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) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 52-033-COL 

CLI-15-13

MEMORANDUM AND ORDER

On February 4, 2015, we held a hearing on DTE Electric Company’s combined license 

application to construct and operate a new nuclear reactor at the Fermi Nuclear Power Plant 

site in Monroe County, Michigan.1

 The purpose of the evidentiary hearing was to consider the 

sufficiency of the NRC Staff’s review of DTE’s application. As discussed below, we conclude 

that the Staff’s review has been adequate to support the findings set forth in 10 C.F.R. 

§§ 52.97(a) and 51.107(a). We authorize issuance of the combined license. 

 

1 See In the Matter of DTE Electric Company, Combined License for Enrico Fermi Unit 3; Notice 

of Hearing, 79 Fed. Reg. 72,215, 72,216 (Dec. 5, 2014) (Notice of Hearing); Tr. at 1-217 

(attached as Appendix B to Order of the Secretary (Adopting Proposed Transcript Corrections 

and Admitting Post-Hearing Exhibits) (Mar. 9, 2015) (unpublished) (Transcript Correction 

Order)). 
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I. BACKGROUND 

A. Proposed Action 

DTE seeks to build a GE-Hitachi Economic Simplified Boiling Water Reactor (ESBWR) 

at the Fermi Nuclear Power Plant site in Monroe County, Michigan. Two units currently exist at 

the site: Unit 1 was permanently shut down in 1972; Unit 2 began commercial operation in 1988 

and is operating today.2

 DTE submitted its combined license application for Unit 3 on 

September 18, 2008. The Staff docketed and accepted the application for review shortly 

thereafter.3

Over the past six years, the Staff has spent approximately 52,000 hours reviewing DTE’s 

application to determine whether it complies with the Atomic Energy Act of 1954, as amended, 

and the NRC’s regulations.4

 The Staff’s review included an analysis of the environmental 

impacts of constructing and operating Fermi Unit 3 in accordance with the National 

Environmental Policy Act of 1969 (NEPA), on which the Staff has spent another 17,000 hours.5

 

 

2

 DTE submitted an application to renew the operating license for Fermi Unit 2 for an additional 

twenty years. See DTE Electric Company; Fermi Unit 2, 79 Fed. Reg. 34,787 (June 18, 2014). 

The Atomic Safety and Licensing Board designated to preside over the Fermi license renewal 

proceeding granted two petitions to intervene. DTE Electric Co. (Fermi Nuclear Power Plant, 

Unit 2), LBP-15-5, 81 NRC __ (Feb. 6, 2015) (slip op.). DTE has appealed the Board’s 

decision. Applicant’s Notice of Appeal of LBP-15-5 (Mar. 3, 2015); Applicant’s Brief in Support 

of Appeal of LBP-15-5 (Mar. 3, 2015) (ADAMS accession no. ML15062A634). 

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

 Tr. at 49 (Mr. Tracy). 

5 Id.
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In a separate rulemaking proceeding, the Staff reviewed GE-Hitachi’s application to certify the 

design for the ESBWR. The Staff completed the rulemaking and issued the final ESBWR 

design certification rule, following our approval, in October 2014.6

 DTE’s combined license 

application incorporates by reference the ESBWR certified design.7

The Office of New Reactors led the review and provided much of the expertise, with 

support from the Office of Nuclear Security and Incident Response, the Office of Nuclear 

Material Safety and Safeguards, the Office of Nuclear Reactor Regulation, the Office of the 

General Counsel, and NRC Regions I and III.8

 The Staff held approximately eighty public 

meetings on the Fermi Unit 3 combined license application.9

 In its environmental review, the 

Staff worked closely with the U.S. Army Corps of Engineers, a cooperating agency.10 Other 

federal agencies, including the U.S. Department of Homeland Security and the U.S. Fish and 

 

6 See 10 C.F.R. pt. 52, app. E; Final Rule, Economic Simplified Boiling-Water Reactor Design 

Certification, 79 Fed. Reg. 61,944 (Oct. 15, 2014) (ESBWR Final Rule). The final rule became 

effective on November 14, 2014. ESBWR Final Rule, 79 Fed. Reg. at 61,944. 

7 See generally Ex. NRC000006A to NRC000006H and NRC000006J, DTE Energy, Fermi 3 

Combined License Application (Oct. 2014) (DTE Combined License Application). Portions of 

DTE’s combined license application contain sensitive unclassified non-safeguards information 

and are not publicly available. 

8 See Tr. at 51-52 (Tracy); Staff Witness List (Jan. 14, 2015), Attachment A, at 1-3 (Staff 

Witness List). 

9

 Ex. NRC000001, “Staff Statement in Support of the Uncontested Hearing for Issuance of 

Combined License for the Fermi Nuclear Plant Unit 3,” Commission Paper SECY-14-0132 (Nov. 

20, 2014), at 4 (Staff Information Paper). 

10 See Tr. at 59 (Mr. Delligatti). 
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Wildlife Service, also contributed to the Staff’s review of DTE’s license application.11 In addition, 

the Staff consulted with state, local, and tribal organizations—both in the United States and in 

Canada—concerning a variety of issues, including issues arising under the National Historic 

Preservation Act.12 The Advisory Committee on Reactor Safeguards (ACRS), a committee of 

technical experts advising the Commission, provided an independent assessment of the safety 

aspects of the application, as required by our regulations.13

DTE did not pursue an early site permit for Fermi Unit 3.14 Therefore, all relevant site 

characteristics, including site geology, hydrology, seismology, and man-made hazards, as well 

as the potential environmental impacts of the project, were studied as part of the Staff’s 

combined license review and are within the scope of our decision today. 

 

11 See Ex. NRC0000001, Staff Information Paper at 5; Tr. at 51 (Mr. Tracy), 60 (Mr. Delligatti) 

152 (Ms. Sutton). 

12 Ex. NRC0000001, Staff Information Paper at 5. 

13 10 C.F.R. §§ 1.13, 52.87; see Stetkar, John W., Chairman of the ACRS, letter to Allison M. 

Macfarlane, Chairman of the NRC (Sept. 22, 2014) (ML14252A294) (ACRS Letter). The ACRS 

concluded that “[t]here is reasonable assurance that Fermi Unit 3 can be built and operated 

without undue risk to the health and safety of the public” and recommended that the combined 

license application “be approved following its final revision.” ACRS Letter at 1. It also found 

that there is reasonable assurance that the ESBWR design and the Fermi Unit 3 site satisfy 

NRC requirements that were imposed as part of the agency’s lessons learned from the 

Fukushima Dai-ichi accident on March 11, 2011. ACRS Letter at 2. The Staff responded to 

other, generic recommendations in the ACRS letter. See Satorius, Mark A., Executive Director 

for Operations, letter to John W. Stetkar, Chairman of the ACRS (Nov. 14, 2014) 

(ML14293A058) (Staff Response to ACRS). 

14 See 10 C.F.R. pt. 52, subpt. A. 
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B. Review Standards 

The Atomic Energy Act, section 189a., requires that we hold a hearing on each 

application to construct a nuclear power plant, regardless of whether an interested member of 

the public requests a hearing on the application.15 Our Notice of Hearing for the “uncontested” 

or “mandatory” portion of this proceeding outlines the standards for our review.16 On the safety 

side, we must determine whether: 

(1) the applicable standards and requirements of the Atomic Energy Act and the 

Commission’s regulations have been met; 

(2) any required notifications to other agencies or bodies have been duly made; 

(3) there is reasonable assurance that the facility will be constructed and will operate 

in conformity with the license, the provisions of the Atomic Energy Act, and the 

Commission’s regulations; 

(4) the applicant is technically and financially qualified to engage in the activities 

authorized by the license; and 

(5) issuance of the license will not be inimical to the common defense and security 

or to the health and safety of the public.17

On the environmental side, we must consider and determine: 

(1) whether the requirements of NEPA section 102(2)(A), (C), and (E), and the 

applicable regulations in 10 C.F.R. Part 51 (the NRC regulations implementing 

NEPA), have been met; 

(2) the final balance among conflicting factors contained in the record of the 

proceeding with a view to determining the appropriate action to be taken; 

 

15 AEA § 189a., 42 U.S.C. § 2239(a). 

16 See Notice of Hearing, 79 Fed. Reg. at 72,216. 

17 10 C.F.R. § 52.97(a). 
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(3) after weighing the environmental, economic, technical, and other benefits against 

environmental and other costs, and considering reasonable alternatives, whether 

the combined license should be issued, denied, or appropriately conditioned to 

protect environmental values; and 

(4) whether the NEPA review conducted by the Staff has been adequate.18

We do not review DTE’s application de novo; rather, we consider the sufficiency of the Staff’s 

review of the application—that is, whether the Staff’s review was sufficient to support the 

required findings.19

C. Contested Proceeding 

When the Staff docketed DTE’s combined license application, it also provided interested 

persons an opportunity to challenge the application in a contested proceeding, in accordance 

with Atomic Energy Act section 189a.20 Nineteen individuals and environmental groups 

(collectively, Intervenors) submitted a request for hearing and petition to intervene with fourteen 

proposed contentions.21 A Licensing Board comprised of three administrative judges, one with 

legal expertise and two with technical expertise, granted Intervenors’ request for hearing and 

 

18 Id. § 51.107(a). 

19 South Carolina Electric & Gas Co. and South Carolina Public Service Authority (also referred 

to as Santee Cooper) (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-12-9, 75 NRC 421, 

428 (2012); Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), 

CLI-12-2, 75 NRC 63, 74 (2012). 

20 See 74 Fed. Reg. at 836. 

21 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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admitted Contentions 3, 5, 6, and 8.22 Contention 3 pertained to the management of Class B 

and C low-level waste, Contention 5 pertained to hydrology at the Fermi site, Contention 6 

concerned aquatic impacts from algae, and Contention 8 concerned potential adverse impacts 

on the eastern fox snake, a state-listed endangered species.23 

The Board granted summary disposition of Contentions 3, 5, and 6 in favor of DTE.24 

And after an evidentiary hearing, the Board resolved Contention 8 in favor of the Staff. The 

Board also held a hearing on a new contention that concerned DTE’s compliance with the 

NRC’s quality assurance regulations, Contention 15A/B, which was resolved in favor of DTE.25 

Intervenors petitioned for review of the Board’s ruling on Contention 15A/B; they did not seek 

review of the Board’s decisions resolving the other admitted contentions.26 We later denied 

Intervenors’ petition for review of the Board’s dismissal of Contention 15A/B.27

 

22 LBP-09-16, 70 NRC 227, 306 (2009). DTE challenged the Board’s ruling on standing and 

argued that the fifty-mile “proximity presumption” should no longer apply in reactor licensing 

proceedings based on DTE’s interpretation of contemporaneous judicial concepts of standing. It 

did not challenge the Board’s contention admissibility ruling. We affirmed the Board’s ruling on 

standing and upheld the validity of the proximity presumption. CLI-09-22, 70 NRC 932, 933 

(2009) (citing Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), 

CLI-09-20, 70 NRC 911 (2009)). 

23 LBP-09-16, 70 NRC at 256, 272, 277, 285-86. 

24 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). 

