ML19343C738

Answer Opposing Eric J. Epstein'S and Three Mile Island Alert Inc.'S Petition to Intervene

ML19343C738
Person / Time
Site:	Three Mile Island
Issue date:	12/09/2019
From:	Domeyer T, O'Neill M, Sutton K Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-289-LA, 50-320-LA, ASLBP 20-962-01-LA-BD01, RAS 55455
Download: ML19343C738 (38)

Text

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

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In the Matter of ) Docket Nos. 50-289 and 50-320

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EXELON GENERATION COMPANY, LLC ) ASLBP No. 20-962-01-LA-BD01

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(Three Mile Island Nuclear Station, Units 1 and 2) ) December 9, 2019

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EXELON GENERATION COMPANY, LLCS ANSWER OPPOSING ERIC J. EPSTEINS AND THREE MILE ISLAND ALERT INC.S PETITION TO INTERVENE Tamra S. Domeyer, Esq. Kathryn M. Sutton, Esq.

Associate General Counsel Morgan, Lewis & Bockius LLP Exelon Generation Company, LLC 1111 Pennsylvania Avenue, N.W.

4300 Winfield Road, 5th Floor Washington, D.C. 20004 Warrenville, IL 60555 Phone: (202) 739-5738 Phone: (630) 657-3753 Fax: (202) 739-3001 Fax: (630) 657-4323 E-mail: kathryn.sutton@morganlewis.com E-mail: Tamra.Domeyer@exeloncorp.com Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com Counsel for Exelon Generation Company, LLC

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................................ 4 A. Ownership History of TMI .................................................................................... 4 B. NRC Regulatory Approvals Related to Permanent Shutdown and Defueling of TMI-1................................................................................................ 7 III. PROCEDURAL HISTORY............................................................................................. 11 IV. PETITIONERS HAVE NOT DEMONSTRATED STANDING TO INTERVENE AS A MATTER OF RIGHT OR AS A MATTER OF DISCRETION ........................... 13 A. Legal Standards and Precedent Governing Standing as a Matter of Right .......... 13

1. Traditional Standing Requirements ......................................................... 14

2. Proximity-Based Standing ....................................................................... 14

3. Representational Standing ....................................................................... 15 B. Mr. Epstein Has Not Established Standing to Intervene As of Right .................. 16 C. TMI Alert Has Not Established Representational Standing ................................ 20 D. Petitioners Have Not Demonstrated A Sufficient Basis for Granting Discretionary Intervention Under 10 C.F.R. § 2.309(e) ...................................... 21 V. PETITIONERS PROPOSED CONTENTIONS ARE INADMISSIBLE ...................... 23 A. Governing Legal Standards for Contention Admissibility .................................. 23 B. Proposed Contention 1 Is Inadmissible Because It Fails to the Meet the Requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi) ................................................ 24

1. Proposed Contention 1 Raises Issues That Are Neither Within the Scope of This Proceeding Nor Material to the NRC Staffs Required Findings .................................................................................... 25

2. Proposed Contention 1 Lacks Adequate Support and Fails to Raise a Genuine Dispute with the Application on a Material Issue of Fact or Law ...................................................................................................... 27

a. Petitioners Decommissioning Financial Assurance Claims Are Factually Unsupported, Immaterial and Irrelevant ............... 27

b. Petitioners Fail to Directly Challenge Any Relevant Portion of the LAR ................................................................................... 28 C. Proposed Contention 2 Is Inadmissible Because It Fails to the Meet the Requirements of 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi).................................. 30 VI. CONCLUSION ................................................................................................................ 34

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

)

In the Matter of ) Docket Nos. 50-289 and 50-320

)

EXELON GENERATION COMPANY, LLC ) ASLBP No. 20-962-01-LA-BD01

)

(Three Mile Island Nuclear Station, Units 1 and 2) ) December 9, 2019

)

EXELON GENERATION COMPANY, LLCS ANSWER OPPOSING ERIC J. EPSTEINS AND THREE MILE ISLAND ALERT INC.S PETITION TO INTERVENE I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), Exelon Generation Company, LLC (Exelon Generation) timely files this Answer opposing the November 12, 2019, Petition to Intervene and Hearing Request (Petition)1 filed by Eric J. Epstein and Three Mile Island Alert, Inc. (TMI Alert) (jointly, Petitioners).2 Petitioners seek to intervene in the proceeding associated with Exelon Generations July 1, 2019, license amendment request (LAR).3 In the LAR, Exelon Generation requests, pursuant to 10 C.F.R. § 50.90, that the U.S.

Nuclear Regulatory Commission (NRC) amend Renewed Facility License Number DPR-50 for Three Mile Island Nuclear Station, Unit 1 (TMI-1) to revise the site emergency plan (SEP) and 1

Eric J. Epstein, Chairman of Three Mile Island Alert, Inc.s Petition to intervene and Hearing Request (Nov. 12, 2019)

(ML19329D040) (package). Appendix A to the Petition includes the declarations of two purported TMI Alert members, Joyce Corradi and Patricia Longnecker, dated November 11 and November 12, 2019, respectively (Corradi Declaration and Longnecker Declaration). Appendix B contains a previously-submitted TMI Alert document titled Three Mile Island Alert, Inc.s Opposition to Exelons Request for Exemptions Relating to Three Mile Island Unit-1s Decommissioning Trust Funds (July 22, 2019) (July 2019 TMI Alert Filing). The Petition also includes seven exhibits (Exhibits 1 through 7).

2 In accordance with 10 C.F.R. §§ 2.306(a) and 2.309(i)(1), answers are due 25 days after service of the November 12, 2019, Petition; i.e., by Monday, December 9, 2019. The NRC Staff filed its answer early on Friday, December 6, 2019.

See NRC Staff Answer to Three Mile Island Alert Petition (Dec. 6, 2019) (ML19340C563).

3 See Letter from Michael P. Gallagher, Exelon, to U.S. Nuclear Regulatory Commission, License Amendment Request -

Proposed Changes to the Three Mile Island Emergency Plan for Permanently Defueled Emergency Plan and Emergency Action Level Scheme (July 1, 2019) (ML19182A182) (LAR).

Emergency Action Level (EAL) scheme to reflect TMI-1s permanently-defueled condition.4 The LAR seeks NRC review and approval of the proposed amendment by August 30, 2020, and a 60-day implementation period from the amendments effective date. Specifically, Exelon Generation requests that the amendment, if approved, become effective 488 days following the permanent shutdown of TMl-1, which occurred on September 20, 2019.5 Petitioners proffer two contentions. Proposed Contention 1 alleges that the LAR does not provide financial assurances or adequate funds for decommissioning, particularly in light of a so-called confused management organization that purportedly involves Exelon Generation and another company, FirstEnergy.6 Proposed Contention 2 asserts that the National Environmental Policy Act (NEPA) and the NRCs regulations at 10 C.F.R. Part 51 require Exelon Generation and the NRC Staff to prepare an environmental report (ER) and environmental impact statement (EIS), respectively, in support of the proposed license amendment.7 As demonstrated in Section IV below, Petitioners fail to demonstrate standing to intervene in this proceeding, either as a matter of right or as a matter of discretion under 10 C.F.R. § 2.309(d) and § 2.309(e), respectively. Petitioners do not adequately address the basic procedural requirements specified in either of those regulations. More fundamentally, neither Mr. Epstein nor any other TMI Alert member alleges a particularized injury that could plausibly flow from the proposed license amendment or explains why a hearing on the LAR is necessary to protect Petitioners interests, as required by those regulations.

4 Although the LAR references TMI-2, it does not propose any amendments to the TMI-2 possession-only license.

5 See LAR, transmittal letter at 3; Letter from Michael P. Gallagher, Exelon, to NRC, Certification of Permanent Removal of Fuel from the Reactor Vessel for Three Mile Island Nuclear Station, Unit 1 (Sept. 26, 2019) (ML19269E480) (TMI-1 Fuel Removal Certification). The TMl-1 reactor vessel was permanently defueled as of September 26, 2019.

6 Petition at 28.

7 See id. at 25, 40-46.

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As demonstrated in Section V below, the Petition also must be rejected because Petitioners two proposed contentions are inadmissible under 10 C.F.R. § 2.309(f)(1). In challenging the adequacy of funds available for TMI decommissioning activities and spent fuel management costs, Proposed Contention 1 raises issues that are clearly outside the scope of this proceeding, contrary to the requirement of 10 C.F.R. § 2.309(f)(1)(iii). Indeed, rather than challenging the LAR, which seeks to modify certain post-shutdown emergency preparedness requirements, Petitioners focus their arguments on an exemptionapproved by the NRC nearly two months agothat allows Exelon Generation to use certain TMI-1 decommissioning funds to cover spent fuel management costs. As a result, Petitioners fail to mount either a material or adequately-supported challenge to the LAR at issue in this proceeding, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

Proposed Contention 2 fares no better under 10 C.F.R. § 2.309(f)(1). In short, Petitioners do not address the Part 51 categorical exclusion for license amendments of the type sought by Exelon Generation, even though Section 7.0 of the LAREnvironmental Considerationsexpressly references and relies on the exclusion specified in 10 C.F.R. § 51.22(c)(9).8 Petitioners do not allege that this categorical exclusion is inapplicable here, or otherwise challenge, with specificity and support, Exelon Generations categorical exclusion determination in the LAR, as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi). Further, insofar as Petitioners contest the NRCs proposed no significant hazards consideration determination at the outset of their Petition, they collaterally attack NRC regulations that bar adjudicatory challenges to NRC Staff no significant hazards consideration determinations. Inasmuch as that line of argument is intended to support Proposed Contention 2, Petitioners raise an issue that is outside the scope of this proceeding, in contravention of 10 C.F.R. § 2.309(f)(1)(iii).

8 Section 51.22 identifies categories of actions that are exempt from NEPA review because the NRC has made a generic finding that the actions do[] not individually or cumulatively have a significant effect on the human environment.

