ML19340C563

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NRC Staff Answer to Three Mile Island Alert Petition to Intervene
ML19340C563
Person / Time
Site: Three Mile Island  Constellation icon.png
Issue date: 12/06/2019
From: Reginald Augustus, Kayla Gamin
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-289-LA, 50-320-LA, General Proceeding, RAS 55448
Download: ML19340C563 (41)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of EXELON GENERATION COMPANY, LLC Docket No. 50-289 50-320 Three Mile Island Nuclear Station, Units 1 and 2 NRC Staff Answer to Three Mile Island Alert Petition Kayla Gamin Reginald Augustus Counsel for NRC Staff December 6, 2019

TABLE OF CONTENTS INTRODUCTION ....................................................................................................................... 1 BACKGROUND ......................................................................................................................... 2 DISCUSSION............................................................................................................................. 6 A. Right to Hearing on Exemptions ...................................................................................... 6 B. Standing to Intervene ...................................................................................................... 8

1. Legal Requirements for Standing ................................................................................. 8
2. Petitioners Standing ...................................................................................................12 (a) TMIA Has Not Demonstrated Standing to Intervene ................................................ 12 (b) Mr. Epstein Has Not Demonstrated Standing to Intervene ....................................... 16 (c) Conclusion on Standing to Intervene ....................................................................... 17 C. Admissibility of Petitioners Contentions ......................................................................... 18
1. Timeliness of Contentions ...........................................................................................18
2. Legal Requirements for Contention Admissibility ........................................................18
3. Analysis of Petitioners Contentions ............................................................................20 (a) Proposed Contention 1: Lack of Financial Assurance and Lack of Character and Integrity ...................................................................................................................20 (i) Basis for Contention 1 ..........................................................................................20 (ii) The Staff Opposes Admission of Proposed Contention 1 ..................................... 21 (b) Proposed Contention 2: Need for Environmental Review ........................................25 (i) Basis for Contention 2..........................................................................................25 (ii) The Staff Opposes Admission of Proposed Contention 2 .....................................25 (c) Other Potential Contentions ....................................................................................29 (i) Alleged Deficiencies in the Permanently Defueled Emergency Plan for TMI ........30 (ii) Claims Related to Exelons Relationship with FirstEnergy ................................... 31 CONCLUSION ..........................................................................................................................34

ii TABLE OF AUTHORITIES Judicial Opinions Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284 (1st Cir. 1995)......................................................................................................27 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 10 New York v. Nuclear Regulatory Comm'n, 681 F.3d 471 (D.C. Cir. 2012) ....................................27 Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) ..........................................................................27 San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016 (9th Cir. 2006) .................................................................................................27 Scientists' Inst. for Pub. Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079 (D.C. Cir. 1973) ................................................................................................27 Commission Legal Issuances AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006) ............................................................................................... 19 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009) ................................................................................................25 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-09-20, 70 NRC 911 (2009) ........................................................................................... 9, 10 Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1),

CLI-81-25, 14 NRC 616 (1981) ................................................................................................. 21 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),

CLI-99-4, 49 NRC 185 (1999) ......................................................................................... passim Consumers Power Co., (Midland Plant, Units 1 and 2), CLI-74-3, 7 AEC 7 (1974) ................ 12, 13 Curators of the University of Missouri, CLI-95-8, 41 NRC 386 (1995).........................................29 Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit 2),

CLI-03-14, 58 NRC 207 (2003) ..............................................................................................25 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 NRC 551 (2005) .............................................................................................. 19 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1 (2002) ...................................27 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479 (2010) .............................................30 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131 (2016) ............... 19

iii Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),

CLI-08-19, 68 NRC 251 (2008) ............................................................................... 10, 14, 17, 18 Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-16-12, 83 NRC 542 (2016) ......................... 7, 26 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3),

CLI-05-26, 62 NRC 577 (2005) ...................................................................................... 8, 9, 10 Fansteel (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195 (2003) .....................................25 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2),

CLI-89-21, 30 NRC 325 (1989) ........................................................................................... 9, 14 Fla. Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-11, 80 NRC 167 (2014) ..........................33 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-15-25, 82 NRC 389 (2015) ..................................................................................... 9, 11, 14 Ga. Inst. of Tech. (Georgia Tech Research Reactor, Atlanta Georgia),

CLI-95-12, 42 NRC 111 (1995) .................................................................................................. 9 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),

CLI-00-06, 51 NRC 193 (2000) ................................................................................................11 Honeywell Intl (Metropolis Works Uranium Conversion Facility),

CLI-13-1, 77 NRC 1 (2013) ........................................................................................................7 International Uranium (USA) Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 NRC 247 (2001) .................................................................................................11 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),

CLI-85-9, 21 NRC 1118 (1985) .................................................................................................24 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-02-16, 55 NRC 317 (2002) ...............................................................................................22 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant),

CLI-10-7, 71 NRC 133 (2010) ....................................................................................9, 12, 13, 17 PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2),

CLI-15-8, 81 NRC 500 (2015)..................................................................................................25 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999) ................................................................................. 9, 11, 17, 19 Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412 (1982) ......................................7 Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site),

CLI-94-12, 40 NRC 64 (1994) .................................................................................................. 9 Shieldalloy Metallurgical Corp., CLI-99-12, 49 NRC 347 (1999) .................................................29

iv Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application),

CLI-18-5, 87 NRC 119 (2018) ..................................................................................................24 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309 (2005) .................................... 9 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006).............................24, 26 Atomic Safety and Licensing Appeal Board Decisions Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460 (1982) ..........29 Philadelphia Elec. Co. (Peach Bottom Atomic Power Station) ALAB-216, 8 AEC 13 (1974) ........ 19 Atomic Safety and Licensing Board Decisions Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),

LBP-98-27, 48 NRC 271 (1998) .............................................................................................. 10 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

LBP-91-2, 33 NRC 42 (1991) .................................................................................................. 17 Paina Hawaii, LLC, LBP-06-4, 63 NRC 99 (2006) ...................................................................29 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation),

LBP-01-3, 53 NRC 84 (2001) ..................................................................................................29 Statutes 42 U.S.C. § 2232a ....................................................................................................................23 42 U.S.C. § 2239a ..................................................................................................................... 8 42 U.S.C. § 4321-74 ..................................................................................................................25 Regulations 10 C.F.R. § 2.309(a) ................................................................................................................... 8 10 C.F.R. § 2.309(d) ................................................................................................................... 8 10 C.F.R. § 2.309(e) .................................................................................................................. 18 10 C.F.R. § 50.12(a) ....................................................................................................... 4, 6, 7, 24 10 C.F.R. § 50.2.......................................................................................................................... 2 10 C.F.R. § 50.40.......................................................................................................................24 10 C.F.R. § 50.47(b) ....................................................................................................................7 10 C.F.R. § 50.47(c)(2) ............................................................................................................4, 7 10 C.F.R. § 50.80(a) ..................................................................................................................24 10 C.F.R. § 50.82(a) ........................................................................................................2, 23, 29 10 C.F.R. § 50.90...................................................................................................................3, 24 10 C.F.R. § 50.92(c) ................................................................................................................... 6

v 10 C.F.R. § 51.10 ........................................................................................................................28 10 C.F.R. § 51.20 .......................................................................................................................28 10 C.F.R. § 51.53(b) ...................................................................................................................29 10 C.F.R. § 51.53(d) .............................................................................................................27, 28 10 C.F.R. § 51.70 .......................................................................................................................28 10 C.F.R. Part 50, Appendix E ............................................................................................7, 8, 17 40 C.F.R. § 1508.14 ...................................................................................................................28 40 C.F.R. § 1508.18 ...................................................................................................................28 Constitutional Provisions Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 84 Fed. Reg. 47542 (Sept. 10, 2019) ............................................................................. 6, 18, 21 Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182 (Jan. 14, 2004). .................... 19 General Requirements for Decommissioning Nuclear Facilities; Final Rule, 53 Fed. Reg. 24018 (June 27, 1988). ....................................................................20 Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989) .....................................................22, 23

December 6, 2019 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of EXELON GENERATION COMPANY, LLC Docket No. 50-289 50-320 Three Mile Island Nuclear Station, Units 1 and 2 NRC STAFF ANSWER TO THREE MILE ISLAND ALERT PETITION INTRODUCTION The staff of the U.S. Nuclear Regulatory Commission (NRC or Commission) hereby answers the hearing request and petition to intervene filed on November 12, 2019 by Eric J.

