ML24269A017
| ML24269A017 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 09/24/2024 |
| From: | Blanton M, Eskelsen G, Lovett A Balch & Bingham, LLP, Holtec Decommissioning International |
| To: | NRC/OCM |
| References | |
| Download: ML24269A017 (1) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC (Palisades Nuclear Plant)
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Docket No. 50-255 September 24, 2024 RESPONSE TO BEYOND NUCLEAR ET AL.S PETITION FOR DECLARATORY ORDER By leave of the Commission Secretary, Holtec Decommissioning International, LLC (HDI) provides this response to the Petition for Declaratory Order (Petition for Declaratory Order) filed by Beyond Nuclear, Dont Waste Michigan, and Michigan Safe Energy Future (Joint Petitioners) on September 5, 2024.1 The Commission should deny the Petition for Declaratory Order because the issue has already been addressed by an order issued by the Commission Secretary and the requested declaratory order goes beyond the type of relief contemplated by the Administrative Procedure Act provisions invoked by the Joint Petitioners.
1 Petition for Declaratory Order, Docket No. 50-255 (Sept. 5, 2024) (ML24250A100). Joint Petitioners originally filed the petition in the adjudicatory docket 50-255 & 72-007 LT-3, which was established to address petitions for hearing on an HDI license transfer application filed pursuant to 10 CFR 50.80. On September 6, 2024, the Office of the Secretary informed the participants in that proceeding that the Petition for Declaratory Order does not pertain to the license transfer application for Palisades and will be removed from the docket for this proceeding, and that [t]his matter will be handled separately, and a response will be provided after review is complete. Email from Office of the Secretary, Re: NRC Proceeding Palisades 50-255 & 72-007 LT-3 (Sept. 6, 2024). On September 17, 2024, counsel for HDI inquired further regarding the status of re-docketing the Petition for Declaratory Order, and the Office of Secretary clarified that [t]he Office of the Secretary does not plan to open a new/different docket in relation to the motion for a declaratory order for the Palisades Nuclear Plant. The motion is currently before the Commission and is being handled procedurally. If you wish to respond to the motion, please email your submittal to hearing.docket@nrc.gov. Email from Office of Secretary, Re: Re: NRC Proceeding Palisades 50-255 & 72-007 LT-3 (Sept. 17, 2024). By this response, HDI is availing itself of that process.
On December 5, 2023, Joint Petitioners filed a petition requesting an adjudicatory hearing on a request for an exemption from 10 CFR 50.82(a) filed by HDI in connection with the Palisades restart.2 The Commission Secretary dismissed that petition because Section 189 of the Atomic Energy Act (AEA) does not afford Joint Petitioners the right to request a hearing on an exemption request (Secretary Order).3 The Secretary Order noted that Joint Petitioners would have an opportunity to request a hearing on licensing actions that are subject to hearing opportunities under the AEA, including the license amendment requests HDI has filed in connection with the restart (LARs).4 NRC recently published a Federal Register notice providing that opportunity.5 Now, Joint Petitioners are requesting a discretionary order under Section 5(e) of the Administrative Procedure Act (APA) to clarify whether the NRC will allow the exemption request to be considered in a petition to intervene regarding the [LARs].6 Joint Petitioners cite NRC precedent that says an exemption request which is inexorably intertwined with a licensing action may be challenged in a hearing request on that licensing action,7 although the Petition for 2 Petition to Intervene and Request for Adjudicatory Hearing by Beyond Nuclear, Dont Waste Michigan, and Michigan Safe Energy Future (Dec. 5, 2023) (ML23339A192) (Petition on Exemption Request); see also HDI PNP 2023-025, Letter from J. Fleming, HDI, to NRC Document Control Desk, Request for Exemption from Certain Termination of License Requirements of 10 CFR 50.82 (Sept. 28, 2023) (ML23271A140) (Exemption Request).
3 Order of the Secretary, Docket No. 50-255, at 2 (Dec. 18, 2023) (ML23352A325).
4 Id. at 3; see generally HDI PNP 2023-030, Letter from J. Fleming, HDI, to NRC Document Control Desk, License Amendment Request to Revise Renewed Facility Operating License and Permanently Defueled Technical Specifications (Dec. 14, 2023) (ML23348A148); HDI PNP 2024-001, Letter from J. Fleming, HDI, to NRC Document Control Desk, License Amendment Request to Revise Selected Permanently Defueled Technical Specifications Administrative Controls (Feb. 9, 2024) (ML24040A089); HDI PNP 2024-005, Letter from J. Fleming, HDI, to NRC Document Control Desk, License Amendment Request to Revise the Palisades Nuclear Plant Site Emergency Plan (May 1, 2024) (ML24122C666); HDI PNP 2024-005, Letter from J. Fleming, HDI, to NRC Document Control Desk, License Amendment Request to Approve the Biasi Critical Heat Flux (CHF) Correlation for Use with the Palisades Main Steam Line Break (MSLB) Analysis (May 24, 2024) (ML24145A145).
5 Applications for Amendments to Renewed Facility Operating License Involving Proposed No Significant Hazards Considerations, 89 Fed. Reg. 64,486 (Aug. 7, 2024).
6 Petition at 12.
7 Id.
Declaratory Order does not actually argue that the exemption request in question is, in fact, inexorably intertwined with the LARs.