10 C.F.R. § 51.22(a). These are generally referred to as categorical exclusions.

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In summary, Petitioners failures to demonstrate standing or proffer an admissible contention provide independent grounds for the Boards rejection of the Petition in its entirety.9 II. FACTUAL BACKGROUND Before addressing Petitioners standing and proposed contentions, Exelon Generation provides a brief overview of the TMI sites history, with a particular focus on the ownership of the two units, to clarify the background and context of the sites current status and the challenges mounted in the Petition. As part of this clarification, Exelon Generation summarizes the specific NRC regulatory approvals it has sought in connection with the permanent shutdown and defueling of TMI-1. This information provides a clear, complete, and accurate factual record upon which the Board can properly assess Petitioners claims which, in numerous instances, are factually erroneous.

A. Ownership History of TMI The TMI site includes two defueled power reactors, TMI-1 and TMI-2. It is located on the Susquehanna River, about 12 miles southeast of Harrisburg, PA. The site is in Londonderry Township, Dauphin County, about 2.5 miles from the southern tip of Dauphin County, where the County is coterminous with York and Lancaster Counties.10

1. TMI-2 General Public Utilities Corporation, later renamed GPU, Inc. (GPU), originally built TMI-1 and TMI-2, which commenced operations in the 1970s. TMI-1 and TMI-2 were built for and owned by three GPU subsidiaries, Metropolitan Edison Company (50%), the Pennsylvania Electric Company (25%), and Jersey Central Power & Light Company (25%).11 Originally, 9

See Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station), CLI-19-6, 89 NRC __, __, slip op. at 7 (June 8, 2019) (To intervene in an NRC licensing proceeding, a petitioner must show standing to intervene and submit at least one admissible contention for hearing.).

10 See LAR, att. 1 at 3.

11 See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-81-32, 14 NRC 381, 403 (1981).

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Metropolitan Edison Company, a GPU subsidiary, operated the plants.12 GPU later formed an operating company and transferred operating authority for these plants and the Oyster Creek Nuclear Generating Station to GPU Nuclear Corporation, later renamed GPU Nuclear, Inc.

(GPUN).13 On March 28, 1979, a loss-of-coolant accident resulted in the partial meltdown and permanent shutdown of TMI-2. The TMI-2 licensee promptly undertook decontamination and defueling activities and completed defueling of the reactor in April 1990. Approximately 99% of the TMI-2 spent fuel assemblies and damaged core material have been removed from the TMl-2 reactor and are being stored at the U.S. Department of Energys Idaho National Laboratory. TMI-2 has a possession-only license and has been in the Post-Defueling Monitored Storage (PDMS) phase of the NRCs SAFSTOR process since 1993.14 The GPU subsidiaries retained ownership of both TMI-1 and TMI-2 for a number of years.

In 1999, ownership of and operating authority for TMI-1 were transferred to AmerGen Energy Company, LLC (AmerGen), which later was consolidated into Exelon Generation.15 As part of the sale of TMI-1, GPUN entered into a service agreement with AmerGen (now Exelon Generation, as discussed below). Under that agreement, Exelon Generation provides services, materials, and equipment that are required to maintain TMl-2 in PDMS status, including maintenance, surveillance testing, and implementation of the activities required in the Safety Analysis Report, Technical Specifications, and the GPUN PDMS Quality Assurance Plan.16 12 See id. at 403-04.

13 See id. at 405.

14 See Letter from Gregory H. Halnon, GPU Nuclear, Inc., to NRC, Three Mile Island Nuclear Station, Unit 2 - Revision to Post-Shutdown Decommissioning Activities Report, att. at 3-5 (Dec. 4, 2015) (ML15338A222) (TMI-2 PSDAR);

NRC, Three Mile Island Nuclear Station, Unit No. 2 Possession Only License, Docket No. 50-320 (Sept. 1993) (ADAMS Legacy No. 9405190046).

15 See GPU Nuclear, Inc., et al.; Three Mile Island, Unit No. 1; Order Approving Transfer of License and Conforming Amendment, 64 Fed. Reg. 19,202 (Apr. 19, 1999).

16 See Letter from Raymond Powell, NRC, to Gregory H. Halnon, GPU Nuclear, Inc., GPU Nuclear, Inc., Three Mile Island Station, Unit 2 - NRC Inspection Report 05000320/2018011, encl. at 3 (May 23, 2018) (ML18144A397). In 5

In 2001, GPU merged with FirstEnergy Corporation (FirstEnergy). The NRC approved the indirect transfer of control of the TMI-2 license to FirstEnergy.17 GPUN, now a wholly-owned subsidiary of FirstEnergy, retained the license for TMl-2 and maintains the facility to this day.

2. TMI-1 In July 1998, AmerGen and the GPU subsidiaries, together with PECO Energy Company (PECO) (formerly the Philadelphia Electric Company) and British Energy, Inc. (then joint owners of AmerGen), announced the sale of TMI-1 from GPUN to AmerGen.18 At the time, GPUN and the plant owners (Metropolitan Edison Company, Jersey Central Power & Light Company, and Pennsylvania Electric Company) held the TMI-1 operating license.19 In December 1998, AmerGen and GPUN requested NRC approval of the transfer of the TMI-1 operating license to AmerGen.

The Commission approved the transfer in April 1999.20 In 2000, Unicom Corporation, the parent company of Commonwealth Edison Company, and PECO merged to form a new company, Exelon Corporation. As a result, that same year, AmerGen filed two license transfer applications with the NRC, which the Commission approved in October October 2019, EnergySolutions, Inc. signed an agreement with the FirstEnergy companies GPUN, Metropolitan Edison Company, Jersey Central Power & Light Company, and Pennsylvania Electric Company to acquire all TMI-2 licenses and assets. Under the agreement, the facility would be transferred to a subsidiary of EnergySolutions known as TMI-2 Solutions, LLC. The agreement also contemplates applications to the NRC and the New Jersey Board of Public Utilities for approval of the transfer, followed by decommissioning of TMI-2. See EnergySolutions Subsidiary Signs Contract to Acquire Three Mile Island Unit-2 Nuclear Power Plant, ENERGYSOLUTIONS, https://www.energysolutions.com. On November 12, 2019, TMI-2 Solutions, LLC and the aforementioned FirstEnergy companies submitted a license transfer application to the NRC (see ML19325C600), requesting that the NRC consent to the transfer of the Possession Only License No. DPR-73 for TMI-2 from the FirstEnergy companies to TMI-2 Solutions, LLC.

17 See In the Matter of GPU Nuclear, Inc., Metropolitan Edison Company, Jersey Central Power & Light Company, and Pennsylvania Electric Company (Three Mile Island Nuclear Station, Unit No. 2); Order Approving Application Regarding Merger of GPU, Inc., and FirstEnergy Corp., 66 Fed. Reg. 14,600 (Mar. 13, 2001).

18 AmerGen, a limited liability company, was formed to acquire and operate nuclear power plants in the United States.

PECO and British Energy, Inc. (a wholly owned subsidiary of British Energy, plc) each owned a 50 percent interest in AmerGen before it became a wholly owned subsidiary of Exelon Generation Company, LLC.

19 The license authorized GPUN to maintain and operate the facility and the other co-owners to possess but not operate TMI-1.

20 See GPU Nuclear, Inc., et al.; Three Mile Island, Unit No. 1; Order Approving Transfer of License and Conforming Amendment, 64 Fed. Reg. 19,202 (Apr. 19, 1999).

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and December 2000, respectively.21 Those approvals allowed the transfer of PECOs 50 percent interest in AmerGen to Exelon Generation, a subsidiary of Exelon Corporation.

On December 22, 2003, Exelon Generation purchased 100% of the stock of British Energy US Holdings, Inc. (BE Holdings), which indirectly owned 50% of AmerGen. BE Holdings was formerly owned by British Energy, plc, a foreign corporation. Exelon Generation thus assumed 100% ownership of AmerGen.22 AmerGen remained the licensed operator for TMI-1.

On June 20, 2008, AmerGen and Exelon Generation sought NRC approval of the transfer of the TMI-1 operating license held by AmerGen to Exelon Generation. The NRC approved the transfer of license and ownership of TMI-1 to Exelon Generation on December 23, 2008.23 On January 8, 2009, the nuclear generation assets held by AmerGen were integrated into Exelon Generation, and the AmerGen legal entity was dissolved. Thus, when the NRC issued the renewed operating license for TMI-1 in October 2009, it issued that license to Exelon Generation.24 B. NRC Regulatory Approvals Related to Permanent Shutdown and Defueling of TMI-1 On June 20, 2017, Exelon Generation submitted to the NRC a certification in accordance with 10 C.F.R. § 50.82(a)(1)(i), conveying its decision to permanently cease operations at TMI-1 no later than September 30, 2019.25 As summarized below, Exelon Generations decision to 21 See AmerGen Energy Company, LLC (Three Mile Island Nuclear Station, Unit 1); Order Approving Application Regarding Proposed Corporate Restructuring, 65 Fed. Reg. 61,195 (Oct. 16, 2000); AmerGen Energy Company, LLC (Three Mile Island Nuclear Station, Unit 1); Order Approving Application Regarding Transfer of Interest in AmerGen Energy Company, LLC and Conforming Amendment, 65 Fed. Reg. 83,104 (Dec. 29, 2000).

22 Given that Exelon Generation, through its rights under the AmerGen Limited Liability Company Agreement, already effectively controlled AmerGen prior to its acquisition of BE Holdings, the NRC Staff determined that the acquisition did not result in any transfer of control of the license under 10 C.F.R. § 50.80. The NRC Staff approved certain Conforming Amendments that changed the operating license to reflect the new Exelon Generation ownership structure of AmerGen and standby fund arrangement.

