ML24313A083
| ML24313A083 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 11/07/2024 |
| From: | Blind A - No Known Affiliation |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57187, 50-255-LA-3, ASLBP 24-986-01-LA-BD01 | |
| Download: ML24313A083 (0) | |
Text
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45 Petitioners Rebuttal: NRC STAFF ANSWER TO HEARING REQUEST FROM INDIVIDUAL PETITIONERS IN PALISADES RESTART AMENDMENT PROCEEDING Summary This rebuttal addresses the NRC Staff's procedural and substantive arguments opposing the petitioners case for denying the Palisades Nuclear Plants reauthorization under a regulatory framework not articulated to the public by NRC Staff. Represented by retired nuclear executive Alan Blind, petitioners challenge NRC Staffs procedural objections, which dismiss the petitioners arguments as immaterial and outside the scope of the proceeding. NRC Staffs basis for denial emphasizing procedural inadequaciessidesteps petitioners central issue: the lack of transparency regarding the specific regulations NRC Staff is using to evaluate Holtecs restart amendment requests.
Without disclosure of the regulatory framework and selection justification that NRC Staff applied to Palisades, petitioners were left without a known standard against which to evaluate Holtecs amendment requests. Consequently, in its
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45 petition, petitioners focused on the process and rationale for selecting regulations and processes, from within the full regulatory framework, rather than analyzing amendment details against an undefined set of criteria.
While Holtec did provide an outline of its proposed regulatory approach, portions were redacted, limiting public understanding of how the restart aligns with safety standards. Petitioners contend, that NRC has not adequately defended its stance on Holtecs proposed framework or indicated how NRC Staff validated it, compounding the transparency problem. This was also the case, leading up to the petitioners submission of this petition.
Case law, including Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-00-3, 51 NRC 45, 50-51 (2000), establishes that the burden of defending the relevance and applicability of redacted information and responding to petitioners contentions rests with the licensee and now by extension NRC Staff who defends Holtec positions, not the petitioner. Here, NRC Staffs response omitted critical details necessary for the petitioners and for the ASLB, to assess regulatory compliance. Petitioners argue that NRC Staff had a duty to clarify
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45 whether the redacted material held any significance in determining the regulatory sufficiency of Holtecs submissions, a duty they failed to show in its response.
Petitioners respectfully request that the ASLB prioritize transparency and require NRC Staff to provide and defend to the ASLB, a clear, evidence-based explanation of the regulatory framework applied to Palisades restart, aligning with NRCs mission to protect public health and safety through an open and accountable process. Petitioners have provided further analysis of the NRC Staff position and provided an alternate analysis for ASLB review.
Areas of Agreement Between NRC Staff Attorney and Petitioners Despite differences in other aspects of this case, there are notable areas of agreement between the NRC Staff and the Petitioners that form a foundation for common understanding in the proceedings:
1.
Standing of the Petitioners: Both the NRC Staff and Petitioners acknowledge that the Petition on its face demonstrates sufficient standing to participate in this case. The NRC Staff explicitly states that because the petition demonstrates standing, it sees no need to
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45 further address standing-related issues in the supplements.
This shared understanding underscores a mutual recognition of the petitioners eligibility and interest in these proceedings, allowing the ASLB panel to proceed without additional deliberation on this point.
2.
The Exemption Request is Inextricably Intertwined with the Primary Amendment Request: Both parties agree that the Exemption Request and the Primary Amendment Request are inextricably linked and must be evaluated together. The Petitioners argue, and the NRC Staff concurs, that the interdependent nature of these requests means they should be treated as part of a unified regulatory consideration.
This consensus supports the Petitioners right to challenge the Exemption Request on the basis that its approval is essential to the implementation of the Primary Amendment Request.
These areas of agreement form a common basis that clarifies procedural matters and underscores the importance of examining both the Exemption Request and the Primary Amendment Request as interconnected elements. This shared perspective allows the ASLB panel to move forward
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45 with a clear understanding of petitioners' standing and the inseparability of these key regulatory requests Holtec's and NRC Staff's Overlapping Arguments and Petitioners Unified
Response
In this rebuttal, petitioners address arguments presented by both the NRC Staff and Holtec, as their responses share the same foundational objections. Both parties argue that the petition should be denied due to perceived procedural deficiencies, claiming that petitioners have not addressed specific technical content within Holtecs license amendment requests. However, our response to these objections applies to both entities, as we highlight the core issue that neither NRC Staff nor Holtec have provided transparency on the regulatory criteria guiding their evaluations. This lack of clarity effectively precludes petitioners from providing the requested technical assessments as both NRC Staff and Holtec used to request dismissal of petitioners contentions. Using NRC Staff and Holtec arguments for
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45 dismissal, petitioners were in a no win situation - do not disclose the evaluation standards, but yet, demand that only standard based arguments are admissible.
