ML20106E887

PA DEP Petition to Intervene and Request and Entry of Appearance

ML20106E887
Person / Time
Site:	Three Mile Island
Issue date:	04/15/2020
From:	Duke A State of PA, Dept of Environmental Protection
To:	NRC/SECY
SECY RAS
References
50-320-LT, General Proceeding, RAS 55645
Download: ML20106E887 (37)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY

)

In the Matter of )

)

THREE MILE ISLAND NUCLEAR )

STATION, UNIT NO. 2; )

CONSIDERATION OF APPROVAL OF ) Docket No. 50-320 LT TRANSFER OF LICENSE AND )

CONFORMING AMENDMENT )

)

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter in accordance with 10 C.F.R. § 2.314(b).

Name: Alicia R. Duke Address: Department of Environmental Protection Southcentral Regional Office 909 Elmerton Avenue, Third Floor Harrisburg, PA 17110-8200 Telephone Number: (717) 783-0366 Fax Number: (717) 772-2400 Email: alduke@pa.gov Admissions: United States District Court for the Eastern District of Pennsylvania Pennsylvania Name of Party: Commonwealth of Pennsylvania, Department of Environmental Protection

Respectfully submitted, Commonwealth of Pennsylvania Department of Environmental Protection Signed (electronically) by Alicia R. Duke Assistant Counsel PA ID No. 209672 Southcentral Regional Office 909 Elmerton Avenue, Third Floor Harrisburg, PA 17110-8200 Telephone (717) 787-8790 Fax: (717) 772-2400 Email: alduke@pa.gov Dated: April 15, 2020

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY

)

In the Matter of )

)

THREE MILE ISLAND NUCLEAR )

STATION, UNIT NO. 2; )

CONSIDERATION OF APPROVAL OF ) Docket No. 50-320 LT TRANSFER OF LICENSE AND )

CONFORMING AMENDMENT )

)

PETITION OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION FOR LEAVE TO INTERVENE AND REQUEST FOR AN EXTENSION OF TIME TO FILE A HEARING REQUEST The Commonwealth of Pennsylvania, Department of Environmental Protection (Department or DEP) requests that the U.S. Nuclear Regulatory Commission (NRC or Commission) or, in the event the Commissions Secretary refers this Petition to the Chief Administrative Judge of the Atomic Safety and Licensing Board (ASLB), the designated presiding officer, permit the Department to intervene in this proceeding, pursuant to 10 CFR § 2.309(h)(2), and grant the Departments request for an extension of time to request an adjudicatory hearing on the application of GPU Nuclear, Inc. (GPU Nuclear), Metropolitan Edison Company, Jersey Central Power & Light Company, and Pennsylvania Electric Company (collectively referred to as the FirstEnergy Companies) and the TMI-2 Solutions, LLC (TMI-2 Solutions) (collectively, Applicants) to transfer the Possession Only License No. DPR-73 for Three Mile Island Nuclear Station, Unit 2 (TMI-2) from the FirstEnergy Companies to TMI-2 Solutions. In support of this Petition for Leave to Intervene and Request

for an Extension of Time to File a Hearing Request, the Department sets forth the following.

I. PETITION FOR LEAVE TO INTERVENE A. Introduction

1. The Department is the executive agency of the Commonwealth of Pennsylvania responsible for administering and enforcing all of Pennsylvanias environmental protection statutes, and for overseeing Pennsylvanias responsibilities related to nuclear power plants.

David J. Allard, Director of the Departments Bureau of Radiation Protection, located at 400 Market Street, 13th Floor, Harrisburg, Pennsylvania, 17105 with phone number (717) 787-2480 is the Departments representative in this proceeding.

2. The TMI-2 is located within the boundaries of Pennsylvania, in Dauphin County, approximately 10 miles from the City of Harrisburg, the capitol of Pennsylvania. The TMI-2 site is specifically located in the middle of the Susquehanna River, which runs through Pennsylvania and eventually drains into the Atlantic Ocean. The Susquehanna River is a major source of drinking water for, and a waterway that affects, multiple states.

3. In March of 1979, the TMI-2 experienced the worst nuclear accident in U.S. history.

The accident resulted in damage to approximately 90% most of the reactor cores enriched uranium fuel and associated components, released millions of curies of radioactive noble gases into the environs, severely damaged reactor systems, and grossly contaminated the interiors of the containment and auxiliary buildings.

4. After the March 1979 accident, there have been some entries into the containment building to remove damaged nuclear fuel and related materials; however, there are several areas in the plant with potentially unknown radiological conditions related to the TMI-2 accident.

5. On or about November 12, 2019, the Department received notice from the Applicants 2

that they had filed the Application for an Order Approving License Transfer and Conforming License Amendments (Application).

6. This Application comes at the time when the Applicants are preparing to decommission the TMI-2. Because the Commonwealth may face significant financial, environmental, and public health and safety consequences in the event of a funding shortfall for the decommissioning, the Department has a significant interest in ensuring that an adequate radiological characterization has been performed within the TMI-2 facilities. The Department is further concerned that the current and proposed licensees have sufficient funds available now and into the future to satisfactorily decommission and restore the TMI-2 site. The Department recognizes that the Applicants have given assurances in their Application that the TMI-2 tax qualified nuclear decommissioning trust fund (NDT) will be sufficient to complete decommissioning of TMI-2 under its proposed accelerated schedule, as combined with TMI-2 Solutions financial assurance of an additional $100 million and the limited guarantee of payment and performance from its parent company EnergySolutions, Inc. (EnergySolutions).