23 See In the Matter of AmerGen Energy Company, LLC; Exelon Generation Company, LLC (Three Mile Island Nuclear Station, Unit 1); Order Approving Transfer of License and Conforming Amendment, 74 Fed. Reg. 127 (Jan. 2, 2009).

24 See Exelon Generation Company, LLC, Three Mile Island Nuclear Station, Unit 1; Notice of Issuance of Renewed Facility Operating License No. DPR-50 for an Additional 20-Year Period, 74 Fed. Reg. 55,871 (Oct. 29, 2009); Exelon Generation Company, LLC (Three Mile Island Nuclear Station, Unit 1), Docket No. 50-289, Renewed Facility License No. DPR-50 (ML052720274).

25 See Letter from J. Bradley Fewell, Exelon Generation to NRC, Certification of Permanent Cessation of Power Operations for Three Mile Island Nuclear Station, Unit 1 (June 20, 2017) (ML17171A151).

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permanently shut down and defuel TMI-1 has prompted it to seek multiple related approvals from the NRC. This proceeding stems specifically from one of those actionsExelon Generations July 1, 2019, request to amend the TMI-1 license to revise the SEP and EAL scheme to reflect the permanent cessation of operation and permanent defueling of the TMl-1 reactor (i.e., the LAR).

By application dated July 25, 2018, as supplemented on March 6, 2019, Exelon Generation requested that the NRC revise the TMl-1 license and the associated Technical Specifications to Permanently Defueled Technical Specifications, consistent with the planned permanent cessation of reactor operation and permanent defueling of the reactor.26 The NRC granted the requested license amendment and Technical Specifications changes on August 29, 2019.27 In anticipation of the permanent shutdown and defueling of TMI-1, and via three separate letters, all dated April 5, 2019, Exelon Generation submitted to the NRC the TMI-1 spent fuel management plan (SFMP), site-specific decommissioning cost estimate (DCE), and post-shutdown decommissioning activities report (PSDAR), respectively.28 Next, by letter dated April 12, 2019, Exelon Generation requested exemptions from 10 C.F.R. §§ 50.82(a)(8)(i)(A) and 50.75(h)(1)(iv), respectively, to: (1) permit the use of funds from the TMI-1 Decommissioning Trust Fund (DTF) for spent fuel management activities, in accordance with the TMI-1 site-specific DCE; and (2) make those withdrawals without prior NRC notification.29 The NRC granted 26 See Letter from Michael P. Gallagher, Exelon Generation, to NRC, License Amendment Request - Proposed Defueled Technical Specifications and Revised License Conditions for Permanently Defueled Condition (July 25, 2018)

(ML18206A545), as supplemented by letter dated March 6, 2019 (ML19065A217).

27 See Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 84 Fed. Reg. 50,078, 50,086 (Sept. 24, 2019) (providing notice of license amendment issued on August 29, 2019, as available under ADAMS Accession No. ML19211D317).

28 Exelon Generations SFMP, DCE, and PSDAR for TMI-1 are available at ADAMS Accession Nos. ML19095A009, ML19095A010, and ML19095A041, respectively. The PSDAR includes a description of the planned decommissioning activities, a proposed schedule for their accomplishment, the expected decommissioning and spent fuel management costs, and an evaluation that provides the basis for Exelon Generations conclusion that the environmental impacts associated with site-specific decommissioning activities at TMI-1 will be bounded by appropriate, previously-issued generic and plant-specific environmental impact statements. Neither the safety nor the environmental aspects of the PSDAR are within the scope of this proceeding.

29 See Letter from Michael P. Gallagher, Exelon Generation, to NRC, Request for Exemption from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) (Apr. 12, 2019) (ML19102A085) (April 12, 2019 Exemption Request).

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the requested exemptions on October 16, 2019, about three weeks after Exelon Generation certified to the NRC that it had permanently ceased operation of TMI-1 and defueled the reactor.30 On April 18, 2019, in response to Exelon Generations license amendment application dated March 19, 2018,31 the NRC approved certain changes to the TMI SEP to support the planned permanent cessation of operation and permanent defueling at the TMl-1 reactor.32 Specifically, the NRC-approved changes authorize Exelon Generation to revise the SEP emergency response organization on-shift and augmented staffing, commensurate with the reduced spectrum of credible accidents for a permanently shutdown and defueled nuclear power reactor facility.33 On July 1, 2019, Exelon Generation made two submittals to the NRC that are directly relevant to this proceeding. First, pursuant to 10 C.F.R. § 50.90, Exelon Generation submitted the LAR, requesting that the NRC amend the TMI-1 license to revise the SEP and EAL scheme to support the permanent cessation of power operations and removal of fuel from the reactor vessel of TMl-1.34 The LAR includes the proposed TMI Permanently Defueled Emergency Plan (PDEP) and the Permanently Defueled EAL scheme for NRC review and approval.35 The proposed PDEP 30 See Exelon Generation Company LLC; Three Mile Island Nuclear Station Unit 1; Exemptions; issuance, 84 Fed. Reg.

56,846 (Oct. 23, 2019) (providing notice of NRCs issuance of exemptions on October 16, 2019, as available under ADAMS Accession No. ML19259A175).

31 See Letter from Michael P. Gallagher, Exelon Generation, to NRC, License Amendment Request - Proposed Changes to the Three Mile Island Emergency Plan for Post-Shutdown and Permanently Defueled Condition (Mar. 19, 2018)

(ML18078A578). Exelon Generation supplemented this license amendment request via letters submitted to the NRC on August 13, 2018 (ML18225A180) and November 20, 2018 (ML18324A404).

32 See Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 84 Fed. Reg. 19,964, 19,976 (May 7, 2019) (providing notice of NRCs issuance of the amendment on April 18, 2019, as available under ADAMS Accession No. ML19065A114).

33 As the Staff noted in its April 18, 2019, approval letter, in accordance with the Possession-Only License No. DPR-73 Post-Defueling Monitored Storage Safety Analysis Report for TMI-2, the emergency plan for TMI-1 is considered to encompass TMI-2. Exelon Generation maintains the emergency planning responsibilities for TMl-2 through the service agreement with FirstEnergy, discussed above in Section II.A.1. See LAR, att. 1 at 2. As discussed further below, the proposed PDEP also encompasses both TMI-1 and TMI-2, and the pending July 1, 2019, LAR does not impact or otherwise alter Exelon Generations responsibility to abide by and maintain that service agreement. See id.; see also id.,

att. 2 at 1.

34 See LAR, n.3, supra.

35 Exelon developed the PDEP using guidance contained in Attachment 1 (Staff Guidance for Evaluating Permanently Defueled Emergency Plans) to NSIR/DPR-ISG-02, Interim Staff Guidance, Emergency Planning Exemption Requests for Decommissioning Nuclear Power Plants (May 11, 2015) (ML14106A057). See LAR, att. 1 at 7.

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states that classification of an emergency declaration will be made within 30 minutes after the availability of indications to operators that an EAL threshold has been reached, and notification to State authorities will be made within 30 minutes after declaring an emergency.36 The proposed PDEP and Permanently Defueled EAL scheme requested in the LAR are predicated on NRC approval of separate requests for exemptions from certain standards in 10 C.F.R. § 50.47(b) for onsite and offsite emergency response plans for nuclear power reactors; requirements in 10 C.F.R. § 50.47(c)(2) for plume exposure and ingestion pathway emergency planning zones (EPZs) for nuclear power plants; and certain requirements in 10 C.F.R. Part 50, Appendix E, Section IV for the content of emergency plans. Thus, in a second filing also dated July 1, 2019, Exelon Generation requested the necessary exemptions pursuant to 10 C.F.R. § 50.12.37 The July 1, 2019, Exemption Request contains an analysis that demonstrates that 488 days after permanent cessation of power operations, the spent fuel stored in the spent fuel pool will have decayed to the extent that the requested exemptions, proposed PDEP, and Permanently Defueled EAL scheme may be implemented at the TMI site.38 As explained in the LAR, Exelon Generations analyses of the potential radiological impact of accidents 488 days after the plant is permanently shut down indicate that no design basis accident or reasonably conceivable beyond design basis accident will be expected to result in radioactive 36 See LAR, att. 1 at 7; att. 2 at 5, 12, 27, 38.

37 See Letter from Michael P. Gallagher, Exelon Generation, to NRC, Request for Exemptions from Portions of 10 CFR 50.47 and 10 CFR Part 50, Appendix E (July 1, 2019) (ML19182A104) (July 1, 2019, Exemption Request).

38 Based on the limiting fuel assembly for decay heat and adiabatic heat-up analysis, at 488 days (approximately 16 months) after permanent cessation of power operations (i.e., 488 days decay time), the time for the hottest fuel assembly to reach 900°C is 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> after the assemblies have been uncovered. See LAR, att. 1 at 5. Given the length of time required for the adiabatic heat-up to occur, there is ample time to respond to any partial drain down event that might cause such an occurrence by restoring spent fuel pool cooling or makeup or providing spray. See id. As a result, the likelihood that such a scenario would progress to a zirconium fire is not deemed credible. See id. The 488-day period discussed in the analysis is referred to as the Zirc-Fire Window. See also July 1, 2019 Exemption Request, att. 1 at 3-4, 39-40; NRC, Regulatory Analysis for Regulatory Basis: Regulatory Improvements for Power Reactors Transitioning to Decommissioning at 28-29 (Jan. 2018) (ML17332A075) (NRC January 2018 Regulatory Analysis) (explaining that the probability of a zirconium fire scenario continues to decrease as a function of the time that the decommissioning reactor has been permanently shut down); NSIR/DPR-ISG-02 at 7 (noting that [a]fter a certain amount of time, the overall threat of a zirconium fire becomes extremely low).

