ML24253A185
| 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 1 of 85
The Nuclear Regulatory Commission has announced opportunities for the public to request hearings on two aspects of Holtec Internationals eort to return the Palisades Nuclear Plant to an operational status.
The "rst opportunity covers license amendment requests from Holtec, "led between December 2023 and May 2024, that would restore aspects of the Palisades license to those required for an operating reactor. The "ling 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 2 of 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 sta agrees to apply SECY-20-0110 to allow the Palisades
plant to retur n to operations from a decommissioning status using the existing regulatory framework,
- 13. Contention One (§2.309(f)(1)) - Page 39 NRC sta '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 "awed 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 3 of 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 "awed 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 sta evaluations
- 18. Preparer Declaration and Certi"cations - 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 4 of 85
Petition Executive Summary
This petition, "led under 10 CFR 2.309, seeks a public hearing regarding
the proposed license amendments for the Palisades Nuclear Plant,
speci"cally 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 5 of 85
used by both NRC sta 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 6 of 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 sta 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 7 of 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 su cient oversight or
public visibility.
Speci"cally, it highlights that issues related to the License Amendment
Requests (LARs) are not yet ripe for "nal 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, "rst, 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 "exibility 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 8 of 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 "exibility
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
sta 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 9 of 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
sta 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 "led §2.206 petitions requesting the NRC sta
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 10 of 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
On March 20, 2023, HDI met with the NRC, in a public
meeting forum, to discuss with the NRC sta 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 11 of 85
the NRC sta 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 sta
can justi"ably 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 sta are grounded in a stable and
objective regulatory environment, thereby safeguarding public health September 9, 2024 Docket No. 50-255; NRC-2024-0130 12 of 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 speci"c term for the time period between the
submittal of §50.82 certi"cations, decommission status, and
returning to NRC Reactor Oversight Process (ROP), operations
status. So, I have adopted the term used by the NRC sta to
describe this phase, period of system restoration.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 13 of 85
This expression is derived from a NRC question from
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 sta asked what quality assurance controls
would be in eect 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 eort to return the Palisades
Nuclear Plant to operational status.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 14 of 85
In preparing this petition, Alan has strived to meet all procedural and legal
requirements, recognizing the importance of adjudicatory e ciency,
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 signi"cant 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
"exibility 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 15 of 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, speci"cally 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 16 of 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), speci"cally 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 "rst to experience potential health hazards, including
inhalation of radioactive particles, contamination of our homes, and forced
evacuation. Given these signi"cant risks, it is imperative that NRC sta
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 17 of 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 a ect 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 18 of 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 e ciency, 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 19 of 85
Current Petitioner Adverse Impact:
The petitioners contend that they have already been adversely
a ected. The NRC's allowance of Holtec's use of regulations, as
outlined within the scope of this petition, but not yet approved by
NRC sta, 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 20 of 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
Speci"cations 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 21 of 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 sta 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 22 of 85
the issues in question are not yet ripe for "nal adjudication. The reliance on
these unvetted regulatory changes opens the door to broadening the
scope of contentions that rely on in scope document reviews.
Speci"cally, 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 23 of 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 su cient 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) con"rmed 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
de"ned 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 24 of 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 justi"ed. 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 con"ict with the principles of thorough and
transparent regulatory oversight as established by the
Administrative Procedure Act (APA). This ensures that the NRC
ful"lls its duty to consider all relevant evidence when making
decisions that impact public safety and regulatory compliance
This petition includes four Contentions:
- 1. NRC sta 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 25 of 85
petition without approval from NRC General Counsel of sta s
interpretation of SECY-20-0110 for Holtecs proposed license
amendments, speci"cally 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
"awed 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 e ect, with
appropriate quality assurance controls to cover the activities being
performed at the plant during the restoration period, without prior
NRC approval, is "awed and not consistent with a more applicable
regulation within the existing regulatory framework as referenced in
- 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 26 of 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 sta
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 sta have indicated that no speci"c 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 diering interpretations
between Holtecs proposed regulations and the petitioners view of what
regulations are more appropriate, a situation further complicated by the
NRC sta 's public silence regarding its acceptance of Holtecs proposed
regulations guiding the NRC stas LAR reviews, which are within the
scope of this petition for public hearing.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 27 of 85
As evidenced by NRC sta 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 sta have accepted the
Holtecs subjective regulation selection proposals. If so, petitioners ask
that NRC sta 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 eectively 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 sta 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 28 of 85
However, the introduction of an interpretation from SECY-20-0110, which
stated that a licensee and NRC sta may select a rule within the existing
regulatory framework because the NRC recognizes that there are no
current NRC rules speci"cally written for returning a plant from the