Epstein on behalf of himself and Three Mile Island Alert (TMIA) (collectively Petitioners). The petition concerns a license amendment request (LAR) submitted by Exelon Generation Company, LLC (Exelon) for Three Mile Island Nuclear Station, Unit 1 (TMI 1), and an associated exemption request. The license amendments and exemptions, if approved by the NRC, would alter TMIs site emergency plan and Emergency Action Levels to account for the permanently defueled condition of TMI 1. Petitioners proffer two contentions asserting the need for financial assurance and for environmental review of the proposed amendment.

The NRC Staff (Staff) finds that the petition is timely. However, Petitioners have neither demonstrated standing nor proffered an admissible contention because proposed contentions 1 and 2 do not satisfy the Commissions contention admissibility standards. Therefore, for the reasons set forth below, the hearing request and petition to intervene should be denied.

2 BACKGROUND This proceeding concerns the two units at the Three Mile Island Nuclear Station (TMI),

which differ in condition and ownership. TMI 1 and 2 are pressurized water reactors located in Middletown, Pennsylvania, about 10 miles southeast of Harrisburg, Pennsylvania. 1 TMI 1 operated from 1974 to 2019, and is now in decommissioning after shutting down permanently in September 2019. 2 Because TMI 1 has certified that it has permanently ceased operations and permanently removed fuel from the reactor vessel, its license no longer authorizes operation of the reactor or emplacement or retention of the fuel into the reactor vessel. 3 All fuel from TMI 1 has been placed in the spent fuel pool. 4 There is no independent spent fuel storage installation (ISFSI) on the TMI site, although Exelon plans to build one to hold spent fuel from TMI 1. 5 As part of the decommissioning process, TMI 1 submitted a post-shutdown decommissioning activities report (PSDAR) to NRC and the Commonwealth of Pennsylvania. 6 TMI 1 also submitted a required site-specific decommissioning cost estimate. 7 1 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (April 5, 2019) (Three Mile Island Nuclear Station, Unit 1 - Post-Shutdown Decommissioning Activities Report), at 3 (ADAMS Accession No. ML19095A041) (TMI 1 PSDAR).

2 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (Sept. 26, 2019)

(ML19269E480) (Certification of Permanent Removal of Fuel from the Reactor Vessel for Three Mile Island Nuclear Station, Unit 1). Decommissioning is a years-long process by which a nuclear power plant or other nuclear facility is safely removed from service and residual radioactivity is reduced to a level that permits release of the property and termination of the plants operating license. See 10 C.F.R. § 50.2.

3 10 C.F.R. § 50.82(a)(2); Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (Sept. 26, 2019) (ML19269E480) (Certification of Permanent Removal of Fuel).

4 Certification of Permanent Removal of Fuel at 1.

5 TMI 1 PSDAR at 5.

6 10 C.F.R. § 50.82(a)(4)(i). TMI 1 PSDAR.

7 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (April 5, 2019)

(Decommissioning Cost Estimate Report, Three Mile Island, Unit 1) (ML19095A010).

3 TMI 2 has not been operational since its March 28, 1979 accident, which resulted in severe damage to the reactor core. 8 TMI 2 has been defueled since April 1990 9 and a license amendment converting its operating license to a possession-only license was issued in 1993. 10 This unit is maintained in a safe, inherently stable condition known as Post-Defueling Monitoring Storage. 11 The spent fuel removed from TMI 2 is currently in the possession of the U.S.

Department of Energy and stored at an Idaho National Laboratory facility. 12 Some residual fuel remains at TMI 2. 13 Exelon owns TMI 1 and holds a renewed operating license from the NRC. 14 FirstEnergy Corporation owns TMI 2 and holds a possession-only license from the NRC. 15 Through a service agreement with FirstEnergy, Exelon is responsible for emergency planning, among other functions, for TMI 2 and maintains a site emergency plan encompassing both units. 16 On July 1, 2019, Exelon submitted a license amendment request (LAR) for TMI 1 pursuant to 10 C.F.R. § 50.90. 17 The proposed license amendment would revise the site emergency plan and Emergency Action Level scheme to reflect TMI 1s permanently shutdown 8 Three Mile Island Accident of 1979 Knowledge Management Digest, NUREG/KM-0001, Revision 1, at 12 (June 2016) (ML16166A337).

9 SECY-93-238, Three Mile Island Nuclear Station, Unit 2 Possession Only License Amendment, at 2 (ML12257A733).

10 U.S. Nuclear Regulatory Commission, Three Mile Island Nuclear Station, Unit No. 2 Possession Only License, Docket No. 50-320 (Sept. 1993) (ADAMS Legacy #9405190046).

11 Letter from Gregory H. Halnon (GPU Nuclear, Inc.) to NRC Document Control Desk (December 4, 2015) (Three Mile Island Nuclear Station, Unit 2 - Revision to Post-Shutdown Decommissioning Activities Report), Attachment at 3 (ML15338A222) (TMI 2 PSDAR). Post-Defueling Monitoring Storage is technically similar to SAFSTOR.

12 TMI 2 PSDAR, Attachment at 5.

13 SECY-93-238, Three Mile Island Nuclear Station, Unit 2 Possession Only License Amendment, at 3 (ML12257A733).

14 Exelon Generation Company, LLC (Three Mile Island Nuclear Station, Unit 1), Docket No. 50-289, Renewed Facility License No. DPR-50 (ML052720274).

15 SRM-SECY-93-238, Three Mile Island Nuclear Station, Unit 2 Possession Only License Amendment, (ML12297A826).

16 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk, at 2 (July 1, 2019)

(ML19182A182) (LAR).

17 Id.

4 and defueled condition. 18 The proposed Permanently Defueled Emergency Plan and Permanently Defueled Emergency Action Levels would reduce the scope of onsite and offsite emergency planning to be commensurate with the reduced risk associated with a reactor that is permanently shutdown, with all fuel removed from the reactor and stored in the spent fuel pool.

If NRC approves the license amendment, the Permanently Defueled Emergency Plan and Emergency Action Level changes would be implemented no earlier than 488 days following shutdown of TMI 1, or about January 30, 2021, which allows the spent fuel to decay to the point that a potential accident would not be expected to result in a radioactive release that exceeds U.S. Environmental Protection Agency (EPA) Protective Action Guidelines beyond the site boundary. 19 The proposed Permanently Defueled Emergency Plan and Permanently Defueled Emergency Action Levels are predicated on NRCs approval of an exemption request Exelon submitted for both units on July 1, 2019. 20 The current site emergency plan encompasses both TMI 1 and TMI 2, 21 and the exemption request would allow for a reduction in the emergency planning requirements consistent with the permanently defueled condition of both units. 22 In accordance with 10 C.F.R. § 50.12(a), Exelon requested exemptions from:

  • certain standards in 10 C.F.R. § 50.47(b) for onsite and offsite emergency response plans for nuclear power reactors,
  • requirements in 10 C.F.R. § 50.47(c)(2) for plume exposure and ingestion pathway emergency planning zones (EPZs) for nuclear power plants, and

19 Id.

20 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (July 1, 2019) (ML19182A104)

(Exemption Request); LAR at 2.

21 Exemption Request, Attachment 2 at 1.

22 Id. at 1.

23 The details of the requested exemptions can be found in Exemption Request, Attachment 1 at 5-35.

5 According to Exelon, the Permanently Defueled Emergency Plan in its LAR was developed using NSIR-DPR-ISG-02. 24 This Interim Staff Guidance document describes how the NRC staff will evaluate requests for emergency planning exemptions for decommissioning nuclear power plants in a risk-informed way. NSIR-DPR-ISG-02 provides that because [t]he risk of an offsite radiological release is significantly lower, and the types of possible accidents are significantly fewer, at a nuclear power reactor that has permanently ceased operations and removed fuel from the reactor vessel, than at an operating power reactor, exemptions from the emergency planning requirements for operating reactors may be appropriate for a reactor in decommissioning. 25 Exemption requests that may be appropriate for decommissioning reactors are listed in Table 1 of NSIR-DPR-ISG-02. 26 For a permanently shutdown and defueled reactor, postulated accidents are expected to have a slow progression rate, which would permit licensees sufficient time to initiate appropriate mitigating actions to protect the health and safety of the public. 27 Therefore, a formal offsite radiological emergency plan may not be necessary for a permanently shutdown and defueled nuclear power reactor. 28 Specifically, if a site-specific analysis shows that the spent fuel in the spent fuel pool would not reach the zirconium ignition temperature of 900° Celsius in fewer than 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> from loss of cooling (assuming adiabatic heatup), 29 an offsite emergency plan may not be necessary. 30 This conclusion was endorsed by the Commission in 1999 31 and is incorporated in NSIR-DPR-ISG-02. In addition, all exemption requests must be authorized by law, not present an undue risk to public health and safety, and 24 LAR Attachment 1 at 7.

