ML20047A004

Motion to Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition

ML20047A004
Person / Time
Site:	Three Mile Island
Issue date:	02/16/2020
From:	Epstein E Three Mile Island Alert
To:	Sue Abreu, Gary Arnold, Bollwerk G Atomic Safety and Licensing Board Panel
SECY RAS
References
50-289-LA, 50-320-LA, ASLBP 20-962-01-LA-BD01, LBP-20-02-2, RAS 55566
Download: ML20047A004 (26)

Text

LBP-20-02-2 United States of America Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Before the Licensing Board:

G. Paul Bollwerk, III, Chairman Dr. Sue H. Abreu Dr. Gary S. Arnold In the Matter of  : Docket No. 50-289 Exelon Generation Company : Docket No. and 50-320 Three Mile Island Nuclear : ASLBP No.20-962 Generating Station Unit 1  : LA-BD01 and Unit 2  : February 18, 2020 Motion To Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition Submitted by Eric J. Epstein, Chairman Three Mile Island Alert 4100 Hillsdale Road Harrisburg, PA 17112 epstein@efmr.org (717)-635-8615 Dated: February 16, 2020.

This proceeding originates from a July 1, 2019 license amendment request (LAR) by Exelon Generation Company, LLC, (Exelon) to amend the 10 C.F.R. Part 50 operating license for Three Mile Island Nuclear Station, Unit 1 (TMI-1). (1)

Pursuant to 10 C.F.R. § 50.90, Exelon requested to reduce the Three Mile Island Nuclear Station (TMI) site emergency plan and emergency action level scheme to reflect the permanently defueled condition of both reactors at the TMI facility.(2) The LAR was necessary to protect Petitioners interests. (Exelon, Answer at 2, 13-22.) (3)

Eric J. Epstein (Epstein or Mr. Epstein) and Three Mile Island Alert, Inc., (the Petitioners, TMIA, or TMI-Alert) set forth two valid contentions challenging the LAR (4) on November 12, 2019. (5) 1 Letter from Michael P. Gallagher, Vice President, Exelon, to Nuclear Regulatory Commission on July 1, 2019). (ADAMS Accession No. ML19182A182) [hereinafter LAR]. Mr. Epstein attempts to contact Mr.

Gallagher were met with silence on November 8 and 9, 2019. On Monday, November 11, 2019 Mr. Epstein spoke with J. Bradley Fewell, Esquire. Mr.

Fewell declined to provide a copy of the Service Agreement between Exelon and FirstEnergy.

2 The TMI-2s basement is too radioactive for human entry, and the core and fuel debris remain scattered through the building.

3 Exelon $425,000 annual contribution to the Pennsylvania Emergency Management Agency has been suspended by Exelon.

4 Both Exelon and the NRC failed to rebut or respond to Epsteins Exhibit 3 and Exhibit 4. This exhibit provided a detailed criticism of the Post Defueled Emergency Plan.

5 Epstein/TMIA Petition to Intervene and Hearing Request (Nov. 12, 2019) at 28- 49 [hereinafter Epstein/TMIA Petition].

1

In fact, the NRC is now arguing that Exelons financial interests are paramount and trump public safety. In the NRCs misplaced fidelity to prop up Exelon, the agency appears to be unaware that the TMI-1 Decommissioning Trust Fund (DTF) has been raided, and used to subsidize emergency planning at TMI. (6)

I. Background A. Three Mile Island:

Two Separate Companies Own Two Separate Reactors.

The License Amendment Request in this proceeding would revise the operating license for TMI-1, one of two permanently shutdown reactors at the TMI facility.

Originally owned by three subsidiaries of General Public Utilities Corp., later renamed GPU, Inc., (GPU) and operated by the GPU-created operating company GPU Nuclear, Inc., (GPUN) TMI-1 ownership and operating authority was transferred to AmerGen Energy Co., LLC, (AmerGen) in 1999.

The NRC issued a renewed operating license for TMI-1 to Exelon in October 2009. After Exelon purchased British Energys 50% stake in AmerGen.

6

Subject:

Three Mile Island Nuclear Station, Unit 1 - Exemption from the Requirements of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv)

(EPID L-2019-LLE-0009) ADAMS Accession No. ML19259A177 GPU, et al.; [TMI-1]; Order Approving Transfer of License and Conforming Amendment, 64 Fed. Reg. 19,202, 19,203.

