NRC rejects challenges to TMI-2 license transfer, ISP’s license application

June 24, 2021, 12:00PMRadwaste Solutions

The Nuclear Regulatory Commission has dismissed a challenge to the previously approved transfer of the license for the shuttered Three Mile Island-2 power reactor from FirstEnergy to a subsidiary of EnergySolutions for decommissioning. The order by the NRC commissioners denying the motion by Three Mile Island Alert to hold the license transfer in abeyance was issued on June 22.

At the same time, the NRC commissioners rejected a petition challenging a license application by Interim Storage Partners, a joint venture of Waste Control Specialists and Orano USA, to build and operate a consolidated interim storage facility for spent nuclear fuel in Andrews County, Texas. Fasken Land and Minerals and Permian Basin Land and Royalty Owners (together referred to as Fasken) had appealed an earlier order by an NRC licensing board that threw out the challenge to ISP’s application.

TMI-2: The NRC staff approved the TMI-2 license transfer in December 2020, and the following month the commissioners denied a petition by TMI Alert and its chairman, Eric Epstein, to intervene and request a hearing, terminating the proceeding.

On March 15, however, the group filed a motion to temporarily suspend the license transfer, arguing that the applicants, the NRC, the Pennsylvania Department of Environmental Protection, and others did not comply with portions of the Clean Water Act. TMI Alert said that those issues should have been resolved before the license was transferred.

In denying the motion, the NRC commissioners said that because the staff had already approved the license transfer and an order denying TMI Alert’s initial petition had been issued, they no longer have jurisdiction over the matter.

“As we have described in previous cases, after the staff issues the action provided for in the notice of opportunity for hearing and we issue our final adjudicatory decision, we no longer retain jurisdiction to consider further adjudicatory filings,” the commissioners said in their order to dismiss.

Moreover, the commissioners said that even if they did have jurisdiction, TMI Alert’s motion fails to meet the requirements for reopening the case or for staying the license transfer.

In a partial dissent, commissioner Jeff Baran said that while he agrees with the decision to dismiss TMI Alert’s motion, he does not agree that the commission lacks the jurisdiction to reopen the case. “Although the commission has established specific avenues for reopening an adjudication in regulation, I do not believe that the commission lacks authority to hear a motion that does not follow the specific paths laid out in the regulation,” he said in his comments following the order.

ISP: In upholding the board’s decision to deny the challenge to ISP's license application, the commissioners said that Fasken “has not shown that the board erred or abused its discretion and therefore has not raised a substantial question warranting review.”

Fasken filed the challenge to ISP’s license application in July 2020, after the deadline to intervene had passed. Fasken filed the late challenge and moved to reopen the case because it claimed that the NRC staff’s draft environmental impact statement, issued in May 2020, contained new information concerning transportation routes that justified its challenge. The licensing board, however, was not swayed by Fasken’s arguments and denied the contention.

The NRC commissioners, also finding Fasken’s arguments unpersuasive, denied the appeal.

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