There was, 20Tokyo Electric considered abandoning all workers at 21one point, and it took the intervention of the Prime 22Minister of Japan to prevent that.
And there were 23episodes of the workforce leaving the Fukushima 24Daiichi site, retreating to the Fukushima Daini site 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 95against the orders of the company for their own self 1protection.
2So, these are very real world issues that 3we're concerned about at this proposed multi-reactor 4site.5JUDGE TRIKOUROS: So, with that synergy, 6I'm sorry, you want to say something? With that 7synergism, you're making, it's basically an assumption 8that says that one of those two plants would not be 9able to handle their design basis event and that that 10would then lead to the other plant not being able to 11handle it by virtue of the first plant's effect on the 12second. That's really what this is about, correct?
13MR. KEMPS: Just a moment please. Well, 14the essence of our contention is that there is 15tremendously concentrated risk at this proposed multi-16unit 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 19there is also the exacerbating factors of, as 20indicated, the reactors and/or the pools experiencing 21catastrophic radioactivity releases that then, like a 22domino effect, like we saw at Fukushima Daiichi, could 23lead to abandonment of the site by the workers, by 24emergency responders.
25NEAL 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 1have is Fukushima where that didn't happen, is that 2correct?3MR. KEMPS: It didn't happen because Prime 4Minister Naoto Kan at 5:00 a.m. rushed to the Tokyo 5Electric headquarters and pleaded with the company and 6its emergency responders in the control room area of 7that headquarters building to not abandon their posts 8for the sake of the future of that nation.
9JUDGE SPRITZER: All right. Let's move on 10and hear from the Applicant on contention, Joint 11Petitioners' Contention 4.
12MR. SMITH: Tyson Smith for the Applicant.
13Contention 4 raises a host of issues, none of which 14are the basis for an admissible contention.
15First, a number of the issues we've heard 16about, the ESBWR design, its response to a loss of 17offsite power, some of its passive safety features, 18those are all issues outside the scope of this 19proceeding which is focused on the effects of aging 20and another 20 years of operation at the Fermi 2.
21Second, their arguments about the 22transmission corridor generally, that it's not safe or 23more concerns that violates defense in depth, that's 24what's in their contention. That also raises an out-25NEAL 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 1requirements related to offsite power or availability 2of diesel generators which is embedded in their 3assumption that loss of the transmission corridor is 4a loss of defense in depth, those are current 5licensing basis issues that are being addressed now.
6They are not issues unique to a license renewal.
7Similarly, concerns about the emergency 8response organization in the event of a design basis 9accident is also outside the scope of this proceeding.
10The emergency response plan is also a currently 11licensing basis issue.
12So, what that really brings us down to is 13the concern that somehow there is some common 14transmission 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 18earlier, DTE did consider a number of different SAMAs 19related to the loss of offsite power in diesel 20generators and ultimately determined that none of 21those were cost beneficial.
22The Petitioners haven't put forth any 23information to suggest that the analysis that DTE has 24done is unreasonable. And that's what they've got to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 98do to have an admissible SAMA related contention.
1Petitioners didn't challenge any, didn't say there is 2some SAMA that we ignored or that we didn't consider.
3They didn't suggest that the cost of a particular 4event would be greater, or that the benefits of a 5particular SAMA would be greater.
6And simply put, there is nothing here to 7litigate. I'm at a loss as to what a hearing would be 8held, would involve if this contention were admitted.
9JUDGE SPRITZER: Well, I suppose you might 10read their argument to be at least in part that you 11should have included in the benefits, if you're taking 12a measure to improve the reliability of the 13transmission corridor, there would be benefits both to 14Fermi 3 and Fermi 2 in the sense of reducing the risk 15of a severe accident at both plants, and that that 16somehow should have been factored into the analysis.
17What's your response to that interpretation?
18MR. SMITH: Well, I think that's very 19generous and not one that I would draw from the 20contention in front of me. I mean I didn't read that 21in the contention.
22JUDGE SPRITZER: Well, I admit it involves 23some interpretation. But do you have any thoughts on 24that?25NEAL 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 2haven't said, oh, your SAMA related to mitigating the 3effects of a loss of offsite power, the cost of that 4would be reduced because it's spread over Fermi 2 and 5Fermi 3. Nor have they suggested that the cost would 6be more because of that event.
7I mean these units have different designs.
8As Judge Trikouros pointed out, the Fermi 3 design is 9intended to operate without, it can function without 10offsite 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 11suggest that concern has any basis in the design of 12the plant.
13JUDGE SPRITZER: Is there anything in the 14NRC guidance when you, it probably isn't unheard of to 15look at SAMAs at one plant where there is a multi-16plant site. Does the NRC guidance address that in any 17way?18MR. SMITH: Well, the NRC-endorsed 19industry guidance does discuss how you handle SAMAs 20for multi-unit sites. And what it says is similar to 21what you mentioned which is if you've got a couple of 22plants that are identical and when you're costing out 23the cost of implementing a particular SAMA, you have 24to take into account any efficiencies that might be 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 100gained if you implement the same SAMA at multiple 1units. So, if it's a training SAMA but you're really 2just training the same staff that works on all three 3units, then your cost can be divided in thirds or 4something like that. So, that's the extent to which 5the SAMA analysis, the guidance discusses treatment of 6multi-unit sites.
7JUDGE SPRITZER: In that situation, would 8you also factor in the benefit of additional training 9for the operators at the other two reactors or not?
10MR. SMITH: But that's embedded, that's 11already embedded in the SAMA of any one unit, so there 12is no additional benefit. That benefit is reflected 13in that SAMA unit, you reduce the risk by X amount 14that resulted in such a benefit.
15JUDGE SPRITZER: I assume the cites for 16the guidance you're referring to is in your brief 17somewhere?
18MR. SMITH: I'm not certain if that's 19referenced in our brief. The industry guideline is 20NEI 05-01, and that's NRC-endorsed guidance on 21performing SAMA analyses.
22JUDGE SPRITZER: Okay.
23JUDGE TRIKOUROS: To your knowledge, did 24the Fermi 2 SAMA take into account the failure of the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 101transmission corridor?
1MR. SMITH: Yes, it did.
2JUDGE TRIKOUROS: Did the Fermi 3 SAMA 3take into account the failure of that transmission 4corridor?
5MR. SMITH: It certainly did.
6JUDGE TRIKOUROS: So, the failure of the 7transmission corridor has been considered but on an 8individual basis for each of the two plants. Do you 9see any connection or any degradation of that scenario 10because the failure occurs simultaneously?
11MR. SMITH: No.
12JUDGE TRIKOUROS: Is there anything in the 13regulations that requires a different view because 14they occur simultaneously?
15MR. SMITH: Not that I'm aware of.
16JUDGE SPRITZER: All right. Let's move on 17and hear from the NRC staff on Joint Petitioners' 18Contention 4.
19MR. 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 22of the things that was brought up was spent fuel 23pools, the status of the spent fuel pools in terms of 24coverage. That is actually the subject of an order 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 102for the plants to be installing reliable spent fuel 1pool instrumentation so that those issues of, you 2know, can you approach the pools can be determined 3remotely. So, the fact that at Fukushima during their 4event that they had, they could, you know, had trouble 5determining what the status of the pools were at the 6time, you know, should not be an issue going forward 7because that's already been incorporated into their 8licensing basis and they have to come in compliance I 9believe by two refueling outages or I think September 10of 2016 in terms of the spent fuel pool 11instrumentation order.
12So, those issues of the status of spent 13fuel pool really don't weigh into that particular 14problem. Again, the FLEX orders are also one of the 15things that, you know, they are currently, you know, 16required to do. As part of the FLEX order, they are 17going to have to be able to, they are installing 18equipment 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 19operating plants, all the licensed plants. So, they 20have 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 22a passive system so it should be able to do that 23without much additional, anything additional. And 24then they are able to bring in extra help from staged 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 103equipment at the site or from these two response 1centers that are located throughout that to be able to 2deal with these prolonged station blackouts.
3As the Applicant indicated, the loss of 4offsite power including loss of the transmission 5corridor has been accounted for, for both the Fermi 3 6SAMA, severe action mitigation design analysis, it's 7called something different slightly different since 8the plant hasn't actually been built, versus Fermi 2 9where you look at it as a SAMA analysis. And there is 10nothing in what the Petitioners have indicated for how 11those two analyses were somehow incorrect or failed to 12account for the actual benefit that would be achieved 13by making improvements to the ability to recover or 14maintain that offsite power source.
15The thing that I want to bring up that 16really hasn't been addressed is the Commission by rule 17has indicated that we should only be looking at SAMAs 18one time for a plant, whether that's at the initial 19licensing stage or at license renewal is that they 20found when they first imposed the requirement that we 21only need to do this once, and that we wouldn't expect 22to find anything different. That has been recently, 23you know, challenged in the Limerick proceeding. The 24Commission of course, you know, rejected the challenge 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 104to revisit Limerick's SAMA analysis for a second time.
1In equivalent, that's what we would be 2doing here by trying to force Fermi 3 to redo its SAMA 3analysis to account for the licensing that is going on 4at Fermi 2.
5JUDGE SPRITZER: Well, I don't understand 6them to be asking for that. What I think they're 7saying, or at least one way to look at what they're 8saying is you should have considered in the Fermi 2 9SAMA analysis not only benefits to Fermi 2 in terms of 10reduced likelihood of a severe accident or better 11mitigation of an accident if it occurred, but also the 12fact that there would be some synergistic or 13additional benefit to Fermi 3. I mean if you're doing 14a complete cost benefit analysis, let's consider all 15the benefits even if some of them happen to accrue 16with Fermi 3 instead of, or in addition to Fermi 2.
17MR. HARRIS: But you would actually, you 18would have to revisit Fermi 3's SAMA analysis to 19figure out what those benefits were, you know, in 20terms of how to calculate that. It's some unknown 21number without actually redoing the SAMA analysis and 22how those two things interact.
23The Applicant brought up the fact that 24when you're looking at the cost of implementing these 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 105particular benefits at multi-unit sites, especially 1where the sites have generally the same design, that 2you can spread out the cost of implementing for the 3site that would reduce the overall cost of 4implementing that mitigation measure to reduce, you 5know, to increase the potential cost benefit of a 6particular SAMA. But it does not work quite the same 7on different plans.
8But also from the benefit side, what's the 9risk 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 12the research part of the staff to go and look at 13multi-unit SAMA analyses. We don't have a way that 14addresses it.
15NEI guidance that discusses it doesn't 16actually address how to do, it doesn't give any 17guidance in terms of how you calculate that benefit on 18a multi-unit site like that. It's something that's 19under consideration as a research project.
20JUDGE TRIKOUROS: And that's how I view 21the Intervenors' contention in this. Well, let me 22start by asking you, is there anything in the new 23guidance that's been required by the NRC for existing 24reactors and new reactors with respect to the three 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 106orders that have come out that take into account 1multi-unit sites?
2MR. HARRIS: The part right now that 3probably most directly addresses multi-unit sites is 4multi-unit dose assessments. So, in the event of an 5actual accident, to be able to do a multi-unit dose 6assessment, there is again that research project that 7the Commission has tasked research to do a new level 83 PRA that is similar to the PRAs that were done for 9NUREG 1150. And that is one of the topics that they 10are intending to look into is how do you integrate the 11risks across this, you know, relatively independent, 12you know, units.
13JUDGE TRIKOUROS: Okay. Now, with respect 14to equipment and people that are required for each 15plant as part of these orders, do they specify that 16that number of people and that equipment has to be of 17sufficient quantity to handle an ongoing event at more 18than one plant at a site?
19MR. HARRIS: Right. As each plant is 20required to handle, you know, be able to handle any 21event that occurs on it, so they would need sufficient 22people to handle both an accident at Fermi 2 and an 23accident at Fermi 3. And they would need the 24appropriate amount of equipment to be able to deal 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 107with 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 3that, but you know, it's a passive system so it's, in 4the purposes of loss of offsite power, it should deal 5with it for the 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />.
6JUDGE TRIKOUROS: All right. So, that's 7contemplated in the new orders that are being 8implemented right now by these plants?
9MR. HARRIS: Right.
10JUDGE TRIKOUROS: Okay. With respect then 11to the SAMA that one does for each plant, and it is a 12probabilistic risk assessment which the Intervenors 13have pointed out is, you know, not to their liking in 14fact, isn't there some probability that what they 15suggest might happen might happen? In other words, 16isn't there some probability that people will evacuate 17that site? It may not be a large probability, but 18isn't it some probability?
19MR. HARRIS: The question of would the 20staff in charge of the plant evacuate the site, you 21know, of course in the event of whatever accident it 22is, it's difficult to be prospective and speculate.
23My own personal experience, you know, as a formal 24naval nuke is that, and what I've seen here is that 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 108they'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 3happen, you can't drive it to zero, but the 4uncertainty associated with that low probability is --
5JUDGE TRIKOUROS: But I think in the 6petitions, they are basically saying you're giving 7that a zero probability.
8MR. HARRIS: We're not giving that a zero 9probability.
10JUDGE TRIKOUROS: Or the Applicant is 11giving that a zero probability.
12MR. HARRIS: You have uncertainty 13associated with the SAMA analysis to try to account 14for those things that are difficult to quantify. So, 15like 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, 18before you apply the uncertainty in terms of that.
19And then of course a lot of times with the cost, you 20know, you don't account for all the costs that would 21necessarily go into any particular mitigation measure, 22and so you're maximizing the chance for something to 23be identified as potentially cost beneficial.
24It doesn't mean that, you know, if you go 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 109back and have a particular accident, that that 1mitigation measure wouldn't have been cost beneficial 2assuming the accident actually occurred. But that's 3not the way SAMAs are done. We're trying to calculate 4what's really the expected value of the accident that 5occurs at some unknown time under unknown 6circumstances.
7JUDGE TRIKOUROS: Well, isn't there 8anything in the SAMA requirements that takes what the 9Intervenors are saying and, you know, makes it 10something you don't have to do? In other words, when 11I read their pleading, they are simply saying that the 12site might get evacuated, you should consider that.
13You're saying it's a very low likelihood. But SAMA is 14a PRA and, therefore, it considers many low likelihood 15events.16MR. HARRIS: True, but it doesn't 17consider, 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 20know, the likelihood of that it small, the likelihood 21of a meteorite hitting the earth, a little larger, but 22we don't consider that. And it's not, you don't have 23to consider every potential, you know, accident 24scenario. I mean even for the accidents that we 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 110consider, there are thousands of different ways that 1you can have an accident in terms of the actual 2precise way that the accident progresses.
3But we model that using nine source terms, 4you know, where you collect the various different 5accident scenarios and model each accident as a 6particular source from relief. So, you know, you have 7to sort of combine some of these things, and some of 8these things are, you know, they're not specifically 9addressed 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 12things that now are low likelihood that probably, you 13know, something with that low likelihood of someone 14abandoning the site, you get that right accident that 15forces people to abandon the site for whatever reason 16that they choose to abandon it, you know, we're going 17down, you know, lots and lots of probabilities and 18less and less likelihood. And the chance of it 19affecting any one of these analyses is small.
20And that's sort of what they have to show 21is that they have to show that it would actually make 22one 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 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 111reasonable analysis of their representation of what we 1expect to happen. It's not meant to model any 2particular one accident.
3JUDGE TRIKOUROS: But the deficiency they 4are pointing out is not an unreal deficiency. It's 5simply not considered, no one had considered that in 6any of the SAMAs for multi-unit sites that happen to 7have a shared, I don't know if anybody has that 8situation in fact, a shared corridor that is subject 9to some sort of an external event that could result in 10a station blackout in two plants and treating the 11SAMAs as individual entities without that connection 12that they're saying should be made. And it is not 13unreasonable.
14JUDGE ARNOLD: Well, is the shared 15corridor actually significant when you're talking 16about having to evacuate the entire site?
17JUDGE SPRITZER: Is that a question for --
18JUDGE ARNOLD: Let me ask you.
