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 2) 

Docket No. 50-341-LR 

CLI-15-18

MEMORANDUM AND ORDER

DTE Electric Company has appealed the Atomic Safety and Licensing Board’s ruling in 

LBP-15-5, which admitted three contentions for hearing in this license renewal proceeding.1 For 

the reasons set forth below, we reverse the Board’s contention admissibility decision and direct 

the Board to terminate the proceeding. 

I. BACKGROUND 

On April 24, 2014, DTE Electric Company filed an application to renew the operating 

license for Fermi Nuclear Power Plant, Unit 2, for an additional twenty years.2 Unit 2 is the only 

 

1 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) (Appeal). 

2 See DTE Electric Company; Fermi 2, 79 Fed. Reg. 34,787 (June 18, 2014). 
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reactor currently in operation on the Fermi site. Its operating license expires on March 20, 

2025. 

The NRC Staff accepted DTE’s license renewal application for review and published 

notice of its docketing decision in the Federal Register, along with an opportunity for interested 

persons to request a hearing on the application.3 Three environmental groups—Don’t Waste 

Michigan, Citizens Environment Alliance of Southwestern Ontario, and Beyond Nuclear 

(collectively, Joint Petitioners)—together filed a request for hearing with four proposed 

contentions challenging DTE’s application.4 Another environmental group, Citizens Resistance 

at Fermi 2 (CRAFT), filed a separate request for hearing with fourteen proposed contentions.5 

DTE and the Staff opposed the requests for hearing; although they did not challenge the 

petitioners’ standing, they argued that the petitioners had not raised an admissible contention.6 

After hearing oral argument on contention admissibility, the Board granted both hearing 

 

3 Id.

4 Petition for Leave to Intervene and Request for Hearing of Don’t Waste Michigan, Citizens 

Environment Alliance of Southwestern Ontario and Beyond Nuclear (Aug. 18, 2014) (Joint 

Petitioners’ Hearing Request). 

5 Citizens’ Resistance at Fermi 2 (CRAFT) Petition for Leave to Intervene and Request for a 

Public Hearing Upon DTE Electric’s Request of 20-Year License Extension for the Enrico Fermi 

2 Nuclear Reactor (Aug. 18, 2014; corrected Sept. 3, 2014) (CRAFT Hearing Request). 

6 DTE Electric Company Answer Opposing Petitions to Intervene and Requests for Hearing

(Sept. 12, 2014), at 1 (DTE Answer); NRC Staff’s Answer to Petition for Leave to Intervene and 

Request for Hearing of Don’t Waste Michigan, Citizens Environment Alliance of Southwestern 

Ontario and Beyond Nuclear (Sept. 12, 2014), at 1; NRC Staff’s Answer to Citizens’ Resistance 

at Fermi 2 (CRAFT) Petition for Leave to Intervene and Request for Public Hearing (Sept. 12, 

2014), at 1. Joint Petitioners and CRAFT filed replies in support of their hearing requests. 

Intervenors’ Combined Reply in Support of Petition for Leave to Intervene and Request for 

Hearing of Don’t Waste Michigan, Citizens Environment Alliance of Southwestern Ontario and 

Beyond Nuclear (Sept. 19, 2014); Combined Reply of Citizens’ Resistance at Fermi 2 (CRAFT) 

to NRC Staff and DTE Electric Co. Answers to CRAFT’s Petition for Leave to Intervene and 

Request for a Public Hearing (Sept. 19, 2014) (CRAFT Reply). 
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requests and admitted a portion of Joint Petitioners’ Contention 4 and portions of CRAFT 

Contentions 2 and 8.7 DTE’s appeal followed.8

II. DISCUSSION 

Our contention admissibility rules are designed to ensure that only focused, well 

supported issues are admitted for hearing. Contentions must be set forth with particularity and 

must meet all six contention admissibility factors.9 For each contention, the petitioner shall: 

(1) provide a specific statement of the issue of law or fact to be raised or 

controverted; 

(2) provide a brief explanation of its basis; 

(3) demonstrate that the issue raised is within the scope of the proceeding; 

(4) demonstrate that the issue raised is material to the findings the NRC must 

make to support the action that is involved in the proceeding; 

(5) provide a concise statement of the alleged facts or expert opinions that 

support the petitioner’s position on the issue and on which the petitioner 

intends to rely at hearing, together with references to the specific sources 

and documents on which the petitioner intends to rely to support its 

position on the issue; and 

(6) provide sufficient information to show that a genuine dispute exists with 

the applicant/licensee on a material issue of law or fact, with references to 

specific portions of the application (including the applicant’s 

environmental report and safety report) that the petitioner disputes and 

the supporting reasons for each dispute, or if the petitioner believes that 

the application fails to contain information on a relevant matter as 

 

7 LBP-15-5, 81 NRC 249, 307-08 (2015). Judge Arnold provided a separate opinion explaining 

that he agreed with the Board’s ruling except as to the admission of CRAFT Contention 2. Id. at 

310-13 (Arnold, J., dissenting). 

8 Our rules provide an appeal as of right on the question whether a request for hearing should 

have been wholly denied. 10 C.F.R. § 2.311(d)(1). DTE’s appeal falls squarely within this rule. 

