ML23044A199

TMI-2 Solutions' Answer Opposing Petitioner'S Motion to File New Contentions

ML23044A199
Person / Time
Site:	Three Mile Island
Issue date:	02/13/2023
From:	Fishman S, Roma A, Stenger D, Workman R Hogan Lovells, US, LLP, TMI-2 Solutions
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 23-977-02-LA-BD01, RAS 56637, 50-320-LA-2
Download: ML23044A199 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY & LICENSING BOARD

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In the Matter of ) Docket No. 50-320-LA-2

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TMI-2 Solutions, LLC )

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(License Amendment for Three Mile Island Nuclear ) February 13, 2023 Station, Unit 2) )

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TMI-2 SOLUTIONS ANSWER OPPOSING PETITIONERS MOTION TO FILE NEW CONTENTIONS Daniel F. Stenger Amy C. Roma Stephanie Fishman HOGAN LOVELLS US LLP Russell G. Workman TMI-2 SOLUTIONS, LLC Counsel for TMI-2 Solutions, LLC

TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ............................................................................................................... 2 III. THE MOTION FAILS TO MEET THE STANDARDS FOR LATE-FILED CONTENTIONS................................................................................................................ 3 A. Legal Standards For Late-Filed Contentions and Timeliness ................................ 3 B. The Motion is Untimely ......................................................................................... 4 IV. THE PETITIONER HAS NOT PROPOSED AN ADMISSIBLE CONTENTION ......... 7 Contention Admissibility Standards ...................................................................... 7 Petitioners Proposed Contention 3 is Inadmissible .............................................. 9 Petitioners Proposed Contention 4 is Inadmissible ............................................ 10 V. THE PETITIONER CONTINUES TO LACK STANDING .......................................... 11 VII. CONCLUSION ................................................................................................................ 13 ii

TABLE OF AUTHORITIES NRC Cases Amergen Energy Co., LLC (Three Mile Island Nuclear Station, Unit 1),

CLI-05-25, 62 NRC 572 (Oct. 26, 2005) ................................................................................... 6 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3),

LBP-82-117A, 16 NRC 1964, 1992 (1982) ................................................................................ 7 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),

CLI-98-25, 48 NRC 325, 348 (1998). ............................................................................................ 8 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001) ................................................................................................. 8 Entergy Nuclear Vermont Yankee, LLC (Vt. Yankee Nuclear Power Station),

CLI-11-02, 73 NRC 333, 338 (2011) ...................................................................................... 3, 5 Exelon Generation Co. (Peach Bottom Atomic Power Station, Units 2 & 3),

CLI-05-26, 62 NRC 577 (2005) ................................................................................................. 6 Fansteel, Inc. (Muskogee, Okla., Site),

CLI-03-13, 58 NRC 195, 204-05 (2003) .................................................................................... 8 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

LBP-90-16, 31 NRC 509 (1990) ........................................................................................... 9, 10 Ga. Inst. of Tech. (Ga. Tech. Research Reactor),

CLI-95-12, 42 NRC 111, 116-17 (1995) ..................................................................................... 8 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),

CLI-10-27, 72 NRC 481, 493-96 (2010) ..................................................................................... 5 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant),

CLI-10-7, 71 NRC 133 (2010) ................................................................................................... 6 Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 & 2),

LBP-82-74, 16 NRC 981, 983 (1982)....................................................................................... 13 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station),

LBP-93-23, 38 NRC 200, 246 (1993) ......................................................................................... 8 Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-4, 37 NRC 156, 162-63 (1993). .................................................................................. 11 USEC, Inc. (American Centrifuge Plant),

CLI-06-9, 63 NRC 433, 437 (2006) ...................................................................................... 7, 11 Yankee Atomic Electric Co. (Yankee Nuclear Power Station),

CLI-96-7, 43 NRC 235 (1996) ................................................................................................... 8 iii