25 LBP-14-7, 79 NRC 451, 454 (2014). See generally LBP-10-9, 71 NRC 493, 499 (2010). 

26 Intervenors’ Petition for Review of LBP-14-07 (Ruling for Applicant on Quality Assurance)

(June 17, 2014). 

27 CLI-14-10, 80 NRC 157 (2014). 
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Shortly after it ruled on Intervenors’ last remaining admitted contentions, the Board 

requested our permission to hold an evidentiary hearing on Intervenors’ proposed Contention 

23, which challenged the Staff’s discussion of the environmental impacts of building a new 

transmission-line corridor for Fermi Unit 3.28 The Board did not admit the contention because 

the Board found that Intervenors had filed it impermissibly late.29 Nonetheless, the Board 

determined that Contention 23 presented issues that warranted the Board’s review sua sponte

and sought our approval to undertake such a review. Intervenors also filed a petition for review 

of the Board’s dismissal of Contention 23.30 We denied Intervenors’ petition for review.31 And 

we denied the Board’s request for sua sponte review and concluded that the environmental 

impacts of the transmission corridor were among the issues appropriate for resolution in this 

uncontested proceeding.32 We discuss the Staff’s review of the transmission-line corridor as 

part of today’s decision. 

Also during the pendency of the contested proceeding, the U.S. Court of Appeals for the 

District of Columbia Circuit vacated and remanded our 2010 Waste Confidence Decision and 

Temporary Storage Rule, which for various NRC licensing actions served as part of the 

 

28 LBP-14-9, 80 NRC 15, 37 (2014). 

29 See id. at 34. Intervenors filed proposed Contention 23 a second time after the Staff issued 

the Final Environmental Impact Statement (FEIS). The Board again dismissed the contention 

as impermissibly late. See id. at 36-37. 

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

Contention 23 for Lack of Timeliness (Oct. 6, 2014); see Order of the Secretary (Sept. 10, 2014) 

(unpublished) (amending the deadline for Intervenors’ petition for review). 

31 CLI-15-1, 81 NRC __ (Jan. 13, 2015) (slip op.). 

32 Id. at __ (slip op. at 13-14). 
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environmental analysis of the impacts of spent fuel storage after the end of a reactor’s license 

term pending ultimate disposal in a repository.33 In light of the D.C. Circuit’s vacatur and 

remand of the rule, and in response to a number of suspension petitions filed on multiple 

dockets, we held the issuance of final licensing decisions for affected matters, including this 

one, while we addressed the court’s remand.34 To address the court’s remand and provide a 

comprehensive analysis of the environmental impacts of continued storage, we issued a final 

Continued Storage Rule and supporting Generic Environmental Impact Statement.35 

Concurrent with this action, we lifted the licensing suspension and dismissed, or directed 

licensing boards to dismiss, proposed contentions that had been filed with the multi-docket 

suspension petitions and held in abeyance.36 The Board dismissed Intervenors’ continued 

storage contention consistent with our direction.37 Separately, the Staff considered whether the 

 

33 See New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). See generally Final Rule: 

Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of 

Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010); Waste Confidence Decision Update, 

75 Fed. Reg. 81,037 (Dec. 23, 2010). 

34 Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert 

Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 67 (2012). 

35 Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert 

Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71, 77 (2014). See generally Final Rule, 

Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014); Generic 

Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 

56,263 (Sept. 19, 2014); “Generic Environmental Impact Statement for Continued Storage of 

Spent Nuclear Fuel,” NUREG-2157, Vols. 1 and 2 (Sept. 2014) (ML14196A105 and 

ML14196A107). 

36 Calvert Cliffs, CLI-14-8, 80 NRC at 79-80. 

37 Order (Denying Motion to Admit Waste Confidence Contention) (Oct. 6, 2014), at 3 

(unpublished). 
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Continued Storage Rule and the associated Generic Environmental Impact Statement 

presented new and significant information such that a supplement to the Final Environmental 

Impact Statement for Fermi Unit 3 (FEIS) was required.38 The Staff compared the fuel cycle 

impacts analysis in the FEIS with the analysis in the Generic Environmental Impact Statement 

for Continued Storage and concluded that the information in the Generic Environmental Impact 

Statement did not present a seriously different picture of the environmental impacts of the 

proposed action when compared to the impacts that were described in the FEIS.39 Therefore, 

the Staff determined that a supplement to the FEIS was not required.40 

Thereafter, Intervenors sought leave to file a new contention that would require the NRC 

to make safety-related findings for the Continued Storage Rule and suspend licensing decisions 

until completing that action.41 We exercised our supervisory authority to consider this and other 

 

38 See Ex. NRC000004, NRC Staff Responses to Commission Pre-Hearing Questions (Jan. 14, 

2015), at 42-43 (Staff Responses to Initial Pre-Hearing Questions) (citing Consideration of New 

Information Regarding the Impacts of the Continued Storage of Spent Fuel for the Fermi 

Nuclear Power Plant, Unit 3, Combined License Application (Nov. 20, 2014) (ML14318A477) 

(Staff’s New and Significant Information Analysis)). 

39 Id. at 43 (citing Staff’s New and Significant Information Analysis). 

40 Id.

41 Intervenors’ Motion for Leave to File a New Contention Concerning the Absence of Required 

Waste Confidence Safety Findings in the Combined Operating Licensing Proceeding for Fermi 3 

Nuclear Power Plant (Sept. 29, 2014); Petition to Suspend Final Decisions in All Pending 

Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept. 

29, 2014) (errata Oct. 1, 2014; amended and corrected petition Oct. 6, 2014). 
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substantively similar filings, dismissed the proposed “waste confidence safety contention,” and 

denied the suspension petitions.42

Finally, Beyond Nuclear, a party to the contested proceeding, joined a group of 

petitioners in a multi-docket petition to supplement the environmental impact statements for a 

number of applications, including DTE’s combined license application for Fermi Unit 3, to 

incorporate by reference the analysis in the Generic Environmental Impact Statement for 

Continued Storage.43 Beyond Nuclear also filed a new contention, accompanied by a motion to 

reopen the record, as a “placeholder” to permit it to challenge the Staff’s Final Environmental 

Impact Statement for Fermi Unit 3 (FEIS) assuming that Beyond Nuclear is successful in its 

pending challenge to the Continued Storage Rule in the D.C. Circuit.44 We denied the petition 

 

42 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-4, 81 NRC __, __ (Feb. 26, 

2015) (slip op. at 3, 5); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3, CLI-14-9, 80 NRC 

147, 149-50 (2014). Some of the parties challenging DTE’s application in the contested 

proceeding also joined other multi-docket suspension petitions that we later denied. See DTE 

Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-7, 80 NRC 1, 5 & n.11, 10 (2014) 

(denying suspension request that would have halted final licensing decisions pending action on 

a petition for rulemaking regarding the Staff’s review of the potential expedited transfer of spent 

fuel from pools to dry casks); Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), 

CLI-11-5, 74 NRC 141, 146, 177-78 (2011) (requesting suspension of proceedings and other 

relief after the March 11, 2011, accident at Fukushima Dai-ichi). 

43 See Petition to Supplement Reactor-Specific Environmental Impact Statements to Incorporate 

by Reference the Generic Environmental Impact Statement for Continued Spent Fuel Storage

(Jan. 28, 2015). 

44 Beyond Nuclear’s Motion to Reopen the Record of Combined License Proceeding for Fermi 

Unit 3 Nuclear Power Plant (Feb. 12, 2015), at 1-2; Beyond Nuclear’s Hearing Request and 

Petition to Intervene in Combined License Proceeding for Fermi Unit 3 Nuclear Power Plant

(Feb. 12, 2015), at 1-3. See generally New York v. NRC, Nos. 14-1210, 14-1212, 14-1216, and 

14-1217 (Consolidated) (D.C. Cir.) (Beyond Nuclear filed its petition for review in the D.C. 

Circuit on October 29, 2014). 
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to supplement and declined to admit Beyond Nuclear’s “placeholder” contention.45 The Board 

has terminated its jurisdiction.46

D. Uncontested Proceeding 

The scope of an uncontested proceeding is defined by the scope of the contested 

proceeding: all of the safety and environmental issues in DTE’s combined license application, 

except for the contested matters, are subject to our review in the uncontested proceeding.47 

Before we held the first mandatory hearings for combined license applications, we directed the 

Staff to provide us with an information paper on its review of each application at the time the 

Staff issues its final safety or environmental review document.48 The Staff issued the FEIS for 

Fermi Unit 3 in January 2013 and the final Safety Evaluation Report (SER) in November 2014, 

 

45 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-10, 81 NRC __ (Apr. 23, 2015) 

(slip op.); CLI-15-12, 81 NRC __ (Apr. 23, 2015) (slip op.). 

46 LBP-15-12, 81 NRC __ (Mar. 20, 2015) (slip op.); see also Virginia Electric and Power Co. 

d/b/a Dominion Virginia Power and Old Dominion Electric Cooperative (North Anna Power 

Station, Unit 3), CLI-12-14, 75 NRC 692, 693, 699-701 (2012). As the Board observed, a 

number of matters remained pending before the Commission after the Board resolved the final 

contention pending before it. LBP-15-12, 81 NRC at __ (slip op. at 2-4). To clarify an 

understandable point of confusion, the Board’s jurisdiction terminates when there are no longer 

any contested matters pending before it. In this instance, the Board’s jurisdiction terminated 

when we exercised supervisory authority over the “waste confidence safety contention” in 

CLI-14-9. 

47 See Notice of Hearing, 79 Fed. Reg. at 72,216. 

48 See generally Staff Requirements—SECY-10-0082—Mandatory Hearing Process for 

Combined License Application Proceedings Under 10 C.F.R. Part 52 (Dec. 23, 2010), at 1-2 

(ML103570203) (SRM-SECY-10-0082). 
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which triggered the start of the uncontested portion of this proceeding.49 We received the Staff’s 

information paper on November 20, 2014, shortly after the Staff’s issuance of the SER.50 

1. Pre-hearing Activities 

We issued the Notice of Hearing on December 1, 2014, and set the schedule for the 

parties—the Staff and DTE—to file their lists of witnesses, as well as for DTE to provide its prefiled testimony.51 We also issued several questions on environmental and safety-related topics 

to DTE and the Staff to answer in writing before the hearing.52 In addition, we invited interested 

states, local government bodies, and federally-recognized Indian tribes and Canadian 

Provinces, local government bodies, and First Nations to provide statements of issues for us to 

consider as part of the uncontested proceeding.53 We received one response from the 

 

49 See Ex. NRC0000010A to NRC0000010D, “Environmental Impact Statement for the 

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

2013) (FEIS); Ex. NRC0000008A to NRC0000008B, “Final Safety Evaluation Report for the 

Fermi 3 Combined License Application” (Nov. 18, 2014) (SER). Portions of the SER contain 

sensitive unclassified non-safeguards information and are not publicly available. 

50 See Ex. NRC000001, Staff Information Paper at 1. 

51 Notice of Hearing, 79 Fed. Reg. at 72,216. The Staff’s information paper serves as its prefiled testimony. 

52 See Order of the Secretary (Transmitting Additional Pre-Hearing Questions) (Jan. 16, 2015) 

(unpublished) (Transmission-Line Corridor Questions); Order of the Secretary (Transmitting 

Pre-Hearing Questions) (Dec. 30, 2014) (unpublished) (Initial Pre-Hearing Questions). We also 

issued a question that contains sensitive unclassified non-safeguards information and was 

therefore filed on the non-public docket for the proceeding. The parties’ responses to that 

question were likewise filed on the non-public docket. 

