ML20282A598

Commission Memorandum and Order (CLI-20-10)

ML20282A598
Person / Time
Site:	Three Mile Island
Issue date:	10/08/2020
From:	Annette Vietti-Cook NRC/SECY
To:	- No Known Affiliation, Three Mile Island Alert
SECY RAS
References
50-289-LA, 50-320-LA, ASLBP 20-962-01-LA-BD01, CLI-20-10, RAS 55825
Download: ML20282A598 (10)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kristine L. Svinicki Jeff Baran Annie Caputo David A. Wright Christopher T. Hanson In the Matter of EXELON GENERATION COMPANY, LLC Docket Nos. 50-289-LA 50-320-LA (Three Mile Island Nuclear Station, Units 1 and 2)

CLI-20-10 MEMORANDUM AND ORDER This order responds to a filing by Eric J. Epstein and Three Mile Island Alert, Inc.

(together, TMIA) regarding the Atomic Safety and Licensing Boards decision denying their petition to intervene and request for hearing with respect to a license amendment request (LAR).1 For the reasons described below, we affirm the Boards decision.

I. BACKGROUND This proceeding arises from an LAR submitted by Exelon Generation Company, LLC (Exelon) to amend the operating license for Three Mile Island Nuclear Station, Unit 1 (TMI-1),

which was permanently shut down on September 26, 2019.2 Exelon seeks to revise the TMI 1 LBP-20-2, 91 NRC 10 (2020).

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

(ADAMS accession no. ML19182A182) (LAR); see also Letter from Michael P. Gallagher,

site emergency plan and emergency action levels to reflect the permanent defueling of the reactors at the Three Mile Island site.3 Approval of the LAR depends on approval of a request for exemptions from portions of 10 C.F.R. § 50.47 and 10 C.F.R. Part 50, Appendix E.4 On November 12, 2019, TMIA filed a petition to intervene and hearing request, in which it argued that the LAR adversely affected Exelons decommissioning funding assurance and that Exelon should have provided an environmental report with its application.5 On January 23, 2020, the Board denied the hearing request and found that neither Eric Epstein, individually, nor Three Mile Island Alert, Inc., as an organization, had established standing.6 It further found that neither of the jointly proposed contentions was admissible.7 On February 16, 2020, TMIA filed a Motion to Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition before the Board.8 On February 19, 2020, the Board denied the motion to the extent it constituted a request for a stay because it was filed Exelon, to NRC Document Control Desk (Sept. 26, 2019) (ML19269E480) (certifying permanent removal of fuel).

3 See LAR.

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

(ML19182A104) (Emergency Planning Exemption Request). According to the LAR, Exelon also maintains the emergency planning responsibilities for Three Mile Island, Unit 2 (TMl-2), which is owned by First Energy Corporation (First Energy), through a service agreement. First Energy has a possession-only license for TMl-2, which is currently maintained in SAFSTOR condition.

According to Exelon, the LAR would not impact Exelon's ability to maintain the [emergency planning] service agreement. LAR at 2.

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

6 See LBP-20-2, 91 NRC at 29-32.

7 Id. at 33-38.

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

almost two weeks late and TMIA had not shown good cause for the delay.9 The Board also rejected the pleading as a motion for reconsideration on timeliness grounds.10 The Board also referred TMIAs pleading to the Commission to the extent it could be considered an appeal.11 The Staff and Exelon oppose such an appeal.12 II. DISCUSSION In consideration of TMIAs pro se status, we accept the Boards referral and consider the pleading as an appeal under 10 C.F.R. § 2.311.13 The appeal does not, however, demonstrate Board error. As explained below, the requested licensing action would modify the emergency plan for TMI-1.14 The LAR would not transfer the license of either TMI-1 or TMI-2, and it would not authorize decommissioning of either unit.15 Therefore, TMIAs arguments concerning license transfer and the possible challenges presented in decommissioning TMI-2 are outside the scope of this proceeding. Moreover, with respect to TMIAs arguments related to the LAR 9 Memorandum and Order (Denying Motion for Stay and to Reply to Licensing Board Decision and Referring Pleading to the Commission) (Feb. 19, 2020), at 2 (unpublished) (citing 10 C.F.R.

§ 2.342(a) (motion for a stay must be filed within ten days of Boards ruling)).

10 Id. at 3 (citing 10 C.F.R. § 2.323(e) (motion for reconsideration must be filed within ten days)).

11 Id. at 3-4.

12 NRC Staff Answer Opposing Epstein Motion (Mar. 12, 2020); 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 (Mar. 12, 2020).

13 A pro se petitioner may be granted some leeway in pleading and minor procedural matters where the opposing party is not prejudiced thereby. See, e.g., Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-15-25, 82 NRC 389, 394 (2015);

Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111, 115 (1995).

