ML24343A001

Supplemental in Addition to Argument Against NRC Staffs Misuse of 50.82(b)

ML24343A001
Person / Time
Site:	Palisades
Issue date:	12/08/2024
From:	Blind A - No Known Affiliation
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57215, 50-255-LA-3, ASLBP24-986-01-LA-BD01
Download: ML24343A001 (0)

Text

Submitted Date: 12/8/2024 50-255-LA-3 of 1

22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of; Holtec Decommissioning International, LLC, and Holtec Palisades, LLC (Docket No. 50-255-LA-3)

Supplement To Petitioners Rebuttal To NRC Staffs: APPLICANTS ANSWER OPPOSING JOINT PETITIONERS PETITION FOR HEARING Prepared By: Alan Blind, Joint Petitioners Consolidated Representative

Subject:

Supplemental in Addition To Argument Against NRC Staffs Misuse of § 50.82(b)

Procedural Context and Justification for Allowing Supplemental Filing; No Procedural Impact and Case Law As outlined in the ASLB Memorandum and Order dated November 14, 2024, the scheduling of oral arguments in this proceeding has been postponed pending resolution of an issue regarding Joint Petitioners'

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22 representation (ASLBP No. 24-986-01-LA-BD01). This order defers oral arguments originally considered for December 2024 until the representation issue has been addressed. Consequently, the delay in oral argument scheduling provides procedural flexibility for the Board to consider this supplemental filing without impacting the efficiency or timeline of the hearing process.

Given this postponement, accepting this supplemental brief to Joint Petitioners rebuttal to NRC Staffs reply, to enhance the original arguments presented will not interfere with the conduct of the proceedings. Instead, it will provide the ASLB Panel with a more comprehensive and substantiated basis for evaluating the issues at hand. Coupled with the legal precedents cited later in this submittal, this supplemental filing is both procedurally efficient, and integral to completeness of the full record.

Summary of This Supplemental Submittal Content and Arguments This supplemental strengthens the Joint Petitioners original rebuttal by providing additional analysis of the NRC Staffs interpretation of § 50.82(b) and its misapplication of the NRC Termination of License Certification. The brief demonstrates why this interpretation is fundamentally flawed by addressing the following key points:

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22 Original Rebuttal to NRC Staff Response Argument Recap The original rebuttal demonstrated that the § 50.82(b) termination notice serves as a regulatory safeguard to confirm the completion of decommissioning, ensuring compliance with modern safety and environmental standards. It was never intended to indefinitely preserve operational authority or justify reapplying outdated licensing standards. The detailed argument is contained in Petitioners rebuttal to NRC Staffs reply.

Additional, Supplemental, Practical, and Common-Sense Argument and Rulemaking History 1.

Current Practices at Decommissioning Plants:

From the NRC website (see at the end of this submission), none of the 23 reactors currently in decommissioning or license termination review have received termination notices. Under the NRC Staffs interpretation, as they propose in this matter, these facilities could all theoretically apply to return to operation under their original licensing basis at any point in dismantling the physical plant. This scenario is inconsistent with regulatory intent and impractical for ensuring compliance with modern safety standards.

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22 2.

Structured Purpose of § 50.82(b) Termination of License:

The regulation emphasizes compliance with modern safety and radiological standards as a prerequisite for license termination. It is not intended to perpetuate outdated frameworks or provide a loophole for resuming operations without adhering to contemporary safety protocols.

3.

Public Safety Risks:

Allowing outdated design bases to be revived by taking § 50.82(b) out of context bypasses essential safety reviews and public engagement, undermining regulatory clarity and transparency. This misinterpretation poses unnecessary risks to public health and safety.

4.

Historical Context of Decommissioning Rulemaking from SECY-24-0073:

The authoritative rulemaking history outlined in SECY-24-0073, Site-Specific Considerations for Review of Requests to Complete Power Reactor Decommissioning Beyond 60 Years from Permanent Cessation of Operations, demonstrates that the decommissioning process is rooted in practical considerations like dose reduction, institutional control, and cost-effectiveness. Nowhere in this history is there any provision or intent to preserve an original licensing basis

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22 indefinitely and allow plants to restart. The 60-year decommissioning timeframe is tied to safety and regulatory compliance, not operational flexibility, further undermining the NRC Staffs interpretation.

Requested ASLB Action This brief urges the ASLB to reject the NRC Staffs interpretation of § 50.82(b), Termination of License, as presented in its reply to Joint Petitioners. Instead, the Board should affirm the regulations intended purpose as a safeguard for public safety and regulatory compliance, consistent with its structured purpose and historical rulemaking intenent.

