UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

In the Matter of 

DTE ELECTRIC COMPANY 

(Fermi Nuclear Power Plant, Unit 3) 

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Docket No. 52-033-COL 

CLI-15-01

MEMORANDUM AND ORDER

Today we rule on the Atomic Safety and Licensing Board’s request to review, sua 

sponte, issues relating to the environmental impacts of the proposed transmission-line corridor 

for Fermi Unit 3.1

 For the reasons set forth below, we deny the Board’s request for sua sponte

review. In addition, we deny Intervenors’ petition for review of the Board’s dismissal of 

Contention 23, also relating to transmission-corridor environmental impacts.2

 

1

 LBP-14-9, 80 NRC __ (July 7, 2014) (slip op.). 

2 Intervenors’ Petition for Review of Atomic Safety and Licensing Board’s Dismissal of 

Contention 23 for Lack of Timeliness (Oct. 6, 2014) (Petition). Intervenors are Beyond Nuclear, 

Citizens for Alternatives to Chemical Contamination, Citizens Environmental Alliance of 

Southwestern Ontario, Don’t Waste Michigan, Sierra Club, Keith Gunter, Edward McArdle, 

Henry Newman, Derek Coronado, Sandra Bihn, Harold L. Stokes, Michael J. Keegan, Richard 

Coronado, George Steinman, Marilyn R. Timmer, Leonard Mandeville, Frank Mantei, Marcee 

Meyers, and Shirley Steinman. 
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I. BACKGROUND 

This proceeding concerns DTE’s combined license application to construct and operate 

a GE-Hitachi Economic Simplified Boiling Water Reactor (ESBWR) on the Fermi site in Monroe 

County, Michigan.3

 Intervenors sought a hearing and originally proposed fourteen contentions; 

the Board granted a hearing and admitted four of those contentions.4

 Since their entry into the 

proceeding in July 2009, Intervenors have proposed several additional contentions, including 

Contention 23, their challenge to the NRC Staff’s compliance with the National Environmental 

Policy Act of 1969 (NEPA) as it pertains to the anticipated environmental impacts of the 

proposed transmission line corridor for Fermi Unit 3, the subject of our decision today. 

Intervenors first proposed Contention 23 after the Staff issued the draft Environmental 

Impact Statement (EIS) for DTE’s application.5

 Later, after the Board dismissed the contention 

 

3 See Detroit Edison Company; Notice of Hearing, and Opportunity To Petition for Leave To 

Intervene and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards 

Information and Safeguards Information for Contention Preparation on a Combined License for 

Fermi 3, 74 Fed. Reg. 836 (Jan. 8, 2009). 

4

 The Board admitted Contentions 3, 5, 6, and 8. LBP-09-16, 70 NRC 227, 306 (2009). In three 

separate opinions, the Board granted summary disposition of Contentions 3, 5, and 6 in favor of 

DTE. See Order (Granting Motion for Summary Disposition of Contention 3) (July 9, 2010) 

(unpublished); Order (Granting Motion for Summary Disposition of Contention 5) (Mar. 1, 2011) 

(unpublished); LBP-12-23, 76 NRC 445, 452 (2012) (among other things, granting summary 

disposition of Contention 6). After an evidentiary hearing, the Board ruled on the merits of 

Contention 8 in favor of the NRC Staff and ruled on the merits of a new admitted contention 

pertaining to quality assurance, Contention 15, in favor of DTE. LBP-14-7, 79 NRC 451 (2014). 

In a separate decision, we denied Intervenors’ petition for review of the Board’s ruling on the 

merits of Contention 15. See CLI-14-10, 80 NRC __ (Dec. 16, 2014) (slip op.). 

5 See Motion for Resubmission of Contention 10, to Amend/Resubmit Contention 13, and for 

Submission of New Contentions 17 through 24 (Jan. 11, 2012), at 1-2, 41-52 (Original 

Contention 23). 
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as late, Intervenors resubmitted Contention 23 in response to the Staff’s final EIS.6

 The Board 

again dismissed the contention as late.7

 In Contention 23, both as originally proposed and 

resubmitted, Intervenors challenged the adequacy of the Staff’s consideration of the 

environmental impacts of building new transmission lines for Fermi Unit 3.8

Although the Board did not admit Contention 23, it found some merit to Intervenors’ 

arguments.9

 In its first ruling dismissing the contention, the Board suggested that the contention 

might have been admissible if not for its tardiness and recommended that the Staff consider 

