ML20072N937

Company Llc'S Answer Opposing Eric J. Epstein'S February 16 2020 Filing

ML20072N937
Person / Time
Site:	Three Mile Island
Issue date:	03/12/2020
From:	Domeyer T, Lighty R, Sutton K Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50-289-LA, 50-320-LA, ASLBP 20-962-01-LA-BD01, RAS 55607
Download: ML20072N937 (11)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket Nos. 50-289 and 50-320 EXELON GENERATION COMPANY, LLC )

) March 12, 2020 (Three Mile Island Nuclear Station, Units 1 and 2) )

)

EXELON GENERATION COMPANY, LLCS ANSWER OPPOSING ERIC J. EPSTEINS FEBRUARY 16, 2020 FILING AS REFERRED TO THE COMMISSION BY THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 19, 2020 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b) and the Commissions Order of February 25, 2020,1 Exelon Generation Company, LLC (Exelon Generation) timely files this answer opposing the Motion to Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition, filed by Eric J. Epstein on February 16, 2020 (Filing).2 Originally, the Filing was submitted before the Atomic Safety and Licensing Board (Board), but did not identify or explain its procedural basis. As explained further below, on February 19, 2020, the Board denied the Filing to the extent it requested a stay or reconsideration of the Boards decision in LBP-20-2,3 and referred it to the Commission for whatever further action it may deem appropriate.4 The Commissions Order of February 25, 2020, established March 12, 2020, as the 1

Order (Clarifying Time for Response) at 1 (Feb. 25, 2020) (unpublished) (ML20056F226) (issued by the Office of the Secretary on behalf of the Commission) (SECY Order).

2 Motion to Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition (Feb. 16, 2020)

(ML20047A004) (Filing).

3 Licensing Board Memorandum and Order (Denying Intervention Petition and Terminating Proceeding),

LBP-20-2, 91 NRC __ (Jan. 23, 2020) (slip op.).

4 Licensing Board Memorandum and Order (Denying Motion for Stay and to Reply to Licensing Board Decision and Referring Pleading to the Commission) (Feb. 19, 2020) (unpublished) (ML20050E118) (Board Order Denying Filing).

deadline for briefing from Exelon Generation and the U.S. Nuclear Regulatory Commission (NRC) Staff on the referred Filing, thus this answer is timely.5 As explained below, the Commission should reject the Filing without any further action. To the extent the Filing is generously viewed as a petition for review of LBP-20-2, it should be denied because it does not identify an error of law or abuse of discretion.

II. PROCEDURAL HISTORY On September 10, 2019, the NRC published a Hearing Opportunity Notice6 in the Federal Register associated with Exelon Generations July 1, 2019, license amendment request (LAR).7 In the LAR, Exelon Generation requests, pursuant to 10 C.F.R. § 50.90, that NRC amend the operating license for Three Mile Island Nuclear Station, Unit 1 (TMI-1) to revise the site emergency plan (SEP) and Emergency Action Level (EAL) scheme to reflect TMI-1s permanently-defueled condition.8 On November 12, 2019, Mr. Epstein and Three Mile Island Alert, Inc. (TMIA) (collectively, Petitioners) filed a Petition to Intervene and Hearing Request (Petition) on the above-captioned docket.9 The NRC Staff and Exelon Generation filed their answers opposing the Petition on December 6, 2019, and December 9, 2019, respectively.10 On December 10, 2019, the Board 5

SECY Order at 1.

6 Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 84 Fed. Reg. 47,542 (Sept. 10, 2019) (Hearing Opportunity Notice).

7 See Letter from Michael P. Gallagher, Exelon, to U.S. Nuclear Regulatory Commission, License Amendment Request - Proposed Changes to the Three Mile Island Emergency Plan for Permanently Defueled Emergency Plan and Emergency Action Level Scheme (July 1, 2019) (ML19182A182) (LAR).

8 The LAR references TMI-2, but does not propose any amendments to the TMI-2 possession-only license.

9 Eric J. Epstein, Chairman of Three Mile Island Alert, Inc.s Petition to Intervene and Hearing Request (Nov.

12, 2019) (ML19316E095) (Petition).