Notably, Holtec also challenges petitioners standing and the admissibility of the Specific Exemption Request in this hearing. In contrast, NRC Staff explicitly acknowledges petitioners standing and the inclusion of the Specific Exemption Request, thereby indirectly opposing Holtec's position. Petitioners recognize this divergence and highlight that NRC Staffs stance on these issues further supports our entitlement to raise concerns on regulatory grounds. This rebuttal, therefore, addresses both NRC Staffs and Holtecs arguments comprehensively, with particular attention to the procedural transparency and admissibility issues that underpin both responses.
Petitioners Comment on the NRC Staffs Attorney Response and Public Engagement Petitioners were not expecting such an assertive and dismissive response from the same agency whose mission is to protect public health and safety and foster public involvement in critical decisions. Petitioners perception,
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45 going into this process, of the expected NRC staffs response tone was favorably informed by the NRCs public affairs letter of August 7, 2024, announcement, titled NRC Announces Opportunities to Request Hearings for Palisades Restart License Amendments, License Transfer (No:
24-064), emphasizes the publics opportunity to engage in Holtecs proposed Palisades restart and explicitly invites the public to request hearings on these important matters.
The announcement, provided by NRC spokesperson Scott Burnell, stressed the NRCs openness to public input on the restart and implies a commitment to a fair and transparent review process. The NRC Restart Panel often refereed the public to use this system when they responded to complex questions at public meetings held in the local area.
This invitation led petitioners, including myself and the petitioners, to participate in good faith, believing that raising potential regulatory inconsistencies and deviations from minimum standards would be met with transparency and constructive engagement.
Instead, the tone and demeanor of the NRC Staffs attorney in their response starkly contrasts with this spirit of openness. Rather than
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45 responding constructively, the NRCs language emphasizes procedural inadequacies and dismisses our concerns as unsupported or immaterial, suggesting a tone that discourages further participation rather than encouraging it.
As retirees, petitioners and I have dedicated significant time and effort to raise these concerns in what we believed to be the proper format for a public hearing request, not to obstruct the process but to ensure that the NRCs regulatory actions align fully with its commitment to safety and public health. Our goal in bringing forward these issues is to verify that regulatory and procedural standards are being not only met but embraced.
The NRCs response, however, appears more focused on procedural limitations than on addressing our safety concerns in good faith, creating an impression that the agency is intent on dissuading public involvement rather than fostering it.
This response is especially troubling given the transparency issues raised in our September 23, 2024, supplemental filing on transparency. In that filing, we stressed the need for transparency in the NRCs engagement with the public. Holtecs redaction of portions of its regulatory path, including the so-called "third key regulatory path assumption, and how it is able to use
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45 the § 50.59 process under the claim of proprietary protection under 10 CFR 2.390, effectively blocks public understanding of safety and compliance justifications for the restart. The NRCs failure to insist on a full, clear explanation and public disclosure of Holtecs restart plans further restricts public access to information vital for a meaningful assessment of the plants safety.
This contrast between the NRCs public invitation for participation and the dismissive tone of the NRC Staffs attorney response risks undermining public trust. The transparency we seek is foundational to public safety, and without it, public confidence in the NRCs oversight is weakened. We, the petitioners, expected a response from NRC Staff that would reinforce the NRCs mission by providing constructive feedback and welcoming oversight and questions from the publicnot one that attempts to sideline valid concerns.
The ASLB is our last hope of receiving a fair and transparent evaluation of our concerns. We urge the ASLB to consider the substantive merits of our petition in the open, constructive spirit that the NRC itself has publicly pledged to uphold.
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of 10 45 Petitioners' Response to NRC Staffs Objections on Representation and Supplemental Submissions The NRC Staff has objected to the inclusion of the supplemental filings on procedural grounds, stating:
At this time, Alan Blinds ineligibility to represent the Petitioners has implications primarily for the supplements to the Petition. The original Petition was signed by the individual petitioners, but they did not sign the twelve Blind Supplements, nor is there any indication that they were directly involved with the supplements. Thus, the Staff does not currently consider the twelve supplements to be legally part of the Petition; hence, these supplements should not at this time be considered under C.F.R. §2.309.
In response, petitioners clarify that all supplements, except for the newly introduced Contention Five, serve solely as supporting material for the original petition. Petitioners have all each signed declaration pages for the original petition, affirming their knowledge and involvement. As these supplements directly relate to and support the initial petition content, they should be considered part of the petition itself.
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of 11 45 As noted, I am not a lawyer and cannot expertly prescribe a legal remedy, which would likely, again, face opposition from NRC Staff and Holtec attorneys on some technicality. However, as an alternative, I propose that, if necessary, petitioners provide oral testimony under oath during the upcoming December ASLB hearing proceedings. This testimony would affirm their continuous engagement with each supplement and their understanding of its content, based on discussions with their representative, Alan Blind, who has facilitated the preparation and submission of these documents on their behalf.