However, the Department believes it is necessary for the full Commission and NRC staff to ensure that the record demonstrates that there is adequate protection for the citizens of Pennsylvania as required by the Atomic Energy Act of 1954 42 U.S.C. §§ 2011 et seq.

(AEA), and the Commissions regulations. (Attachment 1 of the Application, p. 2).

7. While the Department welcomes a properly conducted and expedited cleanup and restoration of the TMI-2 site, the obvious risk of a funding shortfall and the attendant significant health, safety, environmental, financial and economic risks to the Commonwealth and its citizens raise serious questions about the realization of that benefit. If the Applicants financial assurances and agreements with third parties are insufficient or lacking to cover all of TMI-2 3

Solutions costs for dismantlement and waste disposal, the Department is concerned that Pennsylvania citizens will become the payers of last resort.

8. The Department believes the current record needs to be further and fully developed for the Commission to be able to determine the technical and financial qualifications of the applicant and find, as it must, that the license transfer application would, if approved, provide adequate protection to the health and safety of the public. 42 U.S.C. § 2232(a).

9. For these reasons, the Department petitions the Commission and the ASLB for leave to intervene in this proceeding. In support of its Petition, the Department sets forth the following contentions, as required by 10 CFR § 2.309(h).

B. Contentions the Department Proposes to Raise Statement of the Issue of Law or Fact to be Raised

10. After reviewing the material contained in the Application, the Department does not believe the record contains the necessary information to determine the financial qualifications of the applicant and for the Commission to find, as it must, that the license transfer application would, if approved, provide adequate protection to the health and safety of the public. 42 U.S.C. § 2232(a).

Explanation for the Basis for the Contention

11. Applicants assume that $200 Million will accrue in the NDT over the 16-year anticipated decommissioning process. However, the Application does not explain the basis for the Applicants assumption that $200 Million would accrue in the NDT over the 16-year anticipated decommissioning process. Without this explanation, the NRC will not be able to determine if enough funds are set aside to complete the decommissioning as outlined in the Application.

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12. The Applicants did not include in the Application a description of expenses necessitating the withdrawals by GPU Nuclear from the NDT prior to the Closing. It appears based on the minimum value of $800 million required in the NDT at time of license transfer and the approximate current NDT value, the amount withdrawn could potentially approach $100 million. The Applicants need to fully justify any withdrawal amount from the NDT prior to the license transfer so that the NRC can determine if the funds are withdrawn for appropriate purposes as per the regulations.

13. It is unclear how the Applicants contingencies for cost estimates are formulated and whether they meet the NRC requirements for the Standard Review Plan on Power Reactor Licensee Financial Qualifications and Decommissioning Funding Assurance. This is of particular concern in that a 2015 TMI-2 decommissioning cost estimate by the licensee was approximately $1.22 Billion.

14. Due to the lack of information on how assumptions and contingencies were formed by the Applicants, under the current record, the NRC will not be able to determine whether the Applicants have fully complied with the NRC Regulatory Guide 1.159-2 Assuring the Availability of Funds for Decommissioning Nuclear Reactors Revision 1 (October 2003)

(ADAMS Accession No. ML032790365).

15. The current public record does not provide the Commission with the information necessary to fully evaluate the validity of funding through financial assurance instruments and the parent guarantee being available when necessary to support the decommissioning by TMI-2 Solutions.

The Issue Raised is within the Scope of the Proceeding

16. Ensuring there is a complete record to verify claims of financial assurance made by the 5

Applicants is well within the scope of a request for a License Transfer and Conforming License Amendments to decommission TMI-2.

The Issue Raised is Material to the Findings the NRC must make to Support the Action Involved in the Proceeding

17. Ensuring there is a complete record to verify claims of financial assurance made by the Applicants is material to the findings the NRC must make to support approving a request for a License Transfer and Conforming License Amendments to decommission TMI-2.

Concise Statement of Alleged Facts or Expert Opinions which Support Petitioners Position

18. The facts outlined below are confirmed by the Declaration of David J. Allard filed with this Petition.

19. The Application for the license transfer of TMI-2, dated November 12, 2019, states that once transfer occurs the NDT must maintain a minimum balance of $800 Million. (Attachment 1 of the Application, p. 11). Furthermore, the Application states that Decommissioning Cost Estimates are approximately $1.06 Billion (in 2019 dollars) (Attachment 1 of the Application pp. 9-10; Enclosure 7). A previous decommissioning cost estimate submitted to the NRC by GPU Nuclear was approximately $1.22 Billion (in 2014 dollars) (see TMI-15-036 - March 27, 2015 - Decommissioning Funding Status Report for the Three Mile Island Nuclear Station, Unit 2 Attachment 2 p. 1). TMI-2 Solutions anticipates that Phase 1 of the decommissioning costs for the higher activity areas and unknowns of the fuel debris that will be worked on through 2028 will be approximately $563 Million. (Attachment 1 of the Application, p. 10; Enclosure 7). The more routine decommissioning of the reactor in Phase 2 is anticipated to cost approximately

$494 Million. (Attachment 1 of the Application, p. 10; Enclosure 7). The Application also states, multiple times, that approximately $56 Million will be maintained for the long-term 6

storage of fuel debris material after completion of Phase 2, to cover any remaining site closure issues, and the removal of the storage facility. (Attachment 1 of the Application, p. 12; ). The Department notes that the Application does not fully explain the Applicants assumption that $200 Million would accrue in the NDT over the 16-year anticipated decommissioning process.