9 Id. § 2.309(f)(1). 
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required by law, the identification of each failure and the supporting 

reasons for the petitioner’s belief.10

We will defer to licensing board rulings on standing and contention admissibility absent error of 

law or abuse of discretion.11

DTE argues that the Board erred in admitting the petitioners’ three contentions for 

hearing and asks us to reverse the Board’s decision.12 Joint Petitioners and CRAFT oppose 

DTE’s appeal and urge us to affirm the Board’s decision.13 We find that the Board erred in 

admitting Joint Petitioners’ Contention 4B and CRAFT Contentions 2 and 8. We address each 

contention in turn.14 

A. Joint Petitioners’ Contention 4B 

In Contention 4, as originally proposed, Joint Petitioners asserted that DTE’s license 

renewal application lacked a sufficient analysis of “mutually initiating/exacerbating radiological 

catastrophes” involving the transmission corridor between Fermi Unit 2 and the now-recently 

licensed, but as-yet unconstructed, Fermi Unit 3.15 They asserted that the “cumulative impacts 

 

10 Id. § 2.309(f)(1)(i)-(vi). 

11 See, e.g., Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 

535, 543 (2009). 

12 Appeal at 1. 

13 Combined Answer Brief of Petitioners in Opposition to DTE Appeal of LBP-15-5 (Mar. 30, 

2015), at 15. 

14 DTE does not challenge the Board’s decision on either Joint Petitioners’ or CRAFT’s standing 

to intervene. See Appeal at 1. 

15 Joint Petitioners’ Hearing Request at 35 (“Fermi 2 and Fermi 3’s safety and environmental 

risks due to common mode failures, and the potential for mutually initiating/exacerbating 

radiological catastrophes[]involving the common Transmission Corridor (TC) shared by both 

units’ reactors and pools, have been inadequately addressed in DTE’s Fermi 2 License 

Renewal Application (LRA) and Environmental Report (ER). Also, the cumulative impacts 

associated with the proposed new Fermi 3 reactor cannot be excluded from DTE’s Fermi 2 LRA 

and ER as ‘remote’ or ‘speculative,’ for it is DTE’s own proposal, and is advanced in the Fermi 3 
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associated with” proposed Fermi Unit 3 and its anticipated common transmission corridor must 

be considered as part of the severe accident mitigation alternatives (SAMA) analysis prepared 

for the Fermi Unit 2 license renewal application.16 Although SAMA analyses are conducted as 

part of the agency’s environmental review under the National Environmental Policy Act (NEPA), 

Joint Petitioners’ contention combined safety and environmental concerns, calling into question 

the ability of both units to survive a prolonged loss of power.17 

In support of their contention, Joint Petitioners referenced, among other things, accounts 

of the March 11, 2011, Fukushima Dai-ichi nuclear accident in Japan.18 Joint Petitioners also 

 

[combined license] proceeding. Such environmental and safety analysis is required on this 

unique local problem specific to Fermi 2 and 3. It can, and must, be dealt with in Severe 

Accident Mitigation Alternatives (SAMA) analyses, and must be treated as Category 2 Issues in 

NRC’s forthcoming Draft Supplemental Environmental Impact Statement (DSEIS), as required 

by NEPA and the AEA.”). Category 2 issues are environmental issues the agency considers on 

a site-specific basis under the National Environmental Policy Act (NEPA) for license renewal. 

Category 1 issues are those environmental issues that the agency has resolved generically and 

therefore does not consider in specific license renewal proceedings. 10 C.F.R. pt. 51, subpt. A, 

app. B, tbl. B-1. 

16 Id. We require license renewal applicants to provide a consideration of alternatives to 

mitigate severe accidents in their license renewal application “[i]f the staff has not previously 

considered severe accident mitigation alternatives for the applicant's plant in an environmental 

impact statement or related supplement or in an environmental assessment.” 10 C.F.R. 

§ 51.53(c)(3)(ii)(L). SAMA analyses are conducted for the purposes of the NRC’s 

environmental review under NEPA; they are not safety analyses. NextEra Energy Seabrook, 

LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 322 (2012) (“The SAMA analysis is a 

site-specific analysis focusing on potential additional mitigation measures that could be 

implemented to further reduce severe accident risk (probability or consequences). The analysis 

by practice has been a cost-benefit analysis, examining whether particular hardware or 

procedural changes may be cost-beneficial to implement, given the degree of risk reduction that 

reasonably could be expected from the change.”). For a detailed discussion of the conduct of 

SAMA analyses in NRC license renewal proceedings, see Entergy Nuclear Generation Co. and 

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39 (2012). 

17 See Joint Petitioners’ Hearing Request at 40-43. 

18 See id. at 42-46. 
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listed a selection of DTE’s SAMA candidates and asserted that the implementation costs for 

those SAMAs are “relatively low” and “minimal” compared to DTE’s daily profits from electricity 

sales and the potential human and economic costs from an accident at Fermi Unit 2.19

The Board divided Contention 4 into two parts. Part “A” tracked the text of the 

contention as proposed in Joint Petitioners’ hearing request and described above.20 The Board 

found this portion of the contention inadmissible.21 For part “B” of the contention, the Board 

extracted a portion of Joint Petitioners’ reference to the Fukushima Dai-ichi accident, where, as 

part of its support for Contention 4 overall, Joint Petitioners hypothesized that an accident at 

Fermi Unit 2 or Fermi Unit 3 could lead to the evacuation of the entire Fermi site.22 The Board 

observed that “a fission product release from Fermi 2 would adversely impact the operation of 

Fermi 3, thereby increasing the total costs resulting from a release from Unit 2” and 

reformulated the contention to read: 

