ML24253A185

Petition for Hearing Regarding the Holtec Decommissioning International, LLC, and Holtec Palisades, LLC Application for License Amendments for Palisades Nuclear Plant

ML24253A185
Person / Time
Site:	Palisades
Issue date:	09/09/2024
From:	NRC/OGC
To:
SECY RAS
References
RAS 57098, 50-255-LA-3, NRC-2024-0130
Download: ML24253A185 (0)

Text

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 1

85 The Nuclear Regulatory Commission has announced opportunities for the public to request hearings on two aspects of Holtec Internationals effort to return the Palisades Nuclear Plant to an operational status.

The first opportunity covers license amendment requests from Holtec, filed between December 2023 and May 2024, that would restore aspects of the Palisades license to those required for an operating reactor. The filing deadline for this hearing opportunity is Oct. 7.

Table Of Contents and §2.309 Elements 1.

Petition Executive Summary - Page 4 2.

Requested Actions (§2.309(d)(1)(vi)) - Page 8 3.

Petitioners Preference For New Rulemaking - page 11 4.

Important Notes and Appendices - Page 12 5.

Prepared By (§2.309(d)(1)) - Page 13 6.

Petitioners and Standing (§2.309(d)(1)(iii)) - Page 15

Description of Petitioners

Basis for Standing 6.

Single Point of Contact - Page 19 7.

Scope of the Proceeding (§2.309(d)(1)(vii)) - Page 20 Federal Register Notice (FRN) Docket No. 50-255; NRC-2024-0130

Legal Basis To Allow In Scope - Page 22

ML23072A404, Regulatory Path to Reauthorize Power Operations

ML24166A291, Request to Update the Palisades Quality Assurance Plan to Support Resumption of Power Operations:

8.

Summary of Contentions (§2.309(f)(1)) - Page 24

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 2

85 9.

NRC Mission: Concern Applying SECY-20-0110 - Page 27

10. Basis in Law (Supporting §2.309(f)(1) Contentions) - Page 30

Atomic Energy Act

Skidmore Deference

Administrative Procedure Act (APA)

11. President In Law (Supporting §2.309(f)(1) Contentions) - Page 32

Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)

Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983)

Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulator Commission, 547 F.2d 633 (D.C. Cir. 1976)

Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995)

Auer v. Robbins, 519 U.S. 452 (1997)

12. Requested Action Summary SECY-20-0110 - Page 36 If the NRC staff agrees to apply SECY-20-0110 to allow the Palisades plant to return to operations from a decommissioning status using the existing regulatory framework,

13. Contention One (§2.309(f)(1)) - Page 39 NRC staff's use of SECY-20-0110 without proper General Counsel approval. Current usage allows to much subjectivity and additional NRC oversight is called for.

14. Contention Two (§2.309(f)(1)) - Page 51 Holtec's flawed regulation to submit the Final Safety Analysis Report (FSAR).

• Legal Basis: Nuclear regulations must remain objective, measurable, and uniformly applied - Page 38

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 3

85 Detailed Description of Atomic Energy basis in law in support of this petition.

15. Contention Three (§2.309(f)(1)) - Page 55 Holtec's flawed process to submit the Quality Assurance Program Description (QAPD).

16. Contention Four (§2.309(f)(1)) - Page 66 NRC allowing Holtec to proceed with work without NRC approved process documents and General Counsel approved interpretations.

Legal Basis: Argument Against Holtecs Use of Implicit Approval of its Regulatory Framework Selection - Page 68

17. Ripeness Doctrine and Lack of NRC Oversight of Design Basis Tools - Page 70 NRC is proceeding as if General Counsel has approved the basis for regulations to use for NRC staff evaluations

18. Preparer Declaration and Certifications - Page 71

19. Appendix A: Petitioner Declarations (§2.309(d)(1)(iii)) - Page 73

20. Appendix B: Other Applicable Petitions - Page 82

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 4

85 Petition Executive Summary This petition, filed under 10 CFR 2.309, seeks a public hearing regarding the proposed license amendments for the Palisades Nuclear Plant, specifically concerning Holtec Internationals plans to return the plant to operational status after decommissioning.

The petitioners, who own homes and reside either full or part time within the Palisades Emergency Planning Zone (EPZ), are directly impacted by any potential nuclear incidents at the plant. Given the proximity and associated risksincluding radiological releases, contamination, and evacuationthe petitioners have a vested interest in ensuring that the highest standards of safety and regulatory oversight are maintained.

Key Concerns within the Scope of the License Amendment Reviews and Beyond:

Subjectivity in Regulatory Framework Application: The petition challenges the reliance on the "existing regulatory framework" as described in SECY-20-0110. The petitioners assert that this framework,

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 5

85 used by both NRC staff and Holtec, introduces unacceptable levels of subjectivity into the regulatory process, particularly in the selection of rules applicable to a plant transitioning from decommissioning back to full operations.

The introduction of such subjectivity is seen as a direct threat to the NRC's mission of ensuring the safe use of radioactive materials. Objective regulations, based on clear and measurable standards, are essential to maintain uniformity and fairness in the regulatory process, thereby reducing ambiguity and minimizing the risk of misinterpretation.

Holtecs Use of Implicit NRC Approval:

The petition raises concerns regarding Holtec's reliance on "implicit approval" from the NRC to proceed with system restoration activities at the Palisades Nuclear Plant. Holtec has stated in its submittals, that the NRC's lack of formal response to their submission Regulatory Path to Reauthorize Power Operations, ML23072A404, constitutes approval, allowing them to move forward without explicit NRC approval of proposed

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 6

85 regulations. This practice undermines regulatory transparency and safety, as NRC regulations must require formal, documented approval.

To preserve the integrity of the regulatory framework, the petitioners request the need for formal approval from the NRC General Counsel to ensure that NRC staff interpretations align with the NRC's mission of protecting public health and safety.

Final Safety Analysis Report (FSAR) Updates: Holtecs plan to update the FSAR, now referred to as the Defueled Safety Analysis Report (DSAR),

using the 10 CFR 50.59 process, is criticized for relying on a licensing basis that no longer applies. The petitioners argue that the proposed updates fail to meet the rigorous standards necessary for a safe transition from decommissioning to full operations.

Quality Assurance Program Description (QAPD) Updates: The petitioners raise concerns about Holtecs intention to update the QAPD without prior NRC approval, warning that this approach could undermine the quality assurance necessary during the restoration period. The lack of an NRC-approved QAPD for the restoration period is seen as a safety risk.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 7

85 Inadequate NRC Oversight and Ripeness of Issues: The petition expresses alarm over the NRCs apparent acceptance of Holtecs actions under the "existing regulatory framework" without sufficient oversight or public visibility.

Specifically, it highlights that issues related to the License Amendment Requests (LARs) are not yet ripe for final adjudication due to reliance on unvetted regulatory changes. This concern is underscored by the concurrent review of licensing actions and the implementation of the site period of system restoration actions, which necessitates, first, a fully developed and mature regulatory framework.

The petitioners argue that allowing licensees to choose from among existing regulations introduces a level of subjectivity into the regulatory process, potentially leading to inconsistent application of safety standards.

This flexibility might result in Holtec prioritizing less stringent rules that do not fully address the unique risks of their operations, thereby compromising the objectivity and consistency vital for ensuring the safety and security of nuclear activities.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 8

85 Requested Actions:

1.

Formal Approval by NRC General Counsel: The petitioners request that any interpretations of the "existing regulatory framework" used in the licensing actions be formally approved by the NRC General Counsel to ensure they are consistent with the NRCs mandate to protect public health and safety. This additional layer of review is necessary to mitigate concerns that the flexibility in applying the existing regulatory framework could undermine safety and security standards.

2.