20. Attachment 1 of the Application on Pages 10-11, states that prior to the closing on the transaction, GPU Nuclear will make withdrawals from the NDT to pay for accrued but unpaid expenses. However, a description of these expenses is not included in the Application. The Department believes it is important that the NRC require the Applicants to fully justify any withdrawal amount from the NDT prior to the license transfer so that the NRC, the Department, and the citizens of Pennsylvania can be assured that funds are withdrawn for appropriate purposes as per NRC regulations.

21. Attachment 1 of the Application, Enclosure 7, Figures 7.2 and 7.3 in the application state that there are contingencies added to various parts of the cost estimates. These contingencies seem to vary in percentage with a range between 18% and 25%. For materials licensees, these cost estimates are required to include an overall contingency of 25%. (10 CFR

§ 30.35(e)(1)(D) requiring An adequate contingency factor which is further defined in NUREG 1757, Volume 3, Rev 1 Section 4.1, Number 7, page 4 The cost estimate applies a contingency factor of at least 25% to the sum of all estimated costs.) It is unclear how the Applicants contingencies are formulated and whether they meet the NRC requirements for Standard Review Plan on Power Reactor Licensee Financial Qualifications and Decommissioning Funding Assurance, including 10 CFR § 50.33(k) which requires that reasonable assurance will be provided that funds are available to decommission as described in 7

10 CFR §§ 50.75 and 50.82.

22. The Department is uncertain whether the Applicants have fully complied with the NRC Regulatory Guide 1.159-2 Assuring the Availability of Funds for Decommissioning Nuclear Reactors Revision 1 (October 2003) (ADAMS Accession No. ML032790365). This guidance underscores the importance that a lack of funds does not result in delays in or improper conduct of decommissioning that may adversely affect public health and safety. Id. at 1.159-2.

Two factors are considered when evaluating if financial assurance has been made, the amount of funds needed for decommissioning and the method used to provide financial assurance. Id.

It is critical for the NRC staff to have a thorough understanding on these matters before any decision is reached by the Commission. Having all parties further evaluate the issues raised by the Department will assist in reaching this understanding.

23. Ensuring that TMI-2 Solutions maintains a level of financial assurance and utilizes decommissioning funds in a manner that is sufficient to protect workers and public health, safety, and the environment in the event unforeseen conditions or expenses arise and ensure the availability of funds to ultimately release the site and terminate the license is especially important given the unique historic and factual circumstances surrounding the decommissioning of TMI-2 and its location in a waterway that impacts multiple locations. 10 CFR § 50.82(a)(8)(i)(B) and (C).

24. Attachment 1of the Application on Page 2, states that TMI-2 Solutions will provide the following financial assurance mechanisms:

Upon Closing, the assets from the TMI-2 tax-qualified nuclear decommissioning trust fund (NDT) will be transferred to a tax-qualified NDT established by TMI-2 Solutions. The form of the NDT agreement is provided in Enclosure 3A.

Enclosure 3A contains confidential commercial and financial information. A redacted version of the NDT Agreement suitable for public release is available as Enclosure 3B. The funds in the NDT will be sufficient to complete 8

Decommissioning of TMI-2 under the accelerated schedule. In addition, TMI-2 Solutions will have in place additional Decommissioning financial assurance instruments valued up to $100 million during the most critical phases of the project, as well as a parent guarantee of payment and performance by EnergySolutions (Parent Guarantee). This is discussed further in Part V and Enclosure 4A of this Application. Enclosure 4A contains confidential commercial and financial information. A redacted version of this enclosure suitable for public release is available as Enclosure 4B. of Application, p. 2.

25. The current record does not provide the Department with the information necessary to fully evaluate the validity and adequacy of available funding necessary to support the financial assurances made by TMI-2 Solutions. It is unclear to the Department what are the financial assurance instruments valued at up to $100 Million and what the phrase up to means. Also, the Application does not provide a defined amount of funds that will be provided by the parent guarantee. As a separate concern, the global pandemic of COVID-19 has greatly affected financial markets, and the Department questions how this impacts the assumptions made by the Applicants in the various financial assurance instruments and parent guarantee it will have accessible during the decommissioning of TMI-2.