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releases that exceed U.S. Environmental Protection Agency (EPA) Protective Action Guidelines (PAGs) beyond the site boundary.39 The analysis confirms that a 30-minute notification time and reduced scope of offsite and onsite emergency response plans can be implemented without undue risk to public health and safety.40 The LAR further explains that the proposed changes to the TMI SEP and associated EAL scheme, including the change to assess, classify, and declare an emergency within 30 minutes, are consistent with changes to emergency plans and EALs for the transition to a permanently-defueled condition that the NRC has approved for numerous other power reactor facilities entering the decommissioning phase.41 Finally, on September 26, 2019, in accordance with 10 C.F.R. § 50.82(a)(1)(ii), Exelon Generation certified to the NRC that, as of September 26, 2019, it had permanently removed all fuel from the TMI-1 reactor vessel and placed the fuel in the spent fuel pool.42 Thus, in accordance with 10 C.F.R. § 50.82(a)(2), the TMI-1 license no longer authorizes operation of the reactor or emplacement or retention of fuel into the reactor vessel.

III. PROCEDURAL HISTORY On July 1, 2019, Exelon Generation filed the subject LAR and Exemption Request, as explained in Section II, supra. The NRC Staff notified Exelon Generation, on August 1, 2019, that it had completed its acceptance review, and found that the LAR contained sufficient information to 39 See LAR, att. 1 at 2. Exelon Generation will maintain the version of the EPA PAGs as specified in the current and proposed TMI Emergency Plan. See id.

40 See id., att. 1 at 7.

41 See id., att. 1 at 11. Those other facility approvals include, among others: Fort Calhoun Station, Unit 1 on December 12, 2017; Vermont Yankee Nuclear Power Station on December 11, 2015; San Onofre Nuclear Generating Station, Units 1, 2, and 3 on June 5, 2015; Crystal River Unit 3 on March 31, 2015; and Kewaunee Power Station on October 31, 2014.

See also Decommissioning of Nuclear Power Reactors; Final Rule, 61 Fed. Reg. 39,278, 39,279 (July 29, 1996)

(explaining why the degree of regulatory oversight required for a nuclear power reactor during the decommissioning stage is considerably less than that required for the facility during its operating stage); NRC January 2018 Regulatory Analysis at 28-29 (discussing the bases for the NRCs prior approvals of exemptions from the emergency planning regulations at permanently shutdown and defueled power reactor sites).

42 See TMI-1 Fuel Removal Certification, n.5, supra.

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enable the Staff to perform its detailed technical review of the LAR.43 On the same day, the Staff issued a separate but similar notification with regard to the July 1, 2019, Exemption Request.44 On September 10, 2019, the NRC published in the Federal Register a notice informing the public that it is considering the LAR for approval, seeking public comments on the NRCs proposed no significant hazards consideration determination within 30 days of the notice, and providing an opportunity for potentially affected persons to file, within 60 days of the notice (i.e., by November 12, 2019), hearing requests and intervention petitions.45 The Hearing Notice specifically directs petitioners to address the standing requirements in 10 C.F.R. § 2.309(d) and the contention admissibility requirements in 10 C.F.R. § 2.309(f), and notes that [c]ontentions must be limited to matters within the scope of the proceeding.46 On November 12, 2019, Petitioners timely filed the instant Petition, proffering two contentions that purportedly challenge the LAR.47 No other intervention petitions or hearing requests were filed in response to the Hearing Notice. On December 9, 2019, the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel established the Board that will preside over the this proceeding.48 43 See E-mail from Justin Poole, NRC, to Leslie Holden and Robert Brady, Exelon Generation (Aug. 1, 2019 at 10:54 AM)

(ML19213A252).

44 See E-mail from Justin Poole, NRC, to Leslie Holden and Robert Brady, Exelon Generation (Aug. 1, 2019 at 11:04 AM)

(ML19213A253).

45 Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 87 Fed. Reg. 47,542 (Sept. 10, 2019) (Hearing Notice). The Hearing Notice required that any hearing requests be filed by November 12, 2019.

46 Id. at 47,543. The Hearing Notice references Exelon Generations July 1, 2019 LAR, but not the July 1, 2019 Exemption Request. Petitioners have not challenged the July 1, 2019 Exemption Request in their Petition.

47 As discussed herein, Petitioners raise issues that, for the most part, are entirely unrelated to Exelon Generations July 1, 2019 LAR, which relates to post-shutdown and defueling emergency planning requirements. Petitioners largely raise issues related to decommissioning funding requirements and, in doing so, focus on Exelon Generations April 12, 2019 Exemption Request, which the NRC granted on October 16, 2019, thereby allowing Exelon Generation to use TMI-1 decommissioning funds for spent management fuel costs without prior NRC notification. Such issues plainly are not within the scope of this proceeding.

48 See Establishment of Atomic Safety and Licensing Board, Exelon Generation Co., LLC (Three Mile Island Nuclear Station, Units 1 and 2), Docket Nos. 50-289 and 50-320 ASLBP No. 20-962-01-LA-BD01 (Dec. 9, 2019).

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Exelon Generation timely files this Answer opposing the Petition in accordance with 10 C.F.R. §§ 2.306(a) and 2.309(i)(1). As set forth below, Petitioners have neither established standing to intervene in this proceeding nor submitted an admissible contention. Accordingly, the Petition must be denied in its entirety.

IV. PETITIONERS HAVE NOT DEMONSTRATED STANDING TO INTERVENE AS A MATTER OF RIGHT OR AS A MATTER OF DISCRETION Petitioners assert that Mr. Epstein has standing to intervene as an individual in this proceeding, and that TMI-Alert has representational standing to intervene in this license proceeding.49 Petitioners also suggest that they should be granted discretionary intervention under 10 C.F.R. § 2.309(e).50 As demonstrated below, neither Mr. Epstein nor TMI Alert has established standing to intervene in this proceeding as a matter of right under 10 C.F.R. § 2.309(d). Nor have Petitioners shown that they are entitled to discretionary intervention under 10 C.F.R. § 2.309(e).

Petitioners failure to demonstrate standing alone warrants dismissal of the Petition.51 A. Legal Standards and Precedent Governing Standing as a Matter of Right To determine whether a petitioner has a sufficient interest to intervene in a proceeding, the Commission applies contemporaneous judicial concepts of standing.52 The petitioner bears the burden to provide facts sufficient to establish standing.53 As relevant here, a petitioner may satisfy that burden in one of three ways.

49 Petition at 18, 27. The Petition does not assert that TMI Alert has organizational standing.

50 See Petition at 23 (referencing 10 C.F.R. § 2.309(e) and Petitioners purported ability to assist in developing a sound record).

51 Alternatively, if the Board determines that Petitioners have not proffered an admissible contentionas it should for the reasons set forth belowthen it need not address Petitioners standing to intervene in this proceeding. See PPL Susquehanna, LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-15-8, 81 NRC 500, 503 n.19 (2015) (Because

[the petitioners] contentions all fall far short of our contention admissibility standards, we need not address his standing to intervene.).

52 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-15-25, 82 NRC 389, 394 (2015).

53 See U.S. Enrichment Corp. (Paducah, Kentucky Gaseous Diffusion Plant), CLI-01-23, 54 NRC 267, 272 (2001) (citing Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 NRC 90, 98 (2000)).

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1. Traditional Standing Requirements First, a petitioner may show traditional standing. This requires a showing that a person or organization has suffered or might suffer a concrete and particularized injury that is: (1) fairly traceable to the challenged action; (2) likely redressable by a favorable decision; and (3) arguably within the zone of interests protected by the governing statuteshere the Atomic Energy Act of 1954, amended (AEA) and NEPA.54 These criteria are commonly referred to as injury-in-fact, causality, and redressability.

2. Proximity-Based Standing Second, in certain NRC proceedings, a petitioner may take advantage of proximity presumptions the Commission has created to simplify standing requirements for individuals who reside within, or have frequent contacts with, a geographic zone of potential harm. In proceedings that involve construction or operation of a nuclear power plant, the zone is deemed to be the area within a 50-mile radius of the site. In such proceedings, proximity standing rests on the presumption that an accident associated with the nuclear facility could adversely affect the health and safety of people working or living offsite but within a certain distance of that facility.55 The NRC has held that the proximity presumption may be sufficient to confer standing on an individual or group in Part 50 proceedings involving reactor construction permits, operating licenses, or significant license amendments thereto such as the expansion of the capacity of a spent fuel pool.56 As the Commission has noted, those cases involve[] the construction or operation of the reactor itself, with clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite consequences.57 To establish proximity standing, a 54 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).

55 Id. (citations omitted).

56 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989) (citations omitted) (emphasis added).

57 Id. at 329-30.

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petitioner must provide fact-specific standing allegations, not conclusory assertions, as the Commission cannot find the requisite interest based on . . . general assertions of proximity.58 Importantly, however, the Commission has held that in a license amendment case such as this one, a petitioner cannot base his or her standing simply upon a residence or visits near the plant, unless the proposed action quite obvious[ly] entails an increased potential for offsite consequences.59 In such a case, [w]hether and at what distance a petitioner can be presumed to be affected must be judged on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source.60 In other words, a petitioner seeking to intervene in a license amendment proceeding must assert a specific injury-in-fact associated with the challenged license amendment, not simply a general objection to the facility. 61 The petitioner cannot seek to obtain standing . . . simply by enumerating the proposed license changes and alleging without substantiation that the changes will lead to offsite radiological consequences.62

3. Representational Standing Finally, like TMI Alert here, an organization may seek to establish representational standing based on the standing of one or more individual members. To establish representational standing, an organization must: (1) show that the interests it seeks to protect are germane to its own purpose; (2) identify at least one member who qualifies for standing in his or her own right; (3) show that it is authorized by that member to request a hearing on his or her behalf; and (4) show that neither the claim asserted nor the relief requested require an individual members participation in the 58 Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 410 (2007) (emphasis added).

59 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185, 191 (1999) (alteration in original) (rejecting proximity presumption argument in license amendment proceeding due to plants shutdown and defueled status).