10 NRC Staff Answer to Three Mile Island Alert Petition (Dec. 6, 2019) (ML19340C563); Exelon Generation Company, LLCs Answer Opposing Eric J. Epsteins and Three Mile Island Alert Inc.s Petition to Intervene (Dec. 9, 2019) (ML19343C738).

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issued an order establishing December 16, 2019, as the deadline for any reply pleadings from Petitioners.11 Petitioners did not file any reply pleadings by that date.12 On January 23, 2020, the Board issued its decision, in LBP-20-2, concluding that Petitioners failed to establish standing or proffer an admissible contention.13 Accordingly, the Board denied the Petition and terminated the adjudicatory proceeding.14 The Board further noted that appeals of LBP-20-2 could be filed before the Commission within 25 daysi.e., by February 18, 2020.15 On February 16, 2020, Mr. Epstein submitted the instant Filing before the Board.

On February 19, 2020, the Board issued an Order noting the ambiguity of the Filing and construing it as encompassing one or more of three possible requests for relief, including as a possible request for a stay, reconsideration, or appeal of the Boards decision in LBP-20-2.16 The Board denied the Filing to the extent it was a request for a stay or reconsideration of LBP-20-2, because it failed to satisfy the applicable requirements for such requests.17 To the extent Mr. Epstein intended the Filing to be an appeal of LBP-20-2, the Board noted that it had been directed to the wrong presiding officer, and thus referred it to the Commission for whatever further action it may deem appropriate.18 On February 20, 2020, the NRC Staff filed a motion 11 Licensing Board Memorandum and Order (Initial Prehearing Order) at 2 (Dec. 10, 2019) (unpublished)

(ML19344A039).

12 On December 26, 2019, Mr. Epstein did, however, send an email inviting those on the proceedings service list to please review a hyperlinked letter from the Federal Emergency Management Agency (FEMA Letter).

See LBP-20-02 at __ (slip op. at 9 n.21). The Board issued an Order providing Staff and Exelon Generation an opportunity to respond to that email, see Licensing Board Memorandum and Order (Establishing Schedule for Responses to Hearing Petitioners E-Mail) (Dec. 27, 2019) at 2 (unpublished), but neither filed an answer.

13 LBP-20-02, at __ (slip op at 2).

14 Id.

15 Id. at __ (slip op at 29).

16 Board Order Denying Filing at 2.

17 Id. at 2-3.

18 Id. at 3-4. To the extent it could be construed as something other than an appeal, such as a motion for the Commission to exercise its supervisory authority, the Filing is out of time and fails to address any applicable procedural standards. See generally, e.g., 10 C.F.R. § 2.323.

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before the Commission requesting clarification of the deadline to respond.19 The Commission granted that request on February 25, 2020, establishing March 12, 2020, as the deadline for responsive filings from the NRC Staff and Exelon Generation.20 III. STANDARD OF REVIEW The Commission generally defers to Board decisions on standing and contention admissibility absent an error of law or abuse of discretion.21 An appeal that does not point to an error of law or an abuse of discretion, but simply restates the petitioners arguments, does not constitute a valid appeal.22 Furthermore, a petitioners failure to acknowledge and rebut each ground for the Boards ruling is sufficient justification for the Commission to reject the petitioners appeal.23 New arguments first presented on appeal which the Board never had the opportunity to consider clearly cannot demonstrate Board error.24 The purpose of an appeal is to point out error made in the Boards decision, not to attempt to cure deficient [petitions] by presenting arguments and evidence never provided to the Board.25 IV. THE FILING SHOULD BE DENIED A. The Filing Does Not Discuss LBP-20-2 The Board denied the Petition because Petitioners failed to demonstrate standing, as 19 NRC Staff, Motion for Clarification at 2 (Feb. 20, 2020) (ML20054B078).

20 SECY Order at 1.

21 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 121 (2018)

(citing Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-16-9, 83 NRC 472, 482 (2016); Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2014)).

22 See Shieldalloy, CLI-07-20, 65 NRC at 503-05; Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Unit 2),

CLI-93-10, 37 NRC 192, 198 (1993) (quoting Ga. Power Co. (Vogtle Elec. Generating Plant, Units 1 & 2), CLI 3, 35 NRC 63, 67 (1992)) (A mere recitation of an appellants prior positions in a proceeding or a statement of his or her general disagreement with a decisions result is no substitute for a brief that identifies and explains the errors of a Licensing Board in the order below.).