26. Because EnergySolutions is not publicly traded, details on its annual financial information are not readily available to the Department. The Departments past experience with financial assurances of this nature is that the financial assurance is subject to the requirement that an annual financial audit of the parent company be performed. This audit would compare the liability of decommissioning as well as the corporate-wide liabilities of the parent company with the liquidity of the parent company to determine available funding in the event of a bankruptcy. It is unclear from the Application whether this will be done here. Moreover, because the Department is not a beneficiary to any of the financial guarantees, it would not have standing to enforce those guarantees or request a withdrawal if the Department was burdened 9

with cleanup costs. The record needs to be developed to provide sufficient information for the Commission to determine the adequacy of the financial assurances made in the Application.

27. After review of the Application, it is unclear to the Department where the ultimate responsibility and liability lie should TMI-2 Solutions fail to have enough funds set aside for decommissioning and associated activities and then ceases to exist. Given the obvious uncertainties and complexities associated with cleaning up the remains of TMI-2s damaged fuel debris, the reactor vessel, coolant system, associated piping and safety systems, containment and auxiliary buildings, the demonstration of adequate funding to complete the decommissioning of TMI-2 and restoration of the site, is a significant concern to the Department and the citizens of Pennsylvania.

28. As stated in this Petition and in the Departments April 6, 2020 letter (Exhibit A), the Department is deeply concerned that the citizens of Pennsylvania will be left with the ultimate responsibility for the cleanup. The record needs to be fully developed to ensure that TMI-2 Solutions has adequate financial resources to prevent this occurrence.

A Genuine Dispute Exists with Applicants on a Material Issue of Law or Fact

29. As described above, the Applicants have not provided sufficient detail on financial assurances to ensure that the decommissioning can be fully and properly completed to provide adequate protection to the health and safety of the public. 42 U.S.C. § 2232(a).

II. REQUEST FOR EXTENSION OF TIME TO REQUEST HEARING

30. For reasons outlined below, and confirmed by the Declaration of David J. Allard filed with this Petition, pursuant to 10 C.F.R. § 2.307(a), the Department is requesting an extension of time of at least one month after DEPs physical offices reopen, following the COVID-19 pandemic, to request a hearing to review with the FirstEnergy Companies, TMI-2 Solutions, 10

EnergySolutions, and the Nuclear Regulatory Commission staff whether adequate financial assurances exist to complete the proposed TMI-2 decommissioning project. The Department may elect to not pursue a hearing if, through further discussions with these parties, it is satisfied that the record before the Commission is complete in accordance with the AEA.

31. Several federal statutory and regulatory provisions inform how the Commission interacts with states in which an NRC-regulated facility is located when the license for such a facility, or an amendment thereto, is under consideration. While making clear that the Commission does not have to wait to act on a license application until a state has had the opportunity to express its concerns and explore solutions to those concerns, these provisions generally require the Commission to provide states with a meaningful opportunity to so advise the Commission even if it means postponing the license action. This is subject, obviously, to the proviso that there are no adverse consequences to waiting and the wait is likely to have a meaningful outcome.

32. Pursuant to 42 U.S.C § 2021(l) regarding an application for a Commission license, such as the one at issue in this proceeding, the Commission is required to afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses, and advise the Commission as to the application without requiring such representatives to take a position for or against the granting of the application.

33. 42 U.S.C. § 2239 Hearings and Judicial Review, allows the Commission to issue and make immediately effective any amendment to an operating license or any amendment to a combined construction license, upon a determination by the Commission that such amendment involves no significant hazards, notwithstanding the pendency before the Commission of a request for a hearing from any person. Such amendment may be issued and made immediately 11

effective in advance of the holding and completion of any required hearing 42 U.S.C. § 2239(a)(2)(A). However, this section also states that, [i]n determining whether such amendment involves no significant hazards consideration, the Commission shall consult with the State in which the facility involved is located. In all other respects such amendment shall meet the requirements of this chapter. 42 U.S.C. § 2239(a)(2)(A).

34. Under 10 CFR § 50.91 Notice for public comment; State Consultation:

The Commission will make a good faith attempt to consult with the State before it issues a license amendment involving no significant hazards consideration. If, however, it does not have time to use its normal consultation procedures because of an emergency situation, it will attempt to telephone the appropriate State official. (Inability to consult with a responsible State official following good faith attempts will not prevent the Commission from making effective a license amendment involving no significant hazards consideration, if the Commission deems it necessary in an emergency situation.)

10 CFR § 50.91(b)(4)

35. Lastly, 10 CFR § 50.91(c) Caveats about State Consultation, provides that the state consultation procedures in 10 CFR § 50.91(b) do not give the State a right to a hearing on the determination before the amendment becomes effective or to insist upon a postponement of the determination or upon issuance of the amendment. 10 CFR § 50.91(c)(1)(i) and (ii).

36. However, Pennsylvania along with many other states is currently in the midst of coping with the COVID-19 pandemic. On March 6, 2020, Pennsylvania Governor Tom Wolf issued a Proclamation of Disaster Emergency due to this pandemic. On March 11, 2020, pursuant to the Governors emergency disaster proclamation, state agencies were required to cancel all in-person meetings. On March 16, 2020, the Departments Central Office where the Bureau of Radiation Protection (Bureau) is located was closed and employees were instructed to begin teleworking from their homes. On March 17, 2020, all remaining Commonwealth offices were 12

closed, and employees were instructed to telework. As of the date of this filing all Commonwealth offices remain closed through at least April 30, 2020, with the possibility of the closure being extended. Furthermore, on April 1, 2020, Governor Wolf announced a Statewide Stay-at-Home Order to the public which is still currently in effect.

