ML23060A361
| ML23060A361 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 03/01/2023 |
| From: | Gary Arnold, Hawkens E, Nicholas Trikouros Atomic Safety and Licensing Board Panel |
| To: | Epstein E - No Known Affiliation |
| SECY RAS | |
| References | |
| ASLBP 23-977-02-LA-BD01, RAS 56661, 50-320-LA-2, LBP-23-04 | |
| Download: ML23060A361 (0) | |
Text
LBP-23- 04
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD PANEL
Before the Licensing Board:
E. Roy Hawkens, Chair Nicholas G. Trikouros Dr. Gary S. Arnold
In the Matter of Docket No. 50-320-LA-2
TMI-2 SOLUTIONS, LLC ASLBP No.23-977 LA-BD01
(License Amendment Request for Three March 1, 2023 Mile Island Nuclear Station, Unit 2)
MEMORANDUM AND ORDER (Denying Eric Epsteins (1) Petition to Intervene and Hearing Request; and (2) Motion for Leave to File New Contentions)
Pending before this Licensing Board is a challenge by Eric Epstein to a February 19,
2021 request by TMI-2 Solutions, LLC to amend its possession only license for Three Mile
Island Nuclear Station, Unit 2.1 More precisely, we are considering (1) Mr. Epsteins petition to
intervene; 2 and (2) his motion for leave to file new contentions. 3
1 See TMI-2 Solutions, LLC, License Amendment Request Three Mile Island, Unit 2, Decommissioning Technical Specifications, Attach. 1 (Feb. 19, 2021) (ADAMS Accession No. ML21057A046) [hereinafter LAR].
2 See Eric Joseph Epsteins Petition for Leave to Intervene and Hearing Request (dated Nov. 4, 2022) (filed Nov. 3, 2022) [hereinafter Petition].
3 See Petitioner Eric Epsteins Motion for Leave to File New Contentions (Jan. 18, 2023)
[hereinafter Motion].
As discussed below, we deny Mr. Epsteins petition to intervene because we conclude
he lacks standing and fails to proffer an admissible contention. Because Mr. Epstein lacks
standing, we deny his motion to file new contentions.
I. BACKGROUND
This proceeding concerns a challenge to a license amendment request (LAR) submitted
by TMI-2 Solutions, LLC (TMI-2 Solutions) for Three Mile Island Nuclear Station, Unit 2 (TMI-2).
TMI-2 is a defueled, non-operational, pressurized water reactor located in Dauphin County,
Pennsylvania. 4
TMI-2 has not been operational since 1979, when it experienced an accident that
caused severe damage to its reactor core. 5 As a result of this accident, small quantities of
spent nuclear fuel, damaged core material, and high-level waste known as debris material,
see 87 Fed. Reg. at 51,454 n.1 were transported into the reactor coolant system, the reactor
building, and the auxiliary and fuel handling buildings. After the accident, TMI-2 underwent site cleanup to remove debris material from systems and structures.6
In 1990, TMI-2 was defueled, resulting in the removal of approximately 99% of the fuel
load, which was shipped to the U.S. Department of Energys Idaho National Laboratory. See
4 See TMI-2 Solutions, LLC; [TM I-2], 87 Fed. Reg. 51,454, 51,455 (Aug. 22, 2022).
5 See Backgrounder on the Three Mile Island Accident, https://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html (last updated Nov. 15, 2022). Much of the factual background we describe above in text can also be found in the Commissions recent decision in Energy Solutions, LLC, (Zion Nuclear Power Station, Units 1 and 2; Three Mile Island Nuclear Station, Unit 2; et al.), CLI-22-9, 96 NRC 107, 116-19 (2022).
6 See NUREG-0683, Programmatic Environmental Impact Statement Related to Decontamination and Disposal of Radioactive Wastes Resulting from March 28, 1979 Accident
[TMI-2], Final Supplement Dealing with Post-Defueling Monitored Storage and Subsequent Cleanup, Supplement No. 3 (Aug. 1989) (ADAMS Accession No. ML20247F778); see also TMI-2 Cleanup Program, Post-Defueling Monitored Storage ( Dec. 1986) (ADAMS Accession No. ML20214S448).
LAR, Attach. 1 at 2.7The remaining 1 % of the fuel load at TMI-2 (i.e., debris material) is
dispersed in the form of dust-like sediment at the bottom of the plant, hardened material on
components, and films on piping, tanks, and other components. See LAR, Attach. 5 at 5-6.
In 1993, the Nuclear Regulatory Commission (NRC) Staff issued a license amendment
converting TMI-2s operating license to a p ossession only license (POL). 8 That same year, TMI-
2 entered the NRC-approved safe storage condition known as Post-Defueling Monitored
Storage (PDMS) that, the NRC Staff found, established an inherently stable and safe condition
of the facility such that there was no risk to public health and safety.9
In 2021, the POL for TMI-2 was transferred to TMI-2 Solutions to decommission the
facility. See FirstEnergy Companies and TMI-2 Solutions, LLC (Three Mile Island Nuclear
Station Unit 2), CLI-21-02, 93 NRC 70 ( 2021). Decommissioning includes removing the
remaining debris material, decontaminating the structures, and dismantling the remaining
equipment and facilities. See LAR, Attach. 1 at 1-2. TMI-2 Solutions plans to complete
decommissioning activities and release the site by 2037, except for an area set aside, as may
be required, for the storage of residual debris material. See 87 Fed. Reg. at 51,455.
In February 2021, TMI-2 Solutions filed the LAR at issue in this proceeding. See supra
note 1. The LAR seeks to revise the TMI -2 POL and associated te chnical specifications (TS) by
deleting requirements that no longer reflect the plants current conditions and that are no longer
applicable to a facility in decommissioning. See LAR, Attach. 1 at 1; 87 Fed. Reg. at 51, 455.
7 See also SECY-93-238, [TMI-2] Possession Only License Amendment, at 2 (Aug. 24, 1993)
(ADAMS Accession No. ML12257A733); Letter from Gregory H. Halnon, President and Chief Nuclear Officer, GPU Nuclear, Inc., to NRC Document Control Desk, Attach. 1 at 3 (Dec. 12, 2019) (ADAMS Accession No. ML20013E535) [hereinafter PSDAR Rev. 3].
8 See [TMI-2 POL], Amendment No. 45, License No. DPR-73 (Sept. 14, 1933) (ADAMS Accession No. ML20029E535).
9 See PSDAR Rev. 3 at 1; [TMI-2 POL] No. DPR-73, Docket No. 50- 320, Update 10 of the
[PDMS] Safety Analysis Report (Aug. 23, 2013) (ADAMS Accession No. ML13238A221).
The LAR also seeks to modif y the existing license to enable the transition of TMI-2 from a
PDMS stage to a decommissioning stage in support of Phase 1b and Phase 2 decommissioning
activities. 10Finally, t he LAR states that the proposed amendments meet the regulatory criteria
for a categorical exclusion, which exempts the agency (and, hence, the licensee) from
conducting an environmental review. See LAR, Attach. 1 at 76-77.