23 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004).

24 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006) (quoting Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 140 (2004)).

25 USEC, CLI-06-10, 63 NRC at 458 (citation omitted).

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required by 10 C.F.R. §§ 2.309(a) and (d), and for the additional reason that the original Petition failed to proffer an admissible contention, as required by 10 C.F.R. §§ 2.309(a) and (f).26 Significantly, the Filing never once asserts that the Board erred in its decision. In fact, the Filing does not even discuss the Boards decision. As the Commission repeatedly has explained, an appellant must adequately call the Commissions attention to claimed errors in the Boards approach, otherwise it will deem waived any arguments . . . not clearly articulated in the petition for review.27 Mr. Epsteins failure even to acknowledge the Boards reasons for denying the Petition (much less, his failure to rebut each one) alone warrants the Commissions summary rejection of the Filing.28 B. The Filing Identifies No Error of Law or Abuse of Discretion in LBP-20-2

1. The Filing Identifies No Defect as to Standing The Petition presented three theories of standing. More specifically, Petitioners argued that TMIA (in a representative capacity by way of its members) and Mr. Epstein (as an individual) demonstrated traditional standing, and were entitled to standing pursuant the proximity presumption, and because they had participated in previous NRC proceedings.29 As explained below, the Board appropriately rejected each of these arguments, and the Filing demonstrates no error of law or abuse of discretion in the Boards conclusions. The Filing 26 See generally LBP-20-2, 91 NRC at __ (slip op. at 18, 19, 24, 26). A discussion of the legal standards for standing and contention admissibility is presented in LBP-20-2. Id. at __ (slip op. at 10-14, 19-20). For the sake of brevity, that discussion is incorporated here by reference, rather than republished in full.

27 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 383 (2001) (citing Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 46 (2001); Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999); Curators of the Univ.

of Missouri (TRUMP-S Project), CLI-95-1, 41 NRC 71, 132 n.81 (1995)).

28 See Millstone, CLI-04-36, 60 NRC at 638 ([T]he appeal does not even challenge the Boards ruling that Contention 1 falls outside the scope of this proceeding. [Petitioners] failure to challenge this last ruling is, in and of itself, sufficient justification to reject [its] appeal as to Contention 1.) id. at 639 ([G]eneral arguments [that] do not come to grips with the Boards reasons for rejecting an inadmissible contention will not revive it on appeal.).

29 Petition at 18-23.

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merely repeats Petitioners earlier arguments, raises entirely new ones for the first time here, and fails to engage with the discussion in LBP-20-2. Thus, it provides an insufficient basis to review, much less reverse, the Boards decision as to standing.

First, the Board found that prior participation in other proceedings does not, a priori, grant [] standing in this case.30 The Boards conclusion is fully supported by binding legal precedentincluding Commission decisions involving Mr. Epstein himselfwhich the Board aptly cited in its decision.31 In the Filing, Mr. Epstein merely states that his standing was not questioned in a prior proceeding,32 and that the only changes since that proceeding are Exelons mergers and acquisitions, NRC staff transfers, and an embedded bias to revise history and deny standing to reactor communities.33 But the Filing does not address or disputeand therefore concedes the correctness ofthe Boards application of settled law, which clearly holds that standing in a prior proceeding, alone, is not a sufficient demonstration of standing.34 Second, the Board explained that the standard proximity presumption was only applicable to proceedings for reactor construction permits, operating licenses, or significant amendments thereto such as the expansion of the capacity of a spent fuel pool,35 which this proceeding is not, and could only be applied to this proceeding upon a further demonstration of 30 LBP-20-2 at __ (slip op. at 15).

31 LBP-20-2 at __ (slip op. at 14) (citing Bell Bend, CLI-10-7, 71 NRC at 138 & n.26 (citing Texas Utilities Elec.

Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 16263 (1993)) ([T]he Board correctly concluded that Mr. Epstein could not rely on other boards findings of standing in the two prior proceedings concerning the Susquehanna facility.); cf. also LBP-20-2 at __ (slip op. at 14) (noting a narrow exception if the proceeding is merely another round in a continuing controversy, and citing Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-74-3, 7 AEC 7, 12 (1974)).