19MR. HARRIS: I was asking he was asking 20Judge Trikouros.
21JUDGE ARNOLD: Because what you've been 22asking back and forth for the last ten minutes sounds 23to me to be generic to any multi-unit site.
24MR. HARRIS: I think it is generic to any 25NEAL 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 1corridor makes that particular scenario, whether or 2not the staff, you know, under some unlikely 3circumstance would just abandon the site and not try 4to take all the appropriate actions to stop the 5accident or mitigate their risk of the accident. I 6don't think that's a function of the shared corridor.
7These same types of things would show up in things 8like flooding, seismic risk for any multi-unit site is 9that you could have those kind of things would show up 10at any other multi-unit site.
11JUDGE ARNOLD: Well, this scenario that 12they'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 17combined site because we're talking about the 18interaction of the two. So, when I talk about the 19site, I'm talking about Fermi 2, Fermi 3, that you can 20have some event that would affect both plants at the 21site here. We're talking about transmission corridors 22at other sites that are multi-unit, you know, whether 23they have a shared transmission corridor, they are 24subject to types of external events that could 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 113challenge both, you know, all the plants at the site.
1Wetting would be an example of that.
2JUDGE TRIKOUROS: Right. I think that the 3scenario that I'm hearing from the Petitioners is one 4in which both plants are in crisis. Both plants 5require significant amount of staff to be running 6around 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 9operators will be in a control room in a stable 10manner, their control room is filtered from radiation.
11But from what I hear from the Intervenors' pleading, 12as I ready the pleading, I'm trying to understand what 13they're getting at, that's the interpretation that I 14seem to be coming to is that it only applies when 15there are two plants on a site in crisis, you know, 16not just a normal situation where one plant, similar 17to TMI for example.
18MR. HARRIS: I don't know that, I read it 19differently that, you know, you would have some 20initiating event that would cause one plant to have an 21accident, and then that plant's accident would cascade 22into causing an accident at the other plant.
23JUDGE TRIKOUROS: Do you have, do the 24Petitioners have a clarification here?
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 114MR. LODGE: I think numerous postulation 1is what was in our thinking. Your Honor, in the 80's, 2the NIGA regs for the NRC were amended so worst case 3scenarios were no longer obligatorily to be considered 4within EIS documents. But 40 CFR 1502.22 was 5promulgated and that states that where there is 6incomplete or unavailable information, the EIS has to 7include certain things like a statement that the 8information is incomplete or unavailable, relevance of 9that incomplete or unavailable info to evaluating 10recently foreseeable significant adverse impacts on 11the environment, summary of existing credible 12scientific evidence which is relevant to evaluating 13those recently foreseeable impacts, and the Agency's 14evaluation of those impacts. So, where the 15information is essential to reasonable choice of 16alternatives, it's required to be discussed and 17identified in the EIS. So, as you were saying, Judge 18Trikouros, perhaps the chances of abandonment by 19staffing and crew, the personnel, is a relatively 20small prospect. It certainly seems to us that it does 21have to be tested upon and identified.
22Another thing is the Detroit Metropolitan 23Airport which is an extremely busy North American 24airport is nearby to the transmission corridor as well 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 115as of course the Fermi site itself, and planes pass 1over the transmission corridor at least on a very 2frequent basis. The problem is that we're really 3talking about a single fault type of scenario, if 4there is an accident that befalls the transmission 5lines. And in 2012, the Commission issued letter 62012-05 saying that there have to be two sources of 7offsite electricity which doesn't exist here for Fermi 82.9So, we think that this is a very, very 10problematic contention that we've raised.
11MR. SMITH: If I may, there's something we 12haven't discussed that I actually is very relevant to 13the 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 16maximum benefit, and then you also look at there's a 17truncation of events that have a very low likelihood.
18And this is discussed in our SAMA analysis. It talks 19about reasons why some might be eliminated, things 20like excessive implementation costs. If you're 21talking about automating your onsite emergency 22response, that's going to be excessively, it's going 23to have an excessive cost.
24Similarly, if there is a very low benefit 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 116or the risk itself is very small, and this is exactly 1why Intervenors have an obligation to come forward 2with some approximation of the relative costs or 3benefits because there is a screening process. You 4can't say, well, there is some possibility. That 5possibility may be so low that it was appropriately 6screened out. They've got to put forth some 7information to show that this is actually something 8worth considering further, and they haven't done that 9here.10MR. KEMPS: Could I respond just briefly?
11We did in our filing cite NUREG contractor report 22-1239, the 1982 Sandia citing study which is most 13commonly known as CRAC-II. And those figures I think 14make it difficult for us to get our heads around how 15these improvements on safety are not cost beneficial.
16And so, just very briefly, those figures are 8,000 17peak early fatalities, 340,000 peak early injuries, 1813,000 peak cancer deaths, and adjusted for inflation, 19over $300 billion in property damages. And I would 20hasten to add --
21JUDGE SPRITZER: Are those figures for 22Fermi 2? Fermi 3?
23MR. KEMPS: Fermi 2, Fermi unit 2.
24JUDGE SPRITZER: Okay.
25NEAL 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 1the population has likely increased since this report 2came out.
3JUDGE TRIKOUROS: That was 1982, that 4report, wasn't it?
5MR. KEMPS: Yes, sir.
6MR. HARRIS: Your Honor, may I address the 7Sandia citing study? So, if you look at what the 8Sandia citing study does, there are a lot of caveats 9in that study in that they don't account for a lot of 10the contamination removal mechanisms, you know, by the 11containments. So, they're basically assuming a 12release from the vessel that doesn't actually get 13filtered by the containment at all. Even if it does 14fail in some way, there still is going to be some sort 15of deposition within the containment, filter through 16whatever, however the containment may have failed 17because you can have torturous paths that would cause 18some bleeding out on that.
19So, it made very conservative assumptions 20about what that release would look that they said you 21would need to take into account. It looked much more 22as a worst case kind of scenario than an actual NEPA 23--24JUDGE ARNOLD: It didn't look over a 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 118spectrum 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 4citing from, not looking at it, I believe that's 5dealing 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 8failures, but they did look at five source terms.
9Fermi 2 now looks at nine different source terms.
10A lot of the modeling that's gone on both 11from the MAP and MELCOR that does level 2 and level 1 12PRA which is sort of the initial sort of in accident 13scenario has been improved over the years where what 14was done determinitivally before is now done more 15analytically in terms of trying to model the actual 16physics of these particular scenarios. So, it's 17giving it more realistic than what you would normally 18get under the deterministic kind of model.
19JUDGE TRIKOUROS: Well, I didn't want this 20to broaden that much. The simple question was when 21you're doing, when you have a multi-unit site that's 22subject to a common mode initiating event, do the 23SAMAs that are done for each plant have to include 24some probability consideration or staffing not being 25NEAL 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 1asking and that really, and I was coming from the 2point of view of the Petitioners in terms of what I 3thought they were saying in their pleading.
4MR. HARRIS: Right. But for a SAMA, we 5need 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 8the 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 11staffing, you know, and that staffing to take 12appropriate actions.
13JUDGE TRIKOUROS: Would it be true for me 14to say that the new orders coming out or has been out 15that are being implemented don't take these things 16into consideration?
17MR. HARRIS: Which? I'm not sure which 18things you're referring to there.
19JUDGE TRIKOUROS: Well, just assuming that 20everybody goes running around and does what they're 21supposed to do with the FLEX strategy and all of that.
22MR. HARRIS: The FLEX strategy is 23probably, it's not so deterministic, it's not so 24proceduralized because when you look at the FLEX 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 120strategy, it's trying to account for beyond design 1basis events from the order perspective and not 2knowing exactly what that event is that, you know, 3you're going to be able to handle some of these 4external events. So, that doesn't allow you to sort 5of proceduralize it. So, what you have to do is you 6have to have the appropriate equipment that you can 7employ appropriately based on the event that you have 8from more symptomatic, you know, analysis in response 9rather than from this alarm came on, that means I need 10to move these three switches attached to these three 11pumps, is that you have to look at it holistically how 12best to respond to it.
13The idea is that you have sufficient 14equipment to make all the attachments to preclude, you 15know, a core melt, you know, an accident. That also 16means that you have sufficient staff to make all those 17required connections in the event of some accident, 18you know. So, it doesn't address that specifically, 19but you know, they can't just walk away, you know, 20they have all this equipment that they're supposed to 21take action for.
22JUDGE TRIKOUROS: I don't know, I don't 23think I want to pursue that any further.
24JUDGE SPRITZER: All right. Does anybody 25NEAL 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 1Contention 4?
2MR. KEMPS: Yes, Your Honor, just on that 3last point that Mr. Harris raised. It's my 4understanding that NRC regulations, in terms of 5personnel staffing levels, can only be applied to the 6control room and to the security guard force. And so, 7assumptions about staffing levels to deal with 8mitigating a potential pool fire or other mitigations 9that have to take place to prevent a catastrophe from 10unfolding, I think that's very optimistic for Mr.
11Harris to just assume that.
12JUDGE SPRITZER: All right. Very well, I 13think we've heard all we need to hear on Joint 14Petitioners' contentions. We'll move on to consider 15CRAFT's contentions when we come back after lunch.
16Before we leave, does anybody have 17anything else they want to raise? As far as timing, 18I think my recollection is you have to walk a little 19bit to find some place to eat, so why don't we allow 20an hour and 15 minutes? So, we'll come back at a 21quarter to 2:00 and we'll still make our best efforts 22to get out of here by 4:00. Is there anybody that if 23they stay a little after 4:00 is going to have a major 24problem with transportation? Okay. Well, we still 25NEAL 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 2adjourned until 1:47 p.m.)
3JUDGE SPRITZER: We are here at the 4afternoon session of oral argument in the Fermi 2 5licensing proceeding, the argument on contention 6admissibility, and we are ready to move on to consider 7the contentions proposed by CRAFT, C-R-A-F-T, all 8capital letters, Citizens Resistance at Fermi 2. A 9total of 14 contentions which we have grouped for 10purposes of expedited argument. And we begin, unless 11there are any questions or issues we need to consider 12before we get started, we will begin with CRAFT 13Contention 1, and I believe we'll be hearing from Mr.
14Sherman.15MR. SHERMAN: Yes sir.
16MR. HARRIS: Judge Spritzer, I hate to 17interrupt. I told you I would check on the dates for 18the reg basis for the filtered, the filtering 19strategies rule making. The reg basis is due this 20December. And then the following rule is due next 21year in December.
22JUDGE SPRITZER: Okay. Well, keep us 23notified if any development happens that can be 24relevant, that you think would be relevant to the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 123contentions.
1MR. HARRIS: Yes sir.
2MR. SMITH: Judge Spritzer, I had action 3to provide a citation for you.
4JUDGE SPRITZER: Oh, okay.
5MR. 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 7that's in the DCD at 15.5.3, or it's in the Fermi 3 8COLA at Section 8.3-2.
9JUDGE SPRITZER: Okay. Great, thank you.
10All right, you may proceed.
11MR. SHERMAN: Thank you, sir, and thank 12you gentlemen of the panel. Your Honors, I want to 13first 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 16my heartfelt thank you. My name is James Sherman.
17I am a steering committee member of the 18Citizens Resistance at Fermi 2, and I'm here to defend 19our contention that the public deserves a hearing in 20reference to these matters, especially with regard to 21alternatives that are viable and realistic. So the 22NEPA law requires the Applicant to include in their ER 23analysis that considers and balances the environmental 24impacts of alternatives for reducing or avoiding 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 124adverse environmental impact.
1The response to the CRAFT petition claims 2that CRAFT does not demonstrate feasibility of the 3renewable mix. And I would say that it's a specious 4argument, and deflection from DTE's responsibility.
5Our argument is that the analysis is purposefully 6neglectful. In their analysis, the position that the 7Applicant's alternatives is not required to discuss 8every conceivable alternative to the purposed action 9NEPA requires. And only consideration of feasible, 10non-speculative and reasonable alternatives are 11required by NEPA.
12Our contention is that DTE has taken a 13self-serving approach to this analysis. And that 14wind, solar, and the other renewables that we have 15mentioned in our contention are absolutely viable.
16According to Michigan Public Service Commission, there 17is already more than 12,000 megawatts of wind 18generation capacity in the state, with more being 19build every day.
20JUDGE SPRITZER: I think their position 21is, basically, that you haven't demonstrated that it's 22a viable alternative to providing what they call base 23load power. That's power that's available all the 24time, even when the wind's not blowing.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 125MR. SHERMAN: Thank you, Your Honor, and 1I would like to address that directly.
2JUDGE SPRITZER: Sure.
3MR. SHERMAN: First of all, Fermi 2 does 4not run 24/7, 365 days a year. This year alone, we've 5had a number of outages, both planned and unplanned, 6for dealing with problems at the plan. When 7distributing wind power throughout the state, and 8other renewables such as solar, biomass, then those 9resources are distributed so less generation capacity 10is required to be transmitted over long distances.
11And we would say that it is a very thin 12argument to suggest that the entire State of Michigan 13could stop blowing. It's a really difficult argument 14to make.15And I would challenge DTE to show me on day on the 16record on which there was no wind in the state. And 17on days where wind resources are lower, sun resources 18tend to be higher.
19We would also point out that the claim that DTE 20made that there is no storage capacity on grid in 21Michigan is blatantly false. The Luddington power 22pump station actually is able to pump water up over 23300 feet into a reservoir. It was built in '69 24through '73, and when it's at full generation 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 126capacity, it can produce 1,800 megawatts of power; 50 1percent more than the total output of Fermi 2 when 2running at 100 percent power.
3So we make the argument that it is not our 4responsibility 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 8responsibility to make an analysis of these 9alternatives. And we can see that even solar, which 10tends to be double the cost of wind power, in North 11Carolina, according to Duke Energy, actually is less 12expensive than nuclear.
13So wind power tends to cost about half the 14cost of nuclear power. But here in Michigan, it has 15the added benefit that these resources are here in 16state. We use our manufacturing base to produce the 17turbines. And the wind is home-grown Michigan wind, 18as is the solar, the biomass, and all these resources 19that we can produce here in state. Whereas, our 20current relying on energy from coal and nuclear is all 21mined out of state, increasing our cost of energy, 22driving manufacturing out of the state, as well, oh 23three already?
24JUDGE SPRITZER: We'll give you three 25NEAL 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 1would have three minutes of rebuttal?
2MS. KANATAS: Yes.
3MR. SHERMAN: Excellent. So our point is 4that DTE takes a dualistic approach. On one hand, in 5their NEPA statements and environmental statements, 6they're saying that wind is not a viable option.
7Where, if you see any of their wonderful TV 8commercials with that great guy from the Dirty Jobs 9show, showing how these big turbines make energy free 10of pollution.
11So, on the one hand, DTE has a public face 12that is lauding their efforts with renewable energy 13and, of course not mentioning that all of the steps 14that they've taken in this direction have been 15required by law, such as the renewable portfolio 16standard. Which they laud their adherence to, but 17behind the scenes are lobbying against things like 18renewable portfolio standards being increased, better 19use of metering standards.
20And they make the argument that there is 21no storage, which we've established that there is.
22And the fact that the current state of the grid 23requires that energy be stored, and that special 24arrangements be made with certain customers, such as 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 128interruptable service and giving better rates for off-1peak usage.
2So these strategies are already being 3used. These strategies will be helpful in mitigating 4any sort of capacity factor differences in renewable 5power. And, therefore, the argument that these 6alternatives are not reasonable and not non-7speculative and reasonable feasible alternatives, 8because they're already operating in the state with 9great success.
10And the potential for wind alone is barely 11stretched. With increase of efficiency and siting, 12using wind resource maps to make sure that the wind 13resources are placed in the maximum availability of 14wind, the capacity factor of these plants are steadily 15increasing. And, because they're distributed 16throughout the state, the cost of transmission and the 17impact of the energy used for transmission is greatly 18reduced throughout the state.
19JUDGE TRIKOUROS: You know, when you say 20the capacity for factors is increasing, you're talking 21about the down time for maintenance or repair or that 22sort of thing, right?
