ML24347A094
| ML24347A094 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 12/12/2024 |
| From: | Lom P NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57220, 50-255-LA-3, ASLBP 24-986-01-LA-BD01 | |
| Download: ML24347A094 (0) | |
Text
December 12, 2024 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 (Palisades Nuclear Plant)
Docket No. 50-255-LA-3 NRC STAFF ANSWER TO JOINT PETITIONERS BRIEF ON REPRESENTATION, CONSOLIDATION OF PETITIONS, AND STANDING OF CONSOLIDATED POINT OF CONTACT, ALAN BLIND INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1) and the licensing boards (Boards) Memorandum and Order (Order) dated November 14, 2024, the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) herein answers the brief prepared and filed by Alan Blind on his own behalf and on behalf of Jody Flynn, Tom Flynn, Bruce Davis, Karen Davis, Christian Moevs, Mary Huffman, Chuck Huffman, and Diane Ebert (collectively, Joint Petitioners)1 on November 21, 2024 (Brief).2 Alan Blind made the filing in response to a request in the Order for the Joint Petitioners to file a brief no later than December 5, 2024, discussing whether and how they intend to cure the apparent 1 In this Answer, Joint Petitioners refers to the eight individuals who originally signed the petition. Alan Blind, who now seeks to join the Joint Petitioners as a petitioner himself, is referenced separately.
2 The Staff is filing this Answer, in part, pursuant to 10 C.F.R. § 2.309(i)(1) because in the Brief, Alan Blind goes further than providing a plan for addressing the Joint Petitioners representation, as discussed in the Boards Order. The Brief also includes an embedded hearing request from Alan Blind that the Staff is answering in the instant filing.
issue with their representation.3 Subsequently, Alan Blind filed a supplement to the Brief (Brief Supplement) on December 2, 2024.
As explained below, in the Brief, Alan Blind and the Joint Petitioners address several issues related to representation. First, the Joint Petitioners establish their knowledge and support of the twelve supplements Alan Blind filed after the initial hearing request and the replies he filed in response to the answers to the hearing request, and the Joint Petitioners have effectively signed these filings under 10 C.F.R. § 2.304(d). As a result, those filings may now be considered by the Board under 10 C.F.R. § 2.309. Second, given that Alan Blind now seeks to intervene as a petitioner in this proceeding, the Brief contains a new, embedded hearing request from Alan Blind. While Alan Blind demonstrates standing, the hearing request is untimely and does not contain an admissible contention, and it therefore should be denied. Third, the Joint Petitioners and Alan Blinds presentations may be consolidated, and Alan Blind may be designated the Joint Petitioners single point of contact, in accordance with 10 C.F.R. §§ 2.316 and 2.319(c). Lastly, the Brief Supplement does not alter these conclusions.
BACKGROUND On August 7, 2024, the NRC published a Federal Register notice of opportunity to request a hearing regarding four license amendment requests (Amendments Notice) which, if granted along with other related requests, would enable restart of reactor operations at Palisades Nuclear Plant (Palisades).4 The Amendments Notice established an October 7, 2024, 3 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Concerning Oral Argument Scheduling and Joint Petitioners Representation), at 3 (Nov. 14, 2024)
(unpublished) (Order) (ML24319A119).
4 Holtec Decommissioning International, LLC, and Holtec Palisades, LLC; Palisades Nuclear Plant; Applications for Amendments to Renewed Facility Operating License Involving Proposed No Significant Hazards Considerations and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information, 89 Fed. Reg. 64,486 (Aug. 7, 2024) (Amendments Notice).