On August 22, 2022, the NRC Staff published a Federal Register Notice that described
TMI-2 Solutions LAR, discussed the Staffs proposal to determine the LAR involves no
significant hazards consideration in accordance with 10 C.F.R. § 50.92(c), and informed the
public of the opportunity to petition to intervene and request a hearing. See 87 Fed. Reg. at
51,454.
On November 3, 2022, Mr. Epstein filed a timely petition to intervene. See supra note 2.11 His pro se petition proffers two related contentions asserting that the LAR should be denied
because it fails to consider the potential harm to the surrounding area, including harm from re-
criticality, that may result from airplane crashes, explosions, fires, or terrorist attacks. See
Petition at 22, 28.
10 See 87 Fed. Reg. at 51,455. TMI-2 decommissioning will occur in three phases. Phase 1a (which is not the subject of this LAR) consists of decommissioning preparation, which includes,
for example, procurement of decommissioning materials and the installation of temporary infrastructure. See LAR, Attach. 1 at 2. Phase 1b consists of debris material recovery and source term reduction, which include the recovery, packaging, and storing of debris material and the reduction of the overall radiological source term at TMI-2 to levels that are consistent with a typical nuclear reactor at the end of its operational life. See id. Phase 2 consists of decommissioning and dismantling the site to a level that permits site release, except for an area potentially set aside for storage of debris material at the onsite Independent Spent Fuel Storage Installation. See id. Phase 3 ( which is also not the subject of this LAR) involves debris material management, license termination, and site restoration. See id.
11 Although Mr. Epsteins petition is dated November 4, 2022, see Petition at 1, it was received through the NRCs E-Filing System on November 3, 2022. Mr. Epstein previously had received a two-week extension of time for the filing of his petition, from October 2 1, 2022, to November 4, 2022. See Order of the Secretary of the Commission, Extending Deadline to Request for Hearing (Oct. 20, 2022).
On November 28, 2022, TMI-2 Solutions and the NRC Staff filed answers opposing Mr.
Epsteins petition, arguing that he lack ed standing and failed to proffer an admissible
contention. 12
On December 6, 2022, Mr. Epstein still appearing pro se filed an untimely reply
averring that, contrary to the views of TMI-2 Solutions and the NRC Staff, he has standing and his two contentions are admissible.13
On January 18, 2023, Mr. Epstein, now represented by counsel, 14 filed a motion for
leave to file new contentions. See supra note 3. 15
On January 19, 2023, this Board held oral argument on standing and contention
admissibility. See Official Transcript of Proceedings, [NRC], TMI-2 Solutions, [LLC], Docket No.
50- 320- LA-2 (Jan. 19, 2023) [hereinafter Tr.]. Mr. Epstein was represented by counsel at the
argument. See Tr. at 2.
12 See TMI-2 Solutions Answer Opposing Petition for Leave to Intervene and Hearing Request Filed by Eric Joseph Epstein (Nov. 28, 2022) [hereinafter TMI -2 Solutions Answer]; NRC Staff Answer to Eric Joseph Epsteins Petition for Leave to Intervene and Hearing Request (Nov. 28, 2022) [hereinafter NRC Staffs Answer].
13 See Reply of Eric Joseph Epstein to TMI-2 Solutions, LLC and the [NRCs] Answer Opposing the Petition of Eric Joseph Epstein for Leave to Intervene and for a Hearing (Dec. 6, 2022)
[hereinafter Reply]. Mr. Epsteins reply was due by December 5, 2022. S ee Licensing Board Memorandum and Order (Initial Prehearing Order) at 2 (Nov. 14, 2022) (unpublished). Because neither TMI-2 Solutions nor the NRC Staff timely moved to strike the untimely reply, and in consideration of Mr. Epsteins pro se status at the time he filed his reply, we will exercise our discretion to consider it in our standing and contention admissibility analyses.
14 Mr. Epsteins counsel entered an appearance on January 10, 2023. See Motion at 4.
15 On February 13, 2023, TMI-2 Solutions and the NRC Staff filed answers opposing Mr.
Epsteins motion. See TMI-2 Solutions Answer Opposing Petitioners Motion to File New Contentions (Feb. 13, 2023) [hereinafter TMI-2 Solutions Answer to Motion]; NRC Staff Answer to Petitioner Eric Epsteins Motion for Leave to File New Contentions (Feb. 13, 2023)
[hereinafter NRC Staffs Answer to Motion]. On February 21, 2023, Mr. Epstein filed a reply.
See Petitioner Eric Epsteins Reply Brief in Support of Motion for Leave to File New Contentions (Feb. 21, 2023).
II. ANALYSIS
A petitioner seeking to intervene in a licensing proceeding must (1) demonstrate
standing pursuant to 10 C.F.R. § 2.309(d) ; and (2) proffer a contention that satisfies th e
admissibility criteria in 10 C.F.R. § 2.309(f). See 10 C.F.R. § 2.309(a). As discussed infra Parts
II.A and II.B, we conclude that Mr. Epstein fails to satisfy either requirement, and we therefore
deny his petition. B ecause Mr. Epstein lacks standing, we deny his motion for leave to file new
contentions. See infra Part II.C.
A. Standing
- 1. Standards for Establishing Standing
Pursuant to the NRCs regulatory standing requirements, a petitioners hearing request
must include:
(i) The name, address and telephone number of the requestor or petitioner;
(ii) The nature of the requestors/petitioners right under the [Atomic Energy Act]
to be made a party to the proceeding;
(iii) The nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; and
(iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors/petitioners interest.
10 C.F.R. § 2.309(d)(1)(i)- (iv).
In determining whether a petitioner has satisfied the above standing requirements, the
Commission applies contemporaneous judicial concepts of standing. See Georgia Institute of
Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 115 (1995). The se
concepts require a petitioner to allege (1) an actual or threatened, concrete and particularized
injury, that (2) is fairly traceable to the challenged action, (3 ) falls among the general interests
protected by the Atomic Energy Act (or other applicable statute, such as the National
Environmental Policy Act), and (4) is likely to be redressed by a favorable decision. Sequoyah
Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-02, 53 NRC 9, 13 (2001). The
requirement that an alleged injury or threat of injury be concrete and particularized necessarily
means that it must not be conjectural or hypothetical. Seq uoyah Fuels Corp. and General
Atomics (Gore, Oklahoma Site), CLI 12, 40 NRC 64, 72 (1994). Further, a determination
that an alleged injury is fairly traceable to the challenged action requires a petitioner to show
that the chain of causation is plausible. Id. at 75. Relatedly, in a license amendment
proceeding, the petitioner cannot obtain standing by simply alleging, without substantiation, that
the proposed amendments will result in offsite radiological harm, see Commonwealth Edison
Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-0 4, 49 NRC 185, 192 (1999); rather,
the petitioner must specify how the particular license amendments at issue would increase the
risk of an offsite release of radioactive fission products. Id. at 189 (emphasis omitted).