Federal Court Cases Sierra Club v. Morton, 405 U.S. 727, 739-740 (1972) ................................................................................................... 13 Regulations 10 C.F.R. § 2.309 ................................................................................................................... passim 10 C.F.R. § 2.306 ............................................................................................................................ 3 Federal Register Publications Final Rule, Rules of Practice for Domestic Licensing Proceedings 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989) ........................................................................ 8, 9 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004) .................................................................................... 7 TMI-2 Solutions, LLC; Three Mile Island Station, Unit No. 2; 87 Fed. Reg. 51,454, 51,454-63 (Aug. 22, 2022) ...................................................................... 3 iv

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY & LICENSING BOARD In the Matter of )

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Docket No. 50-320-LA-2 TMI-2 Solutions, LLC )

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(License Amendment for Three Mile Island Nuclear )

Station, Unit 2) February 13, 2023 TMI-2 SOLUTIONS ANSWER OPPOSING PETITIONERS MOTION TO FILE NEW CONTENTIONS I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), TMI-2 Solutions, LLC (TMI-2 Solutions) submits this Answer opposing the Motion for Leave to File New Contentions (Motion) filed by Eric Epstein (Petitioner) on January 18, 2023.1 The Motion seeks to add new, late-filed contentions and make additional standing arguments in an attempt to bolster the Petitioners insufficient Petition for Leave to Intervene and Hearing Request filed on November 28, 2022, and which was the subject of an oral argument before the Licensing Board just hours after the Motion raising a number of new arguments was filed.2 The Licensing Board should deny the Motion in its entirety, as the Petitioner has not met the standards for a late-filed contention under 10 C.F.R. § 2.309(c)(1)(i)-(iii), nor has the Petitioner satisfied the criteria for an admissible contention under 10 C.F.R. § 2.309(f)(1), and like the Petitioners previous arguments, the new standing arguments are both untimely and still fail to meet the NRCs standing requirements.

1 See Petitioner Eric Epsteins Motion for Leave to File New Contentions (dated January 18, 2023) (Motion).

2 Eric Joseph Epsteins, Pro se, Petition for Leave to Intervene and Hearing Request (dated November 4, 2022)

(filed November 3, 2022) (ML22307A225) (Petition). The Petitioner is no longer pro se, as he has retained counsel that has prepared the Motion and represented the Petitioners interests during oral arguments on the Petition.

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II. BACKGROUND TMI-2 Solutions previously provided the factual background on its decommissioning activities to date, summarized the limited scope of the current license amendment request (LAR),

and described the procedural history of the LAR in TMI-2 Solutions Answer.3 On January 19, 2023, this Licensing Board conducted an oral argument on the standing and contention admissibility arguments presented by the Petitioner in the initial Petition challenging the LAR. On January 18, 2023, in the night prior to the oral argument, the Petitioner filed this present Motion. During the oral argument, the Petitioner sought to include the assertions raised in the new, late-filed contentions as part of the oral argument. In response, the Licensing Board noted that the new arguments were not part of this proceeding.4 In the Motion, the Petitioner raises two additional contentions, which like his previously proposed contentions, fail to meet the NRC contention admissibility criteria.5 The new assertions are first, that the LAR fails to consider water-use restrictions imposed by the Susquehanna River Basin Commissions (SRBC) Order approving and modifying the Three Mile Island, Unit 1 (TMI-1) project water usenote, this is not an Order pertaining to TMI-2, which is the facility under consideration in this proceeding,6 and second, that TMI-2 Solutions alleged failure to address water-use restrictions in its LAR, as a result of the SRBC Order pertaining to TMI-1, casts doubt on TMI-2 Solutions statements that criticality at the site is not credible.7 Additionally, the Motion seeks to rehabilitate the Petitioners failed standing arguments in the Petition by arguing that two settlement agreements from 1992 and 1999, respectively, acknowledged the Petitioner as 3

TMI-2 Solutions Answer Opposing Petition for Leave to Intervene and Hearing Request Filed by Eric Joseph Epstein (filed November 28, 2022) (TMI-2 Solutions Answer).

4 See Tr. at p. 51, ll. 16-17.

5 10 C.F.R. § 2.309(f)(1).