14 See LAR, Attach. 1, Description and Evaluation of Proposed Changes, at 2.

15 See id. at 2, § 1.0, Summary Description; see also Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 84 Fed. Reg. 47,542, 47,548 (Sept. 10, 2019).

that are within the proceedings scope, we find no error in the Boards rulings that the contentions lacked sufficient bases. Accordingly, we affirm the Boards decision on contention admissibility and need not reach the question of standing.

A. Contention 1 In Contention 1, TMIA argued that Exelons LAR does not provide financial assurances

[and] does not demonstrate that either Exelon or FirstEnergy are fiscally responsible, or that either have access to adequate funds for decommissioning.16 The Board found the contention beyond the scope of the proceeding. The Board observed that the contention sought to redirect the focus of the proceeding to an exemption that the NRC Staff had already granted that allowed Exelon to use a portion of the TMI-1 decommissioning trust fund for spent fuel management activities.17 The Board also clarified that this proceeding does not involve a license transfer.18 TMIA offered several other arguments in support of Contention 1, which similarly are outside the scope of the proceeding. TMIA asserted that the LAR does not address Exelons confused management organization, or explain where resources will be derived to deal with environmental impacts.19 TMIA argued that Exelons decommissioning cost estimates rest on several incorrect assumptions and do not include an adequate contingency factor.20 TMIA also referred to a website, which it claimed included a list of incidents reflecting historic poor 16 Petition to Intervene at 28.

17 LBP-20-2, 91 NRC at 34-35. The request was approved on October 16, 2019. See Exelon Generation Company LLC; Three Mile Island Nuclear Station Unit 1; Exemptions; issuance; 84 Fed. Reg. 56,846 (Oct. 23, 2019); see also Letter from Michael P. Gallagher, Exelon to NRC Document Control Desk (Apr. 12, 2019) (ML19102A085).

18 LBP-20-2, 91 NRC at 36.

19 Petition to Intervene at 28.

20 Id. at 32-35.

management at TMI from 1979 to 2019.21 The Board ruled that these assertions were outside the scope of the proceeding because they raise decommissioning financial assurance issues rather than emergency planning issues related to the LAR.22 TMIA further claimed that Exelon disregarded the possibility of spent fuel pool accidents.23 But the Board held that TMIA did not provide factual or expert support for this claim and did not show a genuine dispute with the application.24 In fact, the LAR did consider the possibility of spent fuel pool accidents, and TMIA did not dispute this analysis in its Petition to Intervene.25 On appeal, TMIA does not directly address or show error in the Boards ruling concerning the scope of the proceeding. Instead, TMIA reasserts claims about the financial qualifications of potential license transferees.26 We find no error in the Boards determination that arguments related to license transfer are outside the scope of the proceeding.

TMIA also reiterates its assertion that 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 and that the proposed LAR therefore involves a significant reduction in the margin of safety.27 While this claim may be within the scope of the proceeding, it was factually 21 Id. at 35-37, 39.

22 LBP-20-2, 91 NRC at 35.

23 Petition to Intervene at 35-39.

24 LBP-20-2, 91 NRC at 35 n.43.

25 See, e.g., LAR, Attach. 1, Description and Evaluation of Proposed Changes, § 5.1.2, Hottest Fuel Assembly Adiabatic Heat-Up (Zirconium Fire); LAR, Attach. 2, Permanently Defueled Emergency Plan, § 2.9, Mitigation of Consequences of Beyond Design Basis Events.

26 Appeal at 20 (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 [an] environmental assessment . . . (Contention 2) are within the scope of this proceeding.).

27 Appeal at 20-21; see also Petition to Intervene at 8.

unsupported and did not dispute specific portions of the LAR with regard to emergency response.28 Therefore, TMIA has not shown that the Board erred in dismissing the contention.

B. Contention 2 TMIA argued in Contention 2 that the LAR should have included an environmental report to satisfy NRC regulations implementing the National Environmental Policy Act (NEPA).29 In support, TMIA asserted that Three Mile Island is in a flood-prone river basin. TMIA further claimed that past environmental impact statements (EISs) relating to TMI have been inaccurate or incomplete.30 The Board rejected Contention 2 because TMIA did not address the applicants analysis, which found that no additional NEPA analysis was necessary because the LAR falls within a categorical exclusion.31 The Board pointed to the LARs explanation that the application falls within both categorical exclusions 10 C.F.R. § 51.22(c)(9) and (25), and it observed that petitioners did not address Exelons analysis of the matter.32 The Board found that the contention therefore failed to show a genuine dispute with the application.33 On appeal, TMIA does not discuss the Boards reasoning and makes no mention of the LARs discussion of a categorical exclusion. We find no error in the Boards conclusion that the contention did not raise a genuine dispute with the application. We therefore affirm the Boards decision that this contention is inadmissible.

28 See 10 C.F.R. § 2.309(f)(1)(v), (vi).

29 Petition to Intervene at 40-46.

30 Id. at 49, 50, 51.

31 LBP-20-2, 91 NRC at 37.

32 Id. at 37-38 (citing LAR Attach. 1, Description and Evaluation of Proposed Changes, at 13; Emergency Planning Exemption Request, Attach. 1, at 55-57).