25 NSIR-DPR-ISG-02 at 4.

26 Id. at 10-30.

27 Id. at 29.

28 Id. at 5.

29 This assumption is conservative because it assumes no cooling and no heat transfer.

30 NSIR-DPR-ISG-02 at 6.

31 Staff RequirementsSECY-99-168Improving Decommissioning Regulations for Nuclear Power Plants (Dec. 21, 1999) (SRM-SECY-99-168).

6 be consistent with the common defense and security, and the Commission must find that special circumstances are present. 32 On September 10, 2019, the NRC published a Federal Register notice that described Exelons LAR, informed members of the public of their right to file a hearing request, and described NRCs proposed determination in accordance with 10 C.F.R. § 50.92(c) that the LAR involved no significant hazards consideration. 33 The notice stated that hearing requests should be filed within 60 days of the notices publication date. 34 On November 12, 2019, Petitioners filed a request for hearing and petition to intervene. 35 Petitioners state that both Mr. Epstein and TMIA have standing to intervene in this proceeding 36 and propose two labeled contentions, which assert the need for financial assurance and for environmental review of the proposed amendment. 37 While the petition was timely filed, Petitioners lack standing and have not submitted an admissible contention. The Staff addresses these contentions, as well as other claims in the petition that may have been intended as proposed contentions, below.

DISCUSSION A. Right to Hearing on Exemptions Under 10 C.F.R. § 50.12(a), the Commission may grant exemptions from the regulations of 10 C.F.R. Part 50 when the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. 38 In 32 10 C.F.R. § 50.12(a)(1).

33 Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 84 Fed. Reg. 47542, 47548 (Sept. 10, 2019) (Hearing Notice).

34 Id.

35 Eric J. Epstein, Chairman of Three Mile Island, Alert Inc.s Petition to Intervene and Hearing Request (Nov. 12, 2019) (ML19316E095) (Petition).

36 Petition at 17-21.

37 Id. at 28, 40.

38 10 C.F.R. § 50.12(a)(1).

7 addition, special circumstances must be present. 39 An exemption request standing alone does not give rise to an opportunity for a hearing under the Commissions rules. 40 However, petitioners may challenge exemption requests in licensing actions when those requests raise[ ]

material questions directly connected to licensing actions for which hearing rights exist. 41 The hearing rights on a license amendment request do not extend to all exemptions requested by the same licensee; rather, for hearing rights to apply, the relevant exemption must be related to the license amendment request. 42 In this case, Exelons LAR stated that the proposed changes to the TMI site emergency plan and Emergency Action Level scheme are predicated on approvals of requests for exemptions from portions of 10 C.F.R. 50.47(b), 10 C.F.R.§ 50.47(c)(2), and 10 C.F.R. Part 50, Appendix E, Section IV, previously submitted. 43 The proposed exemptions are necessary so that the Permanently Defueled Emergency Plan and Permanently Defueled Emergency Action Levels proposed in the LAR will be consistent with 10 C.F.R. § 50.47(b) and 10 C.F.R. Part 50, Appendix E. 44 For these reasons, Exelons exemption request is directly connected to its LAR.

Therefore, the Staff believes that the hearing rights associated with the July 1, 2019 LAR extend also to the July 1, 2019 exemption request, and the scope of this proceeding should be construed to include the July 1, 2019 exemption request.

39 10 C.F.R. § 50.12(a)(2).

40 Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant),

CLI-82-23, 16 NRC 412, 421 (1982) ([F]or there to be any statutory right to a hearing on the granting of an exemption, such a grant must be part of a proceeding for the granting, suspending, revoking, or amending of any license or construction permit under the Atomic Energy Act.)

41 Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-16-12, 83 NRC 542, 549 (2016), citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-12, 53 NRC 459, 467 (2001).

42 Honeywell Intl (Metropolis Works Uranium Conversion Facility), CLI-13-1, 77 NRC 1, 10 (2013) (citations omitted) 43 LAR at 2.

44 Exemption Request at 1.

8 B. Standing to Intervene

1. Legal Requirements for Standing A person whose interest may be affected by an NRC proceeding and who desires to participate as a party must file in writing a request for hearing or petition to intervene and a specification of the contentions that the person seeks to have litigated in the hearing. 45 The Atomic Safety and Licensing Board will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of [10 C.F.R. § 2.309(d)] and has proposed at least one admissible contention. 46 Under the standing requirements in 10 C.F.R. § 2.309(d)(1), a request for a hearing or a petition for leave to intervene must state:

(i) The name, address, and telephone number of the requestor or petitioner; (ii) The nature of the requestors or petitioners right under the Atomic Energy Act to be made a party to the proceeding; (iii) The nature and extent of the requestors or petitioners property, financial, or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors or petitioners interest. 47 The Commission insist[s] that an intervenor have some direct interest in the outcome of a proceeding, 48 not merely an intellectual or academic interest. 49 To this end, 45 10 C.F.R. §2.309(a); see also Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2239a.(1)(A) (In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permitthe Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.).

46 10 C.F.R. § 2.309(a).

47 10 C.F.R. § 2.309(d)(1).

48 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-05-26, 62 NRC 577, 579 (2005).

49 Id. at 580 (citations omitted).

9 a petitioner has the burden of proving that standing requirements are met, but for the purpose of a standing determination the Commission will construe the petition in favor of the petitioner. 50 Standing requirements for NRC proceedings reflect the nature of the proposed action. The Commission has recognized a proximity presumption for standing in certain reactor licensing proceedings, most commonly in proceedings for a construction permit, operating license, or license renewal for a nuclear power plant. 51 If the proximity presumption applies, individuals who live, 52 have a significant property interest, 53 or have frequent contacts 54 in an area within approximately 50 miles (80 kilometers) of a nuclear power reactor may establish standing without the need to make an individualized showing of injury, causation, or redressability. 55 A petitioner must provide specific details concerning its contacts with that area, and a lack of specificity or omission of supporting information is grounds to reject a claim of standing. 56 Standing based on proximity is not granted mechanistically to every petitioner within 50 miles (80 kilometers) of a nuclear reactor. Rather, the Commission will decide 50 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015); Ga. Inst. of Tech. (Georgia Tech Research Reactor, Atlanta Georgia), CLI-95-12, 42 NRC 111, 115 (1995).

51 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915-916 (2009) (citing Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423, 426 (2007)).

52 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989).

53 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 314 (2005).

54 Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 75 (1994).

55 Peach Bottom, CLI-05-26, 62 NRC at 581.

56 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999); PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 139 (2010).

10 claims of proximity-based standing on a case-by-case basis, 57 taking the petitioners distance from the reactor site into account along with the nature of the proposed action and the significance of the radioactive source. 58 In license amendment proceedings, the presumption of proximity-based standing applies only if the challenged license amendments present an obvious potential for offsite

[radiological] consequences. 59 Whether there is such obvious potential relates to the kind of action at issue, when considered in light of the radioactive sources at the plant. 60 Whether a reactor is permanently shutdown and defueled is a factor that weighs against the potential for offsite consequences. 61 If the petitioner has not shown that the licensing action in question raises an obvious potential for offsite consequences, the presumption of proximity-based standing does not apply. 62 In these circumstances, a petitioner then has the burden of establishing standing under traditional standing rules; in other words, the petitioner must demonstrate a concrete and particularized injury that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision, where the injury is to an interest arguably within the zone of interests protected by the governing statute. 63 In a license amendment 57 Peach Bottom, CLI-05-26, 62 NRC at 580.

58 Id. at 580-81 (citing Georgia Tech, CLI-95-12, 42 NRC at 116).

59 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), LBP-98-27, 48 NRC 271, 277 (1998), aff'd, CLI-99-4, 49 NRC 185 (1999), petition for review denied, Dienethal v. NRC, 203 F.3d 52 (D.C.

Cir. 2000) (citing St. Lucie, CLI-89-21, 30 NRC at 330).

60 Peach Bottom, CLI-05-26, 62 NRC at 581.

61 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 188 (1999) ([G]iven the shutdown and defueled status of the units, the license amendments do not on their face present any obvious potential of offsite radiological consequences.)

62 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 269 (2008).

63 Calvert Cliffs, CLI-09-20, 70 NRC at 915 (citing Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993) (quotations omitted)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992) (describing framework for judicial standing).