Joint Petitioners Public Hearing Intentions Joint Petitioners have emphasized in multiple submittals that our intent is not to oppose the restart of Palisades or other plants currently in decommissioning. Rather, our focus is to address the clarity provided in NRC Staffs explanation and defense, of its arguments regarding the establishment of NRC Commission policy in reference to the Berka PRM.

Specifically, NRC Staff cites its denial of PRM-50-117 (ML20205L309) on the grounds that the existing regulatory framework may be used on a case-by-case basis to address the issue raised in the petition, asserting

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22 this as the basis for NRC Commission policy (without addressing the complete body of work in the PRM).

The focus of our petition contentions are to question and scrutinize how, assuming the Berka PRM interpretation is upheld, the NRC Staff selects and defends the case-by-case application of regulatory requirements that apply, including those referenced in NRC Staffs reply, 10 C.F.R. § 50.59 for final safety analysis reports (FSARs) and 10 C.F.R. § 50.54(a) for quality assurance (QA) plans.

This paper specifically critiques NRC Staffs broad and unsupported use of

§ 50.82(b), Termination of License, as a basis for selecting applicable regulations. For example, Holtecs proposed use of § 50.59 to reuse FSAR Revision 35 and its pre-GDC design basis. Joint Petitioners argue that this approach is neither acceptable nor appropriate under NRCs established regulatory requirements.

Original Argument Recap: Misuse of § 50.82(b) NRC Staff Use of NRC Termination of License The NRC Staff argued in it reply, that Palisades operating license remains in effect during decommissioning under § 50.82(b), justifying the reapplication of the plants original licensing basis for a potential restart.

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22 NRC STAFF ANSWER TO HEARING REQUEST FROM INDIVIDUAL PETITIONERS IN PALISADES RESTART AMENDMENT PROCEEDING, Page 15:

The continuation of the Part 50 license is made explicit by 10C.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.

AndThe NRC Staffs Interpretation, Which Petitioners argue against in our rebuttal and this supplement, As a consequence, the NRCs regulatory requirements for operating licenses continue to apply to Palisades absent an exemption or an exclusion in the NRCs regulations for plants in decommissioning. Regulatory requirements that still apply include those in C.F.R. § 50.59 for final safety analysis reports

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22 (FSARs) and in C.F.R. § 50.54 (a) for quality assurance (QA) plans.

• • Alan Blind Note: From above, §50.51(b) points to §50.82(b),

Application for termination of license is to be made pursuant to § 50.82 Joint Petitioners in its rebuttal to NRC Staffs reply, previously demonstrated that this interpretation:

Referencing ML17215A010, Basis Document, Regulatory Improvements for Power Reactors Transitioning to Decommissioning, Appendix H misrepresents the intent of § 50.82(b), which is designed to confirm the completion of decommissioning activitiesnot to preserve operational authority indefinitely.

Undermines the decommissioning process, which requires submission and approval of a License Termination Plan (LTP),

completion of radiation surveys, and confirmatory actions by the NRC to verify compliance with radiological and safety standards.

Bypasses public safety considerations by allowing outdated operational frameworks to remain viable.

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22 The original rebuttal emphasized that the termination notice is the final regulatory step in ensuring that all safety and environmental standards are met before releasing a facility from NRC oversight.

Supplemental Submission: Additional, Common Sense, Argument:

Expanding on the Misuse of § 50.82(b) and SECY-24-0073 Explanation of Decommissioning Rulemaking

1. Inconsistent with Current Decommissioning Practices The NRC website, Backgrounder on Decommissioning Nuclear Power Plants (see graphic attached) and, Locations of Power Reactor Sites Undergoing Decommissioning, and informed by SECY-24-0073, Site-Specific Considerations for Review of Requests to Complete Power Reactor Decommissioning Beyond 60 Years from Permanent Cessation of Operations, found 23 power reactors, give or take, currently in decommissioning (16 in DECON status and 7 in SAFSTOR status and two with licenses terminated and two with license terminations in progress ). This leaves 21 power reactors in decommissioning, but not yet with license terminated, including plants currently reduced to a greenfield,

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of 10 22 meaning all structures have been removed, such as Zion and Big Rock Point. If the NRC Staffs interpretation is accepted:

Any of these 21 plants could theoretically apply to NRC to return to operation under their original licensing bases, a scenario that defies practical and regulatory logic.

The structured purpose of decommissioning, which is to ensure compliance with modern safety and radiological standards before termination, would be compromised.

