ML23052A196

Petitioner Eric Epstein'S Reply Brief in Support of Motion for Leave to File New Contentions

ML23052A196
Person / Time
Site:	Three Mile Island
Issue date:	02/21/2023
From:	Bernabei L, Epstein E -No Known Affiliation, Bernabei & Kabat, PLLC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 23-977-02-LA-BD01, RAS 56650, 50-320-LA-2
Download: ML23052A196 (0)

Text

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

)

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

)

TMI-2 SOLUTIONS, LLC ) ASLBP No. 23-977-02-LA-BD01

)

(License Amendment Request for Three ) February 21, 2023 Mile Island Nuclear Station, Unit 2) )

____________________________________)

PETITIONER ERIC EPSTEINS REPLY BRIEF IN SUPPORT OF MOTION FOR LEAVE TO FILE NEW CONTENTIONS Pursuant to 10 C.F.R. § 2.309(c), Petitioner Eric Epstein, through undersigned counsel, respectfully submits his Reply Brief in Support of his Motion for Leave to File New Contentions based on information that was not previously available.

As set forth below, and in his Motion (Jan. 18, 2023), the Licensing Board should find that because the Susquehanna River Basin Commission (SRBC) issued an order, effective January 1, 2023, which limited the supply of water to Three Mile Island Nuclear Station, Unit 2 (TMI-2) to an incidental supply, and did not approve a supply of water to TMI-2 for consumptive use, there is no adequate supply of water to TMI-2. Because TMI-2 Solutions, LLC, submitted its License Amendment Request (LAR) for TMI-2 prior to the issuance of SRBCs order, the LAR failed to consider the consumptive use restrictions on TMI-2, and the NRC staff has not addressed these significant water use restrictions.

I. Procedural Background.

This proceeding concerns the LAR (Feb. 19, 2021) by TMI-2 Solutions, LLC (Licensee) to amend the existing Possession Only License (POL) for TMI-2. The Licensee 1

now seeks to revise the POL and the associated Technical Specifications (TS) to support the transition of TMI-2 from a Post-Defueling Monitored Storage (PDMS) status to a normal reactor without the baggage from a core meltdown.1 The Licensee supplemented its application five times, on May 5, 2021 (ML21133A264); January 7, 2022 (ML22013A177), March 23, 2022 (ML22101A079); April 7, 2022 (ML22101A077); and May 16, 2022 (ML22138A285).

On August 22, 2022, the NRC published a Federal Register notice describing the LAR, informing the public of the opportunity to request a hearing, and describing the NRC staffs proposed determination that the LAR involves no significant hazards consideration.2 However, the NRC used the terms preliminarily agrees (22) or preliminarily concludes (17) in its preliminary evaluation (3) in the Federal Register Notice. Similarly, the term preliminarily is used 42 times in the LAR for TMI-2, making clear that no final analysis has been done.

On November 3, 2022, Mr. Epstein filed a pro se hearing request and Petition to Intervene (Petition).3 On November 14, 2022, the Board issued an Initial Prehearing Order,4 detailing the briefing schedule and administrative matters for the proceeding.5 Petitioner Epstein timely filed a Motion for Leave to File New Contentions (Motion) on January 18, 2023, which identified two new contentions and provided additional support for 1

Letter of Gerard van Noordennen (TMI-2 Solutions, LLC) to NRC Document Control Desk (Feb. 19, 2021), Attachment 1 (ML21057A046).

2 TMI-2 Solutions, LLC, Three Mile Island, Unit No. 2, 87 Fed. Reg. 51,454, 51,460 (August 22, 2022) (LAR Hearing Notice).

3 See Eric Joseph Epsteins Petition for Leave to Intervene and Hearing Request (Nov. 3, 2022) (ML22307A225) (Petition).

4 Licensing Board Memorandum and Order (Initial Prehearing Order) (Nov. 14, 2022)

(unpublished) (ML22318A181) (Initial Prehearing Order).

5 Id. at 4 n.11.

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his standing arguments.6 On January 19, 2023, the Board held argument on both standing and the contentions.

II. The Susquehanna River Basin Commission.

The Susquehanna River Basin Commission (SRBC) strictly regulates large-scale water use in the Basin, including for nuclear power plants. Any consumptive water use of 20,000 gallons per day (gpd) or more over a 30-day average from any water source in the Susquehanna River Basin is regulated by the SRBC. All consumptive water use for nuclear activities must obtain SRBC approval.

Water withdrawals of 100,000 gallons per day or more, over a 30-day average, from any source or combination of sources within the Basin are also regulated by the SRBC. All water withdrawals that supply water to a regulated consumptive use are also regulated. All water withdrawn for nuclear activities must obtain SRBC approval.