decommissioning phase, after submitting its §50.82 certi"cations, back to
full power operations, raises signi"cant 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 "exibility 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 29 of 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
in"uence the selection or interpretation of applicable regulations, it could
lead to con"icts 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 speci"cally authorized by the Commission in writing, no interpretation
of the meaning of the regulations in this part by any ocer 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 30 of 85
ensure that any "exibility 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 31 of 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 con"icts of interest between licensees and regulatory sta (§
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 32 of 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 speci"c 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 33 of 85
- Relevance: The court recognized that regulatory standards
should not be arbitrary or overly "exible in ways that
undermine public safety. This aligns with petitioners
argument that the selection of regulatory frameworks should
be objective and clearly justi"ed 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 a rmed 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 34 of 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 justi"ed 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
"exibility 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 35 of 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 "exibility 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 rea rmed 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 36 of 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 a rm 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 sta 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 37 of 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 signi"cant 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 38 of 85
Request: If Holtec continues with system restoration activities without "rst
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 39 of 85
Contention One:
NRC sta are proceeding with the review of license amendments based on
a denial of a rulemaking petition without approval from NRC General
Counsel of stas interpretation of SECY-20-0110 for Holtecs proposed
license amendments, speci"cally regarding which NRC rules constitute the
existing regulatory framework. Although NRC sta 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 justi"cation for
NRC sta 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 certi"cations through the return to service period and the
return to a known set of NRC rules for power reactor operations and SOP
oversight. NRC sta must propose, and General Counsel must approve,
the speci"c return to service NRC rules to be used, drawn from within
the SECY-20-0110 denial basis. Holtec and sta 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 40 of 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 sta are proceeding with using SECY-20-0110 as a
justi"cation for their actions, despite diering 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 justi"cation 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 "exibility to accommodate reauthorization of
operations September 9, 2024 Docket No. 50-255; NRC-2024-0130 41 of 85
A reading of SECY-20-0110, as published in the Federal Register, "nds a
dierent 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 "rst:
- 1. Reconcile the diering language used by Holtec, sta, and the
Federal Register for the correct meaning of the denial language in
PRM-50-117.
- 2. Approve the "nal NRC sta s interpretation on what speci"c rules are
to be used for sta review of Holtec submittals and Holtec return to September 9, 2024 Docket No. 50-255; NRC-2024-0130 42 of 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 speci"cally authorized by the Commission in writing,
no interpretation of the meaning of the regulations in this part
by any o cer 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
certi"cation 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 43 of 85
certi"cation to the NRC that meets the requirements of §
50.4(b)(9);
(2) Upon docketing of the certi"cations for permanent
cessation of
operations and permanent removal of fuel from the reactor
vessel, or when a "nal legally eective order to permanently
cease operations has come into e ect, 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 44 of 85
In ML23348A148, Request to Revise Operating License and
Technical Speci"cations 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 re"ect the docketed version that was in eect
prior to the 10 CFR 50.82(a)(1) certi"cations, 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 45 of 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 eect. 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 46 of 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 con"icts 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
quali"cations and compliance with NRC rules and regulations September 9, 2024 Docket No. 50-255; NRC-2024-0130 47 of 85
ensures that licensees must meet clear and measurable standards to
protect public safety. This guards against subjective interpretations
of the rules, as only quali"ed applicants that meet speci"c, de"ned
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 di erent 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 48 of 85
safety are well-understood and consistently applied.
- 3. Prevention of Con"icts of Interest
- The AEAs emphasis on NRC independence in decision-making
(also re"ected in the Energy Reorganization Act of 1974) helps
protect against con"icts 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 con"ict 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 con"ict.
- 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 49 of 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 re"ects the importance of protecting against con"icts 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 50 of 85
Thus, the derived statement is a logical interpretation of the AEAs intent
and its speci"c provisions for maintaining nuclear safety and regulatory integrity.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 51 of 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 re"ect the docketed version
that was in eect prior to the 10 CFR 50.82(a)(1) certi"cations, PNP
UFSAR Revision 35 (Reference 6) is "awed 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 certi"cations were
submitted by the previous owner.
It is understood that no speci"c 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 sta,
with the interpretation approved by General Counsel as per Contention
One.
Basis: Holtecs proposed use of §50.59 is "awed.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 52 of 85
§ 50.59 Changes, tests, and experiments:
(a) De"nitions 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 "nal
safety analysis report (as updated), make changes in the procedures as
described in the "nal safety analysis report (as updated), and conduct
tests or experiments not described in the "nal 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 53 of 85
Basis: Entergy submitted 10 CFR 50.82(a)(1) certi"cations 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)
certi"cations 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 modi"ed the regulatory requirements to
re"ect a facility in decommissioning.
On June 28, 2022, Holtec acquired Palisades Plant from Entergy, and the
NRC issued PNP RFOL amendments to re"ect 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 54 of 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 55 of 85
Contention Three:
Holtecs proposal to update the HDI decommissioning QAPD currently in
eect, with appropriate quality assurance controls to cover the activities
being performed at the plant during the restoration period, without prior
NRC approval, is "awed. 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 de"ned in NUREG-800, Standard Review
Plans.