As an alternative to applying traditional judicial concepts of standing, the Commission
has, in a limited category of proceedings, recognized a proximity presumption in favor of
standing for persons who [reside or] have frequent contacts within a 50- mile radius of a nuclear
power plant. PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-07, 71 NRC 133,
138 ( 2010). The Commission has explained that t his presumption rests on our finding, in
construction permit and operating license cases, that persons living within the roughly 50 -mile
radius of the facility face a realistic threat of harm if a release from the facility of radioactive
material were to occur. Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating
Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI 20, 70 NRC 911, 917 (2009)
(internal quotation marks omitted).16
But aside from reactor licensing proceedings involving construction permits and
operating licenses, the applicability of the proximity presumption is determined on a case-by-
case basis. Exelon Generation Co., LLC and PSEG Nuclear, LLC (Peach Bottom Atomic
16 The 50-mile proximity presumption is simply a shortcut for determining standing in certain cases. Calvert Cliffs, CLI-09-20, 70 NRC at 917. This shortcut satisfies contemporaneous judicial concepts of standing and promotes efficiency in the adjudicatory process. See id.
Power Station, Units 2 and 3), CLI 26, 62 NRC 577, 580 (2005). In making this case-specific
determination, the pertinent question is whether the kind of action at issue, when considered in
light of the radioactive sources at the plant, justifies a presumption that the licensing action
could plausibly lead to the offsite release of radioactive fission products.... Id. at 581
(internal quotation marks omitted). The petitioner must show that the particular licensing action
raises an obvious potential for offsite consequences. Id. (internal quotation marks omitted).
Finally, when conducting its standing analysis, a licensing board must be mindful to
construe the [intervention] petition in favor of the petitioner. Georgia Tech, CLI-95-12, 42 NRC
at 115. Additionally, a pro se petitioners pleadings will not be held to the same standards of
clarity and precision to which a lawyer might reasonably be expected to adhere. Florida Power
& Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-15-25, 82 NRC 389,
394 (2015) (internal quotation marks omitted). Whether pro se or not, however, the petitioner
bears the burden to set forth a coherent argument supported by plausible facts sufficient to establish standing. See id.17
- 2. Mr. Epstein Fails to Establish Standing
Mr. Epstein claims he has established standing under (1) the proximity presumption; and
(2) traditional judicial concepts. See Petition at 9-15. 18 In support of this claim, he states he
17 A licensing board need not accept assertions from a petitioner that are conclusory, conjectural, or otherwise untenable. See Consumers Energy Co., Nuclear Management Co.,
LLC, Entergy Nuclear Palisades, LLC, and Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 410 (2007); Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-00-0 5, 51 NRC 90, 98 (2000). Rather, a licensing board shall, where appropriate, weigh the information provided to determine whether a standing element is satisfied. Bell Bend, CLI-10-0 7, 71 NRC at 139.
18 Mr. Epstein also asserts he should be granted discretionary intervention pursuant to 10 C.F.R. § 2.309(e). See Petition at 16. We summarily reject that assertion. Although discretionary intervention may be granted in limited circumstances when a petitioner has failed to demonstrate standing as a matter of right, a request for such intervention will not be considered unless another petitioner has established standing and at least one admissible contention has been admitted so that a hearing will be held. 10 C.F.R. § 2.309(e). Because Mr. Epstein is the sole petitioner here, this threshold requirement has not been satisfied and,
lives within twelve miles of TMI-2 and that his personal and professional activities bring him
within five miles of the facility on a regular basis. See id. at 11. He asserts that granting the
LAR will revise the license conditions in ways that will adversely impact his health and safety.
See id. at 10, 11, 15.
In response, TMI-2 Solutions and the NRC Staff argue that Mr. Epstein fails to establish
standing under either the proximity presumption or traditional judicial concepts. See TMI-2
Solutions Answer at 13-17 ; NRC Staffs Answer at 10- 14. We agree.
- a. Mr. Epstein Fails to Establish Proximity Standing
At the outset, we observe that Mr. Epstein misapprehends the proximity presumption
rule. He argues that he is entitled to rely on that rule in this reactor licensing case because he
resides and has frequent contacts within a 50-mile radius of TMI-2. See Petition at 13, 15.
Contrary to Mr. Epsteins understanding, the 50- mile presumption applies only in reactor
licensing proceedings that are akin to construction permits and operating licenses, where the
Commission has found that petitioners face a realistic threat of harm if a release of radioactive
material were to occur. See Calvert Cliffs, CLI- 09-20, 70 NRC at 917. This license amendment
proceeding involving a permanently shut down and defueled reactor is not analogous to such
cases. See Zion, CLI-99-4, 49 NRC at 191 ( [G]iven the shutdown and defueled status of the
units, the license amendments do not on their face present any obvious potential of offsite
radiological consequences.).
Accordingly, if Mr. Epstein wishes to invoke proximity st anding, he must show that this
particular LAR, when considered in light of the radioactive sources at TMI -2, justifies a
presumption that the licensing action could plausibly lead to the release of radioactive fission
accordingly, Mr. Epstein is not eligible to seek discretionary intervention. See Exelon Generation Co., LLC; Exelon Corp.; et al. (Braidwood Station, Units 1 and 2; Byron Station, Units 1 and 2; et al.), CLI-22-0 1, 95 NRC 1, 21 (2022) (denying Mr. Epsteins request for discretionary intervention for the same reason).
products with an obvious potential for offsite consequences that will adversely affect him. See
Peach Bottom, CLI-05-26, 62 NRC at 580, 581. Mr. Epstein fails to make this showing.
Without identifying the specific license amendments that he deems objectionable, Mr.
Epstein asserts that granting the LAR will (1) dismantle the safety-in-depth protocol; (2) weaken
the design and management of equipment; (3) delete and modify the TS for PDMS, surveillance
requirements, and administrative controls, as well as several license conditions; and (4) permit
the storage of high-level radioactive waste at the site for an indefinite period. See Petition at 10,
11, 15. These changes, he claims, will expose him to harmful radiological exposure. See id. at
10, 11.
Mr. Epsteins claim is unacceptably conclusory and conjectural. It was incumbent on
him to demonstrate some plausible chain of causation specifying how these particular license
amendments have an obvious potential to cause offsite radiological consequences. See Zion,
CLI-99-0 4, 49 NRC at 192. Mr. Epstein simply provides a list of general objections and then
asserts, without explanation or su pport, that the LAR, if granted, would result in offsite
radiological exposure. See Petition at 10, 11, 15. That is not sufficient. As the Commission
held in the Zion decision, [a] petitioner cannot seek to obtain [proximity] standing in a license
amendment proceeding simply by enumerating the proposed license changes and alleging
without substantiation that the changes will lead to offsite radiological consequences. Zion,
CLI 04, 49 NRC at 192.