Therefore, the SRBC regulates water use at Three Mile Island. TMI Unit-1 (TMI-1) was shut down in September of 2019, and its permission for water use expired in October of 2021. Since the core melt accident at TMI-2, that reactor has been permanently shut down.

Based on the SRBCs Order issued on December 15, 2022, TMI-1 no longer has access to enough water to operate a nuclear power plant. TMI-2 has no rights to withdraw water. Even if Constellation (the operator of TMI-1)7 elects to transfer water to TMI-2 based on the SRBCs 6

Petitioner Eric Epsteins Motion for Leave to File New Contentions (Jan. 18, 2023)

(Agencywide Documents Access and Management System (ADAMS) accession no.

ML23018A297).

7 Exelon no longer owns or operates TMI-1. On February 24, 2021, Exelon Corporation announced that it intended to transfer 100 percent ownership of its subsidiary, Exelon Generation, LLC to a newly-created subsidiary that will then be spun-off, becoming Exelon Generations new ultimate parent company. As a result of this transaction (the Generation Spin Transaction), Exelon Generation and its subsidiaries are now owned by Constellation.

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restrictions, Constellation and TMI-1 are not mandated to do so, and TMI-2 Solutions has no water infrastructure of its own for storage or transport. In addition, TMI-2 has no water infrastructure or intakes, and TMI-2 Solutions would have to construct a water line or install storage tanks for a water supply. Water use at Three Mile Island is complicated by the fact that ownership is split between two separate licenses.8 Mr. Epstein raised concerns throughout the SRBC Proceeding. See Petitioner Eric Epsteins Declaration, at ¶¶ 2-8 (Feb. 20, 2023) (attached hereto as Exhibit 1). Mr. Epstein supported the modification in TMIs permit that added Paragraph 24 to the Order, a stipulation allowing for minimal withdrawal of groundwater from TMI-1 to TMI-2 to be capped. However, any modification to increase water use for TMI-1 or TMI-2 would require a new proceeding.

The SRBC does not monitor radioactive water discharges. Mr. Epstein cautioned the SRBC Commissioners that TMIs prior owners had attempted to dump 700,000 gallons of radioactive water into the Susquehanna River. Mr. Epstein addressed the SRBC on December 15, 2022, and asked the commissioners to negotiate a Memorandum of Understanding with the Army Corps of Engineers and the Nuclear Regulatory Commission to monitor water releases into the Susquehanna River.

On August 22, 2022, the NRC published the aforementioned Federal Register notice.

The SRBCs decision was issued on December 15, 2022, or 31 days after the NRC required the petition to be filed in TMI-2s License Amendment Request, and almost four months after the 8

TMI-2 Solutions is a Limited Liability Corporation organized in Delaware, based in Utah, and a wholly owned subsidiary of EnergySolutions, which controls nearly $1 billion in rate payer decommissioning funds. TriArtisan, which is a privately held equity company based in New York, owns EnergySolutions. TriArtisans shares are owned by investors from outside of the nuclear industry such as Sara Lee Desserts and TGI Fridays, and 28 percent of TriArtisan is owned by foreign investors.

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Federal Register notice. The water issue has been before the SRBC, but TMI-2 Solutions has steadfastly refused to participate in the SRBC proceedings. The new water use standards explicitly exclude the licensee of TMI TMI-2 Solutions - and greatly reduce the amount of water available for TMI-1, which is owned by a separate licensee, Constellation.

Under the SRBCs Order, the following significant reductions were made in water allowances at TMI-1:

TMI, Consumptive Water Use:

Before: 19.2 mgd per monthly average.

After: 6.0 mgd per monthly average.

TMI, Surface Water Use:

Before: 122.8 mgd per monthly average.

After: 44.0 mgd per monthly average.

TMI, Groundwater Withdrawals:

Before: .255 mgd per monthly average.

After: .099 mgd per monthly average.

Should TMI-2 Solutions seek to subvert the SRBCs Order, or illegally remove water from the river, TMI-2 Solutions would jeopardize the cleanup and be subject to sanctions. In the past, PECO, which operated the Peach Bottom Atomic Power Station, and PPL, which operated the Susquehanna Steam Electric Station, were fined by the SRBC for illegal water withdrawals.

Both plants increased consumption without permission after completing Power Uprates. Exelon paid a $640,000 fine at Peach Bottom in December 2006, and PPL paid a $500,000 fine at Susquehanna in September 2007.