23MR. SHERMAN: Correct. Wind power has, 24historically, been rated between 30 and 15 percent 25NEAL 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 2those factors have been raising quite steadily, and 3capacity factor for wind throughout the country has 4been reaching close to the 50 percent, and well over 540.6Throughout the world, we're seeing records 7being set regularly in both the building of wind 8generating capacity, as well as higher capacity 9factors. Just recently, the North Sea Off Wind 10Resources off of Europe had set major records towards 11running at 100 percent capacity factor for days on 12end.13And the only real problem is that if we 14build enough capacity in wind to more than make up 15base load for Fermi 2, at times we will have power 16overages that can be sold out of state, sold to 17customers that have flexible demands, like salt mines 18creating chlorine and sodium resources. Those can be 19put in place when energy is at a maximum.
20And we believe that this will create, not 21only a better environment for the State of Michigan 22and our rate payers with lower rates in the long run.
23Because once these resources have been paid off, they 24produce energy for free. So the fact of the matter is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 130that economically and environmentally, renewable 1energy is a boon for Michigan. They're in-state 2resources.
3We'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 7create these turbines, we're further increasing the 8job base in Michigan.
9JUDGE ARNOLD: I'm going to interrupt you.
10MR. SHERMAN: Please.
11JUDGE ARNOLD: You're not answering the 12question. It was a very brief question. If you 13continue to answer and answer and repeat things that 14are in the petition, we're not going to get through 15today, because we've got a lot of questions. So could 16you be, please be briefer?
17MR. SHERMAN: Would you restate the 18question, please.
19JUDGE ARNOLD: I'm not worried about him 20not answering it, but he's going on about --
21JUDGE SPRITZER: I think he's about done 22with his time anyway. Why don't we move on in here.
23JUDGE ARNOLD: Well no, because we have 24questions.
25NEAL 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 1answer them, sir.
2JUDGE ARNOLD: Absolutely. Now, the 3Applicant has already addressed wind power in the 4application, and said it's not a reasonable 5alternative. You say it is. The best way that you 6can support it being a reasonable alternative is to 7point to someplace that uses wind to get a capacity 8equivalent to Fermi 2, and that has a capacity factor 9that is in the order of 90 percent or whatever Fermi 102 is. Can you point to anyplace where wind power is 11producing in that manner?
12MR. SHERMAN: It is not possible to 13produce 90 capacity factor with wind. That is why, 14because it is so much cheaper than nuclear, you can 15double or triple the capacity for the same financial 16investment. And produce windfall profits in the 17future for DTE because once the initial investment is 18paid 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 22yields a megawattage equivalent to, or approximately 23to Fermi 2?
24MR. SHERMAN: Based on the fact that the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 132capacity factor is known to be about 40 percent, and 1the nuclear capacity factors tends to be about 90, 2which I believe in some cases an overestimation; you 3can see a lot of downtime over the years from Fermi 2.
4All it would take is anywhere you can put together 5more than double the total capacity, you'll have the 6capacity factor equivalent of Fermi 2.
7JUDGE ARNOLD: So this is speculation on 8your part. You can't point to anyplace that has this 9amount of wind power, correct?
10MR. SHERMAN: There's places throughout 11the world that have that much wind power. You'll see 12in Denmark and Germany, these countries are close to 13100 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 16speculative, but is demonstrable in other countries 17throughout the world. And if you look at the wind 18factors in Michigan, we are barely tapping the 19available resources we have in the state.
20JUDGE TRIKOUROS: In your pleadings you 21point out that the only way to achieve any kind of 22base load situation is with respect to interconnected 23wind farms, correct. So let me understand that. Now, 24in other cases that we've had, we've discussed various 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 133factors associated with this, so I can ask questions 1from some of that experience.
2MR. SHERMAN: Please.
3JUDGE TRIKOUROS: But let me just, okay, 4so with respect to interconnected wind farms, are you 5suggesting that to replace, say, the -- let's say 61,000 megawatts electric, Fermi's about 1,170, I 7think. 8MR. SHERMAN: Yes.
9JUDGE TRIKOUROS: You would be talking 10about, let's again say, for the sake of argument, four 11wind farms at locations that are far enough away from 12each 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 15you have to buy four times as much power as Fermi, 16such that at any one of those four locations that 17would be a Fermi? Is that what we're talking about?
18MR. SHERMAN: That is one mitigation 19strategy. That is reasonable and feasible.
20JUDGE TRIKOUROS: Well, when you say, you 21brought up interconnected wind farms, so I'm just 22trying to understand what you mean by that. So, we're 23talking about four Fermis worth of energy at different 24locations?
25NEAL 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 1quarter of the way there with minimal investment in 2that type of energy in the state.
3JUDGE TRIKOUROS: Okay well, when you say 4interconnected wind farms, is that what you mean?
5MR. SHERMAN: Well, yeah --
6JUDGE TRIKOUROS: What I just said?
7MR. SHERMAN: Yes.
8JUDGE TRIKOUROS: Okay. I just want to 9make 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 13one part of the factor, but more than enough to 14replace Fermi 2. And with additional renewable 15resources 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 18of state for our energy.
19JUDGE TRIKOUROS: You talk about, later in 20your pleading, you talk about some renewable standards 21that the State of Michigan is --
22MR. SHERMAN: Yes renewable portfolio 23standards, RPS.
24JUDGE TRIKOUROS: And, you know, you 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 135indicate that they have, that they're required for 10 1percent renewable?
2MR. SHERMAN: Yes sir.
3JUDGE TRIKOUROS: And you indicate here 4that they, basi cally, are at 9.6 percent. Is that 5correct? You mention a 9.6 percent number in here.
6MR. SHERMAN: Did I say 9.6 percent?
7JUDGE TRIKOUROS: You mention 900 8megawatts is owned or contracted renewable energy 9generation by Detroit Energy.
10MR. SHERMAN: You're not saying verbally 11just now, you're saying in the contention. Yes sir.
12JUDGE TRIKOUROS: Right. Okay, and you 13claim that that 900 megawatts is equivalent to 9.6 14percent of the electricity that will be sold to retail 15customers in 2015.
16MR. SHERMAN: I believe that is correct.
17I don't have that paper in front of me, but it sounds 18correct.19JUDGE TRIKOUROS: So if there's 900 20megawatts, and it's at 30 percent capacity factor, how 21could that be 9.6 percent? Or is the 9.6 percent the 22900 megawatts, and you're assuming that that 900 23megawatts will always be operating? I don't 24understand your numbers, that's why I'm asking.
25NEAL 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 1more than 1,200 megawatts on the grid in wind power 2alone; not including other renewables, according to 3Michigan Public Service Commission. And that number 4is constantly rising. It's the only major form of 5energy that's being constructed. So my point isn't 6that we are at a position currently with on-grid 7renewables in the state that we can now replace Fermi 82's base load capacity.
9But, our contention is that within 11 10years, with a modest investment, before this license 11be renewed, we can most certainly replace the base 12load power with a modest investment. DTE, from my 13understanding, had some complaints about RPS when it 14was 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 17movements in the state to increase that standard, and 18practice strongly supportive of those measures.
19JUDGE TRIKOUROS: Now this is just a 20follow-up on Judge Arnold's comments.
21MR. 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 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 137can put into a computer that I have a wind farm here 1and a wind farm here and wind farm there, give it all 2the specifications for wind blowing, not blowing, give 3it everything in terms of repair, you know, 4maintainability, reliability, do all of that. And it 5will come out and tell you what the base load is.
6Now the studies that we've been shown look 7like 20 percent is achievable, maybe 30 percent is 8achievable. But not 100 percent. Can you point to 9even a study, you indicated you couldn't point 10directly to a situation in the United States that is 11producing equivalent of a nuclear plant base load.
12MR. SHERMAN: Actually, if you go into a 13large enough area you can.
14JUDGE TRIKOUROS: Can you point to a 15study? Can you point to anything that is, you know, 16concrete that would show this?
17MR. SHERMAN: And you tell me that 18concretely Fermi 2 will be running at 90 percent 19power, 24/7, 365? Because if what we're trying to do 20is 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 23or a solar spill, nobody dies.
24JUDGE ARNOLD: Can you control the outage 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 138time of windmills?
1MR. SHERMAN: No.
2JUDGE ARNOLD: Okay. Applicant, can you 3control most of your downtime?
4MR. SMITH: We do have scheduled outages, 5yes. 6MR. SHERMAN: And unscheduled.
7MR. SMITH: Correct.
8JUDGE ARNOLD: And what is your capacity 9factor, historically, do you know?
10MR. SMITH: I don't know off the top of my 11head.12JUDGE TRIKOUROS: And in the past, when 13contentions have been, and this was pointed out in the 14pleadings of the other parties, in the past when 15contentions have been approved, contentions of this 16exact nature, they have not been admissible through 17the Nuclear Regulatory Commission. So, unless you 18have something additional that you can add with 19respect to concrete information that says I can shut 20down this plant and it won't be a problem because of 21wind.22MR. SHERMAN: I understand. Like I said, 23what we're advocating for is a mix of renewables, such 24as wind. According to the MSU Land Use Institute, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 139they have documented 300,000 megawatts of wind 1potential on the Great Lakes. Lake Erie has some of 2the best wind potential in the U.S. because of the 3east/west orientation of it.
4We have massive resources available. The 5only reason we cannot point to more of them is that 6these resources have only recently been invested into 7heavily. 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 10absolutely reasonable.
11And the capacity factor of 90 percent on 12Fermi, I would say, is a specious number. At least 13two-thirds of that energy does go into waste heat 14which, as we know, contributes to algae blooms in the 15lake, and thermal discharge issues. So, with respect 16to 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 19Applicant --
20JUDGE TRIKOUROS: You could do those 21simulations. I mean, y ou could get somebody to do 22those.23MR. SHERMAN: We would like to.
24JUDGE ARNOLD: You could do that on a PC 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 140at home.1MR. SHERMAN: We would love to do that.
2JUDGE TRIKOUROS: This is not difficult to 3do.4MR. SHERMAN: Perhaps some of our partners 5here at the tables with more resources would be 6willing to do the job that NEPA requires of them, and 7we wouldn't have to be here arguing for this.
8JUDGE TRIKOUROS: Well, it would be 9helpful to have hard data.
10MR. SHERMAN: One of the problems with 11getting hard data on wind in Michigan is that, unlike 12some other states such as Minnesota, there is no real 13time reporting for wind that's required by the 14Michigan Public Service Commission. I did try to get 15more specific numbers for this panel.
16But between the difficulty of those 17numbers to get in a concrete, verifiable way, and the 18fact that we have been, basically, barred from 19bringing new information, the point is with our 20contention is that it is on the onus of the Applicant 21to do a fair and reasonable study of alternatives.
22And we feel that it's quite obvious that their 23analysis is self serving.
24And we understand. But if DTE were to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 141pull their resources from Fermi 2, stop running that 1plant, and put all the resources into wind, of course 2the 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 5their choice to build a nuclear plant.
6The rate payers have already been soaked 7enough with higher rates to support this monstrosity, 8and we content that it is up to this Board to assign 9a public hearing to allow the public to weigh in.
10We're not here to say it's time to shut down Fermi.
11Trust me, we'd like to suggest that, but we know 12that's not in the scope of this hearing.
13It is in the scope of this hearing to 14select a public hearing. It is time that the public 15be allowed to weigh in on these facts.
As we have 16witnessed from these proceedings, there's lots of 17unanswered questions about renewable energy, about the 18potential dangers to health and the environment. But 19that's why it is urgent that we allow the public to 20have a say.
21We're not going to figure this all out 22now. But, by the fact that we don't have this all 23figured out, and that there are still questions, we 24strongly urge this panel, with all due respect, to 25NEAL 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 1issues aired out.
2JUDGE SPRITZER: All right, let's move on 3and hear from the Applicant. I'm sure they have a 4different perspective.
5MR. SHERMAN: Thank you, gentlemen.
6JUDGE SPRITZER: Please proceed.
7MR. SMITH: Thank you. Tyson Smith for 8DTE. In this contention, CRAFT alleges that wind 9power is a viable option. But, as we, some of the 10Judges have recognized, this is a conclusory statement 11that fails to recognize that, at bottom, to be 12reasonable, an alternative must be capable of 13replacing the 1,170 megawatts of base load generation 14from Fermi 2. Any alternative that doesn't include 15replacing that base load capacity is unreasonable 16under NEPA's purpose and need.
17Nothing in the proposed contention 18acknowledges, much less disputes, the conclusion in 19the ER that wind power alone is not a viable 20replacement to the base load generation of Fermi 2.
21First, and our, the ER assesses whether wind, as a 22discrete energy source, could replace the generation 23from Fermi 2.
24It explains that a single wind farm 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 143generation unit of sufficient size to be able to, 1given the capacity factors, would not provide 2consistent power able to approximate base load. So 3then the ER goes on to consider whether you could have 4multiple interconnected wind farms over a large area.
5Whether that could approach base load capacity, 6exactly the sort of analysis that Mr. Sherman is 7saying that we should do.
8And we did that. And we concluded that 9wind energy would not be able to provide consistent 10base 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 13technologically feasible in time to replace the 14generation of Fermi 2.
15And that ER also explains that you could, 16hypothetically or theoretically, marry wind resources 17with some sort of energy storage technology, like pump 18store, like compressed air energy storage, like some 19sort of battery. And the ER looked at all of those 20options and concluded that none of those alternatives 21are sufficiently advanced, technologically or 22commercially, to be able to work with wind together to 23approximate base load energy.
24So, at bottom, the ER concludes that wind 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 144power is not reasonable based on the lack of adequate 1wind resources in the DTE service area, the 2significant shortcomings and reliability of wind as a 3base load energy source, the limited availability of 4pump storage, and the undetermined availability of 5geological formations for compressed air energy 6storage.7So I think the point here is that DTE has 8looked at all of these options, and has addressed them 9and put forth information and a basis for its 10conclusions. And at this stage in the proceeding, 11it's incumbent on the Petitioners to present some 12genuine dispute with those conclusions. And nothing 13in there, the contention or the reply, rises to that 14level. Contention 1 is inadmissible.
15JUDGE TRIKOUROS: Go ahead.
16JUDGE ARNOLD: Just assume for a moment 17that it was reasonable to replace Fermi 2 with wind 18power. Just, you know, make the assumption. Now, 19what would you, how would you compare the continued 20environmental impact of Fermi 2, that's already there, 21already been constructed, already in operation, to the 22impact of building enough windmills to replace Fermi 232?24MR. SMITH: And that's a good point, and 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 145that'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 3use and on, you know, on birds and other mammals, like 4bats. It has, requires more transmission if you're 5going to have them distribute over a larger area.
6And even if you build them offshore, then 7you eliminate some of those impacts. But you've got 8new ones with the interference with aquatic resources 9and so on. So, I think the point is that there are 10impacts to wind. But in this analysis, we don't get 11there, because we don't reach the point where wind is 12a viable alternative.
13And then I just point out, in addition 14that, as you said, Fermi 2 is already built. So we're 15talking about the impacts from an additional 20 years 16of operation versus compared to the impact of building 17new generation.
18And, ultimately, in license renewal, the 19standard is whether the environmental acceptability of 20the proposed action, which is renewing the license, is 21whether or not the adverse impacts of license renewal 22are so great 23as to making operating another 20 years unreasonable.
24And, certainly, there's nothing here to suggest that 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 146that's the case.
1JUDGE ARNOLD: Thank you.
2JUDGE SPRITZER: NRC staff?
3MR. LINDELL: Your Honors, Joseph Lindell 4representing the NRC staff. So as we've discussed 5here, I mean, in their brief standard argument here, 6Petitioners have stressed that, you know, in general 7wind power is a way, a viable means of generating 8power. Petitioners, however, have failed to show why 9the alternatives analysis in the ER is insufficient.