The Commissions decision in Zion also provides compelling fact-specific support for
rejecting Mr. Epsteins assertion of proximity standing. In Zion, as here, a petitioner sought to
invoke proximity standing to challenge the LAR for a permanently shut down and defueled reactor.19 See Zion, CLI-99-04, 49 NRC at 187. There, as here, the LAR sought to make
19 In the instant case, 99% of the fuel load has been removed from the TMI -2 site and is being stored in Idaho by the U.S. Department of Energy. See LAR, Attach. 1 at 2.
technical and administrative changes to the license that would reflect the plants shutdown and
defueled condition.20See id. at 190. In declining to recognize proximity standing in Zion, the
Commission stated that given the shutdown and defueled status of [this facility], the license
amendments do not on their face present any obvious potential for offsite radiological
consequences. Id. at 191 (internal quotation marks omitted). That rationale applies with equal force here and supports our reject ion of proximity standing. 21Accord Exelon Generation Co.,
LLC (Three Mile Island Nuclear Station, Units 1 and 2), LBP-20-02, 91 NRC 10, 30, affd on
other grounds, CLI-20-10, 92 NRC 327 (2020).
- b. Mr. Epstein Fails to Satisfy Traditional Concepts of Standing
Having concluded that Mr. Epstein fails to establish proximity standing, our standing
inquiry reverts to a traditional standing analysis.... Peach Bottom, CLI 26, 62 NRC at
581. As discussed supra Part II.A.1, the traditional standing analysis includes a causation
component that, in the instant case, requires Mr. Epstein to show how the alleged injury (offsite
radiological release) is fairly trac eable to the LAR. More specifically, Mr. Epstein has the burden
of demonstrating a plausible chain of causation specifying how the particular license
amendments at issue would increase the risk of an offsite release of radioactive fission
products. Zion, CLI-99-0 4, 49 NRC at 189; accord International Uranium (USA) Corp. (White
20 Here, the proposed license amendments include the following changes: (1) eliminate TS that are no longer applicable based on the current plant radiological conditions and updated safe fuel mass limits; (2) delete or modify licensing requirements consistent with 10 C.F.R § 50.36 to enable TMI-2 to transition from a PDMS condition to that of a facility undergoing decommissioning; and (3) relocate administrative controls to the Decommissioning Quality Assurance Program and subsequently control them in accordance with 10 C.F.R. § 50.54(a) pursuant to the criteria in 10 C.F.R. § 50.36. See 87 Fed. Reg. at 51,455.
21 The decision in Zion appears to be an a fortiori case for rejecting proximity standing here.
There, the Commission denied proximity standing to a petitioner who claimed that (1) his residence was within 81/2 miles of the plant; and (2) his activities took him to within 1 mile of the plant. See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), LBP-98-27, 48 NRC 271, 273-74 (1998), affd, CLI-99-04, 49 NRC at 191-93. In contrast, Mr. Epsteins argument for proximity standing is based on his claim that (1) he lives within 12 miles of TMI-2; and (2) his activities bring him within 5 miles of the plant. See Petition at 11.
Mesa Uranium Mill), CLI 21, 54 NRC 247, 251 (2001) ( stating that a petitioner must show
the amendment will cause a distinct new harm or threat apart from the activities already
licensed to satisfy the causation component in a license amendment proceeding) (internal
quotation marks omitted). Mr. Epstein fails to satisfy that burden.
As discussed above in our proximity standing an alysis, Mr. Epsteins unsubstantiated
assertions that several license amendment provisions will cause him harm do not satisfy the
causation component of standing because they fail to provide a plausible chain of causation
specifying how the challenged provisions would increase the risk of an offsite release of
radioactive fission products. See Zion, CLI 04, 49 NRC at 192.22
Mr. Epstein nonetheless attempts to bolster his standing argument by emphasizing his
interest in and knowledge about TMI -2, as reflected in (1) his participation in NRC proceedings
concerning the cleanup, defueling, and decommissioning of TMI-2; and (2) his experience as a
publisher and researcher of documents addressing nuclear issues. See Petition at 14. His
participation in this LAR proceeding, he asserts, would add insight, institutional memory, and
perspective. I d. However, Mr. Epsteins interest and expertise are irrelevant to the standing
analysis. As the Commission explained in the Peach Bottom license transfer proceeding when
it held that Mr. Epsteins mere interest in the Peach Bottom facility did not confer standing :
Although these kinds of involvement demonstrate both Mr. Epsteins general interest in electric and nuclear issues and his particular interest in the Peach Bottom facility, they do not demonstrate injury. It is well established that mere intellectual or academic interest in a facility or proceeding is insufficient, in and of itself, to demonstrate standing.
Peach Bottom, CLI-05-26, 62 NRC at 580; accord Sierra Club v. Morton, 405 U.S. 727, 739
(1972).
22 Although Mr. Epstein asserts that the proposed LAR weakens cleanup by deleting and modifying TS for PDMS, surveillance requirements, and administrative controls, Petition at 15, this conclusory assertion fails to explain how these deletions and modifications would weaken the cleanup or otherwise cause him an injury-in-fact.
Mr. Epstein also cites several studies that examine how the 1979 accident at TMI-2 has
affected the health of nearby residents. See Petition at 14 n.10. According to Mr. Epstein,
these studies support a conclusion that nearby residents inevitably will be exposed to
radiation. Id. at 13. These backward -looking studies, however, are irrelevant to the forward-
looking standing analysis, which requires Mr. Epstein to show how these particular license
amendments would result in a distinct new harm or threat to him. Zion, CLI-99-04, 49 NRC at
192.
Finally, in an effort to support standing, Mr. Epstein suggests that a triggering event
i.e., an airplane crash, explosion, fire, or terrorist attack m ight cause re-criticality of the
residual fuel debris material that m ay result in an offsite radiological release. See, e.g., Petition
at 10. He asserts that the lack of real time emergency preparedness, fire protection, and
radiation monitoring programs will render him vulnerable to radiological harm. Id. But Mr.
Epstein fails to show that the proposed LAR will affect emergency preparedness, fire protection, or radiation monitoring programs in a manner that would expose him to radiological harm.23Nor
does he show how the proposed LAR would increase the possibility of re-criticality. This failure
to show a plausible chain of causation between the LAR and a particularized injury is fatal to Mr.
Epsteins effort to establish standing. See Sequoyah Fuels Corp. and General Atomics, CLI-94-12, 40 NRC at 75.24
23 As previously mentioned, supra note 20, the challenged LAR proposes to remove or revise certain license conditions and TS requirements to reflect current plant conditions at TMI-2 and to support decommissioning.
24 Because Mr. Epstein fails to provide a plausible causative link between the challenged LAR and his asserted injury, he has not demonstrated that denying the LAR, the only remedy he seeks, would prevent that injury. He thus also fails to satisfy the redressability component of standing. See Zion, CLI-99-0 4, 49 NRC at 196 (finding petitioners redressability argument unpersuasive because [d]enial of the current license amendments, the only remedy [petitioner seeks], would do nothing to [redress the alleged injury]).