Additionally, the NRC Staffs objections overlook the petitioners' request for the ASLB to extend reasonable deference to Alan Blinds contributions, as specified in the Prepared By section on page 13 of the petition. Notably, the NRC Staff did not object to this request in its reply, indicating no objection to the ASLB extending some deference to Petitioners representative, Alan Blind. Petitioners respectfully ask the ASLB to consider NRCs recent procedural objections as unfounded, given the collective involvement of the petitioners and the absence of NRC objections to petitioners representative, Alan Blind, request for deference.
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of 12 45 Finally, petitioners request that the ASLB acknowledge Alan Blinds extensive experience as a nuclear executive and his knowledge of Palisades regulatory and operational context. Alan has served at the Vice President level with overall senior responsibility of nuclear plants, and spent six years as the engineering director at Palisades. The supplements he prepared offer critical insights into safety, regulatory, and operational considerations, which petitioners believe merit review in the interest of public health and safety.
NRC Staffs Basis for Denial: Lack of Transparency in Regulatory Basis and Impact on Petitioners Ability to Evaluate Amendment Requests In their response, NRC Staff provided this reasoning for denial:
"The Petition should be denied because, while the Petitioners have demonstrated standing, they have not submitted an admissible contention. As explained below, this proceeding is limited to whether the amendment requests satisfy NRC requirements, but the Petitioners, through their originally filed Petition, avoid grappling with the specific technical content of the amendment requests or explaining why these requests fail to satisfy
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of 13 45 NRC requirements for amendments. Instead, they raise immaterial matters that are outside the scope of the proceeding, such as challenges to the Staffs safety review and inspection activities, demands for action from the NRC General Counsel, and disputes regarding actions the licensee has or may take outside the license amendment process. The Petitioners otherwise contest the sufficiency of the existing regulatory framework."
This statement from NRC Staff underscores the petitioners' fundamental issue and the basis for Contentions One through Four: the lack of transparency on which specific regulations the NRC Staff reviewers are applying to the Palisades restart.
Without this information, petitioners and the public were unable to conduct an independent, well-informed evaluation of the amendment requests. In the absence of a clearly defined regulatory framework, petitioners had no choice but to focus our concerns on the process of selecting the applicable regulations and procedures rather than reviewing the License Amendment Requests (LARs) against a set of established rules and criteria.
The cited immaterial matters raised by NRC Staff, such as performing safety reviews of ongoing work, and NRC inspections of restoration activities, were
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of 14 45 offered by petitioners as examples of negative consequences flowing from the lack of NRC defined and approved regulations..same as faced by petitioners ability to evaluate Holtec License Amendment submittals.
As outlined in the September 23, 2024, Supplemental Filing on Transparency, petitioners repeatedly requested clarity from the NRC on the regulatory framework they would use to assess the Palisades restart. These requests were made both in public meetings and through written questions, with the aim of understanding which elements of the "existing regulatory framework" were guiding NRCs review and how they were deemed appropriate. ML24291A244, included in this proceedings docket, is one such, and most current example. Each time, the NRC either rebuffed these requests or provided generalized answers that did not address our substantive concerns. In the end, the NRC Restart Panel referred petitioners to seek responses by filing a petition for a public hearing, as petitioners have done in this case.
This lack of transparency hindered petitioners and the publics ability to engage meaningfully and make well-informed assessments of the proposed amendment requests. Using NRC Staffs argument for dismissal of our contentions, petitioners
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of 15 45 were in a no win situation - we were denied knowledge of the review standards by NRC Staff, yet, the same NRC Staff now states only arguments based on the standard are admissible.
Petitioners argued in the petition that this lack of transparency renders the License Amendment Requests unripe for review. According to the "Ripeness Doctrine" discussed in the full petition, a regulatory framework must be fully formed and applicable before it can be properly reviewed. Without a clearly defined set of regulations for the Palisades restart, any review of the LARs would be premature and inconsistent with standards for thorough and objective regulatory oversight. In the full petition, petitioners argued this doctrine is essential for ensuring that actions taken by the NRC Staff are grounded in a mature regulatory framework that protects public health and safety.
Although Holtec outlined its proposed regulatory approach in ML23072A404, Regulatory Path to Reauthorize Power Operations, portions were redacted under claims of proprietary information, further complicating transparency. Notable, the NRC Staff did not publicly respond to or clarify its stance on Holtecs proposed framework, leaving gaps in public understanding and not knowing under what
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of 16 45 approved basis Holtec was going forward with LAR submittals and return to service actions. Neither NRC Staff or Holtec, in their responses, offered any argument opposing petitioners claim of no public approval statements, as outlined in our full petition.
As noted in the September 23, 2024, Supplemental Filing on Transparency, the lack of clear communication about the NRCs chosen regulatory criteria led petitioners to request that NRC Staff and General Counsel select and approve applicable regulations in a transparent manner, rather than allowing the licensee to dictate them independently. The process needs to be objective, with oversight, rather then subjective and no indication of NRC involvement, or approval.
