View source for ASLBP 20-962-01-LA-BD01, NRC Staff Answer Opposing Epstein Motion

{{Adams
| number = ML20072R746
| issue date = 03/12/2020
| title = NRC Staff Answer Opposing Epstein Motion
| author name = Augustus R, Gamin K
| author affiliation = NRC/OGC
| addressee name = 
| addressee affiliation = NRC/OCM
| docket = 05000289, 05000320
| license number = 
| contact person = SECY RAS
| case reference number = 50-289-LA, 50-320-LA, ASLBP 20-962-01-LA-BD01, RAS 55609
| document type = Legal-Pleading
| page count = 10
}}

=Text=
{{#Wiki_filter:March 12, 2020 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of EXELON GENERATION COMPANY, LLC                                    Docket Nos. 50-289 50-320 (Three Mile Island Nuclear Station, Units 1 and 2)
NRC STAFF ANSWER OPPOSING EPSTEIN MOTION I. INTRODUCTION The staff of the U.S. Nuclear Regulatory Commission (NRC) hereby answers the Motion to Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition filed on February 16, 2020 by Eric J. Epstein (the Epstein Motion). This motion appears to appeal the Atomic Safety and Licensing Board decision in LBP-20-2, which found that Mr. Epstein and Three Mile Island Alert, Inc. (together, Petitioners) had neither established standing to intervene in this licensing proceeding for Three Mile Island nor proffered an admissible contention.
Because the Epstein Motion has not shown any error of law or abuse of discretion in LBP-20-2, the Commission should affirm the Boards decision.
II. BACKGROUND A. Nature of Licensing Proceeding This proceeding concerns a license amendment request (LAR) and associated exemption request submitted by Exelon Generation Company, LLC (Exelon) for Three Mile

2 Island Nuclear Station (TMI). 1 The amendment and associated exemption request, if approved by the NRC, would alter TMIs site emergency plan and Emergency Action Levels to account for the permanently defueled condition of TMI Unit 1, which ceased operation in September 2019. 2 TMI 2, the second of two units present at the TMI site, has not been operational since its March 1979 accident and has been permanently defueled since April 1990. 3 Petitioners filed a timely hearing request on the LAR and exemption request. 4 Petitioners proffered two contentions asserting the need for financial assurance and for environmental review of the proposed amendment and exemptions. 5 The Secretary of the Commission referred the petition to the Atomic Safety and Licensing Board Panel on December 5, 2019, 6 and a Board was established shortly thereafter. 7 The NRC Staff (Staff) and Exelon each filed an answer to the petition, to which Petitioners did not reply. 8 1 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk, at 2 (July 1, 2019)
(ML19182A182) (LAR); Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (July 1, 2019) (ML19182A104) (Exemption Request).
2 Letter from Michael P. Gallagher (Exelon) to NRC Document Control Desk (Sept. 26, 2019)
(ML19269E480) (Certification of Permanent Removal of Fuel from the Reactor Vessel for Three Mile Island Nuclear Station, Unit 1).
3 See Letter from Gregory H. Halnon (GPU Nuclear, Inc.) to NRC Document Control Desk (December 4, 2015) (Three Mile Island Nuclear Station, Unit 2 - Revision to Post-Shutdown Decommissioning Activities Report), Attachment at 4-5 (ML15338A222) (TMI 2 PSDAR); see also SECY-93-238, Three Mile Island Nuclear Station, Unit 2 Possession Only License Amendment, at 2 (ML12257A733) (non-public).
4 Eric J. Epstein, Chairman of Three Mile Island, Alert Inc.s Petition to Intervene and Hearing Request (Nov. 12, 2019) (Petition).
5 Petition at 28, 40.
6 Memorandum from Annette L. Vietti-Cook (Secretary of the Commission) to E. Roy Hawkens (Chief Administrative Judge, Atomic Safety and Licensing Board Panel), Request for Hearing Submitted with Respect to the License Amendment Application of Exelon Generation Company, LLC for Three Mile Island, Units 1 and 2 (Dockets Nos. 50-289 and 50-320) (Dec. 5, 2019) (ML19339E781).
7 Exelon Generation Co., LLC (Three Mile Island Nuclear Power Station, Units 1 and 2), Establishment of Atomic Safety and Licensing Board (Dec. 9, 2019) (ML19343B174).
8 NRC Staff Answer to Three Mile Island Alert Petition (Dec. 6, 2019) (ML19340C563); Exelon Generation Company, LLCs Answer Opposing Eric J. Epsteins and Three Mile Island Alert Inc.s Petition to Intervene (Dec. 9, 2019) (ML19343C738).