11 proceeding, a petitioner must assert an injury-in-fact associated with the challenged license amendment, not simply a general objection to the facility. 64 Claims of potential radiological harm from a facility that are not tied to the specific amendment at issue are not sufficient, 65 nor is merely describing the proposed license amendment and alleging without substantiation that the changes will lead to offsite radiological consequences. 66 Although the injury need not flow directly from the challenged license amendment, the chain of causation must be plausible, 67 showing a realistic threatof direct injury. 68 An organization may establish standing under 10 C.F.R. § 2.309(d) based on harm to its own organizational interests or based on harm to the interests of its members (representational standing). When an organization asserts representational standing, it must demonstrate that: (1) at least one of its members would otherwise have standing to sue in his or her own right; (2) the interests that the organization seeks to protect are germane to its purpose; (3) neither the claim asserted nor the relief requested requires an individual member to participate in the organizations lawsuit; and (4) at least one of its members has authorized it to represent the member's interests. 69 Thus, for representational standing, the organization must demonstrate how at least one of its members may be affected by the licensing action, must identify the member, and must show that the organization is authorized to represent that member. 70 64 Zion, CLI-99-4, 49 NRC at 188.

65 International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 251 (2001)

(citation and internal quotation marks omitted).

66 Zion, CLI-99-4, 49 NRC at 192.

67 Turkey Point, CLI-15-25, 82 NRC at 394.

68 White Mesa, CLI-01-21, 54 NRC at 253.

69 See Private Fuel Storage, CLI-99-10, 49 NRC at 323 (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977)).

70 White Mesa, CLI-01-21, 54 NRC at 250; GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),

CLI-00-06, 51 NRC 193, 202 (2000).

12 A petitioner who has demonstrated standing in one proceeding is not automatically granted standing in future proceedings related to the same licensee. 71 In some cases, a petitioners standing in one proceeding may be recognized in another proceeding that is merely another round in a continuing controversy about a given issue. 72 In general, however, a petitioner must make a fresh standing demonstration in each proceeding in which intervention is sought because a petitioners circumstances [and the nature of the action at issue] may change from one proceeding to the next. 73

2. Petitioners Standing (a) TMIA Has Not Demonstrated Standing to Intervene Petitioners assert that TMIA has members that TMI-Alert represents in this proceeding 74 who reside within the 10-mile geographical zone that might be affected by a release of fission products into the environment during or after decommissioning. 75 TMIA argues it is entitled to a presumption of injury-in-fact for persons residing within that zone. 76 In support of its argument for representational standing, TMIA provides affidavits for two of its members, Joyce Corradi and Patricia J. Longnecker. 77 The affidavits, which are substantially identical, state that Ms. Corradi and Ms. Longnecker are impacted by the LAR; they are members of TMIA; they reside within 10 miles of TMI; they have authorized TMIA to advocate for them; and they are opposed to Exelons license amendment request. 78 71 Bell Bend, CLI-10-7, 71 NRC at 138.

72 Consumers Power Co., (Midland Plant, Units 1 and 2), CLI-74-3, 7 AEC 7, 12 (1974).

73 Bell Bend, CLI-10-7, 71 NRC at 138 (citing Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 162-63 (1993)).

74 Petition at 20.

75 Id.

76 Id.

77 Petition Appendix A (ML19316E098).

78 Id. at 1-4.

13 TMIA states that its members interest in the proposed LAR extends to all aspects of TMIs radiological decommissioning, spent fuel management, and site restoration, and that the proposed license amendment raises significant health, safety, environmental, and financial concerns for members. 79 With regard to financial concerns, TMIA states that there is a risk that Pennsylvania taxpayers could become the payers of last resort. 80 And if a shortfall in the decommissioning fund prevents TMI from being fully decontaminated, radiological contamination of land and water is possible. 81 TMIA also suggests that its involvement in previous proceedings related to TMI should suffice to grant it standing in this proceeding. 82 TMIAs representational standing argument is deficient. As noted above, neither past findings of standing nor past denials of standing are determinative for future proceedings.

Consistent with Commission caselaw, TMIA must make a fresh standing demonstration in each proceeding in which intervention is sought, 83 unless the new proceeding represents merely another round in a continuing controversy on the same issue. 84 What is at issue in this proceeding is the LAR and exemption request associated with TMI 1s decommissioning. TMIA has not pointed to any previous proceeding in which it was granted standing that raised the same issues. Moreover, because TMI 1 was not in decommissioning before September 2019, 85 it is not clear how issues associated with TMI 1s decommissioning would have been raised in previous TMI proceedings.

Nor can TMIA benefit from the presumption of proximity-based standing in this proceeding because TMIA has not demonstrated a potential for offsite consequences as a result of this licensing action. [I]n an operating license amendment proceeding, a petitioner cannot 79 Petition at 21.

80 Id.

81 Id.

82 Id. at 18-20.

83 Bell Bend, CLI-10-7, 71 NRC at 138.

84 Midland, CLI-74-3, 7 AEC at 12 (1974). This case concerned whether the licensee can be reasonably expected to comply with [the Commissions] quality assurance regulations and does not support extending standing in one proceeding to a subsequent proceeding on distinct issues. Id.

85 See Certification of Permanent Removal of Fuel.

14 base his or her standing simply upon a residence or visits near the plant, unless the proposed action quite obvious[ly] entails an increased potential for offsite consequences. 86 The proximity presumption confers standing most often in cases involving construction permits, operating licenses, or significant amendments thereto such as the expansion of the capacity of a spent fuel pool. 87 These cases, unlike the matter now before the Board, involve[ ] the construction or operation of the reactor itself, with clear implications for the offsite environment or major alterations to the facility with a clear potential for offsite consequences. 88 The potential for offsite consequences is more likely to be a factor in cases related to whether the reactor will operate than by a change to the emergency plan and Emergency Action Levels at a permanently defueled reactor that will never operate again.

In the absence of proximity-based standing, TMIA must make a specific showing of injury, causation, and redressability under traditional standing jurisprudence to meet the Commissions standing requirements. 89 In other words, TMIA must show some scenario suggesting how these particular license amendments would result in a distinct new harm or threat to its members. 90 Although the cause of the injury need not flow directly from the challenged action, the chain of causation must be plausible. 91 Here, TMIA can show neither proximity-based nor traditional standing to intervene. The Commission has, in fact, already assessed similar standing arguments for a site in decommissioning. In Zion, for example, a licensee requested changes to its technical specifications and associated license conditions to reflect the permanently shutdown and defueled conditions of both Zion units. 92 An individual sought to establish standing based on his residence approximately 10 miles from the site and 86 Zion, CLI-99-4, 49 NRC at 191 (citing St. Lucie, 30 NRC at 329-30).

87 St. Lucie, CLI-89-21, 30 NRC at 329 (citing Virginia Electric Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979)).

88 Id. (citing Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 8 AEC 222, 226 (1974).

89 Palisades, CLI-08-19, 68 NRC at 269.

90 Zion, CLI-99-04, 49 NRC at 192.

91 Turkey Point, CLI-15-25, 82 NRC at 394.

92 Zion, CLI-99-4, 49 NRC at 187.

15 other contacts with the area. 93 The Commission found that the presumption of proximity-based standing did not apply given the shutdown and defueled status of the units, adding that all of the fuel at Plant Zion is in the spent fuel pool, and that [b]ecause neither reactor will ever operate again, the scope of activities at the plant has been greatly reduced and the spectrum of accidents and events that remain credible is significantly reduced. 94 With respect to traditional standing, along with the condition of the plant, the Commission considered the nature of the challenged license amendments[which were] based largely on the non-operational status and concomitant reduced scope of work at the facility. 95 Therefore, the type of accident that could result from the LARs at issue was anything but self-evident. 96 The Commission found that the petitioner had failed to demonstrate a causal connection between his proximity to Zion and the potential for any offsite consequences that might impact him, 97 concluding that the petitioner had failed to establish standing based on conclusory and unsubstantiated claims, some of which patently have no relation to the license amendments at issue. 98 Almost word for word, the same analysis could be applied to TMIAs standing here. As with Zion, both units at TMI are permanently shutdown and defueled; the scope of activities and spectrum of credible accidents is reduced; and all the fuel from TMI 1 is in the spent fuel pool, while all except the residual fuel from TMI 2 has been shipped off site. 99 The challenged LAR and exemption request at issue in this proceeding would revise the TMI site emergency plan and Emergency Action Levels to account for the permanently shutdown and defueled condition 93 Id. at 191.

94 Id.

95 Id.

96 Zion, CLI-99-4, 49 NRC at 192 (quoting In the Matter of Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), LBP-98-27, 48 NRC 271, 277 (1998)).

97 Id. at 192 (quoting approvingly the Boards statement that nowhere does the Petitioner set forth a plausible or credible causal chain or explain how the risk of such an accident is increased by the Applicants proposed amendments).