The Fermi 2 Severe Accident Mitigation Alternatives analysis fails to evaluate the 

impact that a severe accident at Fermi 2 would have on the operation of the 

proposed nearby Fermi 3.23 

The Board admitted the contention as reformulated.24

 

19 Id. at 53. 

20 LBP-15-5, 81 NRC at 268 (majority opinion). 

21 Id. at 270-72. Because the Board declined to admit part A, we do not discuss it further here. 

22 Id. at 272 (citing Joint Petitioners’ Hearing Request at 38). 

23 Id. at 273. 

24 Id. at 277. 
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On appeal, DTE argues that Contention 4B should not have been admitted for several 

reasons.25 But in what we find to be the strongest argument for reversal, DTE asserts that the 

Board improperly supplemented Joint Petitioners’ claims to admit the contention.26 DTE argues 

that the Board made the argument for Joint Petitioners that additional SAMA candidates could 

become cost-beneficial after factoring in the costs of any impacts to Fermi Unit 3 from an 

accident originating at Fermi Unit 2.27 DTE also argues that the Board, “without any support or 

reference to the contention itself,” hypothesized that it would be “genuinely plausible” for two 

particular SAMA candidates to more than triple in benefit relative to their cost, thus making them 

cost-beneficial.28

We agree that the Board erred in admitting Joint Petitioners’ Contention 4B. Comparing 

Joint Petitioners’ contention as originally proposed to the Board’s formulation, we find that the 

arguments on which the Board relied in admitting Contention 4B originated with the Board rather 

 

25 In particular, DTE asserts that Joint Petitioners “never claimed that DTE overlooked any 

potential SAMAs (cost-beneficial or otherwise) relevant to offsite or onsite power” and that they 

failed to challenge DTE’s conclusion that the SAMA candidates evaluated in the Environmental 

Report were not cost-beneficial. Appeal at 5. In addition, DTE asserts that the contention fails 

to demonstrate a genuine dispute because Joint Petitioners did not explain how an accident at 

Unit 2 would impact Unit 3 and, in turn, the SAMA analysis in DTE’s license renewal application. 

Id. at 7 & n.18. DTE also argues that “the premise underlying the contention is too speculative 

to meet the standards for admissibility” because the timing of the construction of Fermi Unit 3 is 

not settled. Id. at 6. Since the filing of DTE’s appeal, the Staff has issued the combined license 

for Fermi Unit 3. See DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-13, 81 NRC 

__, __ (Apr. 30, 2015) (slip op. at 51) (authorizing issuance of the combined license). 

Nevertheless, as DTE represented at the uncontested hearing on that application, the timing of 

construction is still uncertain. Transcript of Mandatory Hearing at 209-10 (attached as Appendix 

B to Order of the Secretary (Adopting Proposed Transcript Corrections and Admitting PostHearing Exhibits) (Mar. 9, 2015) (unpublished) (ADAMS accession no. ML15068A411)). 

26 Appeal at 8-10. 

27 Id. at 8. 

28 Id. at 9. 
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than Joint Petitioners. Although boards have some discretion to reformulate or narrow 

contentions “to eliminate extraneous issues or to consolidate issues for a more efficient 

proceeding,” this authority is not without limit. 29 A licensing board, for example, may not supply 

information that is lacking in a contention that otherwise would be inadmissible.30 

Here, the Board exceeded its authority when it reformulated Joint Petitioners’ Contention 

4B. The Board selected text from Joint Petitioners’ discussion of Contention 4 that, similar to 

the evacuation contemplated during the Fukushima accident, “‘[a] large-scale radioactivity 

release’” from the Fermi Unit 2 reactor or spent fuel pool or Fermi Unit 3 reactor or spent fuel 

pool “‘could well lead to the evacuation of the entire Fermi nuclear power plant site—of the 

workforces for both plants, and even of emergency responders (such as firefighters, or military 

personnel) brought in from offsite to deal with a disaster.’”31 But Joint Petitioners did not provide 

any nexus between this statement and any deficiencies in DTE’s SAMA analysis, which would 

have been necessary to establish a genuine dispute for an admissible contention.32 Rather, in 

context, the statement is provided as support for Joint Petitioners’ argument that the 

transmission lines connecting the units to the grid, whether they are considered “offsite” or 

“onsite,” could lead to a common accident scenario between Fermi Unit 2 and proposed Fermi 

Unit 3.33 We find nothing in Joint Petitioners’ hearing request that would justify making the 

evacuation issue a stand-alone contention. 

 

29 Crow Butte, CLI-09-12, 69 NRC at 552-53 (internal quotation marks omitted). 

30 Id. at 552-53, 565-66. 

31 LBP-15-5, 81 NRC at 272 (quoting Joint Petitioners’ Hearing Request at 38). 

32 See 10 C.F.R. § 2.309(f)(1)(vi); Seabrook, CLI-12-5, 75 NRC at 323-24. 

33 See Joint Petitioners’ Hearing Request at 38. At oral argument, Joint Petitioners maintained 

that their contention related to the loss of offsite power along a shared transmission corridor. 
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As DTE points out, the Board itself supplied the reasoning that because an accident at 

Fermi Unit 2 would impact Fermi Unit 3, “DTE should have evaluated the adverse impacts on 

the operation of Fermi 3 as costs averted by SAMAs that would reduce the risk of a severe 

accident at Fermi 2 or the consequences of such an accident.”34 Then the Board, again on its 

own initiative, selected certain SAMA candidates whose implementation DTE had rejected 

because their costs outweighed their benefits.35 The Board concluded that “[i]t is genuinely 

plausible, given the moderate costs of . . . [these SAMAs], that . . . the costs averted [from a 

fission product release at Fermi Unit 2] would increase to the point that one or both of those 