Intervenors’ concerns when preparing the final EIS.10 In its second ruling, the Board again 

found the contention to be unjustifiably late, but it reiterated its view that Intervenors had raised 

“a substantial . . . issue that might have been admissible had it been timely filed.”11 The Board 

further observed that the adequacy of the Staff’s review of transmission-corridor impacts might 

be appropriate for the Board’s consideration sua sponte, pursuant to 10 C.F.R. § 2.340(b).12 

The Board thus sought briefing from the parties on the appropriateness of the Board’s taking 

 

6 See LBP-12-12, 75 NRC 742, 776-80 (2012); Motion for Resubmission of Contentions 3 and 

13, for Resubmission of Contention 23 or its Admission as a New Contention, and for Admission 

of New Contentions 26 and 27 (Feb. 19, 2013), at 2, 21-53 (Resubmitted Contention 23). 

7

 Licensing Board Memorandum and Order (Denying Intervenors’ Motion for Resubmission of 

Contentions 3 and 13, for Resubmission of Contention 23 or its Admission as a New 

Contention, and for Admission of New Contentions 26 and 27) (Apr. 30, 2013), at 21 

(unpublished) (Second Board Ruling). 

8 Compare Original Contention 23 at 41-52, with Resubmitted Contention 23 at 21-53. 

9 See LBP-12-12, 75 NRC at 776-80; Second Board Ruling at 22-23. 

10 LBP-12-12, 75 NRC at 776, 780. 

11 Second Board Ruling at 23. 

12 See id.
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review of the issues raised in Contention 23 on its own motion.13 Intervenors supported sua 

sponte review; DTE and the Staff opposed it.14

As it considered the parties’ views on sua sponte review, the Board proceeded to 

hearing on Intervenors’ then-pending admitted contentions and issued an initial decision ruling 

on those contentions in favor of the Staff and DTE.15 The Board returned to the sua sponte

issue shortly thereafter. In LBP-14-9, the Board determined that the issues raised in Contention 

23 merited sua sponte review.16 In accordance with section 2.340(b), the Board requested our 

approval to undertake that review.17

We now have before us the briefs that we invited from the parties in response to the 

Board’s sua sponte request,18 as well as a motion from the Nuclear Energy Institute (NEI) to file 

 

13 Id. at 23-24. 

14 Intervenors’ Memorandum in Support of Sua Sponte ASLB Referral of Transmission Line 

Corridor NEPA Compliance Issue (May 30, 2013); Applicant’s Brief Opposing Sua Sponte

Review of Environmental Impacts in the Offsite Transmission Corridor (May 30, 2013); NRC 

Staff Response to Board Order Concerning Proposed Sua Sponte Review of Contention 23

(May 30, 2013). 

15 See supra note 4. 

16 LBP-14-9, 80 NRC at __ (slip op. at 4). 

17 Id. at __ (slip op. at 16-17, 58). 

18 Applicant’s Opposition to Sua Sponte Consideration of Transmission Corridor Issues (July 28, 

2014) (DTE Brief); NRC Staff Response to Commission’s Order Inviting Comments on the 

Board’s Request for Approval to Conduct Sua Sponte Review of Contention 23 (Transmission 

Lines) (July 28, 2014) (NRC Staff Brief); Intervenors’ Motion for Commission Approval of LBP14-09 (Memorandum Determining that Issues Related to Intervenors’ Proposed Contention 23 

Merit Sua Sponte Review Pursuant to 10 C.F.R. § 2.340(b) and Requesting Commission 

Approval) (e-mailed July 28, 2014 and re-filed on July 30, 2014); Applicant’s Reply Brief 

Opposing Sua Sponte Consideration of Transmission Issues (Aug. 7, 2014); NRC Staff Reply to 

Other Parties’ Pleadings Related to the Board’s Request for Approval to Conduct Sua Sponte

Review of Contention 23 (Transmission Lines) (Aug. 7, 2014); Intervenors’ Corrected Reply 

Memorandum in Support of Motion for Commission Approval of LBP-14-09 (Aug. 8, 2014) 

(Intervenors’ Reply Brief). Intervenors apparently experienced technical difficulties that 