32 Filing at 16 (mentioning a 1992 case involving Post-Defueling Monitored Storage at TMI-2).

33 Filing at 17.

34 To the extent the Filing could be read as attempting to invoke the Midland exception by claiming that the 1992 case is a continuing controversy and the instant proceeding is merely another round, Mr. Epstein fails to explain or support such a claim. Whereas, the instant LAR is not another round of any proceeding.

35 LBP-20-2 at __ (slip op. at 12) (quoting St. Lucie, CLI-89-21, 30 NRC at 329 (citation omitted)).

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some obvious potential for offsite consequences.36 Because Petitioners failed to demonstrate an obvious potential for offsite consequences (or even acknowledge the applicable standard), the Board concluded they had not demonstrated standing under a proximity presumption theory.37 The Boards explanation of controlling law, and conclusion in light of the facts here, are fully consistent with extensive case law on the proximity presumption.38 The Filing does not dispute that the Petition lacked a demonstration of any obvious potential for offsite consequences. Nor could it, because there was none. Instead, Mr. Epstein makes the novel assertionnever raised in the proceedings belowthat the proximity presumption is applicable here because the [c]onstruction of spent fuel dry casks at TMI requires construction permits, operating licenses, or significant amendments thereto.39 Even if this argument could be viewed as a challenge to the Boards conclusion (which the Filing does not even discuss), it fails to identify any error of law or abuse of discretion by the Board because the argument was never even presented to the Board.40 Finally, the Board concluded that Petitioners allegations fared no better under a traditional standing analysis. More specifically, Petitioners alleged an interest in avoiding purported harms from a speculative shortfall in the Nuclear Decommissioning Trust funds.41 But as the Board explained, Petitioners failed to demonstrate any plausible nexus between these speculative alleged harms and the LAR at issue in this proceeding, which merely seeks to 36 Id. at __ (slip op. at 15-16).

37 Id.

38 See id. at __ (slip op. at 11-13).

39 Petition at 12.

40 See USEC, CLI-06-10, 63 NRC at 458; PFS, CLI-04-22, 60 NRC at 140. Moreover, even if this claim had been raised in the proceedings below, it is entirely unsupported. The scope of a proceeding is governed by the notice of opportunity for a hearing. See Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790-91 (1985). The Hearing Opportunity Notice for this proceeding explains unequivocally that it pertains to the LAR, not an imagined request to construct dry storage casks. See 84 Fed. Reg. at 47,548.

41 Petition at 21-22.

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the revise the SEP and EAL scheme.42 The Filing is utterly silent as to, and therefore fails to rebut, the Boards manifestly correct conclusion in this regard.

Ultimately, because the Filing simply restates Petitioners arguments, fails to rebut each ground for the Boards ruling, and presents new arguments on appeal,43 it fails to demonstrate any error of law or abuse of discretion in the Boards ruling on standing in LBP-20-2.44

2. The Filing Identifies No Defect as to Contention Admissibility The Petition proffered two contentions purporting to challenge the LAR for not providing financial assurance (Contention 1) or an environmental report (Contention 2). As explained below, the Board appropriately rejected both proposed contentions. The Filing provides only a cursory mention of these contentions, and it clearly fails to engage with the Boards reasons for rejecting them in LBP-20-2. Accordingly, it likewise demonstrates no error of law or abuse of discretion in the Boards conclusions on contention admissibility.

In Contention 1, Petitioners argued that the LAR should be rejected because it allegedly did not demonstrate that adequate funds for decommissioning will be available.45 But the Petition cited no unmet legal requirement for such a demonstration related to the LAR (which, again, merely seeks to revise the SEP and EAL scheme). The Board rejected Contention 1 as beyond the scope of this proceeding because it improperly sought to redirect the focus of this 42 LBP-20-2 at __ (slip op. at 17-19).