10And, as we pointed out, the Commission has 11made clear on many occasions that an alternative's 12contention, to be admissible, it has to raise a 13genuine dispute with the ER such that the same stain 14to the alternative can supply base load power in the 15near term. And that's, for example, the Seabrook 16case, 75 NRC SP42.
17Petitioners here have talked a lot about 18the potential for wind power; you know, at some point 19down the road, some point in the future, projects 20overseas and the like. But they haven't made any 21factual showing for, you know, wind power to replace 22that base load generation of 1,170 milliwatts in the 23near term.
24As also Petitioners pointed out, they did 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 147raise on reply, you know, in a situation where, you 1know, new arguments can generally not be raised on 2reply, that point to certain maps from the state that 3you can access on the State of Michigan's website, 4where you add up all the milliwatts generated by wind 5currently, and plus some future expansions that are 6planned, you do reach a number of 1,170 milliwatts or 7such. 8But you know, to the extent that this is, 9indeed, a challenge to the ER, there are several 10problems with this. We don't know, for example, how 11much 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 14of this wind power is now able to, basically, replace 15the base load demand of Fermi, and it isn't already 16supplying, you know, other demands throughout the 17state.18And also, as you know, the Applicant 19pointed as well here, that you know, there are 20reliability issues with wind power, such as wind has 21to be blowing sufficient velocity and duration. And 22the conclusion in the ER was that it would, it would 23not be able to do so to generate base load power. And 24CRAFT has failed to challenge this.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 148I guess just the one other thing I would 1bring up is the, CRAFT also mentioned the potential 2for offshore wind development. They consider that to 3be 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 7important point that legislation in Michigan would be 8required to create such a regulatory framework for 9offshore wind generation. And, as of the submittal of 10the ER, they note that no such framework existed.
11So this doesn't meet the standard of being 12able to supply the base load power for the near term.
13You know, at the best, it's potential, it's 14speculative, theoretical. But that would not meet the 15contention admissibility standards.
16JUDGE TRIKOUROS: In terms of the cost of 17wind, you heard what was said regarding the statement 18that it was cheaper. Is this something that you can 19support, 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 22hour of these different energy sources, would I find 23wind that would be cheaper than nuclear? Do you have 24any, do you know?
25NEAL 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 1really provide any insight on that question.
2JUDGE ARNOLD: Well, do you expect that 3you would find any new build wind cheaper and more 4cost effective and an already constructed nuclear 5power plant?
6MR. LINDELL: I also don't have the facts, 7you know, to support that one way or another. You 8know, I know that, you know, that you know, something 9that's already constructed, you know, there are 10certain, you know, cost effectiveness to that as 11opposed to constructing something new. But, I mean, 12other than that, other than sort of a very general 13knowledge, I can't really supply anymore details on 14that. 15JUDGE ARNOLD: Just one more question for 16the Intervenors, in your responses, you mentioned wind 17and other renewables.
18MR. 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 22and other renewables, not just what the contention 23statement says of wind.
24MR. SHERMAN: For the future of Michigan, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 150I believe all renewables need to be on the table, and 1whatever works best for the local environment. But, 2considering that nuclear is well less than 20 percent 3of the state's grid power, I would be more than happy 4to stand behind the fact that if we're just talking 5about replacement of Fermi, we have the resources in 6Michigan to do it.
7Now, 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 10that has perfect match of supply and demand. That's 11why 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 14interruptable power supply and lower costs for off-15peak usage.
16So DTE has an opportunity to make the most 17of the new energy future. Whereas, the old ways of 18burning 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 21investment paid off, the DTE will be able to expect 22windfall profits. Because there will be times when it 23is generating a higher capacity factor, and sometimes 24when there's lower.
And the current mitigation 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 151strategies is for smoothing out supply and demand on 1the grid can be applied to these future overruns and 2under productions.
3JUDGE TRIKOUROS: When you quote numbers 4like 12,000 megawatts of wind, are you actually 5quoting deliverable energy, or are you quoting 6installed capacity?
7MR. SHERMAN: I'm glad you asked that 8question. I would like to clarify. There's a big 9difference between generating capacity and the actual 10real time capacity factor. I am not claiming that all 1112,000 megawatts of wind power currently on the grid 12is generating at that capacity at all times. That is 13not our contention.
14What our contention is that, even with 15relatively 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 18and offshore resources, we have more than enough to 19power the entire state, let alone replacing Fermi 2.
20Will there be times when the wind is blowing a little 21less in some places? Of course. But we already have 22a situation where we have to sometimes massage supply 23to meet demand.
24JUDGE TRIKOUROS: Also I wanted to ask, I 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 152guess you again, why is it that when utilities install 1wind capacity, they install an equal amount of fossil 2energy? 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 5recent months, the only generating capacity that's 6been developed statewide, and in some months 7countrywide, has been wind power. Wind power had 8definitely been outpacing fossil fuels in terms of new 9energy on the grid, from what I have studied.
10Especially here in Michigan and in other states that 11are picking up the renewable portfolio standards.
12JUDGE TRIKOUROS: That wasn't my question.
13I might, I might agree that more wind power is being 14installed than fossil.
15MR. SHERMAN: I understand your question 16was why do companies build simultaneous resources in 17wind and --
18JUDGE TRIKOUROS: Yes, and I believe that 19that's a consistent behavior.
20MR. 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 23the new generating capacity on the grid has been from 24renewable resources. It's one of the only things you 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 153can build, unless you're trying to bring older plants 1up to a higher generating capacity or working with 2some sort of grandfather plan. New plants need to be 3developed in compliance with the Clean Air and Water 4Act. 5JUDGE TRIKOUROS: You know, unlike some 6organizations in this world, utilities are required to 7produce electricity constantly. They don't have the 8luxury, anyone in this room if they lost electricity 9for five days, they would be jumping all over the 10utility company, suing, and they might even die.
11MR. SHERMAN: It happens all the time.
12JUDGE TRIKOUROS: They might even die.
13They might even die. So there's no option. When 14intermittency is installed, it has to be backed up.
15There has to be a back-up if it's intermittent. They 16account for downtime of nuclear power plants by 17installing combustion turbines. They account for the 18down time of any plant by installing other plants.
19MR. SHERMAN: So Fermi 2 has opposite or 20parallel capacity to replace it if it were to be 21offline is what you're saying?
22JUDGE TRIKOUROS: Well, what I'm saying is 23that intermittency can't be counted on. If an energy 24source is intermittent, it cannot be counted on as 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 154base load.
1MR. SHERMAN: Understood.
2JUDGE TRIKOUROS: And therein is the 3problem we're facing here. That nuclear power plants, 4and I'm sure Fermi falls in the general category of 90 5percent capacity factor entities. So the utility does 6have to account for a 10 percent downtime of those7plants. In the same way, if it built 30 percent 8capacity factor assets, it would have to provide 9energy 70 percent of the time using some other way.
10That other way could be a nuclear power 11plant somewhere else, 70 percent of the time. And 12therein lies our problem, in that we can't replace a 13nuclear plant with a wind asset, and call it base 14load. That would not be approved by the Nuclear 15Regulatory 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 21utility, their responsibility is not just to their 22bottom line. Of course they have a responsibility to 23their investors.
24But they also have a responsibility to the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 155rate payers in the State of Michigan. And the fact 1that we already have an inconsistent supply on the 2grid, and we correct for that with contracts with 3customers like interruptable power and off-peak lower 4rates, some of these problems, you know, maybe 5exacerbated briefly in the beginning.
6But we're not talking about turning off 7Fermi tomorrow. We're talking about having a public 8meeting to let the public weigh in on these issues.
9And there is capacity, not only in wind, but in other 10factors, other sources. And we're not talking about 11building capacity overnight for base load power.
12We're talking about having that base load power on the 13grid. Using resources from the great State of 14Michigan before the renewal of this permit in 11 15years. 16Eleven years is a long time to build 17storage. To incentivize individual and community 18based grids and storage so that people, especially 19relying on life support at home, can have the security 20of an un-interruptable power supply. And we believe 21that that can be incentivized and will actually help 22DTE in the long term to deal with these already 23existing separations between supply and demand.
24JUDGE TRIKOUROS: Okay well, I think we've 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 156used enough time on this, so we heard your --
1JUDGE SPRITZER: Thank you very sincerely.
2MR. SHERMAN: Okay.
3JUDGE SPRITZER: Thank you for your 4information. And let's move on now to the second 5group of contentions.
6MS. COLLINS: If I might, one of the, 7Sandy Bihn who was to defend Contention 12, which was 8Group 5, has a scheduling conflict, and we would like 9to request that she go on next, if that's all right.
10JUDGE SPRITZER: Does anybody have a 11problem with that. Fine, that would be fine.
12MR. SHERMAN: If it pleases the Court, I 13will relinquish my seat to Sandy.
14JUDGE SPRITZER: Absolutely. That would 15be fine.
16MR. SHERMAN: I will be in the room if I 17wish to be addressed. Thank you again.
18MS. COLLINS: Contention 12, thermal 19pollution.
20MS. BIHN: Good afternoon, and thank you 21for allowing me to testify now. I appreciate that.
22I'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 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 157international joint commission board of water quality 1advisor board, as well as the Ohio Department of 2Natural Resources coastal advisory board, and other 3boards relating to Lake Erie.
4I've worked on Lake Erie issues for the 5past 20 years. I strangely --
6JUDGE SPRITZER: Maybe you can move the 7microphone a little bit closer.
8MS. BIHN: Sure.
9JUDGE SPRITZER: But not too close, 10because that's the one that gets feedback.
11MS. BIHN: Is that okay? Does that work?
12Do you want me to start over?
13JUDGE SPRITZER: No, no.
14MS. BIHN: All right. And so I've worked 15with the Lake Erie waterkeeper program, which actually 16serves Lake Erie from coast-to-coast from the, on the 17west from Ohio and Indiana to the east to New York and 18north and south from Ohio to Ontario. So I work on 19the whole lake on a regular basis for the past 10 20years. 21So I'm just here to kind of talk about the 22water impacts of the facility, and what is different 23from the 2008 environmental impacts that were 24submitted then, and what's going on right now. Most 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 158of you may be aware of the fact that the City of 1Toledo had a half a million people with a do not drink 2advisory on August 2nd, which is the water intake on 3the southern shores of Lake Erie, probably 10-15 miles 4from the Fermi 2 operation.
5JUDGE SPRITZER: Yes, we even had an 6article 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 12relate to this hearing, and what here in the 13contention in terms of algal blooms and mixing zones?
14The 50 million gallons, 45 average million 15gallons that Fermi 2 uses increases the water 16temperature by 18 degrees on average. And what that 17does is that accelerates, prematurely begins the bloom 18in Lake Erie. We have satellite imagery from 2011, as 19verified by Limno Tech for the Army Corps of 20Engineers, that basically shows that the first algal 21bloom in Lake Erie actually happens in the Fermi 222/Detroit Edison footprint, in their mixing zones on 23the western basin in Monroe Fermi area.
24And so this starts the bloom sooner than 25NEAL 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 1significant for the Toledo situation in that we had a 2very warm, or excuse me, a very cold, dry July; almost 3a record cold, dry July.
And yet, we had a bloom 4early. Algal blooms usually start in mid-summer and 5peak in September. So it's really unusual that we6would have the kind of situation that happened in 7Toledo on August 2nd.
8And so the explanation is beginning to 9evolve that appears to be that the internal load in 10the lake, the sediments already in the lake that have 11a high phosphorus content, as proven by recent studies 12again by the Corps and by ECT Environmental Consulting 13Technologies in the River Raisin area. Actually 14those, the temperature is what drives the bloom, and 15starts the bloom in the beginning of the season.
16So I guess the point here is that the 17acceleration of the water temperature and then 18creating the bloom, the start of the bloom, can I tell 19you that that bloom, what bloom means to the rest of 20the 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 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 160it right in the mixing zone of these plants.
1So in very shallow waters, 12 and 14 feet, 2it's significant. Western basin average depth is only 324 feet. So this whole thing, how it cycles and how 4the winds blow and move the algae around, is the kind 5of 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 8said, or externally coming in from the streams.
9But there is a concern that these power 10plants 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 13temperatures were down in the water, if somehow they 14reduce that, what's causing and creating a bigger 15bloom in the lake, or at least an earlier bloom in the 16lake. 17JUDGE SPRITZER: How many power plants, 18nuclear or non-nuclear, are there in this general 19area?20MS. BIHN: In the western basin, there's 21the coal fire power plant, certainly, in Monroe that 22does two billions gallons of water. So it's much 23larger, it's footprint is much larger than this one at 2445 million. And there's Erie Township that has about 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 161135 million, it's a coal fire power plant. Besse on 1the other side has 45 million. Bay Shore has 2decreased theirs from 750 million to about 180 million 3gallons a day.
4Strangely, 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 7should because it's right at the mouth of the Maumee.
8But it does not. Somehow, the way the winds blow and 9the currents are in the water, it would appear that in 10the Monroe area, where Fermi is at, that the waters 11are a little bit more stagnant. Perhaps they don't 12move, and the circulation isn't quite as great. I'm 13not sure, but for some reason, year after year, that's 14where the bloom starts.
15JUDGE ARNOLD: Well, looking at the 16written contention, I can't see anywhere where you've 17identified or specifically disagreed with anything in 18the 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 22in many ways, you know, if there's more information 23that comes forward and we have a problem in the lake, 24which we absolutely do, and I think that's widely, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 162publicly recognized, then it would seem to be prudent 1to include the reality of today, as opposed to, you 2know, what was known in 2008. And because the blooms 3in Lake Erie really, the record blooms have been 2011.
4The next one was 2013 and 2014.
5JUDGE ARNOLD: Let me just ask that 6quickly. When was the environmental report submitted 7to the NRC?
8MR. SMITH: Earlier this year.
9JUDGE ARNOLD: So it wasn't 2008.
10MR. SMITH: No, it was not.
11MS. BIHN: Well the dates, I thought, were 12based on 2008. But certainly even earlier this year, 13this factor in terms of what's going on would not have 14been allowed. I mean, they just wouldn't have had the 15information.
16JUDGE ARNOLD: See, the problem I have is 17I find that it is addressed in the environmental 18report, and you haven't directly challenged what's in 19the environmental report. You've just said well, 20there's some information that they couldn't possibly 21have considered from that evaluation.
22JUDGE SPRITZER: That might be an 23interesting question, but we'll maybe save it for the 24staff and the Applicant of whether, what is the duty, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 163if any, to update the Applicant's environmental 1report. There's obviously a duty on a Federal agency 2and 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 5three minutes for rebuttal, so why don't we move on, 6and I'll ask that.
7MR. SMITH: Sure, and I'll start by 8answering that question. There is currently no 9obligation to an Applicant to update its ER. That's 10something that, in the Diablo Canyon license renewal 11proceeding that issue came up. And the Board there 12concluded that there was no obligation, but referred 13the issue to the Commission. And the last I heard, 14the staff was still considering what, if anything, to 15do with that.
16JUDGE SPRITZER: So it hasn't been 17resolved. Now I take it the corollary of that would 18be if there's no duty on the Applicant in this case to 19upgrade the ER, we can hardly insist that the 20Petitioners, or if they become Intervenors, file new 21contentions every time some new piece of information 22comes along saying you have to update the ER when, in 23fact, there's no duty to update the ER.
24MR. SMITH: No, if there's new information 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 164that comes along, you have a duty, as a Petitioner, to 1file new contentions in a certain period of time.
2JUDGE SPRITZER: Well, if the argument 3though is that the ER, they wouldn't be able to argue 4that 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 7in the ER is incorrect.
8JUDGE TRIKOUROS: Yes, I think what Diablo 9found was that the Applicant didn't have an obligation 10to update the ER, but there was obligation to report 11new information so the EIS could be updated by the 12staff.13MR. SMITH: Correct. Yes, the staff will 14still reflect it in their, their Group B documents.
15Contention 12, as we heard, relates to the 16effects of Fermi 2 discharges on algae. I think the 17first point is the contention, as written, says that 18the thermal discharges are a significant contributing 19factor, and the Fermi 2 operations cause environmental 20impacts that are "unknown and unanalyzed."