NRC Staff, Finally, Explains it Position on Rule Selection Notably, in NRC Staffs response to petitioners public hearing submission, for the first time, revealed, to the public, that operating plant regulations from Part 50 were being used. Why was the NRC Staff unable to communicate its position on regulations, much earlier, such as before the opportunity for requesting a public hearing was closed? Or, as an alternate question for the ASLB to consider, perhaps NRC Staff never had a position and developed its position, just now, for its current
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of 17 45 response to petitioners contentions? (Petitioners cannot help but wonder how Holtec may have known of NRC Staffs position, while the same was withheld from the public.) See page 18 of NRC Staff Response, Staff Consideration of Licensing and Regulatory Requests Related to the Potential Restart of Palisade.
However, even with this belated clarification, petitioners contend NRC Staff has not adequately explained or defended its selection of this framework, as required by the now in progress adjudication process, and petitioners request further ASLB review to ensure the appropriateness and safety of this decision. Petitioners have outlined questions needing NRC staff defense to the ASLB and petitioners analysis of NRC Staff position in section Petitioners' Challenge to Key NRC Statements in the Context of Palisades' Decommissioning and §50.82 Certifications of this rebuttal. In the same section following, petitioners offer an alternate analysis for ASLB consideration.
The presence of redacted regulatory information intensifies this transparency issue.
As established in Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-00-3, 51 NRC 45, 50-51 (2000), when critical information is redacted, the responsibility to defend the relevance and necessity of such redactions lies with
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of 18 45 the licensee, not the petitioner. In this case, given Holtecs redactions, NRC Staff, in its defense of Holtecs proposed regulatory framework, had a duty in their response to clarify whether the withheld information affected the regulatory adequacy of the proposed restart framework. Without such clarification, petitioners remain uncertain as to whether the redacted material influences the regulatory sufficiency of Holtecs amendment requests.
For further details on the ripeness argument and the need for a clearly defined regulatory framework, please refer to the full petition, which comprehensively addresses the implications of the Ripeness Doctrine in regulatory review.
Petitioners' Challenge to Key NRC Statements in the Context of Palisades' Decommissioning and §50.82 Certifications The outcome of this case hinges on the ASLB panels evaluation of two foundational statements made by NRC Staff in their response. These statements are central to the NRCs argument that Palisades remains eligible for reauthorization under 10 CFR Part 50 as an operational plant, using its 1969 licensing basis, despite the petitioners position that the current Part 50 framework lacks specific
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of 19 45 rules applicable to Palisades after its submission of § 50.82 decommissioning certifications. The NRC Staffs defense, and the ASLBs assessment of these statements, will critically determine the viability of each sides position. Petitioners respectfully request that the ASLB conduct a rigorous and thorough evaluation of the NRCs defense of these statements.
ASLB acceptance of the NRCs defense would likely weaken the petitioners case, supporting the NRC Staffs stance that Holtec can proceed with restart activities and License Amendment submissions under Part 50 operating plant regulations using its 1969 licensing basis.
Conversely, if the ASLB finds the defense of these statements unsubstantiated in light of Palisades unique decommissioned status, it would significantly undermine the NRCs rationale for reauthorization under its proposed framework and restoration of the 1969 licensing basis. This outcome would underscore petitioners contention that, or plants in the decommissioning status, selecting the best and applicable rules and processes from the existing regulatory framework is inherently subjective and requires formal NRC Staff evaluation and approval before they can be applied to restart activities and License Amendment reviews.
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of 20 45 As outlined in the full petition, lacking objective selection of rules, for example for operating plants or plants in construction, rules must be selected, approved and explained, all in the publics health and safety interest.not in the interest to be creative and find what is not complicated.
For the sake of hearing efficiency, petitioners urge the ASLB to address this fundamental question first. All other argument flow from this decision.
In this petition, we have not rebutted every argument presented by NRC Staff, as their case ultimately rests on one critical point: the NRC Staff must substantiate its claims with specific, context-sensitive evidence that considers Palisades decommissioning status, and the unique risks associated with reactivating a facility originally licensed under pre-GDC standards. Petitioners call upon NRC Staff to fully defend its positions, and the ASLB to critically evaluate NRC Staff defense and petitioners alternate evaluations.
Petitioners' Experience and Industry Perspective Petitioners Perspective and Informing The ASLB Evaluation:
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of 21 45 Petitioners offer a practical, experience-based perspective, from Alan Blind, that, while not legal evidence, should inform the ASLB review. At the heart of our petition is the concern over how NRC Staff interprets and applies its mission. NRC Staff, as explained in its response, has provided a defense of interpretations of NRC regulations that support Holtecs positions, yet these interpretations appear to stretch the intended use of regulatory language. This brings to mind the words of Zack Pate, former CEO of the Institute of Nuclear Power Operations (INPO), who guided the industry to strive for excellence rather than mere regulatory compliance.
In 1989, he said:
The Nuclear Professional is thoroughly imbued with a great respect and sense of responsibility for the reactor core - for reactor safety - and all his decisions and actions take this unique and grave responsibility into account.