deadline for hearing requests.5 On September 9, 2024, Alan Blind filed a petition (Petition)6 regarding the first-submitted license amendment request, dated December 14, 2023 (Primary Amendment Request).7 Specifically, the Petition states, The subject of this public request for a hearing applies to ML23348A148 and ML24191A422, Request to Revise Operating License and Technical Specifications to Support Resumption of Power Operations.8 The referenced title and ADAMS accession numbers correspond to the entry in the Amendments Notice for the Primary Amendment Request.9 Although Alan Blind filed the Petition on behalf of the Joint Petitioners, who were named in the Petition, and the Joint Petitioners requested that Alan Blind serve as their single point of contact, the Petition did not identify Alan Blind as a petitioner. The Petition included a list of petitioners in Appendix A,10 and Alan Blind was not listed therein.11 Instead, the Petition included a statement that Alan Blind prepared it, although he is not an attorney.12 Also, the Petition included the statement, [Joint] Petitioners request that the single point of contact be Alan Blind.13 The Petition included declarations signed by each of the individual petitioners.14 5 Amendments Notice, 89 Fed. Reg. at 64,487.
6 Public Hearing Petition Regarding Palisades Nuclear Plant (Sept. 9, 2024) (Petition).
7 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, License Amendment Request to Revise Renewed Facility Operating License and Permanently Defueled Technical Specifications to Support Resumption of Power Operations (Dec. 14, 2023) (ADAMS Accession No. ML23348A148) (Primary Amendment Request).
8 Petition at 20.
9 Amendments Notice, 89 Fed. Reg. at 64,489.
10 Petition at 15.
11 Id. at 73-74.
12 Id. at 13.
13 Id. at 19.
14 Id. at 73-81.
Subsequently, Alan Blind made twelve additional filings (Blind Supplements),15 which included declarations asserting that Alan Blind was the Joint Petitioners representative. Unlike the Petition, the Blind Supplements were not signed by the Joint Petitioners.
Pursuant to the Boards order dated October 17, 2024,16 the Staff filed an answer to the Petition on November 4, 2024.17 The Staff noted that Alan Blind was ineligible to represent the Joint Petitioners in accordance with 10 C.F.R. § 2.314(b) because he was not a petitioner, an attorney representing the Joint Petitioners, or a representative of a partnership, corporation, or 15 The twelve supplements are Supplemental Filing to Strengthen Standing of Petitioners in NRC Docket No. 50-255-LA-3, dated September 19, 2024 but filed September 20, 2024 (Blind First Standing Supplement); Supplemental Submission to the Petition Regarding the Safety Impact of Steam Generator Tube Plugging at Palisades Nuclear Plant, dated September 19, 2024 but filed September 20, 2024 (Blind First Steam Generator Supplement); Supplemental Filing to Strengthen That Holtecs Proposed Use of
§ 50.59 is Within the Scope of the FRN For Requesting a Public Hearing, dated and filed September 22, 2024 (Blind First 50.59 Supplement); Part Two, Supplemental Submission to the Petition Regarding the Safety Impact of Steam Generator Tube Plugging at Palisades Nuclear Plant, dated and filed September 22, 2024 (Blind Second Steam Generator Supplement); Part Three, Supplemental Submission to the Petition Regarding the Safety Impact of Steam Generator Tube Plugging at Palisades Nuclear Plant: The Need for NRC to Review the Palisades Design Basis of SSCs to Next Approve Accident Safety Analysis and Evaluate Steam Generator Tube Plugging Limits, dated and filed September 22, 2024 (Blind Third Steam Generator Supplement); Supplemental Filing to Emphasize the Importance of Transparency in NRC and Holtecs Processes: The Need For a Public Hearing Docket No. 50-255; NRC-2024-0130, dated September 23, 2024 but filed September 24, 2024 (Blind Transparency Supplement); Supplemental, Part Two, Filing to Strengthen Standing of Petitioners in NRC Docket No. 50-255-LA-3, dated and filed September 25, 2024 (Blind Second Standing Supplement); Supplemental Filing to Strengthen That Holtecs Proposed Use of § 50.59 is Within the Scope of the FRN For Requesting a Public Hearing, dated September 26/27, 2024, but filed September 27, 2024 (Blind Second 50.59 Supplement); Third Supplemental Filing to Highlight the Critical Need to Use a FSAR Based on Current General Design Criteria, Unlike Holtec's Proposed Use of 50.59 to Build a FSAR: Before Analysis of the Significant Stress Corrosion Cracking (SCC) in Steam Generator Tubing Findings, dated October 2/3, 2024, but filed October 3, 2024 (Blind Third Steam Generator Supplement (Part 2)); Contention Five: Holtecs Exemption Request Fails to Meet Requirements For Acceptance Review, as per 10 CFR 50.12, Specific exemptions, dated and filed October 4, 2024 (Contention 5 Filing); Supplemental Filing: Further Basis for Contention Five, Holtecs Proposed Sequence, Without NRC approval, Predicate for Specific Exception Request NRC Staff Review, dated and filed October 5, 2024 (Contention 5 Supplement); Request to Add Correspondence to Docket No. 50-255-LA-3, dated October 19, 2024, but filed October 20, 2024 (Challenge to NRC Email). It is not clear whether the Challenge to NRC Email was filed as a motion or as a supplement to the Petition, but the Staff is treating it as a supplement.