Public Disclosure and Transparency: The petitioners call for transparency in the decision-making process, including public access to the regulations and interpretations selected by the NRC staff and approved by NRC General Counsel.

3.

Suspension of Holtecs Actions: The petitioners request the NRC to suspend Holtecs ongoing system restoration activities and license amendment reviews until the appropriate regulations are evaluated, approved, and aligned with NRC-approved design and quality assurance standards.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 9

85 4.

Holtec Proceeding without clear NRC approval to disqualify NRC Use of Holtec Inspections for regulatory use in approving operations; According to publicly available documents, the NRC staff has not formally responded to Holtecs proposed regulations, which are the subject of this petition. Despite the absence of implicit** approval, Holtec is proceeding with system restoration activities at the Palisades site based implicit approval, because NRC has not responded. This presents an immediate harm to the petitioners, who have filed §2.206 petitions requesting the NRC staff to take action to halt these activities. The petitioners urge the adjudicatory authority to consider the urgency of conducting a concurrent review.

Holtecs reliance on regulations not yet approved by the NRC and its assumed current implicit approvals undermines the integrity of the licensing process. Holtec actions requiring quality inspections may not be recoverable, in that the ability to gain access to the inspection conditions cannot be replicated after the fact.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 10 85 Requested Action: Therefore, any work completed under these conditions should not be considered valid evidence for the NRCs decision to reauthorize Holtecs operating license and must be excluded from the record.

These actions are deemed necessary to safeguard the public and ensure that the Palisades Nuclear Plants operations adhere to the highest safety standards, consistent with the NRCs mission of protecting people and the environment.

• • Basis: Implicit Approval Holtec Position.

ML23271A140, Request for Exemption from Certain Termination of License Requirements of 10 CFR 50.82 On March 20, 2023, HDI met with the NRC, in a public meeting forum, to discuss with the NRC staff the proposed regulatory path to potentially request reauthorization of power operations at PNP. The purpose of the meeting was to provide an overview of the proposed regulatory path and to obtain feedback from

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 11 85 the NRC staff on the reasonableness of the approach.

The NRC provided no comments opposing the reasonableness of the approach (Reference 18).

Petitioners' Preference for New Rulemaking:

The petitioners emphasize that the requested actions are contingent on the ripeness of the regulatory framework, regardless of whether the NRC proceeds under the "Existing Regulatory Framework" as per SECY-20-0110, or considers the alternate approach of new rulemaking, as proposed in the §2.802 Petition for Rulemaking (Docket ID NRC-2024-0135).

Petitioners assert that the issues must be fully ripe before NRC staff can justifiably continue with License Amendment Request (LAR) reviews or allowing Holtec to proceed with system restoration activities.

The ripeness of the regulatory framework is essential to ensure that any actions taken by NRC staff are grounded in a stable and objective regulatory environment, thereby safeguarding public health

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 12 85 and safety. The petitioners believe that new rulemaking is the superior approach, providing a clearer and more consistent basis for regulatory decisions. However, until either option is fully developed and ripe, continuing with LAR reviews or system restoration would be premature and potentially unsafe.

Important Notes and Appendices:

Petitioner Declarations and Signatures: See Appendix A Other Related NRC Petitions: See Appendix B Note About The Expression, period of system restoration There is no NRC specific term for the time period between the submittal of §50.82 certifications, decommission status, and returning to NRC Reactor Oversight Process (ROP), operations status. So, I have adopted the term used by the NRC staff to describe this phase, period of system restoration.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 13 85 This expression is derived from a NRC question from ML24166A291,

SUMMARY

OF APRIL 29, 2024, MEETING WITH HOLTEC DECOMMISSIONING INTERNATIONAL, LLC REGARDING PLAN TO SUBMIT A QUALITY ASSURANCE PROGRAM MANUAL TO SUPPORT POTENTIAL REAUTHORIZATION OF POWER OPERATIONS AT PALISADES NUCLEAR PLANT, where the NRC asked Holtec:

.the NRC staff asked what quality assurance controls would be in effect during the period of system restoration, and what document would contain these controls Prepared By:

This petition has been prepared by Alan Blind, a retired, knowledgeable individual with experience in NRC regulations and nuclear plant operations. While Alan is not a lawyer, he is a concerned member of the public, responding to the NRCs invitation for public requests for hearings on two aspects of Holtec Internationals effort to return the Palisades Nuclear Plant to operational status.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 14 85 In preparing this petition, Alan has strived to meet all procedural and legal requirements, recognizing the importance of adjudicatory efficiency, though some minor procedural errors may be present.

The Nuclear Regulatory Commissions public invitation to request hearings presents a challenging paradox for concerned citizens. Although the NRC promotes public participation, the stringent legal requirements detailed in various regulations for requesting an adjudicatory hearing are inherently complex and typically demand legal expertise.

This complexity creates a significant barrier for non-lawyers, who may not possess the technical legal knowledge required to fully comply with procedural requirements in the regulations. Therefore, it is essential for the NRC to consider the spirit of public involvement and apply some degree of flexibility when reviewing petitions from individuals who, despite lacking formal legal training, are driven by a genuine concern for public safety and environmental protection.

Historically, courts have recognized the critical role of public participation in regulatory processes, as evidenced in Union of Concerned Scientists v.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 15 85 NRC, 735 F.2d 1437 (D.C. Cir. 1984). In this case, the court underscored that the NRC should not unduly restrict access to hearings by imposing excessively burdensome procedural requirements on petitioners.

Consequently, while it is necessary to uphold legal procedural standards, the NRC should also ensure that these standards do not become obstacles to meaningful public involvement.

Petition Details

Purpose:

The purpose of this letter is to request a hearing as per §2.309, Hearing requests, petitions to intervene, requirements for standing, and contentions.

Petitioners and Standing:

We, the petitioners listed in Appendix A: Petitioners, own homes and reside either full or part time, in close proximity to the Palisades Nuclear Plant, specifically within and near the Palisades Park Residential Park, which is directly adjacent to the Palisades Nuclear plants Owner

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 16 85 Controlled Area. As home owners in this immediate vicinity, we have a direct and tangible interest in the safety, regulatory oversight, and long-term implications of the plants operations.

All petitioners own homes and reside either full or part time, within the Palisades Emergency Planning Zone (EPZ), specifically within the Plume Exposure Pathway EPZ, making us directly vulnerable to any nuclear incidents at the Palisades Nuclear Plant. This proximity means that in the event of entry into the emergency plan and a radiological release, we would be among the first to experience potential health hazards, including inhalation of radioactive particles, contamination of our homes, and forced evacuation. Given these significant risks, it is imperative that NRC staff rigorously apply the latest NRC regulations and General Design Criteria to prevent any scenario that could trigger the activation of the Palisades Emergency Plan. Our safety, health, and well-being are directly contingent upon these measures being objectively and strictly enforced to avoid unnecessary exposure to radioactive materials and the associated disruptions to our homes and lives.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 17 85 Holtec International has announced plans to seek another life extension term beyond the current term, after the plant returns to operation. The NRC's decisions on the plant's return to service and related License Amendment Requests (LARs) will be binding on our community for up to 25 more years.

We are concerned that the NRCs actions, particularly in relation to the approval of Holtecs proposed repower regulatory framework, and use of interpretations from SECY-20-0110, existing regulatory framework, may compromise safety and oversight in ways that could adversely affect us.

Petitioner Jody Flynn: Slow Down, Do this Right and NRC Restart Panel Response:

At the August 1, 2024, NRC Public Meeting to Discuss the Process for restarting Palisades, Petitioner Jody Flynn questioned the NRC Restart Panel, expressing concern about the pace of the process, saying, in part,

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 18 85 This is a total and complete nightmare for us. Why are you (NRC Restart Panel) rushing to do this? You have no roadmap, you have no set of rules you are working from. You need to slow down and do this right.you are about to do something that has never been done before. You should be taking your timeyou should be making this perfect. This is a precedent, so it needs to be the best. We are relying on you.