(continued . . .) 
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a brief as amicus curiae in this matter.19 Also pending before us is Intervenors’ petition for 

review of the Board’s dismissal of Contention 23.20 It makes sense for us to review first whether 

the Board properly dismissed the contention to determine whether the transmission-corridor 

impacts issue is litigable in the traditional sense—as a contested matter between the parties—

 

(. . . continued) 

prevented their use of the agency’s e-filing system on July 28, 2014. They e-mailed their reply 

on July 28, 2014, and then properly re-filed the document on July 30, 2014. Although they did 

not request leave to file their reply out of time, we note that counsel for Intervenors also filed the 

same day a declaration that detailed these technical difficulties in the context of a separate filing 

in this proceeding. See Intervenors’ Motion for Enlargement of Time to Reply in Support of 

Petition for Review (July 30, 2014); see also Intervenors’ Reply to DTE Answer Opposing 

Petition for Review of LBP-14-07 (Ruling for Applicant on Quality Assurance) (July 30, 2014), at 

n.1; Intervenors’ Reply to NRC Staff Answer to Petition for Review of LBP-14-07 (Ruling for 

Applicant on Quality Assurance) (July 30, 2014), at n.1. We therefore will consider Intervenors’ 

reply for good cause shown. The same is true for Intervenors’ re-filed reply dated August 8, 

2014 (in which only the caption appears to have been corrected from what was filed on August 

7, 2014). But see CLI-14-10, 80 NRC at __ (slip op. at 10 n.41) (observing that failure to comply 

with agency procedural rules could result in disciplinary action). 

19 Motion of the Nuclear Energy Institute, Inc. for Leave to File Amicus Curiae Brief in Response 

to the Commission’s July 11, 2014 Briefing Order (July 28, 2014); Amicus Curiae Brief of the 

Nuclear Energy Institute, Inc. in Response to the Commission’s July 11, 2014 Briefing Order

(July 28, 2014). Our rules of practice permit persons who are not parties to file a brief amicus 

curiae “if a matter is taken up by the Commission under [10 C.F.R.] § 2.341 or sua sponte.” 

10 C.F.R. § 2.315(d). Although this rule does not squarely apply here, it is within our discretion 

to grant leave for participation as amicus curiae. See Calvert Cliffs 3 Nuclear Project, LLC and 

UniStar Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-13-4, 77 NRC 

101, 104 n.9 (2013). NEI’s motion is unopposed, and we find that its brief would further 

contribute to the record. We exercise our discretion and consider NEI’s brief. 

20 See generally Petition; Order of the Secretary (Sept. 10, 2014) (unpublished) (amending the 

deadline to file a petition for review of the Board’s ruling on Contention 23 “[b]ecause the issues 

raised . . . in [that contention] are intertwined with the Board’s [sua sponte] request”). DTE and 

the Staff oppose Intervenors’ petition for review. Applicant’s Opposition to Petition for Review 

on Contention 23 (Oct. 31, 2014) (DTE Response to Petition); NRC Staff Response to 

Intervenors’ Petition for Review of Atomic Safety and Licensing Board’s Dismissal of Contention 

23 for Lack of Timeliness (Oct. 30, 2014) (NRC Staff Response to Petition). Intervenors filed a 

reply. Intervenors’ Reply in Support of Petition for Review of Atomic Safety and Licensing 

Board’s Dismissal of Contention 23 for Lack of Timeliness (Nov. 10, 2014) (Reply). 
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before turning to the Board’s sua sponte request. Therefore, we rule on both Intervenors’ 

petition for review and the Board’s sua sponte request in today’s decision.21

II. DISCUSSION 

A. Intervenors’ Petition for Review 

We will grant a petition for review at our discretion, upon a showing that the petitioner 

has raised a substantial question as to whether 

(i) a finding of material fact is clearly erroneous or in conflict with a finding as to the 

same fact in a different proceeding; 

(ii) a necessary legal conclusion is without governing precedent or is a departure 

from or contrary to established law; 

(iii) a substantial and important question of law, policy, or discretion has been raised; 

(iv) the conduct of the proceeding involved a prejudicial procedural error; or 

(v) any other consideration that we may deem to be in the public interest.22

Intervenors seek review of the Board’s dismissal of the resubmitted version of Contention 23; 

they do not request review of the Board’s dismissal of the contention as originally proposed.23 

Intervenors claim that the Board erred when it found late the version of Contention 23 

that was submitted in response to the Staff’s final EIS.24 Intervenors focus their argument on 

dicta in the Board’s first ruling in which the Board recommended that the Staff consider 

 

21 Intervenors expressed concern in their petition for review that we would treat their contention 

as “legally intertwined” with the Board’s request. Petition at 11-13; Reply at 1-5. We clarify that 

we do not view the two matters as legally intertwined but rather factually (and procedurally) 

intertwined. Although we address both matters in this decision, we consider them separately. 