60 Ga. Inst. of Tech. (Ga. Tech. Research Reactor), CLI-95-12, 42 NRC 111, 116-17 (1995).

61 Zion, CLI-99-4, 49 NRC at 188 (emphasis in original; citations omitted); see also St. Lucie, CLI-89-21, 30 NRC at 329-30 (Absent situations involving such obvious potential for offsite consequences, a petitioner must allege some specific injury in fact that will result from the action taken).

62 Zion, CLI-99-4, 49 NRC at 192.

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organizations legal action.63 B. Mr. Epstein Has Not Established Standing to Intervene As of Right Mr. Epstein claims to have personal standing to intervene because he is an area resident with a vested interest in Three Mile Island dating back to 1982, has been TMI Alerts Chairman since 1984, and has been a Central Dauphin School District Board Director since 2013.64 He further claims that NRC tribunals consistently have found him and TMI Alert to have standing in NRC proceedings dating from the Restart of TMI-1 in 1980 through [the] License Transfer of Unit 1 from AmerGen to Exelon [Generation] in 2009.65 These statements constitute the totality of Mr.

Epsteins arguments in support of his claim that he has standing to intervene as an individual.

Mr. Epsteins arguments are patently insufficient to establish standing to intervene in this license amendment proceeding. As a threshold matter, the mere fact the Mr. Epstein or TMI Alert may (or may not) have demonstrated standing in prior NRC proceedings is irrelevant. Indeed, the Commission rejected such an argument by Mr. Epstein in a prior proceeding, noting that Mr.

Epstein could not rely on other boards findings of standing in the two prior proceedings concerning the Susquehanna facility.66 The Commission reiterated that a petitioner must make a fresh standing demonstration in each proceeding in which intervention is sought because a petitioners circumstances may change from one proceeding to the next.67 Here, Mr. Epstein, who, despite being a pro se litigant, is familiar with the NRCs standing requirements by virtue of his involvement in numerous prior proceedings, fails to provide all of the information required by 10 C.F.R. § 2.309(d). That regulation provides that a petition for leave to 63 Palisades, CLI-07-18, 65 NRC at 409.

64 Petition at 27.

65 Id. at 18.

66 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 138 (2010).

67 Id. (emphasis in original); see also id. ([T]he Board correctly found that it may focus only on the support Mr. Epstein presented with respect to this proceeding in ruling on his standing to intervene.) (emphasis in original).

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intervene must state: (1) the name, address, and telephone number of the requestor or petitioner; (2) the nature of the petitioners right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioners property, financial or other interest in the proceeding; and (4) the possible effect of any decision or order that may be issued in the proceeding on the petitioners interest. Although the Petition appears to satisfy the first two requirements, it does not contain sufficient information to satisfy the third and fourth elements of Section 2.309(d).

Notably, a prior Commission decision (CLI-05-26) stemming from Mr. Epsteins failed attempt to intervene in a license transfer proceeding involving Peach Bottom Units 2 and 3 underscores the instant Petitions deficiencies. In Peach Bottom, the Commission noted that Mr.

Epstein must demonstrate (among other things) that the proposed [action] would injure his financial, property, or other interests.68 The Commission found, as in this case, that Mr. Epstein never squarely addresses this injury requirement.69 In so doing, the Commission noted that Mr.

Epsteins involvement in various activities related to the plant, both personal and through organizations, do not demonstrate injury, as a mere intellectual or academic interest in a facility or proceeding is insufficient, in and of itself, to demonstrate standing.70 Insofar as Mr. Epstein implicitly relies on the concept of proximity standing by virtue of his being an area resident, he still fails to establish standing to intervene in this proceeding. Again, the Commissions ruling in Peach Bottom is instructive and directly applicable here. In that case, the Commission noted that the threshold question is whether the kind of action at issue, when considered in light of the radioactive sources at the plant, justifies a presumption that the licensing 68 Exelon Generation Co., LLC and PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-05-26, 62 NRC 577, 579 (2005) (citing 10 C.F.R. § 2.309(d); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996)).

69 Id.

70 Id. at 579, 580; cf. Bell Bend, CLI-10-7, at NRC at 138 (Mr. Epstein's additional claim that he is on the board of directors of two organizations with interests within 50 miles of the site is likewise insufficiently specific to articulate the requisite pattern of regular contacts with the area.) (citation omitted).

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action could plausibly lead to the offsite release of radioactive fission products from . . . the . . .

reactors.71 It emphasized that [t]he burden falls on the petitioner to demonstrate this.72 If the petitioner fails to show that the subject licensing action raises an obvious potential for offsite consequences, then the standing inquiry reverts to a traditional standing analysis of whether the petitioner has made a specific showing of injury, causation, and redressability.73 In finding that Mr. Epstein had failed to demonstrate that the then-pending license transfers presented an obvious potential for offsite consequences, the Commission revisited its ruling (CLI-99-4) in the Zion license amendment proceeding approximately six years earlier.74 In that case, which involved a license amendment intended to reflect the Zion plants shutdown and defueled condition,75 a petitioner sought to establish standing based on the facts that his residence was within 81/2 -9 miles of the plant, his childrens schooling was within 12 miles, and his own and/or his wifes regular errands and business trips took them to within 1 mile of the plant.76 The Commission affirmed the Boards conclusion that the license amendments at issue created no obvious potential for offsite consequences and that proximity standing should not be granted.77 Like the petitioner in Zion, Mr. Epstein has failed to explain how the particular license amendments at issue would increase the risk of an offsite release of radioactive fission products or 71 Peach Bottom, CLI-05-26, 62 NRC at 581 (quoting Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), LBP-98-27, 48 NRC 271, 277 (1998), affd, CLI-99-4, 49 NRC 185 (1999), petition for review denied, Dienethal v.

NRC, 203 F.3d 52 (D.C. Cir. 2000) (table)).

72 Id.

73 Id.

74 See id. at 582-83 (discussing the facts and holding involved in CLI-99-4).

75 Although the Zion proceeding did not involve emergency planning-related amendments, it did involve license amendments that were intended to facilitate and reflect the plants now shutdown and defueled condition. Zion, CLI-99-4, 49 NRC at 187. Thus, the Commissions decision in CLI-99-4 is directly apposite and controlling here.

76 Peach Bottom, CLI-05-26, 62 NRC at 582 (citing Zion, LBP-98-27, 48 NRC at 273-74, affd, CLI-99-4, 49 NRC at 191-93).

77 Id. (citing Zion, LBP-98-27, 48 NRC at 276, affd, CLI-99-4, 49 NRC at 191).

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might cause him radiological injury.78 The Commissions rationale for affirming the Boards standing ruling in the Zion proceeding applies equally to this case:

Here, given the shutdown and defueled status of the units, the license amendments do not on their face present any obvious potential of offsite radiological consequences. All of the fuel at Plant Zion is in the spent fuel pool.

The significant nuclear activities still ongoing at Plant Zion are the storage and handling of spent fuel bundles in the pool. Because neither reactor will ever operate again, the scope of activities at the plant has been greatly reduced.

Accordingly, the spectrum of accidents and events that remain credible is significantly reduced. The challenged license amendments, including reductions in crew shift staffing, are based largely on the nonoperational status and concomitant reduced scope of work at the facility. The Licensing Board thus reasonably concluded that the type of accident that credibly could occur

. . . from these license amendments is anything but self-evident.79 The discussion presented in Exelon Generations LAR, which Mr. Epstein ignores, reinforces his clear failure to identify any obvious potential of offsite radiological consequences or radiological injury to him from the proposed amendments (which, as noted above, would not become effective until the 488-day Zirc-Fire Window has passed). Among other things, the LAR explains that in a permanently-defueled condition, the number and severity of potential radiological accidents is significantly less than when the plant is operating, such that the offsite radiological consequences of accidents possible at TMI are substantially lower.80 It further notes that most previously analyzed accidents can no longer occur and the probability of the few remaining credible accidents are unaffected by the proposed amendment.81 Importantly, the LAR also explains that the proposed changes to the SEP and EAL scheme do not prevent the on-shift staff and emergency response organization from performing their intended functions to mitigate the consequences of any accident or event that will be credible in the permanently defueled condition.82 78 Zion¸ CLI-99-4, 49 NRC at 189-190.

79 Id. at 191-92 (internal citations omitted).

80 LAR, att. 1 at 2.

81 Id. at 12.

82 Id.

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Mr. Epstein has presented no information or analysis to support a contrary conclusion, or otherwise establish a plausible nexus between the challenged license amendments and [any]

asserted harm.83 Thus, he has failed to demonstrate either traditional or proximity-based standing.

C. TMI Alert Has Not Established Representational Standing Petitioners assert that TMI Alert represents members in this proceeding, and that those members interests in the proposed LAR extend to all aspects of TMIs radiological decommissioning, spent fuel management, and site restoration.84 They also vaguely assert that the LAR raises significant health, safety, environmental, and financial concerns for its members.85 Petitioners also cite TMI Alerts involvement in prior TMI-related proceedings.86 Petitioners claim that TMI Alert has representational standing fails for the same reasons discussed in Section IV.B above. In short, TMI Alert has failed to identify at least one member who qualifies for standing in his or her own right. Mr. Epstein does not qualify for standing for the reasons set forth above. And neither do TMI Alert members Joyce Corradi and Patricia Longnecker, whose nearly-identical declarations are included in Appendix A to the Petition.

Both Ms. Corradi and Ms. Longnecker merely state that they live within ten miles of Three Mile Island.87 They do not explain the nature of their interest in this proceeding, or how its outcome may affect that interest. In particular, they do not assert that the instant licensing action will cause them any harm, much less establish a plausible nexus between an alleged harm and the proposed license amendment.88 A petitioner cannot base his or her standing simply upon a 83 Zion, CLI-99-4, 49 NRC at 188.