2

Mr. Epstein and Exelon worked collaboratively to increase TMIs footprint in the TMI Emergency Planning Zone. (7)

TMI Unit 2 (TMI-2), is not maintained by GPUN, which is a wholly-owned subsidiary of FirstEnergy, Inc., (FirstEnergy). FirstEnergy is in bankrupt proceedings, and TMI-2 is maintained by Exelon.

Ownership of TMI-2 and liability for 1,990 health suits against GPU was transferred to FirstEnergy in November, 2001, when TMI-2 was formally transferred from GPU Nuclear to FirstEnergy. GPU Nuclear retains the license for TMI-2. The plant is owned by the FirstEnergy Nuclear Operating Company. (7) 7 Exelon and EFMR Sign Community Based Agreement Harrisburg, Pa. (May 20, 2008) - Exelon Generation and EFMR Monitoring Group (EFMR), today announced that they have entered into a five-year agreement that provides benefits to the communities surrounding Three Mile Island.

William Noll, Three Mile Island Site Vice president, said, We are pleased to have resolved important issues and to provide benefits to the local community. At the same time we will continue to have an open channel of communication with EFMR.

Exelon Nuclear to Replace Sirens Around Three Mile Island Generating Station (Oct. 5, 2011) Exelon Nuclear this week began replacing all 96 sirens in the 10 mile radius around the Three Mile Island Generating Station with new sirens that include battery back up. Completion of the project and removal of the existing sirens is scheduled for early 2012.

8 GPU, et al.; [TMI-1]; Order Approving Transfer of License and Conforming Amendment, 64 Fed. Reg. 19,202, 19,203 (Apr 19, 1999).

3

The transfer of ownership from AmerGen to Exelon does not impact the license or ownership of TMI-2. Three Mile Island Unit-2s Possession Only License was transferred from General Public Utilities to FirstEnergy, as the NRC has acknowledged. (8)

There was no license transfer to Exelon or any PECO affiliate as a result of the sale of TMI-2 to FirstEnergy. The only documents that bind Exelon and First Energy are Service Agreements. (9)

FirstEnergy did not cosponsor the LAR , nor did the Company surrender its license. In fact, First Energys name is misapplied five times in the License Amendment Request, Moreover, Exelon neglected to mention the Memorandum of Understanding (MOU) in the LAR or include the Service Agreements.

FirstEnergy has announced that they entered into a contract to transfer the licenses and assets associated with Unit 2 to TMI-2 Solutions LLC, a subsidiary of Energy Solutions, Inc.

8 Memorandum and Order, p. 22 9 The sale of TMI-1 included the Unit 1 buildings, structures, and the majority of the site; however GPU Nuclear maintained ownership of TMI-

2. A monitoring agreement between AmerGen and GPU Nuclear provides for AmerGen performing certain functions at TMI-2 while TMI-2 is in PDMS on the behalf of GPU Nuclear. These functions include maintenance and testing, radiological and environmental controls, security and safety functions and licensing activities required by the PDMS Technical Specifications and PDMS Final Safety Analysis Report. (

Subject:

Three Mile Island Nuclear Station, Unit 2 Docket No. 50-320, Possession Only License No. DPR-73 Post-Shutdown Decommissioning Activities Report Submittal, pp. 5-6).

4

TMI-2 Solutions submitted an incomplete Post-Shutdown Decommissioning Activities Report (PSDAR) on November 12, 2019 after the NRC closed the LAR proceeding. The proposed parent guarantee from Energy Solutions is for only $100 million. (US NRC, November 12, 2019 TMI-Solutions, LLC and GPU Nuclear, Inc. Attachment 1, p. 2), and is far short of whats needed to provide adequate funding for TMI-2s unique status. (10) (Epstein, p,p. 2 4, 6, and 14; Exhibit 1)

The current agreements in place between Exelon and FirstEnergy can not be abandoned, abrogated or severed under the terms of the MOU and Service Agreement. In other words, FirstEnergy does not have an ownership interest in TMI-1, and Exelon does not own or hold the Possession Only License (POL) for TMI-2. (11) They are nuclear twins with different corporate parents.

FirstEnergy is not a proportional owner of TMI-1, and Exelon does not have an ownership interest in TMI-2. Exelon and First Energy are competitors.

10 The proposed sale and license transfer clearly states that ...TMI-2 solutions will have in place significant financial resources mechanisms, including a nuclear decommissioning trust fund (NDT), and additional Decommissioning funding assurance instruments , to measure the safe performance of all NRC required decommissioning actives. (Application for Order Approving License Transfer and Conforming License Amendments, Three Mile Island Unit-2, NRC Possession Only License, DPR-73, NRC Docket 50-320, GPU-Nuclear and TMI-Solutions.)