22 10 C.F.R. § 2.341(b)(4)(i)-(v). 

23 See Petition at 1. We discuss both Board decisions here, however, for completeness. 

24 Id. at 2-3. 
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Intervenors’ transmission-corridor claims when preparing the final EIS.25 They assert that the 

Board’s recommendation to the Staff constituted new information, a new “dispute” with the draft 

EIS, that cured the contention’s lateness the second time around.26 Intervenors also assert that 

language in the final EIS relating to the transmission corridor is materially different from that in 

the draft EIS. They argue that this language raises an issue suitable for a new contention.27 

Intervenors acknowledge that they could have raised Contention 23 at the outset of this 

proceeding.28 They assert that they purposely waited to see whether the Staff would 

supplement the analysis provided in DTE’s environmental report at the draft EIS stage and that 

they again waited to see whether the Staff would take on the Board’s recommendation in the 

final EIS. But our rules of practice require contentions to be raised at the earliest possible 

opportunity.29 And although environmental contentions are, in essence, challenges to the 

Staff’s compliance with NEPA, those contentions must be raised, if possible, in response to an 

applicant’s environmental report.30 Petitioners who choose to wait to raise contentions that 

 

25 Id. at 2-3, 6-11. 

26 Id. at 7-8. 

27 Id. at 8-11. 

28 See id. at 3-4, 6. 

29 See 10 C.F.R. § 2.309(b)(3)(i), (c). We amended our rules of practice in 2012, including the 

provision governing new or amended contentions in section 2.309(c). The standard for 

admitting a new or amended contention, however, was simplified rather than overhauled. See

Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. 

Reg. 46,562, 46,571 (Aug. 3, 2012) (Part 2 Amendment). Both before and after the 2012 

amendment, proponents of new or amended contentions were, and are, required to 

demonstrate “good cause” for their filing, which includes a demonstration that the information on 

which the new or amended contention is based is materially different from information 

previously available. See 10 C.F.R. § 2.309(c)(1)(i)-(iii); Part 2 Amendment, 77 Fed. Reg. at 

46,571 (focusing the requirements on the factor given the most weight—“good cause”). 

30 10 C.F.R. § 2.309(f)(2); see also Part 2 Amendment, 77 Fed. Reg. at 46,566-67. 
- 8 -

could have been raised earlier do so at their peril. They risk the possibility that there will not be 

a material difference between the application and the Staff’s review documents, thus rendering 

any newly proposed contention on previously available information impermissibly late.31 

Contrary to Intervenors’ claims, the Board’s recommendation to the Staff in its first 

decision did not create a new reference point for determining whether the information raised in 

the second iteration of Contention 23 was timely raised. Our rules of practice require a material 

difference between the information on which the contention is based and the information that 

was previously available—for example, a difference between the environmental report and the 

draft EIS or the draft EIS and the final EIS.32 In both of its contention admissibility decisions the 

Board noted Intervenors’ failure to point to any material difference between DTE’s or the Staff’s 

environmental documents. The Board was “satisfied that each of the issues that comprise the 

subject matter of the contention was discussed in the [Environmental Report]” and that “[t]he 

same issues were also reviewed in the [draft] EIS.”33 We see nothing that would cause us to 

disturb the Board’s rulings on the timeliness of Contention 23 in this regard. 

On appeal, Intervenors point to language in the final EIS that they claim is materially 

different from information in the draft EIS.34 But as the Staff and DTE point out, Intervenors 

compare language from two distinct sections of the Staff’s review documents.35 When the same 

 

31 See 10 C.F.R. § 2.309(c); see also Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 492-94 (2012). 

32 10 C.F.R. § 2.309(c), (f)(2); see also Pilgrim, CLI-12-10, 75 NRC at 488-89; Pa’ina Hawaii, 

LLC, CLI-10-18, 72 NRC 56, 87-88 (2010). 