Drawing on decades of experience in the nuclear industrywhere precise adherence to regulatory language is paramount and self-serving interpretations are not acceptablethe petitioners representative finds NRC Staffs statements about the applicability of the operating license and General Design Criteria (GDC) unconvincing, demanding robust legal justification.
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of 22 45 The idea that a decommissioning plant undergoing disassembly, for up to sixty years, could retain its original, unaltered licensing basis and be eligible for reauthorization under Part 50 operating status is counterintuitive. For a facility in decommissioning, there must be a reasonable beginning and end limit to the extent of grandfathering to the original licensing basis. This seems reasonable to prevent the perpetuation of outdated safety standards. Entering decommissioning should logically signal the point at which the original licensing basis ceases to apply without comprehensive re-evaluation under appropriate new rules or existing regulatory framework, selected, and approved by NRC Staff.
Furthermore, NRC Staffs assertion that addressing GDC considerations after the submission of § 50.82 certifications is not practical conflicts with the imperative of public health and safety. If you owned a home built before there were local building codes, but now request a building permit to add a new bathroom, the building inspector will expect the new work to built to the existing codes, with a gap analysis of the other aspects of the home, that as a result, also need updating.
This should be the same for a nuclear power plant. A thorough gap analysis informed by current GDC and SRP, should be conducted as part of renewing the design basis, particularly in light of the 1985 NUREG-0820, which required
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of 23 45 alternate justifications for safety standards. Prioritizing practicality over public health and safety is indefensible. Given that these arguments are not founded on legal precedent, petitioners call on NRC Staff to provide a legally sound defense for ASLB consideration.
Legal Precedent Supporting Petitioners Request For Staff Defense and ASLB Review of NRC Staff Statements Unlike NRC Staff, petitioners lack comparable regulatory resources and expertise.
Following principles established in Northeast Nuclear Energy Company, 53 NRC 22 (2001), the NRC Staff bears the burden of substantiating these key assertions with clear and contextually relevant evidence, especially for a facility that has submitted § 50.82 certifications and begun decommissioning. Courts have consistently affirmed that the burden of persuasion lies with the licensee, not the petitioner, whose role is to present factual issues rather than vague allegations (Northeast Nuclear, 53 NRC at 27). Thus, the ASLB should require NRC Staff to provide a detailed and contextually relevant defense specific to Palisades; without such substantiation, the petitioners case remains incomplete.
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of 24 45 Case law, such as York Comm. for a Safe Envt. v. NRC, 527 F.2d 812, 815 n.12 (D.C. Cir. 1975), recognizes that this burden may be inappropriate when relevant information is controlled by the licensee or NRC Staff but unavailable to petitioners. Therefore, the ASLB should require NRC Staff to provide a comprehensive, substantiated defense of its statements, particularly given petitioners limited access to essential regulatory and operational information concerning Palisades.
Petitioner Analysis of NRC Staff Statements
=========== NRC Statement One=============
Staff Statement One: Claim on the Continuation of Operating License in Decommissioning Status NRC Staff Response, Page 19:
"First, a facility operating license continues in effect for reactors in decommissioning because entering the decommissioning process involves a change in license authority and not a change to the form of the license itself. Specifically, C.F.R. § 50.82(a)(2) provides that upon docketing the § 50.82(a)(1) certifications,
'the CFR part license no longer authorizes operation of the reactor or
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of 25 45 emplacement or retention of fuel into the reactor vessel.' In other words, the authority to operate is gone but the same Part license remains. The continuation of the Part license is made explicit by 10 C.F.R. § 50.51(b), which states, 'Each license for a facility that has permanently ceased operations, continues in effect beyond the expiration date to authorize ownership and possession of the production or utilization facility, until the Commission notifies the licensee in writing that the license is terminated. Thus, the Palisades license remains a renewed Part 50 facility operating license during the decommissioning process."
Evaluation and Expanded Analysis of § 50.51(b) until the Commission notifies the licensee in writing that the license is terminated The NRC Staffs position heavily relies on § 50.51(b), emphasizing that the operating license remains in effect beyond the expiration date to authorize ownership and possession until the Commission issues a termination notice.
Petitioners raise key questions about the phrase, until the Commission issues a termination notice, and highlight that the NRC Staffs application of this provision lacks sufficient defense as to its intended meaning. Therefore, petitioners
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of 26 45 request that the ASLB review and evaluate the implications of NRC Staffs use of
§ 50.51(b).
Has the NRC Provided Written Notice? Petitioners seek defense on whether the NRC has provided the referenced written termination notice.
The absence of such notice requires explanation regarding its implications for Palisades status as an operable facility under its original license.
Purpose and Interpretation of § 50.51(b): Petitioners argue that the intent of § 50.51(b) must be defended within its original context. Was this provision designed to maintain an option for the resumption of operations and resumption of the original operating licensing basis or was it intended solely to authorize ownership and possession for decommissioning?
Criteria for Issuing or Withholding Notice: What are the standards for the NRC to issue or withhold the termination notice? The ASLB should evaluate a NRC defense on why such a notice may or may not have been issued and how this affects Palisades operational status.