16 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Amending Initial Prehearing Order) (Oct. 17, 2024) (unpublished) (ML24291A105).
17 NRC Staff Answer to Hearing Request From Individual Petitioners in Palisades Restart Amendment Proceeding (Nov. 4, 2024) (ML24309A276) (NRC Staff Answer).
unincorporated association of which he is a member or officer.18 As the Staff explained in its Answer, the fact that Alan Blind was not a petitioner, an attorney representing the Joint Petitioners, or a representative of a petitioning entity of which he was also a member or officer, raised issues concerning the Blind Supplements, which were not signed by the Joint Petitioners and were not, consequently, legally part of the Petition.19 The Staff also noted that Commission case law allows defective representation to be cured and that the Blind Supplements may be further considered under 10 C.F.R. § 2.309 if the Joint Petitioners appropriately addressed the matter.20 On November 14, 2024, the Board issued its Order requesting that the Joint Petitioners file a brief no later than December 5, 2024, discussing whether and how they intend to cure the apparent issue with their representation.21 In its Order, the Board also established a December 12, 2024, deadline for any responses to the Brief.22 On November 21, 2024, Alan Blind filed the Brief on behalf of the Joint Petitioners and himself as a new petitioner.23 He subsequently filed the Brief Supplement on December 2, 2024.24 18 NRC Staff Answer at 12.
19 Id. at 12-13.
20 Id. at 13. While the Joint Petitioners quote the Staff as stating that the Blind Supplements may be further considered under C.F.R. § 2.316[,] Brief at 12, that quotation is inaccurate. The Staffs Answer states that any further consideration of the Blind Supplements would be under 10 C.F.R. § 2.309. NRC Staff Answer at 13.
21 Order at 3.
22 Id.
23 Joint Petitioners Brief on Representation, Consolidation of Petitions, and Standing of Our Appointed Consolidated Point of Contact, Alan Blind (Nov. 21, 2024) (Brief).
24 Supplement Filing, Harm Linkage Explanation: Joint Petitioners Brief on Representation, Consolidation of Petitions, and Standing of Our Appointed Consolidated Point of Contact, Alan Blind (Dec. 2, 2024)
(Brief Supplement).
DISCUSSION The NRC Staff agrees that in their Brief, Alan Blind and the Joint Petitioners effectively cure the defects in the Joint Petitioners representation. Further, although Alan Blinds hearing request embedded in the Brief must be denied because it is untimely and lacks an admissible contention, the NRC Staff agrees that the Board may consolidate the respective hearing requests and Alan Blind may serve as the representative and single point of contact for the Joint Petitioners. As explained further below, the Joint Petitioners demonstrate their knowledge and support of the Blind Supplements and the replies to the answers to the hearing request, and therefore have effectively signed those filings under 10 C.F.R. § 2.304(d); as a result, the Board may now consider those filings under 10 C.F.R. § 2.309. In addition, the Brief contains an embedded hearing request because Alan Blind, as a new petitioner, seeks to intervene in this proceeding and litigate the previously filed contentions. This embedded hearing request demonstrates standing but was not timely filed, does not address or meet the requirements for hearing requests filed after the deadline, and does not proffer at least one admissible contention; as a result, it should be denied. Lastly, because Alan Blind has sought to intervene and is a petitioner with substantially the same interests and raising substantially the same questions as the Joint Petitioners, the Board may consolidate Alan Blinds and the Joint Petitioners respective hearing requests and associated filings, and Alan Blind may be designated the representative and single point of contact for the Joint Petitioners. The Brief Supplement does not alter these conclusions.