37. Prior to the pandemic, an in-person meeting between representatives of the Bureau and TMI-2 Solutions was scheduled for March 19, 2020 at TMI-2 Solutions request. The purpose of the meeting was for TMI-2 Solutions to engage with Bureau staff and have an understanding of environmental plans and process moving forward as well as to become familiar with contacts on both sides. The Department intends to set up a teleconference to discuss these issues while all parties are navigating the complexities of remote access and are addressing novel and complex issues specific to the pandemic itself.

38. On April 6, 2020, the Department sent a letter to Kristine L. Svinicki, Chairperson of NRC, presenting the Departments concerns about this license transfer and requesting a meeting to further discuss the matter. (Exhibit A). All of the NRC Commissioners were copied on this letter, as well as the NRC Region I Administrator. In addition, the Department sent the Applicants a courtesy copy of the letter.

39. After the letter was sent, the Department discussed its concerns with the Applicants. On April 13, 2020, the Department received a written response to its concerns that was signed by the President of GPU Nuclear and the President of EnergySolutions. (Exhibit B). The Department is in the process of reviewing this response and following up with all parties. After its initial review of the April 13, 2020 response, the Departments contention of the Applicants financial qualifications remains paramount and the Departments position remains that the Applicants must further supplement the record before the NRC. However, due to the office 13

closings, travel restrictions, and a hiring freeze, and the need to draft an emergency expense contract to hire a financial consultant, the Department has limited capabilities to complete a comprehensive review of the license transfer Application at this time.

40. The Department received verbal confirmation from the NRC that it received the April 6, 2020 letter, it has been placed in the Agencywide Documents Access and Management System (ADAMS), and that the NRC will send a follow-up response. However, the Department has not yet received a response from the NRC Chairperson or NRC staff. In addition, the Department does not know if the NRC has reviewed the Applicants recent response to the Departments letter and whether this response will be made part of the official record before the NRC.

41. In response to the COVID-19 pandemic, NRC is also making adjustments in all of its duties including review of license applications, license amendments, and postponing public meetings, as well as other of its functions as described on its website and in its continuing series of conference calls to discuss the various impacts of COVID-19. see https://www.nrc.gov/reading-rm/doc-collections/faq/coronavirus.html.

42. As part of the State Consultation provisions discussed above, along with the complications caused by the COVID-19 pandemic, the Department respectfully requests that the Commission postpone making a determination on the Applicants license transfer Application until all parties have had a chance to further discuss the issues raised by the Department.

43. The Department acknowledges that under 10 CFR § 50.91(c) the NRC has the discretion to postpone a decision or require a hearing in this procedural posture. However, the Department submits that the most prudent course of action is for the NRC to postpone making a decision until the Department can consult with all parties and address the issues raised in this Petition.

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The unique factual history of the TMI-2 site (that it is the site of the worst nuclear accident in United States history), and its location in the middle of the Susquehanna River (a major waterway that affects multiple states and drains into the Atlantic Ocean), argue for taking greater care at this site than at any other, especially under these current abnormal global circumstances. It is imperative that the NRC has adequate time to gather and analyze all TMI-2 radiological characterization data and develop a complete record before it determines that there are no significant hazardous conditions. Given the known current radiological conditions within the Auxiliary and Containment Buildings at the TMI-2 site, there is a clear grave hazard to workers, the public and the environment once any decommissioning begins.

44. The Department recommends that the first step in ensuring the development of a full record would be to allow an extension to request a hearing so that all parties have time to read, comprehend, and discuss the issues raised by the Department in its April 6, 2020 letter and in this Petition. This is a particularly wise course of action given that the damaged TMI-2 facility has been in a Post-defueling Monitored Storage (PDMS) state for over 40 years since the accident. Allowing it to remain in its PDMS sealed and monitored condition for some months longer should not present a significant hazard to the public or the environment.

45. Moreover, a grant of an extension of time to file a request for a hearing to allow the current record to be supplemented, even while the parties try to resolve the Departments concerns informally, will not unduly delay the proposed closing. This is especially true considering that the present circumstances resulting from the COVID-19 pandemic have required the shutdown of many instrumentalities through which the transaction closing could be achieved.

46. Furthermore, on page 3 of the Application cover letter, the Applicants request that the 15

Commission issue an Order by July 31, 2020 authorizing that the transfer and the required license amendments be approved on the issuance of that Order. The Applicants also anticipate that the closing of the transaction described in the purchase agreement will take place during the second half of 2020. Certainly, there is no emergency situation alleged by the Applicants which would warrant the Commissions denial of the Departments request for an extension, under 10 CFR § 50.91(b) (that the Commission does not have time to use its normal [State] consultation procedures because of an emergency situation.).

47. The Department appreciates the Applicants response to the inquiries outlined in its April 6, 2020 letter and believes that a resolution can be achieved. After reviewing the Application and having follow-up conversations with the Applicants, the Department currently has no concerns with EnergySolutions technical and decommissioning capabilities. However, the Department is still evaluating the accuracy and completeness of the decommissioning cost estimates in the Application and the financial assurance and liability of the Applicants in light of the unique factors associated with TMI-2.