6 See Motion at Exhibit 2, Susquehanna River Basin Commission, Three Mile Island Generating Station, Unit 1, Docket No. 20221203 (Dec. 15, 2022) (SRBC Order).

7 See Motion at 3.

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a person with a special interest in the site. The Petitioner claims he could not find the settlements prior to his Petition,8 although TMI-2 Solutions would note that both settlement agreements are readily available by a simple internet search (a search of Epstein and Settlement brings up both settlements).

TMI-2 Solutions timely files this Answer opposing the Motion in accordance with 10 C.F.R. §§ 2.306(a) and 2.309(i)(1). As set forth below, the Petitioner has neither met the requirements for filing late-filed, or new contentions, nor has he submitted at least one admissible contention, and he continues to fail to establish standing. Accordingly, the Motion must be denied.

III. THE MOTION FAILS TO MEET THE STANDARDS FOR LATE-FILED CONTENTIONS A. Legal Standards for Late-filed Contentions and Timeliness Pursuant to the Hearing Notice and 10 C.F.R. § 2.309(b)(3), the deadline for timely petitions to intervene expired on November 4, 2022.9 The Commission holds new contentions raised after the deadline to a higher standard for admission.10 NRC regulations align with this stance by explicitly prohibiting the consideration of contentions filed after the initial deadline, absent a finding of good cause for the late filing. Therefore, contentions filed after the intervention deadline will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause for the late filing.11 The good cause demonstration requires a petitioner to show that:

(i) The information upon which the filing is based was not previously available; 8

See Motion at 5.

9 See TMl-2 Solutions, LLC; Three Mile Island Station, Unit No, 2, 87 Fed. Reg. 51,454, 51,454-63 (Aug. 22, 2022) (Hearing Notice).

10 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-11-02, 73 NRC 333, 338 (2011) (explaining that [w]e likewise frown on intervenors seeking to introduce a new contention later than the deadline established by our regulations, and we accordingly hold them to a higher standard for the admission of such contentions.).

11 10 C.F.R. § 2.309(c)(1) (emphasis added).

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(ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.12 B. The Motion is Untimely As mentioned above, the Motion includes two new proposed contentions. The contention, referred to as Contention 3 when considered together with the Petitions initially proposed contentions, alleges:

The LAR Fails to Consider the Ground Water, Surface Water, and Consumptive-Use Restrictions Imposed by the Susquehanna River Basin Commissions December 15, 2022 Order.

The second new proposed contention, referred to as Contention 4 when considered together with the Petitions initially proposed contentions, alleges:

TMI-2s Failure to Consider the Ground Water, Surface Water, and Consumptive-Use Restrictions Casts Doubt on Its Assertion that Criticality is not possible.

The Petitioner filed the Motion after the original deadline for contentions in this proceeding, and fails to satisfy the requirements in 10 C.F.R. § 2.309(c)(1) for good cause for filing after the original deadline. Since the untimeliness applies to both new proposed contentions, we address the contentions together. First, the information upon which the Motion is based was previously available to the Petitioner, contrary to the claims set forth in the Motion and the requirements set forth in 10 C.F.R. § 2.309(c)(1)(i). According to Exhibit 1 in the Motion, the Petitioner had corresponded with the SRBC on the specific water-use matters since November 2021for about a year before submitting the Petition and well over a year before submitting the Motion. Specifically, the SRBC stated that the Petitioner submitted official questions and 12 10 C.F.R. § 2.309(c)(1)(i)-(iii).

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comments center[ed] around the application for water withdrawals at TMI-1 by Exelon Generation Company, LLC as well as the potential for water use at TMI-2 for decommissioning.13 The correspondence by the Petitioner was sufficient for the SRBC to classify the Petitioners involvement on an active application as part of the Commissions review of the application.14 Despite the official publication date of the Order being December 15, 2022, the Petitioners direct participation and knowledge of the SRBCs application review demonstrates that this information is hardly new to the Petitioner, and defeats the Petitioners attempt to now add purportedly new arguments that it could have raised months ago.