21Well DTE's ER, in fact, analyzes the 22potential for algae blooms, including the harmful 23algae blooms in Lake Erie. There's an extensive 24discussion of the impacts. It describes the Lake Erie 25NEAL 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 1historical occurrences of harmful algae blooms in 2western Lake Erie.
3It, specifically, notes the potential for 4microcystin from blue green algae, and the potential 5impacts on drinking water. It describes specific 6studies 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 9lyngbya or other nuisance species have been reported 10at the Fermi site to due to Fermi 2's operations or 11other NPDES permitted discharges.
12So, not only is there no emission, there's 13an assessment in the ER of these impacts. And it 14concludes that Fermi 2 is not causing or contributing 15to harmful algae blooms. And that conclusion is 16based, it specifically refers to a potential for algae 17blooms in the vicinity of the site, and in Lake Erie 18generally.
19So this is something that has been 20comprehensively addressed in our environmental report.
21For their part, CRAFT offers no specific information 22to controvert those conclusions. It doesn't provide 23any expert or factual support. And the fact that this 24is an issue of intense interest right now is not 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 166enough to render it to be an admissible contention on 1its own. Contention 12 is inadmissible.
2JUDGE TRIKOUROS: Do you know if Fermi 2 3has filed a license amendment to increase the maximum 4allowable intake temperature?
5MR. SMITH: I do not know if Fermi 2, I'm 6not 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 9filed anything to increase.
10JUDGE TRIKOUROS: They did not file.
11Many, many nuclear plants in the United States have 12filed license amendments and have had to re-analyze 13their entire design basis to account for a higher 14ultimate heat sink.
15MR. SMITH: Correct. And that's not a 16circumstance that Fermi has had to --
17JUDGE TRIKOUROS: But that hasn't happened 18with them?
19MR. SMITH: It has not.
20JUDGE SPRITZER: Did your ER discuss the, 21what CRAFT refers to as the recent water emergency in 22Toledo, Ohio caused by toxin algae blooms?
23MR. SMITH: No, it did not. Obviously, 24that occurred after, after we filed our ER. But, as 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 167I 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 3which, if I remember correctly, was the particular 4toxin produced by the algae that was this summer.
5So there's nothing unique about this past 6summer with respect to the existence of algae blooms, 7generally. From what I understand, the, the unique 8nature was that happened to occur in the vicinity of, 9you know, the water intake structure for the City of 10Toledo. But, more broadly, that's not a new issue, 11and it was one that was considered in our ER.
12JUDGE SPRITZER: All right, let's move on 13and hear from the staff.
14MR. LINDELL: Your Honors, the staff 15wishes to stress similar to, you know, the arguments 16made by the Applicant. That, in its initial filing, 17CRAFT didn't make any specific challenge to the ER 18that was supported by facts or expert opinion when it 19came to these algal blooms. And I'm not going to go 20over the entire discussion the Applicant just had 21about what the ER does actually do to consider this 22issue.23You know, on reply, the Petitioner did 24point to the fact that studies were done in 2008 and 25NEAL 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 1say, the crisis in Toledo or, you know, the algal 2bloom last summer. Now in their argument that point 3out that, they make a point that actually the 4satellite images or other studies show that the 5origins of the bloom are someway interrelated or 6connected, start at Fermi 2.
7But, you know, the problem here is that 8these arguments are new, and they were never raised 9initially. And, you know, the staff doesn't, didn't 10have the, didn't have the opportunity to look into 11this, and to respond to, to these claims regarding, 12that they're raising now.
13And still, there's no particular challenge 14to the environmental report in terms of what exactly 15the environmental report filed to state. What needs 16to be included. you know, what particular information 17needs to be analyzed that has not been analyzed.
18More studies, you know, can always be 19done, but the Applicant has the burden to demonstrate 20that what has been done is insufficient and that the 21problem with the algal blooms in Lake Erie is, indeed, 22linked in some manner to Fermi 2.
23JUDGE SPRITZER: Well, this August, 2014 24satellite image, does that in any way, whether it's 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 169new or not, does that in any way have any bearing on 1the question of whether Fermi 2 contributes to the 2algal blooms that have happened?
3MR. LINDELL: Your Honor, I did take a 4look at the images that were provided in the petition 5and their reply. To be honest, two of the images they 6say 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, 9actually, from Business Insider, which I guess comes, 10does initially come from NOAA.
11But, as far as I can tell, the images, you 12know, show, you know, the effects of a bloom on Lake 13Erie. But they don't, as far as I can tell, the 14images don't show in any way, you know, linkage 15between Fermi 2 and the algal bloom problem. They 16don't, and they never explain how the maps show in any 17way that, you know, in fact, they don't even, they 18claim that the maps show there's an exacerbated 19problem. But they don't show, they haven't shown in 20their filing how the maps show that.
21So, to me, the maps seem very unconnected 22from any, you know, challenge here in this proceeding.
23I guess the one, if I still have time, one more thing 24I'd like to point out. In the past when, actually 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 170it's worth noting the Fermi 3 Board, in the CO offer 1sitting there they did initially admit a contention on 2algae. 3And it's worth pointing out that over 4there Petitioners made specific references to studies.
5Petitioners showed that there were studies talking 6about phosphorus concentrations; that they were 7increasing and the Applicant, there in the ER, had 8initially stated that such concentrations were 9decreasing. And also there were university studies 10that were referenced there.
11And here, at least, in their, what they 12provided to us, CRAFT has not provided any level of 13detail that would reach that and be able to support an 14admissible contention in this regard. I also just 15note that, you know, as we've discussed here that the 16staff 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 19it's developed and, you know, include that in their 20supplemental environmental impact statement.
21JUDGE SPRITZER: Let me ask you about the 22question we talked about with Mr. Smith. That is, 23first of all, does the staff take the position that an 24Applicant, when it learns of new and potentially 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 171skewed information relevant to a NEPA issue has a duty 1to update its ER or not? Or are you still looking at 2that.3MR. LINDELL: Your Honor, I'm, that is not 4an issue that I am familiar with.
5JUDGE SPRITZER: You're about to get some 6assistance.
7MR. LINDELL: I mean, the staff's position 8is 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, 11we do learn more, which then allows us to include that 12in our environmental impact statement.
13JUDGE SPRITZER: All right, given that 14position, then what is the responsibility of the 15Petitioners or Intervenors? In other words, if they 16become aware of information that they say is new and 17significant, do they have the duty to, at that point, 18to come in and say the ER is wrong, even though it 19can't really lead to any requirement to change the ER?
20Or can they wait until the draft EIS comes out, and 21see whether the staff has actually taken that 22information into account before they file a new 23contention?
24MR. LINDELL: Our position is that they do 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 172have 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 3know, that information will then be addressed in the 4EIS once we become aware of it.
5JUDGE SPRITZER: Okay. All right, is this 6being considered in our rule making of any sort? Or 7is this just the staff's current position?
8MR. HARRIS: May I address?
9JUDGE SPRITZER: You can talk direct. I 10mean, we don't have --
11MR. HARRIS: I believe the Commission, in 12the 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 16of new and significant information, however it becomes 17aware of that, it would ask RAIs to try to resolve 18that so it can be addressed in the EIS.
19JUDGE SPRITZER: Okay. All right, thank 20you. 21MR. LINDELL: I think my time has expired.
22Does the Board have further questions?
23JUDGE SPRITZER: I don't think we do. All 24right, the Petitioner's will have, CRAFT will have 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 173three minutes for rebuttal.
1MS. BIHN: I guess, factually speaking, 2it's really important to know that temperature is what 3drives 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 6increases the water temperature by 18 degrees in the 7mixing zone, the footprint of the plant.
8Applicant said that the algae there is not 9harmful. I beg to differ. Almost all the algae that 10come in that period of time in the summer are harmful, 11and contain cyanobacteria which creates the 12microcystin which was the problem in Toledo. By 13having an accelerated bloom at the footprint of the 14plant, in the mixing zone, you have algae that's 15there. 16What 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, 19the 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 22went down 14 feet. I was out there the Sunday after 23it happened. It's a massive amount of algae.
24And so we have a major problem, because 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 174the 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 4about the microcystin that's in there.
5You know, these power plants have been 6here a long time. You know, this problem has not 7really 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 10important issue to, I think the fact that that 11increase in temperature is where the first blooms 12occur. 13It'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 16into consideration in terms of what's happening as a 17result of this facility and its operations; how it's 18impacting the rest of the lake.
19JUDGE SPRITZER: With respect to this 20August, 2014 satellite image that I believe you 21included with your reply on this contention, is there 22anything you can point to that would link what the 23photograph shows, photograph of a large area of Lake 24Erie, specifically to Fermi 2, other than we know 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 175Fermi 2 is one of the power plants in that general 1area?2MS. BIHN: The photo, the MODIS photos 3that 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 6link if he'd like. In terms of what you see in that 7particular picture, that will change with the winds 8each and every day.
9And I don't want to be facetious about 10this, but the reality is the blooms happen because the 11temperature changes, and it goes up. So, as far as 12what the photo shows, it shows the concentration of 13algae in the basin. That absolutely is the case. And 14we can see that when the season starts.
15Now, at this time of the year, you won't 16see the blooms. Of course, the ice begins to cover, 17the algae kind of remains there dormant. It doesn't 18go away in the winter. But the blooms and the problem 19algae don't start until the temperatures rise.
20JUDGE SPRITZER: Okay, but temperature can 21rise for a number of reason, including simply that 22temperature is rising. It's getting warmer.
23MS. BIHN: That's exactly right. And the 24only, the comment I have is this begins earlier 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 176because of the mixing zones.
1JUDGE SPRITZER: All right.
2MS. BIHN: I mean, that's really where the 3rubber meets the road.
4JUDGE SPRITZER: Okay, I think I 5understand your position.
6JUDGE TRIKOUROS: Have there been new 7power 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, 11the problem is the western basin is a very sensitive 12area because of its shallowness is really what the, 13that's really where the crux of it is at.
14In the rest of the Great Lakes, the water 15is much deeper. Western basin average depth is only 1624 feet. The outfall here is only 14 feet. So, you 17know, it's really shallow water. And it becomes, as 18I say, it gets sick quicker and it heals quicker. You 19know, if we could get down the sources in things, we 20may not have to have this discussion.
21As long as that phosphorus is in there, 22the nutrients are in there, and we have these massive 23blooms, we have the threat of turning off our drinking 24water. That's the reality of it.
25NEAL 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.
4I guess we can take a 10 minute break. So we'll get 5started with you as soon as we get back in 10 minutes.
6(Off the record.)
7JUDGE SPRITZER: And we will proceed to 8hear argument on Contentions 4, 5, 6 and 14 from Mr.
9Schonberger. Would you like to reserve three minutes 10for rebuttal?
11MR. SCHONBERGER: Yes sir, Chairman, thank 12you. Three minutes for rebuttal. Chairman Spritzer, 13Judge Trikouras, Judge Arnold, my name is David 14Schonberger, for the record. And volunteer to service 15as an agent representative for the pro se Petitioner 16CRAFT in this proceeding in order to help the Board 17gain a better understanding of our pleadings and where 18we are coming from for the public record.
19With full disclosure, I am not prepared 20today to provide the quality of an oral argument of an 21expert witness, so please confine your questions to 22Part 2.309. I must point out, for the record, that 23our groupings, our grouping arrangement was based on 24the goal of maximum public participation, rather than 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 178contention similarities, per se. So this allows us, 1this grouping allows us to have the most members of 2the public as we can to participate.
3And Mr. Sherman, for his part, did an 4excellent job of answering the panel's certainly 5adversarial, possibly prejudiced, as well, questions 6that 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 9demonstrated that an evidentiary hearing is warranted.
10A concise statement I have pertaining to 11the staff's Motion to Strike, the NRC's Motion to 12Strike the incorporation by reference arguments from 13CRAFT's reply brief. We content that in a 14hypothetical, board clarified and narrowed admission, 15it would be reasonable and consistent with the 16Administrative Procedure Act to combine the 17overlapping and parallel contentions together, in 18order to conduct a concurrent adjudication.
19We content that proposed Contentions 6, 5, 20and 4 in this grouping, 6, 5, and 4 correspond, 21respectively, to the joint Petitioners' proposed 22contentions 1, 2 and 4, respectively, in an apples-to-23apples fashion, alleging essentially the same 24fundamental concerns. Mr. Lindell, for the staff, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 179mentioned earlier that the staff, the Applicant did 1not have the opportunity to reply to, allegedly, new 2arguments.
3And, Chairman, as we pointed out in the 4answer to the Motion to Strike, we remind the panel of 5Judge Spritzer's panel's admission of Contention 15 in 6the Fermi 3 COLA proceeding. As we pointed out in the 7answer to the Motion to Strike, the panel permitted a 8subsequent round of replies, subsequent round of 9replies, and did not rule out presentation of new 10arguments in the reply brief, based on that procedural 11deficiency. So, as that would pertain to Contention 1212 just argued --
13JUDGE SPRITZER: Well, let me ask this.
14MR. SCHONBERGER: Yes.
15JUDGE SPRITZER: Maybe we can move things 16along a little bit. These four contentions that 17you're arguing seem to overlap, to a considerable 18extent, with the ones presented by Beyond Nuclear and 19the other joint Petitioners as we've called them. Are 20there any material respects in which your, these four 21contentions differ from what the joint Petitioners 22presented us with in their petition and here this 23morning? Do you have anything to add, in other words, 24to what we've already heard from them?
25NEAL 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 1answer that, in an apples-to-apples fashion, 6, 5, and 24 of CRAFT correspond, respectively, to 1, 2 and 4 of 3the joint Petitioners, alleging essentially the same 4fundamental concerns. And it is the, it is the Board 5panel's prerogative to narrow and to clarify proposed 6contentions for admissibility.
7JUDGE SPRITZER: Okay. Why don't we move 8on now, and hear from the Applicant if you have 9anything to add to what you've already said this 10morning about the very similar contentions filed by 11the joint Petitioners.
12MS. REDDICK: Thank you, Your Honor.
13Derani Reddick for the Applicant. I'm not going to 14repeat everything that we went over this morning.
15JUDGE SPRITZER: Thank God.
16MS. REDDICK: But I will say that I 17believe the CRAFT petition provides even less 18specificity, and provides even less basis than what we 19talked about this morning. For example, Contention 4 20for 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 23nothing there that alleges a specific deficiency.
24With respect to Contentions 5 and 6, in 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 181particular, 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 4licensing basis for the plant. They are, therefore, 5outside the scope of license renewal.
6In fact, with respect to Contention 5, 7that is regarding spent fuel pool instrumentation, my 8understanding is that the plant is required to have 9that implemented by November of 2015, but has actually 10just installed that instrumentation this past week.
11So that's already in effect.
12JUDGE SPRITZER: Are any of those orders 13that DTE is contesting in any way? That is contesting 14their applicability to Fermi 2?
15MS. REDDICK: No. Lastly, really just 16with respect with Contention 14 of CRAFT, this again, 17this is not one that is being alleged to have a 18specific overlap with any of the earlier contentions 19we heard today. This is a challenge, essentially, to 20the treatment of spent fuel pool accidents as a 21Category 1 issue.
22And we have already talked about that; 23about the inability to challenge a Category 1 issue 24absent a waiver that the Petitioners have not 25NEAL 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 1words are for seeking a rehearing or reconsideration 2of the Board's decision in the Pilgrim license renewal 3proceeding, which clearly is outside the scope of this 4proceeding.
5JUDGE SPRITZER: All right. Thank you.
6Does that staff have anything to add on these four 7contentions beyond what you've already told us?
8MR. WACHUTKA: Yes, Your Honor. This is 9Jeremy Wachutka from the NRC staff. First of all, I'd 10like to say that there is a significant difference 11between proposed Contentions 4, 5 and 6 and the other 12contentions we previously spoke about. All three of 13these contentions, basically in their very first line, 14they are challenging the implementation of Fukushima 15orders.