11 Through a service agreement with FirstEnergy, AmerGen-successor Exelon retains the emergency planning responsibilities for both TMI-1 and TMI-2. (See LAR at 2.)

Exelon refused to provide the document to Mr. Epstein.

5

TMI-2 Solutions must submit a separate LAR detailing how Exelons EAL and SEF schemes are appropriate for a crippled nuclear plant. TMI-2s unique status creates different challenges that include but are not limited to bankruptcy proceedings (12), hazardous working environments, recriticality scenarios, and expiration of the agreement that allows damaged TMI debris, fuel and other radioactive materials to be stored in Idaho. (13)

Through a service agreement with FirstEnergy, Exelon retains the emergency planning responsibilities for both TMI-1 and TMI-2. (14) 12 The First Energy Solutions bankruptcy proceeding is not to be confused with AmerGen and the bankruptcy of British Energy. On September 5, 2002, Exelon announced that it was putting its share (50%)

of AmerGen up for sale. British Energy which was bankrupt, owned the other 50% of AmerGen.

13 Governor Brad Little and Attorney General Lawrence Wasden reached an agreement with the U.S. Department of Energy that provides a path to resolve the departments breaches of the states 1995 Settlement Agreement on commercial spent nuclear fuel at Idaho National Laboratory.

The agreement only allows commercial spent nuclear fuel to be sent to INL in research quantities and does not allow for the Department of Energy to bring any other type of fuel to Idaho for storage purposes. Any commercial research fuel brought to INL is subject to language in the original 1995 agreement that requires all Department of Energy spent nuclear fuel to be shipped out of Idaho by 2035. The cap on all Department of Energy nuclear waste in Idaho established in the 1995 Settlement Agreement also remains in place. (Office of Idaho Attorney General, November 8, 2019).

1 4 Exelon declined to provide the document to Mr. Epstein despite requests made directly to Michael Gallagher on November 7 ,8, and 9, 2019, and a teleconference with J. Bradley Fewell on November 11, 2019.

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This proceeding should be held in abeyance until FirstEnergy or Energy Solutions submit an updated Emergency Action Level and the Site Emergency Plan scheme to account for the unique condition at Three Mile Island Unit-2.

B. License Amendment Request Proceeding On June 20, 2017, Exelon submitted a certification to the NRC conveying its decision to permanently cease operations at TMI-1 no later than September 30, 2019. The LAR being challenged by Petitioners seeks to revise the site emergency plan and emergency action level.

On September 3, 2019, the NRC Staff issued a public hearing opportunity notice regarding the July 1, 2019 Exelon LAR pursuant to 10 C.F.R. § 50.92.19.

On November 12, 2019, Mr. Epstein and TMIA timely filed their intervention Petition asserting that both have standing and have proffered two admissible contentions. (Epstein/TMIA Petition at 17-49).

Contention 1 challenged the financial assurance/qualifications and character/integrity of Exelon and FirstEnergy. Epstein at 24-25, 28-40.)

Contention 2 stated that the LAR cannot be approved without an updated environmental report based on a thorough environmental assessment performed at the assembly with maximum heat load).

7

Petitioners in their hearing request made several compelling arguments. Mr. Epstein including disputed the Staffs no significant hazards consideration analysis and finding. Epstein argued the proposed offsite emergency planning retreat to the [TMI site] fence line embodied in the LAR involve[s] a significant reduction in [the] margin of safety so as to endanger nearby communities and leave them underfunded and vulnerable. (Epstein at 2-3)

Mr. Epstein and TMIA established standing in prior agency licensing proceedings. The Staff argues that neither past findings of standing nor past denials of standing are determinative for future proceedings. (Staff Answer at 13.) The Staff maintains as well that Petitioners have failed to establish standing under the rubric of the proximity presumption, representational standing, or traditional standing. (Epstein at 12, 18.)

Exelon mimicked the NRC, and opposed the Petition, declaring that, Petitioners fail to demonstrate standing to intervene in this proceeding, either as a matter of right or as a matter of discretion under 10 C.F.R. § 2.309(d) and § 2.309(e), respectively, maintaining that Petitioners failed to allege a particularized injury that could plausibly flow from the LAR or to explain why a hearing on the LAR is necessary to protect Petitioners interests. (Exelon at 2, 13-22.)