Additionally, even if the Licensing Board were to consider the issuance of the SRBC Order to be new information, it cannot be considered to be materially different from information previously available, contrary to 10 C.F.R. § 2.309(c)(1)(ii). The Commission has consistently held that the publication of a new document does not meet the late-filed requirements unless the facts in that document are new and materially different from what was previously available.15 Here, the facts contained in the SRBC Order are provided to a different licensee, Exelon Generation Company, LLC, regarding a different site, TMI-1. Thus, the facts presented in the SRBC Order are not materially different than those in the LAR or facts previously available relevant to the LAR because they are not connected to the analysis contained in the LAR. Frankly, the SRBC Order has nothing to do with this LAR.

Lastly, given the Petitioners active correspondence with the SRBC on its approval and modification of the conditions for the TMI-1 project, it is evident that the Motion was not submitted in a timely fashion, as is required by 10 C.F.R. § 2.309(c)(1)(iii). The Petitioner states 13 See Motion at Exhibit 1, p. 1.

14 Id.

15 See, e.g., Vermont Yankee, CLI-11-02, 73 NRC at 344; see also N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 493-96 (2010).

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that the Motion was filed in a timely fashion because it was filed [o]nly eight days after counsel entered an appearance, seventeen days after the SRBC orders effective date, and prior to oral argument on his Petition.16 However, the Petitioner was aware of the SRBC actions well in advance of the Motion, and rather than measure timeliness based on the effective date listed in the Order, the timeliness should be measured from the time the SRBC Order was published on December 15, 2022, which is 34 days earlier than the Motion, not seventeen.

While the Petitioner was a pro se litigant at the time he filed the Petition, he is an active NRC litigant with extensive experience asserting arguments under NRC regulations.17 And while there is no regulation governing party decorum, we ask the Licensing Board to consider the Petitioners filing of a 61-page Motion of new argumentsfiled with counselthe night before the scheduled 10:00 am oral argument, and then raising those arguments in the Petitioners oral argument to be not only untimely, but poor form and an act that should be discouraged in Licensing Board proceedings.

As explained above, the information upon which the Motion is based was previously available and known to the Petitioner, and the Motion is not based on materially different information because the information is not connected to the LAR. Therefore, the Motion does not satisfy the requirements in 10 C.F.R. § 2.309(c)(1) and must be rejected as untimely.

16 Motion at 4.

17 See, e.g., EnergySolutions, LLC (Zion Nuclear Power Station, Three Mile Island Nuclear Station, La Cross Boiling Water Reactor, Kewaunee Power Station) CLI-22-09, __ NRC __ (July 15, 2022); Exelon Generation Co.,

LLC (Three Mile Island Nuclear Station, Units 1 & 2), 92 NRC 327 (Oct. 8, 2020); PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant) CLI-10-7, 71 NRC 133, 140 (2010); Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 579-83 (2005); Amergen Energy Co., LLC (Three Mile Island Nuclear Station, Unit 1), CLI-05-25, 62 NRC 572 (Oct. 26, 2005).

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IV. THE PETITIONER HAS NOT PROPOSED AN ADMISSIBLE CONTENTION Even if the Motion satisfied the good cause standard for late filing, the new contentions should be deniedjust as the original contentions filed in the Petition should be deniedfor failing to meet the admissibility requirements under 10 C.F.R. § 2.309(f)(1). As demonstrated below, the contentions do not raise a genuine dispute with the LAR, and they advance issues squarely outside the scope of this proceeding.

A. Contention Admissibility Standards Under 10 C.F.R. § 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. Section 2.309(f)(1) identifies the six admissibility criteria for each proposed contention.18 Failure to comply with any one of the six admissibility criteria is grounds for rejecting a proposed contention.19 The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.20 These standards are enforced rigorously. If any one . . . is not met, a contention must be rejected.21 A licensing board is not to overlook a deficiency in a contention or assume the existence of missing information. Under these standards, a petitioner bears the burden to present the factual information or expert opinions necessary to support its contention adequately, and 18 Those criteria are: (i) provide a specific statement of the legal or factual issue sought to be raised; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised is within the scope of the proceeding; (iv) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (vi) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.