43 The Filing also contains various other disjointed discussions that do not obviously pertain to either standing or contention admissibility. For example, it discusses a TMI-2 license transfer application submitted to the NRC in a separate licensing action after the Petition was filed. Filing at 4-7. It appears to repeat, without further explanation, certain additional arguments from the original Petition (e.g., id. at 23, contradicting the Staffs conclusion that the LAR does not involve a significant reduction in a margin of safety), which were rejected by the Board (e.g., LBP-20-2 at __ (slip op. at 28), correctly holding that the NRC Staffs No Significant Hazards Consideration determination is not subject to challenge). As noted above, mere repetition of arguments, and new arguments on appeal, cannot sustain a petition for review.

44 See supra Part III (citing case law that explains these are inadequate bases for an appeal). To the extent Petitioners argue that FEMA has standing in this proceeding, see Filing at 11, they fail to explain or support their assertion; and, in fact, FEMA has not asserted standing here.

45 Petition at 33.

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proceeding to Exelons April 12, 2019 exemption request to use a portion of the decommissioning trust fund for spent fuel management activities, which was approved by the NRC Staff on October 16, 2019.46 The Board also noted that Petitioners improperly mischaracterize the LAR as a license transfer proceeding.47 The Filing neither acknowledges the Boards conclusions on Contention 1 nor explains how they purportedly could be erroneous.

In Contention 2, Petitioners argued that the LAR should be rejected because it did not include an environmental report, which they claimed was required by NEPA.48 But as the Board correctly noted, the NRCs NEPA regulations categorically exclude certain licensing actions from the environmental review otherwise required under 10 C.F.R. Part 51; and the LAR explicitly invoked such an exclusion.49 The Board also noted that a petitioner may challenge the invocation of a categorical exclusion either by showing the existence of special circumstances or by showing that the license amendment would result in increased offsite releases of effluents or increased individual or cumulative occupational radiation exposure.50 But the Board rejected Contention 2 because Petitioners did not attempt to make either of these showings, and did not even appear aware that the LAR had invoked a categorical exclusion, thus failing to fulfill their ironclad obligation to review the LAR.51 The Filing does little more than repeat Petitioners original arguments, and offers no explanation as to how the Boards ruling as to either contention could be erroneous. In fact, the Filing actually reinforces the Boards conclusion that Petitioners failed to review, and 46 LBP-20-2 at __ (slip op. at 21).

47 Id. at __ (slip op. at 23) (citing Petition at 25).

48 Petition at 40.

49 LBP-20-2 at __ (slip op. at 24-25).

50 Id. at __ (slip op. at 25) (citation omitted).

51 Id. at __ (slip op. at 25-26) (citation omitted).

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fundamentally misunderstand the purpose of, the LAR. As Mr. Epstein asserts in the Filing:

There can be no doubt that whether a licensee transfer [sic] 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.52 Unquestionably, the licensing action in the LAR is not a license transfer. And Petitioners claim to the contrary, based on an imprecise reading of the LAR, fails to provide a basis for an admissible contention.53 V. CONCLUSION In summary, the Filing simply restates Petitioners arguments and fails to rebut each (or any) ground for the Boards ruling. Thus, it necessarily fails to demonstrate any error of law or abuse of discretion in the Boards rulings on the contentionsand must be summarily rejected.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)

Tamra S. Domeyer, Esq. Kathryn M. Sutton, Esq.

Associate General Counsel MORGAN, LEWIS & BOCKIUS LLP EXELON GENERATION COMPANY, LLC 1111 Pennsylvania Avenue, N.W.

4300 Winfield Road, 5th Floor Washington, D.C. 20004 Warrenville, IL 60555 (202) 739-5738 (630) 657-3753 kathryn.sutton@morganlewis.com Tamra.Domeyer@exeloncorp.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Exelon Generation Company, LLC Dated in Washington, DC this 12th day of March 2020 52 Filing at 20 (emphasis added).

53 See Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 300 (1995), affd, CLI-95-12, 42 NRC 111, 124 (1995).

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket Nos. 50-289 and 50-320 EXELON GENERATION COMPANY, LLC )

) March 12, 2020 (Three Mile Island Nuclear Station, Units 1 and 2) )

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of Exelon Generation Company, LLCs Answer Opposing Eric J. Epsteins February 16, 2020 Filing as Referred to the Commission by the Atomic Safety and Licensing Boards Order of February 19, 2020 was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Exelon Generation Company, LLC DB1/ 112768598