ASLBP 23-977-02-LA-BD01, 19 January 2023 Hearing Transcript: Difference between revisions

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{{Adams
#REDIRECT [[ASLBP 23-977-02-LA-BD01, NRC Staff Answer to Petitioner Eric Epstein'S Motion for Leave to File New Contentions]]
| number = ML23023A101
| issue date = 01/19/2023
| title = 19 January 2023 Hearing Transcript
| author name =
| author affiliation = NRC/ASLBP
| addressee name =
| addressee affiliation =
| docket = 05000320
| license number =
| contact person = SECY RAS
| case reference number = ASLBP 23-977-02-LA-BD01, RAS 56606, 50-320-LA-2, NRC-2230
| document type = Legal-Hearing Transcript
| page count = 0
}}
 
=Text=
{{#Wiki_filter:Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
 
==Title:==
TMI-2 Solutions, Inc.
Docket Number:    50-320-LA-2 ASLBP Number:    23-977-02-LA-BD01 Location:        Rockville, Maryland Date:            Thursday, January 19, 2023 Work Order No.:  NRC-2230                          Pages 1-86 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
 
1 1                    UNITED STATES OF AMERICA 2                  NUCLEAR REGULATORY COMMISSION 3                                + + + + +
4            ATOMIC SAFETY AND LICENSING BOARD PANEL 5                                + + + + +
6                                  HEARING 7 ---------------------------x 8 In the Matter of:                        : Docket No.
9 TMI-2 SOLUTIONS, LLC                    : 50-320-LA-2 10                                          :
11 (License Amendment Request : ASLBP No.
12 for Three Mile Island                    : 23-977-02-LA-BD01 13 Nuclear Station, Unit 2)                :
14 ---------------------------x 15                                  Thursday, January 19, 2023 16 17                                  Hearing Room T3 D50 18                                  Two White Flint North 19                                  11555 Rockville Pike 20                                  Rockville, Maryland 21 22 BEFORE:
23 E. ROY HAWKENS, Chair 24 NICHOLAS G. TRIKOUROS, Administrative Judge 25 DR. GARY S. ARNOLD, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309    www.nealrgross.com
 
2 1 APPEARANCES:
2            On Behalf of the Petitioner:
3                  LYNNE BERNABEI, ESQ.
4                  KRISTEN SINISI, ESQ.
5            of:  Bernabei & Kabat, PLLC 6                  1400 16th Street NW 7                  Suite 500 8                  Washington, D.C. 20036 9                  202-644-9935 10 11            On Behalf of TMI Solutions, LLC:
12                  AMY C. ROMA, ESQ.
13                  DANIEL F. STENGER, ESQ.
14                  STEPHANIE FISHMAN, ESQ.
15            of:  Hogan Lovells US, LLP 16                  555 13th Street, NW 17                  Washington, D.C. 20004 18                  202-637-6831 19                  Amy.Roma@hoganlovells.com 20                  Daniel.Stenger@hoganlovells.com 21                  Stephanie.Fishman@hoganlovells.com 22 23            On Behalf of the Nuclear Regulatory Commission:
24                  JOSEPH D. McMANUS, ESQ.
25                  ANGELA B. COGGINS, ESQ.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309    www.nealrgross.com
 
3 1                TRAVIS C. JONES, ESQ.
2            of: Office of the General Counsel 3                U.S. Nuclear Regulatory Commission 4                Mail Stop - O-14 A44 5                Washington, D.C. 20555-0001 6                301-415-5356 7                Angela.Coggins@nrc.gov 8                Joseph.McManus@nrc.gov 9
10 11 ALSO PRESENT:
12 ERIC EPSTEIN, Petitioner 13 AMY HAZELHOFF, Vice President of Regulatory Affairs, 14 EnergySolutions 15 SHAUN ANDERSON, NMSS/DUWP/RDB, NRC 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309    www.nealrgross.com
 
4 1                        P-R-O-C-E-E-D-I-N-G-S 2                                                                10:00 a.m.
3                    CHAIR HAWKENS:          Good morning, we'll hear 4 oral argument today in a license amendment proceeding 5 entitled TMI-2 Solutions, LLC.                    Docket number 50-320-6 LA-2.        Petitioner, Mr. Eric Epstein, challenges the 7 request submitted by the applicant, TMI-2 Solutions, 8 to amend its possession only license for Three Mile 9 Island Nuclear Station Unit Two.                          My name is Roy 10 Hawkens, I'm a legal judge, I chair this licensing 11 board.
12                    And I am joined by Technical Judge Nick 13 Trikouros and Technical Judge Dr. Gary Arnold.                          We're 14 also joined by our law clerk, Emily Newman, as well as 15 law clerk Allison Wood, who is participating remotely.
16 This argument is being held in the hearing room at the 17 RNC headquarters in Rockville, Maryland, and I'll note 18 this is the first in person hearing we've had since 19 the pandemic, and I'm pleased to welcome counsel and 20 those here assembled in the audience.
21                    For interested persons who could not be 22 here, we have a listen only telephone line, and in 23 addition a court reporter is preparing a transcript 24 that will be accessible to the public next week in the 25 NRC's        electronic    hearing        docket.        The  proposed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
5 1 licensed amendment that petitioner challenges, as it's 2 characterized in the Federal Register, seeks to revise 3 the license conditions for TMI Unit Two to comport 4 with current plant conditions and to enable the plant 5 to transition to a decommissioned status.
6                  Petitioner argues the proposed amendment 7 should be denied, because it improperly fails to 8 consider potential harm to the environment, including 9 harm      from  recriticality        due      to    airplane  crashes, 10 explosions,        fires,      and    terrorist        attacks.          The 11 applicant      and  the    NRC    staff      oppose    the  petition 12 arguing petitioner lacks standing and fails to proffer 13 an admissible contention.
14                  We'll hear argument today from counsel on 15 behalf of all three parties.                    For the record, would 16 counsel please introduce themselves and any colleagues 17 who are accompanying them, starting with petitioner?
18                  MS. BERNABEI: Good morning, this is Lynne 19 Bernabei        and    Kristen        Sinisi          representing        the 20 petitioner, Eric Epstein.
21                  CHAIR HAWKENS:          Thank you.
22                  MS. ROMA: Good morning, I'm Amy Roma, and 23 at the law firm of Hogan Lovells, and I'm representing 24 the licensee, TMI Solutions.                      To my right is my 25 colleague Daniel Stenger and Amy Hazelhoff from TMI NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
6 1 Solutions, and in the front row there is our colleague 2 Stephanie Fishman.
3                    CHAIR HAWKENS:          Thank you.
4                    MR. McMANUS:        Good morning, Your Honors.
5 My name is Joseph McManus, and I, along with Angela 6 Coggins and Travis Jones, am counsel for the NRC 7 staff.          We  also  have      in    the    hearing    room    Shaun 8 Anderson as a staff technical expert.
9                    CHAIR HAWKENS:              All right, thank you, 10 welcome to all of you.              As explained in this board's 11 December 12 scheduling order, the parties will be 12 allotted        30  minutes        to    present        argument,        and 13 petitioner may reserve up to ten minutes for rebuttal.
14 The board's law clerk, Ms. Newman, will keep track of 15 the time, when five minutes are left, the yellow light 16 will be illuminated.
17                    When time is expired, that'll be the green 18 light.        When five minutes are left, yellow will come 19 on.        When  time  has      expired,        the    red  light      will 20 illuminate.        Do counsel have any questions?
21                    MR. EPSTEIN: I just wanted clarification, 22 the pronunciation on my name is Epstein.                            I just 23 wanted to clarify the pronunciation of my name is 24 Epstein, not Epstein.                I don't want to be confused 25 with some other people who have been recently in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
7 1 media.        If you forget, there's Einstein, Epstein, 2 Frankenstein, I'm the Jew in the middle.
3                  CHAIR HAWKENS:            Thank you, Mr. Epstein.
4 Any other questions from counsel?                        Judge Trikouros, 5 Judge Arnold, anything to add before we begin?
6                  JUDGE ARNOLD:          No.
7                  JUDGE TRIKOUROS:            No.
8                  CHAIR HAWKENS: All right, Ms. Bernabei as 9 petitioner, you may start. And before proceeding, how 10 much time, if any would you like to reserve for 11 rebuttal?
12                  MS. BERNABEI:          Five minutes please.
13                  CHAIR HAWKENS:          Five minutes, all right.
14 Thank you, you may proceed, Ms. Bernabei.
15                  MS. BERNABEI:          Okay.        I want to give a 16 little factual background, because some of us have 17 been living with this case for a long time, over 25 18 years --
19                  CHAIR    HAWKENS:            Before    you  begin,        a 20 question,        it's  my    understanding            based  on    email 21 exchanges between Mr. Epstein and our law clerk that 22 you just recently have become acquainted with this 23 case in early January, is that correct?
24                  MS. BERNABEI:              With      this  particular 25 petition. But I have represented TMIA and Mr. Epstein NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
8 1 going back to the 90s.
2                CHAIR HAWKENS:            I commend you for your 3 willingness and ability to prepare on such short 4 notice.
5                MS. BERNABEI:          Thank you.        What I'd like 6 to sort of give a general outline and then get into 7 the more technical argument, what we really have in 8 this case is a fairly new licensee, a new licensee 9 certainly to TMI-2, which has no experience working 10 with this damaged reactor.
11                CHAIR    HAWKENS:            Ms.      Bernabei,      we're 12 familiar with the background in the petitioner, and 13 given the serious questions, issues involved both in 14 standing, and in contention, admissibility, I think 15 we'd be grateful if you'd turn to them reasonably 16 promptly.
17                MS. BERNABEI: Okay. Mr. Epstein has been 18 a pro se petitioner up to this point in time, and as 19 you all know, there is a relaxed standard for standing 20 for pro se litigants.            The recent cases of Seabrook, 21 and also Fermi, which is a 2020 case, said that 22 petitioners, when they are not represented by counsel, 23 that the NRC considers them to have relaxed standing.
24 And while they -- and they generally look at not the 25 standing,      but  the      contentions,            if  they're      good NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
9 1 contentions.
2                  And I would just note that Mr. Epstein --
3                  CHAIR HAWKENS:          Can you -- I understand 4 there's        a  relaxed,        more      lenient        standards        for 5 pleading.        But the standards for standing itself, I 6 don't think are any different from any other party, is 7 that correct, is that your understanding?
8                  MS. BERNABEI:          No, that isn't.          What the 9 Seabrook case says is we generally construe standing 10 in favor of the petitioner.                      The requirements for 11 standing are not strict by design, this is especially 12 so when we're a pro se petitioner.                            I think Mr.
13 Epstein        has  consistently            established        in      other 14 proceedings        going    back    30      years      that  he    has      a 15 sufficient interest.
16                  He not only lives in the community, works 17 in the community, he's also been the signatory to a 18 number of agreements to monitor the safety of the 19 plant.
20                  CHAIR HAWKENS:          As I understand from your 21 briefing, you're alleging three theories for standing, 22 discretionary          intervention,                  proximity,            and 23 traditional?
24                  MS. BERNABEI:          Yes, Your Honor.
25                  CHAIR    HAWKENS:              Do      you  agree      that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
10 1 discretionary intervention is simply not available 2 under the regulations?
3                MS. BERNABEI:        In this particular case, I 4 would argue that it is, because of the special, unique 5 nature of TMI-2, and --
6                CHAIR HAWKENS:          All right, well I don't 7 think you'll get very much traction.                    You can argue 8 that if you like, but I think you'll have better 9 traction with the other two theories.
10                MS. BERNABEI:          Well, the essential point 11 is that Mr. Epstein lives, works, and has monitored 12 the damaged reactor for 30 years at least. And he has 13 been granted standing in other proceedings, in two 14 agreements      signed      by    the        Nuclear    Regulatory 15 Commission,    they    have      acknowledged,          as  has      the 16 licensee in those instances, that he has an interest 17 in the proceeding.
18                CHAIR    HAWKENS:            As    between  proximity 19 presumption standing and traditional standing, which 20 is the strongest theory of standing in your view?
21                MS. BERNABEI:          Traditional standing.
22                CHAIR  HAWKENS:            All    right,  would      you 23 address that?
24                MS. BERNABEI:          Yes.        I think you can't 25 sort of separate it from the contentions itself under NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
11 1 the case law. The case law says if you have standing 2 or an interest in the possible danger of a nuclear 3 plant, now most of these occur when the plant is 4 licensing. We have a unique situation here with the 5 damaged reactor.        But if you have an interest in 6 possible emissions from a damaged reactor in this 7 case, you can have standing.