33 Id.

C. Stay Request TMIA also requested that the NRC stay the issuance of the license amendment until (1) an EIS is completed, (2) TMIAs concerns expressed in Exhibits 2 and 3 attached to its petition are addressed,34 and (3) financial assurances are guaranteed by [EnergySolutions].35 Our rules of procedure provide that within ten days of service of an adverse ruling, a party may apply to the presiding officer or the Commission for a stay.36 Therefore, we find no error in the Boards finding that the stay requestfiled twenty-six days after the denial of TMIAs hearing requestwas untimely with no good cause shown. Moreover, the stay request does not include supported arguments that relate directly to the emergency planning LAR at issue. We therefore find no error in the Boards decision to deny a stay.

34 Id. Exhibit 2 to the Petition is an article from the Philadelphia Inquirer relating to voting machines in Pennsylvania. See Petition, Ex. 2, Jonathan Lai, Why some Pa. counties are struggling with state order to upgrade voting machines, Mar. 1, 2019. Exhibit 3 to the Petition consists of: A discussion of the Three Mile Island Post Defueled Emergency Plan; Press Release, James Lee Witt Associates, Governor Rendell Responds to Independent Review of States Snowstorm Response; Pledges Reforms to Emergency Management Operations (Mar.

27, 2007); Letter from TMIA to the editor (unspecified) (Aug. 21, 2008) (Why We Opposed the Move); and Press Release, AmerGen, AmerGen to Relocate TMI Joint Information Center (Aug. 19, 2008).

35 EnergySolutions is the parent company of TMI-2 Solutions, LLC, the proposed transferee in the Three Mile Island, Unit 2 license transfer proceeding. TMIA also asked that the license amendment be stayed until resolution of concerns raised by the Federal Emergency Management Agency in a December 2019 letter. See Letter from Michael S. Casey, FEMA, to Kathryn M. Brock, NRC (Dec. 20, 2019) (ML19360A127). On December 26, 2019, Mr. Epstein forwarded a link to the letter to the service list in this proceeding along with a request that the Board review the letter. The Board declined TMIAs suggestion to review the FEMA letter. See LBP-20-2, 91 NRC at 40 n.54.

36 See 10 C.F.R. § 2.342(a).

III. CONCLUSION For the reasons discussed above, we affirm the Boards decision to deny TMIAs petition to intervene and also find the Boards decision correctly denied the stay request.

IT IS SO ORDERED.

For the Commission Digitally signed by Annette L. Annette L. Vietti-Cook Vietti-Cook Date: 2020.10.08 12:16:40 -04'00' Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 8th day of October 2020.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

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

)

Three Mile Island Nuclear Station )

(Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Commission Memorandum and Order (CLI-20-10) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 ocaamail.resource@nrc.gov hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 G. Paul Bollwerk, III, Chairman Reginald Augustus, Esq.

Administrative Judge Tison Campbell, Esq.

paul.bollwerk@nrc.gov Kayla Gamin, Esq.

David E. Roth, Esq.

Dr. Sue H. Abreu Brian Newell, Paralegal Administrative Judge reginald.augustus@nrc.gov sue.abreu@nrc.gov tison.campbell@nrc.gov kayla.gamin@nrc.gov Dr. Gary S. Arnold david.roth@nrc.gov Administrative Judge brian.newell@nrc.gov gary.arnold@nrc.gov Ian Curry, Law Clerk Exelon Generation Company, LLC ian.curry@nrc.gov 4300 Winfield Road Warrenville, IL 60555 Stephanie B. Fishman, Law Clerk Tamra Domeyer, Esq.

stephanie.fishman@nrc.gov tamra.domeyer@exeloncorp.com Molly R. Mattison, Law Clerk molly.mattison@nrc.gov

THREE MILE ISLAND (Units 1 and 2) - Docket No. 50-289 and 50-320-LA Commission Memorandum and Order (CLI-20-10)

Counsel for Exelon Generation Company, LLC Three Mile Island Alert, Inc.

Morgan Lewis Bockius 4100 Hillsdale Road 1000 Louisiana Street Suite 4000 Harrisburg, PA 17112 Houston, TX 77002 Eric Epstein Ryan K Lighty, Esq. epstein@efmr.org Kathryn Sutton, Esq.

ryan.lighty@morganlewis.com kathryn.sutton@morganlewis.com Counsel for FirstEnergy Companies Karen Sealy, Esq.

76 South Main Street A-GO-15 Akron, OH 44308 ksealy@firstenergycorp.com Herald M. Digitally signed by Herald M. Speiser Speiser Date: 2020.10.08 12:20:45 -04'00' Office of the Secretary of the Commission Dated at Rockville, Maryland, this 8th day of October 2020.

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