The NRC Restart Panel responded, in part:

Our number one priority is safety. Our mission is safety. We are about efficiency, but if additional questions come up in our reviews, we will ask Holtec to respond and publish it on our website. We will take the time it takes to make sure the plant is safe. We have high standards for safety and will use resources from all areas of the NRC as necessary. If you think we are missing anything, reach out and ask us. We will engage. We are being very deliberate. While we have metrics to measure our performance, we will take as much time as it takes to ensure Holtecs submittals are correct.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 19 85 Current Petitioner Adverse Impact:

The petitioners contend that they have already been adversely affected. The NRC's allowance of Holtec's use of regulations, as outlined within the scope of this petition, but not yet approved by NRC staff, to carry out system restoration activities has already caused harm. Without the corrective actions requested in this petition, these ongoing restoration activities by Holtec may lead to long-term and potentially irreversible consequences for the petitioners. (See Contentions One and Four for reference.)

Single Point of

Contact:

Petitioners request that the single point of contact be:

Alan Blind 1000 West Shawnee Road Baroda, Michigan a.alan.blind@gmail.com 269-303-6396

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 20 85 Scope of the Proceeding:

On August 7, NRC published Federal Register Notice (FRN) Docket No.

50-255; NRC-2024-0130. The FRN gave a deadline of October 4, 2024, for a hearing opportunity.

The U.S. Nuclear Regulatory Commission (NRC or the Commission) received and is considering the issuance of four amendments to Renewed Facility Operating License (RFOL) No. DPR-20, as requested by Holtec Decommissioning International, LLC (HDI) on behalf of Holtec Palisades, LLC, to support the potential reauthorization of power operations at the Palisades Nuclear Plant (PNP).

The scope of this notice is limited to comments, requests for a hearing, and petitions for leave to intervene related to the four proposed license amendment requests listed in tabular form in Section III of this document.

The subject of this public request for a hearing applies to ML23348A148 and ML24191A422, Request to Revise Operating License and Technical Specifications to Support Resumption of Power Operations.

Scope, Note One, All Contentions: This petition refers to ML23072A404, Regulatory Path to Reauthorize Power Operations at the Palisades

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 21 85 Nuclear Plant,, which is not listed on the list of documents in scope.

Holtec has relied on statements in this submittal to justify the in scope License Amendment Requests, documents. Petitioner contends ML23072A404, is now in scope based on:

Direct Connection: ML23072A404 directly supports or underpins the in-scope documents. Since the in-scope documents are already part of the proceeding, the basis document is inherently relevant and should be included for a full understanding of the arguments and evidence.

Foundation for Decision-Making: In-scope submittals cannot be fully evaluated without considering the basis document. The ripeness of the issue depends on the completeness of the record, which includes all supporting documents.

Scope, Note Two, Contention Four, Reference to in scope LAR Reviews:

Petitioner contends that because Holtec and NRC staff rely on regulatory interpretations or changes that have not yet been fully vetted or approved,

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 22 85 the issues in question are not yet ripe for final adjudication. The reliance on these unvetted regulatory changes opens the door to broadening the scope of contentions that rely on in scope document reviews.

Specifically, the anticipated concurrent review of licensing actions to restore the operating basis of the facility and the implementation of the Restart of Inspection Process (as referenced in Contention Four),

underscores the need for a fully developed and mature regulatory framework.

Without this, the case is premature, and a comprehensive examination of all related contentions is necessary to ensure that the issues are ripe for decision."

Legal Basis To Allow ML23072A404, Regulatory Path to Reauthorize Power Operations and ML24166A291, Request to Update the Palisades Quality Assurance Plan to Support Resumption of Power Operations:

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 23 85 To support the argument for allowing additional documents into the scope of the proceeding, several legal and regulatory references can be cited. 10 CFR 2.309(f)(1)(iii) states that contentions must include a sufficient factual or expert basis to be admitted, and supplementary documents that directly relate to or support the contention should be considered relevant. This has been upheld in cases like Union of Concerned Scientists v. NRC (735 F.2d 1437, D.C. Cir. 1984), where the court emphasized the importance of a complete and thorough administrative record. The court ruled that limiting the scope of proceedings to certain documents without considering others that are crucial to understanding the case could impede a fair hearing.

Furthermore, Baltimore Gas & Electric Co. v. NRDC (462 U.S. 87, 1983) confirmed that decisions must be based on substantial evidence, which often requires considering all relevant documents, including those that may not initially appear within the narrowly defined scope but provide necessary context or technical detail. The Administrative Procedure Act (APA) also supports this stance, as it mandates a full and transparent review process, including the right

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 24 85 for petitioners to submit relevant evidence to ensure a comprehensive evaluation of the matter.

Thus, under 10 CFR 2.309 and supported by precedents like Union of Concerned Scientists v. NRC and Baltimore Gas & Electric Co.

v. NRDC, the inclusion of documents such as ML23072A404 into the scope of the proceeding is legally justified. These documents provide essential context and directly support the petitioners contentions, contributing to a complete administrative record.

Excluding them would not only limit the factual basis required for a fair hearing but also conflict with the principles of thorough and transparent regulatory oversight as established by the Administrative Procedure Act (APA). This ensures that the NRC fulfills its duty to consider all relevant evidence when making decisions that impact public safety and regulatory compliance This petition includes four Contentions:

1.

NRC staff are proceeding with the review of license amendments, and other licensee restart actions, based on a denial of a rulemaking

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 25 85 petition without approval from NRC General Counsel of stafs interpretation of SECY-20-0110 for Holtecs proposed license amendments, specifically regarding which NRC rules constitute the existing regulatory framework.

2.

Holtecs proposal to update the Final Safety Analysis Report (UFSAR), now titled the Defueled Safety Analysis Report (DSAR), via the 10 CFR 50.59 process (changes, tests, and experiments) is flawed and not consistent with a more applicable regulation within the existing regulatory framework as referenced in SECY-20-0110.

3.

Holtecs proposal to update the HDI decommissioning Quality Assurance Program Description (QAPD) currently in effect, with appropriate quality assurance controls to cover the activities being performed at the plant during the restoration period, without prior NRC approval, is flawed and not consistent with a more applicable regulation within the existing regulatory framework as referenced in SECY-20-0110.

4.

The NRC is allowing Holtec to take "other actions" within the "existing regulatory framework," as referenced in SECY-20-0110, to complete the period of system restoration activities. In its "in scope"

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 26 85 License Amendment Requests, Holtec proposed rules for the QAPD and FSAR (see contentions one, two, and three) that are now being used, without NRC approval, to support the period of system restoration activities. Doing so, does not give NRC inspections staff adequate, objective, NRC approved guidance for inspection activities. NRC inspection manual statements, brings this contention within scope of the in scope License Amendment Review submittals.

Summary of Contentions Basis:

NRC staff have indicated that no specific regulations currently govern a plant undergoing decommissioning and returning to operations through a period of system restoration. The petitioner argues that the application of the existing regulatory framework as stated in SECY-20-0110 is highly subjective. This subjectivity is evident in the differing interpretations between Holtecs proposed regulations and the petitioners view of what regulations are more appropriate, a situation further complicated by the NRC staff's public silence regarding its acceptance of Holtecs proposed regulations guiding the NRC staffs LAR reviews, which are within the scope of this petition for public hearing.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 27 85 As evidenced by NRC staff moving forward with the review of the Holtec License Amendments, the subject of Federal Register Notice (FRN) Docket No. 50-255; NRC-2024-0130, it would appear staff have accepted the Holtecs subjective regulation selection proposals. If so, petitioners ask that NRC staff be ordered to show the public its basis and NRC Counsel Interpretation approval for its apparent agreement with the Holtec proposed rules for the period of system restoration.