8                And I would just note that the cases, and 9 they're very recent cases, they're 2020, say very 10 clearly that the standards are relaxed, and what the 11 board or the NRC should look at is the contentions, 12 and whether the contentions are valid contentions, 13 they don't look at standing by and large.                  They are 14 very liberal in construing standards. And I think Mr.
15 Epstein, throughout this 30 years, has established 16 that he is currently the main person that monitors the 17 site under the safe store.
18                He signed two agreements, including the 19 original one in the early 1990s and the recent one 20 when the licensee was changed.                  And he continues to 21 monitor and follow all the studies, and the Federal 22 Register, and what's coming out in terms of that. And 23 the contentions he makes are serious ones, and I'd 24 like to just go to those.
25                CHAIR HAWKENS:          Before you do that, can I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
12 1 ask a couple more questions about standing?
2                    MS. BERNABEI:          Sure.
3                    CHAIR    HAWKENS:            Typically    there's          a 4 causation component, and here when there's a license 5 amendment, they must show that the amendment being 6 challenged will cause a distinct new harm or threat to 7 him or increase the threat or harm that currently 8 exists.          And can you explain how these proposed 9 license amendments fit that description?
10                    MS. BERNABEI:            Yes.        You have in this 11 instance a very poorly set forth plan.                        The NRC has 12 not even done a final analysis of it.                        And the plan, 13 among other problems, has that -- we contend, and 14 there's expert evidence that has been presented, that 15 this plant, given the damaged nature of the fuel, the 16 amount        of  the  fuel,      and    the      particular    unknown 17 configuration of the fuel could still go critical, 18 that's number one.
19                    Number    two,    there        has  never  been        an 20 analysis of the particular dangers that Mr. Epstein 21 brought up in his original petition, that has to do 22 with a potential fire, terrorist attack, or aircraft 23 accident. And the reason that these were never looked 24 at is because this plant was shut down very early, 25 before 9/11, and before there was the new regulations NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
13 1 that have to do with the potential dangers.
2                  So, we think that these contentions about 3 a    terrorist    attack,      an  aircraft          attack,    and      an 4 internal threat have never been looked at in this 5 plant, because it was simply not necessarily, because 6 it was in so called safe store.                      With the licensee, 7 the new licensee is asking for a radical change in 8 that.        And the particular danger is one, it could go 9 critical.
10                  And these kinds of accidents, which have 11 never been looked at after the initial licensing of 12 TMI-2, could cause radiation exposure.                      We know for a 13 fact        that  the  occupational              exposure    would        be 14 heightened by a factor of two if it is decommissioned.
15 I'd also like to say --
16                  CHAIR HAWKENS: Before you go to that, and 17 we'll be getting more into that when you get into your 18 contention        admissibility          arguments,        but  did      you 19 represent Mr. Epstein in the 2020 case of TMI Nuclear 20 Station Units One and Two?
21                  MS. BERNABEI: No, Your Honor, but this is 22 --
23                  CHAIR HAWKENS: Are you familiar with that 24 case?
25                  MS. BERNABEI:          Yes.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
14 1                    CHAIR    HAWKENS:              In      that  case,        the 2 licensing board held that he did not demonstrate 3 either        proximity    presumption            standing,      or      more 4 pertinent here, more traditional standing.                          Can you 5 distinguish that case from this case?
6                    MS. BERNABEI:          Yes, Your Honor.          This is 7 a radical departure. This is a radical departure from 8 the status of the damaged reactor.                      We no longer have 9 one licensee for two reactors.                      We have TMI-1, that 10 has no regulatory responsibility over TMI-2. And this 11 is a radical departure from the safe store in which 12 this reactor is being held.                  And at the time, in the 13 1990s, the NRC staff and the licensee signed an 14 agreement saying we don't know how to get rid of the 15 damaged fuel.
16                    We don't have a place to put it, we don't 17 really have a firm plan.                So, we're going to keep it 18 in safe store.          Mr. Epstein at that point agreed to 19 it. Since that time, nothing's changed inside of TMI-20 2, except the licensee has changed multiple times.
21 And what we have is a plan that is not fully thought 22 out in terms of how they're going to get rid of the 23 damaged fuel.
24                    They cannot rely on TMI-1 any longer, 25 because TMI-1 is decommissioning, it's a different NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
15 1 licensee, has no requirement to take the damaged fuel.
2 We have an extra wrinkle, which we explained in the 3 supplemental pleading, which we just became aware of, 4 is that TMI-2 Solutions has no guarantee of water to 5 kind of do this decommissioning, and that TMI-1 is 6 under strict requirement from the Susquehanna -- the 7 Pennsylvania Commission.
8                That it shall not, except for minimal 9 amounts, give any water to TMI-2.                  So, the difference 10 here is you have a licensee, TMI-1, which was the 11 licensee for both reactors, that has a plan for 12 decommissioning.        Here you have a newcomer, TMI-2 13 Solutions, that really has a very, very, I would say 14 tenuous plan. They don't know where they're going to 15 put the waste.
16                They  have      no    contractual        --  TMI-1        is 17 struggling to handle its own waste, no contractual 18 obligation to take things from TMI-2, because it's a 19 different licensee.        Idaho has no obligation to take 20 this waste, and there's no water that's guaranteed for 21 the cleanup. So, the worst thing that could happen, 22 and the most danger of radiation exposure proven to 23 the workers, the workers are going to be exposed, the 24 estimates are two times the radiation exposures as if 25 you kept it in safe store until there were a better NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
16 1 plan.
2                    There's radiation exposure, and there's 3 just simply not a good, thought out plan of how to do 4 this.          And TMI-2 Solutions says well, we want to 5 regularize, normalize this.                      This is not a normal 6 plant. This is a damaged reactor with a great deal of 7 damaged fuel in an uncertain condition.                      And that 8 means you can't pretend, which I think TMI-2 Solutions 9 is trying to do, that this is a regular plant, it's 10 not a regular plant.
11                    And there's no firm plan as to where 12 they're going to store this waste once they remove it.
13 Idaho won't necessarily take it, and TMI-1 is under no 14 obligation --
15                    CHAIR HAWKENS:          The waste storage is not 16 really a component of either of your contentions as I 17 need them.
18                    MS. BERNABEI:            No, it is, Your Honor, 19 because if it goes critical while they're in the midst 20 of this unformed plan, they have no ability to handle 21 what they're supposed to do.                    And the fact that the 22 plan is so poor from the beginning, I think sheds 23 light on the credibility and the competence of TMI-2 24 Solutions to carry out this plan.
25                    CHAIR HAWKENS:            Okay, why don't you go NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309      www.nealrgross.com
 
17 1 into your contention admissibility arguments please?
2                    MS. BERNABEI: Well, number one, it's been 3 established for a long time, and this was basically 4 the basis on which the safe store, which this reactor 5 is still in, it's still in safe store.                        The basis for 6 that is that we contended, Mr. Epstein contended, and 7 TMIA contended that it could still go critical. There 8 have been no studies that show that it can't.                                And 9 given that uncertainty --
10                    CHAIR HAWKENS:              Is contention one, it 11 looks        --  the    only      difference          between    the      two 12 contentions          on    their        face        appears    to      be      a 13 recriticality component that's in contention two, but 14 in contention one in the basis several times, you 15 argue about recriticality occurring, the possibility 16 of it.        So, it appears that the two contentions are 17 substantially identical, or at least substantially 18 similar, is that correct?
19                    MS. BERNABEI:          I would say in part, okay?
20 They rely on two things, one is that recriticality is 21 possible.          Two, there have never been analyses of 22 these hazards and what it would do to the damaged 23 reactor.        And there just hasn't been any.                  So, if you 24 start        carting    this      fuel      around,        and  there's        an 25 aircraft -- there's now an international airport near NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
18 1 Harrisburg, or if there's a terrorist attack, this 2 plant has not been analyzed for any of those.
3                  Because it was already shut down by the 4 time these NRC regulations went into effect.                        So, you 5 have an untested damaged plant.                      So, it's not just 6 recriticality, it's also environmental damage from 7 these kind of attacks that could occur.
8                  CHAIR HAWKENS:          So, it's your position in 9 both contention that NEPA requires the analysis for 10 airplane      accidents,        fires,        explosions,        terrorist 11 attacks which could result in recriticality?
12                  MS. BERNABEI:          Yes, yes.
13                  CHAIR HAWKENS:            Okay.
14                  MS. BERNABEI:              And      the  NRC  and      the 15 licensee have argued there's a categorical exclusion, 16 we don't think that that applies, because there's 17 exceptions including that there may be an increase in 18 the      amount  of    effluence,            and      there    may      be      a 19 significant increase, and I think this is in Mr.
20 Epstein's pleading, in the cumulative occupational 21 radiation exposure.            The studies that have been done 22 say that would double.
23                  So,    we      also      think        the  categorical 24 exclusion does not apply, because there are special 25 circumstances.        This is the only plant in the United NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
19 1 States that has been so heavily damaged.                  And so --
2                CHAIR HAWKENS:            I didn't see in any of 3 your pleadings the term special circumstances.
4                MS. BERNABEI:              Well,    it's  in      the 5 controlling regulation, Mr. Epstein --
6                CHAIR HAWKENS:          I'm aware of that, but --
7                MS. BERNABEI:        Mr. Epstein did this as --
8                CHAIR    HAWKENS:            In    order to  put      the 9 licensing board on notice, and the other parties on 10 notice, it's an argument that should be expressed in 11 your pleadings.
12                MS. BERNABEI:          Well, Your Honor he's --
13 excuse me. He's a pro se plaintiff, and I think the 14 licensing boards and the NRC appeals boards have been 15 very clear that he should be given leeway.                  The facts 16 are in his pleadings, and he has said all over his 17 pleadings that there are special circumstances, and 18 that's a categorical --
19                CHAIR HAWKENS:          Well, no, he's never used 20 the term special circumstances.
21                MS. BERNABEI: Well, let me tell you where 22 he raised that, page 17.              NEPA requires the NRC to 23 consider and attempt to avoid or mitigate significant 24 adverse environmental damage.                And he also says the 25 NRC should take a hard look at environmental impacts, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
20 1 and that NEPA places upon the agency the obligation to 2 consider every significant aspect.                      And then page 18 3 to 20 of the original petition, he says his entire 4 argument talks about the special circumstances that 5 apply to TMI-2.        TMI-2 -- Three Mile Island Two --
6                  CHAIR HAWKENS: What page is that on? I'm 7 sorry.
8                  MS. BERNABEI:          18 through 20, these are 9 where he argues that Three Mile Island --
10                  CHAIR    HAWKENS:            Did    he  use  the      term 11 special circumstances?                I just want to be clear, 12 because I hadn't seen it, perhaps I overlooked it.
13                  MS. BERNABEI:        He implies an exception to 14 categorical exclusion. But he was a pro se plaintiff, 15 he makes it very clear that Three Mile Island Unit Two 16 is unique.        And I think the panel can take judicial 17 notice that this is a unique situation.                      There is no 18 other plant in the United States that had a near 19 meltdown with a heavily damaged core going into a 20 possible decommissioning.
21                  The other thing that I wanted to address 22 in      the    legal  terms      is    that      the    NRC  and      TMI-2 23 arguments, and Mr. Epstein did not challenge the NRC's 24 preliminary determination of no significant hazards.
25 In fact the controlling regulation, this is 10 CFR NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
21 1 50.92© states the NRC may determine that a proposed 2 amendment involves no significant hazards if operation 3 of a facility in accordance with an amendment would 4 not, and then they give a series of things.
5                Involve a significant increase in the 6 probability    or  consequences            of    an accident.          We 7 believe that they have not demonstrated that.                          And 8 throughout the pleadings, the NRC and the licensee 9 attempt to put the burden on Mr. Epstein to show there 10 will be an accident.            That's not his burden, the 11 burden is on the licensee and the NRC to show that 12 there is no probability, or very low probability of an 13 accident.
14                Number two, create the possibility of a 15 new or different kind of accident from any kind of 16 accident previously evaluated.                This is a plant that 17 hasn't operated for 40 years, 35 years.                  So, this is 18 certainly ripe for the kind of accident that the NRC 19 has never evaluated.          And then number three, it says 20 it does not involve a significant reduction in the 21 margin of safety.