3 B. Board Decision On January 23, 2020, the Board denied the intervention petition. 9 The Board found that Mr. Epstein had not established standing under the proximity presumption or demonstrated the injury-in-fact necessary for traditional standing. 10 For similar reasons, the Board found that Three Mile Island Alert, Inc. had not established standing because it failed to satisfy the first requirement of representational standing, namely, that its members would otherwise have standing to sue in their own right. 11 The Board ruled that Contention 1, in which Petitioners claimed the LAR did not provide financial assurance, was inadmissible because, at a minimum, it was beyond the scope of the proceeding and thus did not fulfill the admissibility criterion in 10 C.F.R. &sect; 2.309(f)(1)(iii). 12 The Board found Contention 2, in which Petitioners asserted the need for environmental review of the LAR, inadmissible because Petitioners failed to show that a genuine dispute exists with the
[LAR] on a material issue of law or fact or to include references to specific portions of the
[LAR]. 13 Finally, the Board found that none of the additional arguments in the petition related to the TMI site could be construed as an admissible contention. 14 C. Procedural Posture of the Epstein Motion Through their motion, filed before the Board on February 16, 2020, Petitioners assert that they should be found to have standing, their contentions should be admitted, the LAR should be 9 Exelon Generation Co., LLC (Three Mile Island Nuclear Power Station, Units 1 and 2), LBP-20-2, 91 NRC __ (Jan. 23, 2020) (slip op. at 2).
10 Id. at __, (slip op. at 17).
11 Id. at __ (slip op. at 18) (citing Private Fuel Storage, LLC, (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999). The Board also explained that discretionary standing under 10 C.F.R. &sect; 2.309(e) was not available to Petitioners because it is not an independent basis to establish standing. Id. at __, (slip op. at 14, 19).
12 LBP-20-2, 91 NRC at __ (slip op. at 21).
13 Id. at __ (slip op. at 26) (quoting 10 C.F.R. &sect; 2.309(f)(1)(vi)).
14 Id. at __, (slip op. at 26-28).