By memorandum dated December 5, 2019, the Secretary of the Commission referred the Petition to the Atomic Safety and Licensing Board Panels Chief Administrative Judge. See Memorandum from Annette L.

Vietti-Cook, NRC Secretary, to E. Roy Hawkens, Chief Administrative Judge (Dec. 5, 2019) [hereinafter SECY Referral Memorandum].

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On December 9, 2019, the Chief Administrative Judge assigned the hearing request to this Licensing Board to rule initially on the standing and contention admissibility matters associated with the petition and, thereafter, preside at any hearing that might follow if the petition is granted. See [Exelon], Establishment of Atomic Safety and Licensing Board, 84 Fed. Reg. 67,969, 67,969-70 (Dec. 12, 2019).

In a December 26, 2019 e-mail directed to those on the proceedings service list, Mr. Epstein provided an ADAMS link to a December 20, 2019 letter from the Federal Emergency Management Agency (FEMA) to the NRC Office of Nuclear Security and Incident Response commenting on a Staff draft paper to the Commission concerning the Exelon-requested exemptions from certain emergency planning requirements for the TMI facility. (15)

The Federal Emergency Management Agency has also weighed in, proposing in a December 20, 2019 letter to the NRC that current emergency planning requirements remain until all spent nuclear fuel on TMI is placed into dry cask storage.

15 Letter from Michael S. Casey, Director, FEMA Technological Hazards Division, to Kathryn M. Brock, Director, NSIR Division of Preparedness and Response (Dec. 20, 2019) (ADAMS Accession No. ML19360A127) [hereinafter FEMA Letter]; and (2) the statement Please review FEMA letter regarding Emergency Plan Exemptions. E-mail from Eric Epstein to Hearing Docket and Service List (Dec. 26, 2019, 7:11 p.m.

EST). In a December 27, 2019 order, the Board provided a schedule for Staff and in accord with 10 C.F.R. § 2.309(j), the Board anticipated issuing a decision on the pending Epstein/TMIA hearing request by January 23, 2020. See Licensing Board Memorandum and Order (Information Regarding Schedule for Proceeding) (Dec. 18, 2019) at 2 (unpublished).

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That transfer isnt expected to take place until December 2022, according to the decommissioning timetable set by Exelon. That would be nearly two years after Exelon proposes to relax emergency planning requirements.

FEMA in its letter also questions the belief expressed by NRC staff that state and local governments no longer involved in formal radiological emergency planning would nevertheless respond expeditiously and with optimum effectiveness in case of an actual radiological emergency at Three Mile Island.

FEMA has no data that would indicate what state and local government reactions might be in such circumstances, FEMA said in the letter from Michael S. Casey, director of the agencys Technological Hazards Division. (16) 16 Will TMI be allowed to reduce emergency planning? by Dan Miller for the Middletown Press and Journal, posted on Wednesday, January 8, 2019.

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The NRC failed to address the concerns raised by FEMA. Apparently, in the NRCs eyes, the Federal Emergency Management Agency lacks standing regarding Three Mile Island and emergency planning. (17)

II. Analysis.

A. Standing 1.

Mr. Epstein and TMI-Alert have met the conditions for standing.

In an agency licensing proceeding, a hearing petition generally will be construe[d] . . . in favor of the petitioner as it seeks to demonstrate standing, while a pro se petitioner (such as Mr. Epstein and TMIA) will not be held to the same standards of clarity and precision to which a lawyer might reasonably be expected to adhere. (18) 17 FEMAs REP Program was established as a result of the accident, at the Three Mile Island Nuclear Generating Station on March 28, 1979. Then President Carter established a Presidential Commission, the Kemeny Commission, to conduct a comprehensive study and investigation of the recent accident at the facility. Among other things, the Kemeny Commission called for the formation of an emergency preparedness framework specific to nuclear power plant incidents. A portion of this responsibility would be allotted to the Federal Emergency Management Agency.

The responsibility at the federal level for radiological emergency planning, including planning for coping with radiological releases, should rest with FEMA. In this process, FEMA should consult with other agencies, including the Nuclear Regulatory Commission.

18 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-15-25, 82 NRC 389, 394 (2015) (quoting Ga. Inst. of Tech.

(Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111, 115 (1995), and Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-15-13, 81 NRC 456, 468, affd, CLI 25, 82 NRC 389, 394 (2015)). 11

The proximity presumption, which has generally been applied in proceedings for reactor construction permits, operating licenses, or significant amendments thereto such as the expansion of the capacity of a spent fuel pool, relieves a petitioner of the need to satisfy these traditional elements of standing. (19). The proximity presumption permits a petitioner to establish standing based on proximity to the geographic zone of potential harm from a nuclear reactor.

When construction is not construction. On December 11, 2019, NAC International prepared a post submittal briefing to the NRC to discuss the modified construction of Magnastor dry casks at TMI. The reason for the meeting was do to deal with a modification in the Certificate of Compliance for the dry cask storage construction design. Amendment 7 modifies Passive Magnastor Transfer Cask (PMTC). This is a special lifting device that is used to hold the Transportable Storage Container during onsite loading operations, transfer operations, and unloading operations.

Construction of spent fuel dry casks to isolate highly radioactive waste require construction permits, operating licenses, or significant amendments thereto such as the expansion of the capacity of a spent fuel pool, and relieves a petitioner of the need to satisfy these traditional elements of standing. (22)

20 St. Lucie, CLI-89-21, 30 NRC at 329.

21 ML20030C206https://adamswebsearch2.nrc.gov/webSearch2/main.jsp?

AccessionNumber=ML20030C206) 22 St. Lucie, CLI-89-21, 30 NRC at 329.

12

A petitioner may use the proximity presumption (22), has a significant property interest (23) or otherwise has frequent contacts (24) within approximately 50 miles of a nuclear reactor.

Mr. Epstein and Three Mile Island Alert Inc. have met all of the stated criteria to secure standing within approximately 50 miles of a nuclear reactor.

Standing also can be shown by an organization by establishing an injury to its organization, i.e., harm to the interests of its members. (24)

Mr. Epstein was born in raised in Harrisburg, and has lived and worked within the 10 mile emergency planing zone as attested to in his Petition to Intervene. Within his immediate charge are staff and students in the Central Dauphin School District . Public and nonpublic schools within the Emergency Planning Zone included in the Central Dauphin School District Response Plan are: Chambers Hill Elementary, Lawnton Elementary, Paxtang Elementary, Rutherford Elementary, South Side Elementary, Swatara Middle School, Tri-Community Elementary, Circle School, Phase Four and St. Catherine's Laboure. It is the responsibility of the Central Dauphin School District to evacuate each of these buildings to a location outside of the ten mile EPZ.

22 Calvert Cliffs, CLI-09-20, 70 NRC at 915-16; St. Lucie, CLI-89-21, 30 NRC at 329.

23 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 314 (2005) (granting standing based on petitioners holding title to house near nuclear facility).

24 Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), LBP-12-3, 75 NRC 164, 177, affd, CLI-12-12, 75 NRC 603 (2012).

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To establish representational standing, an organization must demonstrate that (1) its members would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires an individual member to participate in the organizations lawsuit. (24)

In this context, an 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. (25)

III. Petitioners Have Established Standing.

A. Eric J. Epstein In seeking to establish his standing, Mr. Epstein has established he has (1) personal standing as an area resident with a vested interest in Three Mile Island dating back to 1982; (2) standing as chairman of TMIA; and (3) standing as a Board Director of the Central Dauphin School District, which is asserted to be within ten miles of the TMI facility. (Epstein/TMIA Petition at 20, 27.)

To accomplish this end, Mr. Epstein invoked the proximity presumption. (Epstein/TMIA Petition at 20, 27.)

24 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)).

25 Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 250 (2001).

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The NRC argued that living and working near a nuclear plant during plant construction is different than living and working near a nuclear power plant during dry cask construction. Yet there is no difference when it comes to aggressive construction activities, physical alteration of the site, and the movement of highly- dangerous packages. All these activities constitute construction under the Pennsylvania Municipal Planning Code, (Section 605. Classifications. (2) (iii) and Section 909.1 Jurisdiction. (6)),

and the Uniform Construction Code Statue, H (high hazard) and Uncertified Buildings Under Department Jurisdiction, (b) (1))

The NRC argued, Mr. Epstein provides an address in the hearing petition, but makes no specific showing regarding where he lives relative to the TMI facility, although in a 2005 proceeding he indicated that he lives and operates a business 12 miles from the TMI nuclear facility, AmerGen Energy Co., LLC (Three Mile Island Nuclear Station, Unit 1), CLI-05-25, 62 NRC 572, 574 (2005).

Mr. Epstein believed the NRC had the capacity to examine their own database, use a Google map, or view publicly available tax records.