22                We think that it does reduce that margin 23 of safety in the ways we've described.                        And the 24 ultimate issue here is you have a plant that's been in 25 safe store for 30 years.            It's never been subject to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
22 1 the same regulatory authority, and now you have a new 2 licensee that can't depend on TMI-1 to protect it.
3 And I want to just point out where he made these 4 arguments in his petition page one, the proposed LAR 5 will reduce safety margins and increase the likelihood 6 of significant hazards during phase 1B and phase two.
7 Page four --
8                CHAIR HAWKENS:          And how will it do that?
9 I agree there are a number of assertions, but are they 10 supported, and do they point to a particular provision 11 in the LAR?
12                MS. BERNABEI:              Yes.        The  proposed 13 amendment      undermines      the    cleanup        by  deleting        or 14 modifying technical specifications for PDMS, that's 15 the safe store, leaving out surveillance requirements, 16 and leaving out administrative controls.                    And it also 17 allows --
18                CHAIR HAWKENS:            I'm familiar with that 19 passage, and I highlighted it because it's not clear 20 to me what particular provisions he's pointing to and 21 how those provisions impair the cleanup.
22                MS. BERNABEI:          Because if you remove all 23 the controls, and they're storing high level waste on 24 an island in the Susquehanna River for an undetermined 25 period of time without surveillance --
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23 1                  CHAIR HAWKENS:          What controls though, we 2 didn't point out where -- it's a fairly extensive 3 license amendment request, and it makes conclusory 4 representations about what's in there, and then makes 5 conclusory representations about the adverse impact.
6 And it may -- perhaps it will cause an adverse impact, 7 but      it  was  incumbent        on      him      to satisfy        the 8 admissibility requirements to identify the specific 9 provision.
10                  And explain why it was deficient and why 11 it      would  have  the      adverse        impact.      And    I    had 12 difficulty seeing that in the pleading.
13                  MS. BERNABEI:            Okay, well look at page 14 four, the relocation of the debris. He says after the 15 applicant      vacates    Three      Mile      Island,    it    poses        a 16 significant hazard based on the inability of the 17 federal government to locate a permanent waste site.
18 That is absolutely clear from the license amendment, 19 that the federal government has not guaranteed a site 20 for the waste.
21                  That is what he says is a significant 22 hazard, that fits within.              On page six, footnote six, 23 it says the applicant sites the DOE contracts number 24 -- and I won't quote it, because it's in footnote six, 25 of page six, abnormal waste contract, but it omits any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
24 1 details about post storage safety challenge.                                  And 2 those are that they won't find a permanent home for 3 this waste.
4                    TMI-1, which is very well explained, TMI-1 5 won't        accept    this        waste,        and      it  will      start 6 decommissioning and not be able to finish it because 7 there's no home for this waste. Now, that's explained 8 very carefully, and that's actually the gist of the 9 whole license amendment.                But they're going to remove 10 this waste with no clear plan of where it's going to 11 go.
12                    CHAIR HAWKENS:            It's difficult for me to 13 connect that harm with the express language of your 14 two contentions, which talk about the failure to 15 conduct any kind of NEPA consideration for those four 16 triggering          events,          which          would      result          in 17 recriticality.
18                    MS. BERNABEI:          If you take the waste out 19 of TMI-2 and don't have a home for it somewhere else, 20 that imposes an environmental hazard.                        It's not upon 21 Mr. Epstein to make out the burden or to -- it's not 22 his burden to show that it will definitely lead to 23 irradiation, it's the burden of the licensee and the 24 NRC staff to show that it won't.                        And if they do not 25 have -- and we filed something last night, which you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
25 1 may not have had a chance to review, but this licensee 2 --
3                CHAIR HAWKENS:          We have not had a chance 4 to review that.
5                MS. BERNABEI:        I understand.      That it has 6 no home for this waste, TMI-1 is under no obligation 7 to take it, different licensee, different regulatory 8 authority, Idaho is not taking it, and now we know 9 they don't even have any guarantee of water if the 10 decommissioning goes through. And TMI-1 is prohibited 11 from giving its water to TMI-2.                  So, if it takes this 12 fuel out, and it has no permanent home for this waste, 13 it will lead to additional radiation exposure.
14                But that's the burden of the licensee and 15 the NRC to prove that that's not true. And that's the 16 argument he's raised, page one, page four, and then 17 page six, footnote six.
18                CHAIR HAWKENS:            Can you reconcile your 19 contentions with the Oyster Creek 2007 Commission 20 decision, which was affirmed by the Third Circuit?
21                MS. BERNABEI:          Oyster Creek was a normal 22 reactor. Oyster Creek had no damaged core, no unknown 23 amount of damaged fuel, and no uncertain configuration 24 of fuel.      It was a plant at the end of its normal 25 operating cycle.      So, it's a totally different set of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
26 1 facts.        You didn't have, what we contend is a damaged 2 reactor that's been in safe store with an uncertain 3 amount          of  damaged        fuel      and      a    potential        for 4 recriticality.
5                    CHAIR HAWKENS:          With one percent of fuel, 6 as opposed to 100 percent at Oyster Creek.
7                    MS. BERNABEI:            The problem is that you 8 know what that core looks like.                      You don't know what 9 the remaining core at TMI-2 looks like. It's a normal 10 reactor in the sense that TMI-2 I think calls it 11 regularized, normalized, it's a regular reactor, it's 12 had no serious damage.                So, it doesn't have highly 13 radioactive damage fuel in the same sense that TMI-2 14 does.
15                    The problem with TMI-2, which the NRC has 16 always recognized, that's why it's sitting in safe 17 store, and that's why it shouldn't be granted, is they 18 don't know what this looks like.                          They don't know, 19 because they can't get close enough to it, so they 20 have      to    use  all  kinds      of    things        that  have      been 21 controversial.
22                    CHAIR HAWKENS:          Well, let's talk a little 23 bit about your concern about, and I see as you do, the 24 time has expired, but we have a few more questions for 25 you.
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27 1                  MS. BERNABEI:          Okay.
2                  CHAIR    HAWKENS:            The      pleadings      don't 3 address in any detail the license amendment requests 4 extensive discussion and calculations and conclusions 5 that it's impossible for criticality to occur, even in 6 the most ideal setting for criticality.                            Can you 7 address that please?
8                  MS. BERNABEI:          Number one, the amount of 9 damaged fuel that exists in TMI-2 is uncertain, they 10 don't know.        And they used, I believe it's 1100 as 11 their figure, and said there's a plus or minus 5 12 percent. The figures range up to 1300, so we don't --
13 nobody knows, because there's been so many different 14 calculations of this, how much damaged fuel there is.
15 And the other issue, which they've never addressed, is 16 it's not just the amount.
17                  Assuming for the moment that they're right 18 on the assumption you can't go critical at 1100 or 19 1200, okay?        The thing that they haven't addressed is 20 the configuration of the fuel, which no one knows 21 about.        And so the problem is the configuration of 22 this damaged fuel is unknown.
23                  JUDGE TRIKOUROS:              I have a question in 24 that      regard.      If    I    remember          the  LAR  analysis 25 correctly, the configuration that they chose to do the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
28 1 criticality analysis was, let's just say the optimum 2 worst conservative configuration one can achieve for 3 criticality,          which        really          is    a    spherical 4 configuration.
5                  You're saying there's some likelihood that 6 the configuration of the fuel at TMI-2 today could 7 somehow be rearranged by processes that would be 8 ongoing that would create a configuration that would 9 be more severe than a sphere?
10                  MS. BERNABEI:        Possibly, because, and I'm 11 going to get the technical term wrong, the way the 12 fuel is held, they're cracking, there's crack in 13 what's holding, I don't know if it's called caskets, 14 they're        cracking    in    those.          And    so it    may      be 15 rearranged, and the problem is this has been basically 16 an abandoned plant for 25 years.                      So, we don't know 17 what configuration -- we didn't know back then, and we 18 don't know now, because it is changing.
19                  And the second thing is the NRC has never 20 done their own analysis of this.                      They've just said 21 okay, you say it's okay, so it's okay.                        That's, we 22 think an abdication of the staff's responsibility.
23 So, we do think that it can still go critical given 24 the failure to do a deep analysis of this.
25                  JUDGE TRIKOUROS:            So, you're saying that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
29 1 the analysis that was presented in the LAR was not 2 deep enough?
3                  MS. BERNABEI:          I'm saying it's untested.
4 It's been unreviewed, not peer reviewed, and I think 5 Mr. Epstein deserves the opportunity in the hearing to 6 challenge it, that's what I'm saying. Because the NRC 7 staff has not done an adequate review of it.                        I mean 8 they admit this is a preliminary review, and there is 9 no evidence that we've seen of their review of it, in 10 terms        of a  final    review      of    it.      We  think      it's 11 premature at this point.
12                  JUDGE TRIKOUROS:            All right, well I guess 13 we'll have that opportunity to ask that question of 14 the staff shortly.
15                  JUDGE ARNOLD:          I would like to just go 16 back for a moment to the question of standing.                        And I 17 personally, let me explain how I see the situation, 18 and you can tell me where I'm wrong.                    Now, the 50 mile 19 proximity presumption was based upon a plant that has 20 a full core load, a full equilibrium decay heat, is 21 hot, and is at power.            And that is not what we have at 22 TMI-2.
23                  We have 99 percent of the fuel removed, 24 which means we have two orders of magnitude less 25 radioactive material in it, plus in the 40 some odd NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
30 1 years, it's decayed by a factor of approximately ten 2 to the fourth.        Now, what those two reductions do, is 3 it makes the remaining fuel in the core or in the 4 plant,        has  about      one      one      millionth      of      the 5 radioactivity of the operating plant for which the 50 6 mile proximity presumption was developed.
7                    Now, in my mind, if I scale down the area 8 of the proximity presumption using the radiological 9 hazard that exists at TMI-2, I come up with the 10 proximity presumption would give standing to people 11 who are within 264 feet of the reactor.                      That's based 12 just on what the radiological hazard is now.                        So, how 13 do I come to grips with your claim that there's a risk 14 beyond the plant boundary?
15                    MS. BERNABEI:          A few things.        One is the 16 amount of fuel is uncertain.                  And scientifically, you 17 have        an  assumption        that        has      wildly    various 18 assumptions, they can't all be right.                        It cannot all 19 -- they can't all be correct, and what that shows is 20 that there's uncertainty in the assumptions, number 21 one.      Number two, it's not in a configuration that's 22 known, because you can't really examine the damaged 23 fuel, and the configuration is changing.
24                    So,  what      we  have      is    something    that's 25 uncertain, been studied for a while, not really in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
31 1 depth, because people can't go down and look at this 2 stuff given the situation with the reactor. A regular 3 operating reactor, you know what the core looks like, 4 you know what it looks like when it's shutdown, you 5 know the amount of fuel and where it is.                You don't 6 have any of those assurances with this facility, which 7 means you have to look better.
8                Now, just to prove this point, is this was 9 the whole premise, that you don't know what's in the 10 core, when the NRC and the then licensee entered into 11 the safe store agreement, you don't know about this 12 core, because it's a heavily damaged reactor.                        So, 13 what we're saying is you have to take more precautions 14 to let these newcomers on the block, TMI-2 Solutions, 15 start carting around this waste that we think still 16 could go critical and expose the community without a 17 really, really good plan, and they don't have a good 18 plan.
19                That's our basic.                And so I think the 20 assumptions that you're raising are different for an 21 operating plant that's coming to the end of its life 22 where you know what the core looks like, versus TMI-2.
23                JUDGE ARNOLD:          Thank you.
24                CHAIR HAWKENS:          A couple more questions, 25 and we won't hold this against your rebuttal time.
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32 1 You include in your reply brief, a paper by Dr. Kaku, 2 when was that --
3                MS. BERNABEI:          Kaku, Michio Kaku, yes.
4                CHAIR HAWKENS:          Thank you, I'll need to 5 get my pronunciations correct. When was that written?
6                MS. BERNABEI:          That was, I guess he has 7 issued testimony all through the 80s, and I believe 8 are --
9                MR. EPSTEIN:        That original was '87, and 10 there was a modified testimony in '90.
11                MS. BERNABEI: And we actually have copies 12 if you'd like, we don't have multiple copies, but we 13 can get them to you, of his testimony, but the facts 14 remain the same.      There's multiple estimates of how 15 much damaged fuel remains in the reactor, and the 16 configuration is unknown.              And his opinion is that 17 that is enough to go to criticality. Or at least, let 18 me put the burden the right way, the licensee cannot 19 show that that will not lead to criticality.