Public Health and Safety Implications: Petitioners requests NRC staff defend and ASLB review whether the continued effect of the license under
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§ 50.51(b) requires adherence to current safety standards or merely preserves the original licensing basis, in its original form.
Defense of Applicability of Outdated Regulations: NRC Staff needs to defend how regulations from the original licensing period align with todays safety and operational standards. They need to explain whether using regulations from the plant's original licensing basis is consistent with current NRC policies and practices for ensuring public health and safety.
Legal Precedent for NRC Staff Defense and ASLB Review of Petitioners concerns Petitioners cite Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978), which affirms that petitioners need only present a basis sufficient for reasonable minds to inquire further. The NRC must provide thorough evidence for why this license status supports reauthorization, particularly concerning public safety.
Conclusion on NRC Staff Use of § 50.51(b)
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of 28 45 Petitioners request that the ASLB require NRC Staff to defend how § 50.51(b), and in particular it application of the words, until the Commission notifies the licensee in writing that the license is terminated, justifies its position that Palisades can resume operations under its original licensing basis. The ASLB should determine whether the NRC Staffs interpretation aligns with the safety obligations mandated by regulations and whether the absence of written notice has significant implications.
Petitioners Rebuttal: Alternate Analysis of NRC Staff Argument on Use of § 50.51(b) until the Commission notifies the licensee in writing that the license is terminated Introduction Summary: Petitioners conclude that NRC Staff's misuse of the NRC termination notice in 10 CFR 50.82(b) to support a return to service under operating regulations is a misapplication or an attempt to exploit a loophole. The intended purpose of 10 CFR 50.82 is to ensure safe and complete decommissioning, with a NRC termination notice confirming that all site radiological conditions, as specified in the decommissioning plan, have been met.
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of 29 45 This NRC notice signifies the end of the license, not to maintain a sixty year option to permit return to operations.
NRC Staff Argument to Use Operating Regulations from the Existing Regulatory Framework:
In NRC Staffs response on page 18, Petitioners' Challenge to Key NRC Statements in the Context of Palisades' Decommissioning and § 50.82 Certifications, NRC Staff claim that the denial of a petition for rulemaking (PRM Denial) provides the Commission-established policy on the reauthorization of reactor operations for plants in decommissioning.
NRC Staff propose, starting on page 19, two elements to support its statement:
the Staff has concluded, generally, that a facility licensee in decommissioning may apply to use the license amendment, transfer, and exemption processes, as applicable, to seek approval for the actions necessary to authorize the restart of a reactor in decommissioning
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of 30 45 Element One argues, using language from § 50.82(b), that the sentence until the Commission notifies the licensee in writing that the license is terminated serves as the basis for:
In other words, the authority to operate is gone but the same Part 50 license remains Petitioners Rebuttal: Analysis of NRC Staff Argument Petitioners analysis focuses on the interpretation of the sentence from § 50.82(b), until the Commission notifies the licensee in writing that the license is terminated, to determine its intended use and assess the corectness of NRC Staffs application in its response.
Petitioners sought an authoritative basis document for § 50.82(b) and identified a basis document provided by NRC Staff in their response. On page 18 of the NRC Staff response, which addressed petitioners arguments concerning Holtecs request for a Specific Exemption, NRC Staff cited ML17215A010, NRC-2015-0070, Regulatory Improvements for Power Reactors Transitioning to Decommissioning, as the relevant Regulatory Basis Document. In its replay,
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of 31 45 NRC Staff defended the use of NRC-2015-0070 as a legitimate vehicle for defense arguments of § 50.82, by stating:
Just because a rule has not been finalized does not mean that the proposed rule, or the regulatory documents used to support the proposed rule, are somehow incorrect.
Given that NRC Staff introduced NRC-2015-0070 as a valid reference for the basis of § 50.82, petitioners examined Appendix H, 1.1 Current Regulatory Framework for the Decommissioning Process, to understand the intended meaning of the phrase until the Commission notifies the licensee in writing that the license is terminated in § 50.82(b). The petitioners analysis, that follows, reveals an interpretation of the NRC termination notice that significantly differs from the NRC Staffs proposed usage to defend the Holtec proposed interpretation.
Summary, Petitioners Argument:
NRC Staff argue that a power plant undergoing decommissioning may be returned to operations under its original licensing basis, as established prior to the submission of 10 CFR 50.82 certifications, because the license technically remains in effect until an NRC termination notice is issued.
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of 32 45 However, petitioners contend that this interpretation misrepresents the intended use and significance of the termination notice. Petitioners argue that the purpose of the NRC termination notice is not to provide a regulatory loophole for proving a sixty year option for resuming operations, but rather to signify the conclusion of a comprehensive decommissioning process that ensures the facility meets stringent safety and radiological standards.
Intended Purpose of the Termination Notice:
Petitioners contend, the phrase until the Commission notifies the licensee in writing that the license is terminated refers to the final regulatory step in the decommissioning process, signaling that all decommissioning activities have been completed in accordance with established safety and environmental requirements.