By the same token, Mr. Epstein references his participation as chairman of TMIA and the EFMR Monitoring Group in negotiating various agreements with TMI facility owners regarding citizen radiation monitoring and other matters, see Epstein/TMIA Petition at 19-20, he has not demonstrated these activities are connected to this LAR proceeding by identifying any harm to his interests relative to these groups.

The NRC uses the same lazy logic to separate Mr. Epstein from emergency planning and radiation monitoring at Three Mile Island despite the fact the connection was clearly stated in his Petition. (Epstein, p. 19).

15

Mr. Epstein's standing as a Petitioner in the Post-Defueled Monitored Storage was not questioned by GPU or the NRC. That case dealt with identical issues raised by the LAR: protecting the community when a licensee transitions to a Possession Only License. The 1992 case - in which Mr. Epstein established standing - dealt explicitly with SAFSTOR: Post-Defueling Monitored Storage at TMI-2. (Epstein, pp. 19-20.) The NRC staff acknowledged the Agreement in 1993.

http://www.efmr.org Mr. Epsteins emergency planning and radiation monitoring interests were again recognized by AmerGen/Exelon and the NRC in the Settlement Agreement signed in 1999.

Mr. Epsteins connections to the community are obvious and readily apparent to both local Exelon and NRC employees , who have worked with Mr. Epstein on TMI emergency preparedness issues TMI for over 35 years.

http://www.efmr.org/emergencyplanning.htmlhttp://www.efmr.org/emergen cyplanning.html Mr. Epstein lives and works in the same area, but his charge now includes the ninth largest school district in Pennsylvania that dissects the TMI emergency planning zone. This was the same school district that evacuated all of its students on March 30, 1979.

Mr. Epstein believed highly educated and well trained professionals would make the obvious connection. In fact, Mr. Epsteins interests in these issues were made explicit in Epstein, Exhibit 4.

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The only variables in the standing formula are Exelons mergers and acquisitions, NRC staff transfers, and an embedded bias to revise history and deny standing to reactor communities.

Exelon and the NRCs argument regarding the un uniqueness of TMI-2 is factually incorrect and wholly misinformed and based on outdated studies. Ninety-nine percent of the TMI-2 spent-fuel assemblies and damaged core material already have been removed from the TMI site and are being stored by the Department of Energy. (TMI-2 PSDAR at 5.)

This statement ignored Mr. Epstein's description of core,\ debris, fuel and other radioactive components in the TMI-2 reactor vessel. TMI-2 basement remains at lethal radioactive levels. (26) 26 Department of Energy Steven Wahnschaffe, License Manager Idaho Operations Office. Mr. Wahnschaffe: As outlined in Section 1.21, Department of Energy Idaho Operations Office (DOE-ID) has prepared this License Renewal Application (LRA) in accordance with applicable requirements in title 10 of the Code of Federal Regulations and the guidance contained in the Nuclear Regulatory Commission Technical Report (NUREG-1927) [1.4.4], and Nuclear Energy Institute Guidance document (NEI 14- 03) [1.4.5].

Three Mile Island Alert submitted comments and questions relating to the proposed License Renewal Application. Specifically, TMIA followed up on the Submittal of Reponses to Additional Nuclear Regulatory Commission Questions Pertaining to the Technical Review of the Three Mile Island Unit 2 Independent Spent Fuel Storage Installation License Renewal and Application. (Enclosure 1: Director, Division of Spent Fuel Management, Office of Nuclear Material Safety and Safeguards, Washington, D.C., 20555-0001, May 21, 2019).

ADAMS. INEL. SAR. 1-6-8.

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TMI-2 is an unique and unsafe condition.

The NRC staff made that determination seven years ago, in a letter to Mr. Danny L. Pace, President of GPU Nuclear on February 13, 2013. The NRC stated:

On March 28, 1979, TMI-2 experienced an accident which resulted in severe damage to the reactor core. TMI-2 has been in a non- operating state since the accident. The accident makes the shutdown of TMI unique from all other reactors.

The letter, Failure to Submit a Post-Shutdown Decommissioning Activities Report was issued by Larry W. Cramer, Division of Waste Management and Environmental Protection. The letter noted that the permanent cessation letter for TMI which was due on September 14, 1995 - had never been filed.

The NRC issued a Non-Cited violation.