98 Id. at 193.

99 Supra at 2-3.

16 of both units. 100 Instead of explaining how these changes could result in offsite radiological consequences or another harm to its members, TMIA offers vague allusions to its members health, safety, welfare, and economic interests 101 and health, safety, environmental, and financial concerns. 102 The affidavits state that Ms. Corradi and Ms. Longnecker oppose the LAR, without describing a potential injury. 103 Just as in Zion, these abstract and conclusory statements do not constitute a specific showing of injury.

Moreover, as in Zion, some of TMIAs concerns patently have no relation to this proceeding. Discussing the cost of emergency response to the Commonwealth 104 and the risk of contamination that could result from lack of funding for decommissioning, 105 TMIA fails to draw a connection between these concerns and the LAR at issue, which does not change decommissioning or emergency response funding. NRC regulations establish the level of emergency planning needed, but do not specify how offsite planning is to be funded. 106 (b) Mr. Epstein Has Not Demonstrated Standing to Intervene Mr. Epstein has not demonstrated standing for many of the same reasons that TMIA has not done so. In addition, Mr. Epstein has not described his contacts with the vicinity of TMI with sufficient specificity to support standing. The Petition asserts that Mr. Epstein will be affected by this proceeding 107 as a local resident 108 and school board director for the Central Dauphin School District which is within [ ] ten miles of Three Mile Island. 109 No detail is provided about Mr. Epsteins residence or the frequency of his contacts with the area as a result of his school 100 LAR at 2; Exemption Request at 1.

101 Petition at 22.

102 Id. at 21.

103 Petition Appendix A at 2, 4.

104 Petition at 21.

105 Id.

106 10 C.F.R. Part 50, Appendix E, IV. Content of emergency plans.

107 Petition at 17.

108 Id. at 18.

109 Id. at 20.

17 board position. A petitioner who wishes to establish proximity-based standing must clearly indicate where he works and lives; 110 a lack of specificity or failure to provide this information is grounds for denying standing. 111 Mr. Epstein should be on notice of this requirementin a previous proceeding, the Commission denied him standing because he similarly failed to provide the requisite detail concerning his contacts with the relevant area. 112 Further, as noted above, even if Mr. Epstein were to provide sufficient support for his contacts with the area, the proximity presumption would not apply because the proposed LAR does not involve a clear potential for offsite consequences.

In addition to failing to provide enough information to support proximity-based standing, Mr. Epstein presents the same vague and conclusory statements of injury as TMIA. Mr. Epstein has thus failed to show a clear increase in the potential for offsite harm 113 or a specific and plausible injury that could result from the licensing action at issue. 114 Therefore, Mr. Epstein has not demonstrated standing to intervene in his individual capacity in this license amendment proceeding.

(c) Conclusion on Standing to Intervene TMIA and Mr. Epstein have failed to demonstrate a clear potential for offsite consequences as a result of the proposed LAR or exemption request; therefore, the proximity presumption does not establish standing for either of them. And, because neither TMIA nor Mr.

Epstein has made a specific showing of a plausible injury as a result of the proposed LAR or 110 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-91-2, 33 NRC 42, 47 (1991) (no standing when petitioner alleged proximity but failed to state his physical address or elaborate on the extent of his activities in the area).

111 Private Fuel Storage, CLI-99-10, 49 NRC at 325.

112 Bell Bend, CLI-10-7, 71 NRC at 138. (Mr. Epstein's additional claim that he is on the board of directors of two organizations with interests within 50 miles of the site is likewise insufficiently specific to articulate the requisite pattern of regular contacts with the area.) (citation omitted).

113 Zion, CLI-99-4, 49 NRC at 191.

114 Entergy Nuclear Operations, Inc., CLI-08-19, 68 NRC at 268-69.

18 exemption request, TMIA has failed to demonstrate a basis for representational standing.

Therefore, the petition should be denied. 115 C. Admissibility of Petitioners Contentions

1. Timeliness of Contentions The request for hearing was timely filed on November 12, 2019, consistent with the deadline published in the Federal Register. 116 The Staff does not dispute the timeliness of the request.
2. Legal Requirements for Contention Admissibility The legal requirements governing the admissibility of contentions are set forth in 10 C.F.R. § 2.309(f)(1) of the Commissions Rules of Practice and Procedure. To be admissible under 10 C.F.R. § 2.309(f)(1), a proposed contention must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners 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 requestor/petitioner intends to rely to support its position on the issue; [and]

115 In addition, TMIA argues that it should be granted standing because its participation may reasonably be expected to assist in developing a sound record (Petition at 23). This reference to 10 C.F.R.

§ 2.309(e), the discretionary intervention standard, is not relevant because this regulation applies only when at least one requestor/petitioner has established standing and at least one admissible contention has been admitted so that a hearing will be held. 10 C.F.R. § 2.309(e). Discretionary intervention will not be granted unless at least one petitioner has previously established standing and at least one admissible contention. See Palisades, CLI-08-19, 68 NRC at 267 (finding that, because no petitioner had demonstrated standing, the prerequisites for applying 10 C.F.R. § 2.309(e) standards were not present).

116 Hearing Notice, 84 Fed. Reg. at 47,542

19 (vi) [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants 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 required by law, the identification of each failure and the supporting reasons for the petitioner's belief (2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report. 117 The Commissions rules governing the admissibility of contentions are strict by design; 118 mere notice pleading does not suffice. 119 The Commissions intention is not to expend resources on the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. 120 The purpose for requiring a would-be intervenor to establish the basis of each proposed contention is: (1) to assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) to establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) to put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose. 121 Failure to comply with any of the requirements is grounds for the dismissal of a contention. 122 117 10 C.F.R. § 2.309(f)(1) (emphases added).

118 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001)).

119 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006) (citations omitted).

120 Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

121 Philadelphia Elec. Co. (Peach Bottom Atomic Power Station) ALAB-216, 8 AEC 13, 20-21 (1974).

122 Private Fuel Storage, CLI-99-10, 49 NRC at 325; Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 567 (2005).

20

3. Analysis of Petitioners Contentions (a) Proposed Contention 1: Lack of Financial Assurance and Lack of Character and Integrity Exelons LAR does not provide financial assurances. It does not demonstrate that either Exelon or FirstEnergy are fiscally responsible, or that either have access to adequate funds for decommissioning, Neither does the LAR address the confused management organization, or where resources will be derived to deal with environmental impacts that would place the public health, safety, and the environment at risk. 123 (i) Basis for Contention 1 Petitioners state that the LAR does not show that either Exelon, or FirstEnergy [is]

financially responsible, or that either has or has access to adequate funds for decommissioning 124 and that the LAR provides no assurance that TMI 1 and TMI 2 have the funds necessary to decommission the ISFSI. 125 Petitioners assert that FirstEnergys bankruptcy proceeding must be resolved before NRC can approve the LAR 126 and that Exelon may shut down other nuclear plants it operates. 127 Petitioners describe the importance of financial assurance for decommissioning, citing a Federal Register notice in which the NRC issued regulations for decommissioning. 128 Petitioners outline the possibility of a spent fuel pool accident 129 and technical issues associated with high-burnup nuclear fuel, 130 concluding that spent fuel management is expensive. 131 Petitioners articulate objections to Exelons decommissioning cost estimate, 132 and state that NRC approval of the License Amendment Request would effectively approve the PSDAR [Post-Shutdown Decommissioning Activities 123 Petition at 28. Typographical errors are in original.

124 Id. at 28.

125 Id. at 40.

126 Id. at 16.

127 Petition at 16.

128 General Requirements for Decommissioning Nuclear Facilities; Final Rule, 53 Fed. Reg. 24018 (June 27, 1988).

129 Petition at 35-37, 39.

130 Id. at 7 n. 4, 38; see also generally Petition Exhibit 6 (ML19316E125).

131 Petition at 35.

132 Id. at 32-34, 40.

21 Report]. 133 In addition, Petitioners state that the LAR does not show that Exelon or FirstEnergy has the necessary character and integrity 134 and that Exelon is under investigation by the Department of Justice and the Securities and Exchange Commission. 135 (ii) The Staff Opposes Admission of Proposed Contention 1 Contention 1 is inadmissible under 10 C.F.R. § 2.309(f)(1)(iii) because it is outside the scope of this proceeding. In a license amendment proceeding such as this one, the hearing notice determines the scope of the proceeding, which includes the LAR and any health, safety or environmental issues fairly raised in it. 136 As described in the hearing notice, Exelons LAR would revise the site emergency plan (SEP) and Emergency Action Level (EAL) scheme for the permanently defueled condition [of TMI 1]. 137 The LAR does not relate to or amend funding, financial assurance, or cost estimates for decommissioning at either TMI 1 or TMI 2, nor does it relate to decommissioning of an ISFSI. 138 There is no ISFSI present at TMI. 139 The same statements are true of the related July 1, 2019 exemption request. 140 Petitioners challenge to the PSDAR is similarly outside the scope of this proceeding. 141 The Staff does not agree that NRC approval of the LAR would effectively approve the PSDAR. 142 The PSDARs, which have already been submitted for both TMI 1 and TMI 2, 143 are not part of 133 Id. at 31.