19 See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004); see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

20 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202.

21 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991) (citation omitted); USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 437 (2006) (These requirements are deliberately strict, and we will reject any contention that does not satisfy the requirements.

(footnotes omitted)).

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failure to do so requires the Licensing Board to reject the contention.22 Further, the petitioner must explain the significance of any factual information upon which it relies,23 and where a petitioner fails to do so, the [Licensing] Board may not make factual inferences on [the] petitioners behalf.24 Admissible contentions must explain, with specificity, particular safety or legal reasons requiring rejection of the contested [application].25 In particular, this explanation must demonstrate that the contention is material to the NRCs findings and that a genuine dispute on a material issue of law or fact exists.26 The Commission has defined a material issue as meaning one where resolution of the dispute would make a difference in the outcome of the licensing proceeding.27 Furthermore, a statement that simply alleges that some matter ought to be considered does not provide a sufficient basis for a contention,28 and similarly, [m]ere reference to documents does not provide an adequate basis for a contention.29 Rather, NRCs standards require a petitioner to refer to the pertinent portions of the license application, state the applicants position and the petitioners opposing view, and explain why it has a disagreement with the applicant.30 If 22 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 262 (1996); Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 281, 305, vacated in part and remanded on other grounds, CLI-95-10, 42 NRC 1 (1995), affd in part, CLI-95-12, 42 NRC 111 (1995) (stating a petitioner is obligated to provide the [technical] analyses and expert opinion showing why its bases support its contention.). See 10 C.F.R. § 2.309(f)(1)(v).

23 See Fansteel, Inc. (Muskogee, Okla., Site), CLI-03-13, 58 NRC 195, 204-05 (2003).

24 Id. (citing Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149 (1991).

25 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359-60 (2001).

26 10 C.F.R. § 2.309(f)(1)(iv), (vi).

27 Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989) (emphasis added).

28 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 246 (1993),

review declined, CLI-94-2, 39 NRC 91 (1994).

29 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 348 (1998).

30 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001).

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the petitioner does not believe these materials address a relevant issue, the petitioner is to explain why the application is deficient.31 [A]n allegation that some aspect of a license application is inadequate or unacceptable does not give rise to a genuine dispute unless it is supported by facts and a reasoned statement of why the application is unacceptable in some material respect.32 B. Petitioners Proposed Contention 3 is Inadmissible The Petitioners proposed Contention 3 fails to meet the basic contention admissibility requirements. Specifically, the Petitioner failed to address how the contention is material to the findings the NRC must make on this LAR pertaining to TMI-2 and is within the scope of the proceeding in accordance with 10 C.F.R. § 2.309(f)(1)(iii-iv), and failed to raise a genuine dispute with the LAR on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(vi).

As discussed, an admissible contention must raise matters that are material to the findings that the agency must make on the pending licensing actionnamely the LAR. The Petitioners entire basis for Contention 3 is that the LAR failed to consider water-use restrictions imposed on the licensee for TMI-1 by the SRBC Order. However, the TMI-2 LAR does not address water-use restrictions at TMI-1 because it is not relevantthe LAR in fact does not propose any change in water needs for TMI-2. Nevertheless, even if water consumption was somehow relevant to this LAR, TMI-2 Solutions plan for water consumption to support decommissioning is well within the restrictions set forth in the SRBC Order.33 Proposed Contention 3 thus fails to demonstrate any material dispute. And similar to the initially proposed contentions in the Petition, the 31 54 Fed. Reg. at 33,170. See also Palo Verde, CLI-91-12, 34 NRC at 156.

32 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP 23, 64 NRC 257, 358 (2006) (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-16, 31 NRC 509, 521 & n.12 (1990)).