16Whereas, the previous contentions that we 17discussed do not challenge the implementation of 18Fukushima orders. And this sort of challenge is 19outside the scope of this license renewal proceeding.
20These Fukushima orders were immediately effective, 21meaning that upon their issuance in 2012, they current 22licensing basis for Fermi 2 was modified consistent 23with these orders.
24Now, therefore, any discussion of these 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 183orders with respect to Fermi 2 is, effectively, a 1discussion of Fermi 2's current licensing basis. In 2the Turkey Point proceeding, CLI 01-17, and the 3Pilgrim proceeding, CLI-07-13, the Commission 4explained that the scope of license renewal safety 5contentions is limited to issues of aging management, 6and not issues with the current licensing basis.
7Therefore, CRAFT's discussion about the 8implementation of these Fukushima orders is outside 9the scope of this license renewal proceeding. And for 10that reason alone, they are inadmissible.
11Additionally, Your Honors, CRAFT attempts to avoid 12this result by arguing that its safety concerns 13regarding the implementation of these orders may 14affect aging management plans.
15However, this argument fails for numerous 16reasons. First, the period of extended operations for 17Fermi 2 would begin in March, 2025. The Fukushima 18orders required all licensees, including DTE, to 19provide the NRC with their plans for implementing 20these orders. DTE has provided that it would complete 21the orders by 2016. Therefore, the actual 22implementation of these orders will occur before the 23Fermi 2 period of extended operations begins. And 24thus, their implementation is not an issue within the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 184scope of this license renewal proceeding.
1Second, CRAFT asserts that DTE's aging 2management plan fails to address equipment aging 3issues in the context of multi-unit facilities.
4According to 10 CFR Part 54, aging management plans 5must demonstrate that the effects of aging will be 6adequately managed so that the intended functions of 7the system structures and components within the scope 8of Part 51 will be maintained consistent with their 9current license basis for the period of extended 10operations.
11However, CRAFT has not explained how the 12existence of a Fermi Unit 3 would affect the intended 13functions of the Fermi 2 components that are required 14to be managed for aging.
Therefore, CRAFT has not 15demonstrated that proposed Contention 4 is within the 16scope of this license renewal proceeding.
17Otherwise, Your Honors, the other 18arguments that we discussed with proposed Contention 195, having to be a challenge to a Category 1 finding 20and, therefore by rule, outside the scope of these 21proceedings. And proposed Contention 6 does not 22satisfy 10 CFR Section 2.309(f)(i)(V) because, for 23instance, CRAFT identifies the National Academy of 24Sciences report, but it does not explain how report 25NEAL 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 1to its pleading.
2Finally, proposed Contention 4 explicitly 3asks for this Board to reconsider a Commission 4finding. And since Commission findings are binding 5upon 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 8reasons, all of these proposed contentions are 9inadmissible.
10JUDGE TRIKOUROS: The Contention 4, on 11page, the petition at 17, says the Petitioner submits 12that the Applicant's SAMA analysis and overall license 13renewal application hastily fails to comprehensively 14analyze reasonable foreseeable links, consequences and 15mitigational terms. I'm going to ask later for 16clarification.
17But one way to read that is to ask the 18question should the SAMA analysis, specifically the 19PRA in the SAMA that uses, that the SAMA uses, doesn't 20take into account flex strategies and, you know, 21various other changes to the plant that are being 22implemented as a result of those orders.
23Now, I think I can say that's true. But 24I don't know that the NRC is going to require that.
25NEAL 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 1you address that?
2MR. WACHUTKA: Well, Your Honor, with 3respect to multi-unit events in the SAMA analysis, 4like we just --
5JUDGE TRIKOUROS: I'm not talking about 6multi-unit now. I'm talking about any individual 7unit, when they do a PRA, they have you know the 8sequence studies that they do. They would include 9options 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 13I can implement now to keep the core from heating up.
14Why wouldn't I do that? That isn't done up to now.
15MR. WACHUTKA: Right, okay so Your Honor, 16in reply to your question, I think the issue is that 17the PRA's haven't been updated with these orders that 18have 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 21would affect the PRA analysis would only be to show 22that the plant was safer, and not less safe.
23JUDGE TRIKOUROS: Yes, I understand that.
24But the statement in the Petitioner's, in the numerous 25NEAL 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.
2At least that's how I read it.
3MR. WACHUTKA: Well --
4JUDGE TRIKOUROS: Is there any plan in the 5future to require licensees to do that? Or is that up 6to the licensee on a case-by-case basis?
7MR. HARRIS: Your Honor, if I may address, 8I mean, that particular, that particular issue of 9updating PRAs is within the control of the licensees.
10So, for they, if they're going to use it for some risk 11informed kind of license amendment, you know, they 12would have to be updating PRAs to show the latest 13licensing basis.
14These PRAs were last updated before these 15most recent changes. But the expectation, at least in 16terms of SAMA analysis is whether or not the analysis 17was reasonable. And you know, in light of what the 18flex strategies are meant to do, it's not likely to 19show that one of the mitigation measures would, all of 20a sudden, become potentially cost beneficial, you 21know, if you're accounting for this increased level of 22redundance potential to mitigate a core accident.
23JUDGE TRIKOUROS: All right, so you're 24saying it would make it better. It's adequate now.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 188No requirement for them to do it.
1MR. HARRIS: Well, it's reasonable under 2NEPA.3JUDGE TRIKOUROS: I understand.
4MR. WACHUTKA: And another issue, Your 5Honor, 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 810 CFR Section 2.202, within 20 days of the orders 9being issued they could have been challenged. And, in 10fact, some of them were, in the Pilgrim proceeding, 11challenged the orders. But the license renewal12proceeding is not the place to challenge these orders.
13JUDGE TRIKOUROS: I understand.
14JUDGE ARNOLD: I'm just a little bit 15confused by some of these contentions in that they're 16listed as environmental contentions and, yet, several 17of them have to do with whether or not we, the 18licensee has implemented requirements of orders that 19are, basically, safety enhancements. And I'm 20wondering how to you come to it being an environmental 21contention when it's really a current licensing basis 22challenge?
23MR. SCHONBERGER: Yes, I hear your 24question. And primarily, the overlapping with the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 189joint Petitioners is an environmental contention of 1omissions of a proper station blackout SAMA analysis.
2However, we do use Part 54 language to, as background 3support, to allege the importance of consideration of 4these so-called out-of-scope transmission lines and 5the out-of-scope corridor.
6Because we, fundamentally, dispute the 7Applicant's finding in the LRA that Unit 2 is supplied 8by physically independent sources of offsite power, 9which could qualify as separate. And the public 10should be able to reasonably anticipate and expect 11that the offsite AC power supply transmission system 12must be within the scope of the environmental review 13and the safety review for the period of extended 14operation, which must presume the Fermi 3 COLA as it 15actively stands pending. So we do borrow language 16from Part 54.
17As the intended function of this passive 18system, the transmission lines and corridor, the 19intended function is to ensure reliable and 20uninterrupted AC electric power supply, and the AEA 21mandated safe operation of Unit 2 during the period of 22extended operation. And should, therefore, be a 23necessary basis for establishing an AEA mandated 24reasonable assurance finding for pass system 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 190structures and components that are or principal 1importance to safety.
2JUDGE ARNOLD: So, for instance in 3Contention 5, spent fuel pool instrumentation, are you 4saying that when they h ave fully installed the 5instrumentation, the environmental impacts will become 6more severe? Or are just saying they haven't properly 7characterized the environmental impacts?
8MR. SCHONBERGER: Well, Judge Arnold, if 9we're moving in to Contention 5, the genuine dispute 10with the Applicant's LRA finding, which they made 11pursuant to 10 CFR Part 51.95 and Turkey Point, 12pursuant to 51.95 and Turkey Point, the Applicant 13determined that no new and significant information 14exists as it relates to onsite storage spent fuel such 15that further analysis would be called for and required 16by a hard look requirement.
17So, CRAFT would allege that unique and 18special circumstances exist which, effectively, 19preclude the Applicant's claim of entitlement to 20incorporate the Category 1 generic determinations of 21NUREG 1437 which is codified in Table B(1) and applied 22in Part 51.53.
23JUDGE ARNOLD: Okay, thank you.
24JUDGE SPRITZER: All right, I think we 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 191have concluded our discussions of those four 1contentions. Let's move on to Contention 2 and Ms.
2Collins.3MS. COLLINS: Greetings. I'm Jessie 4Collins, and Contention 2 is that Walpole Island First 5Nation have been excluded from the NRC proceedings.
6As 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 9legal obligation, under NEPA, to notify those tribes.
10That didn't happen because the NRC decided 11that Walpole Island are Canadians. Wrong. They are 12on 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 15lands. There are treaties governing these people.
16JUDGE SPRITZER: Let me ask this. What, 17at what point do you contend the NRC was required to 18notify the tribe, and what were they required to 19notify them, what they were required to notify them 20of, and at what point in time?
21MS. COLLINS: Of the hearing and of the 22plan to, of Fermi's application. The tribe should 23have government-to-government status with the United 24States. They have treaty rights on the western basin, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 192and on the lands were Fermi are situated. The tribe 1is within the 50-mile radius. And so, therefore, they 2definitely should have standing, besides being a 3nation.
4JUDGE SPRITZER: As a practical matter, is 5the tribe aware of this proceeding now?
6MS. COLLINS: I beg your pardon.
7JUDGE SPRITZER: Is the tribe aware of 8this proceeding now, if you know?
9MS. COLLINS: Yes. The tribe is aware of 10the proceedings now, but --
11JUDGE SPRITZER: Have they moved, to my 12knowledge, they haven't moved to intervene. You may 13have 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 16intervene, at least not yet.
17MS. COLLINS: I beg your pardon.
18JUDGE SPRITZER: We don't have, at least 19not yet, an application from the tribe itself, to 20participate, do we? I haven't seen any such request 21in this proceeding.
22MS. COLLINS: No, in the Fermi 3, they are 23part of our request. In the Fermi 3 proceedings, they 24tried to be involved, and the NRC ruled that they were 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 193Canadians, 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.
3Some of their tribal members are our members.
4JUDGE SPRITZER: So you represent some 5members of the Walpole Nation?
6MS. COLLINS: Yes.
7JUDGE SPRITZER: Okay.
8MS. COLLINS: And the Boundary Waters 9Treaty, Article 3, sets out that the international 10joint commission should deal with any issues involving 11the waters. The thermal pollution that Sandy Bihn 12talked about, those waters, that is affecting Walpole 13Island as their fishing rights. I'm limited to three 14minutes.
15JUDGE SPRITZER: No, you're not.
16MS. COLLINS: But what I want to say, what 17I want to say is these people are on an island.
18Should anything happen, go wrong God forbid, at Fermi 192, they're doomed. In my mind, this is the same as 20committing genocide, if you have people that you're 21polluting their waters. They are in prevailing wind 22direction. The air is going there.
23Their fish are being polluted. Fermi 3 24has a plan to dredge the tributaries where the fish go 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 194up to spawn, which is another issue. But we're here 1to get a hearing so that we can air all these 2disputes.
3JUDGE SPRITZER: If we had such a hearing, 4what precise arguments would you present on behalf of 5your members who are also members of the Walpole 6Nation?7MS. COLLINS: That their lives and 8livelihood are endangered, would be further 9endangered. That this is a violation of international 10law and international treaty rights. And that they 11need to be a full partner in the hearings, not just 12us, not just CRAFT representing a few of their 13members.14JUDGE SPRITZER: Well, we can't, we can't 15make somebody a member. Normally what happens, 16whether it's an Indian tribe, a state part of the 17organization such as CRAFT, whatever, we don't make 18them 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 21parties, 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 24think they are inclined to do that in the near future?
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 1951MS. COLLINS: Since their past application 2was not respected, they did not apply. They have a 3representative here today that's observing this 4hearing, a tribal representative.
5JUDGE SPRITZER: I mean, they would have 6to meet, if they want to file contentions, they would 7have to meet all the requirements that your 8organization has to meet, and the joint Petitioners 9have to meet. But there's no impediment that I know 10of that would prohibit them from filing a petition and 11having a board, this Board presumably, review their 12contentions and decide if they're admissible or not.
13But until they actually come forward with 14some 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 17there anything more you wanted to tell us about this 18contention?
19MS. COLLINS: Well, just in our, the 20Motion 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 23to the Boundary Treaty, and other treaties, but I 24didn't say exactly what. And so, I want to ask the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 196Court that the Motion to Strike be eliminated because 1our arguments need to, are viable, and they need to 2stand, and we need a hearing.
3JUDGE SPRITZER: Well, you said that there 4were some members of the Walpole Nation that are 5members of your organization. Now, are there specific 6deficiencies that you've identified in Contention 2, 7either the original contention or in your reply, 8specific deficiencies in the environmental report 9related to the Walpole Nation, other than this failure 10to provide notice issue. Things that you content 11should have been included, should have been discussed 12in the environmental report concerning the Walpole 13Nation that weren't covered?
14MS. COLLINS: I'm not sure of your 15question.
16JUDGE SPRITZER: Okay. Are you familiar 17with the environmental report that was prepared?
18MS. COLLINS: Yes.
19JUDGE SPRITZER: Did you look through that 20to see if there was any discussion of the Walpole 21Nation concerns?
22MS. COLLINS: No, there was not. They, 23the environmental report talked about the black areas 24and there was no problem and things. But they did not 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 197talk about Walpole Island as under environmental 1justice. And they said, in the Motion to Strike, that 2I hadn't even brought in in the petition, in the 3original petition environmental justice issues.
4I had a whole contention on Walpole Island 5being excluded. And I'm not a lawyer, you know. But 6you would think, with the whole contention being about 7them being excluded, what else could that be besides 8environmental justice? But obviously, common sense is 9not part the items.
10JUDGE SPRITZER: Did you look in, all 11right.12JUDGE ARNOLD: My understanding is that 13the notice of opportunity for a hearing actually 14doesn'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 17Commission starts the review of the environmental 18report. And it's in, yes, 10 CFR 51, the NEPA part, 19that tribes have to be notified.
20But it just seems that, from the steps, 21you know, applications submitted, application accepted 22and the notification going into the Federal Register, 23and then the start of the NEPA review, that you 24wouldn't expect the tribes to be notified at the stage 25NEAL 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 1you tell me, did any group get a notice?
2MS. COLLINS: Yes. Eighteen, they 3notified 18 federally recognized by the United States 4Government tribes, including tribes that, three tribes 5in Oklahoma, two in Wisconsin, several around the 6State of Michigan.
7JUDGE ARNOLD: Were they notified of the 8opportunity to intervene, specifically?
9MS. COLLINS: Yes.
10JUDGE ARNOLD: Thank you.
11JUDGE SPRITZER: But the Walpole was not 12one of those 18. Is that correct?
13MS. COLLINS: I beg your pardon.
14JUDGE SPRITZER: The Walpole were not one 15of those 18?
16MS. COLLINS: Right. And Walpole Island, 17being within the 50 mile radius, was not notified.
18And then the staff, who was so cavalier as to write in 19their reply to strike that well, it was published in 20the Federal Register, therefore they should have 21known. Like the world reads the Federal Register to 22find out what's going on, or what's planned to go on.
23Pretty cavalier, I thought.
24JUDGE SPRITZER: Well, that is the law, to 25NEAL 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 1generally notice in the Federal Register is considered 2notice to the world, whether the world reads the 3Federal Register or not. Let's move on and hear from, 4all right, let's hear from the Applicant on this 5contention.
6MS. REDDICK: Thank you, Derani Reddick 7for the Applicant. CRAFT Contention 2 is 8inadmissible. It, essentially, alleges a deficiency 9that'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 12argument.
13First is that the challenge is premature, 14as 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 18proceeding in Crow Butte, that a similar challenge or 19a contention that was challenging the staff's NEPA 20process was not right because the staff had not 21completed its process.