134 Id. at 24.

135 Petition at 32.

136 Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 624 (1981).

137 Hearing Notice, 84 Fed. Reg. 47542.

138 See LAR, Attachment 1 at 2 (summary description of proposed changes). Petitioners statement that the LAR would defund emergency responders while raiding TMI 1s decommissioning trust fund (Petition at 2) is also incorrect. The LAR, if approved, would have no effect on TMI 1s decommissioning trust fund or on funding for emergency response organizations.

139 See supra at 2.

140 See Exemption Request, Attachment 1 at 2 (specific exemption request).

141 From context, the Staff understands Petitioners concerns about the PSDAR to refer to the TMI 1 PSDAR.

142 Petition at 31.

143 TMI 1 PSDAR; TMI 2 PSDAR.

22 either the LAR or the July 1, 2019 exemption request; nor is the decommissioning cost estimate, which Exelon submitted separately for TMI 1. 144 Moreover, although licensees for plants in decommissioning must submit PSDARs under the provisions of 10 C.F.R. § 50.82(a)(4)(i), the NRC does not approve PSDARs. 145 Therefore, Petitioners cannot satisfy 10 C.F.R.

§ 2.309(f)(1)(iii) because none of Petitioners claims concerning the PSDAR for TMI 1 or the related decommissioning cost estimate are within the scope of this proceeding.

In addition to being outside the scope of the proceeding, Contention 1 is also inadmissible because Petitioners cannot satisfy 10 C.F.R. § 2.309(f)(1)(iv): they have not demonstrated that the contention raises an issue material to the findings that NRC must make to support the action that is involved in this proceeding. 146 This admissibility criterion requires petitioners to show why the claimed error or omission is of significance to the outcome of the proceeding, demonstrating a significant link between its contention and the agencys ultimate determination. 147 Petitioners confuse and conflate the standards for a license transfer proceeding and a license amendment review. For example, Petitioners state that [i]n this license transfer proceeding [sic], the NRC must evaluate the finances, and also Exelons character and integrity, and decide whether the LAR as proposed, shows they meet NRC financial qualifications regulationsand posses[s] the requi[si]te character an[d] integrity to maintain TMI in safe defueling status until 2073. 148 This proceeding, however, is not a license transfer because it 144 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (April 5, 2019)

(Decommissioning Cost Estimate Report, Three Mile Island, Unit 1) (ML19095A010).

145 Although the NRC does not approve the PSDAR, the licensee cannot perform major decommissioning activities until 90 days after NRC has received the PSDAR. 10 C.F.R. § 50.82(a)(5). The PSDAR is made available for public comment and a public meeting near the relevant site will be held to discuss the PSDAR. 10 C.F.R. § 50.82(a)(4)(ii). The NRC inspects sites in decommissioning to ensure that decommissioning activities are conducted in accordance with applicable regulations and commitments.

NRC Inspection Manual Chapter 2561, Decommissioning Power Reactor Inspection Program, at 1 (ML17348A400).

146 10 C.F.R. § 2.309(f)(1)(iv).

147 Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989) (stating that a material issue is one where resolution of the dispute would make a difference in the outcome of the proceeding).

148 Petition at 25 (citing Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-02-16, 55 NRC 317, 340 (2002)). The Diablo Canyon case cited by Petitioners, which denied three

23 would not, directly or indirectly, transfer control of an NRC license. 149 The LAR and exemption request, if approved, would not change the existing ownership structure of either unit of TMI. 150 The standards by which the NRC evaluates LARs and exemption requests are found in 10 C.F.R. Part 50 (most relevantly in 10 C.F.R. §§ 50.90(a), 50.40, and 50.12(a)). Standards for license amendments and exemptions related to emergency preparedness do not require the NRC Staff to make a finding on Exelons or FirstEnergys finances, nor do they require a finding on the PSDAR or the decommissioning cost estimate. 151 Because these issues are not relevant to NRCs evaluation of the LAR and the exemption request, Contention 1 is not material to a finding the NRC must make on the LAR or exemption request and is therefore inadmissible under 10 C.F.R. § 2.309(f)(1)(iv). 152 The Petitioners concern that the LAR does not demonstrate Exelons character and integrity appears in part to be a reference to an Atomic Energy Act provision that allows the Commission to consider the character of the applicant in making a determination on a license application. 153 However, the Commission has made it clear that licensing actions as a rule do not throw open an opportunity to engage in a free-ranging inquiry into the character of the licensee; rather, there must be some relationship between the licensing action at issue and potential character issues. 154 This portion of Contention 1 is also inadmissible under 10 C.F.R. § 2.309(f)(1)(i), (ii), (v) and (vi) because of its vagueness and lack of basis. With regard to character and integrity, Petitioners state that Exelon is under investigation by federal agencies, 155 but do not provide petitions to intervene and found no litigable issue related to decommissioning funding in a license transfer proceeding, does not support Petitioners statement.

149 Cf. 10 C.F.R. § 50.80(a).

150 LAR at 2; Exemption Request, Attachment 1 at 2.

151 See generally 10 C.F.R. §§ 50.90(a), 50.40, and 50.12(a).

152 Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,172 (Aug. 11, 1989).

153 42 U.S.C. § 2232a.

154 Zion, CLI-99-4, 49 NRC at 189 (citing Georgia Power Co. (Vogtle Electric Generating Plant, Unit 1 and 2), 38 NRC 25, 32 (1993).

155 Petition at 32.

24 enough information on these investigations for the Staff to determine whether they have any relationship to TMI or to this proceeding. 156 Finally, Contention 1 is also inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) insofar as it constitutes a contention of omission of required financial information. 157 As noted above, the NRC does not require financial information as part of its review of a LAR and exemption request pertaining to emergency preparedness. For a contention of omission to be admissible, its proponent must demonstrate that the omitted information is required by law to be included. 158 Petitioners claims that the LAR must include information on Exelons and FirstEnergys financial responsibility or those companies access to decommissioning funds are not supported by a showing that this LAR is required to include this information. 159 Petitioners citations to 10 C.F.R.

§ 72.30(b), which requires holders of and applicants for licenses under 10 C.F.R. Part 72 to submit decommissioning funding plans, are not relevant here. This regulation does not apply to Exelons LAR or to the July 1, 2019 exemption request because these licensing actions do not involve applications for a license under Part 72. Because Petitioners have failed to demonstrate that the omitted information is required, Contention 1 is inadmissible. 160 156 See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-9, 21 NRC 1118, 1136-37 (1985) (stating that the Commission, in making a character determination, may consider evidence regarding licensee behavior having a rational connection to the safe operation of a nuclear power plant) (citation omitted).

157 A contention of omission is one that alleges failure to include required information. See, e.g.,

Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 122 (2018) (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-83 (2002)).

158 10 C.F.R. § 2.309(f)(1)(vi); USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 456 (2006).

159 Petition at 28, 40.

160 The Staff does not contest whether the financial qualification portion of Contention 1 meets the criteria in 10 C.F.R. § 2.309(f)(1)(i), (ii), or (v).

25 (b) Proposed Contention 2: Need for Environmental Review The License Amendment Request Does Not Include the Environmental Report Required by 10 C.F.R. 51.53(d), and has Not Undergone the Environmental Review Required by the National Environmental Policy Act. 161 (i) Basis for Contention 2 Citing the National Environmental Policy Act (NEPA), 162 Petitioners argue that the NRCs approval of the LAR would be a major federal action, which requires an environmental impact statement (EIS). 163 If the NRC determines that an EIS is not necessary, Petitioners state that the agency must prepare a Finding of No Significant Impact (FONSI). 164 Noting TMIs proximity to the Susquehanna River, Petitioners list safety and environmental concerns associated with flooding at nuclear power plants. 165 Petitioners are concerned that flooding could also affect communication and transportation networks in an emergency. 166 (ii) The Staff Opposes Admission of Proposed Contention 2 Contention 2 is inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) because Petitioners have not provided sufficient information to show that a genuine dispute exists with the licensee on a material issue of law or fact. It is a petitioners burden to supply some reasonably specific factual or legal basis for its contention. 167 To meet this standard, it is not enough to supply materials or documents without setting forth an explanation of their significance. 168 Rather, a 161 Petition at 40.