SAMAs would become cost-beneficial.”36 Although Joint Petitioners had listed these SAMAs in 

their hearing request as part of a larger list of candidates that they deemed related to their 

transmission-corridor/loss of power contention, they did not identify a specific deficiency in 

DTE’s SAMA analysis or argue that such a deficiency, once corrected, would tip the balance in 

favor of finding the listed SAMAs cost-beneficial.37 

Rather, Joint Petitioners asserted that the costs of the rejected SAMA candidates are 

minimal compared to DTE’s daily profits from its electricity sales and the potential human and 

 

See Oral Argument Transcript at 84, 91 (Tr.). The evacuation issue was raised during Board 

questioning, but even then, Joint Petitioners linked the issue to the transmission corridor. See

id. at 94-95, 98-99, 107, 113-15. 

34 LBP-15-5, 81 NRC at 273. Although the Board attributes this statement to Joint Petitioners, 

see id., the Board does not reference Joint Petitioners’ hearing request, nor do we find this 

argument in Joint Petitioners’ contention. 

35 Id. at 277. 

36 Id. 

37 See Joint Petitioners’ Hearing Request at 49-54. 
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economic costs from an accident at Fermi Unit 2.38 But Joint Petitioners’ conclusory statements 

do not amount to a challenge to the SAMA analysis.39 First, with regard to the cost-benefit 

balance in the SAMA analysis, DTE’s profits are immaterial. The cost of implementing a 

particular mitigation measure compared to the risk averted from its implementation is what 

determines whether a mitigation measure is cost-beneficial.40 Second, Joint Petitioners must, at 

a minimum, provide “factual or expert basis for why the proposed changes in the analysis are 

warranted (e.g., why the inputs or methodology used is unreasonable, and the proposed 

changes or methodology would be more appropriate),” and their generalized reference to the 

potential human and economic costs from an accident at Fermi Unit 2 falls short of the support 

necessary for a SAMA contention.41 Joint Petitioners did not engage, with any specificity, the 

economic consequences of an accident at Fermi Unit 2 already considered in DTE’s SAMA 

analysis.42 Therefore, Joint Petitioners’ Contention 4B (were we to consider it a stand-alone 

contention without the Board’s amplifications) failed to demonstrate a genuine dispute with the 

 

38 Id. at 53. 

39 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, 

Units 1 and 2), CLI-02-17, 56 NRC 1, 12 (2002) (“A conclusory statement that an envisioned 

SAMA ‘would not pose a great challenge’ is insufficient.”); Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 363 (finding that 

“highly generalized” arguments “do not come close to meeting our contention rule”).

40 See Pilgrim, CLI-12-15, 75 NRC at 706-07 (“By NRC practice to date, the SAMA analysis has 

been a quantitative cost-benefit analysis, assessing whether the cost of implementing a specific 

enhancement outweighs its benefit.”). 

41 Seabrook, CLI-12-5, 75 NRC at 323-24. 

42 See id. at 323 (“We have long held that contentions admitted for litigation must point to a 

deficiency in the application, and not merely ‘suggestions’ of other ways an analysis could have 

been done, or other details that could have been included. SAMA adjudications would prove 

endless if hearings were triggered merely by suggested alternative inputs and methodologies 

that conceivably could alter the cost-benefit conclusions.”). 
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SAMA analysis provided in DTE’s Environmental Report.43 Consequently, it should not have 

been admitted. 

B. CRAFT Contention 2 

We find that the Board also improperly supplemented the remaining contentions it 

admitted in LBP-15-5. In Contention 2, CRAFT questioned whether the Staff had adequately 

notified area Indian Tribes and First Nations, including the Walpole Island First Nation, of the 

license renewal proceeding for Fermi Unit 2.44 Without this notice, CRAFT asserted, these 

Tribes and First Nations might not have been aware of the opportunity to request a hearing on 

DTE’s license renewal application or the opportunity to participate in the scoping process for the 

Staff’s environmental review.45 CRAFT therefore requested that the Board require the Staff to 

“notify the tribes of their rights and opportunity [to request a hearing], and provide them at least 

 

43 See 10 C.F.R. § 2.309(f)(1)(vi); cf. Kansas Gas and Electric Co. and Kansas City Power and 

Light Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 577 (1975) (“In sum, 

we think the Board was wrong to strain to discern the outlines of any contention in a petition as 

amorphous as this one.”). 

44 CRAFT Hearing Request at 9-10 (“While it appears that NRC notified a number of Native 

American tribes across Michigan, as far away as Wisconsin and even Oklahoma, about the 

environmental scoping public comment opportunity for the proposed extension of the Fermi 2 

nuclear reactor license, it seems that NRC did not notify numerous Native American tribes, 

bands, and First Nations in the area of concern. Likewise, it is unclear that NRC adequately 

notified even the aforementioned tribes in Michigan, Wisconsin, and Oklahoma of their rights to 

intervene with contentions in that proceeding, in addition to their opportunity to provide public 

comments during the environmental scoping proceedings; it seems clear that the tribes, bands, 

and First Nations not notified of their environmental scoping public comment opportunity were 

also not informed of their right to intervene against extending Fermi 2’s license. . . . [T]ribes 

cannot intervene . . . if NRC fails to inform them of the proceeding, and their opportunity and 

right to petition for leave to intervene and submit official contentions. Many tribal members had 

no idea their tribal governments were allowing the contamination of the lands they are 

guaranteed to hunt, fish, and gather food forevermore. These tribal members allow CRAFT to 

represent them in this proceeding.”). 