53 Notice of Hearing, 79 Fed. Reg. at 72,216-17. 
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Delaware Nation, which stated that it declined to participate because the Fermi Unit 3 project 

does not lie within its area of interest.54

2. The Hearing 

The Secretary of the Commission transmitted a scheduling note to DTE and the Staff 

setting the topics for and the order of presentations at the hearing.55 In the first panel, 

witnesses for DTE and the Staff provided an overview of DTE’s combined license application 

and the Staff’s review. The next two panels focused on safety-related issues, and the final two 

panels focused on environmental issues. 

The Staff made available seventy-eight witnesses at the hearing.56 Twelve of these 

witnesses were scheduled panelists; the remainder stood by to answer questions on topics 

relating to their expertise.57 A total of twelve witnesses offered testimony on behalf of DTE on 

panels at the hearing and in pre-filed written testimony.58

 

54 E-mail from Corey Smith, Assistant Director, Delaware National Cultural Preservation, to 

Hearing Docket, NRC (Jan. 20, 2015) (ML15022A627). The Delaware Nation requested, 

however, that “should th[e] project inadvertently uncover an archaeological site or object(s)” that 

“you halt all construction and ground disturbance activities and immediately contact the 

appropriate state agencies, as well as our office (within 24 hours).” Id.

55 See Vietti-Cook, Annette, Secretary of the Commission, memorandum to Counsel for DTE 

and the Staff (Jan. 30, 2015) (Scheduling Note) (revising the scheduling note issued on January 

22, 2015). 

56 See Staff Witness List at 1-3; Tr. at 14-15. 

57 See Scheduling Note at 1-5; Tr. at 14-15. 

58 See Ex. DTE000004, Applicant’s Witness List for the Fermi Unit 3 Hearing on Uncontested 

Issues (Jan. 14, 2015); Tr. at 12-13, 132-33; Ex. DTE000001, Applicant’s Pre-filed Written 

Testimony in Support of the Hearing on Uncontested Issues for Fermi Unit 3 (Jan. 14, 2015) 

(DTE Pre-filed Testimony). 
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a. Summary of the Overview Panels 

Peter Smith, Director of Nuclear Development for DTE, and Ron May, Sr., Executive 

Vice President of DTE, represented DTE on the overview panel.59 Mr. Smith provided 

background on the development of DTE’s license application, including DTE’s decision to 

pursue a combined license, its selection of the ESBWR for the reactor design, and the selection 

of the Fermi site.60 He also provided an overview description of the Fermi site and the features 

of the ESBWR.61

Glenn Tracy, Director of the Office of New Reactors, Frank Akstulewicz, Director of the 

Division of New Reactor Licensing in the Office of New Reactors, and Mark Delligatti, Deputy 

Director of the Division of New Reactor Licensing in the Office of New Reactors, provided 

background on the Staff’s review of the Fermi Unit 3 combined license application.62 In 

particular, Mr. Akstulewicz described the “design-centered review approach,” a review 

methodology that we have endorsed, where the Staff performs a single technical review for 

standard issues involving a particular design that are then applied to other combined license 

applications referencing the same design.63 When DTE submitted its application, the combined 

 

59 Tr. at 18. 

60 See Ex. DTE000005, Fermi 3, Combined License Mandatory Hearing, Introduction & 

Overview (Jan. 28, 2015), at 1-4 (DTE Overview Presentation); see also Tr. at 19-33. 

61 See Ex. DTE000005, DTE Overview Presentation at 5-9. 

62 See Tr. at 48. 

63 Ex. NRC000011, Combined License Application Review, Fermi 3, Overview (Jan. 28, 2015), 

at 5 (Staff Overview Presentation); Tr. at 53-54; see also Summer, CLI-12-9, 75 NRC at 427 & 

n.17 (discussing the design-centered review approach with respect to the AP1000 reactor 

design). 
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license application for a new nuclear plant at the North Anna Power Station was designated as 

the “reference application,” the “Reference COL” or “RCOL,” for the ESBWR design-centered 

review.64 DTE was a “subsequent application,” “Subsequent COL” or “SCOL.” 65 In May 2010, 

the Fermi application took over as the reference application after the North Anna applicant 

selected a different reactor design.66 The Staff verified that the standard content in the North 

Anna safety evaluation report directly applied to Fermi Unit 3, and DTE provided information to 

address the open items in that report.67 Mr. Akstulewicz completed his testimony with a 

summary of the Staff’s findings under 10 C.F.R. § 52.97(a).68 Mr. Delligatti provided 

background on the Staff’s environmental review, including a summary of the Staff’s findings in 

accordance with NEPA sections 102(2)(A), (C), and (E) and 10 C.F.R. § 51.107(a).69

b. Summary of the Safety Panels 

The first safety panel focused on the soil-structure interaction and seismic analyses for 

Fermi Unit 3.70 Peter Smith testified for DTE.71 With him on the panel were Javad Moslemian, 

 

64 Ex. NRC000011, Staff Overview Presentation at 6-7. 

65 Id.

66 Tr. at 54 (Mr. Akstulewicz). 

67 Ex. NRC000011, Staff Overview Presentation at 8. 

68 Id. at 11-13. 

69 Tr. at 58-65; Ex. NRC000011, Staff Overview Presentation at 14-20. 

70 See Ex. DTE000006, Fermi 3 COLA, Combined License Mandatory Hearing, Safety—Panel 1 

(Jan. 28, 2015) (DTE Safety Panel 1 Presentation); Ex. NRC000012, Combined License 

Application Review, Fermi 3, Safety Panel 1 (Jan. 28, 2015) (Staff Safety Panel 1 Presentation). 

71 Tr. at 83-85. 
- 17 -

Engineering Manager, Sargent and Lundy, and Steven Thomas, Engineering Manager, Black 

and Veatch.72 Adrian Muniz, Lead Project Manager for the Fermi Unit 3 Application Review, 

Licensing Branch 3, Office of New Reactors, Sara Tabatabai, Seismologist, Structural, 

Geotechnical and Seismic Engineering Branch, Office of Research, and Manas Chakravorty, 

Senior Structural Engineer, Structural Engineering Branch 2, Office of New Reactors, provided 

testimony for the Staff.73 In addition to the soil-structure interaction and seismic analyses, the 

first ten chapters of the Fermi 3 SER were subject to our examination during the first safety 

panel.74

The second safety panel focused on Fermi SER Chapter 20, which covered the Staff’s 

activities relating to recommendations from the Near-Term Task Force established in response 

to the accident at Fukushima Dai-ichi on March 11, 2011, and the discussion of Fukushimarelated regulatory actions in DTE’s application and the Staff’s SER.75 Peter Smith provided 

testimony for DTE, with David Hinds, Technical Engineering Manager, GE-Hitachi, and Steven 

Thomas, Black and Veatch, on the panel.76 Adrian Muniz, Angelo Stubbs, Senior Reactor 

Systems Engineer, Plant Systems Branch, Office of New Reactors, Raul Hernandez, Reactor 

 

72 Tr. at 82; Scheduling Note at 2. 

73 Tr. at 85-92; Scheduling Note at 2. During her review of DTE’s application, Ms. Tabatabai 

worked in the Office of New Reactors. Tr. at 87. 

74 Scheduling Note at 2-3. 

75 See Ex. DTE000007, Fermi 3, Combined License Mandatory Hearing, Safety—Panel 2 (Jan. 

28, 2015) (DTE Safety Panel 2 Presentation); Ex. NRC000013, Combined License Application 

Review, Fermi 3, Safety Panel 2 (Jan. 28, 2015) (Staff Safety Panel 2 Presentation). 

76 Tr. at 114; Scheduling Note at 3. 
- 18 -

Systems Engineer, Plant Systems Branch, Office of New Reactors, and Dan Barss, Team 

Leader, Division of Preparedness and Response, Office of Nuclear Security and Incident 

Response, provided testimony for the Staff.77 Chapters eleven through nineteen of the Fermi 3 

SER were also subject to our examination during the second safety panel.78

c. Summary of the Environmental Panels 

The first environmental panel provided an overview of the Staff’s review process for the 

Fermi Unit 3 FEIS, including a summary of its development, the Staff’s analysis of alternatives, 

and a summary of the Staff’s conclusions and recommendations.79 Peter Smith testified for 

DTE, with Randall Westmoreland, Technical Expert and Environmental Lead, DTE, and Steven 

Thomas from Black and Veatch.80 Jennifer Dixon-Herrity, Chief of the Environmental Projects 

Branch in the Office of New Reactors, Mallecia Sutton, Lead Environmental Project Manager, 

Environmental Projects Branch, Office of New Reactors, and Andrew Kugler, Senior 

Environmental Project Manager, Technical Support Branch, Office of New Reactors, provided 

testimony for the Staff.81 The second environmental panel focused on compliance with the 

National Historic Preservation Act with regard to the permanently shut-down Fermi Unit 1, which 

 

77 Tr. at 116-17; Scheduling Note at 3. 

78 Scheduling Note at 3. 

79 See Scheduling Note at 4; Ex. DTE000008, Fermi 3, Combined License Mandatory Hearing, 

Environmental Overview—Panel 1 (Jan. 28, 2015) (DTE Environmental Panel 1 Presentation); 

Ex. NRC000014, Combined License Application Review, Fermi 3, Environmental Panel 1 (Jan. 

28, 2015) (Staff Environmental Panel 1 Presentation). 

80 Tr. at 139; Scheduling Note at 4. 

81 Tr. at 142; Scheduling Note at 5. 
- 19 -

DTE plans to demolish, as well as interactions between the Staff and international organizations 

over the course of the Staff’s environmental review.82 The same witnesses for the first 

environmental panel testified for the second environmental panel.83

3. Post-hearing Questions 

After the hearing, we issued additional questions for written answers from DTE and the 

Staff.84 In addition to admitting DTE’s and the Staff’s responses as exhibits, as well as 

additional exhibits from DTE, we adopted corrections to the hearing transcript.85 In its response 

to our post-hearing questions, the Staff provided a clarification to its hearing testimony.86 The 

Staff also filed four additional exhibits—NRC000018, NRC000019, NRC000020, and 

NRC000021—relating to recent Staff activities under the Endangered Species Act.87 We admit 

these exhibits and close the evidentiary record for the uncontested hearing. 

 

82 See Ex. DTE000009, Fermi 3, Combined License Mandatory Hearing, Environmental 

Overview—Panel 2 (Jan. 28, 2015) (DTE Environmental Panel 2 Presentation); Ex. 

NRC000015, Combined License Application Review, Fermi 3, Environmental Panel 2 (Jan. 28, 

2015) (Staff Environmental Panel 2 Presentation). 

83 Tr. at 180. 

84 Order of the Secretary (Transmitting Post-Hearing Questions) (Feb. 11, 2015) (unpublished). 

85 Transcript Correction Order at 1. 

86 Ex. NRC000017, NRC Staff Responses to Commission Post-Hearing Questions (Feb. 19, 

2015), at 1 (Staff Responses to Post-Hearing Questions). Although we allow this clarification, 

which reiterated statements in the Staff’s response to pre-hearing question 33, Ex. NRC000004, 

Staff Responses to Initial Pre-Hearing Questions at 30, we remind the Staff that when a party 

requests action from the presiding officer in an NRC adjudicatory proceeding, the request must 

come in the form of a motion. See 10 C.F.R. § 2.323. 