I.
The Brief Goes Beyond the Request in the Boards Order and Contains an Embedded Hearing Request from Alan Blind Alan Blind included his own hearing request in the Brief, which must be denied because it is untimely and lacks an admissible contention. Pursuant to 10 C.F.R. § 2.309(a), if a person whose interest may be affected by an NRC proceeding wishes to participate as a party, they must file a hearing request.25 A hearing request must be filed by the deadline for hearing requests or meet the requirements for hearing requests after the deadline, and the petitioner must in its hearing request both demonstrate standing and submit at least one admissible contention.26 In its November 14, 2024, Order, the Board requested that the Joint Petitioners file a brief discussing whether and how they intend to cure the apparent issue with their representation.27 The Joint Petitioners were therefore to explain in their Brief whether they intended to cure the representation issue and, if they so intended, propose how they would go about doing so.
In response to this request, the Joint Petitioners filed a brief to establish that Mr. Blind meets the requirements of a petitioner with standing and has been elected by Joint Petitioners to represent our consolidated petition and all supplemental filings, past and future.28 The Brief then (1) explains why Alan Blind has standing to intervene in this proceeding; (2) seeks to establish Alan Blind as the Joint Petitioners representative and point of contact; and (3) requests the inclusion of the Blind Supplements and the replies to the answers to the hearing request into the record of this proceeding, with the Joint Petitioners attesting to their knowledge and support of those filings.29 The Joint Petitioners therefore demonstrate an intent to cure the representation issue but also go beyond the request in the Order and attempt to cure the representation issue in their Brief through the submission by Alan Blind of a hearing request after the deadline that is embedded in the Brief.
25 See 10 C.F.R. § 2.309(a) (Any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing.) (emphasis added).
26 10 C.F.R. § 2.309.
27 Order at 3.
28 Brief at 2.
29 Id. at 3-8, 12.
Because Alan Blind now wishes to participate as a party in this proceeding, he must file a hearing request pursuant to § 2.309. To that end, Alan Blind and the Joint Petitioners address some of the required aspects of a hearing request and clearly evince Alan Blinds desire to participate in this proceeding as a party. For example, Alan Blind and the Joint Petitioners argue that Mr. Blind has standing to intervene.30 In the Brief, Mr. Blind also appears to implicitly adopt the contentions previously filed in this proceeding, as further explained below. Alan Blind also identifies himself in the Brief as a petitioner and signs the filing in that capacity.31 The Brief thus includes an embedded hearing request from Alan Blind, which, to be acceptable, must satisfy the timeliness, standing, and contention admissibility requirements in 10 C.F.R. § 2.309.32 The Staff addresses each of these requirements in Discussion Section III below.
II.
The Joint Petitioners Have Cured the Deficiency with Respect to the Blind Supplements and the Replies to the Answers to the Hearing Request The NRC Staff agrees that Alan Blind and the Joint Petitioners have cured the defects in the Joint Petitioners representation and that as a result of the representations made in the Brief, the Board may consider the Blind Supplements and replies under 10 C.F.R. § 2.309.
Requirements for signatures on filings made in NRC adjudications are set forth in 10 C.F.R.
§ 2.304(d). This provision states, in part, that the signature of a person signing a pleading in an NRC adjudication is a representation that the document has been subscribed in the capacity specified with full authority, that he or she has read it and knows the contents, [and] that to the best of his or her knowledge, information, and belief the statements made in it are true[.]33 As explained above and in the NRC Staff Answer, the Blind Supplements and replies to the 30 Id. at 3-7.