33 See SRBC Order at P 24 (stating [t]his approval authorizes the project sponsor to supply water to the TMI 2 Solutions facility limited up to 0.020 mgd (30-day average).). Note, mgd means million gallons per day and is a standard measure of water flow used in the measurement of water consumption. The quantity 0.020 mgd (30-day average) is essentially equivalent to 600,000 gallons in 30 days. Since TMI-2 only needs an estimated 500,000 gallons to support decommissioning, TMI-2 Solutions cannot be presumed to exceed this restriction.

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Petitioner here does not draw a connection between the contention and why a specific provision of the LAR is inadequate - a crucial element in establishing a genuine dispute.34 Further, the technical information contained in the SRBC Order, which the Petitioner relies upon for the contention, does not pertain or relate to the technical analysis associated with the LAR, and again, the Petitioner never identifies the specific technical issues with the LARs analysis. This is no surprise because the SRBC Order addresses TMI-1 and does not contain any outright denials or approvals relevant to TMI-2, stating that nothing in this approval shall be construed to suggest approval of consumptive use at the TMI-2 Solutions facility.35 And while not relevant to this LAR, the reduced water consumption for TMI-1 due to its permanent shutdown as reflected in the SRBC Order is consistent with the water needs for TMI-2 for decommissioning.

None of the analysis or statements from the SRBC Order would change the proposed LAR or its supporting analysis. Therefore, Contention 3 cannot raise a genuine dispute with the LAR on a material issue of law or fact.

In addition to failing to raise a genuine dispute, Contention 3 is outside the scope of this LAR proceeding for asserting an issue that the Petitioner does not show is relevant or connected to the LAR. Accordingly, Contention 3 is immaterial and must be denied.

C. Petitioners Proposed Contention 4 is Inadmissible The Petitioners proposed Contention 4 fails to raise a genuine dispute or provide sufficient factual or expert support for its claims as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).

34 An allegation that some aspect of a license application is inadequate or unacceptable does not establish a genuine dispute unless it is supported by facts and a reasoned statement of why the application is unacceptable in some material respect. See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP 16, 31 NRC 509, 521, 521 n.12 (1990).

35 SRBC Order at P 24.

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Relying on the SRBC Order, Contention 4 alleges that TMI-2 Solutions failure to consider water-use restrictions casts doubt on its criticality analysis. However, the Petitioner never identifies the specific technical analysis in the LAR that the SRBC Order impacts or demonstrates a deficiency with the LAR that has any safety significance. It is the Petitioners responsibility to establish the admissibility of its contention by specifically referencing the LARs deficiencies and providing adequate factual and expert support. The mere reference to a document, pertaining in substance to a different plant and licensee, that fails to point to a specific section of the LAR, is insufficient to provide the information necessary to establish the existence of a genuine dispute.36 Even if the Petitioner had connected Contention 4 to a specific deficiency in the LAR, none of the facts and statements in the SRBC Order would change the analysis supporting the LAR, or even relate to the scope of the LAR. The Commission has stated that conclusions without providing a reasoned basis or explanation for that conclusion deprives the Board of the ability to make the necessary, reflective assessment of the opinion.37 For failing to include any expert opinion or factual connection to the LAR, and therefore failing to raise a genuine dispute, Contention 4 must be denied.

V. THE PETITIONER CONTINUES TO LACK STANDING The Petitioner makes an attempt to repair the Petitions deficient pleading of standing with entirely new details and arguments offered for the first time in its Motion. In its Answer, TMI-2 Solutions explained the legal standard for standing at length, and identified the fatal deficiencies in the Petition.38 The Petitioner now attempts to repair these deficiencies by offering a new 36 See Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-83-75A, 18 NRC 1260, 1263 n.6 (1983) (rejecting a contention based on a list of omissions without any basis to believe that the omissions would have safety significance).

37 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (emphasis added) (quoting PFS, LBP-98-7, 47 NRC at 181).