87 See Roach, Kevin C., Counsel for the Staff, letter to the Commissioners (Apr. 5, 2015), at 1 

(April 5 Commission Notification); Ex. NRC000018, Supplemental Biological Assessment, U.S. 

Fish and Wildlife Service, Enrico Fermi Unit 3 Combined License Application (Feb. 2015) 

(continued . . .) 
- 20 -

II. DISCUSSION 

A. Site-Specific Issues Addressed in the Proceeding

Although our review encompassed the entire application, we discuss here a brief 

selection of the topics discussed at the hearing and in responses to written questions before 

and after the hearing. 

1. Safety-Related Issues 

a. Soil-Structure-Interaction Analysis 

The first safety issue that the Staff identified in its information paper and the first safety 

topic discussed at the hearing involved the soil-structure-interaction analysis for the Fermi site.88 

The design control document for the ESBWR is based on a generic set of site parameters. 

When evaluating an application that references the ESBWR for a specific site, the Staff focuses 

on whether the characteristics of the specific site fall within the parameters specified in the 

design control document.89 As the Staff explained in its information paper, the partial bedrock 

 

(. . . continued) 

(Supplemental Biological Assessment); Ex. NRC000019, Hicks, Scott, U.S. Fish and Wildlife 

Service, letter to Jennifer L. Dixon-Herrity, NRC (Mar. 23, 2015) (March 23 Letter from the Fish 

and Wildlife Service); Roach, Kevin C., Counsel for the Staff, letter to the Commissioners (Apr. 

29, 2015), at 1 (April 29 Commission Notification); Ex. NRC000020, Supplemental Biological 

Assessment to the U.S. Fish and Wildlife Service for the Enrico Fermi Unit 3 Combined License 

Application (Apr. 3, 2015) (Supplemental Biological Assessment (Northern Long-Eared Bat)); 

Ex. NRC000021, Hicks, Scott, U.S. Fish and Wildlife Service, letter to Jennifer L. Dixon-Herrity, 

NRC (Apr. 28, 2015) (April 28 Letter from the Fish and Wildlife Service); see also Smith, Tyson 

R., Counsel for DTE, letter to the Commissioners (Apr. 10, 2015), at 1-2. The exhibits were not 

accompanied by a motion. See supra note 86. Nevertheless, DTE has not opposed their 

admission and we find that they further contribute to the record. 

88 See Ex. NRC000001, Staff Information Paper at 14; Tr. at 83 (Mr. Smith). 

89 See Ex. NRC000001, Staff Information Paper at 14; see also 10 C.F.R. § 52.79(d)(1) 

(requiring applicants referencing a certified design to provide sufficient information for the Staff 

to determine whether the site’s characteristics fall within the design’s parameters). 
- 21 -

embedment of the Reactor Building/Fuel Building and Control Building structures at the Fermi 3 

site “deviates from the foundation configurations considered in the ESBWR [design control 

document]. In addition, the Fermi 3 site does not meet the minimum backfill shear wave velocity 

requirement of the ESBWR [design control document].”90 Consequently, “site-specific soil 

structure interaction . . . analyses need[ed] to be performed to confirm that the certified design is 

adequate for the site.”91 DTE thus provided analyses to address these issues.92

At the hearing, Peter Smith, testifying for DTE, explained that because the timing of its 

analyses coincided with the Staff’s post-Fukushima activities, DTE voluntarily updated its soilstructure-interaction analyses using inputs from the Central and Eastern U.S. Seismic Source 

Characterization for Nuclear Facilities (CEUS-SSC).93 DTE also added margin to these inputs. 

DTE provided the results of its analyses, showing that the Fermi Unit 3 foundation response 

spectra using the updated inputs as well as updated inputs with added margin fell within the 

 

90 Ex. NRC000001, Staff Information Paper at 14; see also Ex. DTE000006, DTE Safety Panel 1 

Presentation at 3 (depicting partial embedment and backfill). 

91 Ex. NRC000001, Staff Information Paper at 14. 

92 Id.; Tr. at 83 (Mr. Smith). 

93 Tr. at 83; Ex. DTE000006, DTE Safety Panel 1 Presentation at 2; see also Tr. at 87 (Ms. 

Tabatabai) (explaining that applicants like DTE were requested, not required, to consider using 

the updated model). The CEUS-SSC constitutes a key input to a probabilistic seismic hazard 

analysis. The probabilistic seismic hazard analysis is used as a method for accounting for 

uncertainty in seismic design and in calculating seismic risk. The seismic source 

characterization model describes where earthquakes will occur, how big they will be, and how 

often they will happen. The CEUS-SSC model includes consideration of an up-to-date 

database, full assessment and incorporation of uncertainties, and the range of diverse technical 

interpretations from the larger technical community. “Central and Eastern United States 

Seismic Source Characterization for Nuclear Facilities,” NUREG-2115, Vol. 1 (Jan. 2012), at ixx (ML12048A804). 
- 22 -

seismic design response spectra for the ESBWR.94 DTE also provided comparisons of the instructure response spectra and concluded that the ESBWR certified design envelopes the Fermi 

3 site with “considerable margin.”95 The Staff reviewed DTE’s analyses, performed additional 

analyses, and “confirmed that at the Fermi 3 site, the site-specific seismic demand is bounded 

by the [ESBWR design control document] analyses.”96 The Staff concluded that DTE provided 

sufficient information to demonstrate the suitability of the ESBWR for the Fermi site.97 

b. Regulatory Treatment of Non-Safety Systems Equipment 

In another area that focused on features of the ESBWR design and their applicability to 

the Fermi site, we asked pre-hearing questions on the protection of Regulatory Treatment of 

Non-Safety Systems (RTNSS) equipment from external hazards at the site.98 This equipment is 

used to maintain core, containment, and spent fuel pool cooling after the reactor has been shut 

down for seventy-two hours following an accident.99 RTNSS equipment is not relied on in the 

 

94 Ex. DTE000006, DTE Safety Panel 1 Presentation at 4; Tr. at 84 (Mr. Smith). 

95 Tr. at 85 (Mr. Smith); see also Ex. DTE000006, DTE Safety Panel 1 Presentation at 5. 

96 Ex. NRC000001, Staff Information Paper at 14; see also Ex. NRC000012, Staff Safety Panel 

1 Presentation at 5-6 (showing similar results between the Staff’s confirmatory probabilistic 

seismic hazard analysis and DTE’s analyses and that they are enveloped by the ESBWR 

certified seismic design response spectrum). 

97 Ex. NRC000001, Staff Information Paper at 14; Ex. NRC000012, Staff Safety Panel 1 

Presentation at 10; see also Tr. at 89 (Ms. Tabatabai). 

98 Initial Pre-Hearing Questions at 6-7, 12-13. 

99 Ex. NRC000008B, SER at 20-11. “RTNSS” refers to the regulatory oversight given to items 

that are not safety-related but perform risk-significant functions in passive reactor designs. See, 

e.g., Ex. NRC000008A, SER at 3-1. As the Staff explained, “[b]y definition, RTNSS [structures, 

systems, and components] are non[-]safety equipment and should not be treated as safetyrelated.” Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions at 14. The RTNSS 

(continued . . .) 
- 23 -

first instance in an accident or event; rather, the ESBWR’s passive safety system performs that 

function.100 DTE’s application for Fermi Unit 3 incorporates by reference the RTNSS equipment 

from the ESBWR design control document; there are no departures from the ESBWR design 

with respect to the RTNSS equipment.101 Nevertheless, we considered certain aspects of 

RTNSS equipment in the uncontested hearing because it may be relied on to address certain 

post-Fukushima mitigation strategies for beyond-design-basis external events requirements 

after seventy-two hours.102 These post-Fukushima requirements are discussed further in 

Section C below.

 

(. . . continued) 

concept was developed in the 1990s, in the context of the Staff’s review of reactor designs with 

passive safety systems that also use active systems (as a backup to the passive system) to 

replenish coolant after a seventy-two hour period following an accident. The Staff sought to 

ensure that proper regulatory oversight was given to these systems, even though they were not 

safety-related, given uncertainties associated with passive safety system performance identified 

by the Staff. The Staff therefore determined that it “will not require that these active systems 

meet all the safety-related criteria, but will expect a high level of confidence that active systems 

which have a significant safety role are available when challenged.” See “Policy and Technical 

Issues Associated with the Regulatory Treatment of Non-Safety Systems (RTNSS) in Passive 

Plant Designs (SECY-94-084),” Commission Paper SECY-95-132 (May 22, 1995), Attachment 

2, at 2-3 (ML003708005); Staff Requirements—SECY-95-132—Policy and Technical Issues 

Associated with the Regulatory Treatment of Non-Safety Systems (RTNSS) in Passive Plant 

Designs (SECY-94-084) (June 28, 1995) (ML003708019); see also Callan, L. Joseph, Executive 

Director for Operations, to Commissioners, “Implementation of Staff Position in SECY-96-128, 

‘Policy and Key Technical Issues Pertaining to the Westinghouse AP600 Standardized Passive 

Reactor Design,’ Related to Post-72 Hour Actions” (June 23, 1997), at 2-3 (ML003708229); 

“Policy and Key Technical Issues Pertaining to the Westinghouse AP600 Standardized Passive 

Reactor Design,” Commission Paper SECY-96-128 (June 12, 1996) (ML003708224); Ex. 

NRC000004, Staff Responses to Initial Pre-Hearing Questions at 14. 

100 See Tr. at 96 (Mr. Nolan); Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions 

at 14. 

101 Tr. at 97 (Mr. Smith). 

102 Ex. NRC000008B, SER at 20-11. 
- 24 -

In its letter summarizing its independent review of the safety aspects of DTE’s 

application, the ACRS noted that seismic Category NS (non-seismic) and Category II structures 

that house RTNSS equipment must be evaluated for hurricane-generated missiles, but it also 

noted that there is no corresponding requirement for tornado-generated missiles.103 The ACRS 

expressed some concern that the ability of these structures to withstand tornado-driven missiles 

had not been evaluated either with regard to the ESBWR design or for the Fermi Unit 3 site, 

making it “unclear that structures . . . hous[ing] RTNSS equipment that is credited for mitigation 

of beyond-design-basis external events will survive” the impact of a tornado-driven missile.104 

Nonetheless, the ACRS acknowledged the ESBWR’s passive design and the ESBWR’s ability 

to maintain passive core cooling, containment functions, and spent fuel cooling for at least 

 

103 ACRS Letter at 4; see also ESBWR Design Control Document, Tier 2, Chapter 3, Design of 

Structures, Components, Equipment, and Systems, Rev. 10 (Apr. 2010), at 3.3-1 

(ML14104A929 (package)) (ESBWR DCD) (“Seismic Category I structures are designed for 

tornado and extreme wind phenomena. Seismic Category II structures are designed for 

extreme and tornado wind (excluding tornado missiles),” and “Seismic Category NS buildings 

that house RTNSS equipment are designed to withstand hurricane Category 5 wind velocity at 

87.2 m/s (195 mph), 3-second gust.”). Section 3.2.1 of the ESBWR design control document 

defines the seismic categories: Seismic Category I structures “must remain integral with 

systems and components (including their foundations and supports) that must remain functional 

or retain their pressure integrity in the event of a safe-shutdown earthquake.” Seismic Category 

II structures, systems, and components “perform no safety-related function, but . . . [their] 

structural failure or interaction could degrade the functioning of a Seismic Category I item to an 

unacceptable level of safety or could result in incapacitating injury to occupants of the main 

control room.” They “are designed to structurally withstand the effects of a [safe-shutdown 

earthquake].” “Seismic Category II structures, systems and components that are also classified 

as . . . [RTNSS] Criterion B in [design control document] Tables 19A-2 and 19A-3 are required 

to remain functional following a seismic event.” All other structures, systems, and components 

are designated Seismic Category NS, and “are designed for seismic requirements in 

accordance with the International Building Code.” ESBWR DCD at 3.2-1 to 3.2-2. 