20                That's the point, not that Mr. Epstein has 21 to show that it leads to criticality.
22                MR. EPSTEIN:        There's studies if you want 23 to look at them, I don't know if you recall the 24 advisory panel, Mike Masnick, the NRC, we had '93 25 hearings, those studies are entered into evidence as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309    www.nealrgross.com
 
33 1 we were going through this.                So, you already have it, 2 we can bring it, but it's already been entered into 3 evidence at an NRC hearing.
4                    MS. BERNABEI:        Is that -- I think we have 5 some of them, which we can hand up.
6                    CHAIR HAWKENS:              That's not necessary, 7 thank you.        In fact we prefer not to have that at this 8 juncture.        Now of course the LAR does contain, as I 9 said,        extensive    analyses,        and      although    you      make 10 representations about what Dr. Rasmussen has said and 11 what Dr. Kaku has said, there's nothing in your 12 pleadings which indicate they have reviewed the LAR, 13 is that correct?
14                    MS. BERNABEI:        No, but if we were granted 15 a hearing, we would get an expert that was capable of 16 reviewing it and giving an opinion.                      The whole thing 17 in our mind is premature.                        This has been rushed 18 through for no apparent purpose, to take this plant 19 that has been shut down comfortably for 30 years and 20 rush      it  through    to    decommissioning.            There's        no 21 reason, because this is not a great plan.                            So, we 22 think Mr. Epstein deserves a hearing.
23                    CHAIR HAWKENS:          Ms. Bernabei, I know you 24 weren't involved in the filing of the reply brief, but 25 the deadline for filing was December 5, and it was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
34 1 filed the next day without any representation that 2 good cause was satisfied.                In fact it erroneously 3 stated it was timely filed, and I'm wondering why we 4 should consider it, given --
5                MS. BERNABEI:        I can't answer that, other 6 than Mr. Epstein is pro se.
7                MR. EPSTEIN:              Yeah,    based    on      my 8 conversations with -- and I don't --
9                JUDGE TRIKOUROS:            Mr. Epstein, could you 10 use the microphone?
11                MR. EPSTEIN:          Yeah, this is probably a 12 horrible way to start the response, I'm pretty anal.
13 It was done a week before, I waited to file it, I was 14 under the impression that it was under the deadline, 15 that's why there was no comment as to -- because I 16 think you're actually right Judge Hawkens, I said it 17 was timely, because in my opinion, when I did the 18 calculation, and conversations I had, I was under the 19 impression it was timely.
20                There was no exigent circumstance that 21 caused it other than maybe I need a better calendar, 22 I don't know what to tell you.                But if you look at my 23 filings and pleadings, I'm always ahead of the game.
24                CHAIR HAWKENS:          Almost always.
25                MR. EPSTEIN:        Well, yeah, I mean again --
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35 1                CHAIR HAWKENS:          I understand, thank you.
2 That explains, I understand, thank you Mr. Epstein.
3                MR. EPSTEIN:            If      you  use  a    Jewish 4 calendar, I'm a couple days ahead, but I guess we're 5 using the lunar.
6                CHAIR HAWKENS:          All right.
7                MS. BERNABEI:          And I might just note, he 8 is pro se, and there's no prejudice.                      I mean when 9 you're dealing with a pro se, you give some leniency.
10                CHAIR HAWKENS: I understand. Do you have 11 any more questions for Ms. Bernabei before we?
12                JUDGE TRIKOUROS:              Yeah, I just want to 13 follow up on the criticality issue. It's your opinion 14 that      the criticality      possibilities        at  TMI-2      are 15 likely, or unlikely at the present time?
16                MS. BERNABEI: Let me run it the other way 17 for you, not to not answer your question. But I don't 18 think the burden is on Mr. Epstein to have someone 19 make that determination. I think it's on the licensee 20 and the staff to assure you, or whoever is going to 21 make the final decision, that it is not at all likely.
22 That they can represent that it is not at all likely.
23                And our opinion is that it's probable 24 enough, given this plan, that it has to be further 25 looked into, and that's why we want a hearing.
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36 1                MR. EPSTEIN:        Can I add something quickly 2 since I wrote it?      Real briefly.            This is what we were 3 told when the plant was being built, Unit One came 4 online in '74, TMI-2 in '79, the exact quote from the 5 company is an accident here is as likely as a meteor 6 falling from the sky. This is theoretical, and if you 7 look at what we said, it is unlikely.                  But when we had 8 the accident, failure of imagination.
9                Same thing, O rings in the space shuttle.
10 I just think we need, deserve the ability to have a 11 hearing to examine it.              So, nobody's saying it's 12 ultimately going to happen, hopefully it won't, I live 13 there.
14                MS. BERNABEI:          And can I just raise one 15 thing? This plant was built to sustain supposedly the 16 most severe accident, and you'll have to forgive me, 17 it's class eight, class nine, I can't remember the 18 classes any longer. It was meant to not have the core 19 melt under that serious an accident, but it exceeded 20 the basis on which it was built.                    That accident was 21 greater than what the NRC said licensees had to plan 22 for.
23                So, we've already had a problem with this 24 plant that the accident that occurred exceeded, and 25 led to, we believe exposure of radiation beyond the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
37 1 design basis that the NRC originally said could never 2 happen, it did happen.            I'm sorry to interrupt you.
3                  JUDGE TRIKOUROS:                Yeah, with respect, 4 again, I want to close this criticality question. The 5 licensee performed a fairly detailed analysis in the 6 LAR.      It looked like they made extremely conservative 7 assumptions      and  reached        the      conclusion      that      the 8 possibility      of  a    criticality            is    essentially        not 9 credible, that it is not a credible event.
10                  And  in      your      pleadings        you    did      not 11 specifically evaluate that at the level where we could 12 see that you've done a review of it and had reasons 13 why you believe it's incorrect.                    And you've told us 14 this morning that you would be satisfied if the staff 15 reviewed it and found it to be an acceptable analysis, 16 is that correct?
17                  MS. BERNABEI:            It depends on what the 18 staff does, it hasn't done it up to now.                            But the 19 reason we haven't done that analysis is because we 20 haven't had a hearing in which we could find an expert 21 who would apply that math.              We need a hearing so this 22 can be explored, that's what Mr. Epstein is asking 23 for, because that's what a hearing is for, it's to 24 challenge the assumptions.
25                  And I think frankly this whole thing is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
38 1 premature. You have a pretty inexperienced licensee 2 that talks about normalizing or regularizing this 3 plant, has no place for the waste, has no committed 4 space for the waste, and no water. It seems like it's 5 premature. The NRC staff should finish its review, we 6 can look at it, and we may still ask for a hearing, 7 but it should be able to be challenged in a hearing by 8 Mr. Epstein.
9                JUDGE TRIKOUROS:              Right, but prior to 10 getting to the hearing, there's a requirement that one 11 has to show that there's something to litigate, and 12 that has not been done in terms of this, and again I 13 want to focus on criticality, because I want to finish 14 that. And we'll talk about that with the staff when 15 they get to the podium.
16                MS. BERNABEI:          I think that the key on 17 this, and this is in -- and they weren't in the right 18 form, so we do have the declarations and testimony 19 from Michio Kaku, who is sort of a world famous 20 physicist, that it's not just the amount, it's also 21 the configuration, and that has not been addressed.
22 The configuration of the fuel.                They've said okay, up 23 to 1100, we know it can't go critical.                But one of the 24 estimates is it could be as much as 1300.
25                But Kaku makes the express statement that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
39 1 it's the configuration of the fuel, which also makes 2 this      a  more  complicated          problem,        and  it  can      go 3 critical.
4                    MR. EPSTEIN:            Can      I  add  something?
5 Because I wrote it, is the key point, as someone who 6 has tracked this issue for 43 years is not necessarily 7 commission, but omission.                  If you haven't looked at 8 the scenarios or viability of an external threat and 9 the      external    threat      reconfiguring          or  creating        an 10 accident that we haven't really looked at, it's hard 11 for me at the time -- I read the LAR.
12                    I can't look at something that wasn't 13 written, what I'm postulating is that we deserve the 14 opportunity to look at an external accelerant here.
15 This is all internal configuration, and theories are 16 only as good as the theory.                  And I'm saying that, my 17 profession is a Holocaust historian, and I believe 18 when you look at history and facts, you have people 19 who look at the facts, and you also have the context 20 of on the ground.
21                    And I think the two merge here is that the 22 experience that I've had, that we've had over time, 23 and that's why I put in there what Distenfeld came up 24 with, Lee Thonus came up with, Mike Masnick, who is a 25 good friend of mine. This has been a fluid adventure.
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40 1 You keep saying 99 percent, based on what I see in 2 Idaho, I think it could be 97 percent.                      So again, 3 you're starting from a place at 99 in the K effective 4 that can't happen that I don't agree with.                      And I'd 5 like the opportunity to argue that.
6                    JUDGE TRIKOUROS:            All right, fine, thank 7 you.
8                    CHAIR HAWKENS:          Anything else?      No, all 9 right, thank you very much.
10                    MS. ROMA:        Good morning, Your Honors.
11                    CHAIR HAWKENS:          Good morning, Ms. Roma.
12                    MS. ROMA: My name is Amy Roma, just again 13 for the court reporter, and I am representing TMI-2 14 Solutions.        I was briefly going to mention, I'm doing 15 some pivoting here based on the type of questions you 16 asked earlier, so I was going to briefly explain the 17 state of the plant, very briefly, because it goes into 18 the radiological risk that addresses both standing and 19 contentions.
20                    So, as you alluded to earlier, the 1979, 21 there was an accident at TMI-2, the plant shut down, 22 it only operated for a few months before the accident 23 occurred.        All the fuel has been defueled from the 24 plant.        Only about one percent of the spent fuel 25 remains on site, and that is dispersed throughout NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309      www.nealrgross.com
 
41 1 various systems. And it wasn't pulled out back in the 2 1980s when most of the defueling was done because of 3 the form that it took and the location that it was.
4                    So, there's some dust at the bottom of the 5 plant, there's some hardened spent fuel on piping and 6 equipment, and there's some film on other equipment.
7 So, it's not just sitting like a core configured for 8 an operating plant, it's dispersed throughout. So, it 9 wasn't        removed    at      the    time,        because    it      was 10 inaccessible or too difficult to pull out as part of 11 the defueling.
12                    So, back in the 80s, 99 percent of the 13 fuel was taken out of the plant, put into casks, and 14 sent offsite.          So, it's now at a DOE national lab.
15 So, what we're dealing with here when we're looking at 16 any radiological risk from the plant, is actually a 17 very      small    amount    of    material.            In  2020      TMI-2 18 Solutions -- the plant has been sitting for basically 19 30 years in a monitored manner, per an amendment to 20 the NRC license in the early 90s that transferred it 21 to a possession only license.
22                    So, it's not been operating, there hasn't 23 really been a lot of activities at the site, and in 24 2020, TMI-2 Solutions, who is the most experienced 25 nuclear decommissioning company in the United States NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
42 1 acquired the plant for purposes of decommissioning the 2 facility, removing the remaining radioactive material, 3 and releasing the site.              So, the fact that this was 4 going to be moving into an active decommissioning site 5 has been known for quite some time.
6                  And in fact was inevitable, since the 7 plant was shut down, and moved into monitored storage 8 in 1990.      The decommissioning of the TMI-2 plant is 9 separated essentially for purposes of our discussion 10 today into two remaining phases, phase 1B and phase 11 two.      Phase 1B is the next phase of decommissioning, 12 where TMI-2 Solutions will be focused on reducing the 13 source term at the plant by removing the remaining 14 spent fuel and moving it into spent fuel casks.
15                  The  total      number        of    casks that    we're 16 talking about here is estimated to be in the 12 to 15 17 cask total range.            So, unlike an operating plant, 18 which has an ISFSI with 50 to 100 or more spent fuel 19 casks, we're only talking about 12 to 15 casks.                          So, 20 it's a small amount of casks.                  And it's to remove the 21 residual radioactive material in order to reduce the 22 dose to the decommissioning workers, and in line with 23 ALARA, the as low as reasonably achievable principle.