- 14 -
B. Contention Admissibility
Although Mr. Epsteins failure to establish standing suffices to deny his petition, for the
sake of completeness we also consider the admissibility of his two contentions. As discussed
below, we conclude that neither contention is admissible, which serves as an alternative ground
for denying his petition.
- 1. Contention Admissibility Standards
To be admissible, a timely-filed contention must satisfy each of the following regulatory
criteria:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted... ;
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention 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 which support the [petitioners] position on the issue..., together with references to the specific sources and documents on which the [petitioner] intends to rely to support its position on the issue; [and]
(vi) [P]rovide sufficient information to show that a genuine dispute exists with the
[applicant] on a material issue of law or fact. This information must include references to specific portions of the application... that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief....
10 C.F.R. § 2.309(f)(1)(i)- (vi).
The Commissions contention admissibility standard is strict by design, Amer Gen
Energy Co. (Oyster Creek Nuclear Generating Station), CLI 24, 64 NRC 111, 118 (2006)
(quotation marks omitted), and failure to comply with any admissibility requirement renders a
contention inadmissible. Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-0 5, 83
NRC 131, 136 (2016). As the Commission has observed, this agencys stringent contention
admissibility rule properly reserve[s] our hearing process for genuine, material controversies
between knowledgeable litigants. FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear
Power Station, Unit 1), CLI-12-08, 75 NRC 393, 396 (2012) (internal quotation marks omitted).
Although pro se litigants are not held to the standards of clarity and precision to which a
lawyer might reasonably be expected to adhere, they are held to the same specificity
standards. Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 & 2), ALAB-
136, 6 AEC 487, 489 (1973). Thus, c ontentions cannot be based on speculation; they must
have some reasonably specific factual or legal basis. Entergy Nuclear Vermont Yankee, LLC
and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI 20, 82
NRC 211, 221 (2015). Moreover, a contention that simply references documents without clearly
identifying or summarizing portions of the documents that are being relied upon is inadequate.
See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-89-03, 29 NRC
234, 240-41 (1989). Likewise inadequate are generalized assertions, without specific ties to
NRC regulatory requirements... [because they] do not provide adequate support
demonstrating the existence of a genuine dispute of fact or law. U.S. Department of Energy
(High-Level Waste Repository), CLI-09-14, 69 NRC 580, 588 (2009).
- 2. Mr. Epstein Fails to Proffer an Admissible Contention
Mr. Epstein proffers two contentions. Contention 1 asserts that the LAR improperly fails
to consider the potential harm to the surrounding area from airplane crashes, explosions and
fires or terrorist attacks. Petition at 22. Contention 2 is nearly identical to Contention 1, the
only difference being that it expressly includes a re-criticality component, asserting that the LAR
improperly fails to consider the potential harm to the surrounding area from re-criticality due to
airplane crashes, explosions and fires or terrorist attack. Id. at 28.
Although Contention 1 does not expressly mention re-criticality, Mr. Epstein relies on the
alleged possibility of re-criticality as a basis for that contention, asserting that reasonably
foreseeable environmental harm could result [due to] re-criticality from an airline crash,
explosion, fire or terrorist attack. Petition at 22; see also id. at 23. Hence, Contention 1, like Contention 2, includes a re-criticality component. 25 Given the similarity between the two
contentions, we will analyze them together.
Both contentions are contentions of omission,26 alleging that the LAR violates the
National Environmental Policy Act (NEPA) because it improperly fails to consider the potential
harm, including harm from re-criticality, that may result from four triggering events i.e.,
airplane crashes, explosions, fires, or terrorist attacks. See Petition at 22, 28. Mr. Epstein
claims that the LAR fails to consider this potential harm [d]espite TMIs history of fires, security
vulnerabilities, and proximity to an international airport.... Id. at 22; see also id. at 28. This
failure, contends Mr. Epstein, violates NEPAs requirement that environmental decisions must
contain an evaluation of those aspects of a proposed action that will affect the quality of the
human environment in a significant manner or to a significant extent not already considered.
Id. at 22, 28 (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 374 (1989)).27
25 See Tr. at 18 (Mr. Epsteins counsel affirms that it is petitioners position in both contentions that NEPA requires the analysis for airplane accidents, fires, explosions, [and] terrorist attacks which could result in re-criticality.).
26 A contention of omission is one alleging that licensing documents failed to address a topic that, as a matter of law, was required to be discussed. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 and 7), LBP 06, 73 NRC 149, 200 n.53 (2011); see also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-83 (2002).
27 Although Mr. Epstein asserts in passing that the LAR also violates the Atomic Energy Act because it fails to... ensure safe operation during back end of nuclear power production, Petition at 22, the gravamen of his argument is that the LAR violates NEPA because it fails to consider specified environmental impacts associated with the proposed amendments. See id.
at 22, 25, 27, 28, 32, 34. We will therefore analyze his contentions as environmental challenges under NEPA. See DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 146 n.53 (2015) (stating that contentions must be pled with sufficient specificity to put opposing parties on notice of which claims they will actually have to defend).
Even if we were to view Mr. Epsteins contentions as safety challenges, we would reject them as inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(ii), (v), (vi) because he fails to (1) link the LAR to any specific, non-speculative safety concern; or (2) provide an explanation, together with references to relevant supporting sources, sufficient to show that a genuine dispute exists
TMI-2 Solutions and the NRC Staff argue that Mr. Epsteins contentions fail to satisfy the
admissibility criteria in 10 C.F.R. § 2.309(f)(1). See TMI-2 Solutions Answer at 19-25; NRC
Staffs Answer at 20- 24. For the following reasons, we agree.
- a. The Contentions Are Not Admissible Because Mr. Epstein Fails to Address the Categorical Exclusion Discussion in the LAR
Mr. Epstein is correct that the LAR does not include a NEPA analysis regarding the
potential environmental harm to the surrounding area, including harm from re-criticality, that
may result from airplane crashes, explosions, fires, or terrorist attacks. See Petition at 22, 28.
But he fails to acknowledge, much less challenge, the discussion in the LAR where TMI-2
Solutions concludes the proposed amendments meet the regulatory criteria for a categorical
exclusion from environmental review. See LAR, Attach. 1 at 76-77. In rendering its conclusion,
TMI-2 Solutions determined that the proposed amendments (1) involve no significant hazards
consideration; (2) will cause no significant change in the types, or significant increase in the
amounts, of any effluents that may be released offsite; and (3) will cause no significant increase
in individual or cumulative occupational radiation exposure. See id. at 76 (applying the
categorical exclusion criteria in 10 C.F.R. § 51.22(c)(9)(i)- (iii)). TMI-2 Solutions thus concluded
that, [p]ursuant to 10 C.F.R. § 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the proposed amendment. Id. at 77.28If Mr.