45 Id. at 10. 
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sixty days in which to submit . . . contentions” and “at least sixty days to submit public 

comments” for the environmental scoping process.46

As DTE points out, the contention that the Board admitted in LBP-15-5 differed 

significantly from the one that CRAFT originally proposed.47 Based on information that CRAFT 

raised for the first time in its reply—a letter from the Chief of the Walpole Island First Nation that 

cited its members’ active fishing and harvesting of resources in close proximity to Fermi Unit 2 

and CRAFT’s statement that it disagreed with the environmental justice conclusions in DTE’s 

Environmental Report48—the Board, with Judge Arnold dissenting, held that Contention 2 raised 

an admissible challenge to DTE’s discussion of subsistence fishing in the Fermi site vicinity.49 

The Board also noted that CRAFT had included a preface for all of its contentions, which among 

other things, asserted that there were “‘material deficiencies’” in DTE’s license renewal 

 

46 Id. at 12. 

47 See Appeal at 13-17. 

48 See CRAFT Reply at 21-23; Miskokomon, Dan, Chief, Walpole Island First Nation, letter to 

Allison M. Macfarlane, NRC (Sept. 22, 2014) (ML14265A490) (requesting “an opportunity to 

thoroughly review the license renewal process to ensure that . . . [the First Nation’s] rights are 

protected”) (Miskokomon Letter). The Staff filed a motion to strike portions of CRAFT’s reply, 

including the new environmental justice issue in CRAFT Contention 2. See NRC Staff Motion to 

Strike Portions of CRAFT’s Reply (Oct. 2, 2014), at 4-5, Attachment 1. DTE supported the 

Staff’s motion; CRAFT opposed it, claiming that its new arguments fell within the scope of its 

original contention and DTE’s and the Staff’s answers. DTE Electric Company Response in 

Support of NRC Staff Motion to Strike Portions of CRAFT’s Reply (Oct. 14, 2014), at 2; CRAFT 

Reply to NRC Staff Motion to Strike (Oct. 10, 2014), at 1-2. The Board denied the Staff’s motion 

to strike CRAFT’s environmental justice claim because it found that CRAFT’s arguments 

“legitimately amplif[ied]” the “subsistence consumption” issue in CRAFT Contention 2. 

LBP-15-5, 81 NRC at 285. As discussed further below, however, we disagree with the Board’s 

determination. 

49 LBP-15-5, 81 NRC at 280-82; id. at 310-13 (Arnold, J., dissenting). CRAFT also asserted at 

oral argument that its original contention, which asserted that the Walpole Island First Nation 

had been excluded from the proceeding, implied an environmental justice component. Tr. at 

197. 
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application “‘that could significantly jeopardize (impact) public health and safety.’”50 According 

to the Board, this statement, along with an additional reference to the Walpole Island First 

Nation’s consumption of food obtained near the Fermi site, supported the admission of a 

narrowed contention that asserted: 

The [Environmental Report] failed to consider whether members of the Walpole 

Island First Nation would be negatively affected by the renewal of the Fermi 2 

operating license due to impacts on tribal hunting and fishing rights, especially 

with respect to the potential consumption of contaminated foods.51

We find that the Board in this instance improperly reformulated CRAFT Contention 2. 

The Board’s decision turned CRAFT’s “notification” contention, which requested relief in the 

form of additional time for the Walpole Island First Nation and other Tribes and First Nations in 

the vicinity of the Fermi site to propose contentions and to comment on the scoping for the 

Staff’s environmental review, into a “subsistence consumption contention” that challenged the 

Environmental Report’s consideration of impacts to the Walpole Island First Nation’s food 

supply from the renewal of DTE’s operating license for Unit 2. But CRAFT’s statement of its 

contention, its requested relief, and the supporting statements, all pointed to a contention 

regarding the Staff’s purported failure to notify area Tribes and First Nations of the license 

renewal proceeding—a claim that the Board dismissed as inadmissible.52 We give some 

 

50 LBP-15-5, 81 NRC at 280 (majority opinion) (quoting CRAFT Hearing Request at 3). 

51 Id. at 282. Judge Arnold disagreed with the Board’s admission of Contention 2; in his view, 

the Board majority “crossed an ill-defined line and improperly assembled a contention from bits 

and pieces taken from . . . [CRAFT’s hearing request and reply].” Id. at 310 (Arnold, J., 

dissenting). 

52 Id. at 279-80 (majority opinion). At oral argument, CRAFT reiterated that Contention 2 was 

focused on notification. See Tr. at 191-92. Moreover, in response to prompts during Board 

questioning, CRAFT did not raise a specific challenge to DTE’s license application. See id. at 

193-94 (“JUDGE SPRITZER: If we had such a hearing, what precise arguments would you 

present on behalf of your members who are also members of the Walpole Nation? MS. 

COLLINS: That their lives and livelihood are endangered, would be further endangered. That 
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leeway to pro se litigants in our adjudicatory proceedings, but even though CRAFT is not 

represented by counsel, the Board should not have read into CRAFT’s petition a different 

challenge from the one CRAFT presented in Contention 2.53 

 

this is a violation of international law and international treaty rights. And that they need to be a 

full partner in the hearings, not just us, not just CRAFT representing a few of their members.”). 