26 Re: Content estimates: 1-12. Please provide an analysis and descriptions of the 303,653 pounds of damaged fuel materials shipped from TMI-2 to the INEL site; an estimated 7,936 pounds was from the no-core material (i.e., core handling debris [1.4.42]. According to a summary of shipments from TMI-2, this non-core material consisted of core baskets and casings (4,260 pounds), drill strings, debris buckets, and diatomaceous earth [1.4.42]. Therefore, the term as used in the LRA is considered synonymous with any of the contents of the TMI-2 canisters, including core handling debris.

This information was transmitted to Mr. Fewell and Mr. Gallagher on October 23, 2019. This data was shared with the NRC in August, 2019.

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TMI-2 is not safe or stable. (27) The decrease in the NRCs theoretical perception of an accident does not eliminate the danger or justify dismantling the emergency protocol. This is the only community that evacuated their businesses, farms, homes, and schools due to a meltdown. The NRC told us that an accident at TMI was not credible. (28)

B. Three Mile Island Alert, Inc.

TMIA qualifies for representational standing because it represents members who live within the 10-mile geographical zone that might be affected by a release of fission products into the environment during or after decommissioning. (Epstein/TMIA Petition at 20.)

TMIAs members interests in the LAR extend to all aspects of TMIs radiological decommissioning, spent nuclear fuel management, and site restoration. (Epstein at 21) TMIA submitted two affidavits from members opposed to the LAR. Both affidavits state the individuals are TMIA members who reside within ten miles of TMI, and authorize TMIA to advocate on their behalf.

27 In August 1993, Dr. Michio Kaku, Professor of Nuclear Physics, City University of New York, evaluated studies conducted or commissioned by GPU and the NRC on the amount of fuel left in TMI-2. Dr. Kaku concluded, It appears that every few months, since 1990, a new estimate is made of core debris, often with little relationship to the previous estimate...estimates range from 608.8 kg to 1,322 kg...This is rather unsettling...The still unanswered questions are therefore: precisely how much uranium is left in the core, and how much uranium can collect in the bottom of the reactor to initiate re-criticality?

28 Norman Rasmussen, WASH-1400, The Reactor Safety Study,"

Probability Risk Assessment, 1975. The study postulated that a TMI melt down was unlikely while the plant was operating.

19

TMIA has satisfied the requirement of representational standing.

TMIAs affidavits are from a day care and a family farm who have the potential for offsite radiological consequences as a result of the proposed LAR. Both families evacuated TMI when it melted down.

Because these TMIA members established standing in their own right, TMIA can claim representational standing on their behalf. Mr.

Epstein and TMIA established standing as a right to intervene in this proceeding. And as the only petitioners, discretionary standing should have been assigned under 10 C.F.R § 2.309(e) is available here.

C. Argument 10 CFR §2.309(f)(iii) requires that the Petitioner demonstrate that the issue raised in the contention is within the scope of the proceeding.

There can be no doubt that whether a licensee transfer is financially qualified (Contention 1), and whether the NRC can approve a license transfer without the environmental assessment and Environmental Impact Statement requested by Eric Epstein and TMI-Alert and required by NEPA (Contention 2) are within the scope of this proceeding. The Atomic Energy Act and NRC regulations require the Commission to make an independent assessment regarding the proposed transfers in terms of regulatory requirements and the protection of public health and safety and the environment.

The Post Defueled Emergency Plan (PDEP) will not provide the necessary response staff with the appropriate guidance to protect the health and safety of the public. Therefore, the proposed change involves a significant reduction in the margin of safety.

20

Exelon and the NRC have only established that the PDEP is financially expedient.

Mr. Epsteins Contention 1 is that the applicants License Amendment Request does not provide the required financial assurance or sufficient funds to maintain TMI in a safe defueling condition, and that TMI-2 status is unique and remains a clear and present danger. (29) 29 Video estimate of remaining fuel at TMI-2 (GPU). GPU concluded there was 850 kilograms of fuel remaining at TMI-2.

Defueling Completion Report (GPU) - GPUs video camera and visual inspection of the amount of fuel remaining in TMI-2: 608 kilograms; Criticality 94. According to Dr. Mike Masnik supervisor of the NRC effort at TMI-2, the NRC was intimately involvement in this project.

Safety Evaluation (NRC) - The NRC staff approved GPUs fuel estimate based on their own visual analyses.

Distenfeld Study (GPU) - As part of the fuel storage agreement with the Department of Energy (DOE), GPU predicted there was 1,322 kilograms of fuel remaining in TMI-2. GPU tried to determine how much fuel was left at, and around, the reactor vessel by subtracting the amount of fuel used when TMI-2 began operation from the amount of fuel remaining at TMI-2. The difference was supposed to be in DOEs possession. Clearly, ,

Distenfelds figures raised concern for GPU and the NRC and both entities recognized there was a potential for more fuel. However, Dr.