162 42 U.S.C. § 4321-74.

163 Id. at 41-44. Petitioners also state that the LAR cannot be approved without an updated environmental report based on a thorough environmental assessment performed at the beginning of the decommissioning process. Petition at 25.

164 Petition at 46.

165 Id. at 47-48.

166 Id. at 49.

167 PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-15-8, 81 NRC 500, 504-06 (2015) (quoting Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 213 (2003)); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

168 Fansteel (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 204-05 (2003).

26 petitioner must provid[e] a reasoned basis or explanation for its conclusion 169 that is more than mere speculation and more than a bare or conclusory assertion. 170 In addition, this contention is not admissible under 10 C.F.R. § 2.309(f)(1)(v) because it does not provide facts or expert opinions that support its position. Petitioners reference NEPA, NRC regulations, and a number of federal court decisions in support of the conclusion that the NRC must prepare an EIS for this license amendment. 171 However, none of these references are sufficient to demonstrate a genuine dispute with the LAR that is supported by facts or expert opinion.

First, Petitioners cite the regulation at 10 C.F.R. § 51.53(d) to support the statement that NRC regulations require an environmental impact statement. 172 However, 10 C.F.R. § 51.53(d) does not concern EISs and is not applicable to this licensing action. This regulations requirement to submit a supplement to the applicants environmental report only applies to an applicant for a license amendment authorizing decommissioning activities for a production or utilization facility[an] applicant for a license amendment approving a license termination plan or decommissioning plan under § 50.82 of this chapter[or an] applicant for a license or license amendment to store spent fuel at a nuclear power reactor after expiration of the operating license for the nuclear power reactor. Because the license amendment and exemptions at issue here would not authorize decommissioning activities, approve a license termination plan or decommissioning plan, or authorize the storage of spent fuel, 10 C.F.R. § 51.53(d) does not apply. 173 Other regulations cited by Petitioners also do not support Contention 2. 174 Statements 169 USEC, CLI-06-10, 63 NRC at 472 (citation omitted).

170 See Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-16-12, 83 NRC 542, 558 (2016); USEC, CLI-06-10, 63 NRC at 472.

171 Petition at 41-46.

172 Id. at 44.

173 See LAR, Attachment 1 at 2 (summary description of proposed changes); Exemption Request at 1.

174 See generally 10 C.F.R. § 51.10, Purpose and scope of subpart; application of regulations of Council on Environmental Quality; 10 C.F.R. § 51.20, Criteria for and identification of licensing and regulatory actions requiring environmental impact statements; 10 C.F.R. § 51.70, Draft environmental impact statementgeneral; 40 C.F.R. § 1508.14 (defining human environment); 40 C.F.R. § 1508.18 (defining major federal action).

27 by Petitioners that the LAR is a major federal action, a term of art under NEPA, 175 because it has effects that may be major, 176 are conclusory and unsupported.

Second, the federal court decisions cited by Petitioners do not support Contention 2. An examination of those cases reveals that none of the cited decisions relates to the type of proceeding at issue here: a LAR and exemption request related to emergency planning at a decommissioning facility. 177 Nor have Petitioners explained why any of these cases should be interpreted to apply to this proceeding.

Finally, Petitioners state that, to approve the LAR, the NRC must decide whether the environmental impacts of decommissioning are bounded by [previous] Environmental Impact Statements. 178 This portion of Contention 2 is inadmissible under 10 C.F.R. § 2.309(f)(1)(iii), as well as not providing sufficient information to show a genuine dispute. Petitioners statement appears to be a reference to 10 C.F.R. § 50.82(a)(4)(i), which requires power reactor licensees in decommissioning to submit a PSDAR containing, among other things, a discussion of why the environmental impacts associated with site-specific decommissioning will be bounded by previously issued EISs. Because the scope of this LAR and associated exemption request does 175 40 C.F.R. § 1508.18.

176 Petition at 42.

177 Scientists' Inst. for Pub. Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1088 (D.C. Cir. 1973)

(finding EIS required for liquid metal fast breeder reactor program); Citizens Awareness Network, Inc. v.

U.S. Nuclear Regulatory Comm'n, 59 F.3d 284, 293 (1st Cir. 1995) (finding that NRC was arbitrary and capricious when allowing licensee to complete 90% of decommissioning at plant prior to any environmental review); Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 5 (2002) (admitting contention related to Severe Accident Mitigation Alternatives analysis in reactor license renewal); San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016, 1030 (9th Cir. 2006) (finding that NRCs categorical refusal to consider environmental effects of potential terrorist attack on nuclear facilities was not reasonable); New York v. Nuclear Regulatory Comm'n, 681 F.3d 471, 477 (D.C. Cir. 2012) (finding that waste confidence decision rulemaking was major federal action).

For reasons of space, the NRC Staff will not summarize all of the federal cases cited by Petitioners. The Staff notes, however, that Petitioners description of the case of Ramsey v. Kantor, 96 F.3d 434, 445 (9th Cir. 1996), on p. 42 of the Petition, is not accurate. This case concerned the Secretary of Commerces obligation to review plans prepared by the North Pacific Fish Management Council, not NRCs obligation to review Exelon and FirstEnergys plans.

178 Id. at 25.

28 not include the PSDAR for either unit, claims related to PSDARs are out of scope of this proceeding and therefore inadmissible under 10 C.F.R. § 2.309(f)(1)(iii). In addition, 10 C.F.R.

§ 50.82(a)(4)(i) does not support Contention 2 because it does not contain a requirement for NRC to prepare an EIS.

In fact, Part 51 and NEPA regulations weigh against admission of Contention 2. When a categorical exclusion applies, under NEPA and NRC regulations, no EIS or environmental assessment is required for that action, unless the Commission determines that special circumstances apply. 179 In its LAR, Exelon stated that its proposed license amendment does not require an EIS or environmental assessment because it satisfies the categorical exclusions in 10 C.F.R. § 51.22(c)(9) and 10 C.F.R. § 51.22(c)(10). 180 Section 51.22(c)(9) states that no EIS or environmental assessment is necessary for issuance of an amendment under Part 50 that changes a requirement with respect to installation or use of a facility component located within the restricted area, with certain provisions. 181 Similarly, 10 C.F.R. § 51.22(c)(10) states that no EIS or environmental assessment is necessary for a license amendment under Part 50 that changes certain specified administrative requirements. 182 Exelon also stated that its exemption request satisfies the categorical exclusion in 10 C.F.R. § 51.22(c)(25), which applies to exemptions that satisfy criteria in that regulation. 183 The decision as to whether a categorical 179 10 C.F.R. § 51.53(b).

180 LAR, Attachment 1 at 13.

181 This categorical exclusion applies provided that (i) The amendment or exemption involves no significant hazards consideration; (ii) There is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; and (iii) There is no significant increase in individual or cumulative occupational radiation exposure.

10 C.F.R. § 51.22(c)(9).

182 10 C.F.R. § 51.22(c)(10).

183 Exemption Request, Attachment 1 at 55.

29 exclusion applies to a given licensing action will be made by the NRC; if a categorical exclusion applies, the licensee need not prepare an environmental report. 184 Petitioners are obligated to carefully examine publicly available information in preparing their contention. 185 Instead of explaining why these categorical exclusions might or might not apply, Petitioners do not address them at all. 186 Because Petitioners have failed to address publicly available information and failed to supply a reasoned basis for their conclusion that is more than conclusory, they have failed to show a genuine and material dispute with the LAR. Therefore, Contention 2 is inadmissible under 10 C.F.R. § 2.309(f)(1)(v) and (vi). 187 (c) Other Potential Contentions Although Contentions 1 and 2 are the only labeled contentions in the petition, other claims in the document appear as if Petitioners may have intended them to be considered as contentions.

Understanding that contentions need not be presented with technical perfection, 188 particularly when petitioners are not represented by counsel, 189 the Staff will briefly address two other potential contentions. The Staff has not addressed Petitioners challenge to the Staffs proposed no significant hazards consideration determination, presented in the first several pages of the 184 Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 396 (1995) (citation omitted).

185 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1401 (1983).

186 Cf. Paina Hawaii, LLC, LBP-06-4, 63 NRC 99, 113-14 (2006) (finding that categorical exclusion did not preclude admission of environmental contention when petitioner identified a specific omission in the Staffs analysis, described the basis for its allegations, and affirmatively assert[ed] that special circumstances are present that preclude the application of the categorical exclusion.).