4 denied, and this proceeding should be held in abeyance until updated Emergency Action Levels and an updated site emergency plan are submitted. 15 Because the Epstein Motion requests that the proceeding be held in abeyance, the Board considered it as a motion to stay in accordance with 10 C.F.R. &sect; 2.342(a). 16 Alternatively, because the motion was filed before the Board challenging the Boards decision in LBP-20-2, the Board considered it as a motion for reconsideration of that decision in accordance with 10 C.F.R. &sect; 2.323(e). 17 The Board found that, whether construed as a motion for reconsideration or to stay, the Epstein Motion was untimely under the regulations in 10 C.F.R. &sect; 2.323(e) and 10 C.F.R. &sect; 2.342(a) because it was filed more than ten days after the Boards January 23, 2020 decision, without a showing of good cause for untimeliness. 18 Noting a third possibility that the Epstein Motion could be construed as an appeal under 10 C.F.R. &sect; 2.311, the Board referred the motion to the Commission for whatever further action it may deem appropriate. 19 In response to a Staff motion for clarification, 20 the Secretary of the Commission granted the Staff and Exelon 25 days from the filing of the Epstein Motion in which to respond. 21 15 Motion to Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition (Feb. 18, 2020) (Epstein Motion) (ML20047A004). Although the pleading is dated February 18, 2020, the document was electronically filed on February 16, 2020. Mr. Epstein also reasserts his claim below that the NRCs approval of the LAR should be contingent on the NRC executing a memorandum of understanding related to the service agreement between the two units at TMI. Id. at 22.
16 Exelon Generation Co., LLC (Three Mile Island Nuclear Power Station, Units 1 and 2), Memorandum and Order (Denying Motion for Stay and to Reply to Licensing Board Decision and Referring Pleading to the Commission) at 2 (Feb. 19, 2020) (ML20050E118) (unpublished) (Board Order Denying Motion).
17 Board Order Denying Motion at 3.
18 Id. at 2, 3. In addition, the Board noted that the motion did not conform to the requirements of 10 C.F.R.
&sect;&sect; 2.323(b), 2.323(e), 2.342(b), and 2.342(e). Board Order Denying Motion at 2 n.3, 3 n.6.
19 Board Order Denying Motion at 4.
20 NRC Staff Motion for Clarification (Feb. 20, 2020).
21 Exelon Generation Co., LLC (Three Mile Island Nuclear Power Station, Units 1 and 2), Order at 1 (Feb.
25, 2020) (unpublished) (ML20056F226).

5 III. DISCUSSION A. Timeliness of Epstein Motion An interlocutory appeal of a Boards ruling on a hearing request or petition to intervene must be made within 25 days after service of the Boards ruling, in accordance with 10 C.F.R.
&sect; 2.311(b). Although, as discussed above, the Epstein Motion is untimely if construed as a motion to stay or motion for reconsideration, the Staff does not dispute the timeliness of the Epstein Motion if it is construed as an appeal.
B. Legal Standards for Review NRC regulations at 10 C.F.R. &sect; 2.311(c) provide a right to file an appeal on the question of whether a request for hearing should have been granted. The Commission generally defers to Board rulings on standing 22 and contention admissibility absent error of law or abuse of discretion. 23 A pleading that does not address the Boards decision is not a valid appeal. 24 Further, neither restating a contention with additional support nor a statement of general disagreement with a Boards decision suffices for a valid appeal. 25 The appellant must confront directly the reasons assigned for the [Boards] challenged ruling and [ ] identify with particularity 22 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-9, 83 NRC 472, 482 (2016); U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Phakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185, 188 (2010).
23 Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 121 (2018) (citing Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 9, 83 NRC 472, 482 (2016); Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2014)).
24 Shieldalloy Metallurgical Corp., (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503 (2007) (denying appeal when petitioner did not point to an error of law or abuse of discretion and did not address the Boards decision at all.).
25 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219
& n.20 (2017) (citing Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4),
CLI-17-2, 85 NRC 33, 40 (2017); Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-9, 83 NRC 472, 482 (2016); Crow Butte, CLI-14-2, 79 NRC at 13-14.