84 Petition at 20-21.

85 Id. at 21.

86 See id. at 18-20.

87 Corradi Declaration at 2, ¶ 5; Longnecker Declaration at 2, ¶ 5.

88 Zion, CLI-99-4, 49 NRC at 188; see also id. at 192-93 (noting that the petitioner must show some plausible chain of causation, some scenario suggesting how these particular license amendments would result in a distinct new harm or threat to him [or her], and not rely on conclusory allegations with no relation to the license amendments at issue).

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residence or visits near the plant, unless the proposed action quite obvious[ly] entails an increased potential for offsite consequences.89 For the reasons explained above, the proposed changes to the SEP and EAL scheme do not on their face present any obvious potential of offsite radiological consequences.90 Notably, if the LAR and July 1, 2019, Exemption Request are approved, then the PDEP will eliminate the requirement to maintain the 10-mile plume exposure pathway and the 50-mile ingestion pathway EPZs.91 This further underscores the fact the Ms. Corradis, Ms.

Longneckers, and Mr. Epsteins residence within 10 miles of the TMI site does not, by itself, confer standing to intervene in this proceeding. In short, given the failure of any TMI Alert member to identify an injury-in-fact that is plausibly linked to the proposed license amendment or related exemptions, TMI Alert lacks representational standing.

D. Petitioners Have Not Demonstrated A Sufficient Basis for Granting Discretionary Intervention Under 10 C.F.R. § 2.309(e)

Petitioners alternative request for discretionary intervention under 10 C.F.R. § 2.309(e) also must be rejected.92 Pursuant to that regulation, the Commission may consider a request for discretionary intervention where a party lacks standing to intervene as a matter of right under 10 C.F.R. § 2.309(d)(1). However, discretionary intervention may be granted only when at least one petitioner has established standing and at least one contention has been admitted for hearing.93 89 Id. at 191 (citing St. Lucie, CLI-89-21, 30 NRC at 329-30) (internal quotation marks omitted); see also Peach Bottom, CLI-05-26, 62 NRC at 580-81.

90 Zion, CLI-99-4, 49 NRC at 191.

91 See LAR, att. 2 (PDEP) at 1, 3 (noting that there are no postulated accidents that would result in dose consequences that are large enough to require offsite emergency planning); July 1, 2019, Exemption Request, att. 1 at 9 (Table 1, Item 6)

(explaining that after the 488-day Zirc-Fire Window has passed, offsite emergency plans for the populace within the plume exposure pathway Emergency Planning Zone are not necessary for permanently defueled nuclear power plants);

see also January 2018 NRC Regulatory Analysis at 38 (Because of the low probability of DBAs or other credible events that would be expected to exceed the EPA PAGs offsite, and the available time to initiate mitigation measures consistent with plant conditions, the potential offsite consequences would not warrant maintaining the plume exposure pathway and ingestion exposure pathway EPZs in [a] Level 2 [PDEP.]).

92 See Petition at 23.

93 10 C.F.R. § 2.309(e); see also PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), LBP-07-10, 66 NRC 1, 21 n.14 (2007) ([D]iscretionary standing [is] only appropriate when one petitioner has been shown to have standing as of right and an admissible contention so that a hearing will be conducted.).

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Such is not the case as demonstrated in this filingPetitioners clearly have failed both to establish standing and proffer an admissible contention.

Furthermore, Petitioners fail to address each of the six factors or criteria enumerated in Section 2.309(e)94 and show that a balancing of those factors militates in favor of the Commissions exceptional granting of discretionary intervention status.95 In support of their request, Petitioners merely aver that their participation may reasonably be expected to assist in developing a sound record.96 Petitioners do not attempt to explain why that is the casea significant omission given that Petitioners two proposed contentions raise issues that are plainly outside the scope of this proceeding.97 Nor do they address any of other discretionary intervention factors specified in Section 2.309(e). The burden of convincing the Commission that a petitioner can make a valuable contribution to the agencys decision-making process lies with the petitioner.98 Petitioners have not come remotely close to meeting that burden here.

94 Factors weighing in favor of allowing intervention include (i) the extent to which its participation would assist in developing a sound record; (ii) the nature of petitioners property, financial or other interests in the proceeding; and (iii) the possible effect of any decision or order that may be issued in the proceeding. See 10 C.F.R. § 2.309(e)(1)(i)-(iii).

Conversely, factors weighing against allowing intervention include (i) the availability of other means whereby the petitioners interest might be protected; (ii) the extent to which petitioners interest will be represented by existing parties; and (iii) the extent to which petitioners participation will inappropriately broaden the issues or delay the proceeding. See 10 C.F.R. § 2.309(e)(2)(i)-(iii).

95 See Nuclear Engg Co. Inc. (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978) (requiring potential discretionary intervenor to show that it is both willing and able to make a valuable contribution to the full airing of the issues . . . in this proceeding).

96 Petition at 18.

97 Petitioners address none of the considerations that NRC tribunals typically have considered as potential indicia of a petitioners ability to contribute to development of a sound record. Such considerations include a petitioners showing of significant ability to contribute on substantial issues of law or fact that will not be otherwise properly raised or presented; the specificity of such ability to contribute on those substantial issues of law or fact; justification of time spent on considering the substantial issues of law or fact; the ability to provide additional testimony, particular expertise, or expert assistance; and specialized education or pertinent experience. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-81-1, 13 NRC 27, 33 (1981) (and cases cited therein); Fla. Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-24, 32 NRC 12, 16-17 (1990), aff'd, ALAB-952, 33 NRC 521, 532 (1991).

98 See Nuclear Engg Co., ALAB-473, 7 NRC at 745.

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V. PETITIONERS PROPOSED CONTENTIONS ARE INADMISSIBLE Given Petitioners failure to demonstrate standing, the Board need not address the admissibility of their proposed contentions to deny the Petition.99 In any event, as explained below, the Petition also fails to meet the NRCs contention admissibility criteria, even accounting for Petitioners status as pro se participants.

A. Governing Legal Standards for Contention Admissibility Under 10 C.F.R. § 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. That regulation further requires that each contention:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised is within the scope of the proceeding; (iv) Demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.100 Failure to comply with any one of these six admissibility requirements is grounds for rejecting a proposed contention.101 These requirements are strict by design.102 The six criteria serve to focus litigation on concrete issues and result in a clearer and more focused record for 99 Cf. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Unit No. 3 & James A. Fitzpatrick Nuclear Plant),

LBP-16-14, 84 NRC 444, 451 (2016) (Here, given Petitioners failure to even attempt to demonstrate compliance with those requirements, we need do no more than dismiss the Petition for lack of standing.).

100 See also Susquehanna Nuclear, LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-17-4, 85 NRC 59, 74 (2017).

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

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

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decision.103 The Commission should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.104 The petitioner alone bears the burden to meet the standards of contention admissibility.105 Thus, where a petitioner neglects to provide the requisite support for its contentions, the Board may not cure the deficiency by supplying the information that is lacking or making factual assumptions that favor the petitioner to fill the gap.106 Although [a] board may consider the readily apparent legal implications of a pro se petitioners arguments, even if not expressly stated in the petition, that authority is limited in that the petitionernot the boardmust provide the information required to satisfy [the] contention admissibility standards.107 B. Proposed Contention 1 Is Inadmissible Because It Fails to the Meet the Requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi)

As summarized by Petitioners, Contention 1 alleges as follows:

Exelons LAR does not provide financial assurances. It does not demonstrate that either Exelon or FirstEnergy are fiscally responsible, or that either have access to adequate funds for decommissioning. Neither does the LAR address the confused management organization, or where resources will be derived to deal with environmental impacts that would place the public health, safety, and the environment at risk.108 Petitioners assert that Exelon Generations PSDAR and LAR do not contain the information needed to demonstrate reasonable assurance that sufficient funds will be available to complete the TMI-1 decommissioning process, and the April 5, 2019, DCE does not include an adequate 103 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202; see also Entergy Nuclear Operations, Inc. (Indian Point, Units 2

& 3), LBP-08-13, 68 NRC 43, 61 (2008); see also Oyster Creek, CLI-19-6, slip op. at 7 (noting that the NRC contention admissibility requirements serve to screen out ill-defined, speculative, or otherwise unsupported claims.).

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

105 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015) ([I]t is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) (citations omitted) ([T]he Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.).

106 See Palisades, CLI-15-23, 82 NRC at 329; Fermi, CLI-15-18, 82 NRC at 149; Ariz. Pub. Serv. Co. (Palo Verde Nuclear Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 155 (1991).

107 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-18-4, 87 NRC 89, 96-97 (2018) (citations omitted).

108 Petition at 28.

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contingency factor.109 As support, Petitioners rely principally on the July 22, 2019, TMI Alert Filing included as Appendix B to the Petition.110 That document seeks to challenge Exelon Generations April 12, 2019, Exemption Request to allow Exelon Generation to use a portion of the TMI-1 DTF for spent fuel management activities, without prior NRC notification, consistent with the PSDAR and site-specific DCE.

As noted above, the NRC granted the April 12, 2019, Exemption Request on October 16, 2019. Petitioners make various other allegations in Proposed Contention 1 concerning future decommissioning and spent fuel management cost increases, corporate management issues, past radiological releases, postulated spent fuel accidents, and challenges posed by high-burnup fuel.111 In doing so, Petitioners make multiple (and irrelevant) references to FirstEnergy (the owner of TMI-2), which is not an applicant in this TMI-1 license amendment proceeding.

1. Proposed Contention 1 Raises Issues That Are Neither Within the Scope of This Proceeding Nor Material to the NRC Staffs Required Findings On its face, Proposed Contention 1 raises issues that are not within scope of this proceeding or material to the NRCs findings regarding the proposed action.112 Accordingly, the proposed contention must be rejected on those grounds alone pursuant to 10 C.F.R. § 2.309(f)(1)(iii) and (iv).