At oral argument CRAFT also indicated, in response to Board questioning, that the Walpole 

Island First Nation is aware of the Fermi license renewal proceeding. Id. at 192. In addition, the 

Staff referred to the letter it received from the Chief of the Walpole Island First Nation and 

explained that the Staff’s response, among other things, provided background on the license 

renewal application review process and invited the Walpole Island First Nation to comment on 

the Staff’s draft supplemental environmental impact statement. Id. at 204-05; see also

Miskokomon Letter; Dean, William M., NRC, letter to Dan Miskokomon, Chief, Walpole Island 

First Nation (Oct. 31, 2014) (ML14295A239) (responding to Miskokomon Letter). 

53 See 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-10-1, 

71 NRC 1, 6 (2010); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 

49 NRC 328, 338-39 (1999); Statement of Policy on Conduct of Adjudicatory Proceedings, 

CLI-98-12, 48 NRC 18, 22 (1998) (noting that although “a board may appropriately view a 

petitioner's support for its contention in a light that is favorable to the petitioner, . . . the board 

cannot do so by ignoring the [contention admissibility] requirements” and emphasizing that “[a] 

contention's proponent, not the licensing board, is responsible for formulating the contention 

and providing the necessary information to satisfy the basis requirement for the admission of 

contentions”); cf. Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (“[T]he lenient treatment 

generally accorded to pro se litigants has limits.”); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th 

Cir. 1991) (“A pro se litigant's pleadings are to be construed liberally and held to a less stringent 

standard than formal pleadings drafted by lawyers. . . . At the same time, we do not believe it is 

the proper function of the district court to assume the role of advocate for the pro se litigant.”). 

We are unpersuaded by the Board’s determination that the preface to CRAFT’s contentions 

provided the necessary context to establish a substantive component to Contention 2. 

LBP-15-5, 81 NRC at 286-88. This agency has long recognized that contentions must be pled 

with sufficient specificity to put opposing parties on notice of which claims they will actually have 

to defend. Wolf Creek, ALAB-279, 1 NRC at 576. The preface contained general and 

unparticularized references to “health and safety significance” and “material deficiencies” in the 

Environmental Report. Such statements would not satisfy our rule that contentions be pled with 

specificity. Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 

4), CLI-12-7, 75 NRC 379, 391 (2012). Therefore the material in the preface to CRAFT’s 

contentions would not have put a reasonable participant on notice that despite Contention 2’s 

repeated reference to inadequate notification, it also contained a substantive challenge 

regarding hunting and fishing rights. 
- 15 -

The Board also improperly bolstered the admitted contention with CRAFT’s argument 

made on reply concerning DTE’s environmental justice discussion.54 Although a petitioner may 

respond to the legal or logical arguments presented in the answers to its hearing request, a 

petitioner may not use its reply to raise new issues for the first time.55 We require adherence to 

the deadlines and procedures in our rules so that the other litigants are not taken by surprise 

and are accorded an appropriate opportunity to respond to new arguments or new information.56 

For any new arguments or new support for a contention, a petitioner must, among other things, 

explain why it could not have raised the argument or introduced the factual support earlier.57 

 

54 The Board also held that as reformulated, “Contention 2 would remain viable even had [the 

Board] granted the Staff’s motion to strike” because CRAFT’s reference to environmental justice 

“merely amplified the subsistence consumption issue initially raised in Contention 2.” LBP-15-5, 

81 NRC at 286. As discussed above, however, the Board’s reasoning is flawed because 

Contention 2, as originally proposed, did not raise a subsistence-consumption issue but instead 

focused on notice. 

55 Crow Butte, CLI-09-12, 69 NRC at 568; Nuclear Management Co., LLC (Palisades Nuclear 

Plant), CLI-06-17, 63 NRC 727, 732 (2006); Louisiana Energy Services, L.P. (National 

Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004); see also Final Rule, Changes to 

Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004). 

56 Cf. Wolf Creek, ALAB-279, 1 NRC at 576 (“The applicant is entitled to a fair chance to defend. 

It is therefore entitled to be told at the outset, with clarity and precision, what arguments are 

being advanced and what relief is being [sought].”). That said, we recognize that certain 

contentions may be premature if raised at the outset of a proceeding, including, for example, 

contentions that challenge the Staff’s consultation with affected Indian Tribes under the National 

Historic Preservation Act. See Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, 

Nebraska), CLI-09-9, 69 NRC 331, 350-51 (2009) (“[W]hether and how the Staff fulfills its . . . 

[consultation] obligations are issues that could form the basis for a new contention . . . .”). Such 

a contention might appropriately be made in a timely fashion after the Staff issues its draft 

environmental impact statement. See 10 C.F.R. § 2.309(c); Crow Butte, CLI-09-9, 69 NRC at 

351. 

57 See, e.g., Crow Butte, CLI-09-12, 69 NRC at 548-49, 568-70. 
- 16 -

Here, CRAFT’s environmental justice concerns were not timely raised.58 Therefore, the 

Board should have applied the standards in 10 C.F.R. § 2.309(c) to determine whether CRAFT 

had demonstrated good cause for its late filing.59 The Board abused its discretion when it 

refocused CRAFT Contention 2 with the new material raised in CRAFT’s reply. CRAFT 

Contention 2, as reformulated by the Board, is inadmissible. 