6 the infirmities purportedly inherent in those reasons. 26 Conclusory statements are not sufficient, 27 and failure to provide sufficient information and argument to allow the appellate tribunal to make an intelligent disposition of the issues sought to be raised on appeal is tantamount to abandonment of those issues. 28 Unless the appellant identifies an error of law or abuse of discretion by the Board, the decision will be affirmed. 29 An appeal may not be based on new arguments or legal theories that were not previously raised before the licensing board. 30 Accordingly, absent a serious, substantive issue, arguments raised for the first time on appeal are not ordinarily entertained. 31 C. The Boards Decision Should Be Affirmed
: 1. The Epstein Motion Does Not Identify Board Error The Board correctly applied NRC regulations and caselaw when it found that Petitioners failed to establish standing under 10 C.F.R. &sect; 2.309(d)(1) 32 and that neither of the proffered contentions was admissible. 33 An appeal must be grounded on the identification of some error of 26 Carolina Power & Light Co. and North Carolina Eastern Mun. Power Agency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 204 (1986) (citing Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 84 n. 128 (1985).
27 Southern Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 and 4), CLI-11-8, 74 NRC 221, 221, 225 (2011).
28 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), ALAB-921, 30 NRC 177, 181 (1989)
(citations omitted); International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); see also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-947, 33 NRC 299, 322 n.62 (1991).
29 See, e.g., Turkey Point, CLI-17-12, 86 NRC at 219 (citations omitted).
30 Hydro Resources, (Crownpoint, NM), CLI-06-29, 64 NRC 417, 421 (2006) (The Commission deems waived arguments or legal theories not raised before a Presiding Officer or Licensing Board.) (citing Hydro Resources, Inc. (Rio Rancho, NM), CLI-04-33, 60 NRC 581, 592 (2004)).
31 Pennsylvania Power & Light Co. (Susquehanna Steam Elec. Station, Units 1 & 2), ALAB-693, 16 NRC 952, 955-56, 956 n.6 (1982) (citations omitted).
32 LBP-20-2, 91 NRC at __ (slip op. at 15-19) (citing, inter alia, Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 188 (1999); Exelon Generation Co., LLC, (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-05-26, 62 NRC 577, 579 (2005)).
33 LBP-20-2, 91 NRC at __ (slip op. at 21-26) (citing, inter alia, 10 C.F.R. &sect; 2.309(f)(1)(iii) and (vi)).

7 law or abuse of discretion in the Boards decision. 34 Rather than engaging with the substance of the Boards rulings, however, the argument in the Epstein Motion is directed against positions held by or attributed to the Staff. For example, Petitioners criticize the Staff for failing to recognize the unique circumstances of TMI 2 and for taking the position that Exelons financial interests are paramount and trump public safety. 35 Petitioners also disagree with the Staffs position on standing. 36 These arguments do not constitute a valid appeal, because potential errors by another litigant are not equivalent to errors or abuses by the Board. 37 In NRC proceedings, participants who are acting pro se are traditionally held to a more lenient standard, 38 but all litigants must be familiar with the applicable rules of practice 39 and comply with agency procedures. 40 A partys failure to brief adequately its claims of error leaves the other parties in the dark as to how to respond properly and makes appellate review difficult, if not impossible. 41 The Epstein Motion does not contain a citation to, quotation of, or identifiable paraphrase of the Boards decision in LBP-20-2. Because the Petitioners do not take issue withlet alone demonstrate an error of law or abuse of discretion inthe Boards decision, the Commission should deny the motion and affirm the Boards decision. 42 34 Turkey Point, CLI-17-12, 86 NRC at 219.
35 Epstein Motion at 17, 2. The Staff does not agree with these characterizations of its position. The Staffs evaluation of Exelons LAR and exemption requests did not consider Exelons financial interests.
36 Id. at 15-20.
37 Board decisions will be affirmed [u]nless the appellant identifies an error of law or abuse of discretion by the Board. Turkey Point, CLI-17-12, 86 NRC at 219 (citations omitted) (emphasis added).
38 Shieldalloy Metallurgical Corp. (Cambridge, Ohio Facility), CLI-99-12, 49 NRC 347, 354 (1999) (citation omitted).
39 Vogtle, CLI-92-3, 35 NRC at 66.
40 Metropolitan Edison Co., (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1247 (1984) (explaining that the right of participation accorded pro se representatives carries with it corresponding responsibilities).
41 Shearon Harris, ALAB-843, 24 NRC at 204.
42 See Susquehanna, ALAB-693, 16 NRC at 956 (dismissing appeal when appellants naked assertions left the Appeal Board without sufficient information to dispose of [appellants] arguments intelligently)
(citations omitted).