NRC Mission, concern in applying the SECY-20-0110, existing regulatory framework and need for NRC Counsel review / approval:

To effectively meet the NRC's mission of ensuring the safe use of radioactive materials, it is essential that the regulations governing nuclear activities remain objective rather than subjective. Objective regulations, based on clear, measurable standards, ensure uniformity and fairness in the regulatory process. This clarity is crucial, allowing both NRC staff and licensees to understand precisely what is required to maintain safety and security, thereby reducing ambiguity and minimizing the risk of misinterpretation.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 28 85 However, the introduction of an interpretation from SECY-20-0110, which stated that a licensee and NRC staff may select a rule within the existing regulatory framework because the NRC recognizes that there are no current NRC rules specifically written for returning a plant from the decommissioning phase, after submitting its §50.82 certifications, back to full power operations, raises significant concerns relative to meeting the NRC's mission.

Allowing licensees to choose from among existing regulations introduces a level of subjectivity into the regulatory process, potentially leading to inconsistent application of safety standards. This flexibility might result in licensees prioritizing less stringent rules that, while technically compliant, may not fully address the unique risks of their operations. Such an approach could compromise the objectivity and consistency vital for ensuring the safety and security of nuclear activities, leading to a patchwork of compliance and complicating NRC oversight.

Moreover, it is imperative that the NRC acts independently from the licensees' interests to ensure its mission. The NRCs role as an independent regulator is critical in maintaining public trust and ensuring

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 29 85 that nuclear safety is prioritized over economic or operational concerns of the licensees. Independent action by the NRC ensures that regulations are applied objectively and without bias, focusing solely on protecting public health, safety, and the environment. If the NRC were to allow licensees to influence the selection or interpretation of applicable regulations, it could lead to conflicts of interest, where decisions are made based on convenience or cost rather than safety.

To mitigate these concerns, any use of the existing regulatory framework must be subject to a second level of review and approval. This could be achieved by following the § 50.3 Interpretations rule, which states, "Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission."

This additional layer of review ensures that any interpretation or application of the regulations remains aligned with the NRCs mission and maintains the integrity of the regulatory framework. By requiring written authorization or interpretation by the General Counsel, the NRC can

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 30 85 ensure that any flexibility in applying the existing regulatory framework does not undermine safety and security standards, preserving the objective and consistent application of regulations essential to public health and environmental protection.

This approach reinforces the NRC's commitment to acting independently and impartially, ensuring that its decisions are driven solely by its mission to protect people and the environment.

Basis in Law:

Atomic Energy Act (AEA), 1954, as amended (42 U.S.C. §§ 2011-2297h-13):

The AEA provides the legal foundation for the NRCs authority to regulate nuclear materials and facilities to protect public health and safety. Under § 2133 and § 2201, the NRC is mandated to establish and enforce safety standards that govern the licensing, operation, and regulation of nuclear facilities, including, by inference, the return of decommissioned plants to operational status. This statute supports the requirement that nuclear regulations must remain

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 31 85 objective, measurable, and uniformly applied to prevent regulatory subjectivity or inconsistency, which could compromise public safety.

The AEA also underscores the NRC's obligation to ensure that safety standards are upheld through rigorous oversight and the prevention of conflicts of interest between licensees and regulatory staff (§ 2232). The petitions call for the application of § 50.3, requiring interpretations of regulations to be approved by the General Counsel, aligns with the AEAs delegation of authority, ensuring that only vetted regulatory interpretations are applied. This safeguard is essential for maintaining the integrity of the NRCs mission to protect public health, safety, and the environment.

Note: See Contention One, Basis In Law, for a more in-depth basis for AEA.

Skidmore Deference (Skidmore v. Swift & Co., 1944): In this case, the Supreme Court ruled that the weight given to an agency's judgment depends on its thoroughness, validity, consistency, and ability to persuade. This principle underscores the importance of rigorous review

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 32 85 and the need for higher-level approval when an interpretation may be subject to challenge, as it ensures the interpretation is well-reasoned and consistent with broader legal standards.

Administrative Procedure Act (APA), 1946: The APA requires that federal agencies follow specific procedures when creating, modifying, or interpreting regulations, particularly through the rulemaking process.

This includes public notice, comment periods, and, often, the need for higher-level review within the agency. The APA's requirements for transparency, public participation, and thorough review parallel the idea that subjective regulatory decisions should undergo higher-level scrutiny and public disclosure.

Presidents in Law:

1. Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.

1984)

Key Point: In this case, the court emphasized the importance of public participation in NRC decision-making processes and reinforced the NRCs responsibility to protect public health and safety.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 33 85 Relevance: The court recognized that regulatory standards should not be arbitrary or overly flexible in ways that undermine public safety. This aligns with petitioners argument that the selection of regulatory frameworks should be objective and clearly justified to prevent subjective application.

2. Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983)

Key Point: This case reinforced the NRCs discretion in technical matters but also affirmed that NRC decisions must be based on substantial evidence and that public health and safety must remain paramount.

Relevance: This case supports petitioners point about the need for objective, evidence-based regulation. While the NRC has technical expertise, its decisions must still be grounded in clear, demonstrable safety standards, rather than allowing subjective interpretations that could compromise the

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 34 85 integrity of nuclear safety.

3. Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Commission, 547 F.2d 633 (D.C. Cir. 1976)

Key Point: The court held that NRC regulations must balance the technical and safety concerns while protecting public health. It emphasized that any deviations from existing standards must be adequately justified and subject to public scrutiny.

Relevance: This case reinforces the argument that subjective regulatory interpretations could lead to safety risks if they are not properly vetted and reviewed. It supports the idea that General Counsel review is necessary to ensure that regulatory flexibility does not undermine public safety.

4. Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir.

1995)

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 35 85 Key Point: This case stressed the importance of the NRCs role in ensuring that its regulatory decisions are consistent with the protection of public health and safety, even in complex technical matters.

Relevance: The courts ruling aligns with petitioners argument that the NRCs regulatory framework must be applied consistently and without undue flexibility that could compromise safety. It reinforces the idea that General Counsel oversight is crucial to maintaining objectivity in regulatory decision-making.

5. Auer v. Robbins, 519 U.S. 452 (1997)

Key Point: This case reaffirmed the principle that an agencys interpretation of its own ambiguous regulations is entitled to deference, but only if the interpretation is reasonable and consistent with the statute's purpose.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 36 85 Relevance: This supports petitioner's argument that NRC interpretations of ambiguous regulationslike the application of SECY-20-0110must be reviewed and approved by the General Counsel to ensure they are reasonable and aligned with the AEAs goal of protecting public safety.

Summary of Precedents:

These precedents collectively support petitioners argument that NRC regulations should be objective, measurable, and uniformly applied. They also affirm the need for rigorous oversight and General Counsel review to ensure that regulatory interpretations do not become subjective or inconsistent, which could endanger public safety.

Requested Action Summary:

If the NRC staff agrees to apply SECY-20-0110 to allow the Palisades plant to return to operations from a decommissioning status using the existing regulatory framework, it is crucial that the selection of the most

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 37 85 appropriate regulations for the system restoration period and License Amendment Reviews undergo a thorough and comprehensive review.

Additionally, due to the subjective nature of rule selection and the lack of clear guidance for this process, it is imperative that the NRC General Counsel formally approves the interpretation of the applicable regulations.

Holtec and NRC are working in parallel with subjective rules for License Amendment Reviews to complete period of system restoration activities and inspections. Doing so without NRC approved, and objective design standards with quality program requirements, must not be allowed to continue, pending the outcome of these hearings. Given that these actions have already commenced, it is imperative that the NRC address these issues now, as they have matured into significant regulatory and safety concerns that must be resolved to protect public health and safety.