48. A summary of the specific factual issues that are within the scope of this proceeding and are material to the findings the NRC must make to support any approval of the license transfer application are set forth above in the section on the Departments Contentions. The Department would raise any remaining contentions if it later determines that a request for a hearing is necessary.

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III. CONCLUSION The Department and the citizens of Pennsylvania have a direct and ongoing interest in all aspects of the decommissioning, damaged fuel management, radioactive waste disposal, and site restoration of TMI-2. While the Department welcomes the possibility of a properly conducted and expedited cleanup and restoration of the TMI-2 site, where the historic accident took place, it believes the current record needs to be further developed for the Commission to find, as it must, that the license transfer application would, if approved, provide adequate protection to the health and safety of the public. 42 U.S.C. § 2232(a). For these reasons, the Department requests that the NRC/ASLB grant this Petition to Intervene and the associated request for an extension of time of one month after the Departments physical offices reopen to request a hearing.

Respectfully submitted, Commonwealth of Pennsylvania Department of Environmental Protection By its attorney, Signed (electronically) by Alicia R. Duke Assistant Counsel PA ID No. 209672 Southcentral Regional Office 909 Elmerton Avenue, Third Floor Harrisburg, PA 17110-8200 Telephone (717) 787-8790 Fax (717) 772-2400 Email: alduke@pa.gov Dated: April 15, 2020 17

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY

)

In the Matter of )

)

THREE MILE ISLAND NUCLEAR )

STATION, UNIT NO. 2; )

CONSIDERATION OF APPROVAL OF ) Docket No. 50-320 LT TRANSFER OF LICENSE AND )

CONFORMING AMENDMENT )

)

DECLARATION OF DAVID J. ALLARD I, David J. Allard, declare and state as follows:

1. I have worked for the Pennsylvania Department of Environmental Protection (Department or DEP) for over 21 years, I have a Bachelor of Science degree in Environmental Sciences and a Master of Science degree in Radiological Sciences & Protection, and I am a Certified Health Physicist (CHP). I have over 40 years of diverse experience in the field of radiation protection, and recognized nationally and internationally as such.

2. The general requirements of a CHP include at least a bachelor's degree from an accredited college or university in physical sciences, engineering, or in a biological science, with a minimum of 20 semester hours in physical science; at least six years of professional experience in health physics1; a reference from an immediate supervisor and from at least two other 1

By permission of the Board, an advanced degree may be substituted for a maximum of two years of the required experience.

individuals, including one from a currently Certified Health Physicist; a written report that reflects a professional health physics effort; and a two-part exam. Part I of the examination consists of 150 multiple choice questions in fundamental aspects of health physics. Part II consists of word and computational problems, which test competency in applied health physics. After passing Part I, the applicant must pass Part II within a period of seven years, or retake both parts.

3. During my 21 years at DEP, I have served as the Director of DEPs Bureau of Radiation Protection (Bureau), located at 400 Market Street, Harrisburg, Pennsylvania. On two occasions in 2003 and 2019 I served for several months as acting Deputy Secretary over the Bureaus of Waste, Air, Radiation and Remediation.

4. The Bureaus mission is to ensure that public, occupational, and environmental exposure to radiation from man-made and controllable natural sources is as low as reasonably achievable.

5. The Bureau manages the regulation and inspection of users of radiation sources throughout Pennsylvania. It performs independent nuclear safety reviews while evaluating nuclear power plants and oversees an emergency radiation response program. The Bureau implements a statewide radon program by increasing public and professional awareness of radon and its health risks.

6. Since 2008, the Bureau licenses and inspects users of all forms of radioactive materials as part of a formal Agreement between the Commonwealth and the U.S. Nuclear Regulatory Commission. Prior to 2008 the Bureau licensed only naturally occurring and accelerator produced radioactive material. It also licenses and/or registers all radiation-producing machines in Pennsylvania.

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7. The Bureau also performs technical reviews of decontamination and decommissioning activities for radioactive materials licensees and oversees a comprehensive environmental radiation monitoring program.

8. The Bureau is divided into four divisions:

• Decommissioning & Environmental Surveillance Division. This division performs oversight of numerous facility and site cleanups in the state. This division also carries out the environmental monitoring around nuclear facilities and subsequent laboratory sample analysis.

• Nuclear Safety Division. This division conducts an independent oversight review program for nuclear power plants in Pennsylvania. It also monitors the management and disposal of low-level radioactive waste in Pennsylvania, and provides emergency response planning and support for incidents involving nuclear power plants and/or radioactive materials in Pennsylvania.

• Radiation Control Division. This division licenses facilities in Pennsylvania that possess radioactive material and facilities possessing particle accelerators. It also registers facilities possessing radiation-producing machines and vendors/service providers. The contracted U.S. Food and Drug Administration mammography facility inspection program is also managed by this division.

• Radon Division. This division improves public health and safety by increasing public and professional awareness of radon and its health risks through public outreach and administration of a certification program for radon testing, mitigation and laboratory analysis firms and individuals.