187 The Staff does not contest admission of Contention 2 under the criteria in 10 C.F.R. § 2.309(f)(1)(i), (ii),

(iii) and (iv), with the exception that the portion of the contention that challenges the PSDAR is out of scope and inadmissible under 10 C.F.R. § 2.309(f)(1)(iii).

188 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-01-3, 53 NRC 84, 99 (2001) (citing Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 649 (1979)).

189 Shieldalloy Metallurgical Corp., CLI-99-12, 49 NRC 347, 354 (1999).

30 petition, 190 because challenges to no significant hazards consideration determinations are categorically inadmissible under NRC regulations. 191 (i) Alleged Deficiencies in the Permanently Defueled Emergency Plan for TMI With regard to the Permanently Defueled Emergency Plan proposed by Exelon in its LAR, Petitioners argue that the Emergency Plan does not account for TMIs unique status as an isolated island with limited access. 192 Also, according to Petitioners, the Emergency Plan does not appropriately account for certain features of TMIs environs, such as an international airport, day care facilities, memory care facilities, tourist attractions, and Amish communities. 193 The Emergency Plan does not acknowledge a history of communication problems and blizzards in the area, 194 and it does not appropriately consider risks associated with flooding in the Susquehanna River basin. 195 This contention is inadmissible under 10 C.F.R. § 2.309(f)(1)(v) and § 2.309(f)(1)(vi). To support a proposed contention on emergency planning, Petitioners must not only state that they object to the Permanently Defueled Emergency Plan, but also explain their objection with specificity, providing supporting facts or expert opinions. Petitioners are responsible for setting forth their grievances clearly, and it should not be necessary to speculate about the meaning of a contention.196 In this case, Petitioners describe some faults they believe exist in the Permanently Defueled 190 Petition at 2, 4-8.

191 10 C.F.R. § 50.58(b)(6) (No petition or other request for review of or hearing on the staff's significant hazards consideration determination will be entertained by the Commission); Memorandum from Annette L. Vietti-Cook (Secretary of the Commission) to E. Roy Hawkens (Chief Administrative Judge, Atomic Safety and Licensing Board Panel), Request for Hearing Submitted with Respect to the License Amendment Application of Exelon Generation Company, LLC for Three Mile Island, Units 1 and 2 (Dockets Nos. 50-289 and 50-320) (Dec. 5, 2019).

192 Petition at 4.

193 Id. at 4, 47; Petition Exhibit 3 at ii (ML19316E113).

194 Petition Exhibit 3 at i.

195 Petition at 47-49.

196 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010).

31 Emergency Plan, but they do so without drawing a connection between those improvements and NRCs regulations for emergency planning. Petitioners do not point to any law or regulation violated by the Permanently Defueled Emergency Plan and do not address the NRCs publicly available guidance related to emergency planning for decommissioning reactors.197 For these reasons, this proposed contention is inadmissible under 10 C.F.R. § 2.309(f)(1)(v) and § 2.309(f)(1)(vi) because it does not provide supporting facts or expert opinions and because it does not provide sufficient information to show that a genuine dispute on a material issue of law or fact exists. 198 (ii) Claims Related to Exelons Relationship with FirstEnergy Petitioners claim that the proposed LAR violates the Atomic Energy Act by unilaterally amending and suspending FirstEnergys license for TMI 2 199 and that Exelon does not have the authority to amend FirstEnergys license using an omnibus LAR. 200 Additionally, Petitioners state that the Permanently Defueled Emergency Plan usurps FirstEnergys license, 201 that FirstEnergy must submit a separate LAR for TMI 2, 202 that approval of the LAR should be contingent on NRC executing a Memorandum of Understanding on the service agreement between FirstEnergy and Exelon, 203 and that the LAR should be held in abeyance until Exelon provides Mr. Epstein with a copy of its service agreement and Memorandum of Understanding with FirstEnergy. 204 This proposed contention is inadmissible under 10 C.F.R. § 2.309(f)(1)(v) and (vi) because Petitioners have not provided support for their claim and have not provided enough information 197 See, e.g., NSIR-DPR-ISG-02; Staff RequirementsSECY-99-168Improving Decommissioning Regulations for Nuclear Power Plants (Dec. 21, 1999) (SRM-SECY-99-168).

198 This contention is also inadmissible under 10 C.F.R. § 2.309(f)(1)(i) because it does not specifically state the issue of law or fact to be raised or controverted. The Staff does not contest admission of this proposed contention under the criteria in 10 C.F.R. § 2.309(f)(1)(ii), (iii), or (iv).

199 Petition at 9.

200 Id. at 18.

201 Id. at 7.

202 Id. at 14, 18.

203 Petition at 14.

204 Id. at 16.

32 to show a genuine dispute with the licensee on a material issue of law or fact. Petitioners do not explain why Exelon, the licensee for TMI 1, would not have the authority to submit the LAR and exemption request.

As background, because of the non-operating and defueled status of TMI 2, there is no potential for any significant off-site radiological release resulting from a potential accident at TMI 2. 205 Therefore, the limited emergency planning necessary for TMI 2 is integrated into the overall Emergency Plan for the TMI site, 206 and the analysis that informed the TMI Emergency Plan and Emergency Action Levels is dominated by potential events that could occur at TMI 1. 207 Under a service agreement between Exelon and FirstEnergy, and as stated in TMI 2s post-defueling monitored storage safety analysis report, the Emergency Plan is under the authority of Exelon. 208 For these reasons, Exelon, the licensee for TMI 1 and the holder of emergency planning responsibilities for TMI 2, submitted the LAR for TMI 1 and exemption request at issue.

Although Exelon references TMI 2 in its LAR, the LAR, if approved, would amend TMI 1s license without altering TMI 2s, 209 and the exemption request was made in response to the change in TMI 1s condition when it permanently ceased operations in September 2019. 210 Petitioners have not provided alleged facts or expert opinions that would support a claim that a LAR or exemption request related to emergency planning and submitted by the licensee for one unit and the holder of emergency planning responsibilities for the second unit would violate applicable law or regulations. Instead, Petitioners proffer conclusory statements suggesting that FirstEnergys rights have been violated or that FirstEnergy must submit a separate LAR, without explanation or supporting basis. 211 Moreover, in addition to the lack of 205 Letter from Gregory H. Halnon (GPU Nuclear) to NRC Document Control Desk (August 23, 2019),

Three Mile Island Nuclear Station, Unit 2 - Update 12 of the Post-Defueling Monitored Storage Safety Analysis Report, Attachment at 10-2 (ML19235A001) (TMI 2 PDMS SAR).

206 Id.

207 Id.

208 Id.

209 LAR at 1, Attachment 1 at 2 (summary description of proposed changes).

210 Exemption Request, Attachment 2 at 1.

211 Petition at 7, 14, 18.

33 standing previously articulated in this document, it is far from clear how Petitioners would have standing to raise a claim on behalf of FirstEnergy. Petitioners do not identify any legal requirement that would require NRC to execute a Memorandum of Understanding or require Exelon to provide Mr. Epstein with a copy of the requested documents. If Petitioners believe that Exelon is in violation of applicable requirements outside the scope of this proceeding, Petitioners can file a petition for enforcement filed under 10 C.F.R. § 2.206. 212 This contention, therefore, is inadmissible under 10 C.F.R. § 2.309(f)(1)(v) and (vi). 213 212 Fla. Power & Light Co. (St. Lucie Plant, Unit 2), CLI-14-11, 80 NRC 167, 179 (2014) ([The 2.206]

process provides stakeholders a forum to advance concerns and obtain full or partial relief, or written reasons why the requested relief is not warranted.) (citations omitted).

213 The Staff does not contest admission of this contention under the criteria in 10 C.F.R. § 2.309(f)(1)(i),

(ii), (iii), or (iv).

34 CONCLUSION For the reasons set forth above, neither Mr. Epstein nor TMIA has demonstrated standing to intervene in this proceeding or proffered an admissible contention. Therefore, the Petition should be denied.

Respectfully submitted,

/Signed (electronically) by/

Kayla Gamin Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9234 E-mail: Kayla.Gamin@nrc.gov Executed in Accord with 10 C.F.R. 2.304(d)

Reginald Augustus Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0165 E-mail: Reginald.Augustus@nrc.gov Dated in Rockville, MD this 6th day of December 2019

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of EXELON GENERATION COMPANY, LLC Docket No. 50-289 50-320 Three Mile Island Nuclear Station, Units 1 and 2 Certificate of Service Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC Staff Answer to Three Mile Island Alert Petition, dated December 6, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 6th day of December 2019.

/Signed (electronically) by/

Kayla Gamin Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9234 E-mail: Kayla.Gamin@nrc.gov Dated in Rockville, MD this 6th day of December 2019

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