31 Id. at 14, 17, 18.
32 See 10 C.F.R. § 2.309(b)-(d), (f). Given that the Brief includes a hearing request, the Staffs Answer is made pursuant to 10 C.F.R. § 2.309(i)(1).
33 10 C.F.R. § 2.304(d).
answers to the Petition were signed solely by Alan Blind, who at the time of those filings was not a petitioner and could not represent the Joint Petitioners pursuant to 10 C.F.R. § 2.314(b); as a result, the Blind Supplements were not legally part of the Petition and the replies could not be considered under § 2.309(i)(2).34 The Joint Petitioners cure this deficiency in their Brief. In the Brief, the Joint Petitioners state that the Blind Supplements and the replies to the answers to the Petition were filed with the full knowledge and informed consent of we, Joint Petitioners.35 In addition, the Brief states that the Joint Petitioners attest[] to their knowledge and support of the supplemental filings and rebuttals[,]36 and includes declarations from each Joint Petitioner stating, I have reviewed and understand the arguments presented in the filings by Mr. Blind on behalf of Joint Petitioners[.]37 The Joint Petitioners thereby request inclusion of these supplemental submissions as part of the adjudicative record for our consolidated petitions[.]38 Each of the Joint Petitioners also signs their respective declaration [i]n [a]ccordance with 10 [C.F.R. §] 2.304(d).39 The Joint Petitioners have therefore satisfied the substantive requirement for signatures under § 2.304(d). Also, this Joint Petitioners action was taken to cure issues with the Joint Petitioners representation, and petitioners may take actions to cure representation issues associated with earlier filings.40 Thus, 34 NRC Staff Answer at 12-13.
35 Brief at 11.
36 Id. at 12.
37 Id. at 19-25.
38 Id. at 12. The Brief also lists each of the Blind Supplements for inclusion in the adjudicatory record. Id.
at 13.
39 Brief at 19-25.
40 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, 73 NRC 534, 549 (noting that a petitioner may cure procedural defects in representation), vacated in part on other grounds, CLI-12-8, 75 NRC 393 (2012).
consistent with the Staffs position in the NRC Staff Answer, the Blind Supplements and the replies to the answers to the Petition can now be further considered under 10 C.F.R. § 2.309.41 III.
The Briefs Embedded Hearing Request Should Be Denied Because It Was Not Timely Filed and Does Not Proffer an Admissible Contention Alan Blinds hearing request, embedded in the Brief, demonstrates his standing to participate in this proceeding but it is not timely and, to the extent he adopts the contentions contained in the Petition, he has not proffered an admissible contention. A hearing request must be timely filed, demonstrate that the petitioner has standing to intervene, and include at least one admissible contention.42 Therefore, the hearing request does not satisfy the requirements for such filings in 10 C.F.R. § 2.309, and the Board should deny it.
A.
The Brief Was Timely Filed But Its Embedded Hearing Request Was Not Timely Filed In proceedings for which a Federal Register notice of agency action is published and a deadline to file a hearing request is provided therein, the deadline to timely file a hearing request is the date specified in the notice.43 Hearing requests after the deadline will not be entertained unless a petitioner has demonstrated good cause by showing that:
(i)
The information upon which the filing is based was not previously available; (ii)
The information upon which the filing is based is materially different from information previously available; and (iii)
The filing has been submitted in a timely fashion based on the availability of the subsequent information.44 41 While not considering the Blind Supplements part of the Petition at the time, the Staff addressed throughout its answer to the Petition whether the Blind Supplements supported contention admissibility and explained why they did not. Therefore, the Staff does not further address in this response the substantive arguments set forth in the Blind Supplements.