III. Mr. Epstein Properly Addressed TMI-2s Failure to Obtain Adequate Water for Its Clean-Up Operations, which TMI-2 and the NRC Failed to Address.

This tribunal should find that Mr. Epstein is the only party in this proceeding who has properly raised water use issues regarding the TMI-2 cleanup. The LAR, and all related 5

documents at the NRC, are intentionally silent on water use issues. Here, Mr. Epstein has repeatedly tried to get TMI-2 Solutions to produce a water use plan at TMI-2. However, both TMI-2 Solutions and its owner (Energy Solutions) have resolutely resisted attempts from the SRBC to quantify or produce phasing for water use cleanup.

Mr. Epstein submitted multiple information requests to the SRBC in 2020, 2021, and 2022, relating to water use at TMI-1 and TMI-2. See Epstein Declaration, at ¶¶ 2-8 (Exhibit 1).

The information Mr. Epstein received indicated that the SRBC was continuing to study the issue, including whether and how TMI-1 could supply TMI-2. Id. at ¶ 7.

Mr. Epsteins active participation in the water use case is not in dispute, nor is TMI-2 Solutions active disengagement. TMI-2 Solutions has not provided information to Mr. Epstein or the SRBC. However, the water use case was fluid and marked by frequent stops and turns, and the outcome was uncertain. See, e.g., SRBC to Exelon Nuclear (Mar. 11, 2021); SRBC to Exelon Nuclear (Oct. 26, 2021) (attached hereto as Exhibits 2-3). It was not until December 15, 2022, that the SRBC determined that TMI-2 Solutions had no water rights, and was dependent on Constellation for limited water use. In a remarkable turnabout, TMI-2 Solutions departed from the earlier estimate in a memo to the SRBC of 100,000 gallons, and increased the need to 500,000 gallons. Mr. Epstein determined that this inconsistency required further action on the part of both SRBC and the NRC. See Epstein Declaration (Ex. 1), ¶¶ 9-13, 19-20.

TMI-2 Solutions sat out the SRBC proceeding, and now brings unsubstantiated claims that they now need 500,000 gpd which is disputed in evidence.9 Mr. Epstein filed Right to Know Requests with the SRBC. Among the responses, as part of the Constellation application, on 9

The Petitioner is willing to share, with both the ASL&B and all Parties, all the data obtained through Right to Know Requests to the Susquehanna River Basin Commission.

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April 29, 2021, TMI-2 Solutions told the SRBC they only needed 100,000 gpd:

As discussed, I called Dan Jordan Tuesday, and he put me in contact with Mark Cambra of Energy Solutions over at Unit 2. Mark is working on the decommissioning and demolition planning going on, right now. He said there is no current water use at Unit 2, but when they are ready, water will be provided by Unit 1s approved groundwater withdrawals via hydrants for dust suppression for building demolition and other decommissioning activities, including the need for demineralized water. Between Units 1 and 2, they anticipate needing less than 100,000 gpd (30-day average) from Wells A, B, and C. I explained to Mark that some of the activities at Unit 2 may need to be reviewed as part of the CU component of the project, in particular with respect to revisions to the allowable CU purposes and reasonable / foreseeable need for the withdrawals and consumptive use.

See Epstein Declaration (Ex. 1), ¶ 11 & Att. C (SRBC internal email, TMI Unit 2 (Apr. 29, 2021) (emphasis added). Yet, TMI-2 told the NRC that it would need up to 500,000 gpd (30-day average). Id. at ¶ 12 (quoting TMI-2s Answer, at 9 (Feb. 13, 2023).

However, neither the NRC or TMI-2 Solutions provided any data to Mr. Epstein substantiating the water use claims at TMI-2, or any contract with the entity which holds the water rights. The SRBC approved a plan entirely contingent on Constellation unilaterally deciding when and if it chooses to transport water to TMI-2. See Epstein Declaration (Ex. 1), at

¶¶ 16-20. Further, TMI-2 has no water infrastructure or transfer storage capacity. Id. at ¶ 17.

The ad hoc approach to water use is similar to TMI-2 Solutions documented history of changing its criticality predictions.

The SRBC finally approved the TMI-1 Application plan on December 15, 2022, after the initial filing deadline at the NRC expired on November 4, 2022. Constellation now has the option to provide a limited amount of water. Moreover, water use at TMI can be modified and is tempered by drought, seasonal fluctuations, and water temperature. Most importantly, TMI-2 Solutions has no water infrastructure and is dependent on the discretion of Constellations rationed water use limits. See Epstein Declaration (Ex. 1), at ¶¶ 16-20.