To ensure transparency and maintain public trust, the decision-making process for selecting the most appropriate rule, must be made publicly accessible.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 38 85 Request: If Holtec continues with system restoration activities without first obtaining NRC approval for the appropriate regulations, including a formally approved Final Safety Analysis Report (FSAR) and Quality Assurance Program Description (QAPD), the NRC, petitioners request the NRC to consider any work completed during this period to be invalid.

Such work, undertaken without proper regulatory approval, should be excluded from consideration in Holtec's request to regain its operating license. This ensures that all restoration activities adhere to NRC-approved standards and prevents the use of tainted or improperly conducted work in future licensing decisions. The NRC must establish that no further actions can proceed until full regulatory compliance is ensured, safeguarding the integrity of the regulatory process and public safety.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 39 85 Contention One:

NRC staff are proceeding with the review of license amendments based on a denial of a rulemaking petition without approval from NRC General Counsel of stafs interpretation of SECY-20-0110 for Holtecs proposed license amendments, specifically regarding which NRC rules constitute the existing regulatory framework. Although NRC staff are moving forward with licensing actions, there is no public visibility regarding whether NRC General Counsel agrees with the use of SECY-20-0110 as a justification for NRC staff actions.

Furthermore, there is no public visibility of the direct connection between the existing NRC rules to be used for a plant that has submitted its §50.82 shutdown certifications through the return to service period and the return to a known set of NRC rules for power reactor operations and SOP oversight. NRC staff must propose, and General Counsel must approve, the specific return to service NRC rules to be used, drawn from within the SECY-20-0110 denial basis. Holtec and staff are proceeding using the proposed Holtec NRC rules, which petitioners assert are outside the current regulatory framework for the Holtec proposed licensing actions.

For example:

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 40 85 10 CFR 50.59, Changes, tests, and experiments without prior NRC approval Appendix B to Part 50, Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants Basis: NRC staff are proceeding with using SECY-20-0110 as a justification for their actions, despite differing wording used from the same reference and no apparent NRC General Counsel approval of the correct interpretation:

Holtec, in ML23072A404, Regulatory Path to Reauthorize Power Operations at the Palisades Nuclear Plant, has cited a petition denial, SECY-20-0110, as a justification for its actions:

the NRC has recognized that its existing regulatory framework namely the process of reviewing and approving exemption and license amendment requests prescribed by 10 CFR 50.12 and 50.90 provides adequate flexibility to accommodate reauthorization of operations

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 41 85 A reading of SECY-20-0110, as published in the Federal Register, finds a different sentence. There is no reference to § 50.90, Application for amendment of license, construction permit, or early site permit:

the existing regulatory framework may be used to address the issue raised by the petitioner.

A reading of ML20205L309, the denial letter from the Secretary of the Commission to George Berka, includes the words on a case-by-case basis:

The NRC is denying PRM-50-117 because the existing regulatory framework may be used on a case-by-case basis to address the issue raised in the petition As per § 50.3, Interpretations, General Counsel needs to first:

1.

Reconcile the differing language used by Holtec, staff, and the Federal Register for the correct meaning of the denial language in PRM-50-117.

2.

Approve the final NRC stafs interpretation on what specific rules are to be used for staff review of Holtec submittals and Holtec return to

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 42 85 service period activities, i.e., FSAR, QAPD, SEP update, as per the existing regulatory framework may be used on a case-by-case basis to address the issue raised in the petition language.

References:

§ 50.3 Interpretations.

Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized as binding upon the Commission.

§ 50.82 Termination of License.

(1) (i) When a licensee has determined to permanently cease operations, the licensee shall, within 30 days, submit a written certification to the NRC, consistent with the requirements of § 50.4(b)(8); (ii) Once fuel has been permanently removed from the reactor vessel, the licensee shall submit a written

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 43 85 certification to the NRC that meets the requirements of § 50.4(b)(9);

(2) Upon docketing of the certifications for permanent cessation of operations and permanent removal of fuel from the reactor vessel, or when a final legally effective order to permanently cease operations has come into effect, the 10 CFR part 50 license no longer authorizes operation of the reactor or emplacement or retention of fuel in the reactor vessel.

Basis: Holtec has proposed the use of regulations that are outside the Existing Regulatory Framework. Following are examples:

Comparison of Holtecs Proposals vs. Existing Regulatory Requirements Final Safety Analysis Report (FSAR) (

Reference:

Contention Two for basis):

Holtecs Proposal:

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 44 85 In ML23348A148, Request to Revise Operating License and Technical Specifications to Support Resumption of Power Operations:

The Updated Final Safety Analysis Report (UFSAR), now titled the Defueled Safety Analysis Report (DSAR), will be updated via the 10 CFR 50.59 process (Changes, tests, and experiments) to reflect the docketed version that was in effect prior to the 10 CFR 50.82(a)(1) certifications, PNP UFSAR Revision 35 (Reference 6).

Existing NRC Regulatory Framework:

Under § 50.34, each application for a construction permit must include a preliminary safety analysis report. Similarly, the Final Safety Analysis Report (FSAR) must contain comprehensive technical information ensuring the safe operation of the facility.

Holtec's approach of relying on the 10 CFR 50.59 process raises concerns about whether it adequately complies with the rigorous requirements set forth in § 50.34.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 45 85 Quality Assurance Program (QAP) (

Reference:

Contention Three for basis):

Holtecs Proposal:

In ML24166A291, Pre-Submittal Meeting, Request to Update the Palisades Quality Assurance Plan to Support Resumption of Power, Holtec proposes updating the HDI decommissioning Quality Assurance Plan (QAP) currently in effect. The updated plan would cover activities during the restoration period, with changes made without prior NRC approval, although subject to inspection afterward.

Existing NRC Framework:

Appendix B to Part 50Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plantsmandates that every applicant for a construction permit include a description of the quality assurance program in its preliminary safety analysis report, per § 50.34. This description must detail the quality assurance applied to design, fabrication, construction, testing, and managerial and administrative controls to ensure

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 46 85 safe operation. Holtecs proposal to update the QAP without prior NRC approval could undermine these stringent requirements.

Legal Basis: The statement that nuclear regulations must remain objective, measurable, and uniformly applied and the assertion that the AEA underscores the NRC's obligation to uphold safety standards through rigorous oversight and prevent conflicts of interest can be derived from the Atomic Energy Act (AEA) in the following ways:

1. Emphasis on Public Safety and Regulatory Clarity The Atomic Energy Act's core purpose is to ensure the safe use of nuclear materials for civilian and military purposes, while protecting public health and safety (42 U.S.C. § 2011). This broad objective implies that regulations need to be clear, objective, and uniformly applied to achieve consistent safety outcomes.

In § 2232(b), the requirement for applicants to demonstrate their qualifications and compliance with NRC rules and regulations

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 47 85 ensures that licensees must meet clear and measurable standards to protect public safety. This guards against subjective interpretations of the rules, as only qualified applicants that meet specific, defined criteria can receive licenses.

2. Objective Standards and Uniform Application The NRC's mandate to enforce safety standards under the AEA emphasizes consistency and clarity. For example, § 2232(c) requires the NRC to issue licenses only when it determines that the applicant meets all regulatory requirements. This section highlights the need for regulations to be uniformly applied, meaning the same standards must be consistently enforced across different applicants to avoid any deviation that could compromise safety.

The NRCs rulemaking authority under other parts of the AEA (such as 42 U.S.C. § 2201) allows the agency to set clear, measurable standards for safety. Objective regulations provide clarity to both licensees and the NRC, ensuring that the criteria for maintaining

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 48 85 safety are well-understood and consistently applied.

3. Prevention of Conflicts of Interest The AEAs emphasis on NRC independence in decision-making (also reflected in the Energy Reorganization Act of 1974) helps protect against conflicts of interest between the NRC and licensees.