9. I direct the Bureaus implementation of a statewide radiation protection program.

My responsibilities include policy, technical, and fiscal management of program areas including radioactive materials, radiation-producing machines, radon, nuclear safety, low-level radioactive waste, emergency response and decommissioning, and environmental surveillance. I am also responsible for ensuring that the Bureaus over 100 Central Office and Regional Office staff communicate uniformly and effectively to implement statewide program activities such as licensing, registration, certification, and inspections of approximately 800 radioactive materials licensees and approximately 11,000 registrants of radiation-producing machines.

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10. As Bureau Director and the Governors official liaison to the NRC, I have reviewed and discussed with my staff the application filed on November 12, 2019 by GPU Nuclear, Inc.

(GPU Nuclear), Metropolitan Edison Company, Jersey Central Power & Light Company, and Pennsylvania Electric Company (collectively referred to as the FirstEnergy Companies) and the TMI-2 Solutions, LLC (TMI-2 Solutions) (collectively, Applicants) to transfer the Possession Only License No. DPR-73 for Three Mile Island Nuclear Station, Unit 2 (TMI-2) from the FirstEnergy Companies to TMI-2 Solutions.

11. I also heavily participated in the drafting and final review of the Departments April 6, 2020 letter that was signed by DEP Secretary Patrick McDonnell and addressed to Kristine L.

Svinicki, Chairman of the U.S. Nuclear Regulatory Commission presenting DEPs concerns about this license transfer and requesting a meeting to discuss the matter further.

12. I have reviewed the final version of the Departments Petition for Leave to Intervene and Request for An Extension to File a Hearing Request that is being filed with the Commission and agree with the factual and legal statements made therein.

13. The Department remains concerned and wants to ensure that the record is fully developed to demonstrate that there is an accurate assessment of the cost, and adequate financial assurances to ensure that TMI-2 Unit is properly cleaned up by TMI-2 Solutions in order to protect the citizens and environment of the Commonwealth of Pennsylvania.

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14. I, David J. Allard, have read the above statement consisting of 4 pages, and I certify under penalty of perjury that the foregoing is true and correct. Executed on April 15, 2020.

Executed in Accord with 10 CFR 2.304(d)

David J. Allard, CHP Director, Bureau of Radiation Protection 400 Market Street, 13th Floor Harrisburg, PA 17105 (717) 787-2480 djallard@pa.gov April 15, 2020 5

Exhibit A April 6, 2020 Kristine L. Svinicki, Chairman U.S. Nuclear Regulatory Commission Office of the Chairman Mail Stop O-16 B33 Washington, D.C. 20555-0001 Re: Three Mile Island Unit 2 License Transfer

Dear Chairman Svinicki:

I am writing to you to express my serious concern regarding the proposed license transfer of the Three Mile Island Unit 2 (TMI Unit 2) nuclear power plant from GPU Nuclear Corporation to the EnergySolutions subsidiary TMI-2 Solutions, LLC (TMI-2 Solutions).

As you are aware, in 1979, the TMI Unit 2 power reactor had the worst nuclear accident in U.S.

history. The TMI Unit 2 nuclear accident resulted in damage to the majority of the reactor core, released millions of curies of radioactive noble gases into the environs, and grossly contaminated the interiors of the containment and auxiliary buildings. Because of this, we understand there are very high radiation areas within TMI Unit 2 that present a grave risk to personnel that enter.

Despite the limited entries into the containment building to remove damaged nuclear fuel in the 1980s, there are vast areas in the plant with unknown radiological conditions related to the TMI Unit 2 accident. I firmly believe TMI Unit 2 is the most radiologically contaminated facility in our nation outside of the Department of Energys weapons complex.

When it was announced that TMI Unit 1 was going to be permanently shut down, the Commonwealths residents and the Pennsylvania Department of Environmental Protection (DEP))

believed this to mean that TMI Unit 1 would enter into a SAFSTOR status for several decades and be decommissioned first. This would allow for the further decay of radioactivity within TMI Unit 2 and reduce worker exposure and possible environmental releases of radiation during clean up.

However, this understanding is no longer the case. With the announcement of GPU Nuclear Corporation planning to shed its responsibility for TMI Unit 2 to TMI-2 Solutions, we now understand that TMI-2 Solutions plans to immediately begin the decommissioning of TMI Unit 2 with the accrued $800 million in the financial assurance fund that GPU Nuclear Corporation and the NRC currently control. This leaves us with many questions and concerns, which I outline in more detail below, about what a license transfer of TMI Unit 2 will mean for Pennsylvania, the local environment, and the communities surrounding Three Mile Island.

Secretary Rachel Carson State Office Building l P.O. Box 2063 l Harrisburg, PA 17105-2063 l 717.787.2814 l www.dep.pa.gov

Kristine L. Svinicki, Chairman April 6, 2020 Concerns with Three Mile Island Unit 2 License Transfer Environmental & Safety Impacts Due to the TMI Unit 2 power reactor partial meltdown, it is our understanding there are still very high radiation areas within TMI Unit 2 that would present a grave risk to any personnel that enter.

Related to this understanding, I have the following questions about environmental impacts and safety associated with the decommissioning of TMI Unit 2:

• What increased environmental surveillance and pollution controls will the NRC require during clean-up of TMI Unit 2 to ensure any radiological releases are detected?