104 ACRS Letter at 4. 
- 25 -

seventy-two hours after the plant is shut down.105 It noted that RTNSS equipment would not be 

required for the first seventy-two hours after loss of AC power, and that equipment from national 

response centers could provide defense-in-depth mitigating strategies if RTNSS equipment is 

not available thereafter.106 

In its response to our pre-hearing questions, the Staff explained that when it developed 

the policy for the protection of RTNSS equipment from certain external events in the 1990s, it 

required some RTNSS equipment to withstand hurricane loads and missiles, but not tornado 

loads or tornado missiles.107 The Staff focused on the external events that could potentially 

result in widespread damage—hurricanes, floods, and seismic events—over the more localized 

damage from a tornado.108 The Staff represented that it has applied this approach consistently 

since that time to all passive reactor designs, including the ESBWR.109

Specifically with regard to the application for Fermi Unit 3, the RTNSS B long-term 

cooling equipment is located in a seismic Category I structure that is “designed to provide 

 

105 See id.

106 Id.

107 Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions at 14. 

108 Id. at 14-15. 

109 Id. at 15. In its response to the ACRS on this issue, the Staff stated that it has since updated 

its RTNSS guidance to include tornado-missiles. See Staff Response to ACRS at 6. The Staff 

was asked at the hearing whether it was concerned that the updated guidance was not used in 

the review of DTE’s application. Tr. at 108-09 (Commissioner Baran). Ryan Nolan, Reactor 

Systems Engineer, Balance of Plant Branch, Office of New Reactors, stated that the Staff had 

no concern and reiterated that the RTNSS equipment is not safety-related and therefore not 

held to the standard of safety-related equipment and that the conservativism of the new 

guidance may vary depending on the site. Id. (Mr. Nolan). 
- 26 -

protection from design-basis storms, tornados, and floods” so that the effects of natural 

phenomena do not adversely affect long-term core and spent fuel pool cooling.110 The Staff 

stated that the diesel-driven or motor-driven fire pumps housed within that enclosure can be 

used to provide makeup water to the passive safety system after the first seventy-two hours 

following an external event.111 For the ancillary diesel generator, an item that is housed within a 

Category II structure and used to power the motor-driven fire pump, the Staff explained that the 

diesel-driven pumps or power sources brought from offsite could support mitigation if the 

structure housing the ancillary diesel generator does not survive an external event.112

c. Staff Activities Relating to Fukushima Lessons-Learned 

The Staff, in its pre-hearing information paper, described its review of DTE’s combined 

license application relative to regulatory actions that the NRC has taken in response to lessons 

learned from the Fukushima Dai-ichi accident.113 The Staff requested DTE to “provide an 

evaluation of the Fermi 3 site for updated seismic hazards”; “develop mitigating strategies for 

beyond-design-basis external events”; “provide reliable spent fuel pool instrumentation”; and 

“evaluate emergency preparedness staffing and communications.”114 The Staff stated that DTE 

 

110 Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions at 28; see also Ex. 

DTE000002, DTE Response to Initial Pre-Hearing Questions at 11. 

111 Id.

112 Id.

113 Ex. NRC000001, Staff Information Paper at 14-15. 

114 Id.
- 27 -

provided the requested information and updated its application accordingly.115 We asked the 

Staff a pre-hearing question regarding the Staff’s verification of the adequacy of DTE’s use of 

the Electric Power Research Institute’s (EPRI) 2004/2006 ground motion model rather than 

EPRI’s 2013 ground motion model to update its seismic hazard analysis.116

In Safety Panel 2, DTE and the Staff addressed the Fukushima-related requests for 

additional information.117 Mr. Smith for DTE stated that its responses to the Staff’s information 

requests were primarily administrative in nature and none of them required changes to the 

design.118 He explained that the Staff will impose license conditions for: (1) implementing 

mitigation strategies under the NRC-endorsed “FLEX” approach proposed by the Nuclear 

Energy Institute (NEI);119 (2) operator training on external power for the ESBWR’s spent fuel 

pool instrumentation; and (3) reevaluating staffing and communications for emergency 

preparedness.120

 

115 Id. at 15. 

116 Initial Pre-Hearing Questions at 11-12. 

117 See Ex. DTE000007, DTE Safety Panel 2 Presentation at 2; Ex. NRC000013, Staff Safety 

Panel 2 Presentation at 3-16. 

118 Tr. at 115. 

119 See NEI 06-12, Diverse and Flexible Coping Strategies (FLEX) Implementation Guide, Rev. 

0 (Aug. 2012) (ML12242A378) (proposing the flexible use of onsite and offsite equipment to 

cope with beyond-design-basis external events). The Staff endorsed the FLEX approach in 

JLD-ISG-2012-01, Interim Staff Guidance, “Compliance with Order EA-12-049, Order Modifying 

Licenses with Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis 

External Events,” Rev. 0 (Aug. 29, 2012) (ML12229A174). 

120 Id. at 115-16; see also Ex. DTE000007, DTE Safety Panel 2 Presentation at 2. 
- 28 -

The Staff described three of its Fukushima-related requests for additional information 

and provided its findings at the hearing.121 First, the Staff discussed its assessment of the 

agency’s 2012 order imposing requirements for mitigation strategies for beyond-design-basis 

external events.122 The Staff explained that the ESBWR passive design provides mitigation for 

seventy-two hours following a beyond-design-basis external event, or “initial phase 

mitigation.”123 Because the passive design provides mitigation for up to seventy-two hours 

without AC power, and installed RTNSS equipment could enhance the time period for transition 

to seven days, the Staff found that it provides sufficient time to transition to the final stage 

“without necessarily relying upon a transition phase.”124 After that time frame, DTE will rely on 

the ESBWR’s passive design and offsite resources to maintain cooling for the core, 

containment, and spent fuel pool for “final phase mitigation.”125 The Staff concluded that the 

Fermi 3 mitigating strategies provide the core cooling, containment, and spent fuel pool cooling 

 

121 With respect to the Staff’s request for additional information concerning DTE’s seismic 

hazard analysis, DTE updated the information in its application using inputs from the Central 

and Eastern U.S. Seismic Source Characterization Model. Ex. NRC000001, Staff Information 

Paper at 15. The Staff then performed its own calculations and confirmed that DTE’s updated 

calculations “accurately characterize the ground motion at the Fermi 3 site.” Id.; see also supra

notes 88-97 and accompanying text. 

122 Ex. NRC000013, Staff Safety Panel 2 Presentation at 3 (citing Order EA-12-049, “Order 

Modifying Licenses with Regard to Requirements for Mitigation Strategies for Beyond-DesignBasis External Events” (ML12054A736 (package))). 

123 Tr. at 120 (Mr. Stubbs). 

124 Ex. NRC000008B, SER at 20-10. 

125 Ex. NRC000013, Staff Safety Panel 2 Presentation at 4-7; Tr. at 121 (Mr. Stubbs). 
- 29 -

capabilities required in the mitigation strategies order.126 The Staff also discussed the proposed 

license condition that would require DTE to implement the guidance and strategies in the NEI 

“FLEX” plan prior to fuel load.127

Second, with regard to spent fuel pool instrumentation, the Staff explained that the 

ESBWR design provides instruments that measure the level of water in the spent fuel pool 

which are full-range, safety-related, Seismic Category I, and permanently installed. The 

instruments are also protected from internally and externally generated missiles, physically 

separated from each other, and powered from separate power sources.128 The ESBWR level 

instrument description will include “independent power source connectivity and instrument 

design accuracy.”129 The Staff proposed a license condition that would require DTE to 

implement a training program on establishing the alternate power connections to the level 

instruments.130

Finally, the Staff discussed the license condition that it would impose to ensure that DTE 

performs an assessment of communications systems and equipment needed during a 

prolonged station blackout and the staffing capability needed to respond to a multi-unit event.131 

DTE would need to complete this assessment eighteen months before the last date scheduled 

 

126 Tr. at 121 (Mr. Stubbs). 

127 Id. (Mr. Stubbs); Ex. NRC000013, Staff Safety Panel 2 Presentation at 9. 

128 Ex. NRC000013, Staff Safety Panel 2 Presentation at 11; Tr. at 122 (Mr. Hernandez). 

129 Ex. NRC000013, Staff Safety Panel 2 Presentation at 11. 

130 Id. at 12; Tr. at 123 (Mr. Hernandez). 

131 Ex. NRC000013, Staff Safety Panel 2 Presentation at 13. 
- 30 -

for completing the inspections, tests, analyses, and acceptance criteria (ITAAC) in the combined 

license.132 The Staff found this approach acceptable because it would be imposed as a 

condition in the license and because DTE committed to using NRC-endorsed guidance when 

conducting its assessment.133

d. Emergency Planning 

In its pre-hearing information paper, the Staff identified the proximity of the Fermi site to 

the Canadian border as a novel issue in its environmental review.134 We considered this issue 

in the context of the safety review as well and asked the Staff pre-hearing questions in 

recognition of the fact that the Canadian border lies within the ten-mile emergency planning 

zone for Fermi Unit 3.135 In particular, we asked whether NRC regulations require an applicant 

to make protective action recommendations to Canadian officials in the event of an emergency 

at the Fermi site.136 In addition, we asked how protective action recommendations to state, 

local, or provincial officials would be made regarding members of the public (for example, 

boaters) within the United States and Canadian portions of the plume exposure pathway 

 

132 Id. at 15. The Staff modified the license condition proposed by DTE from a completion date 

of two years before initial fuel load. Id.

133 Id. at 15-16; Tr. at 124 (Mr. Barss). 

134 Ex. NRC000001, Staff Information Paper at 17-19. 

135 Initial Pre-Hearing Questions at 3-4. 

136 Id. at 3. 
- 31 -

emergency planning zone.137 We also asked how the proximity of proposed Fermi Unit 3 to 

Canada affected the Staff’s emergency planning review overall.138

In response, the Staff noted that the NRC’s emergency planning regulations do not 

address areas outside of the United States and therefore there is no requirement for DTE to 

make protective action recommendations to Canada.139 The Staff explained, however, that 

DTE’s emergency plan takes the Canadian border into account. It provides for an initial 

notification to the Province of Ontario, Canada in several circumstances: in the event of an initial 

emergency classification; a classification escalation; the issuance of, or change to, a protective 

action recommendation for the general public; the state of a radiological release status; and 

event de-escalation, termination, or entry into recovery phase.140 The Staff also stated that 

state and local officials are responsible for implementing protective action recommendations 

and that if informed of a general emergency, the State of Michigan would request assistance 

from the U.S. Coast Guard (through the National Response Framework) for protective actions 

affecting activities on Lake Erie, including Canadian waters.141 The Province of Ontario and the 

appropriate local officials would be responsible for implementing protective actions in the 

Province and would respond in accordance with the Provincial Nuclear Emergency Response 

 

137 Id.

138 Id.

139 Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions at 4-5. 