Regardless, this issue has already been resolved by the Secretary Order. That order recited the same precedent set forth in the Petition for Declaratory Order and then dismissed Joint Petitioners request for hearing because, [t]he current exemption request is separate from a licensing action that would provide an opportunity to request a hearing.8 Section 5(e) of the APA is not a vehicle for appealing an order issued nine months ago, nor does it afford Joint Petitioners the opportunity to raise new arguments that they did not make in their filings leading up to the Secretary Order.9 In addition, the declaratory order requested by Joint Petitioners is not the kind of relief contemplated by Section 5(e) of the APA.10 The intended use of these types of discretionary orders is to provide interpretive guidance, address how regulations apply to a specific transaction, provide definitional clarity, better define the scope of an agencys authority or jurisdiction, or address preemption issues.11 Section 5(e) of the APA is not an alternative to the NRCs normal adjudicatory processes.12 The issue Joint Petitioners seek clarity on has already been the subject 8 Secretary Order at 2.
9 Joint Petitioners prior attempt to obtain a hearing on the exemption request was founded on the assertion that the exemption request was a de-facto license amendment request. Petition on Exemption Request, at 19 ([T]he the NRCs consideration of Holtecs Request for Exemption in their estimation comprises a licensing-related act that comprises a proceeding pursuant to § 2.309.); Petitioners Memorandum in Opposition to Holtec Motion for Secretary Order Denying Petition for a Hearing on Exemption, at 4 (Dec. 13, 2023) (ML23347A210) ([W]hat Holtec seeks is not a bona fide exemption request, but is, instead, a license amendment.).
10 That section states that an agency, in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty. 5 USC § 554(e).
11 Admin. Conf. of the U.S., Adoption of Recommendations, Recommendation 2015-3, Declaratory Orders, 80 Fed. Reg. 78,161, 78,164 (Dec. 16, 2015).
12 See, e.g., U.S. Department of Energy (High-Level Waste Repository), CLI-08-21, 68 NRC 351, 352-353 (2008) (declining to issue an advisory order in lieu of relying on existing NRC procedural rules in 10 CFR Part 2, Subpart I that were available to address the disputed matters); Directors Decision Under 10 CFR 2.206, Ala. Power Co. (Farley Nuclear Plant, Units 1 and 2) (June 16, 1986) (ML20199B346) (declining to issue declaratory order under Section 5(e) of the APA in lieu of traditional proceedings under 10 CFR 2.206).
of adjudicatory filings, and, as noted, the adjudicatory process has resolved the question. But, even if the Secretary Order had not resolved this issue, there is an open adjudicatory docket--on the LARs--in which Joint Petitioners may seek to participate and assert a position, subject to all of the normal requirements in NRCs procedural rules. Channeling fact-dependent controversies to live adjudicatory proceedings inevitably produces better-informed decisions by an Atomic Safety and Licensing Board or the Commission than would be produced by issuing a declaratory order in a vacuumin this case, in the absence of any argument at all.13 Accordingly, even if the Secretary Order had not resolved the issue, the appropriate venue to address the question Joint Petitioners pose to the Commission would be the existing adjudicatory docket for the LARs.
HDI also notes that the Joint Petitioners did not consult with HDI before filing the Petition for Declaratory Order. This provides another basis to deny the request.14 For the foregoing reasons, the Commission should deny the Petition for Declaratory Order.
13 See, e.g., Exelon Generation Co., LLC (Dresden Nuclear Power Station, Units 2 and 3), CLI-16-6, 83 NRC 147, 156-57 (2016) (We disfavor the issuance of advisory opinions and prefer instead to address issues in the context of a concrete dispute.); S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-10,78 NRC 563, 568-69 ([S]uch an issue is better resolved in the context of a concrete dispute, where all of the parties have a stake in the outcome of the litigation).
14 10 CFR 2.323(b).
Respectfully submitted this 24th day of September 2024, HOLTEC DECOMMISSIONING INTERNATIONAL, LLC
/Signed electronically by Alan D. Lovett/
M. Stanford Blanton Alan D. Lovett Grant W. Eskelsen Balch & Bingham LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 205-251-8100 sblanton@balch.com alovett@balch.com geskelsen@balch.com
[certificate of service]
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC (Palisades Nuclear Plant)
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Docket No. 50-255 CERTIFICATION OF SERVICE Consistent with instructions from the Office of Secretary, and in light of the fact that there is no adjudicatory docket open for this matter, counsel for HDI certifies that the foregoing Response to Beyond Nuclear et al.s Petition for Declaratory Order is being filed via email to the Office of Secretary and is being served via expedited delivery service to Joint Petitioners counsel at the addresses set forth in the signature block of the Petition for Declaratory Order. Counsel for HDI is also providing courtesy email copies of this filing to Joint Petitioners counsel at their email addresses listed in the Petition for Declaratory Order. Counsel for HDI notes, further, that prior to filing this response, HDIs counsel conferred with Joint Petitioners counsel, and Joint Petitioners counsel consented to receive service via email and expedited delivery service under the circumstances.
Signed (electronically) by Alan D. Lovett Balch & Bingham LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 205-226-8769 alovett@balch.com Dated: September 24, 2023