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Further, TMI-2 Solutions has no plan to dispose of any water that it uses, and is precluded from dumping the radioactive water into the Susquehanna River. Moreover, the site area is controlled and owned by Constellation. In addition, TMI-2 would need permission to construct and maintain permanent or temporary water transport and storage by Constellation, Londonderry Township, Dauphin County, and the Pennsylvania Department of Environmental Protection, as well as the Pennsylvania Fish and Boat Commission.

TMI-2 Solutions never filed an application with the SRBC, never made an appearance at the SRBC, and never participated in a SRBC hearing. See Epstein Declaration (Ex. 1), ¶ 17. Mr.

Epstein worked diligently with the SRBC to determine the role, if any, of TMI-2 Solutions.

TMI-2 Solutions did not provide any data to the SRBC that was shared with Mr. Epstein relating to water use other than the aforementioned April 29, 2021 memo.

Hence, the timing of the filing of Mr. Epsteins contentions is driven by TMI-2 Solutions, which refused at every step of the SRBC proceedings to participate or submit verifiable data. It is striking that on December 15, 2023, when the Application was voted on, TMI-2 Solutions once again absented itself from the playing field. Here, TMI-2 Solutions is the proverbial Flying Dutchman (a ghost ship that never reaches any harbor) and the water use at TMI-2 has no safe harbor.

IV. CONCLUSION.

For the foregoing reasons, and as set forth in his Motion, the Licensing Board should find that Mr. Epstein has demonstrated good cause as is required for filing new late-filed contentions.

The new contentions raise issues that are material to the LAR, provide adequate factual or legal support for the deficiencies in the LAR, and establish a genuine dispute relative to the LARs analysis, particularly whether there is sufficient water for TMI-2s clean-up operations, an issue 8

that both TMI-2 Solutions and the NRC staff has not adequately examined. For these reasons, the Licensing Board should approve the Petitioners Motion to File New Contentions in its entirety.

Dated in Washington, D.C.

February 21, 2023 Respectfully submitted,

/s/ Lynne Bernabei Lynne Bernabei Bernabei & Kabat, PLLC 1400 - 16th Street, N.W., Suite 500 Washington, D.C. 20036-2223 tel. (202) 745-1942 fax (202) 745-2627 Email: Bernabei@bernabeipllc.com Counsel for Petitioner Eric Joseph Epstein 9

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305(c), I hereby certify that on February 21, 2023, I served a true and correct copy of the foregoing Petitioner Eric Epsteins Reply in Support of Motion for Leave to File New Contentions through the Electronic Information Exchange in the above-captioned matter.

/s/ Signed electronically by Eric Epstein Eric Epstein 4100 Hillsdale Road Harrisburg, PA 17112 tel. (717) 635-8615 Email: epstein@efmr.org 10

Exhibit 1 Petitioner Eric Epsteins Declaration (February 21, 2023)

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

)

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

)

TMI-2 SOLUTIONS, LLC ) ASLBP No. 23-977-02-LA-BD01

)

(License Amendment Request for Three ) February 21, 2023 Mile Island Nuclear Station, Unit 2) )

____________________________________)

PETITIONER ERIC EPSTEINS DECLARATION I, Eric Epstein, this 21st day of February 2023, hereby declare and state as follows:

1. I am over 18 years old and state the following based on my personal information and knowledge. Since 1979, I have been extensively involved with monitoring and litigating the nuclear industry activities at Three Mile Island, which has two nuclear power plants, one of which was recently shut down (Unit 1), and the other of which has been shut down since the reactor core meltdown in 1979 (Unit 2).

2. On December 11, 2020, I made a Right to Know Request to the Susquehanna River Basin Commission (SRBC) regarding water use at Three Mile Island Unit 1 (TMI-1).

On January 27, 2021, the SRBC (through Paula Ballaron, Manager, Policy and Implementation Research) responded that the Commission staff is working with TMI [Exelon] to determine Operating parameters considering the change in status of the plant [TMI-1], and will recommend modifications to docket approvals as appropriate ... The SRBC has docket approvals and contracts covering water withdraws and use at TMI-1...

3. On May 28, 2021, I made another Right to Know request, which asked the SRBC to confirm whether the SRBC has no information from the NRC at this time concerning the 1

amount of water required for decommissioning.

4. On July 19, 2021, I made another Right to Know Request to the SRBC, which resulted in the following response from Ms. Ballaron on August 19, 2021: The Commission has conducted a search for records regarding this matter as requested. All responsive documents from this document are enclosed.