140 Id. at 5. 

141 Id. at 6. 
- 32 -

Plan.142 In addition, the Staff noted that our agency and the Canadian Nuclear Safety 

Commission have formally agreed to notify each other “promptly of any significant radiological 

event, accident, or emergency that occurs in activities under . . . [our] respective jurisdictions.”143 

The Staff stated that its review “was not materially affected by the proximity to Canada.”144

e. Squib Valves 

We also asked the Staff to discuss its review of squib valves, which were the topic of 

considerable discussion during the mandatory hearings for the Vogtle and Summer combined 

license applications, which referenced the AP1000 certified design.145 This topic was of 

particular focus for the Vogtle and Summer hearings because the inservice testing and 

inspection program for squib valves in those applications would have relied on an American 

Society of Mechanical Engineers (ASME) code provision that was still under development at the 

time.146 

In the event of a severe accident in an AP1000, squib valves, which are explosively 

activated, reduce pressure and inject water as needed into the reactor vessel.147 The squib 

valves are subject to ITAAC specified in the AP1000 DCD. The purpose of the testing program 

 

142 Id. at 5-6. 

143 Id. at 5 (citing “Arrangement Between USNRC and CNSC for the Exchange of Technical 

Information and Cooperation in Nuclear Safety Matters” (ML12152A096)). 

144 Id.

145 See Vogtle, CLI-12-2, 75 NRC at 90-96; Summer, CLI-12-9, 75 NRC at 460-64. 

146 Vogtle, CLI-12-2, 75 NRC at 91; Summer, CLI-12-9, 75 NRC at 461. 

147 See Vogtle, CLI-12-2, 75 NRC at 90; Summer, CLI-12-9, 75 NRC at 461. 
- 33 -

required by ITAAC is to ensure that the valves operate as intended under design conditions.148 

Although we found the Staff’s review of the Vogtle and Summer applications rigorous, we 

shared a concern initially raised by ACRS regarding the status of the inservice 

inspection/inservice testing program for this component and imposed a condition in the Vogtle 

and Summer licenses that requires the implementation of a squib-valve surveillance program 

prior to fuel load.149

The Vogtle and Summer applications and the Fermi Unit 3 application reference entirely 

different reactor designs: the Vogtle and Summer applications referenced the AP1000 certified 

design, and the Fermi Unit 3 application, as discussed above, references the ESBWR certified 

design. Nevertheless, the ESBWR also uses squib valves as part of its passive safety system, 

and the Staff has proposed a license condition, based on the experience licensing Vogtle and 

Summer, that would require a surveillance program for squib valves prior to fuel load to 

supplement the inservice testing requirements.150 We asked the Staff a pre-hearing question on 

this issue; the Staff also provided testimony at the hearing.151

The Staff explained that the 2012 edition of the ASME code, which the Staff is in the 

process of incorporating by reference into 10 C.F.R. § 50.55a, includes pre-service and 

 

148 See Vogtle, CLI-12-2, 75 NRC at 90; Summer, CLI-12-9, 75 NRC at 461. 

149 Vogtle, CLI-12-2, 75 NRC at 93-95; Summer, CLI-12-9, 75 NRC at 461-63. 

150 Tr. at 98-99 (Mr. Scarbrough) (explaining that there is a wider size range of squib valves in 

the ESBWR than in the AP1000); Ex. NRC000008A, SER at 3-88 to 3-90; Ex. NRC000002, 

Draft Combined License, Enrico Fermi Nuclear Plant Unit 3, DTE Electric Company, Docket No. 

52-033 (Dec. 4, 2014), at 12-14 (Draft Combined License). 

151 Initial Pre-Hearing Questions at 9-10; Tr. at 98-100. 
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inservice surveillance provisions for squib valves.152 After the rulemaking is completed, 

licensees for new reactors will be required to comply with the ASME code surveillance 

provisions under 10 C.F.R. § 50.55a(f)(4)(i).153 Until that time, however, the surveillance 

provisions will be imposed by a condition in the license.154 At the hearing, Thomas Scarbrough, 

Senior Mechanical Engineer, Mechanical Engineering Branch, Office of New Reactors, 

explained that the proposed license condition for Fermi Unit 3 has more specific requirements 

than the ASME code provision.155 He stated that the license condition specifically requires 

surveillance of squib valves in the gravity-driven cooling system and the automatic 

depressurization system but that it is consistent with the ASME code provision.156

f. Knowledge Management 

DTE has not set a date to begin construction of Fermi Unit 3 and has acknowledged that 

construction may not begin immediately after the issuance of a license for Fermi Unit 3.157 At 

the hearing, we explored DTE’s and the Staff’s plans to maintain the knowledge gained during 

the combined license review, should DTE receive our approval for a license and wait for some 

period of months or years to begin construction.158 DTE and the Staff were asked to address 

 

152 Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions at 19. 

153 Id.; Tr. at 100 (Mr. Scarbrough). 

154 Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions at 19. 

155 Tr. at 99. 

156 Id.; see also Ex. NRC000004, Staff Responses to Initial Pre-Hearing Questions at 20. 

157 See Tr. at 209 (Mr. Smith). 

158 See id. at 209-12. 
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the challenges they see, if any, in preserving knowledge between receipt of a combined license 

and future construction.159

Mr. Smith for DTE explained that over the past two years DTE has been in the process 

of establishing a “holder project” that will provide the “infrastructure” to comply with NRC 

requirements as a licensee “for an indefinite period of time,” including funds in its “long-term 

planning budget.”160 Mr. Smith also explained that the continued operation of Fermi Unit 2 

provides a “ready pool of resource[s].”161

Mr. Tracy, responding for the Staff, explained that the question goes to the heart of the 

Staff’s plans for the future of the new reactor program.162 He acknowledged the need to retain 

knowledge and experience between NRC Headquarters and NRC Region II for license issuance 

and proper oversight.163 Mr. Akstulewicz expanded on this response, breaking down the 

knowledge-management issue into two time periods—the near term (five years) and the long 

term (beyond five years).164 Over the next five years, Mr. Akstulewicz stated that the Staff will 

remain busy working through the detailed design of the ESBWR as the licensing review 

continues for the North Anna combined license application, whose applicant is again referencing

 

159 Tr. at 209 (Chairman Burns). 

160 Id. at 209-10. 

161 Id. at 210. 

162 See id.

163 Id.

164 Id. at 211. 
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the ESBWR design.165 Beyond that time frame, as DTE provides its regular updates to the Final 

Safety Analysis Report (FSAR), Mr. Akstulewicz stated that the Staff will need to ensure that 

knowledge and staffing resources are maintained to address potentially evolving technical 

issues.166

2. Environmental Issues 

a. Historic Preservation of Fermi Unit 1 

The Staff identified two novel environmental issues in its information paper that it 

discussed at the hearing—the historic preservation of Fermi Unit 1, and the Staff’s interaction 

with international organizations due to the Fermi site’s proximity to the Canadian border.167 

DTE’s plans for constructing Fermi Unit 3 require the demolition of Fermi Unit 1, a prototype 

ninety-four megawatt electric fast breeder reactor that began commercial operation in 1957 and 

was permanently shut down in 1972.168 The American Nuclear Society designated Fermi Unit 1 

 

165 Id.

166 Id. at 212. 

167 Ex. NRC000001, Staff Information Paper at 16-19. The Staff also discussed its 

implementation of the Continued Storage Rule, but this became a potentially contested issue 

after the Staff submitted its paper and responded to pre-hearing questions on the topic. See Ex. 

NRC000001, Staff Information Paper at 19-20; Ex. NRC000004, Staff Responses to Initial PreHearing Questions at 42-44. The parties were asked not to discuss the issue at the 

uncontested hearing. Tr. at 176-77 (Chairman Burns). 

168 Tr. at 180-81 (Ms. Sutton). 
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as a Nuclear Historic Landmark in 1986.169 In addition, Fermi Unit 1 is eligible for listing in the 

National Register of Historic Places.170

As part of its compliance with section 106 of the National Historic Preservation Act, the 

Staff determined that “if demolition of Fermi Unit 1 is required to build Fermi 3, this will result in 

a finding of adverse effect under [the] applicable . . . criteria in 36 CFR [§] 800.5.”171 The Staff, 

the Michigan State Historic Preservation Officer, and DTE entered into a memorandum of 

agreement to mitigate the adverse effect finding.172 DTE agreed to preserve artifacts from 

Fermi Unit 1 in a permanent exhibit at the Monroe County Community College; the exhibit 

opened in August 2013.173 It also sent a documentation package on Fermi Unit 1 to the 

Michigan State Archives.174 On January 31, 2014, DTE notified the Staff that it had completed 

work on the exhibit.175 The Staff concluded that DTE had met the terms of the memorandum of 

agreement.176

 

169 Tr. at 181 (Ms. Sutton); Ex. NRC000015, Staff Environmental Panel 2 Presentation at 2. 

170 Ex. NRC000015, Staff Environmental Panel 2 Presentation at 2. 

171 Tr. at 181 (Ms. Sutton). See generally National Historic Preservation Act of 1966, as 

amended, § 106, 16 U.S.C. § 470f. 