Epstein wished to challenge that conclusion, it was incumbent on him to address the analysis in
with the LAR on a material issue of law or fact. See Fermi, CLI-15-18, 82 NRC at 146 n.53 (explaining that the lenient treatment generally accorded to pro se litigants has limits, and [a]
contentions proponent, not the licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis requirements for the admission of contentions) (citations omitted).
28 TMI-2 Solutions analyses in the LAR, including its categorical exclusion determination, will be assessed by the NRC Staff incident to its review of the LAR. See NRC Staffs Answer at 21 n.127; Tr. at 70.
the LAR and to show, with specificity, why the categorical exclusion does not apply.29 This he
failed to do. Accordingly, his contentions are not admissible pursuant to 10 C.F.R.
§ 2.309(f)(1)(vi) because they fail to show a genuine dispute with the LAR on a material issue of
law or fact. 30
The Commissions recent decision in Three Mile Island compels this result. As relevant
here, the petitioners in that case proffered a contention arguing that the LAR did not satisfy
NEPA because it failed to include an adequate environmental review. See Exelon Generation
Co, LLC (Three Mile Island Nuclear Station, Units 1 and 2), CLI-20-10, 92 NRC 327, 331
(2020). There, as here, the licensee included a categorial exclusion analysis in the LAR and
determined that no additional environmental review was necessary. See id. There, as here, the
petitioners failed to address the licensees categorical exclusion analysis, see id. at 331-32,
thus failing to fulfill their ironclad obligation to review the [LAR] thoroughly and to base their
challenges on its contents, as required by 10 C.F.R. § 2.309(f)(1)(vi). Three Mile Island, LBP -
20-0 2, 91 NRC at 38 (internal quotation marks omitted). The licensing board therefore rejected
the contention pursuant to section 2.309(f)(1)(vi) for failing to raise a genuine dispute with the
LAR. See id. On appeal, the Commission affirmed the licensing boards rationale and holding.
29 See Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), LBP-15-26, 82 NRC 163, 181 (2015) (explaining that an applicants categorical exclusion determination can be challenged by, inter alia, affirmatively showing the existence of special circumstances pursuant to section 51.22(b) that would justify excepting the proposed license amendment from the categorical exclusion); accord Paina Hawaii, LLC, LBP 04, 63 NRC 99, 112-13 ( 2006).
30 We acknowledge that Mr. Epstein asserts the TMI-2 site is unique [because, for example,]
the community has already been exposed to radiation releases from meltdown. Petition at 18.
But his pleadings fail to argue, or even suggest, that TMI-2s alleged uniqueness, Reply at 3 (unnumbered), equates to special circumstances that justify excepting the LAR from a categorical exclusion. See supra note 29. Simply stated, Mr. Epsteins pleadings, fairly read, give no inkling that he is challenging TMI-2 Solutions categorical exclusion analysis. For that reason, we cannot credit his counsels assertion that Mr. Epsteins pleadings impl[y] an exception to categorical exclusion. Tr. at 20. A pro se petitioner may be entitled to greater leeway when a tribunal construes his pleadings, but those pleadings must meet some minimum threshold in providing respondents with notice of what is at issue. See Fermi, CLI-15-18, 82 NRC at 146 n.53.
See CLI-20-10, 92 NRC at 332. The Commissions decision is on all fours with this case and mandates that we reject Mr. Epsteins contentions pursuant to section 2.309(f)(1)(vi).31
- b. Alternative Reasons Why The Contentions Are Inadmissible
Even assuming, for the sake of argument, that the Commissions decision in Three Mile
Island did not compel us to reject Mr. Epsteins contentions, we would find them inadmissible for
the following alternative reasons.
First, both contentions assert that the LAR improperly fails to consider the potential harm
that might result if a triggering event i.e., a terrorist attack, an explosion, a fire, or an airplane
crash were to cause re-criticality. See Petition at 22, 28. This argument ignores the LARs
conclusion that re-criticality is not possible under any circumstance. See LAR, Attach. 1 at 62,
68, 69, 74; LAR, Attach. 5 at 5. TMI -2 is a defueled facility and 99% of the fuel has been
removed from the site. See LAR, Attach. 5 at 5. The LAR estimates that the remaining 1% of
debris material consists of 1097 kilograms (kg) of residual uranium dioxide (UO2), with the bulk residing in the lower head of the reactor vessel. See id. at 5-6.32Applying conservatively
estimated masses coupled with a conservative approach to adequately represent the inherent
characteristics of the remaining fuel, id. at 31, the LAR concludes that criticality is not possible:
Even if the expected remaining fissile mass throughout the building (1097 kg UO2), including hold up in all piping and cubicles, were to be brought together, a criticality is not feasible. [Even if ideal conditions for criticality were to occur], it would require fissile mass in excess of that analyzed, which is greater than what is anticipated, in addition to a greatly reduced impurity concentration to present a criticality hazard.
31 Mr. Epstein was a petitioner in the above-cited Three Mile Island case. He thus had notice that his failure to address the categorical exclusion discussion in TMI -2 Solutions LAR would render his contentions inadmissible.
32 The debris material is in the form of finely divided, small particle-size sediment material; re-solidified material either tightly adherent to components or in areas inaccessible to defueling; and adherent films on surfaces contained within piping, tanks, and other components. LAR, Attach. 5 at 5.
Id. 33 Because Mr. Epstein fails to address the calculations and conservatisms embodied in the
LARs criticality analysis, his contentions regarding the possibility of re-criticality must be
rejected for failure to show a genuine dispute with the LAR on a material issue of law or fact.
See 10 C.F.R. § 2.309(f)(1)(vi).34
The component of Mr. Epsteins contentions alleging that the LAR improperly fails to
consider the potential harm to the surrounding area due to a terrorist attack and resultant
explosion, see Petition at 22, 28, is also inadmissible for an alternative reason.35 In support of
that aspect of his contentions, Mr. Epstein cites to the decision by the U.S. Court of Appeals for
33 The NRC Staffs review of TMI-2 Solutions criticality discussion in the LAR will include independent analysis and calculations. Tr. at 76.
34 According to Mr. Epstein, Drs. Rasmussen and Kaku have postulated scenarios about the possibility of re-criticality at TMI-2. See Petition at 23, 29; see also Reply at 4-6 (unnumbered);
id. encl. 1. However, neither individual examined the LAR, see Tr. at 32-33, much less endeavored to rebut the LARs analyses regarding the amount of uranium remaining at the site or the conclusion that re-criticality is impossible. Accordingly, Mr. Epsteins reference to the notional scenarios postulated by these individuals fails to establish a genuine dispute with the LAR. See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) ([A]n expert opinion that merely states a conclusion... without providing a reasoned basis or explanation for that conclusion is inadequate [to support a contention] because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion.... ) ( internal quotation marks omitted).