24                  So, once this is done, TMI-2 Solutions 25 will essentially have made the plant more in line with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
43 1 other        shut  down    facilities          that      are  undergoing 2 decommissioning.          The environmental impacts of the 3 phase 1B activities were previously analyzed by the 4 NRC in the programmatic environmental impact statement 5 for TMI-2.
6                  For the next phase, in phase two, the 7 plant will be dismantled with equipment like the 8 reactor vessel head being one of the last things to be 9 dismantled, and otherwise, after all the spent fuel 10 debris has been removed.                So, removing kind of the 11 major equipment that is around the plant won't happen 12 until        towards  the    end    stage      of    phase  two.        The 13 environmental impacts of the phase two activities were 14 previously        analyzed      by  the      NRC,      and  the  generic 15 environmental impact statement for TMI-2.
16                  So,  in    order      to    transition      from      the 17 monitored stage to the active decommissioning stage in 18 phases 1B and 2, TMI-2 Solutions will need to submit 19 a number of license amendment requests in order to 20 move into that decommissioning phase.
21                  JUDGE TRIKOUROS:              Let me ask you, the 22 material that will go into these canisters, will it be 23 only spent nuclear fuel, or will it be structural 24 material to which the fuel has adhered and somehow 25 connected?
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44 1                    MS. ROMA: I think they're going to try to 2 get it off as much as possible, and if I need to, I 3 can refer to our technical specialist that we have 4 here.        They're going to try to get it off as much as 5 possible and then put it into the casks for storage 6 and disposal.
7                    JUDGE TRIKOUROS:            From the material that 8 I've seen in the pleadings, it looks like the plant 9 will be sort of cut up into pieces, which will include 10 the nuclear material.
11                    MS. ROMA:        Yes.
12                    JUDGE TRIKOUROS:            And that material will 13 be cut up in such a manner that it will fit in the 14 canisters?
15                    MS. ROMA:        That is my understanding.
16                    JUDGE TRIKOUROS:            All right, thank you.
17                    MS. ROMA:          So, the particular license 18 amendment that we're talking about today is limited in 19 scope,        and  it    is      consistent            with  the      TMI-2 20 decommissioning plan that has been in place for a 21 number of years.              The LAR would amend the TMI-2 22 possession        only  license        and      the    associated      PDMS 23 related tech specs, because it's no longer going to be 24 in the post defueling monitored storage state, and is 25 instead going to be in a decommissioning state.
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45 1                    There are a number of license conditions 2 and technical specifications that need to be removed 3 from the license in order to permit them to move into 4 that next phase.        Other factors, other administrative 5 changes are the administrative control will be moved 6 into -- will be removed from the license and moved 7 into a decommissioning quality assurance program for 8 example.
9                    Notably, the LAR does not propose changing 10 the reactor building, so structurally TMI-2 is going 11 to remain essentially the same, with no new risks 12 raised under this license amendment request.                              This 13 also        aligns    with      the    NRC        staff's    preliminary 14 determination with respect to the LAR involving a no 15 significant hazards consideration, which means that 16 the proposed license amendment does not involve a 17 significant increase in probability, or create the 18 possibility of an accident that has not already been 19 previously analyzed.
20                    To be admitted into a proceeding on this 21 license amendment request as required by 10 CFR 2.309, 22 the petitioner must demonstrate standing and offer at 23 least one admissible contention.                      The fact that he is 24 a pro se litigant no longer pro se is irrelevant to 25 meeting        the  NRC  regulatory          requirements      for      both NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
46 1 standing and for contention of this ability, and the 2 applicant is still required to align with Commission 3 case law in this area.
4                CHAIR HAWKENS:          Are you familiar with the 5 Seabrook case that Ms. Bernabei mentioned, which said 6 case law relaxes the standing standards for pro se 7 litigants?
8                MS. ROMA:      So, it's relaxed, but it's not 9 eliminated.      He still has to make the showings of 10 standards, which is either traditional proximity or 11 discretionary standard. He can probably just be -- we 12 can probably be a little bit more permissive in how he 13 gets there, but there's still a regulatory requirement 14 for standing, and there's still a Commission precedent 15 on how standing is met.
16                And that is not to say that just because 17 he cannot meet the requirements for a hearing on this 18 license amendment request, that the petitioner cannot 19 participate in other ways, such as through submitting 20 comments, participating in public meetings, or joining 21 the citizens advisory panel for the plant.                But the 22 hearing requirements are strict by the design, and the 23 petitioner does not even come near meeting their 24 threshold.
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47 1 going to address standing, and then I'm going to move 2 into the contention admissibility.                      With respect to 3 standing, the petitioner asserts that he has standing 4 to intervene under both traditional and proximity 5 standing. And it sounds like their focus is really on 6 meeting the threshold for traditional standing, and 7 also      requests  that      he    be      granted      discretionary 8 intervention.
9                  He does not meet the criteria, as I think 10 the board has already acknowledge, for discretionary 11 intervention, so I'm not going to address it, on its 12 face,        it doesn't      meet      the      requirements        of      the 13 regulation.        So,    standing          is    not  a  mere      legal 14 technicality,        it    has      an      essential        element        in 15 determining whether there is any legitimate role for 16 this adjudicatory body in dealing with a particular 17 grievance raised by the petitioner.
18                  So, I'm going to walk through the elements 19 of standing and explain why he doesn't meet them.
20 With respect to traditional standing, in order to 21 demonstrate that he has met traditional standing, the 22 petitioner must show that he has personally suffered 23 or will suffer a distinct harm known as an injury in 24 fact, that the injury is caused by the challenged 25 action, that the injury is likely to be redressed by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
48 1 a favorable decision.
2                  So, the reason I wanted to take the time 3 to go through the condition of the plant and the scope 4 of the license amendment request that is being made is 5 because the petitioner has not shown how he can meet 6 the injury in fact element.                When asserting standing 7 in a license amendment proceeding such as this one, it 8 is incumbent upon the petitioner to provide some 9 plausible      chain    of    causation          explaining    how      the 10 proposed license amendment will result in a distinct 11 and substantiated new harm or threat that will lead to 12 offsite radiological consequences.
13                  To show injury in fact, the Commission has 14 held      that  pleadings        must    be      more  than  academic 15 exercises in the conceivable. A plaintiff must allege 16 that      he  has  or    will      in    fact      be  harmed    by      the 17 challenged agency action, not that he can imagine 18 circumstances in which he can be affected by the 19 agency's action.        And I just want to push back on the 20 contentions made by the petitioner's counsel just now, 21 that all the burden is on the applicant and the NRC 22 staff to prove that none of the statements that the 23 petitioner says are true.
24                  Those are not the legal standards for this 25 proceeding.        The burden on him is to show that he NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
49 1 meets the regulatory requirements for both standing 2 and contentions to intervene, and that he provides the 3 logical argument, as well as any necessary evidence in 4 order to make his case.            And so, it's not on us, just 5 because he says it's true, to assume it is, and prove 6 that it's not.
7                The  petitioner            argues    that    --      his 8 arguments here have been insufficient to establish 9 traditional standing to intervene, as the petitioner 10 never squarely addresses the injury element. When the 11 petitioner claims the LAR will result in adverse 12 health and safety risk to him personally, he's failed 13 to      provide  any  evidentiary            support    or  plausible 14 connection to demonstrate that such an injury is more 15 than speculative, or somehow traceable to the actions 16 requested in the LAR.
17                Especially        since      TMI-2    is  permanently 18 defueled, and the spent fuel has been moved offsite.
19 There's such a small amount of radioactive material 20 here, he has not shown how that small amount of 21 radioactive material could possibly cause him injury.
22 The petitioner also fails to show that plausible chain 23 of causation, explaining that the LAR would result in 24 a distinct substantiated harm or threat --
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50 1 please?
2                  MS. ROMA:        Yes.
3                  CHAIR HAWKENS: They do say that they have 4 -- in their pleadings, they represent statements by 5 Dr.      Rasmussen  and    Dr. Kaku,      that    criticality        is 6 conceivable, not likely, but could be possible.                          How 7 do you respond to that?            I think they seem to hinge a 8 lot of their contention admissibility, as well as 9 standing arguments on that.
10                  MS. ROMA: So, I think we've seen a lot of 11 attempts      in  the    previous          arguments    to    try      to 12 rehabilitate a petition that doesn't otherwise meet 13 the contention admissibility standards.                    So, in the 14 actual petition for a hearing to intervene, there's 15 random quotes to reports with no reports provided.
16 There's no explanation of the qualifications of the 17 people that are being quoted.
18                  There's no explanation of how what is 19 being quoted possibly or even logically connects to 20 the arguments at hand.            He quotes some numbers saying 21 there's this amount of material, and that amount of 22 material, but I don't know where those come from or 23 what the bases are.          So, we're left sorting a needle 24 through the haystack trying to make sense --
25                  CHAIR HAWKENS:          Hold on, they did include NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
51 1 a paper by Dr. Kaku in the reply, and I just want to 2 make sure, it appears since you did not object to the 3 untimeliness of it, that you would not oppose us 4 exercising our discretion to consider it, is that?
5                  MS. ROMA:      No, that was my next sentence, 6 was that it was untimely.                  It was not submitted in 7 time, it should not be considered in this proceeding.
8 Likewise, all the arguments that were made --
9                  CHAIR HAWKENS:          There's some irony in you 10 making an untimely objection to their untimely reply.
11                  MS. ROMA:      Well, also the filing that was 12 made last night at 7:30 at night when we have a 10:00 13 o'clock        oral argument,        of    which      they extensively 14 incorporated new water arguments, also it's not part 15 of this proceeding today.
16                  CHAIR HAWKENS:          That's not part of this 17 proceeding, we agree.
18                  MS. ROMA:        And so to the extent that in 19 the reply brief, he attaches one report, it still is 20 not clear whether report that was attached is the 1987 21 report that was referenced in the petition.                      It also, 22 in order to put the applicant and the staff on notice 23 as to the arguments he's making, had to be attached in 24 the original petition that he filed. I looked through 25 it, I think calling it a report appears generous.
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52 1                    It doesn't appear to have any technical 2 analysis in it, it doesn't have any citations to 3 underlying information upon which he was relying, 4 there's no explanation of his credentials or what he's 5 talking        about.      And    so,    even      on    its  face,      even 6 assuming it is admissible, which I contend it's not, 7 even assuming that the filing was timely and that we 8 should        consider    it,      it  should        have    been    in      the 9 original petition.
10                    So that we can better evaluate what the 11 arguments are that the petitioner is trying to make.
12 Otherwise, again, we're all left trying to find a 13 needle in the haystack about what the arguments are 14 that he's making.            So, the other thing that I wanted 15 to point out is that the NRC has consistently denied 16 standing          when    the      threat        of      injury    was        too 17 speculative.
18                    So,  we    have      no      evidence,      no    logical 19 explanation, no expert witness, no legal analysis to 20 explain how this injury is even plausible.                              And in 21 fact, with respect to the criticality, and I'll go 22 into this more when I go into the contentions, I did 23 note earlier that the programmatic EIS and the generic 24 EIS are bounding for both the phase 1B and phase 2 25 decommissioning.
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53 1                  And  in    the    programmatic,          I  ask,      for 2 example which covers the phase 1B decommissioning, the 3 NRC did look at criticality and did determine that it 4 was not credible.            And so, that was already in a 5 previous EIS that was not addressed at all by the 6 petitioner.        And if you look at the -- when the 7 applicant first moved into the PDMS stage, they had to 8 submit a defueling completion report and a license 9 amendment request in order to move to a possession 10 only license.
11                  This was 30 years ago, and in order to do 12 that, they had to show that criticality was not 13 possible based on the amount of material and the 14 configuration of the plant.              So, that is discussed to 15 some extent in the license amendment request in the, 16 I believe it's attachment five, which is the spent 17 fuel mass limit analysis.
18                  So, the LAR also states that the prior 19 analysis shows that there is no postulated accidents 20 that        can  occur      during        the        next    phase        of 21 decommissioning        that      could      be    enabled    under      the 22 license amendment request, and that could result in 23 the dose at the site boundary exceeding regulatory 24 limits.
25                  JUDGE ARNOLD:        If I may interrupt, you've NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
54 1 hit upon my single question for you.                  I noted that in 2 your answer, you stated that exact thing.                      When you 3 say prior analysis, were these just analyses that have 4 been done, were sitting on the shelf, or were they for 5 a licensing action?