• The TMI Unit 2 facility is in the middle of the Susquehanna River, a major water supply for the region that drains into the Chesapeake Bay. What environmental and pollution controls will be put in place to ensure no contamination of this critical water source?

• What flood controls will be utilized during decommissioning to mitigate a worst-case flood scenario on the Susquehanna (e.g. a weather event similar to Hurricane Agnes in 1972 that produced 19-inches of rain in Pennsylvania)?

• Will the NRC require a local decommissioning advisory committee to be established to assure the clean-up of TMI Unit 2 is transparent to the public and local and state governments?

Cost of Clean-Up & Financial Responsibility As noted above, GPU Nuclear Corporation and the NRC currently have $800 million in its financial assurance fund for decommissioning TMI Unit 2. However, estimates have shown it will cost $1.2 billion to decommission TMI Unit 2. For these reasons, I have the following questions, related to the cost and financial responsibility of cleaning up TMI Unit 2:

• Given there is a significant disparity between the estimated cost to decommission TMI Unit 2 from the amount of funds currently available, what funding source will be used to cover the deficit?

• Since the radiological conditions inside TMI Unit 2 are unknown, the actual cost to decommission it could be much higher than the current estimate of $1.2 billion. What legal and financial assurances will be put in place to address this potential?

• Who will the NRC require to retain financial responsibility to clean-up TMI Unit 2 after the license has been transferred?

Radioactive Waste Handling Due to the severe contamination from the partial meltdown and the unknown radioactivity levels of materials that will need to be disposed, I request to know the following information related to how the radioactive waste from TMI Unit 2 will be handled:

• Has the U.S. Department of Energy agreed to dispose of the TMI Unit 2 reactor vessel, which has a portion of the damaged nuclear fuel from the 1979 accident still fused inside?

Kristine L. Svinicki, Chairman April 6, 2020

• How will TMI-2 Solutions dispose of any contaminated lead shielding, which is now mixed waste, that may be present in TMI Unit 2?

• Are there volume and activity estimates of the Class B & C low-level radioactive waste that cannot be shipped to the EnergySolutions disposal site in Utah?

• Has the low-level radioactive waste disposal site in Texas agreed to accept the Class B & C waste?

• Is there any greater than Class C low-level radioactive waste in TMI Unit 2? If so, will that remain onsite?

• If asked by the licensee, will the NRC consider and approve very low-level radioactive waste to be disposed of in non-hazardous landfills in Pennsylvania?

Given my stated concerns, I hope you and your fellow Commissioners will thoughtfully consider the unique aspects of the severely damaged TMI Unit 2 nuclear reactor and not approve a license transfer until all parties are satisfied that the decommissioning can be done safely. Equally important, we require firm legal assurances that financial resources are available to complete decommissioning once started, including bonding between the Commonwealth and licensee.

I also expect no radioactive waste from TMI Unit 2 will be left on Three Mile Island.

Additionally, I ask your executive staff and the current and proposed licensee brief my fellow local and state officials responsible for protection of the public and environment. Obviously, the current health crisis will dictate whether this meeting is in person or virtual. Furthermore, in that the licensee has recently amended the Post-Shutdown Decommissioning Activities Report (PSDAR) and has proposed a significant schedule change, the Pennsylvania DEP expects the NRC to hold a local PSDAR meeting after the COVID-19 situation has resolved so that the proposed clean-up work at TMI Unit 2 and timeline can be presented to the public, with ample opportunity for questions and discussion.

Should you or your staff have any questions regarding my stated concerns or wish to discuss them further, please feel free to contact David J. Allard, Director for Bureau of Radiation Protection, by e-mail at djallard@pa.gov or by telephone at 717.787.2480.

Sincerely, Patrick McDonnell Secretary cc: David J. Allard, Director, Bureau of Radiation Protection, DEP NRC Commissioner Jeff Baran, Washington, DC 20555-0001 NRC Commissioner Annie Caputo, Washington, DC 20555-0001 NRC Commissioner David A. Wright, Washington, DC 20555-0001 David Lew, Regional Administrator, U.S. NRC Region I, 2100 Renaissance Blvd., Ste. 100, King of Prussia, PA 19406-2713

Exhibit B

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY

)

In the Matter of )

)

THREE MILE ISLAND NUCLEAR )

STATION, UNIT NO. 2; )

CONSIDERATION OF APPROVAL OF ) Docket No. 50-320 LT TRANSFER OF LICENSE AND )

CONFORMING AMENDMENT )

)

CERTIFICATION OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that copies of the Commonwealth of Pennsylvania, Department of Environmental Protections Notice of Appearance and Petition for Leave to Intervene and Request For an Extension to File a Hearing Request and the attached Declaration have been served upon the Electronic Information Exchange, the NRCs e-filing system, in the above-captioned proceeding this 15th day of April 2020.

Signed (electronically) by Alicia R. Duke Assistant Counsel PA ID No. 209672 Southcentral Regional Office 909 Elmerton Avenue, Third Floor Harrisburg, PA 17110-8200 Telephone (717) 787-8790 Fax (717) 772-2400 Email: alduke@pa.gov Dated: April 15, 2020