C. CRAFT Contention 8 

In Contention 8, CRAFT challenged several aspects of DTE’s SAMA analysis, but the 

Board found support for, and admitted, a narrowed portion of the contention regarding the 

adequacy of DTE’s population estimates for determining the economic cost of a severe accident 

at Fermi Unit 2.60 CRAFT argued that “[p]roper inputs specific to the Fermi site indicate a far 

larger affected area—potentially including the densely populated centers of Metro Detroit 

 

58 Compare CRAFT Hearing Request at 9-13, with CRAFT Reply at 21-23. Even were we to 

read CRAFT Contention 2 in the most favorable light, we do not agree that the environmental 

justice issue was implied by CRAFT’s claim that the Walpole Island First Nation was excluded 

from the proceeding. See Tr. at 197. Our contention requirements require a level of specificity 

beyond mere “notice pleading.” Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; 

Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428 (2003) (instructing that 

the contention pleading standards “require petitioners to plead specific grievances, not simply to 

provide general ‘notice pleadings’”). CRAFT’s original contention did not point to any specific 

grievance with the environmental justice discussion provided in DTE’s Environmental Report. 

See CRAFT Hearing Request at 9-13. Nor did CRAFT articulate a “disproportionately high and 

adverse impact” to the Walpole Island First Nation. See, e.g., Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), CLI-15-6, 81 NRC 340, 369, 371 (2015). 

59 See Crow Butte, CLI-09-12, 69 NRC at 568-69. In any event, based on our review of the 

record, this new claim would not have met the timeliness standards because CRAFT could have 

raised its environmental justice concerns when it filed its initial petition. See 10 C.F.R. 

§ 2.309(c)(1); Crow Butte, CLI-09-12, 69 NRC at 568-69. In 2012, we consolidated our 

timeliness requirements in one section, section 2.309(c). Final Rule, Amendments to 

Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,571 (Aug. 3, 

2012). 

60 See CRAFT Hearing Request at 25-28; LBP-15-5, 81 NRC at 297. 
- 17 -

[(Michigan)], Ann Arbor [(Michigan)], Monroe [(Michigan)], Toledo [(Ohio)], and Windsor 

[(Ontario, Canada)],” which “would result in longer evacuation times and greater costs and 

consequences.”61 The Board understood “CRAFT to argue that these cities were excluded 

unreasonably from the SAMA analysis, leading DTE to ‘drastically undercount[] the costs of a 

[s]evere [a]ccident.’”62

In its answer before the Board, DTE explained that the population within fifty miles of the 

Fermi site was considered in the SAMA analysis, “including Detroit, Ann Arbor, Monroe, and 

Toledo.”63 DTE also asserted at oral argument that its SAMA analysis “modeled the population 

within [fifty] miles irrespective of . . . whether that location was within the United States or 

Canada or the Walpole Island.”64 But because DTE did not specifically mention Windsor, 

Ontario in its answer or at oral argument, the Board concluded that CRAFT’s concerns about 

the adequacy of DTE’s population inputs were justified.65 The Board also reviewed the 

Environmental Report and concluded that the document contradicted “DTE’s assurances that 

Canadians living within [fifty] miles of Fermi 2 were included in the SAMA analysis.”66 In 

particular, the Board referenced a separate chapter of the Environmental Report that listed cities 

within a fifty-mile radius of the Fermi site with a population greater than 100,000 and noted the 

 

61 CRAFT Hearing Request at 27. 

62 LBP-15-5, 81 NRC at 296 (first alteration in original). 

63 DTE Answer at 43. 

64 Tr. at 210. 

65 See LBP-15-5, 81 NRC at 297-98. 

66 Id. at 297. 
- 18 -

absence of any Canadian cities on that list.67 Comparing CRAFT’s population argument to a 

contention that was admitted in the Indian Point license renewal proceeding, the Fermi Board 

concluded that CRAFT Contention 8 was “equally admissible” because it argued “that DTE 

failed to consider the costs and consequences of a severe accident on the population of 

Windsor in the SAMA analysis.”68 The Board reformulated the contention to state that: 

[t]he SAMA cost-benefit calculation is incorrect and thus inadequate because it 

did not properly account for the Canadian population within the [fifty]-mile 

affected area of a [s]evere [a]ccident.69 

On appeal, DTE argues that the Board incorrectly assumed that the Canadian 

population was omitted from DTE’s SAMA analysis.70 DTE reiterates that its SAMA analysis 

accounted for the population within fifty miles of the Fermi site and emphasizes that it accounted 

for increases in population through tourism data from Michigan and Ohio in the United States, 

as well as Ontario, Canada, which, according to DTE, “establish[es] that the entire population 

within [fifty] miles of the site—including the Canadian population—was considered in the SAMA 

 

67 Id. at 297-98. 

68 Id. at 298 (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-10-13, 

71 NRC 673, 686-87 (2010); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), 

LBP-08-13, 68 NRC 43, 112-13 (2008)). In Indian Point, the petitioner asserted that the 

applicant underestimated the population projections used in the SAMA analysis in part through 

failure to consider certain U.S. Census estimates and non-resident populations (tourists and 

commuters). See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-13-13, 

78 NRC 246, 475-76 (2013). After the hearing, the Indian Point Board found reasonable the 

SAMA analysis’s population projections in the Staff’s supplemental environmental impact 

statement and resolved the contention in favor of the Staff. See id. at 484. As we discuss 

below, however, the Board’s comparison of this contention with the contention admitted in 

Indian Point is inapposite because the Board inappropriately supplemented Contention 8. 