42 See 10 C.F.R. § 2.309(b)-(d), (f).
43 Id. § 2.309(b)(3)(i).
44 Id. § 2.309(c)(1).
While the Briefs response to the Boards Order was timely filed, Mr. Blinds hearing request embedded within the Brief is not timely and he has not demonstrated good cause for failing to seek a hearing in his own right on time. The Amendments Notice published in the Federal Register established a deadline of October 7, 2024, for hearing requests on the four license amendment requests related to the restart of reactor operations at Palisades, including the Primary Amendment Request the Petition challenges.45 On behalf of the Joint Petitioners, Mr. Blind timely filed a hearing request in this matter that raised significant issues regarding his ability to represent the Joint Petitioners. The Board subsequently established in the Order a deadline of December 5, 2024, for the Joint Petitioners to file a brief addressing whether and how they intended to cure their representation in this proceeding. Pursuant to the Order, the Joint Petitioners and Alan Blind filed the Brief on November 21, 2024. The Brief is thus timely with respect to the Boards December 5, 2024, deadline to file a brief on the representation issue. However, because Alan Blinds hearing request embedded in the Brief was not filed by October 7, 2024, it must satisfy 10 C.F.R.
§ 2.309(c), which requires the petitioner to demonstrate[] good cause by showing that the criteria in § 2.309(c)(1)(i)-(iii) are met.46 This it does not attempt to do, and consequently the Board should deny the hearing request on that basis alone.47 But even if Mr. Blind had attempted to show why his embedded hearing request satisfies § 2.309(c), he has not met those requirements because his embedded hearing request is not based on new and materially 45 Amendments Notice, 89 Fed. Reg at 64,487.
46 § 2.309(c)(1) (emphasis added).
47 See Florida Power & Light Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-06-21, 64 NRC 30, 34 (2006) ([F]ailure to comply with our pleading requirements for late filings constitutes sufficient grounds for rejecting [a hearing request]); see also Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7), LBP-17-2, 85 NRC 14, 23-24 (2017) (rejecting a contention after the deadline because petitioner failed to cite § 2.309(c) or demonstrate how that provisions requirements were met).
different information.48 Indeed, as discussed further below, his embedded hearing request merely adopts implicitly the Petitions contentions. Thus, his embedded hearing request is not based on any information that is new and materially different from that proffered in the Petition and that was not available at the time hearing requests were due in this proceeding, which was October 7, 2024.49 The same timeliness analysis applies to the Brief Supplement. The filing itself is timely with respect to the Boards request for a brief on representation by December 5, 2024. But the information provided therein, which supplements the Briefs hearing request, is not timely because it was filed after the October 7, 2024, deadline to request a hearing and, like the Brief, does not address or satisfy the requirements under § 2.309(c) for hearing requests after the deadline. All of the arguments in the Brief Supplement could have been made before the October 7, 2024, deadline for hearing requests, and the event that forms the basis for most of the arguments in the Brief Supplement occurred in 2011.
In short, Alan Blinds embedded hearing request was not timely filed and he has not addressed or satisfied the timeliness requirements in § 2.309(c). Therefore, the hearing request embedded in the Brief and Brief Supplement should be denied.
48 See 10 C.F.R. § 2.309(c)(1)(i)-(ii).
49 Also, a lack of awareness or understanding of the NRCs rules for adjudications does not constitute good cause to file a hearing request after the deadline specified in the Federal Register notice. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 26 (2001) ([I]t has long been a basic principle that a person who invokes the right to participate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participation) (quoting Duke Energy Co. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999)); see also South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 6 (2010) (We generally extend some latitude to pro se litigants, but they are still expected to comply with our procedural rules, including contention pleading requirements).
B.
Alan Blind Demonstrates Standing In addition to the requirement to timely file, a petitioner must demonstrate standing.50 The Brief addresses Alan Blinds standing, stating that it extends the Petitions standing arguments regarding the radiological risks associated with the license amendment request to Alan Blind.51 The Brief asserts that he qualifies as a petitioner based on his full-time residence and property ownership within the 50-mile radius of Palisades.52 Alan Blind also asserts injuries from purported reduced safety margins that he claims will increase the probability and consequences of radiological releases, which would harm[] Mr. Blinds property, including its safety, usability, and value.53 As explained in the NRC Staff Answer, given that the challenged amendment would enable a currently shutdown and defueled reactor to resume operation at full powerwhich would involve generating radioactivity in the reactor core and entail an obvious potential for offsite consequencesit is appropriate to apply the Commissions 50-mile proximity presumption in this proceeding.54 Alan Blind has demonstrated standing under the proximity presumption because he lives approximately 28 miles from Palisades55 and asserts harms from radiological releases from potential accidents that he ties to the challenged license amendment request.