6                MS. ROMA: The programmatic environmental 7 impact statement and the generic environmental impact 8 statement I believe contains analysis.
9                JUDGE ARNOLD:          So, these conclusions are 10 conclusions that have been reviewed by the NRC and 11 factored into a licensing action?
12                MS. ROMA:        Correct.
13                JUDGE ARNOLD:          Thank you.
14                MS. ROMA: With respect to proximity based 15 standing,      the    petitioner            claims      that    he      has 16 demonstrated      standing      by    his      proximity    to    TMI-2, 17 claiming he lives within 12 miles of the plant.
18 However, he fails to meet the standard for proximity 19 standard as well.          As this board noted, the only 20 presumption for proximity standing for 50 miles is for 21 a      significant    licensing          action      such    as      the 22 construction of a new plant.
23                For    everything            else,    to    establish 24 proximity standing, the standard is more than just 25 living near the site.            The petitioner has the burden NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
55 1 to provide a fact specific standing allegation, not 2 just conclusionary statements, and he needs to show 3 how      there's    an    obvious        potential        for    offsite 4 consequences.
5                  Again, the reason why I wanted to start my 6 argument by explaining what the radiological footprint 7 at the plant was, and what we were dealing with, and 8 the fact that significant prior submissions to the 9 NRC, including NEPA analysis conducted by the NRC show 10 that recriticality is not possible. The fact that the 11 applicant provided extensive information on this in 12 the license amendment request doesn't change the fact 13 that because it's not credible, the likelihood of him 14 being        able  to  demonstrate            that    he  has    injury 15 essentially disappears.
16                  But with proximity standing, it's not just 17 that he can be injured, it's that there's an obvious 18 potential        for  offsite      consequences.            And  a    very 19 similar case to this one, in the Zion licensing 20 proceeding, and the Zion plant by the way, is also 21 decommissioned by Energy Solutions, the parent company 22 of      TMI-2    Solutions,        so      they      have    extensive 23 decommissioning experience.
24                  The petitioner in that proceeding tried to 25 argue proximity standing, and that petitioner was ten NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
56 1 miles away, so closer than the current petitioner, and 2 in that case the licensing board said that given the 3 shut down nature of the plant, the fact that the fuel 4 has been removed from the core and is in the spent 5 fuel pool, there is no obvious potential for off-site 6 consequences.
7                  In that plant they still had spent fuel on 8 site sitting in a spent fuel pool.                    Here we've had 99 9 percent of the spent fuel removed, and it's off site 10 in Idaho.      And so, just like the petitioner couldn't 11 get proximity standing in that case, the petitioner 12 here also cannot satisfy proximity standing, because 13 there's        no    obvious        potential            for    off-site 14 consequences.
15                  CHAIR HAWKENS:          Ms. Roma, can you address 16 petitioner's claim that this license amendment would 17 condemn TMI to become a high level waste site for an 18 indefinite period of time at an undisclosed area on 19 the site?
20                  MS. ROMA:        So, the spent fuel that is 21 going to be removed from the plant is going to go into 22 a spent fuel cask, and it's going to be put on an 23 independent spent fuel storage installation facility, 24 an ISFSI, just like every other reactor in the United 25 States.
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57 1                CHAIR HAWKENS: Would that require another 2 discrete license amendment request, or is that?
3                MS. ROMA:      For the ISFSI, I don't believe 4 the ISFSI has currently been built. There's a general 5 license for the ISFSI.
6                CHAIR HAWKENS:          All right, so it would go 7 into an existing ISFSI.
8                MS. ROMA:        Yes.          It  also  will      not 9 contribute to the criticality argument, which is the 10 contention that he's arguing.
11                JUDGE TRIKOUROS:                Well, let me ask a 12 question regarding that.              There's a phase three to 13 this decommissioning process I understand.                          Phase 14 three would be the management of all of those high 15 integrity containers that are grouped together in an 16 ISFSI, and that contain all the remaining spent fuel?
17                MS. ROMA:        Yes, correct.
18                JUDGE TRIKOUROS:            But again, not separate 19 spent fuel, but tied with the structural elements as 20 well?
21                MS. ROMA:        Correct.
22                JUDGE TRIKOUROS:            So, the likelihood of a 23 criticality in all of those containers, would that be 24 any different than the likelihood of criticality with 25 the fuel currently sitting inside the reactor vessel NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
58 1 and the attached piping I assume?
2                MS. ROMA:        I would imagine it would be 3 even less, so even less than non-critical.
4                JUDGE TRIKOUROS:            It would be though, at 5 the mercy of the elements, right?                    So, that ISFSI 6 would have to be designed for, I assume earthquake, 7 flood, and TMI has had issues with floods in the past, 8 et cetera, tornadoes.
9                MS. ROMA:          Yes, it would have to be 10 designed to withstand all of those.
11                JUDGE TRIKOUROS: Right, and that would be 12 submitted to the NRC for approval, I assume?
13                MS. ROMA: Correct, and the NRC also needs 14 to approve the casks that will be used to hold the 15 debris.
16                JUDGE    TRIKOUROS:              The  high  integrity 17 canisters haven't been approved yet, is that what 18 you're saying?
19                MS. ROMA:          So, there's tons of MPCs, 20 multipurpose canisters that are used for spent fuel 21 storage, but I believe that the one that will be used 22 for this specific facility is under review from the 23 NRC.
24                JUDGE TRIKOUROS: All right, but it hasn't 25 been licensed yet by the NRC?
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59 1                  MS. ROMA:        Correct.
2                  JUDGE TRIKOUROS:            Okay.
3                  CHAIR HAWKENS:            But that's not part of 4 this license amendment request Ms. Roma?
5                  MS. ROMA:          No, it's not part of this 6 license amendment request.
7                  CHAIR HAWKENS:          So, would that mean that 8 the challenges to the future storage of this would 9 appear to be outside the scope of this proceeding, 10 because it's not related to this LAR?
11                  MS. ROMA: That is correct. I'm now going 12 to turn to the contention admissibility standards, 13 okay?        To grant the petition, the board must first 14 find that the petitioner not only meets the NRC 15 standing requirements, but also has submitted at least 16 one      contention    that      satisfies          each of    the      six 17 admissibility        criteria        set        forth    in    10      CFR 18 2.309(f)(1).
19                  The proposed contentions must be rejected, 20 because the petitioner's claims, which we address as 21 a single contention, because I think Judge Hawkens, as 22 you noted in the questioning that you had before, the 23 only difference in the actual words of the contention 24 is one contention says criticality, and the other one 25 doesn't, but then the arguments are copy and pasted NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
60 1 from each other and nearly identical, so we just 2 combine them into one.
3                    So, this contention fails to meet the 4 contention          admissibility          criteria,      including        by 5 failure to show a genuine dispute of fact or law with 6 the license amendment request, and failing to offer 7 anything more than speculative assertions unsupported 8 by evidence.        This is particularly important, because 9 the NRC's six contention admissibility requirements 10 are according to the Commission, strict by design, and 11 they serve multiple functions.
12                    Including focusing the hearing process on 13 real disputes that can be resolved to giving all 14 parties notice regarding the petitioner's grievances, 15 and three, assuring that hearings are triggered only 16 by petitioners able to provide at least a minimum 17 factual and legal foundation in support of their 18 contentions.
19                    It's not up to the hearing stage to see if 20 the petitioner can find a witness that can help 21 support their contentions or evidence to support their 22 contentions.          It's a threshold consideration as to 23 whether the contention is admissible in the first 24 place.        Otherwise we're left with just the petitioner 25 saying all these things can happen, and therefore I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
61 1 want a hearing, so that I can eventually prove it to 2 you.
3                And so, any claims that this is moving 4 along fast, or somehow the petitioner didn't know this 5 was coming, when TMI-2 Solutions acquired this plant 6 in 2020, at which he tried to petition to intervene, 7 and was denied, he knew that they were moving towards 8 decommissioning.        This specific license amendment 9 request was submitted over a year ago.
10                The notice in the Federal Register came 11 out months ago, and then he filed the petition.                          So, 12 we've had plenty of time to know this was coming, and 13 for the petitioner to be able to kind of assemble the 14 bare minimum of factual and legal information he 15 needed in order to make the argument, he just failed 16 to in his petition.
17                CHAIR HAWKENS:          Ms. Roma, can you address 18 Ms. Bernabei's assertion that it's implicit in Mr.
19 Epstein's      pleading      that      he    was      challenging        the 20 categorical exclusion?
21                MS. ROMA:        I did not find it explicit at 22 all.
23                CHAIR HAWKENS: Maybe I misspoke, she said 24 it was implicit.
25                MS. ROMA: Yes, I did not find it implicit NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
62 1 either.        I could not tell what NEPA criteria he was 2 trying to challenge.              He was just saying there's all 3 these accidents, it's going to make everything go 4 critical, and therefore NEPA requires you to consider 5 this        with  no    analysis        of      what    NEPA    requires.
6 Absolutely no analysis that there's an existing NEPA 7 analysis with the programmatic EIS, and with the 8 generic EIS that covers both phase 1B and two.
9                  He just said there was no NEPA.                    But he 10 also did not say why the applicant did not meet the 11 criteria        for  a  categoric          exclusion.          And      it's 12 expressly explained in detail in the license amendment 13 request, and there's an attachment, I can't remember, 14 maybe it's attachment one, section four explains in 15 detail why it meets the criteria for a categorical 16 exclusion.
17                  And then the NRC's analysis in the Federal 18 Register, he didn't have to dig too deep to find the 19 categorical exclusion, or the NRC's analysis in the 20 Federal Register notice walking through why the NRC 21 was      making  an    initial      finding        of  no  significant 22 impacts with respect to whether this license amendment 23 introduced        any    new      risk        that      was    previously 24 unanalyzed.
25                  So,    I    think        we      have    that  entirely NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
63 1 unaddressed in the petition, and it was up to this 2 licensing board and the staff and the applicant to try 3 to piece through what NEPA argument he was trying to 4 make.        And at bottom, first he doesn't challenge the 5 categorical exclusion or explain why the categorical 6 exclusion does not apply, and that's a legal analysis 7 that he could have walked through.
8                  Second, he didn't show that there was no 9 analysis of credible accidents or criticality that 10 needed to be done under NEPA and ignored the fact of 11 the PEIS and GEIS in analyzing these issues.                              And 12 third, he says you have to consider it because I said, 13 that's basically what it comes down to.                          And now 14 they're trying to push it back on us and say well no, 15 we have to prove what you're saying doesn't make 16 sense.
17                  So, what we're arguing is you did not 18 explain how any of these accidents are credible, and 19 therefore        warrant    a    new    NEPA      analysis  for      this 20 specific license amendment request.                      And he kind of 21 conflates a lot of different things, including arguing 22 that the NEPA analysis requires a consideration of the 23 environmental impacts of terrorism, which is not true 24 for this case.
25                  I believe that you mentioned the Third NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
64 1 Circuit        decision  saying      that      terrorism    events        at 2 nuclear        power  plants      are    too      speculative      to      be 3 required to be considered under NEPA.                      And the Third 4 Circuit is where the TMI-2 plant is located.                      And so, 5 we don't have any legal connecting of the dots, and we 6 don't have any factual connecting of the dots to try 7 to make this argument make sense.                      We have to read a 8 lot between the lines to even come to the analysis 9 that I just gave.
10                  CHAIR HAWKENS:          If this licensing board 11 were to conclude that Mr. Epstein did not argue that 12 an exception should be applied here to the categorical 13 exclusion, does that result in the rejection of both 14 contentions?
15                  MS. ROMA:        No, then we would need -- if 16 this licensing board held that a categorical exclusion 17 was not --
18                  CHAIR HAWKENS: If we found that he waived 19 or failed to argue that categorical exclusion should 20 not have been applied, should we therefore conclude 21 that both contentions should be rejected?
22                  MS. ROMA:        Yes, because there'd be no 23 basis to even consider them.
24                  CHAIR HAWKENS:            Okay, I just wanted to 25 make sure that was your position.
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65 1                  MS. ROMA:        Okay, I wanted to make sure I 2 was understanding your question.