33 Second Board Ruling at 21; see also LBP-12-12, 75 NRC at 775-76. 

34 See Petition at 8-11. 

35 NRC Staff Response to Petition at 13-14; DTE Response to Petition at 10-12. 
- 9 -

sections of both documents are properly aligned, there is in fact no difference between the draft 

EIS and the final EIS, let alone a material difference.36 Therefore, this claim must fail. Because 

Intervenors have not demonstrated a substantial question warranting review of the Board’s 

dismissal of their contention, we deny their petition for review. 

B. The Board’s Request for Sua Sponte Review 

We turn now to whether issues pertaining to transmission-corridor environmental 

impacts should nevertheless be litigated in a contested proceeding before the Board. The 

Board specifically requests our approval to review two issues sua sponte: 

(1) “[w]hether the building of offsite transmission lines intended solely to serve . . . 

Fermi Unit 3 qualifies as a connected action under NEPA and, therefore, requires 

the Staff to consider its environmental impacts as a direct effect of the 

construction of Fermi Unit 3”; and 

(2) “[w]hether the Staff’s consideration of environmental impacts related to the 

transmission corridor, performed as a cumulative impact review, satisfied NEPA’s 

hard look requirement.”37

Section 2.340(b) sets forth the standard for sua sponte review in a combined license 

proceeding. With our express approval, a licensing board may make findings on a “serious 

safety, environmental, or common defense and security matter” not put into controversy by the 

 

36 Compare “Draft Environmental Impact Statement for Combined License (COL) for Enrico 

Fermi Unit 3” (Draft Report for Comment), NUREG-2105 (Oct. 2011), at 2-45, 3-17 (ADAMS 

accession no. ML13274A468 (package)) (DEIS), with “Environmental Impact Statement for the 

Combined License (COL) for Enrico Fermi Unit 3” (Final Report), NUREG-2105, Vols. 1-4 (Jan. 

2013), at 2-46, 3-18 (ML12307A172, ML12307A176, ML12307A177, and ML12347A202) 

(FEIS). 

37 LBP-14-9, 80 NRC at __ (slip op. at 16). 
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parties.38 This authority shall be used only in extraordinary circumstances.39 We find that the 

two issues identified by the Board do not merit sua sponte review. 

The Board appears to have focused on the distinctions between a direct impacts 

analysis and a cumulative impacts analysis, with the underlying conclusion that a cumulative 

impacts analysis will yield a shallower analysis than a direct impacts analysis. While that may 

be true in other cases, here the Staff has included what appears to be a comprehensive 

analysis of transmission-corridor impacts throughout the final EIS. Without commenting on the 

sufficiency of the Staff’s review, we note that the Staff discussed transmission-corridor impacts 

in Chapters 2, 3, 4, 5, 9, and 10 of the final EIS, in addition to referencing those impacts in the 

cumulative impacts analysis in Chapter 7.40 

The final EIS itself is a source of minor confusion. Despite the final EIS’s introductory 

statement that preconstruction activities (which would include transmission-line development) 

 

38 10 C.F.R. § 2.340(b). 

39 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22-23 

(1998). The Board notes the absence of an express regulatory requirement that the authority 

for sua sponte review be used “sparingly” or in “extraordinary circumstances.” LBP-14-9, 80 

NRC at __ (slip op. at 17-19). But our 1998 Policy Statement, which instructs boards to limit 

their use of sua sponte review, remains valid. Further, section 2.340(b) references the standard 

for Commission review in sections 2.323 and 2.341, both of which, we have held, require a 

heightened showing to prevent overuse, including a demonstration of “extraordinary 

circumstances.” See 10 C.F.R. §§ 2.323(f), 2.341(f)(1) (governing referred rulings or certified 

questions that raise “significant and novel legal or policy issues” or issues whose early 

resolution “would materially advance the orderly disposition of the proceeding”); Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear Power Plant), CLI-12-13, 75 NRC 681, 685 (2012); cf. 

Diablo Canyon, CLI-12-13, 75 NRC at 687 (regarding the standard for interlocutory review). 

The Board correctly notes that “a request to engage in sua sponte review should not be 

undertaken lightly.” LBP-14-9, 80 NRC at __ (slip op. at 19). 