5. On November 30, 2021, I submitted twelve (12) follow-up questions to the SRBC regarding water use at TMI.

6. On January 3, 2022, the SRBC docketed a formal proceeding for the three wells at TMI-1 (Unit 1): Technical Review: Susquehanna River Basin Commission Docket Numbers:

Three Mile Island Nuclear Station, Unit 1 - Well A - 2021-054; Three Mile Island Nuclear Station, Unit 1 - Well B - 2021-055; and, Three Mile Island Nuclear Station, Unit 1 - Well C -

2021-056.

7. On January 3, 2022, I submitted my comments to the SRBC regarding the application for the three wells, and the SRBC, through Ms. Ballaron, responded as follows:

The situation with TMI-1 and TMI-2 is unique to the Commission, and the Commission continues to gather site-specific information and evaluate the applications before it. The Commission is seeking clarification as a part of this application process to determine how much water TMI-1 needs from both its surface water and groundwater sources, whether TMI-1s sources will also supply TMI-2, and what the consumptive use (water loss) will be for TMI-1 and TMI-2. As such, the Commission appreciates the insights and issues you provided in Section II - Three Mile Island Nuclear Station, Unit-1 Post-Shutdown Decommissioning Activities and Water Use and Section III - Three Mile Island Unit-2:

Post Defueling Monitored Storage.

See SRBC to E. Epstein, at 1 (Feb. 4, 2022) (attached hereto as Attachment A). The SRBC further noted that:

Issues #17 and #18: Note that existing water use data continues to be submitted under the current docket approval. During the application review process, Commission staff will request a number of clarifications regarding requested amounts of water use and rates of 2

withdrawals from all sources that recognize the unique features of TMI, including various activities and modes related to decommissioning for both Unit 1 and Unit 2.

Id. (Att. A) at 2.

8. On October 22, 2022, I wrote to Jason Oyler, General Counsel and Secretary to the SRBC, to renew my request to have TMI-2 Solutions identify water use needs for TMI-2. I explained that:

...the Applicant has not received permission from the Nuclear Regulatory Commission to Amend its Possession Only License (POL) at Three Mile Island Unit 2. Therefore, the pace, rigor and precise amount of water required for the TMI-2 cleanup will not be determined until 2023.

Furthermore, the hearing filing date, which is now November 4, 2022, will create a delay in the schedule for issuing a License Amendment. In the event that additional litigation is approved by the Nuclear Regulatory Commission, this request will tack into the winter of 2023.1

9. Based on the inconsistencies in the unsubstantiated statements made by TMI-2 Solutions to the Nuclear Regulatory Commission (NRC), I contacted the SRBC on February 17, 2023 to determine (1) whether the SRBC asked and been provided with water use data from TMI-2 Solutions; (2) whether there is a contract between Constellation and TMI-2 Solutions for water use; and (3) whether there is a mechanism to transport water from Three Mile Island Unit-1 (TMI-1) to Three Mile Island Unit-2 (TMI-2).

10. I also made numerous documented data and information requests and Right to Know Requests to the SRBC relating to the TMI-1 water use application:

Re. Project Sponsor: Constellation Energy Generation, LLC. Project Facility: Three Mile Island Generating Station, Londonderry Township, Dauphin County, Pa.

Applications for renewal of groundwater withdrawals (30-day averages) of up to 0.099 1

See Eric Epstein Request to the SRBC to Remove Agenda Item (10/22/22). Re: 3. Project Sponsor: Constellation Energy Generation, LLC. Project Facility: Three Mile Island Generating Station, Londonderry Township, Dauphin County, Pa. (attached hereto as Attachment B).

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mgd from Well A, 0.099 mgd from Well B, and 0.099 mgd from Well C (Docket No.

20110610), and Commission-initiated modification of surface water and consumptive use approvals based on changes in operating status of the project and revised demand projections.

11. The only relevant document produced was from the following SRBC internal correspondence dated April 29, 2021:

As discussed, I called Dan Jordan Tuesday, and he put me in contact with Mark Cambra of Energy Solutions over at Unit 2. Mark is working on the decommissioning and demolition planning going on, right now. He said there is no current water use at Unit 2, but when they are ready, water will be provided by Unit 1s approved groundwater withdrawals via hydrants for dust suppression for building demolition and other decommissioning activities, including the need for demineralized water. Between Units 1 and 2, they anticipate needing less than 100,000 gpd (30-day average) from Wells A, B, and C. I explained to Mark that some of the activities at Unit 2 may need to be reviewed as part of the CU component of the project, in particular with respect to revisions to the allowable CU purposes and reasonable/foreseeable need for the withdrawals and consumptive use.

See SRBC internal email, TMI Unit 2 (Apr. 29, 2021) (attached hereto as Attachment C).