50 10 C.F.R. § 2.309(d). The requirements for standing are further discussed in the Staffs Answer to the Joint Petitioners Petition. See NRC Staff Answer at 13-15.
51 Brief at 2.
52 Id. at 2.
53 Id. at 5, 6.
54 NRC Staff Answer at 17; see also Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 191 (1999) (establishing that the 50-mile proximity presumption applies in license amendment proceedings where the amendment presents an obvious potential of offsite radiological consequences (quoting Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 &
2), CLI-89-21, 30 NRC 325, 330 (1989))).
55 Brief at 4, 15.
C.
Alan Blind Implicitly Adopts Previously Filed Contentions, All of Which Are Inadmissible and, Therefore, Does Not Proffer an Admissible Contention Although Alan Blind has demonstrated standing under the proximity presumption, his embedded hearing request must be denied because in addition to being untimely, his petition for hearing lacks an admissible contention. In NRC adjudications, a request for hearing must set forth with particularity the contentions sought to be raised.56 A petitioner will be admitted as a party only if they proffer at least one admissible contention, in addition to satisfying the requirements of timeliness and standing discussed above.57 Thus, the hearing request in the Brief must set forth at least one contention and demonstrate that the contention meets the admissibility requirements in 10 C.F.R. § 2.309(f).58 The Brief does not include any new contentions, nor does it clearly incorporate by reference or otherwise explicitly adopt contentions from previous filings. However, Alan Blind and the Joint Petitioners make numerous statements in the Brief that, taken together, amount to an implicit adoption by Mr. Blind of the contentions he previously filed on behalf of the Joint Petitioners in this proceeding. For example, in the Brief, Alan Blind and the Joint Petitioners state that to remedy the representation issue, Mr. Blind has been elected by Joint Petitioners to represent our consolidated petition and all supplemental filings, past and future.59 The Brief also describes the alleged harm Alan Blind would suffer from the unresolved issues raised in Contentions One through Five[.]60 In addition, the Brief discusses a footnote in the Order in which the Board states that the Joint Petitioners could move to consolidate their presentations 56 10 C.F.R. § 2.309(f)(1).
57 Id. § 2.309(a).
58 The requirements for contention admissibility are further discussed in the Staffs Answer to the Joint Petitioners Petition. See NRC Staff Answer at 21-23.
59 Brief at 2 (emphasis added).
60 Id. at 5-7 (The radiological risks associated with no action on joint petitioners[] contentions firmly establish standing and support his participation in this proceeding).
and designate Mr. Blind as their single point of contact if Alan Blind represented himself as a petitioner.61 In their Brief, the Joint Petitioners state that they are adopting this approach in order to consolidate their petitions and designate Mr. Blind as their representative and point of contact including all past and future filings.62 The aforementioned petitions presumably include the initially filed Petition, which sets forth Contentions One through Four, and all of the supplements, including those addressing Contention Five.63 Implied in all of these statements is Alan Blinds and the Joint Petitioners intent for Mr.
Blind to litigate the contentions that have already been filed in this proceeding. In other words, while the Brief does not restate or formally adopt contentions from prior filings, it provides sufficient support for the Board to conclude that it implicitly does so. Even so, Mr. Blinds embedded hearing request should still be denied because the contentions that he seeks to adopt are inadmissible, as extensively explained in the NRC Staff Answer. Thus, even assuming the hearing request adopts all previously filed contentions, it does not satisfy the requirement in 10 C.F.R. § 2.309(a) and (f) that a hearing request proffer at least one admissible contention. Therefore, the Board should deny it.64 61 Id. at 7-8; Order at 3 n.8.