40 See FEIS at M-1 to M-2. 
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are not part of the proposed action and are discussed in the context of cumulative impacts,41 the 

Staff further stated that it included “pertinent information related to . . . potential impacts from the 

transmission lines” as part of its “integrated evaluations of potential environmental impacts from 

the proposed Fermi 3 facilities.”42 Consequently, the Board’s discussion as to whether 

development of the transmission corridor is a “connected action” under NEPA, while thorough, 

is inapposite.43 The Board’s treatment of this issue does not acknowledge that the Staff did 

discuss the proposed transmission corridor in the final EIS, across multiple chapters, together 

with the impacts of constructing and operating Fermi Unit 3.44 The first issue proposed for 

review would therefore appear to be moot.45

Moreover, much of the Board’s request fundamentally challenges the agency’s Limited 

Work Authorization Rule.46 For example, the Board takes issue with the Staff’s classification of 

 

41 FEIS at 1-7. The Board referenced this statement in its sua sponte request. See LBP-14-9, 

80 NRC at __ (slip op. at 15). 

42 FEIS at M-1. 

43 See LBP-14-9, 80 NRC at __ (slip op. at 20-42). 

44 See, e.g., FEIS at 4-3 (explaining that due to its collaboration with the United States Army 

Corps of Engineers in the environmental review, “the combined impacts of . . . preconstruction 

and construction activities . . . are presented in [Chapter 4]” even though “the environmental 

effects of preconstruction activities on each resource area would be addressed as cumulative 

impacts normally presented in Chapter 7”). 

45 In any event, the Board apparently has already established a position on this issue—after 

briefing from the parties—that the transmission corridor is “connected” to the licensing decision 

for Fermi Unit 3. See LBP-14-9, 80 NRC at __ (slip op. at 27-28) (opining, “based on the 

information . . . before the Board,” that the transmission corridor appears to be a proposed 

action and that it has “‘no discernible purpose’ apart from connecting Fermi 3 to the grid”). For 

these reasons, further litigation of this issue would not significantly inform the record on the 

“connected action” question. 

46 See, e.g., LBP-14-9, 80 NRC at __ (slip op. at 30-41); see generally Final Rule, Limited Work 

Authorizations for Nuclear Power Plants, 72 Fed. Reg. 57,416 (Oct. 9, 2007) (Limited Work 

Authorization Rule). 
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the proposed transmission lines as a “preconstruction activity” rather than “construction.”47 In 

the Limited Work Authorization Rule, however, we expressly excluded transmission lines from 

the delineated “construction” activities that would require NRC approval before being 

undertaken.48 We would not allow a litigant to challenge a rule in an NRC adjudicatory 

proceeding absent a showing of special circumstances;49 we likewise will not allow the Board to 

do the same.50

The Board’s second issue proposed for review, aside from its reference to cumulative 

impacts, is in essence a concern about the overall sufficiency of the Staff’s transmission-corridor 

analysis. But this is a potentially amorphous issue that does not appear to lend itself well to a 

contested proceeding, and the Board has not given us the benefit of a roadmap of what 

specifically would be litigated with regard to the Staff’s analysis. For example, the Board opines 

that the Staff must evaluate reasonable alternatives as well as measures to mitigate any 

detrimental environmental impacts.51 But again, without making a sufficiency finding, the Staff 

discussed the proposed transmission corridor in its alternatives analysis (including alternative 

sources of electricity and alternative sites) and also discussed potential mitigation measures for 

constructing new transmission lines in its main analysis of the impacts of constructing and 

 

47 LBP-14-9, 80 NRC at __ (slip op. at 28-29). 

48 See 10 C.F.R. §§ 50.10(a)(2)(vii), 51.4 (defining “construction”); see also Limited Work 

Authorization Rule, 72 Fed. Reg. at 57,417 (requiring NRC authorization “only before 

undertaking activities that have a reasonable nexus to radiological health and safety and/or 

common defense and security”). 