Since the NRCs regulatory mission is to protect public health and safety, any decision-making that favors a licensees economic or operational convenience over safety would conflict with this mission.

This is reinforced by § 2232(b), which requires the NRC to base its licensing decisions solely on the applicant's ability to comply with regulatory requirements, not on other factors that could introduce bias or conflict.

4. Rigorous Oversight and Public Trust The AEA consistently highlights the importance of maintaining rigorous oversight over nuclear activities. For instance, § 2201(i) grants the NRC the authority to inspect nuclear facilities and enforce

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 49 85 compliance with safety standards, ensuring licensees adhere to the established regulations. This rigorous oversight is a key aspect of ensuring that licensees do not circumvent safety standards.

The AEA also provides for public participation and transparency in regulatory decisions (e.g., public hearings under 42 U.S.C. § 2239),

which reinforces the need for objective and consistent regulations that can withstand public scrutiny.

==

Conclusion:==

From these provisions, the AEA clearly supports the notion that nuclear regulations must be objective, measurable, and uniformly applied to prevent regulatory subjectivity or inconsistency, both of which could compromise safety. The emphasis on NRC independence and rigorous oversight further reflects the importance of protecting against conflicts of interest, ensuring that regulations are applied solely to maintain safety, not for the convenience of licensees.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 50 85 Thus, the derived statement is a logical interpretation of the AEAs intent and its specific provisions for maintaining nuclear safety and regulatory integrity.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 51 85 Contention Two Holtecs proposal to update the Final Safety Analysis Report (UFSAR), now titled the Defueled Safety Analysis Report (DSAR), via the 10 CFR 50.59 process (Changes, tests, and experiments) to reflect the docketed version that was in effect prior to the 10 CFR 50.82(a)(1) certifications, PNP UFSAR Revision 35 (Reference 6) is flawed because the previous FSAR is no longer the licensing basis for the plant. The previous licensing basis, including the results of the Systematic Evaluation Process (SEP),

NUREG-0820, was terminated when the §50.82 certifications were submitted by the previous owner.

It is understood that no specific regulation governs the writing of a new Design Basis/PSAR/FSAR for a plant in decommissioning and return to operations via a period of system restoration. Contention Two points out that the application of the existing regulatory framework from SECY-20-0110 is highly subjective and must be carefully reviewed by staff, with the interpretation approved by General Counsel as per Contention One.

Basis: Holtecs proposed use of §50.59 is flawed.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 52 85

§ 50.59 Changes, tests, and experiments:

(a) Definitions for the purposes of this section: (4) Final Safety Analysis Report (as updated) means the Final Safety Analysis Report (or Final Hazards Summary Report) submitted in accordance with Sec. 50.34, as amended and supplemented, and as updated per the requirements of Sec.

50.71(e) or Sec. 50.71(f), as applicable.

(c)(1) A licensee may make changes in the facility as described in the final safety analysis report (as updated), make changes in the procedures as described in the final safety analysis report (as updated), and conduct tests or experiments not described in the final safety analysis report (as updated) without obtaining a license amendment pursuant to Sec. 50.90 only if:

Holtecs proposed use of 10CFR50.59 is not possible because there is no current FSAR, submitted in accordance with Sec. 50.34, as amended and supplemented, and as updated per the requirements of Sec. 50.71(e) or Sec. 50.71(f), as applicable, to perform the required evaluation of whether the changes can be made without prior NRC approval.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 53 85 Basis: Entergy submitted 10 CFR 50.82(a)(1) certifications of the permanent cessation of power operations, and therefore, the Entergy FSAR and design basis no longer exist.

On June 13, 2022, Entergy submitted to the NRC the 10 CFR 50.82(a)(1) certifications of the permanent cessation of power operations at PNP and the permanent removal of fuel from the PNP reactor vessel. On this same date, the NRC informed Entergy that the reactor oversight process at PNP had been terminated and that the NRC decommissioning inspection program was now applicable. This is the date when PNP transitioned from a power operations plant to a facility in decommissioning.

On June 15, 2022, Entergy implemented the PDTS and supporting RFOL amendments and exemptions that modified the regulatory requirements to reflect a facility in decommissioning.

On June 28, 2022, Holtec acquired Palisades Plant from Entergy, and the NRC issued PNP RFOL amendments to reflect this change in ownership and name change, and the transfer of Entergy Nuclear Operations, Inc.

operating authority to Holtec Decommissioning International, LLC (Reference 10). Note, at the time of license transfer, PNP was a facility in

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 54 85 decommissioning, and HDI was given operating authority by the NRC for the purpose of decommissioning the PNP site.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 55 85 Contention Three:

Holtecs proposal to update the HDI decommissioning QAPD currently in effect, with appropriate quality assurance controls to cover the activities being performed at the plant during the restoration period, without prior NRC approval, is flawed. Consistent with the existing regulatory framework from SECY-20-0110, petitioners review of Appendix B to Part 50Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants is the current framework and requires that the period of system restoration QAPD be more similar to a Design and Construction QAPD review as defined in NUREG-800, Standard Review Plans.

It is understood that no specific regulation governs the writing of a new Quality Assurance Plan for a plant in decommissioning and return to operations via a period of system restoration. Contention Three points out that the application of the existing regulatory framework from SECY-20-0110 is highly subjective and must be carefully reviewed by staff, with the interpretation approved by General Counsel as per Contention One.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 56 85 Basis: Entergy submitted 10 CFR 50.82(a)(1) certifications of the permanent cessation of power operations, and therefore, the Entergy operating QAPD no longer exists. Holtec assumed ownership of a plant in decommissioning status and a PDTS, pertaining only to decommissioning activities.

On June 13, 2022, Entergy submitted to the NRC the 10 CFR 50.82(a)(1) certifications of the permanent cessation of power operations at PNP and the permanent removal of fuel from the PNP reactor vessel. On this same date, the NRC informed Entergy that the reactor oversight process at PNP had been terminated and that the NRC decommissioning inspection program was now applicable to PNP (Reference 9). This is the date when PNP transitioned from a power operations plant to a facility in decommissioning.

On June 15, 2022, Entergy implemented the PDTS and supporting RFOL amendments and exemptions that modified the regulatory requirements to reflect a facility in decommissioning.

On June 28, 2022, Holtec acquired PNP from Entergy, and the NRC issued PNP RFOL amendments to reflect this change in ownership and name change, and the transfer of Entergy Nuclear Operations, Inc. operating

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 57 85 authority to Holtec Decommissioning International, LLC (Reference 10).

Note, at the time of license transfer, PNP was a facility in decommissioning, and HDI was given operating authority by the NRC for the purpose of decommissioning the PNP site.

Basis: Holtec still does not have an NRC-approved Operations or period of system restoration QAPD, despite its belief that it can simply update the HDI decommissioning QAPD currently in effect, with the appropriate quality assurance controls to cover the activities being performed at the plant during the restoration period. The NRC has not publicly stated whether it approves of this Holtec proposal. Nonetheless, Holtec is proceeding based on the assumption that the NRC's lack of response constitutes implicit approval, a rationale it has relied on in several of its submittals regarding its proposed regulatory path for returning to service.

Petitioners challenge the use of implicit approval as a regulatory basis.

ML24166A291, Pre-Submittal Meeting, Request to Update the Palisades Quality Assurance Plan to Support Resumption of Power.

NRC Question and Holtec Response:

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 58 85 Since this new QAPM would not be in effect until after potential reauthorization of power operations, the NRC staff asked what quality assurance controls would be in effect during the period of system restoration, and what document would contain these controls. The licensee stated that they plan to update the HDI decommissioning QAP currently in effect with the appropriate quality assurance controls to cover the activities being performed at the plant during the restoration period. The licensee stated they would make these changes without prior NRC approval using the allowances in the regulations but would be subject to inspection once they were in place.