2. Misaligned with the Structured Purpose of § 50.82(b)

This supplemental argument reinforces that § 50.82(b) was not designed to extend operational authority for up to 60 years, but to:

Confirm the completion of decommissioning activities as outlined in a License Termination Plan (LTP).

Verify that radiological cleanup meets the standards of 10 CFR Part 20, Subpart E.

Serve as a regulatory marker to conclude NRC oversight of the site not as a mechanism to indefinitely preserve outdated design bases.

3. Risks to Public Safety

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of 11 22 The NRC Staffs interpretation allows outdated licensing frameworks to bypass modern safety reviews, posing risks to public health and safety.

This interpretation:

Undermines regulatory integrity by prioritizing operational flexibility over adherence to updated safety standards.

Neglects public participation and transparency, eroding trust in the NRCs oversight.

History of Decommissioning Rules, From SECY-24-0073, Site-Specific Considerations for Review of Requests to Complete Power Reactor Decommissioning Beyond 60 Years from Permanent Cessation of Operations The "Background" section of SECY-24-0073 provides a current, clear, and authoritative history of NRC rulemaking regarding decommissioning.

Notably, this history makes no mention of preserving the option to again use the original licensing basis during any point in decommissioning for making a NRC application to return to service, contrary to the NRC Staffs claim in its reply to Joint Petitioners. This omission further supports the Joint Petitioners argument that the NRC Staffs interpretation is inconsistent with the intent and history of the decommissioning rule

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of 12 22 framework. The NRC General Counsel reviewed SECY 24-0073 in whole, including the year 2024 referenced history of rulemaking in the papers Background, and raised no objections. Yet now, the same General Counsel for NRC Staff appears to be introducing a new and unsupported interpretations of the purpose of § 50.82(b), in specific, the NRC Termination of License context and purpose to include an option to return to operations using the original design basis.

From SECY 24-0073: Decommissioning Rulemaking

Background:

The Atomic Energy Act of 1954, as amended, does not require a reactor licensee to complete decommissioning within a certain timeframe after permanently shutting down. However, in 1988, the Commission issued a rule, General Requirements for Decommissioning Nuclear Facilities (53 FR 24018; July 14, 1988),

establishing a 60-year period for an electric utility licensee to complete decommissioning. The 60-year timeframe was based on:

The time estimated to significantly reduce potential dose to workers, The ability to effectively maintain institutional controls, Allowing approximately 10 years for dismantlement and decontamination,

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of 13 22 And considering the overall cost of decommissioning.

In 1996, a revision to this rule, Decommissioning of Nuclear Power Reactors (61 FR 39278, July 29, 1996), clarified that for power reactor licensees, decommissioning must be completed within 60 years of the permanent cessation of operations, while for non-power reactor licensees, decommissioning must be completed "without significant delay."

The staff used the 60-year decommissioning schedule in the November 2017 regulatory basis for the Regulatory Improvements for Power Reactors Transitioning to Decommissioning rulemaking (ML17215A010). In the proposed rule (87 FR 12254, March 3, 2022) and SECY-24-0011, Final Rule: Regulatory Improvements for Production and Utilization Facilities Transitioning to Decommissioning (3150-AJ59; NRC-2015-0070) (ML23258A200), the staff did not recommend any changes related to the 60-year decommissioning requirement.

Currently, there are nine units in SAFSTOR at multi-unit sites, four of which are approaching the timeframe when they will need to begin active decommissioning (beyond the initial decommissioning

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of 14 22 performed to prepare the units for SAFSTOR) to complete the process within 60 years.

And..

The Office of the General Counsel reviewed this package and has no legal objection. The Office of Nuclear Reactor Regulation, the Office of Nuclear Security and Incident Response, the Office of the Chief Financial Officer, and the regional offices have reviewed this paper for awareness and had no comments.

And..

Mirela Gavrilas, PhD Executive Director for Operations Analysis of Rulemaking History Supporting Joint Petitioners Argument This historical summary of decommissioning rulemaking, demonstrates that the 60-year decommissioning timeframe is tied to practical and safety-related considerations such as dose reduction, and institutional control.

Nowhere in this history is there any indication that the original licensing

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of 15 22 basis is preserved in order for a licensee to return to full power operations, using its original design basis, indefinitely during decommissioning.

The absence of any such provision as described in the historical description of rulemaking, in particular the intended context of §50.82(b),

Termination of License, as described in SECY-24-0073 undermines the NRC Staffs position that § 50.82(b) permits the retention and reuse of the original licensing basis during decommissioning. Instead, this history affirms that the intent of NRC decommissioning rules is to prioritize timely, safe, and compliant dismantlement, not to maintain a 60 year option to rebuild the plant and regain operational authority using outdated safety standards.