49 See 10 C.F.R. § 2.335(a), (b). 

50 See LBP-14-9, 80 NRC __ (slip op. at 31-32). 

51 See id. at __ (slip op. at 23-25, 51). 
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operating Fermi Unit 3.52 Our rules of practice are designed to avoid such an unfocused inquiry 

in contested proceedings.53 

In February of this year, we will be holding the uncontested hearing on the Fermi

combined license application. The uncontested hearing will provide us with an opportunity to 

review the sufficiency of the Staff’s environmental (and safety) analyses. Given that the Board’s 

request, at bottom, questions the sufficiency of the Staff’s consideration of the environmental 

impacts of the proposed new transmission lines for Fermi Unit 3, the issue whether the Staff has 

taken a “hard look” at the environmental impacts of the transmission corridor is among the 

range of issues that are appropriately before us in the uncontested hearing.54 Thus, as part of 

 

52 See, e.g., FEIS at 4-60 (noting “that the small streams that would be crossed by the proposed 

transmission line corridor could be easily spanned without placing structures in stream channels 

and that [best management practices] would be implemented to protect water quality in streams 

during building activities”); id. at 9-7 (noting that “new transmission lines would be needed to 

deliver power from the alternative coal-fired plant and that these lines would be identical in both 

capacity and location to the lines being proposed to support Fermi 3”); id. at 9-87 (noting that 

“[e]nvironmental conditions along the transmission line corridor [for the alternative Belle RiverSt. Clair site] are similar to those of the site, with a mixture of cropland, wooded areas, and 

some wetlands”). 

53 See 10 C.F.R. § 2.309(f)(1)(i)-(vi). The Board, to be sure, is not strictly bound by the 

contention admissibility rules when requesting approval to review issues sua sponte. But our 

contested proceedings must be governed by some level of specificity to ensure the proceeding 

is conducted efficiently, with fairness to all of the parties. Cf. Final Rule, Rules of Practice in 

Domestic Licensing Proceedings—Procedural Changes in the Hearing Process, 54 Fed. Reg. 

33,168, 33,179 (Aug. 11, 1989) (amending the rules of practice to “ensure[] that the resources 

of all participants in NRC proceedings are focused on real issues and disputes among the 

parties”). 

54 We reject Intervenors’ argument that the uncontested hearing “is not a serious avenue of 

relief.” Intervenors’ Reply Brief at 10. As the Intervenors note, compliance with NEPA is the 

responsibility of the NRC. See Petition at 3, 6. In the uncontested hearing it is our duty to 

ensure, among other things, that we have adhered to our obligations under that statute. See 

10 C.F.R. § 51.107(a). We therefore find the uncontested proceeding to be an appropriate 

venue in which to address the transmission-corridor issue. 
- 14 -

this hearing, we will take the Board’s concerns regarding examination of the environmental 

impacts of the transmission corridor in the final EIS under advisement. 

III. CONCLUSION 

Intervenors have failed to raise a substantial question warranting review of the Board’s 

dismissal of Contention 23. We therefore deny the petition for review. In addition, we deny the 

Board’s request for sua sponte review. We will review the adequacy of the Staff’s 

environmental review, including consideration of transmission-corridor environmental impacts, 

as part of the uncontested hearing. 

IT IS SO ORDERED. 

 For the Commission 

NRC Seal /RA/ 

 ________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 13th day of January, 2015.
Concurring Opinion of Commissioner Baran 

I concur in the result of the memorandum and order but write separately to respectfully 

express my disagreement with the majority’s treatment of the Board’s request for sua sponte 

review in section IIB. In my view, this portion of the opinion would benefit from a more tailored 

discussion of only those issues necessary to reach a decision. I do not believe it is necessary 

for the opinion to characterize the Board’s request for sua sponte review as “fundamentally 

challeng[ing]” the Limited Work Authorization Rule, the Board as having “already established a 

position” on the question of whether the transmission corridor construction is a connected action 

under NEPA, or the requested review of the Staff’s transmission corridor analysis as “potentially 

amorphous” and “unfocused.” I also do not believe that it makes sense for the opinion to state 

that “the Staff has included what appears to be a comprehensive analysis of transmissioncorridor impacts throughout the final EIS.” This description of the Staff’s analysis as 

“comprehensive” could leave readers with the impression that the Commission is prejudging the 

sufficiency of the final EIS in advance of the uncontested hearing. The juxtaposition of this 

description with the subsequent statement that the Commission is not “commenting on the 

sufficiency of the Staff’s review” may also confuse readers. 