Basis: Holtec is proceeding based on implicit approval, referencing the the NRC did not respond argument to support its restoration period actions.

ML23271A140, Request for Exemption from Certain Termination of License Requirements of 10 CFR 50.82:

From the report:

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 59 85 On March 20, 2023, HDI met with the NRC, in a public meeting forum, to discuss with the NRC staff the proposed regulatory path to potentially request reauthorization of power operations at PNP. The purpose of the meeting was to provide an overview of the proposed regulatory path and to obtain feedback from the NRC staff on the reasonableness of the approach. The NRC provided no comments opposing the reasonableness of the approach (Reference 18).

On May 24, 2023, HDI met with the NRC, in a public meeting forum, to discuss the regulatory framework to potentially request reauthorization of power operations at PNP, with a focus on the request for exemption to 10 CFR 50.82(a)(2). The purpose of the meeting was to provide an overview of the proposed regulatory framework, with emphasis on the requested exemption to 10 CFR 50.82(a)(2), and to obtain feedback from the NRC staff on the reasonableness of the approach. The NRC provided no comments opposing the reasonableness of the approach (Reference 19).

Basis: The NRC does not have a regulatory basis or review plan for approving Holtecs request to update the HDI decommissioning QAPD currently in effect, with the appropriate quality assurance controls to cover

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 60 85 the activities being performed at the plant during the period of system restoration.

Basis: Holtec activities in progress may contain Quality Control points that are not observable after the fact and can only be completed under an NRC-approved QAPD.

Appendix B to Part 50Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants:

As used in this appendix, quality assurance comprises all those planned and systematic actions necessary to provide adequate confidence that a structure, system, or component will perform satisfactorily in service. Quality assurance includes quality control, which comprises those quality assurance actions related to the physical characteristics of a material, structure, component, or system which provide a means to control the quality of the material, structure, component, or system to predetermined requirements The applicant shall establish at the earliest practicable time, consistent with the schedule for accomplishing the activities, a

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 61 85 quality assurance program which complies with the requirements of this appendix NUREG-800, Standard Review Plan, lists review plans for each phase:

Design and Construction Operations Design certification, Early Site Permit, and New License Applications Restoration Period, a.k.a. returning a plant to operations from decommissioned status, does not have a Standard Review Plan.

Legal Basis: Holtec is proceeding based on implicit approval Legal Argument Against Holtecs Use of Implicit Approval and Regulatory Framework Selection Introduction Petitioners assert that Holtec Internationals reliance on implicit approval from the Nuclear Regulatory Commission (NRC) and its selective application of regulatory rules under the Regulatory Framework clause are legally inadequate and inconsistent with the

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 62 85 NRCs regulatory requirements. This argument challenges Holtecs regulatory approach on the grounds of procedural deficiencies and regulatory compliance, emphasizing the need for explicit NRC approval and comprehensive adherence to established regulatory standards.

Legal Requirement for Explicit NRC Approval The NRCs regulatory framework mandates explicit approval for significant regulatory decisions, particularly those impacting nuclear plant safety and operations. Holtecs reliance on implicit approval assumes that silence from the NRC constitutes consent, which undermines the regulatory processs requirement for transparency and explicit communication.

Regulatory Framework and Implicit Approval Under NRC regulations, especially those outlined in 10 CFR Part 50 and 10 CFR Part 52, any proposed changes to plant operations, including restart procedures, must be explicitly reviewed and approved by the NRC. The reliance on implicit approval contradicts

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 63 85 the regulatory requirements that necessitate formal approval to ensure all safety concerns are addressed comprehensively.

Regulatory Framework Clause and Rule Selection Holtecs selection of rules under the Regulatory Framework clause appears to be selectively applied rather than uniformly adopted. This selective approach raises concerns about whether all relevant regulatory standards are being met comprehensively.

Uniform Application of Regulations The Regulatory Framework clause is intended to provide a comprehensive basis for regulatory compliance, ensuring that all applicable rules are considered. Holtecs selective application of these rules may result in a failure to meet the full spectrum of regulatory requirements, potentially compromising safety and operational integrity.

Lack of Comprehensive Regulatory Review Holtecs proposed regulatory path and rule selection must be subjected to a thorough and comprehensive NRC review and

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 64 85 approval by NRC General Counsel. The NRCs failure to explicitly address Holtecs regulatory path raises concerns that the review process may have been insufficient or incomplete. This lack of comprehensive review undermines the credibility of Holtecs compliance assertions and the overall regulatory framework.

Potential Risks and Implications The reliance on implicit approval and selective rule application introduces significant risks to plant safety and regulatory integrity.

The following implications are of particular concern:

Safety Risks Implicit approval and selective regulation may lead to inadequate safety measures, as not all relevant safety standards may be addressed. This could result in increased risks to plant operations and public safety.

Regulatory Integrity

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 65 85 Allowing implicit approval and selective rule application undermines the regulatory processs integrity, potentially eroding public trust and confidence in the NRCs oversight capabilities.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 66 85 Contention Four:

The NRC is allowing Holtec to take "other actions" within the "existing regulatory framework," as referenced in SECY-20-0110, to complete the period of system restoration activities. In its "in scope" License Amendment Requests, Holtec proposed rules for the QAPD and FSAR (see contentions one, two, and three) that are now being used, without NRC approval, to support the period of system restoration activities.

According to publicly available documents, the NRC staff has not formally responded to Holtecs proposed regulations, which are the subject of this petition. Despite the absence of implicit* approval, Holtec is proceeding with system restoration activities at the Palisades site based on implicit approval, because NRC has not responded. This presents an immediate harm to the petitioners, who have filed §2.206 petitions requesting the NRC staff to take action to halt these activities. The petitioners urge the adjudicatory authority to consider the urgency of conducting a concurrent review.

Petitioner concern is lack of NRC approved licensing basis and QAPD does not give NRC inspections staff adequate guidance in evaluating

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 67 85 design basis (no NRC approved FSAR) and no quality guidance for activities such as special processes, documentation, quality control inspections, etc (no NRC approved QAPD).

Basis: The NRC is allowing Holtec to take "other actions" within the "existing regulatory framework," as referenced in SECY-20-0110, to complete the period of system restoration activities.

ML24208A153\\ML24150A239, NRC Inspection Manual Chapter 2562, Transition from Decommissioning to Restart Phase.

When a licensee submits a request for exemption from the requirements of 10 CFR 50.82 to allow placing fuel in the reactor vessel and authorizing operation of the reactor, the restart phase of the reactor facility inspection program can begin. It is anticipated that the NRCs review of licensing actions to restore the operating basis of the facility will occur concurrently with implementation of the Restart of Reactor Facilities Inspection Process.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 68 85 Basis: Holtec is using implicit approval to complete period of system restoration activities at the Palisades site.

ML23271A140, Request for Exemption from Certain Termination of License Requirements of 10 CFR 50.82. Holtec statement.

On March 20, 2023, HDI met with the NRC, in a public meeting forum, to discuss with the NRC staff the proposed regulatory path to potentially request reauthorization of power operations at PNP. The purpose of the meeting was to provide an overview of the proposed regulatory path and to obtain feedback from the NRC staff on the reasonableness of the approach. The NRC provided no comments opposing the reasonableness of the approach (Reference 18).