172 Tr. at 181 (Ms. Sutton). 

173 Id. at 182 (Ms. Sutton); Ex. DTE000009, DTE Environmental Panel 2 Presentation at 3. 

174 Ex. NRC000015, Staff Environmental Panel 2 Presentation at 3. 

175 Tr. at 182 (Ms. Sutton). 

176 Id. (Ms. Sutton). 
- 38 -

b. International Cooperation 

The Staff found its interactions with international organizations to be an important part of 

its environmental review for Fermi Unit 3, given that the international boundary between the 

United States and Canada is just over seven miles (eleven kilometers) from the Fermi site.177 

Even though NRC regulations do not require the Staff to analyze the environmental impacts of 

NRC licensing actions “‘upon the environment of foreign nations,’” the Staff explained that it 

extended its outreach to international organizations “to inform its analysis of the potential 

environmental impacts of the Fermi project.”178 DTE, for its part, explained that cross-border 

interaction with Canada, although not usually pertaining to environmental concerns, is not new; 

it meets regularly with Canadian officials primarily with regard to emergency planning for Fermi 

Unit 2.179 Mr. Smith testified for DTE; he explained that DTE addressed the potential transboundary impacts in its Environmental Report and that none of them were unique or unusual.180

The Staff stated that it contacted two environmental organizations—the International 

Joint Commission’s Great Lakes Water Quality Board and the Great Lakes Fisheries 

Commission.181 The International Joint Commission’s Great Lakes Water Quality Board is 

made up of federal, state, provincial, local, and tribal government officials in the United States 

 

177 Ex. NRC000001, Staff Information Paper at 17-18. 

178 Id. (quoting 10 C.F.R. § 51.10(a)). 

179 Ex. DTE000009, DTE Environmental Panel 2 Presentation at 4; Tr. at 179 (Mr. Smith). 

180 Ex. DTE000009, DTE Environmental Panel 2 Presentation at 4; Tr. at 180. 

181 Ex. NRC000001, Staff Information Paper at 18; Tr. at 183 (Ms. Sutton); see also Ex. 

NRC000010B, FEIS at D-7, D-77 to D-78. 
- 39 -

and Canada, as well as representatives from business and environmental organizations.182 The 

Great Lakes Fisheries Commission is made up of federal, state, and provincial government 

officials from the United States and Canada, as well as academic experts.183 The information 

that the Staff gathered from these organizations informed the Staff’s analysis in the FEIS.184 For 

example, in a letter responding to the Staff’s request for comments, the Great Lakes Water 

Quality Board cited a number of its reports on water quality in the Great Lakes Basin, and the 

Staff considered this information when evaluating the impacts from operation of Fermi Unit 3.185

The Staff also contacted the U.S. Fish and Wildlife Service for information relating to 

trans-boundary impacts to the Detroit River International Wildlife Refuge, which Fish and 

Wildlife manages jointly with the Canadian government.186 In 2003, DTE placed portions of the 

Fermi site under management of the Detroit River International Wildlife Refuge.187 Fish and 

Wildlife commented during the scoping process for the Fermi Unit 3 application that it would 

“continue to work with DTE on wildlife management during the Fermi 3 planning process.”188 

The Staff used the information obtained from Fish and Wildlife regarding the refuge to inform its 

 

182 Ex. NRC000001, Staff Information Paper at 18. 

183 Id.

184 Id.

185 See Ex. NRC000010B, FEIS at D-78. 

186 Ex. NRC000001, Staff Information Paper at 18. 

187 Id.; see also Ex. NRC000010B, FEIS at D-54. 

188 Ex. NRC000001, Staff Information Paper at 18. 
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land use and terrestrial ecology impact determinations.189 Overall, the Staff found that the 

information it obtained through its international outreach “supported the thoroughness of . . . [its] 

review.”190

c. Proposed Transmission-Line Corridor 

In its Environmental Report, DTE described a proposed transmission corridor to deliver 

electricity from the new plant to the grid.191 DTE explained that the International Transmission 

Company (ITCTransmission) plans to install three new 345 kV transmission lines from Unit 3 to 

a substation northwest of the plant.192 The proposal would place the lines in existing corridors of 

Fermi and non-Fermi lines for 18.6 miles (29.9 kilometers).193 The lines would then continue to 

the Milan substation in a mostly undeveloped corridor for 10.8 miles (17.4 kilometers).194 DTE 

stated that ITCTransmission would own and operate the lines in the proposed corridor.195 

DTE’s Environmental Report discussed potential environmental impacts along the 

potential transmission corridor.196 DTE concluded that the environmental impacts of 

transmission-line development likely would be small because most of the development would 

 

189 Id.

190 Id. at 19. 

191 Ex. NRC000006F, DTE Combined License Application at 1-4 to 1-5, 2-22 to 2-26. 

192 Id. at 1-4 to 1-5. 

193 Id. at 2-23. 

194 Id.

195 Id. at 1-5. 

196 See, e.g., Ex. NRC000006F, NRC000006G, NRC000006H, DTE Combined License 

Application at 2-22 to 2-26, 2-469 to 2-473, 4-12 to 4-22, 5-5 to 5-10 
- 41 -

likely take place along an existing corridor.197 Further, DTE reasoned that the proposed shorter, 

10.8-mile (17.4-kilometer) undeveloped corridor would be expected to experience minimal 

impacts because best management practices likely would be used and only a limited area 

around the bases of the towers would be disturbed.198 The NRC Staff incorporated this 

information into the FEIS along with its own review. Appendix M of the FEIS provides a 

roadmap of the Staff’s discussion of transmission-line impacts.199

As discussed above, Intervenors in the contested proceeding twice proposed a 

contention challenging DTE’s and the Staff’s discussion of transmission-corridor impacts. The 

Board dismissed those challenges as impermissibly late, but requested our permission to review 

the adequacy of the Staff’s consideration of transmission-corridor impacts sua sponte. We 

denied the Board’s request, which left the issue uncontested and therefore suitable for our 

review in the mandatory hearing. Thereafter, we explored with DTE and the Staff the 

environmental impacts of the proposed transmission-line corridor before and during the 

hearing.200 

 

197 See Ex. NRC000006G, DTE Combined License Application at 4-12 to 4-22. 

198 See id. at 4-15 to 4-16. 

199 Ex. NRC000010D, FEIS at M-1 to M-2. 

200 See Transmission-Line Corridor Questions; Tr. at 154-58 (Commissioner Baran); Ex. 

NRC000016, NRC Staff Responses to Commission Additional Pre-Hearing Questions, 

Proposed Corrections to Draft COL, and Updated Exhibit Table (Jan. 30, 2015). 
- 42 -

Building transmission lines is not considered “construction” within the scope of the 

NRC’s regulatory authority.201 As such, the Staff ordinarily evaluates the environmental impacts 

of building transmission lines as part of its cumulative impacts analysis.202 However, the U.S. 

Army Corps of Engineers—a cooperating agency in the environmental review of DTE’s 

combined license application—considered preconstruction activities like the proposed 

transmission-line corridor to be within the direct impacts of the Fermi Unit 3 project.203 

Therefore, the Staff considered the impacts of the proposed transmission-line corridor for Fermi 

Unit 3, normally a “preconstruction activity,” together with the impacts of “construction” activities 

within the NRC’s regulatory purview.204 The Staff also discussed measures to mitigate any 

adverse impacts from the transmission lines, as well as considered transmission-line impacts in 

its alternatives analysis.205

 

201 See id. §§ 50.10(a)(2)(vii), 51.4 (defining “construction”); see also See Final Rule, Limited 

Work Authorizations for Nuclear Power Plants, 72 Fed. Reg. 57,416, 57,417 (Oct. 9, 2007) 

(Limited Work Authorization Rule) (requiring NRC authorization “only before undertaking 

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

defense and security”). 

202 Limited Work Authorization Rule, 72 Fed. Reg. at 57,421. 

203 See Ex. NRC000010A, FEIS at 1-7 to 1-8, 4-1 to 4-4. 

204 See id. at 4-3; Ex. NRC000010D, FEIS at M-1 to M-2. 

205 See, e.g., id. at 4-25 (citing the Environmental Protection Agency’s recommendation that 

when clearing forested land for transmission lines that DTE “consider establishing low-growing 

native plants conducive to periodic mowing”); id. at 4-9 (noting ITCTransmission’s statement 

that it would use best practices for minimizing environmental impacts); Ex. NRC000010B, FEIS 

at 9-4 (discussing transmission-corridor impacts relative to alternative sources of energy); id. at 

9-81, 9-95 to 9-96, 9-263 (considering transmission-corridor impacts in the comparison of 

alternative sites). 
- 43 -

The Staff explained at the hearing that there would have been no difference in its FEIS 

analysis of transmission-corridor impacts had the Staff considered their development a “direct 

impact” of licensing Fermi Unit 3.206 Given that there has been no formal proposal by 

ITCTransmission announcing the route of the proposed transmission line for Fermi Unit 3, the 

Staff performed its analysis using the best information available.207 The Staff expected that the 

U.S. Army Corps of Engineers and state agencies, including the Michigan Department of 

Environmental Quality, would perform additional environmental analyses when ITCTransmission

applies for the permits it will need to build any new transmission lines.208

d. Consultation under the Endangered Species Act 

Section 7 of the Endangered Species Act requires an agency, in consultation with and 

with the assistance of the Secretary of the Interior or the Secretary of Commerce (as 

appropriate), to ensure that “any action authorized, funded, or carried out by such agency . . . is 

not likely to jeopardize the continued existence of any endangered species or threatened 

species or result in the destruction or adverse modification of critical habitat of such species.”209 

As part of its environmental review, the Staff prepared a biological assessment discussing the 

potential impacts of constructing and operating Fermi Unit 3 on federally listed threatened or 

endangered species and species that are candidates for federal listing.210 The Staff found that 

 

206 See Tr. at 155-58. 

207 See id. at 155; Ex. NRC000010A, FEIS at 2-10. 

208 See, e.g., Ex. NRC000010A, FEIS at 2-61, 4-8, 4-11. 

209 Endangered Species Act § 7(a)(2), 16 U.S.C. § 1536(a)(2). 

210 See Ex. NRC000010D, app. F. 
- 44 -

no listed species were likely to be adversely affected by the project, and the respective federal 

resource agencies agreed.211 After the Staff finalized the FEIS, and shortly before the hearing, 

however, the U.S. Fish and Wildlife Service listed a new threatened species, the rufa red knot 

bird.212 

At the hearing, the Staff provided the status of ongoing interactions with Fish and Wildlife 

concerning the rufa red knot bird.213 Mallecia Sutton testified that the Staff contacted Fish and 

Wildlife and planned to issue a supplemental biological assessment for the rufa red knot.214 The 

Staff has since notified us that it submitted its biological assessment to Fish and Wildlife on 

February 20, 2015.215 The Staff determined that the proposed action may affect but is not likely 

to adversely affect the rufa red knot.216 The Fish and Wildlife Service concurred with the Staff’s 

conclusion.217 

The Staff also provided a status update on Fish and Wildlife’s then-proposed listing of 

the northern long-eared bat as a threatened or endangered species.218 We note that the Fish 

and Wildlife Service listed the northern long-eared bat as a threatened species on April 2, 

 

211 Tr. at 152 (Ms. Sutton). 

212 See Ex. NRC000014, Staff Environmental Panel 1 Presentation at 12. 

213 See id.

214 Tr. at 152, 158-59. 

215 See April 5 Commission Notification at 1. 

216 Id.; see also Ex. NRC000018, Supplemental Biological Assessment at 25. 

217 April 5 Commission Notification; see also Ex. NRC000019, March 23 Letter from the Fish 

and Wildlife Service at 1-2. 

218 Ex. NRC000014, Staff Environmental Panel 1 Presentation at 12. 
- 45 -

2015.219 Subsequently, the Staff submitted a biological assessment to the Fish and Wildlife 

Service that concluded that construction and operation of Fermi Unit 3 may affect but is not 

likely to adversely affect the northern long-eared bat.220 The listing of the northern long-eared 

bat will not be effective until May 4, 2015.221 In the meantime, however, the Fish and Wildlife 

Service has concurred with the Staff’s conclusion.222 

B. Findings 

We have conducted an independent review of the sufficiency of the Staff’s safety 

findings, with particular attention to the topics discussed above. Our findings, however, are 

based on the entire record. Based on the evidence presented in the uncontested hearing, 

including the Staff’s review documents and the testimony provided, we find that the applicable 

standards and requirements of the Atomic Energy Act and the NRC regulations have been met. 

The required notifications to other agencies or bodies have been duly made. DTE is technically 

and financially qualified to engage in the activities authorized.223 We find that there is 

 

219 See Endangered and Threatened Wildlife and Plants; Threatened Species Status for the 

Northern Long-Eared Bat with 4(d) Rule, 80 Fed. Reg. 17,974 (Apr. 2, 2015) (Northern LongEared Bat Listing); April 5 Commission Notification at 1. 