69 LBP-15-5, 81 NRC at 298. 

70 Appeal at 22. 
- 19 -

analysis.”71 Because the contention incorrectly asserts that this information is omitted, DTE 

argues that CRAFT Contention 8 as reformulated by the Board fails to establish a genuine 

dispute with the license renewal application.72 We find that CRAFT has not raised a genuine 

dispute with DTE’s application and therefore the contention, as reformulated by the Board, is 

inadmissible.73 

CRAFT did not identify any specific portion of the Environmental Report to support its 

claims regarding the treatment of the Canadian population in the SAMA analysis. Further, the 

Board improperly bolstered CRAFT’s contention by referencing additional sections of the 

Environmental Report not cited by CRAFT to suggest that the SAMA analysis inappropriately 

discounted the Canadian population. Similar to our findings above with regard to Joint 

Petitioners’ Contention 4B and CRAFT Contention 2, we find that the Board abused its 

discretion when it supplemented the support for CRAFT Contention 8 with additional references 

to the Environmental Report. Although our boards are expected to review the relevant 

documents to determine whether the arguments presented by the litigants are properly 

supported, the Board may not substitute its own support for a contention or make arguments for 

the litigants that were never made by the litigants themselves.74 CRAFT Contention 8, as 

reformulated by the Board, is inadmissible. 

 

71 Id. at 21-22. 

72 Id. at 22. 

73 See 10 C.F.R. § 2.309(f)(1)(vi). 

74 See Crow Butte, CLI-09-9, 69 NRC at 353-54 (reviewing the underlying support for a 

contention and noting that the board appropriately did not weigh the evidence, but rather 

“determine[d] whether the contention was supported and raised a genuine dispute material to, 

and within the scope of, the proceeding”); Crow Butte, CLI-09-12, 69 NRC at 565-71 (finding 

board error in the reformulation of contentions with arguments not originally raised by 

petitioners). 
- 20 -

III. CONCLUSION 

For the reasons set forth above, we reverse the Board’s ruling in LBP-15-5 and direct

the Board to terminate the proceeding. 

IT IS SO ORDERED. 

 For the Commission 

NRC SEAL /RA/ 

 ________________________ 

 Richard J. Laufer 

 Acting Secretary of the Commission 

Dated at Rockville, Maryland, 

this 8th day of September, 2015. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

DTE ELECTRIC COMPANY ) Docket No. 50-341-LR 

 ) 

(Fermi 2) ) 

 ) 

(License Renewal) 

 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI15-18) have been served upon the following persons by Electronic Information Exchange. 

Atomic Safety and Licensing Board Panel 

Mail Stop - T-3 F23 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Ronald M. Spritzer, Chair 

Administrative Judge 

E-mail: ronald.spritzer@nrc.gov

Gary S. Arnold 

Administrative Judge 

E-mail: gary.arnold@nrc.gov

Nicholas G. Trikouros 

Administrative Judge 

E-mail: nicholas.trikouros@nrc.gov

Nicole Pepperl, Law Clerk 

E-mail: nicole.pepperl@nrc.gov

Office of Commission Appellate 

 Adjudication 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

E-mail: ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop O-15D21 

Washington, DC 20555-0001 

Catherine Kanatas, Esq. 

Brian Harris, Esq. 

Edward Williamson, Esq. 

Jeremy Wachutka, Esq. 

Joseph Lindell, Esq. 

John Tibbetts, Paralegal 

Email: catherine.kanatas@nrc.gov

 brian.harris@nrc.gov

 edward.williamson@nrc.gov

 jeremy.wachutka@nrc.gov

 joseph.lindell@nrc.gov

 john.tibbetts@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop O-16C1 

Washington, DC 20555-0001 

Hearing Docket 

E-mail: hearingdocket@nrc.gov

 
FERMI 2 (Docket No. 50-341-LR) 

COMMISSION MEMORANDUM AND ORDER (CLI-15-18) 

2

DTE Energy Company 

One Energy Plaza, 688 WCB 

Detroit, MI 48226 

Bruce R. Maters, Assistant General Counsel 

Jon P. Christinidis, Esq. 

E-mail: matersb@dteenergy.com

 christinidisj@dteenergy.com

Counsel for the Applicant: 

Winston & Strawn, LLP 

1700 K Street, NW 

Washington, DC 20006-3817 

Tyson R. Smith, Esq. 

Carlos L. Sisco, Paralegal 

E-mail: trsmith@winston.com 

 csisco@winston.com

Intervenor: Citizens’ Resistance At Fermi 2 

(CRAFT) 

Jessie Pauline Collins 

17397 Five Points Street 

Redford, MI 48240 

E-mail: jessiepauline@gmail.com

Intervenors: Don’t Waste Michigan, Citizens 

Environment Alliance of Southwestern Ontario and 

Beyond Nuclear 

Terry J. Lodge, Esq. 

316 N. Michigan St., Ste. 520 

Toledo, OH 43604-5627 

Email: tjlodge50@yahoo.com

Michael Keegan 

Don’t Waste Michigan 

811 Harrison Street 

Monroe, Michigan 48161 

E-mail: mkeeganj@comcast.net

Kevin Kamps 

Beyond Nuclear 

6930 Carroll Avenue, Ste. 400 

Takoma Park, MD 20912 

E-mail: kevin@beyondnuclear.org

 

 [Original signed by Herald M. Speiser ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland, 

this 8th day of September, 2015