Basis: NRC is allowing Holtec to currently complete period of system restoration activities actions at the Palisades site.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 69 85 PALISADES NUCLEAR PLANT - RESTART INSPECTION REPORT 05000255_2024011:

On June 13, 2022, Palisades ceased permanent power operations and subsequently removed all fuel from the reactor, as detailed in the letter from Entergy to the NRC, Certifications of Permanent Cessation of Power Operations and Permanent Removal of Fuel from the Reactor Vessel, (ADAMS Accession No. ML22164A067). On September 28, 2023, Holtec Decommissioning International, LLC (Holtec) submitted a letter to the NRC requesting exemptions from certain portions of the requirements of Title 10 of the Code of Federal Regulations (10 CFR) 50.82(a)(2) to pursue the potential reauthorization of power operations at Palisades (ADAMS Accession No. ML23271A140). The NRCs initial acceptance to review Palisades request for exemptions was documented in ADAMS at Accession No. ML23291A440 on November 3, 2023.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 70 85 Basis in Law:

Ripeness Doctrine and Lack of NRC Oversight of Design Basis Tools:

The petition raises serious concerns that NRC staff may be allowing Holtec to implement significant actions under the "existing regulatory framework" without proper authorization, adequate oversight, or public review.

These actions, which rely on regulatory interpretations or changes that have not been fully vetted or approved, have effectively ripened into matters requiring immediate NRC scrutiny and because they reference the in scope License Amendment Reviews, are subject to this petition request for a public hearing.

The lack of transparency and sufficient regulatory oversight could result in inadequate inspection standards and increase the risk of non-compliance with critical safety regulations.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 71 85 Given that these actions have already commenced, it is imperative that the NRC address these issues now, as they have matured into significant regulatory and safety concerns that must be resolved to protect public health and safety.

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 72 85 Preparer Declaration and Certifications:

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 73 85 Appendix A: Petitioner Declarations:

Petitioners:

Jody Flynn jodygflynn@gmail.com 317-506-0803 80036 Ramblewood Drive Covert, Michigan 49043 Tom Flynn tflynn71@gmail.com 317-371-3233 80036 Ramblewood Drive Covert, Michigan 49043 Bruce Davis cdxp@aol.com 518-441-1821 27903 Shorewood Drive Covert, Michigan 49043 Karen Davis 518-441-0125 27903 Shorewood Drive Covert, Michigan 49043 Christian Moevs christian.Moevs.1@nd.edu 312-623-3925 38340 Blue Star Highway Covert, Michigan 49043

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 74 85 Mary and Chuck Hoffman huffmanmaryd@hotmail.com 317-679-3625 317-714-8753 28595 Ravine Circle Covert, MI 49043 Diane Ebert rebes1025@gmail.com 708-927-6190 80021 Ramblewood Drive Covert, Mi. 49043

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 75 85 Appendix A Declaration: Bruce Davis

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 76 85 Appendix A Declaration: Karen Davis

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 77 85 Appendix A Declaration: Jody Flynn

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 78 85 Appendix A Declaration: Tom Flynn

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 79 85 Appendix A Declaration: Christian Moevs

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 80 85 Appendix A Declaration: Diane Ebert

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 81 85 Appendix A Declaration: Mary and Chuck Huffman

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 82 85 Appendix B: Other Applicable Petitions:

August 19, 2024, Alan Blind: §2.206 Petition for Action; Use of 10CFR 50.59; I respectfully request that the NRC require Holtec to submit a new Final Safety Analysis Report (FSAR) and obtain NRC approval before NRC conducting any inspections during the Palisades system restoration period that necessitate reference to the Palisades licensing basis.

At a minimum, this new FSAR should include updates to NUREG-0820, the Systematic Evaluation Process (SEP), to reflect regulatory and operating experience changes starting from June 13, 2012the date when Entergy submitted its 10 CFR 50.82(a)(1) certifications for the permanent cessation of power operations, and the SEP licensing basis was no longer in effect.

I contend that an update of changes since June 13, 2014, is the minimum required to meet NRC regulations, however, NRC staff may determine that other SEP issues need to be updated by Holtec to ensure ongoing public health and safety (for example, the 31 SEP issues found to need additional licensee basis, due to not meeting GDC).

Holtec has proposed using the 10 CFR 50.59 process to evaluate a new FSAR. However, I assert that current NRC regulations and the prior submittal of 50.82 certifications, which ended the operating plant's design basis/FSAR, do not permit the use of the 50.59 process to create a new replacement FSAR. To date, the NRC staff has not addressed, in public, if it approves of Holtecs proposed method for developing a new FSAR.

I assert that Holtec does not have an NRC-approved Final Safety Analysis Report (FSAR) for the period of system restoration, for use by NRC inspectors, and for Holtec

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 83 85 S use to evaluate acceptability of designs and work in progress. The original FSAR ceased to exist when Entergy submitted its 10 CFR 50.82 certifications.

Furthermore, in Holtecs Request for Exemption from Certain Termination of License Requirements under 10 CFR 50.82, particularly the clause stating that "the exemption will not present an undue risk to public health and safety, Holtec said an element to meet this clause was for the NRC to inspect its return to service plans. This is problematic for several reasons, 1) Holtec is placing the NRC into a role to ensure there are no undue risk to public health and safety, 2) Holtec has not agreed to share the start up plans with the NRC, and 3) NRC inspectors will not have an NRC approved FSAR to use as a reference to evaluate system restart plans adequacy and compliance to an approve design basis.

Before the Holtec FSAR can be utilized by NRC inspectors in any ongoing design basis-related inspections that need design basis input, inspectors must first have an NRC approved FSAR. Without an NRC-approved FSAR, inspectors will lack a validated basis for evaluating whether safety-related structures, systems, and components (SSCs) meet design basis requirements. Effectively, under the Holtec proposal, Holtec will define and approve the design basis without prior NRC review, which is unacceptable to ensure public health and safety.

August 19, 2024, Alan Blind: §2.206 Petition for Action, Quality Assurance; I respectfully request that the NRC order Holtec to stop work on safety-related SSCs intended to be part of the Operating Quality Assurance Program.

Holtec may restart work, after NRC approval of its Quality Assurance Manual for the period of system restoration. I assert that Holtec does not have an NRC-approved period of system restoration QAPD.

The operating QAPD ceased to Exist when Entergy submitted its 50.82 certifications. Furthermore, the NRC's evaluation of Holtecs Request for Exemption from Certain Termination of License Requirements under 10 CFR 50.82, specifically the clause stating

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 84 85 that "the exemption will not present an undue risk to public health and safety," relies heavily on the assurance that period of system restoration activities are properly completed and documented according to an NRC-approved Operating QAPD.

My concerns focus particularly on the possibility that some of Holtec's ongoing period of system restoration activities may involve Quality Control points that cannot be adequately verified after the fact, and most likely, not witnessed and documented by NRC inspectors. This issue is further complicated by the suspension of record retention requirements, initially enabled by Entergy, with no public information on when or if these requirements will be reinstated for period of system restoration safety-related SSCs (Structures, Systems, and Components).

I recognize, Holtec is the owner of the decommission status, Palisades Plant, and can take whatever actions it desires, on previous operating safety related SSCs, including cutting up the SSC into small bits, but as stated above, those actions should be considered unreliable by NRC reviewers, to support Holtecs do no harm arguments in it Specific Exception Request, for retraction of the 50.82 shutdown restrictions.

Publicly available documents indicate that the NRC has not approved Holtecs proposed use of the decommissioning Quality Assurance Program Description (QAPD) for safety-related SSC activities during the period of system restoration. My concern is that Holtec may be performing restoration period activities on safety-related SSCs outside a supporting period of system restoration QAPD July 1, 2024, Alan Blind, Docket No. PRM-50-125, § 2.802 Petition for rulemaking.

..request that the NRC revise its regulations at 10 CFR Part 50, Domestic Licensing of Production and Utilization Facilities, and 10 CFR Part 52, Licenses, Certifications, and Approvals for Nuclear Power Plants, to include a Commission-approved

September 9, 2024 Docket No. 50-255; NRC-2024-0130 of 85 85 process for returning a decommissioned plant to operational status.