12. However, this estimate contradicts and undermines TMI-2 Solutions Answer, submitted to the NRC on February 13, 2023, on Page 9:

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.

See TMI-2 Solutions, Answer, at 9 (Feb. 13, 2023).

13. Therefore, I contacted the Susquehanna River Basin Commission, and asked for a clarification on February 17, 2023. I asked the staff, Did you ask questions about both units?

The SRBC responded: I know we asked...Asked and answered... However, the information 4

was not readily accessible, and staff committed to research the request. They added that TMI-Solutions did not volunteer to provide data or information.

14. The SRBC may have had a gap in the information relay. According to the SRBC, The timing of the request and the information may have arrived after Paula Ballaron sent you documents. However, please note that Ms. Ballaron retired on June 30, 2022, and the data concerning water use at TMI-2 was never shared with Mr. Epstein.

15. Prior to the SRBCs public hearing on November 3, 2022, I renewed my requests for data covering the four months after Ms. Ballarons retirement. On November 2, 2022, Curt Sebastian, Esquire from the SRBC responded: Attached please find a response to your records request of October 27, 2022, titled Specific data requests. The attached letter constitutes the Commissions complete response to your request. Once again, this Response did not contain water use projections for TMI-2. See SRBC to E. Epstein (Nov. 2, 2022) (attached hereto as Attachment D). Please note that November 4, 2022, only two days later, was the filing deadline for petitions relating to TMI-2s proposed License Amendment Request at the Nuclear Regulatory Commission.

16. It is clear that the Controlling Agreement regarding water use at Three Mile Island is based on regulatory thresholds established by the SRBC on December 15, 2023. Water use is controlled through the SRBC docket, and TMI-2 Solutions has not come to the SRBC with a request for water use at TMI-2.

17. Based on the SRBCs Order on December 15, 2022, TMI-1 no longer has access to enough water to operate a nuclear power plant. TMI-2 has no rights to withdraw water. In addition, TMI-2 has no water infrastructure or intakes, and would have to construct a water line or install storage tanks for a water supply.

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18. I raised concerns throughout the SRBC Proceeding, and supported the modification in TMIs permit that added Paragraph 24 to the Order. This stipulation allows for a minimal withdrawal of groundwater from TMI-1 to TMI-2 to be capped. Any modification to increase water use for TMI-1 or TMI-2 would require a new proceeding. Water use is totally contingent upon Constellations discretion.

19. The SRBC also communicated to me on February 17, 2023, that the Application gives TMI-1 ultimate authority: Constellation can say no. Under the docket it allows them, it doesnt require them [to provide water]...Allowed not required...

20. The SRBC also told me that it is not aware or in possession of any contract between Constellation and TMI-2 Solutions. If we dont have agreement, its likely it doesnt exist. The SRBC has no knowledge of how water will be stored or transported from Three Mile Island Unit-1 to Three Mile Island Unit-2.

21. I attest that this information is true, accurate, and complete and understand that any falsification, omission, or concealment of material fact may subject me or the represented organization to administrative, civil, or criminal liability.

Respectfully submitted, Eric Epstein 4100 Hillsdale Road Harrisburg, PA 17112 (717) 635-8615 6

Attachment A Susquehanna River Basin Commission to E. Epstein (February 4, 2022)

February 4, 2022 Mr. Eric Epstein 4100 Hillsdale Road Harrisburg, PA 17112 Re: Exelon Generation Company, LLC - TMI Unit 1 Applications; Commission Pending Nos. 2021-054, 2021-055, and 2021-056

Dear Mr. Epstein:

This letter is in response to your submittal to the Susquehanna River Basin Commission (Commission), dated January 3, 2022, related to the applications for renewal for activities surrounding the former nuclear power plant at Three Mile Island (TMI). Accordingly, your letter will be treated as correspondence commenting on an active application before the Commission and be made part of the application file and considered as part of the Commissions review of the application.

Many of your comments present background information about TMI Units 1 and 2, including information of the historical core melt accident at TMI Unit 2 and associated cleanup, decommissioning strategies and timetables for Units 1 and 2, and uncertainty regarding financial resources.

The situation with TMI-1 and TMI-2 is unique to the Commission, and the Commission continues to gather site-specific information and evaluate the applications before it. The Commission is seeking clarification as a part of this application process to determine how much water TMI-1 needs from both its surface water and groundwater sources, whether TMI-1s sources will also supply TMI-2, and what the consumptive use (water loss) will be for TMI-1 and TMI-2.