Nor do Mr. Epsteins references to various studies and NRC Staff Requests for Additional Information (RAIs) strengthen his admissibility argument. See, e.g., Petition at 23-25, 27, 31. By failing to explain how these documents controvert any specific portion of the LAR or otherwise support his claims, Mr. Epstein fails to establish a genuine dispute of law or fact.
See American Centrifuge Plant, CLI-06-10, 63 NRC at 457 (It is simply insufficient, for example, for a petitioner to point to [a study] and expect the Board on its own to discern what particular issue a petitioner is raising, including what section of the application... is being challenged as deficient and why.); PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-15-0 8, 81 NRC 500, 506 n.47 (2015) (Petitioners must do more than rest on the mere existence of RAIs as a basis for their contention. Issuance of an RAI does not alone establish deficiencies in the application, or that the NRC Staff will go on to find any of the Applicants clarifications, justifications, or other responses to be unsatisfactory.)
(citations and internal quotation marks omitted).
35 Mr. Epstein fails to specify how an explosion would occur at TMI-2 in its defueled, non-operational status. We will therefore analyze the explosion component as occurring incident to a terrorist attack.
the Ninth Circuit in San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006),
where the court held that NEPA required the NRC Staffs environmental review to consider the
likely consequences of a potential terrorist attack against a spent fuel storage facility on the
Diablo Canyon reactor site in California. See Petition at 25, 27, 33, 34. Although the
Commission did, of course, comply with the Ninth Circuits decision in the Diablo Canyon
proceeding itself, for licensing matters in other circuits the Commission adheres to its
longstanding view ( which has been affirmed by the U.S. Court of Appeals for the Third Circuit)
that NEPA does not require the NRC to consider the environmental consequences of
hypothetical terrorist attacks on NRC-licensed facilities. See AmerGen Energy Co., LLC (Oyster
Creek Nuclear Generating Station), CLI-07-08, 65 NRC 124, 126, 129 (2007), affd, N.J Dept of Envt Prot. v. NRC, 561 F.3d 132 (3rd Cir. 2009). 36 Mr. Epsteins contrary argument ignores
controlling case law, is beyond the scope of this proceeding, and fails to raise a genuine dispute
with the LAR on a material issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(iii), (vi).
The aspect of Mr. Epsteins contentions alleging that the LAR improperly fails to consider
the potential harm from an airplane crash is likewise inadmissible for an alternative reason. The
Supreme Court has made clear that NEPA requires a reasonably close causal relationship
between the environmental effect and the [ proposed action]. Dept of Transp. v. Pub. Citizen,
541 U.S. 752, 767 (2004) (internal quotation marks omitted); accord, e.g., N.J Dept of Envt
Prot., 561 F.3d at 136. Although Mr. Epstein states that TMI -2 is located near an international
airport, see Petition at 22, 28, he has not shown that there is a reasonably close causal
relationship between the LAR and the environmental effects of an airplane crash, nor does he
show that any aspect of the LAR would increase the risk of an offsite release of radioactivity in
the event of an airplane crash. Accordingly, that component of his contentions fails to raise a
36 TMI-2 is located within the jurisdiction of the U.S. Court of Appeals for the Third Circuit.
genuine dispute with the LAR on a material issue of law or fact, as is required by section
2.309(f)(1)(vi). 37
Finally, Mr. Epstein asserts that the LAR improperly fails to consider the potential harm
from fires. See Petition at 22, 28. He is wrong as a factual matter. The LAR examines multiple
scenarios involving fires at the TMI-2 site, including (1) the impact of a reactor building fire, see
LAR, Attach. 1 at 3-4 ; (2) the impact of various fires outside the reactor building, see id. at 5;
and (3) the impact of a fire involving ion -exchange resins. See id. at 5-7 ; see also 87 Fed. Reg.
at 51,456, 51,457 (discussing TMI-2 Solutions radiological analysis of reactor building fire).
Because the LAR addresses the topic that Mr. Epstein contends was improperly omitted, that
aspect of his contentions is inadmissible for failing to raise a genuine dispute, as is required by section 2.309(f)(1)(vi). See supra note 26 ; Tr. at 79.38
C. Mr. Epsteins Motion to File New Contentions is Denied Because He Lacks Standing
On the eve of oral argument for standing and contention admissibility, Mr. Epstein
now represented by counsel, see supra note 14 filed a motion for leave to file two new
contentions. See supra note 3. The crux of the new contentions is that (1) the LAR improper ly
fails to consider water -use restrictions that recently were imposed on TMI, Unit 1, and that may
diminish water availability at TMI-2; and (2) this possible diminishment casts doubt on the LARs
clean-up plan and the conclusion that criticality is not possible. See Motion at 3. Because t he
deadline for filing contentions lapsed in November 2022, see supra note 11, Mr. Epstein argues
37 This rationale also provides an additional ground for rejecting Mr. Epsteins assertion that the LAR improperly fails to consider the potential harm from an explosion. See Petition at 22, 28.
38 The fire scenarios examined in the LAR were analyzed in the context of considering the safety impact of plausible accidents. For example, as TMI-2 Solutions explained in its response to an RAI: The most limiting scenario, Reactor Building fire, is not based on any specific event.
Its main purpose is to demonstrate that even if [high efficiency particulate air] filtration was bypassed, the event would not exceed 100 mrem to the maximally-exposed individual....
[TMI-2 Solutions, LAR] [ TMI-2], Decommissioning [TS], Response to Questions, Attach. 1 (May 16, 2022 ) (ADAMS Accession No. ML22138A285).
that he satisf ies the good cause standard in 10 C.F.R. § 2.309(c) for filing contentions after the
time for submitting a hearing petition has expired.See Motion at 4. 39
TMI-2 Solutions and the NRC Staff argue that Mr. Epsteins motion should be denied
because he fails to satisfy the good cause standard, his newly proffered contentions are not
admissible, and he lacks standing in any event. See TMI-2 Solutions Answer to Motion at 3-13 ;
NRC Staffs Answer to Motion at 4-11.
We need not resolve the existence of good cause or the admissibility of the new
contentions because, as shown supra Part II.A, Mr. Epstein lacks standing. His failure to
demonstrate standing is fatal to his effort to intervene in this proceeding and mandates that we
deny his motion to file new contentions.
Perhaps recognizing the inadequacy of the standing argument advanced in his pro se
petition, Mr. Epsteins motion seeks leave to file two new documents i.e., settlement
agreements executed by Mr. Epstein in 1992 and 1999 to strengthen his claim of standing.