38 TMI-2 Solutions Answer at 8-13.

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special interest standing argument based on the context of two long expired and narrowly-limited settlement agreements, which the Petitioner alleges he could not locate prior to submitting the Petition.39 There is no NRC regulation that permits a late-filed standing argument, and therefore the new arguments appear untimely with no exception. And even if late-filed standing was permissible, the Petitioners new standing argument is misplaced, references inaccurate information, and ultimately fails to meet the standing requirements under 10 C.F.R. § 2.309(d).

Reliance on the two settlement agreements for renewed standing is misplaced for multiple reasons, which we set forth below:

(1) The settlement agreements make clear that they do not confer any special status to the Petitioner outside the limited scope of those agreements, which are also irrelevant in this proceeding. Therefore, the Petitioner does not have a special interest in this proceeding, as is clear in the terms of the settlement agreements themselves. The 1992 settlement agreement states that GPU will consider Epstein and/or several designated associates to be persons with a special interest in PDMS, that these persons will be recognized only during the seven year term of the agreement, and that this group of persons will not be recognized in any other NRC-authorized or NRC-licensed TMI-2 program.40 Similarly, the 1999 settlement agreement limits the Petitioners special interest to the continued safe operation of TMI-1 and does not even mention TMI-2.41 39 See Motion at 5, referencing Exhibits 3 and 4. Note, upon receipt of this Motion, TMI-2 Solutions readily located both settlement agreements on the internet and the NRCs Agencywide Documents Access and Management System.

40 See Motion at Exhibit 3, p. 4.

41 See Motion at Exhibit 4, pp. 1-2.

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(2) The Supreme Court has held that an allegation of a special interest is insufficient to establish standing without showing particular harm,42 a principle which the Licensing Board has previously recognized.43 (3) The settlement agreements have expired. The term of the 1992 settlement agreement lasted for a period of seven years, and therefore ended in 199944 and the term of the 1999 settlement agreement was for a period of five years, unless extended, and ended in 2004.45 Thus, any special interest designation contemplated in those settlements is in any event expired.

(4) TMI-2 Solutions is not party to those agreements, and therefore they could not possibly be relevant to this proceeding.

Given that there is no basis for this new standing argument, and the fact that Petitioner continues to disregard the standing requirements contained in 10 C.F.R. § 2.309, the Licensing Board must dismiss the Motion outright.

VI. CONCLUSION The Petitioner has not demonstrated good cause as is required for filing new late-filed contentions. Even if the Petitioner had, the new contentions raise issues that are not material to the LAR, fail to provide adequate factual or legal support for any alleged deficiencies in the LAR, and fail to establish a genuine dispute relative to the LARs analysis. Nor has the Petitioner rehabilitated a lack of a sufficient basis for standing. For these reasons, the Licensing Board should dismiss this Motion in its entirety.

42 Sierra Club v. Morton, 405 U.S. 727, 739-740 (1972).

43 Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74, 16 NRC 981, 983 (1982).

44 See Motion at Exhibit 3, P 1.

45 See Motion at Exhibit 4, pp. 1-2.

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

Daniel F. Stenger Amy C. Roma Stephanie Fishman HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637-5691 daniel.stenger@hoganlovells.com amy.roma@hoganlovells.com stephanie.fishman@hoganlovells.com Executed in Accord with 10 C.F.R. § 2.304(d)

Russell G. Workman TMI-2 SOLUTIONS, LLC 423 West 300 South, Suite 200 Salt Lake City, UT 84101 (801) 303-0195 rgworkman@energysolutions.com Signed (electronically) by Stephanie Fishman Stephanie Fishman HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637-5691 stephanie.fishman@hoganlovells.com Counsel for TMI-2 Solutions, LLC Dated in Washington, DC this 13th day of February 2023 14

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of ) Docket No. 50-320-LA-2

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TMI-2 Solutions, LLC )

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(License Amendment for Three Mile Island Nuclear )

Station, Unit 2) ) February 13, 2023

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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing TMI-2 Solutions Answer Opposing Petitioners Motion to File New Contentions was served through the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

Signed (electronically) by Stephanie Fishman Stephanie Fishman HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 stephanie.fishman@hoganlovells.com Counsel for TMI-2 Solutions, LLC