The termination notice is meant to confirm that the licensee has met all the criteria outlined in 10 CFR 50.82 and other applicable regulations, including adherence to the radiological release criteria of 10 CFR Part 20, Subpart E.
Regulatory Context and Confirmatory Actions: As detailed in the NRCs basis document, the decommissioning process requires submission of a License Termination Plan (LTP), approval by the NRC, and subsequent verification through
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of 33 45 a final radiation survey and a confirmatory survey by the NRC. These confirmatory steps ensure that any remaining residual radioactivity at the site satisfies the necessary release criteria. Only after these steps are complete does the NRC issue a termination notice, formally ending the licensing basis and authorizing the release of the site from regulatory control.
Misinterpretation of the Notice: The NRC Staffs argument that the termination notice allows for the potential return to operations ignores the critical regulatory purpose of the notice. The intent of the termination notice is not to maintain the viability of an operating license during decommissioning but to mark the endpoint of regulatory oversight in the decommissioning process. It signifies that all safety and environmental criteria have been satisfied, effectively completing the process for safe license terminationnot maintaining or reviving operational authority.
Framework Supporting Petitioners Interpretation: The current decommissioning framework outlined in 10 CFR 50.82 emphasizes that, after the licensee submits the final radiation survey, the NRC conducts a confirmatory survey to ensure compliance with 10 CFR Part 20, Subpart E. The comprehensive oversight provided by the Post-Shutdown Decommissioning Activities Report
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of 34 45 (PSDAR), the NRC's review and approval of the LTP, and the NRC's verification process collectively demonstrate that the termination notice is intended as an assurance that decommissioning is complete and that the site meets release standards.
Ensuring Proper Use of Regulatory Authority: Allowing the interpretation that a plant in decommissioning could be returned to operational status before a termination notice is issued undermines the structured purpose of the decommissioning process. This interpretation would potentially bypass crucial safety reviews and public participation outlined in the 50.82 process, compromising the regulatory integrity designed to protect public health and safety.
==
Conclusion:==
The termination notice should be understood as the final affirmation by the NRC that a decommissioning process has met all regulatory and safety requirements. It is not a regulatory mechanism to extend operational flexibility or to revert a decommissioned facility to its previous operational status. Rather, it is a safeguard that ensures the facility is free from significant residual radioactivity and that the license can be terminated in alignment with public safety standards. The
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of 35 45 petitioners argue that interpreting the termination notice otherwise distorts its intended function within the NRCs decommissioning framework.
Illustration Diagram:
From page H9 of NRC-2015-0070, :Regulatory Improvements for Power Reactors Transitioning to Decommissioning, Regulatory Basis Document.
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=========== NRC Statement Two=============
Claim on the Applicability of General Design Criteria (GDC) and Standard Review Plan (SRP)
NRC Staff Statement:
"At the time of promulgation of Appendix A to CFR Part 50, the Commission stressed that the GDC were not new requirements but clarified existing licensing practices. Compliance with the GDC was determined on a plant-specific basis for pre-GDC licensed plants. Current processes ensure safety without the need for retroactive GDC application. Backfitting would provide little safety benefit and require extensive resources. Palisades is not subject to the GDC, as its construction permit was issued in 1967. The SRP is also non-binding guidance."
Petitioners Response
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of 37 45 Petitioners contend that the NRCs position overlooks the unique context of transitioning Palisades from decommissioning back to operation. While Palisades was originally licensed under pre-GDC conditions, its potential reauthorization requires consideration of modern safety standards, including GDC and SRP. The assertion that Palisades remains exempt fails to address current safety risks associated with reactivation.
Petitioners call on the ASLB to require the NRC to explain why GDC and SRP should remain inapplicable given todays safety expectations and the unique context of restarting a decommissioned plant.
Redacted Information and Public Transparency Introduction Petitioners have expressed concerns regarding proprietary information concerning its regulatory methods and use of §50.59 to restore the updated
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of 38 45 FSAR, redacted from a Holtec submission to the NRC, arguing that such redactions hinder public transparency and prevent a comprehensive understanding of the regulatory and safety implications of the proposed restart at Palisades. These redactions specifically cover critical assumptions and regulatory interpretations that are foundational to Holtecs strategy to restart operations and use of § 50.59 without undergoing the complete licensing amendments usually required. Petitioners contend that such redactions obstruct meaningful public oversight and, by extension, undermine public trust in the NRC's review process.
NRC Staff's Response to Transparency Concerns In their response to the petition, NRC Staff referenced the "Amendments Notice," which provided petitioners with a specific opportunity to request access to proprietary or sensitive unclassified information. NRC Staff noted that the document containing the redactions was available before the Notices publication, with an access request deadline that expired in August. By suggesting that petitioners missed this procedural window, the NRC implies that the burden was on petitioners to navigate the administrative steps required for access, even though the redacted information remains crucial for public assessment of Holtecs compliance and safety assurances.