See Motion at 5; id. at Exhibits 3, 4. Mr. Epstein claims that he could not locate these
documents when he filed his pro se pleadings, but after [he] engaged [the law firm of] Bernabei
& Kabat, his counsel subsequently located them. Id. at 5. Both settlement agreements were
signed by licensees, and one agreement was signed by the NRC Staff, see id., and they
allegedly acknowledge [Mr. Epsteins] special interest in overseeing [TMI -2]. Id. Mr. Epstein
argues that these documents demonstrate his standing pursuant to the principle that pro se
petitioners are held to less rigid pleading standards so that parties with a clear but imperfectly
39 As relevant here, section 2.309(c) states that a licensing board will not entertain requests for leave to file new contentions after the deadline for submitting a hearing petition has passed unless a litigant demonstrates good cause by showing the following: (i ) The information upon which the filing is based was not previously available; (ii) The information... is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion.... 10 C.F.R. § 2.309(c)(1)(i)- (iii).
stated interest in the proceeding are not excluded. Id. (quoting NextEra Energy Seabrook,
LLC (Seabrook Station, Unit 1), LBP 07, 86 NRC 59, 77 (2017)).
Although Mr. Epstein avers that he was unable to locate the settlement agreements when
he filed his pro se pleadings, 40 he was in our view required to at least mention them. Having
failed to do so, he is foreclosed from relying on them in the first instance at this late date. The
principle that a licensing board should be lenient in construing a pro se petitioners pleadings does
not give Mr. Epstein license to disregard procedural rules that are applicable to all parties and
designed to promote fair and efficient adjudication. See Turkey Point, CLI 25, 82 NRC at 397
n.53 ([A]lthough we afford some leniency to pro se petitioners,... we expect [them] to fulfill the
obligations imposed by our rules.) ; accord Southern Nuclear Operating Co., Inc. (Vogtle Electric
Generating Plant, Unit 3), CLI 06, 91 NRC 225, 230 (2020).
Even were we to grant Mr. Epsteins untimely request to file these documents, however,
our conclusion that he lacks standing would remain unchanged. As discussed supra Part II.A.1,
to demonstrate standing, a petitioner bears the burden to set forth a coherent argument
establishing, at an irreducible minimum, the following three elements: injur y, causation, and
redressability. Although Mr. Epstein purportedly has a special interest in overseeing [TMI-2],
Motion at 5, he has not shown how that interest might be injured by the LAR and, accordingly,
he has not demonstrated standing. See Allied-General Nuclear Services, et al. (Barnwell Fuel
Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976). As the Commission has
held, [i]t is well established that mere intellectual or academic interest in a facility or proceeding
is insufficient, in and of itself, to demonstrate standing. Peach Bottom, CLI-05-26, 62 NRC at 580; 41 see also Sierra Club v. Morton, 405 U.S. at 739 ([A] m ere interest in a problem, no
40 But see TMI-2 Solutions Answer to Motion at 12 n.39 (stating that upon receipt of [Mr.
Epsteins] Motion, TMI-2 Solutions readily located both settlement agreements on the Internet and the NRCs Agencywide Documents Access and Management System).
41 Mr. Epstein was the petitioner in the Peach Bottom proceeding to whom the Commission applied this well-established principle.
- 25 -
matter how longstanding the interest and no matter how qualified the organization is in
evaluating the problem, is not sufficient by itself to render the organization adversely affected
or aggrieved within the meaning of the [Administrative Procedure Act].) ; supra Part II.A.2.b. 42
III. CONCLUSION
For the foregoing reasons, we (1) deny Mr. Epsteins p etition to intervene; (2) deny Mr.
Epsteins motion to file new contentions; and (3) terminate this proceeding.
Pursuant to 10 C.F.R. § 2.311, any appeal to the Commission from this Memorandum
and Order must be filed within 25 days after service of this issuance.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
E. Roy Hawkens, Chair ADMINISTRATIVE JUDGE
/RA/
Nicholas G. Trikouros ADMINISTRATIVE JUDGE
/RA/
Dr. Gary S. Arnold ADMINISTRATIVE JUDGE
Rockville, Maryland March 1, 2023
42 Mr. Epsteins longstanding interest in TMI-2 is evidenced by his extensive participation in matters relating to TMI -2s clean-up, defueling, and decommissioning. See Petition at 11-12,
- 14. Our conclusion that he does not meet the requirements for a hearing on this LAR does not preclude him from continuing to evince that interest by, e.g., participating in public meetings, serving on citizen advisory groups, or filing requests for a licensing action. See 10 C.F.R.
§ 2.206(a).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
In the Matter of )
)
TMI-2 Solutions, LLC ) Docket No. 50-320-LA-2
)
(License Amendment Request for Three Mile )
Island Nuclear Station, Unit 2) )
)
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing MEMORANDUM and ORDER (Denying Eric Epsteins (1) Petition to Intervene and Hearing Request; and (2) Motion for Leave to File New Contentions) (LBP-23-04) 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 General Counsel Mail Stop: O-16B33 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov Angela B. Coggins Julie G. Ezell U.S. Nuclear Regulatory Commission Adam S. Gendelman Office of the Secretary of the Commission Travis C. Jones Mail Stop: O-16B33 Catherine E. Kanatas Washington, DC 20555-0001 Mauri T. Lemoncelli E-mail: hearingdocket@nrc.gov Ethan P. Licon Joseph D. McManus U.S. Nuclear Regulatory Commission Kevin C. Roach Atomic Safety and Licensing Board Panel David E. Roth Mail Stop: T-3F23 Susan H. Vrahoretis Washington, DC 20555-0001 E-mail: Angela.Coggins@nrc.gov E. Roy Hawkens, Chairman Julie.Ezell@nrc.gov Nicholas G. Trikouros, Administrative Judge Adam.Gendelman@nrc.gov Dr. Gary S. Arnold, Administrative Judge Travis.Jones@nrc.gov.
Noel M. Johnson, Law Clerk Catherine.Kanatas@nrc.gov Emily G. Newman, Law Clerk Mauri.Lemoncelli@nrc.gov Alison R. Wood, Law Clerk Ethan.Licon@nrc.gov E-mail: Roy.Hawkens@nrc.gov Joseph.McManus@nrc.gov Nicholas.Trikouros@nrc.goc Kevin.Roach@nrc.gov Gary.Arnold@nrc.goc David.Roth@nrc.gov Noel.Johnson@nrc.gov Susan.Vrahoretis@nrc.gov Emily.Newman@nrc.gov Alison.Wood@nrc.gov Counsel for TMI Solutions, LLC Hogan Lovells US, LLP 555 13th Street, NW Washington, DC 20004 Daniel F. Stenger Stephanie Fishman E-mail: daniel.stenger@hoganlovells.com Stephanie.Fishman@hoganlovells.com
THREE MILE ISLAND NUCLEAR STATION, UNIT 2 - Docket No. 50-320-LA-2 MEMORANDUM and ORDER (Denying Eric Epsteins (1) Petition to Intervene and Hearing Request; and (2) Motion for Leave to File New Contentions) (LBP-23-04)
Energy Solutions, LLC 299 South Main Street, Suite 1700 Salt Lake City, UT 84111 Russ Workman, General Counsel E-mail: rgworkman@enrgysolutions.com
Eric Epstein 4100 Hillsdale Road Harrisburg, PA 17112 E-mail: epstein@efmr.org
Office of the Secretary of the Commission
Dated at Rockville, Maryland this 1st day of March 2023
2