22Second, even if that claim were right, the 23obligation to notify does not extend to any tribe, 24other than a U.S. federally recognized tribe, which 25NEAL 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, 1ultimately, this claim is really based on what the 2staff is obligated to do, which is still an ongoing 3process. There is no deficiency in the ER. The 4Petitioners do not allege any deficiency in the ER.
5In fact, the ER very specifically states 6that the Applicant, DTE, did notify several tribes.
7They sent letters to several tribes notifying them of 8the environmental process for the Fermi 2 license 9renewal application. And notifying them of the 10opportunity to participate in that environmental 11process. This is described Table 9.1-2. It's also 12described in pages C-15 to C-34 of the environmental 13report.14JUDGE SPRITZER: So was the Walpole one of 15those tribes?
16MS. REDDICK: Yes they were.
17JUDGE SPRITZER: They were. Okay.
18MS. REDDICK: Yes.
19JUDGE SPRITZER: And response, if any, did 20you get from them?
21MS. REDDICK: None.
22JUDGE SPRITZER: Let me ask this on 23Contention 2. Is there any mention in the 24environmental report of Native Americans hunting or 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 201fishing near the site, the Fermi 2 site?
1MS. REDDICK: I believe the environmental 2report discusses, in the environmental justice section 3that there are no subsistence fishing or farming that 4goes on within the vicinity of the site.
5JUDGE SPRITZER: How did they arrive at 6that determination?
7MS. REDDICK: I can't say offhand, Your 8Honor. With respect to the issue, though 9specifically, as you asked, the environmental justice 10discussion of the ER was not something that was cited 11in the Petitioners' original petition. This was only 12something they raised in the reply which is why the 13Applicant supported the staff's Motion to Strike on 14this point.
15JUDGE SPRITZER: Right. I understand your 16position on that. Let me ask a related question.
17Sorry, Mr. Smith can maybe point us to the, okay, you 18don't have anything else to add to my earlier 19questions at this point?
20MS. REDDICK: With respect to your earlier 21question, the ER does state that there are no Indian 22reservations or Native American controlled areas 23within the U.S. portion of the 50-mile radius of the 24site. And that is page 3-5. And the Walpole Island, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 202it does talk about the Walpole Reserve being a parcel 1of land that extends beyond, beyond that region.
2JUDGE SPRITZER: Okay, on environmental 3justice, I seem to remember there was an issue at one 4point; maybe it's been resolved, whether the ER had to 5discuss environmental justice at all. But I take it 6your 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 9their issue, perhaps, than yours. Why don't we hear 10from the staff on Contention 2.
11MR. LINDELL: Your Honor, Joseph Lindell 12representing the NRC staff. First I'd like to just 13say that, as the Applicant stated, the contention 14needs to challenge something in the application, 15whether safety related or environmental. And here, 16it's hard to see the challenge to the application.
17Let me then, try then to explain a little 18bit about the process here so, you know, after the 19application is, you know, an accepted document, there 20is a notice published in the Federal Register of the 21opportunity to intervene.
There's, now, I don't 22believe that, you know, that notice is anything but a 23Federal Register notice. We don't send out, you know, 24specific notices of that opportunity to particular 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 203tribes or other individuals.
1Now, what we do do is for the 2environmental scoping process, we do send out a notice 3providing them the opportunity to participate, to 4federally recognized tribes, though you know, the 5Walpole Island First Nation is not listed in the list 6of federally recognized tribes. We also contact 7individual tribes per the National Historic 8Preservation Act. And that's another process that --
9JUDGE SPRITZER: When does that occur?
10MR. LINDELL: I'm not positive of the 11exact thing. Someone, hopefully, will correct me if 12I'm wrong. I believe that that, that we did already 13send out the notices for the both the National 14Historic Preservation Act and for the, and we did also 15did the scoping process.
16JUDGE SPRITZER: Now, is that something 17the staff does because it's required to, or simply as 18a matter of courtesy, giving the tribes an extra bit 19of notice that maybe isn't required by law?
20MR. LINDELL: In our regulations, we are 21required to send out a notice to Indian tribes for the 22environmental scoping process.
23JUDGE SPRITZER: All right. I take it 24it's your position that you weren't required to do 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 204that with respect to the Walpole?
1MR. LINDELL: We were not required to do 2that with respect to the Walpole.
3JUDGE SPRITZER: Because?
4MR. LINDELL: Number one, they're not a 5federally recognized tribe. And number two, as 6actually the Fermi 3 Board recognized in a prior 7proceeding, that our NEPA process, according to our 8Regulations 51.1 and 51.10, it doesn't look at 9environmental affects on foreign nations. And, you 10know, Walpole Island being in Canada, would not, 11indeed, be included.
12However I want to stress that, you know, 13the Walpole Island First Nation had, indeed, not been 14excluded, you know, from the EIS preparation process.
15Because, actually toward the end of September, the 16chief of the Walpole Island First Nation sent the NRC 17a letter, asking to review the license renewal process 18to ensure that its rights to hunt and fish were, 19indeed, protected.
20And the NRC responded to this letter and 21the response, essentially, raised three things.
22First, they provided general information about how the 23license renewal process works. And invited, most 24importantly, invited Walpole Island to comment on the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 205draft supplemental environmental impact statement when 1that is issued in mid-2015. And also pointed, just 2pointed out that DTE stated that it has no plans to 3alter Fermi 2's current operations during the license 4renewal period.
5So we would say that, you know, although 6we were not required and did not contact the Walpole 7Island initially, we have, you know, responded to 8their request to be included, and we welcome, you 9know, their comments on this process.
10JUDGE SPRITZER: Let me just ask this.
11Suppose they had filed a Motion to Intervene in this 12proceeding, is there anything that would exclude them?
13Would the fact that they're not an American listed 14tribe make a difference?
15MR. LINDELL: No, no. They would not be 16excluded from the process, from the proceeding. I 17mean, they would have to, you know, they would have to 18show standing as, you know, any other group. But, you 19know, they would not certainly be automatically 20excluded. I'd like to also point out, though, that 21they don't have automatic standing.
22You know, our regulations do provide for 23that in very specific instances. That, number one, 24they have to be a federally recognized tribe, and 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 206number, the action, the federal action has to be 1taking place on the tribe's land, which is not the 2case here. But they certainly, you know, could have 3filed a Petition to Intervene, and you know, and that 4would be looked at as any other Petition to Intervene.
5JUDGE SPRITZER: With respect to the 6environmental 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 10context of a non, a tribe whose members may use land 11or water, whatever, in the vicinity of a nuclear 12facility, but the tribe itself is not an American 13federally listed Indian tribe?
14MR. LINDELL: Your Honor, I don't know the 15answer to that specific question. What I can say is 16that CRAFT would have to, you know, demonstrate that 17the Walpole Island is, indeed, such a minority 18population that would be disproportionately impacted.
19And it's worth noting, at least, that what the ER 20concluded with regard to environmental justice is that 21there will be no significant offsite impacts created 22by the license renewal of Fermi 2.
23And they base this conclusion on the 24analysis of all of the various other Category 2 25NEAL 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, 1also, about previous radiological environmental 2sampling. So I would say that, you know, aside from 3the fact that CRAFT has not really made, you know, 4provided facts to support, you know, the tribe's 5status as, you know, sort of a low-income population 6group that has to be examined, nonetheless, I think 7that, you know, the ER's conclusions would extend them 8to, as well.
9JUDGE SPRITZER: Let me ask this. Does 10the staff, as I said earlier, I seem to remember some 11debate some time ago as to whether an ER was required 12to address environmental justice. Has that now been 13resolved? Is it clear that the ER should consider 14environmental justice issues?
15MR. LINDELL: Yeah, so if you look at 16Table B(1), which talks about the Category 1, Category 172 issues.
18JUDGE SPRITZER: Sure.
19MR. LINDELL: So it does list 20environmental justice as a Category 2 issue such that, 21you know, the ER then would look at that. And then 22the staff, as well you know, in the environmental 23impact statement it prepares.
24JUDGE SPRITZER: Okay.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 208MR. LINDELL: I think --
1JUDGE ARNOLD: I'm not sure that's 2correct. I know the ER is required to provide 3demographic input to the environmental justice report, 4but I believe somewhere in 10 CFR, in the Federal 5Register the policy on environmental justice, it 6outlines what the requirements are.
7MS. COLLINS: I have it here. Executive 8Order 12898, published in the Federal Register, Volume 959, No. 32, which I'm sure you've all read, states 10that each Federal agency shall conduct its programs, 11policies and activities in the manner that ensures 12such programs do not have the effect of excluding 13persons from participation because of their race, 14color or national origin. That's Section 2.2.
15Section 5.5(b) says Federal agencies must 16provide translations of their documents for limited 17English speaking populations. I just thought I would 18throw that in because most people, a lot of people do 19not speak English on Walpole Island.
20JUDGE SPRITZER: Okay, thank you. Does 21the staff have anything else to add on this 22contention?
23MR. LINDELL: Your Honor, I would say just 24that, you know, in its reply, also, CRAFT raised 25NEAL 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 2seen any factual support for any violation, you know, 3of that Executive Order or the Michigan Executive 4Directive, which they also raised, which places 5requirements on the state Department of Environmental 6Quality, the Mich igan state department. But it7doesn't place any obligations on anyone else, as far 8as I can tell.
9And, other than that, and also, I did look 10the treaties that are mentioned in the petition and 11the reply, and I didn't see any particular, you know, 12obligations in those treaties that the, that the staff 13was, you know, not in compliance with relative to this 14license renewal proceeding.
15JUDGE SPRITZER: Let me ask this. Does 16the staff have a position on the SAMA analysis insofar 17as whether the SAMA analysis is required to consider 18environmental and public health impacts beyond the 19border 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 23it would be looking at populations outside 50 miles, 24the clean ups of contamination, using U.S.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 210requirements. So it is modeling the consequences of 1an accident anywhere within that 50-mile radius around 2the plant.
3But you know, in terms of I think this 4particular issue, for purposes of the SAMA in terms of 5your dose, it doesn't, you status doesn't matter in 6terms of what the dose cost conversion is of persons 7or the person for purposes of the SAMA.
8JUDGE SPRITZER: So if a 50-mile radius 9extends into Canada, it doesn't change how you do the 10analysis?
11MR. HARRIS: It does not change how you do 12the 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 15the population within 50 miles irrespective of the, 16whether that location was within the United States or 17Canada or the Walpole Island.
18JUDGE SPRITZER: Okay. So DTE did include 19Canadians within 50 miles in its estimated cost of a 20severe accident?
21MR. SMITH: Absolutely.
22JUDGE SPRITZER: All right. Now someone 23just pointed out to me that the ER, at page D-96, 24lists only 560 people northeast of the site?
25NEAL 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 1quadrant, yes. And that's in the --
2JUDGE SPRITZER: Which page are you on?
3MR. SMITH: D-96.
4JUDGE TRIKOUROS: Ms. Collins, while 5they're looking at that, the United States does 6recognize the Walpole Nation, you said --
7MS. COLLINS: As a United States federally 8recognized tribe.
9JUDGE TRIKOUROS: What about Canada? Do 10they recognize the Walpole Nation as a recognized 11tribe? Do they have such a list there?
12MS. COLLINS: They're on the imaginary 13line that says they're in Canada. But --
14JUDGE TRIKOUROS: So the Canadian would 15have them on their --
16MS. COLLINS: No, they were, well they're 17not Canadians. They're unseated land. They ran for 18safety when troops were, you know, gathering up, well, 19it's unseated land.
20JUDGE TRIKOUROS: So they're listed status 21is the same with Canada as it is with the United 22States, basically. Is that what you're saying? Sort 23of unlisted in either country.
24MS. COLLINS: Recognized by Canada, yes.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 212JUDGE TRIKOUROS: I'm sorry.
1MR. SHERMAN: They are recognized by 2Canada.3MS. COLLINS: And they --
4JUDGE TRIKOUROS: They are recognized by 5Canada.6MS. COLLINS: They wrote, I have a copy of 7a letter that they wrote to the Canadian government 8objecting that, because they weren't in, allowed in 9the Fermi 3 proceedings. But the Canadian wrote back 10and said oh well, that's the United States business, 11and we're not getting into it.
12They 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.
17I don't, but they, at one time they asked the Canadian 18government, complained to them and asked them to 19intercede on their behalf, because the NRC would not 20let them be a part of the Fermi 3.
21And the, I have a copy of the letter that 22the 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 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 213maybe the international joint commission may, I don't 1know. We'll see.
2JUDGE TRIKOUROS: Okay, thank you.
3JUDGE SPRITZER: Mr. Smith, I'm just 4trying to figure out what this, I'm looking at Table 5D.1-22 of the Applicant's environmental report. This 6is Appendix D, and the line that says with direction 7northeast has 547 people within zero to 10 miles, and 8then another 13 at 41 to 50 miles, for a total of 560.
9Is that the direction, or radius I guess you would 10call it that would include the, what is it called 11Walpole Island?
12MR. SMITH: I don't know that, I don't 13know that it is. It doesn't appear to be.
14JUDGE SPRITZER: Okay. Where is Walpole 15in relation?
16MR. SMITH: Well sir, if you look on page 173-19 or 3-20.
18JUDGE SPRITZER: Okay.
19MR. SMITH: It's just, it's a figure in 20the map, in the ER that shows the 50-mile radius. The 21Walpole Island is on the, sort of the northeast, 22north, northeast piece of Lake St. Clair.
23JUDGE SPRITZER: Okay. This is page 3-19 24or --25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 214MR. SMITH: Page 3-19 of the ER.
1JUDGE SPRITZER: So they might be beyond 2the 50-mile --
3MR. SMITH: No. I mean, the ER on page 43.3-5 says that, as illustrated in Figure 3.0-6, which 5is on page 3-20, a small portion of Walpole First 6Nation reserve northeast of the Fermi site in Ontario 7Canada lies just inside the 50-mile radius.
8JUDGE 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 11contentions which are Contentions 7, 8, 9, 10 and 11.
12Mr. Schonberger.
13MR. SCHONBERGER: Thank you, Chairman.
14David Schonberger, for the record, designated 15representative for CRAFT for Contention 7, 8, 9, 10 16and 11. So, reserving my rebuttal time, let me first 17take your questions.
18JUDGE TRIKOUROS: All right. NUREG, well, 19the license renewal application aging management 20program for this subject of, the subject of inspecting 21and monitoring for leaks, which is your Contention 7.
22The aging management, the license renewal application 23indicates that it implements NUREG 1801 without 24exceptions. Yet you didn't, specifically, go in in 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 215your contention and say this is what's wrong with 1that. 2So we're kind of in a situation where we 3have your statement and your basis that says they 4don't adequately do this job. We don't really, 5specifically, know why you have that language in 6there.7MR. SCHONBERGER: So let me clarify for 8the panel where we're coming from. We allege that, 9that because both, because full cathodic protection 10coverage has not been implemented at Unit 2, by the 11Applicant's own admission, and that the Applicant 12admits that it could do better, and more improvements 13are planned to increase system coverage.
14So these are explicit notions in the LRA, 15and the Applicant, therefore, acknowledges two 16important facts which support our contention. First, 17that the Applicant acknowledges that it has failed to 18fully install the best available system to a degree 19that CRAFT Alleges would qualify as in compliance with 20as low as reasonably achievable standards, LRS 21standards for buried and underground piping leakages 22and dose exposure to the public.
23Because, by definition, as low as 24reasonably achievable has not been implemented. It is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 216reasonably 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 3petition, that it is unable to prove an undefined 4reasonable assurance standard by a clear preponderance 5of evidence as required by Part 54 pertaining to the 6buried and underground piping act.
7Apparently, the Applicant believes that it 8can take advantage of the regulator's unclear and 9poorly defined standards for establishing reasonable 10assurance. And the Applicant appears to believe that 11the agency will approve whatever the Applicant submits 12for consideration. And that the agency will dismiss 13whatever reasonable assurance standards that the 14Petitioner would allege that might be necessary in 15order to achieve adequate protection as mandated by 16the AEA, such as full system coverage, full cathodic 17protection.
18JUDGE TRIKOUROS: All right, thank you.