8
: 2. Standing Arguments in the Epstein Motion Petitioners raise two standing arguments in the motion, one of which was not raised in the Petition. In addition to being untethered to the Boards decision, this new argument should be rejected because it was not raised below. Petitioners argue that they should be granted standing under the proximity presumption because NAC International, a company unrelated to Exelon, requested a modification to its Certificate of Compliance for MAGNASTOR-brand spent fuel storage casks used at the TMI site. 43 Petitioners further argue that the certificate modification should be viewed as construction similar to the construction of a new reactor, so that the proximity presumption would apply as it might with new reactor construction. 44 Although the Petitioners discuss potential fuel handling accidents related to dry cask storage, 45 they do not refer to the Certificate of Compliance modification, nor do they argue that the certificate modification supports standing. 46 Because this argument is based on an issue not raised before the Board, it does not constitute a valid appeal. 47 Petitioners additionally claim that Mr. Epstein has established standing in this proceeding because of his longstanding connections to the community, including his service on the Board of the Central Dauphin School District and his involvement in a 1992 Board proceeding related to TMI 2s transition to a possession-only license. 48 Although the Staff recognizes Mr. Epsteins 43 Epstein Motion at 12, 15.
44 Id. at 15.
45 Petition at 34-38.
46 Additionally, the Certificate of Compliance modification is outside the scope of this proceeding because NRC approval of the LAR and exemption requests requested by Exelon would not alter NAC Internationals Certificate of Compliance. NRC licensing actions for Certificates of Compliance and interim spent fuel storage facilities present other opportunities for public involvement.
47 Hydro Resources, CLI-06-29, 64 NRC at 421 (citations omitted); see also Crow Butte Resources, Inc.
(License Renewal for the In Situ Leach Facility, Crawford, Nebraska), CLI-18-8, 88 NRC 141, 163 (2018)
(explaining that an issue not submitted to the Board appears inappropriately raised on appeal).
48 Epstein Motion at 13-16. In the 1992 proceeding, Mr. Epsteins hearing request was dismissed by the Board after the parties had reached a settlement agreement. The Board in that case stated it had no opinion concerning the merits of the Epstein petition, and it did not arrive at a ruling on Mr. Epsteins

9 years of service to the community near TMI, the legal concept of standing is distinct from community involvement. 49 Because these standing arguments reiterate claims made in the Petition below rather than identifying errors in the Boards decision, they do not constitute a valid appeal. 50 IV. CONCLUSION Petitioners Motion does not fulfill the basic requirement that an appeal must identify one or more errors of law or abuses of discretion in the Boards decision. Instead, Petitioners merely restate claims made below and raise the novel issue of the Certificate of Compliance for NAC International. Therefore, the Boards decision should be affirmed.
Respectfully submitted,
                                                        /Signed (electronically) by/
Kayla Gamin Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9234 E-mail: Kayla.Gamin@nrc.gov Executed in Accord with 10 CFR 2.304(d)
Reginald Augustus Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0165 E-mail: Reginald.Augustus@nrc.gov standing. General Public Util. Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), LBP-92-30, 36 NRC 227, 228 n.2, 229 (1992).
49 10 C.F.R. &sect; 2.309(d)(1); see also Private Fuel Storage, CLI-99-10, 49 NRC at 325 (stating that lack of specific information may be sufficient to reject claims of standing).
50 Turkey Point, CLI-17-12, 86 NRC at 219 (citations omitted) (Recitation of an appellants prior positions in a proceedingis not sufficient.).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of EXELON GENERATION COMPANY, LLC                                 Docket No. 50-289 50-320 (Three Mile Island Nuclear Station, Units 1 and 2)
Certificate of Service Pursuant to 10 C.F.R &sect; 2.305, I hereby certify that copies of the foregoing NRC STAFF ANSWER OPPOSING EPSTEIN MOTION, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 12th day of March 2020.
                                                  /Signed (electronically) by/
Kayla Gamin Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9234 E-mail: Kayla.Gamin@nrc.gov}}