Masnik noted Quite frankly we had some questions on Distenfelds

[criticality analyses study.]

When Dr. Michio Kaku asked Lee Tonus (NRC site staff) for a copy of Distenfeld's study he was told it was available in the Public Document Room. Then Tonus admitted he didnt know where it was published.

In fact the document is so obscure and the only record of its contents is a conference proceeding of the Institute for Nuclear Material Management.

21

Contention 2, 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 as required by the National Environmental Policy Act and 10 CFR. §§ 51.20, 51.70 and 51.10, is plainly within scope of this proceeding. The Atomic Energy Act and NRC regulations require the Commission to make an independent assessment regarding the proposed transfers in terms of regulatory requirements and the protection of public health and safety and the environment.

Accordingly, Mr. Epstein respectfully requests that the NRC stay the LAR until an EIS is conducted to reflect the unique conditions at Three Mile Island, (30), Epstein Exhibits 2 and 3 are addressed, financial assurances are guaranteed by Energy Solutions, and the Federal Emergency Management Agencys concerns are resolved.

This proceeding should be held in abeyance until FirstEnergy and Energy Solutions submit an updated Emergency Action Level and the Site Emergency Plan scheme for the defueled condition at Three Mile Island Unit-2.

Approval of the LAR should also be contingent on the NRC executing an MOU relating to the service Agreement between TMI-1 and TMI-2.

30 Rasmussen Study. GPU commissioned Norman Rasmussen to critique Distenfelds study; however, nowhere in Rasmussen's study is Distenfeld names found. Rasmussen concluded there was 935 kilograms of fuel remaining at the bottom of TMI-2. According to Dr. Masnik, Rasmussens study is the best estimate. This study concedes that super-criticality could result with the removal of the neutron poison (borated water.) This scenario is unlikely but possible during an explosion, fire or crash.

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D. Conclusion.

The Post Defueled Emergency Plan will not provide the necessary response staff with the appropriate guidance to protect the health and safety of the public. Therefore, the proposed change involves a significant reduction in a margin of safety.

For the reasons stated, Eric Epstein and Three Mile Island Alert, Inc.

should be granted standing, its Contentions should be admitted, and Exelon License Amendment Request Application should be denied.

Respectfully submitted, Eric J. Epstein, Chairman Three Mile Island Alert 4100 Hillsdale Road Harrisburg, PA 17112 epstein@efmr.org (717)-635-8615 Dated: February 16, 2020 23

I hereby certify that copies of the foregoing Motion to Stay Memorandum and Reply To Proposed Order Denying Intervention and Petition (LBP-20-02) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 G. Paul Bollwerk, III, Chairman Administrative Judge paul.bollwerk@nrc.gov Dr. Sue H. Abreu Administrative Judge sue.abreu@nrc.gov Dr. Gary S. Arnold Administrative Judge gary.arnold@nrc.gov Ian Curry, Law Clerk ian.curry@nrc.gov Taylor Mayhall, Law Clerk taylor.mayhall@nrc.gov Stephanie B. Fishman, Law Clerk Stephanie.Fishman@nrc.gov Molly R. Mattison, Law Clerk Molly.Mattison@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 hearingdocket@nrc.gov 24

U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O-14A44 Washington, DC 20555-0001 Reginald Augustus, Esq. Tyson Campbell, Esq. Kayla Gamin, Esq. David E.

Roth, Esq. Brian Newell, Paralegal reginal.augustus@nrc.gov tyson.campbell@nrc.gov kayla.gamin@nrc.gov david.roth@nrc.gov brian.newell@nrc.gov Michael S. Casey, Director, FEMA Technological Hazards Division, U.S Department of Homeland Security Washington, D.C. 20472 Kathryn M. Brock, Director, NSIR Division of Preparedness and Response Exelon Generation Company, LLC 4300 Winfield Road Warrenville, IL 60555 Tamra Domeyer, Esq.

tamra.domeyer@exeloncorp.com Counsel for Exelon Generation Company, LLC Morgan Lewis Bockius 1000 Louisiana Street Suite 4000 Houston, TX 77002 Martin ONeill, Esq.

martin.oneill@morganlewis.com Katheryn Sutton, Esq.

kathryn.sutton@morganlewis.com 25