3                  CHAIR HAWKENS:          I had a lot of negatives 4 in there.
5                  MS. ROMA:        I was trying to follow them, 6 but I got there in the end.                And so the requirements 7 for contention admissibility again, is to focus on 8 real disputes, giving the parties notice of what the 9 actual grievances are, and having something factually 10 or legally to litigate.              That's where there has to be 11 a genuine dispute of material fact in law.
12                  We don't have any of that here.                At best 13 we have a promise that it would be coming in the event 14 that a hearing is granted.                And that is not the time, 15 that        doesn't  meet      the      contention      admissibility 16 standards set forth in the regulations.                      And then 17 let's see, we've just covered some of my arguments, so 18 I'm trying to skip ahead.                So, I address the NEPA.
19                  Here, the NEPA analysis is not required 20 for this LAR, because we've already said that the 21 license amendment request is bounded by the prior 22 environmental impact statements in any event, and the 23 LAR        introduces      no      new        significant    hazards, 24 considerations that would increase the probability or 25 create the possibility of an accident that was not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
66 1 otherwise considered.              And then --
2                  CHAIR HAWKENS:          Ms. Roma, may I interrupt 3 again?
4                  MS. ROMA:        Yes.
5                  CHAIR HAWKENS:            Mr. Epstein indicates in 6 his reply that the remaining mass of core debris 7 material in TMI-2 was determined using theoretical 8 calculations        that    were      not      peer    reviewed,        are 9 calculations and analyses in the LAR required to be 10 peer reviewed?
11                  MS. ROMA: There's no requirement that any 12 document that's ever submitted to the NRC be peer 13 reviewed, it's not publication in a journal, it's the 14 preparation submission of a licensing submittal for 15 the NRC, and there's no requirements for peer review.
16 I would also note that if you look at the attachment 17 five of the LAR, at page five and six they explain how 18 the analysis came to be.
19                  So this isn't an analysis, the spent fuel 20 mass limits are not an analysis in a vacuum.                      This is 21 building upon over 30 years of information that has 22 been evaluated by the licensee, and a lot of that 23 initial analysis about recriticality, and proving to 24 the      NRC  that  criticality          was      not  possible        was 25 submitted as part of the possession only license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
67 1 transmission.          And so, in that they had actually a 2 slightly higher number.
3                    And if you look at the attachment five in 4 the license amendment request, it actually explains 5 how they came to a slightly lower number for purposes 6 of those calculations, and among other things it was 7 based        on  physical    information.                So,  it  kind        of 8 explains what information went into that, and it's 9 actually a pretty extensive attachment that walks 10 through the analysis that they did on how to get to 11 that number.
12                    CHAIR    HAWKENS:            I    see    your  time      has 13 expired --
14                    JUDGE TRIKOUROS: Let me just -- should we 15 --
16                    CHAIR HAWKENS:          Go ahead, no, if you have 17 a question.
18                    JUDGE    TRIKOUROS:                Mr. Epstein        was 19 concerned that there were no design basis accidents 20 associated with TMI-2, and I was wondering if you 21 could explain why there are no design basis accidents 22 associated with TMI-2?
23                    MS. ROMA:        There are currently no design 24 basis accidents for TMI-2, because it doesn't have a 25 reactor        vessel  pressure          boundary,        so  it's        not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
68 1 required.
2                  JUDGE TRIKOUROS:            The analysis presented 3 in the LAR basically says without a reactor pressure 4 boundary, and without an event that exceeds 10 CFR 5 100.11, there cannot be a design basis accident. Does 6 that mean there is no accident, or that it simply 7 doesn't meet the definition of a design basis accident 8 under Part 50 requirements?
9                  MS. ROMA:        It means it doesn't meet the 10 definition of a design basis accident, and so --
11                  JUDGE TRIKOUROS:              Right, not that there 12 are no accidents.
13                  MS. ROMA:        Correct.
14                  JUDGE TRIKOUROS:            Thank you.
15                  MS. ROMA:        Thank you.
16                  CHAIR    HAWKENS:              Did    you  have        any 17 questions?
18                  JUDGE ARNOLD:          No.
19                  CHAIR HAWKENS:          Okay.
20                  MR. McMANUS:        May it please the board, my 21 name is Joseph McManus, and I am the representing 22 counsel for the NRC staff. I realize Your Honors have 23 read our brief, but I'd like to reiterate that it is 24 the staff's position that the petitioner has not met 25 his        burden  in    establishing              standing  in      this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
69 1 proceeding, and that the proffered contentions do not 2 meet        the Commission's          contention          admissibility 3 requirements.
4                Though,      I'd    like      to    start  with      some 5 background.      TMI-2 is currently in a safe store like 6 position condition called post defueled monitoring 7 storage, or PDMS.          The facility was authorized for 8 this status in 1993 via license amendment.                      TMI-2 is 9 a defueled reactor, although some fuel debris remains 10 at the site.        This proceeding concerns a license 11 amendment request that proposes to delete certain 12 technical specifications and limiting conditions for 13 PDMS.
14                Other requirements that are no longer 15 applicable to the facility, updating safe fuel mass 16 limits, and proposes administrative changes to the 17 TMI-2 license.      The licensee states that it submitted 18 this application to support its ability to enter 19 active radiological decommissioning.                      Regarding the 20 staff's status on the review of the application, the 21 NRC staff is currently in review of the application, 22 and has made no final determination on whether to 23 grant the application as of yet.
24                The staff sent out requests for additional 25 information to the licensee within the last month.
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70 1 The NRC staff has not yet conducted its safety or NEPA 2 evaluation, so to repeat, has accordingly made no 3 determination whether it will grant TMI-2 Solutions' 4 license        amendment      request.              Returning      to      the 5 petition's standing in this proceeding, it is the NRC 6 staff's position that the petitioner has not met his 7 burden under relevant NRC case law.
8                    In a license amendment case such as this, 9 petitioner        needs    to    assert        an      injury    in      fact 10 associated with the license amendment at hand, not 11 argue        general  objections          or    grievances      with      the 12 facility or licensee.              Here the petitioner failed to 13 establish        a  plausible        nexus      between      the  proposed 14 license amendment and his asserted harm, and also 15 failed to indicate --
16                    CHAIR      HAWKENS:                    Counsel        quick 17 interruption.          When you said the staff has not yet 18 completed its NEPA analysis, do I understand you to 19 mean the staff has not yet examined the categorical 20 exclusion conclusion reached by TMI-2 Solutions?
21                    MR. McMANUS:          It's made its preliminary 22 finding, but it hasn't --
23                    CHAIR HAWKENS:              So, when you say you 24 haven't done your NEPA analysis, that's what you're 25 referring to?
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71 1                    MR. McMANUS:        Correct.
2                    CHAIR HAWKENS:          Okay, thank you.
3                    MR. McMANUS:          So, going to petitioner's 4 standing in the proceeding, here the petitioner failed 5 to establish a plausible nexus between the proposed 6 license amendment and its asserted harm. And has also 7 failed to indicate how the proposed license amendment 8 would obviously increase the risk of an off-site 9 release of radioactive fission products, as instructed 10 by the Commission's 1999 Zion decision.
11                    For the reasons stated in the staff's 12 brief,        the  Commission's        Zion        decision  concerning 13 standing is directly on point, and this board should 14 find it controlling. As the TMI-1 and 2 board in 2020 15 did in another similar license amendment proceeding.
16 The petitioner has not established standing under 17 traditional judicial standing requirements or the 18 proximity presumption.
19                    Petitioner        should          also  be      denied 20 discretionary standing by this board as a matter of 21 law, which I think we've discussed earlier today. For 22 these reasons, the petition should be denied. Turning 23 to the proffered contentions, the petitioner argues 24 that the license amendment request does not comply 25 with NEPA, because it failed to consider the potential NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
72 1 for harm that would result from an airplane crash, 2 explosion, fire, or terrorist attack.
3                    And  that      significant          and  reasonable 4 foreseeable harm could result in recriticality from an 5 airline crash explosion, fire, or terrorist attack.
6 The hearing request should not be granted because none 7 of these environmental contentions are admissible 8 under 10 CFR 2.309(f)(1).                And again, the petitioner 9 fails        to  connect    his    asserted          claims  with      the 10 licensing action and the applicable requirements at 11 hand.
12                    In the license amendment request, the 13 licensee argues that the proposed changes to the 14 license meet the criteria for a categorical exclusion 15 under 10 CFR 51.22(c)(9).                  The petitioner does not 16 challenge the licensee's proposal, notwithstanding the 17 process for him to challenge categorical exclusions by 18 showing special circumstances, or by showing that the 19 license amendment, if granted, would increase releases 20 of effluence, or increase individual or cumulative 21 occupational radiation exposure.
22                    CHAIR HAWKENS:          Counsel, why shouldn't we 23 agree        with  Ms. Bernabei        that      that  argument        was 24 implicit in the pro se petitioner's pleading?
25                    MR. McMANUS:          Well, Your Honor, I don't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
73 1 think that -- well, speaking on behalf of the NRC 2 staff, it was not implicit.                All parties have to be 3 put on notice, and there was no indication that the 4 petitioner was challenging the special circumstances 5 or any categorical exclusion. Going back to the TMI-1 6 and 2 case in 2020, the petitioner actually was put on 7 notice on how to challenge the special circumstances.
8                He was the petitioner in that case, and in 9 that decision, it was very similar situation, it was 10 a license amendment case for TMI-1 and 2, and in that 11 decision by that licensing board, it was a similar 12 finding, or that's what the board held, that the 13 petitioner then failed to challenge the categorical 14 exclusion. So, as we have here, the petitioner was 15 put on notice on how to challenge the categorical 16 exclusion, and --
17                CHAIR HAWKENS:          As I recall, that aspect 18 of the licensing board's conclusion was affirmed by 19 the Commission, and that's why the Commission rejected 20 the petition, is that correct?
21                MR. McMANUS:            Yes,      I  recall    it      was 22 appealed, or one aspect was appealed, but I believe it 23 was affirmed, that's correct judge.
24                CHAIR HAWKENS:          Thank you.      Counsel, can 25 you address in the pleading, Mr. Epstein claimed that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
74 1 the      proposed  amendment        undermines          the  cleanup        by 2 deleting and modifying technical specs for the PDMS 3 surveillance requirements and administrative controls, 4 and claims that's an adequate basis for going forward?
5                MR. McMANUS:        Well, Your Honor, all I can 6 really say at this time is the NRC staff is still 7 conducting its review.              I don't see that in the --
8 besides his bare assertions, I didn't see any evidence 9 or factual basis to back that up, besides just the 10 assertion.      So, I didn't see the dispute, or a direct 11 attack on the application, or pointing to directly 12 where that dispute was between where in fact the 13 petitioner is challenging against the application.
14                So, besides just that bare assertion, I 15 can't really speak to that, that's all I have.
16                CHAIR HAWKENS:            All right, thank you.
17                MR. McMANUS:            So, just continuing on, 18 ultimately the proffered contingents did not meet the 19 2.309(f)(1)      standard        either      because      they're        not 20 adequately supported by facts or expert opinion, they 21 are out of scope, or they fail to show a genuine 22 dispute with the application.                For example, regarding 23 the      petition  being      supported          by    facts  or    expert 24 opinion, certain claims reference particular studies 25 without citations to those studies, and the petitioner NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
75 1 fails to explain why those studies are relevant.
2                  Moreover,        the      petition        is  full        of 3 generalized grievances against the licensee and the 4 NRC, but fails to show a genuine dispute with the 5 application, as required under 10 CFR 2.309(f)(1)(6).
6 Parties in a proceeding are entitled to a fair chance 7 to defend, and are therefore entitled to be told at 8 the outset with clarity and precision what arguments 9 are being advanced, and what relief is being sought, 10 and that was not done here.
11                  And that's Fermi CLI 15 18.                Accordingly, 12 the board should deny the petition.                      So, if the board 13 has any further questions for the NRC staff, I'd be 14 happy to take them now.
15                  JUDGE      TRIKOUROS:                With    respect        to 16 criticality, you heard the arguments that were made 17 earlier.      It sounds like the petitioners didn't have 18 the resources to review and comment on the detailed 19 criticality analysis that was performed in the LAR.
20 The question came up has the staff reviewed and 21 approved this?        And we were getting some conflicting 22 answers to that question really.                      Could you identify 23 whether or not the staff has reviewed and approved the 24 criticality analysis in the LAR?