As such, the Commission appreciates the insights and issues you provided in Section II - Three Mile Island Nuclear Station, Unit-1 Post-Shutdown Decommissioning Activities and Water Use and Section III - Three Mile Island Unit-2: Post Defueling Monitored Storage.

However, as a reminder, the Commission does not regulate water quality, including thermal discharges and pollutant loads of any wastewater effluent. Information about who will analyze and monitor water chemistry, where will effluent discharge monitors be located, who and how often will water temperatures be monitored during discharges into the Susquehanna River is beyond the scope of the Commissions review. Water quality is regulated by other agencies and a standard condition of any Commission docket is the requirement to obtain and maintain all other needed governmental permits.

Mr. Eric Epstein February 4, 2022 Your correspondence also containsSection IV - Concerns and Issues with the SRBC Application, which centers around the application for water withdrawals at TMI-1 by Exelon Generation Company, LLC (Exelon), as well as the potential for water use at TMI-2 for decommissioning. Issues #16 to #34 address the applications more directly, and the responses to those inquiries are below:

• Issue #16: Although the organization submitting the applications is still listed as Exelon, the name is expected to be updated/corrected during the review period. As the Commission continues to gather information and evaluate the application before it, it will also evaluate whether additional applications need to be made for TMI-2 by another project sponsor (TMI-2 Solutions, LLC). Note that dockets may be transferred in the case of ownership changes and reissued in the case of name changes or changes to corporate form that do not constitute a change in ownership. These provisions are in the regulations at 18 CFR §§ 806.3, 806.4, and 806.6.

• Issues #17 and #18: Note that existing water use data continues to be submitted under the current docket approval. During the application review process, Commission staff will request a number of clarifications regarding requested amounts of water use and rates of withdrawals from all sources that recognize the unique features of TMI, including various activities and modes related to decommissioning for both Unit 1 and Unit 2.

• Issues #19 and #20: The U.S. Army Corps of Engineers (USACE) serves as the Federal member of the Commission and as such, has an important role in acting on water withdrawal and water use applications before the Commission. Although the Commission does not have a Letter of Understanding (LOU) or Memorandum of Understanding (MOU) with the USACE, it does have a Memorandum of Agreement (MOA) signed in 2008 (attached) that provided for a support agreement for a study, A Preliminary Assessment of Optimizing Use of Water Storage at Curwensville and Cowanesque Lakes, PA. Please contact the USACE directly for a definition of its role related to water use at TMI and any federal applications that may be required.

• Issue #21: As part of its hydrogeologic evaluation, the Commission considers the sustainability of groundwater and surface water withdrawals, including sustainability of sources during droughts. Approved projects must be consistent with the Commissions Comprehensive Plan.

• Issues #22, #23, and #24: The project sponsor(s) is required to provide site-specific data that establishes the amount of water needed to conduct planned activities at the project, both in aggregate to justify the requested withdrawal and also for water use needs for specific activities, as related to consumptive use. Due to the unique nature of TMI, it is reasonable to anticipate a breakdown for TMI-1 and TMI-2, as well as a discussion of likely modifications of water needs over time as decommissioning progresses.

587588.1

Mr. Eric Epstein February 4, 2022

• Issue #25: The Commission has no permit requirements related to the discharge of water from this withdrawal. The Commission coordinates with its member jurisdictions on other required permits and can take appropriate limiting actions regarding not only applications, but also on already approved projects, based on the denial of any other permits per 18 CFR § 806.21. This coordination can include drought restrictions.

• Issue #26: The Commission is not the agency that provides Clean Water Act Section 401 Water Quality Certification.

• Issue #27: There has never been an exemption from Commission water use regulations. Releases of stored water from Cowanesque Reservoir during drought events provide make-up water to compensate for consumptive use at the nuclear facilities at TMI. At this time, the water storage agreement remains in place.

• Issues #28, #29, #30, #31, #32, and #33: The Commission notes your requests for site-specific and updated studies for groundwater and surface water monitoring points, and environmental resource information; using the destructive phase of decommissioning as the basis for water need projections; and updated aquifer tests. The Commissions staff of hydrologists, geologists, aquatic ecologists, and others are well-equipped to conduct a thorough review of the water issues the Commission is charged to oversee.

In particular, Commission professional geologists will request sufficient information and data, either through aquifer testing or the new Alternative Hydrogeologic Evaluation process, to perform its hydrogeologic evaluation and make an informed recommendation to the Commissioners.

• Issue #34: Whether or not the project sponsor contributes funding to York Haven Power is beyond the scope of the Commissions authority.

Thank you for your interest in the Commission and your comments on the applications before the Commission. The Commission will notify you when the applications are subject to the public hearing and any potential action at a future Commission meeting.