19JUDGE ARNOLD: Well, in the amps, for 20instance on page 24 of the petition. Petitioner 21maintains that neither the amp program for buried 22pipes and tanks, nor the inspections and tests 23performed as part of the team maintenance and 24operation provide reasonable assurance that the 25NEAL 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 1specific 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 5specify that in order to protect public safety the 6aging management program must be enhanced or 7supplemented with a more robust inspection system, 8cathodic protection, and so forth. We are narrowing, 9narrowing the contention to full cathodic protection.
10And the specificity requirements that the 11panel would expect as part of Part 302.309(f)(i)(5) 12and (f)(I)(6). We claim that our concise statement 13satisfies the requirements for a pro se Petitioner 14based on forty years of case law precedent going back 15to Wolf Creek, 1975, where specificity for pro se 16Petitioners is not expected to the same degree as it 17is expected for counseled Petitioners.
18So our concise statement consistent with 19Part 2.309(f)(I)(5) should be considered sufficient 20with regard to that the aging management program must 21be enhanced or supplemented with. No. 2, cathodic 22protection, and we allege that full cathodic system 23coverage would be necessary in order to comply with a 24reasonable assurance standard.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 218JUDGE ARNOLD: Are you saying that every 1buried component for which there is an aging 2management program should include full cathodic 3protection?
4MR. SCHONBERGER: Please repeat that.
5JUDGE ARNOLD: Are you saying that every 6buried pipe in the system that is required to be 7covered with an aging management program should, as 8part of that aging management program, include 9cathodic protection? Or are you just saying the 10systems that have it now should be more complete?
11MR. SCHONBERGER: Our contention alleges 12that full cathodic protection coverage has not been 13implemented to the extent that it could be, as the 14Applicant acknowledges. And that the Applicant 15acknowledges that it has plans to increase system 16coverage. And, to the extent that they acknowledge 17that, we allege that our definition of reasonable 18assurance would require for adequate protection, that 19there must be full system coverage to ensure that 20ALARA standards are met, by definition, as low as 21reasonably achievable.
22If the Applicant admits it's reasonably 23achievable, then it should be implemented as part of 24the application. And not presumed that the can is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 219kicked down the road.
1JUDGE ARNOLD: Okay. I understand.
2JUDGE SPRITZER: Okay, let's move.
3JUDGE 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 6arbitrary and scientifically inappropriate emergency 7planning zone probabilistic models for the Fermi site.
8And, as a result, that a radiological release will 9affect only a relatively small area.
10Now, just a few minutes ago, we heard that 11the SAMA analysis looks at 50 miles around the plant, 12not just to the emergency planning zone. So could you 13be more specific as to how a large EPZ would change 14the outcome of the SAMA analysis?
15MR. SCHONBERGER: Yes, Judge Arnold. It 16pertains to the evacuation time estimate calculations.
17There's a sequential logic going on here in our 18contention, which starts with that the Applicant's 19meteorological model is bogus and knowingly 20unreasonable, knowingly inaccurate.
21And fundamentally, you can see for 22yourself that this is not the state of Hawaii. It's 23not the state of Florida. It's clearly a location in 24this country where we get severe winter snow 25NEAL 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.
1So, In January --
2JUDGE SPRITZER: We're not coming back in 3January.4MR. SCHONBERGER: Fair enough. But 5Chairman, we have to live here. And we all live here 6through the winter. And we allege that the 7Applicant's SAMA analysis is deficient, based on a 8sequential logic that goes all the way back to an 9unrealistic meteorological assumption that, as we 10state explicitly, that the presumption is that there 11will, for evacuation time estimate determination, that 12there would be no more than a 20 percent impairment of 13evacuation time.
14In fact, the Applicant has reduced that 15maximum impact of snow conditions. In the updated 16modeling, they've actually reduced it to 20 percent.
17And we allege that there's no rational basis for 18alleging only a 20 percent maximum impairment due to 19severe snow conditions in a Michigan winter situation.
20So if you start with that, it provides the basis for 21an inaccurate and unreasonable evacuation time 22estimate and emergency plan.
23Which we acknowledge, we acknowledge that 24the emergency plan is outside the scope of the, this 25NEAL 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 1clarify for the board, our contention is not to allege 2deficiency of the emergency plan or the evacuation 3time estimate as it pertains to the emergency plan.
4Our contention is based on an allegation of an 5inaccurate, unreasonable SAMA analysis. That through 6sequential logic, to continue an inaccurate evacuation 7time estimate creates an inaccurate projected offsite 8dose exposure within the 50-mile radius.
9Within the 50-mile radius, the evacuation 10time estimate is fundamental to determining dose 11exposure to the public. So it is not sufficient to 12claim the 50-mile radius of consideration is all that 13is necessary to have that point covered. The 14evacuation time estimate is fundamental to the outcome 15of dose exposure to the public within the 50-mile 16radius.
17Different evacuation time estimate models 18would result in different dose exposure estimates.
19And different dose exposure estimates would yield 20different projected cost impacts.
21JUDGE TRIKOUROS: Now, you're talking 22about dose estimates in the 10-mile EPZ, correct?
23You're saying the 10-mile EPZ is not being evacuated, 24is being evacuated too quickly than would occur in 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 222reality 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 3saying?4MR. SCHONBERGER: I would say that, that 5an accurate evacuation time estimate of whatever 6radius we're talking about is fundamental to 7determination of the projected probability weighted 8economic costs and consequences for a severe accident.
9JUDGE TRIKOUROS: As a corollary to that, 10you also seem to be saying in this pleading the 11evacuation zone should be not 10 miles, but 50 miles.
12Is that correct? It seems to be what you're saying.
13MR. SCHONBERGER: Indeed. We do, we do 14allege, we do allege an out-of-scope argument to 15support as background the in-scope argument.
16JUDGE TRIKOUROS: Okay.
17JUDGE ARNOLD: Can I make a quick question 18to Applicant? I just want to ask in your SAMA 19analysis, your evacuation times, do you provide 20justification of why you use specific times and 21specific decrement for winter weather?
22MR. SMITH: Yes. The evacuation time 23estimate for Fermi 2 was updated in 2012. The mean 24speed was 12.8 meters per second. That's what the25NEAL 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 1conservatively looked, lowered that to 10 meters per 2second as the average evacuation time. And then, as 3a sensitivity case, we looked at either a 15 meter per 4second or a 5 meter per second evacuation time, and 5found that it doesn't have significant effect on the 6results.7JUDGE ARNOLD: Okay. Have you looked at 8how they came up with their evacuation time? And if 9so, do you have any specific, you know, statements of 10what they did wrong? Or are you just saying it just 11can't be done that quickly?
12MR. SCHONBERGER: Judge Arnold, I, the 13answer to that question goes back to the allegation, 14sequentially, that a 20 percent maximum impairment of 15evacuation time estimates in a severe, due to a severe 16winter condition, that that is unsupportable and 17unreasonable, and contaminates, sequentially, all 18further probability weighted consequence 19determinations in the application.
20JUDGE ARNOLD: I think I understand.
21Nick?22JUDGE TRIKOUROS: Yes, you're also 23questioning the method of analysis, correct? The rad 24dose program?
25NEAL 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 1used the rad dose software program. We used that as 2a background to explain, to explain where we're coming 3from.4JUDGE TRIKOUROS: But are you specifically 5challenging the use of the straight line Gaussian 6distribution model versus a variable trajectory plume 7dispersion? Is that, are you challenging that, or are 8you -- 9MR. SCHONBERGER: No, no, to the contrary.
10We acknowledge that a variable trajectory plume 11distribution model is assumed in the rad dose 12methodology. And our point of raising that issue is 13to allege that the 10-mile EPZ should be expanded to 14go hand-in-hand, consistent with a variable trajectory 15plume distribution model.
16But we recognize that that portion of the 17contention is outside the scope of a Part 51 or Part 1854 license renewal proceeding. That's not, the point, 19we did not bring that information into the contention 20in order to dispute that.
21JUDGE ARNOLD: Okay, Applicant, on this, 22for the evacuation, the 20 percent impairment factor, 23was that a maximum factor? You know, that the 24evacuation's going to take 20 percent longer as the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 225greatest, or is that used more like it's a 1representative of average over all of winter?
2MR. SMITH: I'm not that familiar with the 3specifics of the Fermi 2 evacuation time estimate.
4But again, what I can say is that for purposes of the 5SAMA analysis, we took the mean speed from the 6evacuation time estimate, which was 12.8 meters per 7second, and we modeled 15, 10 and 5. So we looked at 8something that is greater than a 50 percent 9impairment. And we found that that does not have much 10of an effect on the outcome.
11In 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 15our SAMA analysis.
16And we also modeled for, just to finish 17the assessment of sensitivity that we did in the SAMA 18analysis, we also looked at different fractions of the 19population that do evacuate, between 90 and 99.5 20percent of the population. So we modeled both broad 21changes in evacuation time, as well as broad changes 22in the percentage of the population that, in fact, 23evacuates.
24JUDGE TRIKOUROS: Thank you. Do you know 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 226if the evacuation time analysis too into account this 1shadow evacuation that's discussed in the pleading?
2MR. SMITH: I don't know that the 3evacuation time estimate did, in particular. But part 4of the way in which we address that is through the 5sensitivity analysis in the SAMA. And so we did, as 6I just mentioned, we varied the fractions of the 7population that is assumed to evacuate.
8JUDGE TRIKOUROS: You didn't look at zero 9evacuation, did you?
10MR. SMITH: We did, not for the purposes 11of the SAMA, no.
12JUDGE SPRITZER: Okay, does the Applicant 13anything else to add on this group of contentions?
14MR. SMITH: I'm sorry, certainly. I think 15we've discussed the SAMA portion of the contention in 16detail. The one thing that I would add is that the 17Fermi 2 SAMA analysis does use the MAX code, which 18imbedded in that is a Gaussian straight-line air 19dispersion model. So I just wanted to clarify that, 20in case there was any question on the Board's part.
21I think the one part we haven't discussed 22is going back to the aging management plan for buried 23piping and tanks. And, you know, I first want to note 24that this contention, I'm sorry, our program was based 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 227on industry guidance on the NRC's generic aging 1lessons learned report. And the inspections 2corrective actions and assessments that we have 3performed and would perform are addressed in the aging 4management plan.
5And we also, specifically, incorporate 6Fermi's unique operating experience as it relates to 7buried piping integrity at the Fermi site. And there 8was also some discussion about the cathodic 9protection. And as we do note in the aging management 10plan, that we have plans to expand that program.
11And just for purposes of factual 12information, we currently have on the order of 78 13percent coverage of piping. By 2015, that coverage 14will be up to 93 percent of piping will be covered by 15cathodic protection. And remaining percentage is in 16piping that's anticipated to be replaced before long.
17And so that will, at that point, have effectively 100 18coverage of buried piping at the Fermi site.
19So to the extent there's anything in that 20piece of the contention, I think that explains it.
21That's not something that's going to be an issue once 22we get to the license renewal term, which of course is 23the focus of our aging management plan. It doesn't, 24it's not required to be implemented until we get to 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 228the license renewal period.
1I think the rest of that has been, 2primarily, addressed in our briefings. I don't think 3I need to expand in great detail. Only to note that 4a number of their specific concerns related to buried 5tanks, the site doesn't have any buried tanks in this 6system. Other concerns of theirs with respect to what 7programs are covered, what buried tank programs are 8covered, those are covered by other amps.
9So they haven't demonstrated that there's 10any system that is not covered by the program, or any 11way in which the program itself is deficient. Thank 12you very much.
13JUDGE SPRITZER: The NRC staff, do you 14have anything to add on these contentions?
15MS. KANATAS: Good afternoon, Your Honors, 16this is Cathy Kanatas for the staff. I don't have 17much to add, Your Honors, but I would just like to 18reiterate that, in terms of Contention 7, DTE's 19application provides for the buried and underground 20piping amp. And it provides for maintaining the 21intended functions of the structure's systems and 22components that are within the scope of license 23renewal.24And, as we've heard multiple times, it is 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 229consistent with GALL Rev. 2. And the Commission has 1specified in Seabrook, CLI 12-5, that if an amp is 2consistent with GALL, it is assumed to be adequate.
3CRAFT wants more, including full cathodic protection, 4but it does not indicate why more is needed or 5required. Therefore, it does not raise an adequately 6supported or genuine dispute with the application.
7In terms of the other claims raised 8related to ALARA and leaking, as well as reasonable 9assurance claims, the Commission has rejected similar 10claims in Pilgrim, CLI 10-14, 71 NRC 449. Those raise 11currently operating issues that are outside the scope 12of this proceeding. In terms of the SAMA, I think 13we've covered that quite thoroughly today.
14But again, as I think the Commission has 15repeatedly stated, it's not enough to point to the 16SAMA 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 19emergency planning and EPZ are outside the scope of 20this 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 24declaration in a different license renewal proceeding, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 230and don't tie anything in that declaration to anything 1in the DTE SAMA analysis.
2Likewise, for the economic consequences.
3They cite to Mr. Channon's declaration in the Pilgrim 4license renewal proceeding for the proposition that 5MAX and MAX 2 are not valid, where they provide no 6support for that claim; no tie to anything in the 7declaration from Mr. Channon to DTE's SAMA. Nor do 8they explain why the CRAC-II from the Sandia report 9cited in their petition is more appropriate or 10reasonable. Mr. Harris covered some of the 11conservatisms in the CRAC-II earlier today, so I won't 12repeat that. That's it. Thank you.
13JUDGE SPRITZER: Very well. All right, 14we'll give Petitioners just an additional three 15minutes for rebuttal. But let's keep it to three 16minutes, because we do need to get out of here.
17MR. SCHONBERGER: So, as you just heard, 18as the Board panel just heard, the staff's position is 19indistinguishable from the Applicant's. We believe 20that the, a public hearing is necessary in order to 21provide an alternative perspective that we believe 22we've satisfied the requirements for today in order to 23represent the public interest which we attempt to do 24in a pro se fashion.
25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 231With indistinguishable argument proffered 1by the staff relative to the Applicant, somebody needs 2to represent the public interest, and we attempted to 3do that.
4JUDGE SPRITZER: All right, very well. I 5think we understand your position on that, and this 6group of contentions. Unless my colleagues have 7anything further, I think we're ready to conclude.
8The 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 11gone by then.
12Thank you for your participation today.
13It's been very educational for us and, hopefully, some 14value to you all, as well. And we will try and get a 15ruling out as soon as we can. Our official deadline 16is 45 days. Though, the fact that we have the holiday 17season upcoming, probably that's not --
18MR. LODGE: Your Honor, we assume there 19will be a transcript generated.
20JUDGE SPRITZER: This gentleman to our 21left is here to prepare that, and if you want a copy 22contact him.
23MR. LODGE: And we'll have the opportunity 24to make corrections?
25NEAL 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 2that's of concern, let us know. But we don't, we're 3not going to have a formal period for transcript. We 4don't usually do that with, this isn't legal argument.
5So, as I said, we'll try and get the 6ruling out. It's realistic to assume we probably 7won't meet the 45 days, but by end of January would be 8realistic. Thank you. Unless there's anything else, 9anybody have any questions? Yes sir.
10MR. SHERMAN: Is there any way we can get 11a copy of the audio? I would love to hear it.
12JUDGE SPRITZER: There is really no, there 13really is not, there's a transcript that, as I said, 14this --15MR. SHERMAN: Okay, we didn't record the 16audio?17JUDGE SPRITZER: But I don't know that he 18records the audio per se. I'm not usually --
19MR. SHERMAN: That's fine. The transcript 20will be fine.
21JUDGE ARNOLD: Well, if you wait until he 22gets off the earphones, and ask him, he might be able 23to provide you with it.
24MR. SHERMAN: Thank you.
25NEAL 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 2him.3MR. SHERMAN: Very good.
4JUDGE SPRITZER: Thank you. We're 5adjourned.
6(Whereupon at 4:41 p.m. the afternoon 7session meeting was concluded.)
8910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433