By referencing this history, Joint Petitioners highlight a fundamental inconsistency in the current NRC Staffs argument in it reply to Joint Petitioners and reaffirm that § 50.82(b) was not intended as a regulatory mechanism to allow indefinite preservation of an original licensing basis for potential future use.

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of 16 22 SECY 24-0073 as a Template for Joint Petitioners Requested Action Joint Petitioners first requested action from our petition states:

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

This action request directly addresses NRC Staffs use of the Berka PRM denial as a policy foundation and it use of § 50.82(b), Termination of License to select applicable Part 50 regulations, for example, allow use of the original design basis using § 50.59. Specifically, NRC Staff cites its denial of PRM-50-117 (ML20205L309) on the grounds that the existing regulatory framework may be used on a case-by-case basis to address the issue raised in the petition.

SECY 24-0073, referenced earlier in this submission to show the history of decommissioning rulemaking, provides an excellent template for

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of 17 22 addressing Joint Petitioners requested action. The purpose of SECY 24-0073 was to brief the Commission on the NRC EDO and Staffs explanation of the regulatory framework for allowing certain plants in decommissioning to exceed the 60-year timeline. Importantly, this paper was routed to the NRC General Counsel and other stakeholders to confirm whether they had any objections to its conclusions.

Joint Petitioners assert that this same process should be applied to confirm that NRC Staffs interpretation of the Berka PRM denial as Commission Policy is being correctly implemented. In addition to confirming policy consistency, the SECY process could also clarify how the "case-by-case" selection of applicable regulations and processes is to be performed by NRC Staff. This would ensure transparency and accountability in how the existing regulatory framework is applied to specific cases, particularly when addressing significant safety and regulatory issues.

By routing NRC Staffs use of the existing regulatory framework for approval by the NRC General Counsel and including guidance on "case-by-case" regulatory selection, as outlined in our petition, the same level of rigor and oversight demonstrated in SECY 24-0073 can ensure that interpretations align with the NRCs mandate to protect public health and

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of 18 22 safety. Such a process would bolster public confidence in NRC Staffs actions and ensure regulatory integrity Case Law Supporting the Acceptance of This Supplemental Brief Although this supplemental brief is filed after the deadline, relevant case law supports its acceptance due to its role in amplifying the original argument, and emphasizing the importance of public safety and procedural fairness.

1. Legitimate Amplification of Existing Arguments PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2): Amplifying existing contentions is permissible as long as no new issues are introduced.

Catawba Nuclear Station, Units 1 & 2: Supplemental arguments within the scope of original contentions are valid.

2. Procedural Fairness and Flexibility Louisiana Energy Services, L.P.: The NRCs procedural rules must allow flexibility to ensure fairness in addressing complex regulatory interpretations.

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of 19 22 Union of Concerned Scientists v. NRC: Procedural stringency should not impede the evaluation of critical safety concerns.

3. Addressing New Issues Introduced by NRC Staff FirstEnergy Nuclear Operating Company (Davis-Besse Nuclear Power Station, Unit 1): Petitioners may file supplemental arguments to address new legal interpretations raised in opposition responses.

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3): Fairness permits expanded arguments tied to original contentions.

4. Transparency and Public Safety Citizens Awareness Network, Inc. v. NRC: Transparency and public safety are foundational to NRC proceedings and justify accepting supplemental filings.

Vermont Yankee Nuclear Power Corp. v. NRDC: Petitioners need only present a basis for further inquiry, shifting the burden to NRC Staff to substantiate its interpretation.

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of 20 22 Submittal Supplemental: Conclusion The supplemental brief provides a practical, common sense, but critical expansion of the Joint Petitioners original rebuttal, demonstrating the flaws in the NRC Staffs interpretation of § 50.82(b) license termination, and its inconsistency with regulatory intent and safety principles. Legal precedents strongly support the acceptance of this filing to ensure fairness, transparency, and the proper evaluation of issues that directly impact public health and safety. The Joint Petitioners respectfully request that the ASLB accept this supplemental filing and affirm the intended purpose of § 50.82(b) license termination meaning and context, within the NRCs decommissioning framework.

Alan Blind, Joint Petitioners Consolidated Representative

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of 21 22 Backgrounder on Decommissioning Nuclear Power Plants https://www.nrc.gov/reading-rm/doc-collections/fact-sheets/

decommissioning.html

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of 22 22 Declaration of Alan Blind