For these reasons, this section of the memorandum and order could simply state: 

With respect to whether the building of offsite transmission lines for Fermi Unit 3 

qualifies as a connected action under NEPA, the Board’s request for sua sponte review 

appears relevant only to determining if an analysis of the direct effects of such activities 

is warranted. However, the Staff examined the impacts of the proposed transmission 

corridor on land use, terrestrial ecology, aquatic ecology, historic and cultural resources, 

and nonradiological health in Chapters 2, 3, 4, 5, 9, and 10 of the final EIS, in addition to 

referencing those impacts in the cumulative impacts analysis in Chapter 7. Without 

commenting on the sufficiency of the review, there is no question that the Staff 

discussed the environmental impacts of the proposed transmission corridor in multiple 

chapters of the final EIS. Consequently, a sua sponte review by the Board of the legal 

question of whether a direct effects analysis was required is unnecessary. At their core, 

 
- 2 -

both issues raised by the Board relate to the sufficiency of the Staff’s consideration of 

the environmental impacts of the proposed new transmission corridor for Fermi Unit 3. 

The upcoming uncontested hearing is a natural time for the Commission to examine 

whether the staff has taken the requisite “hard look” at the environmental impacts of the 

transmission corridor in its final EIS. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

DTE ELECTRIC COMPANY ) Docket No. 52-033-COL 

 ) 

(Fermi Nuclear Power Plant, Unit 3) ) 

 ) 

 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

(CLI-15-01) have been served upon the following persons by Electronic Information Exchange. 

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop: O-7H4 

Washington, DC 20555-0001 

ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop: O-16C1 

Washington, DC 20555-0001 

Hearing Docket 

hearingdocket@nrc.gov

Atomic Safety and Licensing Board Panel 

Mail Stop: T-3 F23 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Ronald M. Spritzer, Chair 

Administrative Judge 

ronald.spritzer@nrc.gov 

Anthony Baratta 

Administrative Judge 

anthony.baratta@nrc.gov

Randall J. Charbeneau 

Administrative Judge 

randall.charbeneau@nrc.gov

Matthew Zogby, Law Clerk 

matthew.zogby@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop: O-15D21 

Washington, DC 20555-0001 

Marcia Carpentier, Esq. 

marcia.carpentier@nrc.gov

Sara Kirkwood, Esq. 

sara.kirkwood@nrc.gov

Lisa London, Esq. 

lisa.london@nrc.gov

Patrick Moulding, Esq. 

patrick.moulding@nrc.gov

Kevin Roach, Esq. 

kevin.roach@nrc.gov

Michael Spencer, Esq. 

michael.spencer@nrc.gov

Robert M. Weisman, Esq. 

robert.weisman@nrc.gov

Anthony Wilson, Esq. 

anthony.wilson@nrc.gov

Megan Wright, Esq. 

megan.wright@nrc.gov

Nicholas Koontz, Paralegal 

nicholas.koontz@nrc.gov

OGC Mail Center: Members of this office have 

received a copy of this filing by EIE service. 
Fermi Nuclear Power Plant, Unit 3, Docket No. 52-033-COL 

COMMISSION MEMORANDUM AND ORDER (CLI-15-01)

2 

Detroit Edison Company 

One Energy Plaza, 688 WCB 

Detroit, Michigan 48226 

Bruce R. Maters, Esq. 

matersb@dteenergy.com 

Winston & Strawn, LLP 

1700 K Street, NW 

Washington, DC 20006-3817 

Counsel for the Applicant 

Noelle Formosa, Esq. 

nformosa@winston.com

David Repka, Esq. 

drepka@winston.com

Tyson R. Smith, Esq. 

trsmith@winston.com

Carlos L. Sisco, Senior Paralegal 

CSisco@winston.com

Beyond Nuclear, Citizens for Alternatives 

To Chemical Contamination, Citizens 

Environmental, Alliance of Southwestern 

Ontario, Don’t Waste Michigan, Sierra Club, 

et al. 

316 N. Michigan Street, Suite 520 

Toledo, OH 43604-5627 

Terry J. Lodge, Esq. 

tjlodge50@yahoo.com

Michael J. Keegan, Esq. 

mkeeganj@comcast.net

Beyond Nuclear 

Reactor Oversight Project 

6930 Carroll Avenue Suite 400 

Takoma Park, MD 20912 

Paul Gunter, Director 

paul@beyondnuclear.org

Nuclear Energy Institute 

1201 F Street NW 

Suite 1100 

Washington, DC 20004 

Jonathan Rund, Esq. 

jmr@nei.org

 

[Original signed by Clara Sola ] 

Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 13th day of January, 2015