As described above, and explicitly noted in the Hearing Notice for this proceeding, the LAR seeks only to modify the scope of the SEP and EAL scheme commensurate with the reduced hazards associated with a permanently shutdown and defueled facility.113 Thus, the scope of the LAR and this proceeding is limited to Exelon Generations request to modify certain emergency 109 See id. at 31.

110 See id. at 32-33.

111 See generally id. at 34-40. Confusingly, Petitioners also erroneously suggest that this proceeding involves a license transfer. See Petition at 9, 24-26, 41, 49. It clearly does not.

112 10 C.F.R. § 2.309(f)(1)(iii), (iv).

113 See Hearing Notice, 84 Fed. Reg. at 47,548 (The amendment would revise the site emergency plan (SEP) and Emergency Action Level (EAL) scheme for the permanently defueled condition.).

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preparedness requirements in light of TMI-1s permanently-defueled condition.114 It has nothing to do with the adequacy of Exelon Generations PSDAR, DCE, or decommissioning financial assurance (i.e., the DTF) for TMI-1, which are governed by separate NRC requirements and approval processes described in 10 C.F.R. §§ 50.75 and 50.82.115 Insofar as Petitioners seek to challenge Exelon Generations compliance with those separate requirements, their challenges must be rejected in this proceeding pursuant to 10 C.F.R. § 2.309(f)(1)(iii) and (iv) for lack of relevance and materiality to the proposed action.

Similarly, issues related to the character and integrity of Exelon Generation and TMI-2 owner FirstEnergy, as well as those companies respective financial assets, are not subject to litigation in this license amendment proceeding as they too are beyond its scope.116 Nor are the financial resources or financial qualifications of TMI-2 Solutions, LLC, an EnergySolutions subsidiary, as a prospective purchaser of TMI-2.117 In short, Petitioners allegations regarding a lack of sufficient funds [and the] requisite corporate character to maintain TMI in safe defueling status until 2073 are of no relevance to the discrete action under NRC reviewi.e., the amendment of the TMI-1 license to allow a reduced-scope SEP and EAL scheme.118 The Commission long has held that NRC licensing actions do not throw[] open an opportunity to engage in a free-ranging inquiry into the character of the licensee.119 114 Contrary to Petitioners spurious claims, the LAR does not unilaterally [] defund emergency responders, raid the TMI-1 nuclear decommissioning trust fund, or relegate emergency planning to little more than an afterthought stored in a drawer. Petition at 2, 3, 22.

115 Moreover, as noted above, Exelon Generations LAR and July 1, 2019, Exemption Request are intended to reduce post-shutdown costs by eliminating the need to implement emergency preparedness requirements that were designed specifically for operating reactors.

116 Petition at 24-25, 52.

117 Id. Any proposed NRC license transfer resulting from the acquisition of TMI-2 by TMI-2 Solutions, LLC is a separate licensing action that is independent of the pending emergency preparedness-related LAR, and is subject to its own process and regulatory requirements. The LAR and July 1, 2019, Exemption Request, if approved by the NRC, would not modify the current ownership structure for either TMI-1 or TMI-2.

118 Petition at 24-25.

119 Ga. Power Co. (Vogtle Elec. Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25, 32 (1993).

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Finally, Petitioners wide-ranging allegations regarding purported decommissioning cost increases, underestimated spent fuel management costs, past contamination events, hypothetical spent fuel accidents and fires, and high-burnup fuel issues are outside the scope of this proceeding as well. Those claims are not relevant or material to the NRC Staffs determination, under 10 C.F.R. §§ 50.47 and 50.92, as to whether to approve an amendment that would modify the scope of Exelon Generations post-shutdown emergency preparedness activitiesnot Exelon Generations decommissioning and spent fuel management cost estimates or related financial assurance obligations.

2. Proposed Contention 1 Lacks Adequate Support and Fails to Raise a Genuine Dispute with the Application on a Material Issue of Fact or Law Proposed Contention 1 also is inadmissible because it lacks adequate support and fails to raise any particularized challenge to the LAR, contrary to the requirements of 10 C.F.R.

§ 2.309(f)(1)(v) and (vi).120

a. Petitioners Decommissioning Financial Assurance Claims Are Factually Unsupported, Immaterial and Irrelevant Even assuming, arguendo, that Petitioners claims regarding inadequate decommissioning financial assurance were somehow found to fall within the scope of this proceeding (and clearly they do not), they are factually groundless. In fact, Petitioners first proposed contention takes aim at Exelon Generations April 12, 2019, Exemption Request (seeking exemptions from Sections 50.82(a)(8)(i)(A) and 50.75(h)(1)(iv)), which the NRC granted on October 16, 2019.

In evaluating the April 12, 2019, Exemption Request, the NRC Staff performed an independent cash flow analysis of the TMI-1 DTF over the 60 year SAFSTOR period and determined the projected earnings of the DTF.121 The Staff concluded that there are sufficient funds in the DTF to complete all NRC-required radiological decommissioning activities at TMI-1, as 120 U.S. Dept of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 580, 587 (2009).

121 See October 2019 DTF Exemptions, 84 Fed. Reg. at 56,848-50 (including Table 1).

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well as to conduct spent fuel management activities consistent with the PSDAR, site-specific DCE, and the April 12, 2019, Exemption Request.122 Therefore, the Staff found that Exelon Generation had provided reasonable assurance that adequate funds will be available for the radiological decommissioning of TMI-1, even with the disbursement of funds from the DTF for spent fuel management activities.123 Petitioners have presented no credible facts, analysis, or expert opinion to support their claims that there is a shortfall in the [DTF] that prevents the site from being fully decontaminated and restored, and that Exelon Generation has not shown that it possesses the funds necessary to safely decommission the TMI site.124 Thus, in addition to being outside the scope of this proceeding, Petitioners claims are factually unsubstantiated, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(v). They also overlook the requirement in 10 C.F.R. § 50.75 that each Part 50 licensee monitor and annually report to the NRC the status of its DTF and funding for managing spent fuel. Those annual reports provide the NRC staff with awareness of, and the ability to take action on, any actual or potential funding deficiencies,125 and underscore the groundless nature of Petitioners Proposed Contention 1.

b. Petitioners Fail to Directly Challenge Any Relevant Portion of the LAR In focusing on decommissioning funding and spent fuel management issues, Petitioners fail to challenge the LAR with the required specificity, in contravention of Section 2.309(f)(1)(vi).126 Indeed, they fail to cite to any specific pages or portions of the LAR or undertake any substantive 122 Id. at 56,448-49.

123 Id. at 56,448.

124 Petition at 21.

125 October 2019 DTF Exemptions, 84 Fed. Reg. at 56,848.

126 In Section I (Introduction) of the Petition, Petitioners purport to dispute the NRCs proposed no significant hazards consideration determination, as described in the Hearing Notice and based on the Exelon Generations own analysis in the LAR. However, as discussed in Exelon Generations response to Proposed Contention 2, infra, adjudicatory challenges to the NRC Staffs proposed significant hazards consideration determination are barred by regulation and controlling Commission precedent.

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analysis of the proposed licensing action at issue. As such, Petitioners completely ignore Exelon Generations detailed discussion of the nature, purpose, and regulatory/technical bases for the proposed amendment in the LAR. Specifically, LAR Section 2.0 describes the proposed changes to the SEP and EAL scheme; Section 3.0 discusses the reasons for the proposed amendment; Section 5.0 provides a technical evaluation that addresses, among other things, the relevant accident analyses; and Section 6.0 describes the regulatory basis for the LAR, including the proposed actions consistency with applicable NRC requirements, guidance, and precedent.127 Petitioners do not acknowledge, much less dispute with requisite specificity, any of the information set forth in the foregoing Sections of the LAR when they lodge the hyperbolic claim that Exelon Generation is retreat[ing] to the fence line and abandoning and defunding the communities they will need to partner with to implement the EAL and SEP.128 Nor do they provide any basis for the similarly baseless claim that Exelon Generation will not be able to meet its responsibilities under its monitoring or service agreement with FirstEnergy, including the emergency planning responsibilities for TMl-2.129 Indeed, the LAR expressly notes that [t]his amendment request does not impact Exelon [Generation]s ability to maintain the service agreement,130 and Section 4.10 of the Permanently Defueled Emergency Action Levels and Bases Document relates specifically to responses to any TMI-2 emergencies.131 In summary, Proposed Contention 1 is inadmissible because it raises issues that are outside the scope of this proceeding and immaterial to the Staffs required findings on the LAR, lacks factual and legal support, and fails to establish a genuine material dispute with the LARall contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), (v), and (vi).

127 See LAR, att. 1 at 2-11.

128 Petition at 3.

129 See id. at 13-16.

130 LAR, att. 1 at 2.

131 LAR, att. 3 at 6.

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C. Proposed Contention 2 Is Inadmissible Because It Fails to the Meet the Requirements of 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi)

As summarized by Petitioners, Proposed Contention 2 alleges as follows:

The License Amendment Request Does Not Include the Environmental Report Required by 10 CFR 51.53(d), and Has Not Undergone the Environmental Review Required by the National Environmental Policy Act.132 As support for their second contention, Petitioners misguidedly cite to NEPA, Council on Environmental Quality (CEQ) regulations, and various federal court cases in an attempt to force the NRC to perform a detailed environmental analysis of the proposed LAR.133 They claim that

[e]ven if the proposed LAR might not have any environmental impacts, the possibility of significant environmental impacts precludes a FONSI [finding of no significant impact] and triggers the need for an [EIS].134 Petitioners further argue that postulated contaminant leaks into the Susquehanna River, the potential for severe storms and flooding, and various past and postulated future accidents warrant such analysis under NEPA.135 Their flawed legal analyses and groundless factual claims, however, point to only one resultthe sound rejection of Proposed Contention 2.