25                  MR. McMANUS:          So, the staff is currently NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
76 1 reviewing, they're conducting a criticality analysis 2 as part of this LAR.        But I would just comment that if 3 we look at the contentions themselves, the criticality 4 portion of the contention, well contention two, you 5 look at the criticality is a very small portion, if 6 you look at the contention as written, as proffered.
7                So, it looks like you need, as proffered 8 by the petitioner, the petitioner is asserting that to 9 get to criticality, we would need an airplane crash, 10 a fire, or a terrorist attack.                So, I would just kind 11 of note that for the record.
12                JUDGE TRIKOUROS:              Could the staff say 13 anything regarding the likelihood of a criticality at 14 this time?
15                MR. McMANUS:        I don't believe so, I would 16 have to confer with the staff.                    No, it's still in 17 review right now.
18                JUDGE TRIKOUROS:            Is the staff reviewing 19 the calculations that are in the LAR in addition to 20 doing their own criticality analysis, sort of an 21 independent criticality analysis?
22                MR. ANDERSON:            Yes, we will be doing 23 independent analysis and calculations.
24                JUDGE TRIKOUROS:            Okay, thank you.
25                JUDGE ARNOLD:            I have a question on a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309        www.nealrgross.com
 
77 1 different topic.      You've already heard my impression 2 of the radiological threat of TMI-2, as compared to an 3 operating nuclear power plant, and the impression I 4 get is that TMI-2 is no longer a reactor plant, it's 5 more like a former nuclear facility that remains 6 highly contaminated.          What I would like to know is 7 what is it's legal status?
8                Is it still being treated as a reactor, or 9 is it an old facility that's contaminated?
10                MR. McMANUS: Well, it does have a Part 50 11 license, and it will continue to have a Part 50 12 license, so yeah, that's -- so it will continue to be 13 a reactor Part 50 license.
14                JUDGE ARNOLD:          Okay, thank you.
15                CHAIR HAWKENS:          Mr. McManus, does the NRC 16 staff like TMI-2 Solutions raise an untimely objection 17 to the untimely reply?
18                MR. McMANUS:          Your Honor, we failed to 19 object at that time, and given that Mr. Epstein was 20 pro se, we didn't object.            So --
21                CHAIR HAWKENS:            That's fine, thank you, 22 just wondering your position.
23                MR. McMANUS:        We're not taking a position 24 on the reply.
25                CHAIR HAWKENS:          All right.
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78 1                    JUDGE TRIKOUROS:              Do you agree with the 2 discussion        we  had    earlier        regarding        design      basis 3 accidents, that the statement that there are no design 4 basis accidents for TMI-2 refers to the -- how it 5 meets        the  Part  50    definition          of    a  design      basis 6 accident?          Not  that      there      aren't      any  accidents 7 considered, but that the accidents considered simply 8 won't meet the definition?
9                    MR. McMANUS: Right, so the accident under 10 50.2 definitions, but there could be accidents at a 11 decommissioning facility, is that what you're saying, 12 Your Honor?
13                    JUDGE TRIKOUROS: Yeah, so I think there's 14 been some confusion, when one says there are no design 15 basis accidents at TMI-2, that there are no accidents 16 considered at TMI-2, and I wanted to make clear what 17 the truth of that was.
18                    MR. McMANUS:            Yeah,        I  think    that's 19 correct.
20                    JUDGE TRIKOUROS:            All right, thank you.
21                    CHAIR HAWKENS:          Following up on that Mr.
22 McManus, I know in the LAR, there was a discussion 23 about        a  high    integrity          container          fire    during 24 commissioning, as well as discussions about other 25 types of fires, and seeing as I read both contentions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
79 1 as contentions of omission, which saying there was no 2 analysis for a fire, given that there was in fact 3 analysis about a fire, is that a basis for rejecting 4 that component of both contentions?
5                MR. McMANUS:          I believe so, Your Honor.
6 And actually I believe in petitioner's pleading, the 7 petitioner did mention the high HIC canister, because 8 they did -- he did quote the RAIs to that, but indeed 9 there was analysis to the HIC fire.                  So, if there was 10 any consideration that there was a contention of 11 omission, the LAR does have fire analysis.
12                CHAIR HAWKENS:          All right, thank you.
13                JUDGE TRIKOUROS:              We talked about phase 14 three of the decommissioning, storing many of these 15 high integrity canisters on site.                    I don't think a 16 location has been identified as far as I know, but 17 there will be a site, an area on site that these will 18 be stored. Does that go through -- and we also have 19 been told that the specific high integrity canister 20 has not yet been selected I believe, or that --
21                MR. McMANUS: Your Honor, I believe that's 22 what the licensee said.
23                JUDGE TRIKOUROS:            Right, and I wanted to 24 just make sure that I understood what would be the 25 licensing requirements for this ISFSI, that if we call NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
80 1 it an ISFSI, what would be the licensing requirements 2 for      that?  Would    there      be    a  separate  licensing 3 requirement    for  that,      or    is      this  part    of      the 4 decommissioning?
5                MR. McMANUS: Well, Your Honor, just to be 6 clear, just to reiterate, this is outside of this 7 proceeding, phase three. This ISFSI, phase three that 8 we're talking about, this is outside of the scope of 9 this proceeding.        But my understanding is that the 10 licensee, as a Part 50 licensee, they have a general 11 license to store fuel.          And so they can -- by having 12 that, they can store fuel on site without going 13 through a licensing process.
14                So, there would be no need to lodge a --
15 to have a -- to ask the NRC for a license to store 16 fuel, because they have a Part 50 license, but that's 17 outside of the scope of this proceeding.                  But that's 18 up to the licensee.          I mean that's up to -- that's 19 outside of the scope of this proceeding.                  The staff 20 doesn't know, that's up to them.
21                JUDGE TRIKOUROS:                So, the categorical 22 exclusion analysis didn't consider the likelihood of 23 an accident or release of radiation associated with 24 the ISFSI, it was only looking at the plant itself, 25 and the radioactive material in the plant itself?
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81 1                  MR. McMANUS:        Right, because it's outside 2 of the scope of this license amendment.
3                  JUDGE TRIKOUROS:            All right, thank you.
4                  CHAIR HAWKENS:          Anything else? Thank you, 5 Mr. McManus.
6                  MR. McMANUS:        Thank you, Your Honors.
7                  MS. BERNABEI:          I know I only have a few 8 minutes.
9                  CHAIR HAWKENS:          We were responsible for 10 you      using    much  of    your      time      before,    and    going 11 overtime,        so  please      use    your      full    five  minutes, 12 although you're not required to.
13                  MS. BERNABEI:          Okay.        I wanted to just 14 point out the rebuttal to some of the plant's.                              The 15 special circumstances, if you do a fair reading of the 16 pro se petition of Mr. Epstein's petition, it's all 17 over the petition.          TMI-2 is a special circumstance, 18 there's no other plant in the United States that's 19 being considered for decommissioning.                      I'd also like 20 to point out one of the exceptions that he's relying 21 on.
22                  Which is that there will be, the former 23 licensee acknowledged that there will be significant 24 --      two    times  the    occupational            exposure    if      it's 25 decommissioned at this time.                      This is GPU Nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
82 1 appendix H of August of 2013, this is cited in his 2 brief, and it basically says --
3                  CHAIR HAWKENS:          What page of the brief is 4 it on?
5                  MS. BERNABEI:          I can find it for you, I 6 don't have it in front of me.                  But it is cited in his 7 brief, and I'm sorry, this is PDMS Safety Analysis 8 Report Update GPU Nuclear August 23rd, 2013. And this 9 is what he cites to in his brief, and we can find the 10 page number.        It says by placing TMI-2 in a long term 11 monitored storage condition at this time, until the 12 time of decommissioning, is that a 30 day delay, now 13 we're talking about 2013.
14                  A 30 day delay -- 30 year delay, I'm 15 sorry, 30 year delay from 2013 would reduce worker 16 exposure by a factor of approximately two.                        This is 17 from the licensee at that time, GPU Nuclear.                                It 18 decided        that  waiting      for    30      years  would    reduce 19 occupational exposure.              Mr. Epstein clearly stated 20 that in his brief, and cited to that study. The other 21 thing I'd like --
22                  CHAIR HAWKENS:          Can you tell me how you 23 insinuate that particular claim into the language of 24 your two contentions?
25                  MS. BERNABEI:          That      any event    of      an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433          WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
83 1 unsettling event, such as an air attack or a terrorist 2 attack, that number is going to continue, and possibly 3 be aggravated by the plant going critical.                      So, what 4 I'm trying to show is that this is an exception from 5 the categorical exclusion, that there is a significant 6 increase in occupational radiation exposure, and he 7 set that out in his brief.
8                  The other thing that we have from the LAR 9 itself, there was some question about well petitioner 10 never looked at the LAR, so he doesn't know that 11 there's no surveillance, there's no removal of all 12 these protections, internal controls.                        In fact he 13 reviewed the LAR and saw that those had been removed, 14 those surveillance and other protections that are in 15 the steady state.
16                  The other thing I wanted to point out that 17 there was a question about do you need peer review.
18 You don't need peer review, but you need standard 19 scientific studies that tell you how much is the 20 damaged        core  that's      remaining.            We have    wildly 21 different estimates, and any scientist will tell you 22 when you can't reproduce an evaluation such as that, 23 it is not a solid evaluation.
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84 1 valid, and that's particularly the case when you have 2 a configuration such as this. So, you don't need peer 3 review, but you do need a scientific analysis that 4 says      why are  all    these      experts        coming  up      with 5 different evaluations.            The other thing I'd like to 6 mention is there was this statement that the EIS that 7 was conducted looked into these issues.
8                That's simply not true.                The only issue, 9 and this is on -- I'm losing track of my papers here.
10 This was on the EIS conducted by TMI-2, okay this is 11 May 16th, 2022 supplement.              TMI Solutions states that 12 the only -- the most limiting scenario is a reactor 13 building fire, okay?            So, they say that that's the 14 design basis accident they look at. They specifically 15 do not look at a terrorist attack or an aircraft 16 attack.
17                And the last thing I'd like to mention is 18 all this talk, which just emphasizes our point that 19 this is all premature, I think the Commission should 20 order a hearing, all these things should be examined.
21 It is simply not true that TMI-1, which formally was 22 linked at the hip with TMI-2 is going to accept this 23 waste, or even can accept this waste.                    And given that 24 that's simply not contractually, or in a regulatory 25 manner required of TMI-1, in fact that's part of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309          www.nealrgross.com
 
85 1 reason it spun of TMI-2.
2                    Is that you can't find that this is a 3 rational, or a kind of plan that protects the public 4 health and safety.
5                    CHAIR HAWKENS:          Questions?
6                    JUDGE TRIKOUROS:            No.
7                    CHAIR HAWKENS:          Thank you Ms. Bernabei.
8                    MS. BERNABEI:          Thank you.
9                    CHAIR HAWKENS:          On behalf of the board, I 10 want        to  express    our      gratitude          to  counsel        and 11 petitioner for their written pleadings, for their oral 12 presentation today, and consistent with our regulatory 13 milestone, we'll endeavor issuing a decision on this 14 particular        hearing    request        within        45  days    unless 15 there's        a  wrinkle    thrown      in    as    a  result    of    the 16 additional pleadings submitted yesterday, but we'll 17 handle that going forward.
18                    I'd also like to acknowledge and express 19 gratitude for the continuing support of the panel's IT 20 expert, Andrew Welkie, thank you Andy.                          The panel's 21 administrative assistant, Twana Ellis, and the board's 22 law clerks, Emily Newman and Allison Wood.                                    And 23 lastly,        we  appreciate        the    services        of  the    court 24 reporter, Jim Cordes, thank you Jim.                        Do you have any 25 follow up questions after we adjourn for the parties?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433            WASHINGTON, D.C. 20009-4309            www.nealrgross.com
 
86 1                We will, so I'll ask the parties after we 2 adjourn to remain present, so Jim can ensure the 3 transcripts are accurate. Judge Trikouros do you have 4 any additional questions or comments?
5                JUDGE TRIKOUROS:            No, thank you.
6                JUDGE ARNOLD:          No.
7                CHAIR HAWKENS: The case is submitted, and 8 we are adjourned, thank you.
9                (Whereupon, the above-entitled matter went 10 off the record at 11:50 a.m.)
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433        WASHINGTON, D.C. 20009-4309      www.nealrgross.com}}

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