220 Ex. NRC000020, Supplemental Biological Assessment (Northern Long-Eared Bat). 

221 Northern Long-Eared Bat Listing, 80 Fed. Reg. at 17,974. 

222 April 29 Commission Notification; Ex. NRC000021, April 28 Letter from the Fish and Wildlife 

Service. 

223 As part of its financial qualification review, the Staff found that DTE had met the requirements 

for financial protection and onsite property insurance for Fermi Unit 3. Ex. NRC000008A, SER 

at 1-37 to 1-38. The Staff stated that it would issue DTE an amended indemnity agreement to 

include Fermi Unit 3 upon issuance of the combined license. Id. at 1-38. The Staff has since 

provided an update on the status of its amendment to the indemnity agreement. Particularly, 

the Staff represented that American Nuclear Insurers has committed to “endorse a site 

(continued . . .) 
- 46 -

reasonable assurance that the facility will be constructed and operated in conformity with the 

license, the provisions of the Atomic Energy Act, and the NRC’s regulations and that issuance 

of the license will not be inimical to the common defense and security or to the health and safety 

of the public. Additionally, we find that the Staff’s proposed license conditions are appropriately 

drawn224 and sufficient to provide reasonable assurance of adequate protection of public health 

and safety. 

We also conducted an independent review of the Staff’s environmental analysis in the 

FEIS taking into account the particular requirements of NEPA. NEPA section 102(2)(A) requires 

agencies to use “a systematic, interdisciplinary approach which will insure the integrated use of 

the natural and social sciences and the environmental design arts” in decision-making that may 

impact the environment.225 We find that the environmental review team used the systematic, 

 

(. . . continued) 

insurance policy that includes the Fermi 3 site concurrent with the NRC’s issuance of a . . . 

[combined license] to DTE” and concurrent with the amendment of the indemnity agreement. 

Roach, Kevin C., Counsel for the Staff, letter to the Commissioners (Mar. 24, 2015), at 1. The 

Staff further represented that it will coordinate with DTE and American Nuclear Insurers so that 

the amended policy is effective as of the date of the combined license and the amended 

indemnity agreement. Id. The Staff thus confirmed its financial protection finding. Id. at 1-2 

(citing Ex. NRC000002, Draft Combined License at 1 (“The Fermi owner has satisfied the 

applicable provisions of 10 [C.F.R.] Part 140, “Financial Protection Requirements and Indemnity 

Agreements[.]”)). 

224 However, we direct the Staff to make the changes to the draft combined license that it 

identified during this proceeding. See Ex. NRC000004, NRC Staff Responses to Commission 

Initial Pre-Hearing Questions at 28-30; Ex. NRC000016, Staff Responses to Additional PreHearing Questions, Attachment B; April 5 Commission Notification; see also Ex. NRC000002, 

Draft Combined License. 

225 NEPA § 102(2)(A), 42 U.S.C. § 4332(2)(A). 
- 47 -

interdisciplinary approach that NEPA requires.226 The environmental review team consisted of 

more than forty individuals with expertise in disciplines including ecology, geology, hydrology, 

radiological health, socioeconomics, and cultural resources.227 

NEPA section 102(2)(E) calls for agencies to study, develop, and describe appropriate 

alternatives.228 The alternatives analysis is the “heart of the environmental impact statement.”229 

Based on the Staff’s testimony at the hearing, as well as the discussion in the FEIS, we find that 

the environmental review identified an appropriate range of alternatives with respect to 

alternative power sources, alternative sites, and alternative system designs and adequately 

described the environmental impacts of each alternative.230 We find reasonable the Staff’s 

conclusion that none of the alternatives considered is environmentally preferable to the 

proposed action.231

NEPA section 102(2)(C) requires us to assess the relationship between local short-term 

uses and long-term productivity of the environment, to consider alternatives, and to describe the 

unavoidable adverse environmental impacts and the irreversible and irretrievable commitments 

 

226 See, e.g., Tr. at 144-48 (Ms. Dixon-Herrity) (providing an overview of the Staff’s 

environmental review methodology); Ex. NRC000014, Staff Environmental Panel 1 Presentation 

at 3-8. 

227 See Ex. NRC000010B, FEIS at A-1 to A-2. 

228 NEPA § 102(2)(E), 42 U.S.C. § 4332(2)(E). 

229 10 C.F.R. pt. 51, subpt. A, app. A, § 5. 

230 See, e.g., Tr. at 148-50 (Mr. Kugler); Ex. NRC000010B, FEIS Ch. 9. 

231 See, e.g., Tr. at 149-50 (Mr. Kugler); Ex. NRC000010B, FEIS at 10-25 to 10-26. 
- 48 -

of resources associated with the proposed action.232 The discussion of alternatives is in 

Chapter 9 of the FEIS; the other items are discussed in Chapter 10.233 The environmental 

review team found extensive short-term benefits of the project from the production of electrical 

energy and the economic productivity of a site that “is not currently available for agricultural or 

industrial uses.”234 In terms of long-term productivity, the review team found that “the 

enhancement of regional productivity that would result from the electrical energy produced by 

Fermi 3 would lead to a correspondingly large increase in regional long-term productivity that 

would not be equaled by any other long-term use of the site.”235

Chapter 10 of the FEIS includes a chart of the unavoidable adverse environmental 

impacts during preconstruction, construction, and operation, along with actions to mitigate those 

impacts.236 The environmental review team found that the unavoidable adverse impacts during 

preconstruction and construction would be small for all resource areas except for terrestrial and 

wetland resources, socioeconomics, and historical and cultural resources, which could be small 

to moderate based on potential impacts to the eastern fox snake, increased traffic during 

construction, and demolition of Fermi Unit 1, respectively.237 For operation, the review team 

found that the unavoidable adverse impacts during operation would be small for all resource 

 

232 NEPA § 102(2)(C)(ii)-(v), 42 U.S.C. § 4332(2)(C)(ii)-(v). 

233 Ex. NRC000010B, FEIS ch. 9-10. 

234 Id. at 10-21. 

235 Id. at 10-22. 

236 Id. at 10-4 to 10-21. 

237 See id. at 10-5 to 10-9. 
- 49 -

areas with the exception of terrestrial and wetland resources and socioeconomics, which could 

be small to moderate based on potential impacts to the eastern fox snake and increased traffic 

during outages, respectively.238

Finally, with regard to irreversible and irretrievable commitments of resources, the 

environmental review team concluded that preconstruction and construction activities on the 

Fermi site, including the proposed transmission corridor, “would permanently convert some 

portions of terrestrial and aquatic habitats.”239 The Staff also concluded that during the 

construction of Fermi Unit 3, the materials used and energy consumed, “while irretrievable, 

would be of small consequence with respect to the quantities of such resources that are 

available.”240 With regard to operation of Fermi Unit 3, the review team determined that uranium 

would be irretrievably committed, “but that this irreversible and irretrievable commitment . . . 

[would] be negligible.”241

We must weigh these unavoidable adverse environmental impacts and resource 

commitments—the environmental “costs” of the project—against the project’s benefits.242 

Considering the need for power in the region and the expected increase in productivity, jobs, 

and tax revenue as described during the hearing and in the FEIS, we find that the benefits of the 

project outweigh the costs described above. Moreover, we have considered each of the 

 

238 See id. at 10-12 to 10-19. 

239 Id. at 10-23. 

240 Id. at 10-25. 

241 Id.

242 10 C.F.R. § 51.107(a). 
- 50 -

requirements of NEPA section 102(2)(C) and find nothing in the record that would lead us to 

disturb the Staff’s conclusions on those requirements. 

In sum, for each of the topics discussed at the hearing and in today’s decision, we find 

that the Staff’s review was reasonably supported in logic and fact and sufficient to support the 

Staff’s conclusions.243 Based on our review of the FEIS, we also find that the remainder of the 

FEIS was reasonably supported and sufficient to support the Staff’s conclusions.

Therefore, as a result of our review of the FEIS environmental analysis, and in 

accordance with the Notice of Hearing for this uncontested proceeding, we find that the 

requirements of NEPA section 102(2)(A), (C), and (E), and the applicable regulations in 

10 C.F.R. Part 51, have been satisfied with respect to the combined license application. We 

independently considered the final balance among conflicting factors contained in the record of 

this proceeding. We find, after weighing the environmental, economic, technical, and other 

benefits against environmental and other costs, and considering reasonable alternatives, that 

the combined license should be issued.

III. CONCLUSION 

We find that, with respect to the safety and environmental issues before us today, the 

Staff’s review of DTE’s combined license application was sufficient to support the findings in 

 

243 Our finding includes the Staff’s consideration of the proposed transmission-line corridor for 

Fermi Unit 3. We are satisfied that the Staff took a hard look at the environmental impacts of 

the transmission-line corridor, regardless of whether the Staff’s analysis is characterized as a 

cumulative impacts analysis or a direct impacts analysis. In substance, the Staff reviewed and 

discussed potential transmission-corridor impacts together with other preconstruction and 

construction impacts on the environment from construction and operation of Fermi Unit 3. We 

find that the Staff’s approach was reasonable and that its consideration of this issue satisfied 

NEPA. 
- 51 -

10 C.F.R. §§ 52.97(a) and 51.107(a). We authorize the Director of the Office of New Reactors 

to issue the combined license for the construction and operation of Fermi Nuclear Power Plant 

Unit 3 subject to the directions and modifications contained herein.244 We authorize the Staff to 

issue the record of decision, subject to its revision as necessary to reflect the findings in this 

decision and the results of the Staff’s analysis of environmental impacts on recently listed 

species.245 

IT IS SO ORDERED. 

 For the Commission 

NRC Seal /RA/ 

 ________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 30th day of April, 2015. 

 

244 See supra note 224. 

245 See Ex. NRC000003, Draft Record of Decision, U.S. Nuclear Regulatory Commission 

Docket No. 52-033, Combined License Application for Enrico Fermi Nuclear Plant Unit 3 (Dec. 

5, 2014). The Staff may issue the license notwithstanding the pendency of a petition for 

reconsideration under 10 C.F.R. § 2.345, a petition for review under 10 C.F.R. § 2.341, a motion 

for stay under 10 C.F.R. § 2.342, or a petition for action under 10 C.F.R. § 2.206. 10 C.F.R. 

§ 2.340(i). 
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) ) 

 Mandatory Hearing ) 

 

CERTIFICATE OF SERVICE 

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

(CLI-15-13) 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

Detroit Edison Company 

One Energy Plaza, 688 WCB 

Detroit, Michigan 48226 

Jon P. Christinidis, Esq. 

christinidisj@dteenergy.com 

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

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 

Kevin Roach, Esq. 

kevin.roach@nrc.gov

Anthony Wilson, Esq. 

anthony.wilson@nrc.gov

Megan Wright, Esq. 

megan.wright@nrc.gov 

Patrick Moulding, Esq. 

patrick.moulding@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 (Mandatory Hearing) 

COMMISSION MEMORANDUM AND ORDER (CLI-15-13)

2 

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

 

[Original signed by Clara Sola ] 

Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 30th day of April, 2015