Proposed Contention 2 is inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) because it fails to directly challenge the LAR. By way of background, 10 C.F.R. § 51.22(b) states that, absent special circumstances, an environmental assessment (EA) or an EIS is not required for any action within a category of actions included in the list of categorical exclusions set out in [10 C.F.R.

§ 51.22(c)]. Section 51.22(c)(9) makes clear that the NRCs NEPA obligations related to the issuance of license amendments are limited. Namely, issuance of a license amendment is categorically excluded from the environmental review requirement if the proposed amendment meets all three of the criteria specified in Section 51.22(c)(9); i.e., the amendment involves: (1) no 132 Petition at 40.

133 See generally id. at 40-46.

134 Id. at 42.

135 See generally id. at 47-52.

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significant hazards consideration, (2) no significant change in the types or significant increase in the amounts of any effluents that may be released offsite, and (3) no significant increase in individual or cumulative occupational radiation exposure.136 In Section 7.0 (Environmental Considerations) of the LAR, Exelon Generation specifically evaluated the proposed amendment against the criteria in 10 C.F.R. § 51.22(c)(9)(i)-

(iii).137 Based on that evaluation, Exelon Generation concluded, in accordance with Section 51.22(b), that no [EIS] or [EA] need be prepared in connection with the issuance of this amendment.138 In Proposed Contention 2, Petitioners do not even acknowledge Exelon Generations explicit discussion of this categorical exclusion in the LAR. Petitioners failure in this regard contravenes their obligation under Section 2.309(f)(1)(vi) to dispute the LAR with particularity.139 That is, Petitioners have not met their ironclad obligation to review the Application thoroughly and to base their challenges on its contents.140 As the Commission recently held in CLI-19-6:

Without more, [Petitioners] request for an environmental analysis under NEPA constitutes an impermissible challenge to the categorical exclusion rule and does not meet our contention standards.141 As the Commission explained in an earlier license amendment proceeding, the very regulations cited by Exelon Generation in LAR Section 7.0 and discussed aboveSections 51.22(b) and 51.22(c)(9)do, however, provide specific avenues for petitioners to challenge categorical 136 10 C.F.R. § 51.22(c)(9)(i)-(iii).

137 See LAR, att. 1 at 13.

138 Id. Exelons July 1, 2019, Exemption Request similarly explains why that request satisfies the categorical exclusion in 10 C.F.R. § 51.22(c)(25), which applies to exemptions that satisfy the criteria in that regulation. See July 1, 2019, Exemption Request, att. 1 at 55-57.

139 See 10 C.F.R. § 2.309(f)(1)(vi) (emphasis added) (noting that a contention must must include references to specific portions of the application . . . that the petitioner disputes and the supporting reasons for each dispute).

140 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 312 (2012) (citation omitted).

141 Oyster Creek, CLI-19-6, slip op. at 18 (citing 10 C.F.R. § 2.335(a)).

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exclusion determinations.142 In particular, a petitioner may either show the existence of special circumstances or show that the license amendment would result in increased offsite releases of effluents or increased individual or cumulative occupational radiation exposure.143 But, like the petitioner in that proceeding, Petitioners herein did not avail [themselves] of these opportunities.144 As noted above, Petitioners do not cite to the relevant Part 51 regulations or LAR Section 7.0, or otherwise acknowledge the existence of a categorical exclusion. Nor do they expressly assert the presence of special circumstances for purposes of Section 51.22(b).

Even setting aside these fatal legal flaws in Proposed Contention 2, Petitioners provide no credible factual support for any claimexpress or implicitthat special circumstances warrant the preparation of an EA or EIS, or that the proposed amendment would result in increased offsite releases of effluents or increased individual or cumulative occupational radiation exposures. As supporting facts for Proposed Contention 2, Petitioners cite the plants purported unique location and susceptibility to postulated floods as well as the historical occurrence of leaks, release[s] and exposures at TMI.145 However, they fail to explain how any of these factseven if assumed to be truewarrant a NEPA review of this discrete license amendment in lieu of a categorical exclusion. In short, they do not explain how reducing the scope of the SEP and EAL scheme to reflect the facilitys permanently-defueled condition could lead to increased offsite effluent releases or occupational radiation exposures. Thus, their contention also lacks the factual support required by 10 C.F.R. § 2.309(f)(1)(v).146 142 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 145 (2016).

143 Id. at 144 (citation omitted).

144 Id. at 145.

145 See Petition at 50, 53 & Exh. 7.

146 In this regard, Petitioners also fail to explain the relevance of the various Part 51 regulations, CEQ regulations, and federal NEPA cases cited in their Petition to this proposed licensing action.

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In Section I of their Petition, Petitioners do claim to dispute Exelon Generations and the NRC Staffs proposed no significant hazards consideration determination for the license amendment, claiming that the Staffs cookie cutter analysis of 10 C.F.R. § 50.92(c) is fatally flawed, limited in scope, and based on technically deficient conclusions.147 The Staffs proposed no significant hazards consideration determination, as set forth in the Hearing Notice, is based upon its review of Exelon Generations analysis of the issue in LAR Section 6.3.148 Proposed Contention 2 does not explicitly challenge the NRC Staffs proposed no significant hazards consideration determination. However, insofar as the proposed contention might be read to rely on Petitioners arguments on this issue, it raises an issue that is outside the scope of this proceeding, in contravention of 10 C.F.R. § 2.309(f)(1)(iii).149 NRC regulations and case law are clear on this point. As the Commission explained in another recent decision involving a proposed license amendment:

[Petitioner] asks us to review the Staffs NSHCD [no significant hazards consideration determination]. Such a request is inconsistent with 10 C.F.R.

§ 50.58(b)(6), which states that [n]o petition or other request for review of or hearing on the staffs significant hazards consideration determination will be entertained by the Commission. The staffs determination is final, subject only to the Commissions discretion, on its own initiative, to review the determination.150 147 Petition at 5-7.

148 See Hearing Notice, 84 Fed. Reg. at 47,548.

149 Even if the NRC Staffs proposed no significant hazards consideration determination was subject to challenge in this proceeding (which it is not), Petitioners rely exclusively on factually erroneous and conclusory assertions, as opposed to adequately-supported facts or expert opinion, in challenging that determination. See Petition at 4-8. Thus, they provide no reason to conclude that the LAR or July 1, 2019, Exemption Request involves significant hazards considerations.

150 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-19-7, 90 NRC __, __, slip op. at 10 (July 25, 2019). See also Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-7, 53 NRC 113, 118 (2001) (Our regulations provide that [n]o petition or other request for review of or hearing on the Staffs no significant hazards consideration determination will be entertained by the Commission. . . . The regulations are quite clear in this regard.)

Amendments to Adjudicatory Process Rules and Related Requirements; Final Rule, 77 Fed. Reg. 46,562, 46,580, 46,585 (Aug. 3, 2012) (explaining that Section 50.58(b)(6) bars challenges to no significant hazards consideration determinations, and the exclusion of such challenges from the NRCs stay provisions is consistent with federal case law treating no significant hazards consideration determinations as final agency actions).

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Thus, to the extent the Board might view Proposed Contention 2 as indirectly relying on Petitioners challenge to the NRC Staffs proposed no significant hazards consideration determination earlier in their Petition, the proposed contention raises an issue that is outside the scope of this proceeding.151 In summary, Proposed Contention 2 fails to establish a genuine material dispute with the LAR and lacks adequate legal or factual support, contrary to the requirements of 10 C.F.R.

§ 2.309(f)(1)(v) and (vi). It also raises an issue that is outside the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), insofar as it possibly might be read to rely on Petitioners earlier challenge to the NRC Staffs no significant hazards consideration determination.

VI. CONCLUSION As demonstrated above, Petitioners have not established standing to intervene in this proceeding either as a matter of right or as a matter of discretion under 10 C.F.R. § 2.309(d) and (e).

They also have not proffered a contention that satisfies the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). Thus, the Board should reject the Petition in its entirety.

151 See 10 C.F.R. §2.309(f)(1)(iii); see also Memorandum from Annette L. Vietti-Cook, Secretary of the Commission, to E.

Roy Hawkens, Chief Administrative Judge, Atomic Safety and Licensing Board Panel (Dec. 5, 2019) (ML19339E781)

(citing 10 C.F.R. § 50.58(b)(6) and noting that this referral memorandum is not to be construed as reflecting a determination that Mr. Epstein is entitled to a review of, or hearing on, the staffs no significant hazards consideration determination). As reflected in the Hearing Notice (84 Fed. Reg. at 47,543), in accordance with NRC regulations, the NRC Staff provided a 30-day period for the public to submit comments on the proposed no significant hazards consideration determination. Petitioners do not appear to have submitted such comments.

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

Tamra S. Domeyer, Esq. Kathryn M. Sutton, Esq.

Associate General Counsel Morgan, Lewis & Bockius LLP Exelon Generation Company, LLC 1111 Pennsylvania Avenue, N.W.

4300 Winfield Road, 5th Floor Washington, D.C. 20004 Warrenville, IL 60555 Phone: (202) 739-5738 Phone: (630) 657-3753 Fax: (202) 739-3001 Fax: (630) 657-4323 E-mail: kathryn.sutton@morganlewis.com E-mail: Tamra.Domeyer@exeloncorp.com Signed (electronically) by Martin J. ONeill Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com Counsel for Exelon Generation Company, LLC Dated in Houston, TX this 9th day of December 2019 35

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-289 and 50-320

)

EXELON GENERATION COMPANY, LLC ) ASLBP No. 20-962-01-LA-BD01

)

(Three Mile Island Nuclear Station, Units 1 and 2) ) December 9, 2019

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of Exelon Generation Company LLCs Answer Opposing Eric J. Epsteins and Three Mile Island Alert, Inc.s Petition to Intervene was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

Signed (electronically) by Martin J. ONeill Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002-5005 Phone: (713) 890-5710 Fax: (202) 890-5001 E-mail: martin.oneill@morganlewis.com DB1/ 110327996.1