Sincerely, Paula B. Ballaron, P.G.

Manager, Policy Implementation and Outreach Attachment cc: Todd Eaby, P.G. - Susquehanna River Basin Commission Andrew Gavin - Susquehanna River Basin Commission Curt Sebastian - Susquehanna River Basin Commission 587588.1

Attachment B E. Epstein to Susquehanna River Basin Commission (October 22, 2022)

October 22, 2022 Jason Oyler, General Counsel and Secretary to the Commission Susquehanna River Basin Commission 4423 N. Front Street Harrisburg, PA 17110

Dear Mr. Oyler:

The Susquehanna River Basin Commission (the SRBC or the Commission) conducts four quarterly business meetings a year. One month prior to a business meeting, a public hearing is held to take oral testimony on any business required to be subject of a public hearing.

The next hearing will be conducted at Commission headquarters at 4423 North Front Street, Harrisburg, Pennsylvania on November 3, 2022.

On the agenda is the following item:

3. Project Sponsor: Constellation Energy Generation, LLC. Project Facility: Three Mile Island Generating Station, Londonderry Township, Dauphin County, Pa. Applications for renewal of groundwater withdrawals (30-day averages) of up to 0.099 mgd from Well A, 0.099 mgd from Well B, and 0.099 mgd from Well C (Docket No. 20110610), and Commission-initiated modification of surface water and consumptive use approvals based on changes in operating status of the project and revised demand projections.

This date collides with the filing time for the Applicants request for an Amendment - License Amendment Request (LAR) to the cleanup at TMI-2 on November 4, 2022. That timeline begins the active intervention on the proposed modification of the TMI-2 cleanup plan which directly impacts the timing 0f water use needs.

However, the Applicant has not received permission from the Nuclear Regulatory Commission to Amend its Possession Only License

("POL") at Three Mile Island Unit 2. Therefore, the pace, rigor and precise amount of water required for the TMI-2 cleanup will not be determined until 2023.

Furthermore, the hearing filing date, which is now November 4, 2022, will create a delay in the schedule for issuing a License Amendment.

In the event that additional litigation is approved by the Nuclear Regulatory Commission, this request will tack into the winter of 2023.

The intervener is arguing that the proposed LAR is flawed and dilutes spent fuel masses causing K-effective projections to drop to o.95.

The proposed LAR ignores site-specific fire scenarios and past cask failures based on unproved assumptions. The LAR impacts changes the decommissioning schedule and timing of water use.

The proposed amendment would would revise the POL and TS to support Phase 1b and Phase 2 decommissioning activities associated with with achieving the removal of all debris material, its transfer to dry cask storage at an Independent Spent Fuel Storage Installation or a suitable waste storage area ... (Federal Register/Vol. 87, No.

161, p. 54154054155).

This was not the plan or protocol used when submitting the Application to the Susquehanna River Basin Commission. This plan is a material deviation, and should be reviewed prior to a hearing or a Commission vote. If the LAR is approved after the hearing, please note that the Application currently before the SRBC is for a different cleanup plan.

Adding to the existing uncertainties surrounding the cleanup, are the outstanding issues raised by the NRC regarding TMI-2 Solutions proposed LAR - Requests for Additional Information (RAI). Sixteen RAIs were sent to TMI-Solutions on August 23, 2022. The Applicants Responses were delayed until September 29, 2022, and further postponed before being posted in the NRCs Document Room (ADAMS) until October 19, 2022. Several of TMI-2 Solutions Responses contain material disputed by the Nuclear Regulatory Commission, and warrant further investigation. In addition, TMI-2 Solutions is asking to delay resolution of several outstanding issues until after the NRC approval of the proposed LAR.

I am requesting that the SRBC remove 3. Constellation Energy Generation, LLC. Project Facility: Three Mile Island Generating Station, Londonderry Township, Dauphin County, Pa., and place it on the agenda for the next public hearing date in 2023. The Commission conducts four quarterly business meetings a year, and there is ample time to review the Amendment prior to the next hearing and Commission vote.

Sincerely, Eric Epstein 4100 Hillsdale Road Harrisburg, PA 17112

Attachment C Susquehanna River Basin Commission, email, TMI Unit 2 (April 29, 2021)

Attachment D Susquehanna River Basin Commission to E. Epstein (November 2, 2022)

Exhibit 2 Susquehanna River Basin Commission to D. Jordan (Exelon)

(March 11, 2021)

Exhibit 3 Susquehanna River Basin Commission to D. Jordan, et al. (Exelon)

(October 26, 2021)