It is understood that no speci"c 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 sta,
with the interpretation approved by General Counsel as per Contention
One.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 56 of 85
Basis: Entergy submitted 10 CFR 50.82(a)(1) certi"cations 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)
certi"cations 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 modi"ed the regulatory requirements to
re"ect a facility in decommissioning.
On June 28, 2022, Holtec acquired PNP from Entergy, and the NRC issued
PNP RFOL amendments to re"ect 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 57 of 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 e ect, 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 58 of 85
Since this new QAPM would not be in e ect until after potential
reauthorization of power operations, the NRC sta asked what
quality assurance controls would be in eect 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 e ect 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 59 of 85
On March 20, 2023, HDI met with the NRC, in a public meeting
forum, to discuss with the NRC sta 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 sta 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 sta 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 eect, with the appropriate quality assurance controls to cover September 9, 2024 Docket No. 50-255; NRC-2024-0130 60 of 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
con"dence 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 61 of 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 certi"cation, 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 62 of 85
NRCs regulatory requirements. This argument challenges Holtecs
regulatory approach on the grounds of procedural de"ciencies 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
signi"cant 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 63 of 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 64 of 85
approval by NRC General Counsel. The NRCs failure to explicitly
address Holtecs regulatory path raises concerns that the review
process may have been insu cient 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 signi"cant 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 65 of 85
Allowing implicit approval and selective rule application undermines
the regulatory processs integrity, potentially eroding public trust and
con"dence in the NRCs oversight capabilities.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 66 of 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 sta 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 "led §2.206 petitions requesting the
NRC sta 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 sta adequate guidance in evaluating September 9, 2024 Docket No. 50-255; NRC-2024-0130 67 of 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 68 of 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 sta 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 sta 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 69 of 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, Certi"cations
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 70 of 85
Basis in Law:
Ripeness Doctrine and Lack of NRC Oversight of Design Basis
Tools:
The petition raises serious concerns that NRC sta may be allowing
Holtec to implement signi"cant 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 eectively 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 su cient 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 71 of 85
Given that these actions have already commenced, it is imperative
that the NRC address these issues now, as they have matured into
signi"cant regulatory and safety concerns that must be resolved to
protect public health and safety.
September 9, 2024 Docket No. 50-255; NRC-2024-0130 72 of 85
Preparer Declaration and Certi"cations:
September 9, 2024 Docket No. 50-255; NRC-2024-0130 73 of 85
Appendix A: Petitioner Declarations:
Petitioners:
Jody Flynn jodyg"ynn@gmail.com 317-506-0803 80036 Ramblewood Drive Covert, Michigan 49043
Tom Flynn t"ynn71@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 74 of 85
Mary and Chuck Ho man hu manmaryd@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 75 of 85
Appendix A Declaration: Bruce Davis September 9, 2024 Docket No. 50-255; NRC-2024-0130 76 of 85
Appendix A Declaration: Karen Davis September 9, 2024 Docket No. 50-255; NRC-2024-0130 77 of 85
Appendix A Declaration: Jody Flynn September 9, 2024 Docket No. 50-255; NRC-2024-0130 78 of 85
Appendix A Declaration: Tom Flynn September 9, 2024 Docket No. 50-255; NRC-2024-0130 79 of 85
Appendix A Declaration: Christian Moevs September 9, 2024 Docket No. 50-255; NRC-2024-0130 80 of 85
Appendix A Declaration: Diane Ebert
September 9, 2024 Docket No. 50-255; NRC-2024-0130 81 of 85
Appendix A Declaration: Mary and Chuck Hu man September 9, 2024 Docket No. 50-255; NRC-2024-0130 82 of 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 re"ect regulatory and operating experience changes starting from June 13, 2012the date when Entergy submitted its 10 CFR 50.82(a)(1) certi"cations for the permanent cessation of power operations, and the SEP licensing basis was no longer in eect.
I contend that an update of changes since June 13, 2014, is the minimum required to meet NRC regulations, however, NRC sta 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 certi"cations, 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 sta 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 83 of 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 certi"cations.
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 "rst 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. E ectively, under the Holtec proposal, Holtec will de"ne 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 certi"cations. Furthermore, the NRC's evaluation of Holtecs Request for Exemption from Certain Termination of License Requirements under 10 CFR 50.82, speci"cally the clause stating September 9, 2024 Docket No. 50-255; NRC-2024-0130 84 of 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 veri"ed 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 Speci"c 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, Certi"cations, and Approvals for Nuclear Power Plants, to include a Commission-approved September 9, 2024 Docket No. 50-255; NRC-2024-0130 85 of 85
process for returning a decommissioned plant to operational status.