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of 39 45 However, petitioners argue that NRC procedural windows for requesting proprietary access do not fully satisfy the NRCs broader mandate for transparency and public safety. In cases like this, where withheld information directly impacts regulatory compliance and public health, petitioners contend that ongoing access, rather than limited windows, should be available to facilitate informed public oversight. If access is restricted, the licensee and the NRC must then defend their positions in arguments against public petitioners, considering the context of the redacted information.
Burden of Defending Redactions The burden of defending the necessity of redactions lies primarily with the licenseein this case, Holtecand, by extension, the NRC if it chooses to support these redactions. Citing Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-00-3, 51 NRC 45, 50-51 (2000),
petitioners emphasize that the licensee must demonstrate that the redacted material genuinely meets NRCs proprietary or confidentiality standards without compromising transparency related to public health and safety. This standard requires Holtec and the NRC to substantiate why the withheld information should remain confidential, especially when it involves core safety and compliance issues.
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of 40 45 Holtecs selective disclosure practices, backed by NRCs procedural deadlines, place the public at a disadvantage. The proprietary information in question, particularly surrounding Holtecs key three assumptions and interpretations used under § 50.59 to adjust the Final Safety Analysis Report (FSAR), directly influences the publics ability to understand and evaluate whether the proposed restart aligns with NRC requirements and safety benchmarks. Petitioners argue that the NRC should have ensured greater transparency and allowed public access to this information, aligning with its regulatory mission.
Public Safety vs. Proprietary Claims Petitioners contend that in matters of nuclear plant reauthorization, where the safety of surrounding communities is directly at stake, transparency should take precedence over proprietary claims. While NRC Staff maintains that proprietary protections justify withholding certain details, this approach conflicts with the NRCs stated commitment to public involvement and transparency in regulatory proceedings. Petitioners argue that regardless of Holtecs proprietary assertions, information critical to public safety should be available for public scrutiny. Restricted access to this information undermines public trust in NRCs ability to balance corporate confidentiality with its responsibility to protect health and safety.
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of 41 45 Conclusion Petitioners respectfully request that the ASLB compel the NRC and Holtec to provide greater transparency on the redacted information to enable a fully informed public evaluation of the Palisades restart proposal. Given the burden established in cases like Northeast Nuclear, both Holtec and NRC bear the responsibility to justify these redactions and address petitioners' contentions thoroughly, especially when they pertain to fundamental safety assumptions. Petitioners believe that public health and safety interests must outweigh proprietary claims and urge the ASLB to uphold the NRCs mandate of transparency and public participation in nuclear oversight.
Conflict of Interest in NRCs Dual Role as Regulator and Advocate in Palisades Restart Proceedings The NRCs response to the Atomic Safety and Licensing Board (ASLB) in this proceeding was prepared and represented by the Office of the General Counsel (OGC). This procedural choice raises an inherent conflict of interest, as one of the contentions in this case argues that NRC General Counsel review and approval are necessary for the regulatory
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of 42 45 interpretations used by both Holtec and NRC Staff. When the office responsible for providing regulatory oversight and unbiased legal guidance is also tasked with defending the positions of NRC Staff, the impartiality and transparency fundamental to regulatory proceedings are compromised.
1.
Role of the General Counsel as Independent Reviewer The General Counsels primary responsibility within the NRC is to ensure that interpretations of regulations are legally sound, objectively consistent with the Atomic Energy Act, and protective of public health and safety. However, in this case, the OGC is placed in a position where it must simultaneously validate the interpretations and procedural shortcuts adopted by NRC Staff while defending these interpretations against contentions that argue for stricter adherence to regulatory standards. This dual role undermines the impartiality required of the OGC, as it places the office in the position of defending the actions it is also expected to independently review.
2.
Undermining Transparency and Public Confidence This conflict of interest compromises transparency and erodes public confidence in the regulatory process. The public must have
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of 43 45 confidence that the General Counsel, acting as an independent authority, has scrutinized Holtecs and NRC Staffs regulatory interpretations. When the OGC serves as both arbiter and advocate, it becomes difficult to trust that regulatory interpretations have been evaluated objectively and without undue influence. This lack of separation between roles may lead to biased determinations, undermining the NRCs mission to protect public health and safety.
3.
Request for ASLB Consideration I am not a lawyer and therefore cannot specify the legal remedy to address this conflict of interest. However, I respectfully ask the ASLB panel to evaluate and consider the Office of General Counsels dual role in this proceeding. An independent assessment is necessary to determine whether the OGCs involvement as both reviewer and advocate may influence the fairness of the proceedings and impact the impartial application of regulatory standards.
Conclusion This conflict of interest within the NRCs handling of the Palisades restart proposal is problematic and could erode confidence in the decision-making
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of 44 45 process. An evaluation of the OGCs role by the ASLB panel is essential to ensuring that regulatory interpretations receive the independent review necessary to maintain the NRCs credibility and meet standards of impartiality in this critical regulatory matter.
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of 45 45 Declaration of Alan Blind