62 Brief at 8 (emphasis added).
63 See id. at 13-14 (listing submissions).
64 A separate issue concerns whether Alan Blind may adopt the Joint Petitioners contentions. The Commission has held that a petitioner must first be admitted as a partyby demonstrating standing and submitting at least one admissible contention of their ownbefore they may incorporate by reference another petitioners contentions. See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant & Big Rock Point Site), CLI-22-8, 96 NRC 1, 100-101 & n.454 (2022); Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-20-12, 92 NRC 351, 365-66; see also Consolidated Edison Co. (Indian Point, Units 1 & 2), CLI-01-19, 54 NRC 109, 133 (2001) ([W]e will not permit wholesale incorporation by reference by a petitioner who, in a written submission, merely establishes standing and attempts, without more, to incorporate the issues of other petitioners). However, this holding must be considered in its proper context. See Borden v. eFinancial, LLC, 53 F.4th 1230, 1235 (9th Cir. 2022) (Much like we do not interpret a statute by cherry-picking one word out of it, we should not pluck one sentence out of an opinion without looking at its context). Specifically, the Commission explained that if it were to allow a petitioner to incorporate by reference another petitioners contentions, petitioners with little or no knowledge of the issues raised in adopted contentions might be admitted as parties[.] Pilgrim, CLI-20-12, 92 NRC at 366.
This, the Commission stated, would essentially defeat the purpose of our contention admissibility The information Mr. Blind and the Joint Petitioners provide in their Brief Supplement does not alter this conclusion. By its terms, the Brief Supplement appears to be an attempt by Mr. Blind and the Joint Petitioners to bolster their arguments for standing based on harms assertedly flowing from matters raised in the Joint Petitioners previously filed contentions rather than amend or add to these contentions.65 They also do not address the contention requirements of § 2.309(f). The embedded hearing request must therefore be denied.
The NRC Staff would, however, like to correct or clarify several assertions regarding the NRCs regulatory processes and a past event at Palisades that the Joint Petitioners make in discussing the harms supposedly resulting from matters raised in the Joint Petitioners contentions. The Joint Petitioners repeat their arguments from the Petition that the Standard Review Plan (SRP) and the General Design Criteria (GDC) from 10 C.F.R. Part 50, Appendix A, should be imposed as requirements for the NRCs review of the Primary Amendment Request.66 But, again, the Joint Petitioners provide no legal basis for this claim. As explained in the NRC Staff Answer, the SRP is guidance for the Staff, not a requirement for applicants, and the Commission, itself, has determined that the GDC do not apply to plants, like Palisades, whose standards, which are meant to ensure that parties to a proceeding have demonstrated the necessary factual or legal knowledge to participate meaningfully. Id. The facts of the present case are sui generis and render the Commissions holding inapplicable here, where the petitioner who wishes to adopt the contentions of other petitioners is himself the author of those other petitioners contentions. This is not, in other words, a case where a petitioner is seeking to adopt contentions with little or no knowledge of the issues raised in those contentions. Nonetheless, the Board need not reach the issue of whether this Commission precedent applies to this proceeding because the proffered contentions are inadmissible in the first place, as explained in the NRC Staff Answer.
65 See, e.g., Brief Supplement at 2 (stating that the Brief Supplement serves to expand on an argument offered in the Joint Petitioners brief for standing based on proximity and linkage to radiological release);
id. at 4-5 (stating that the Brief Supplement strengthens the case for affirming petitioners arguments for standing, including new petitioner, Alan Blind, due to a direct linkage from Joint Petitioners Contentions to increased probability and consequence of off site radiological releases and thus harm to Joint Petitioners); id. at 30 (stating that the 2011 event that is extensively discussed in the Brief Supplement validates the petitioners' standing).
66 Compare Blind Third Steam Generator Supplement, at 2, 5, 6-7, and Blind Third Steam Generator Supplement (Part Two), at 2-4, 6-8, with Brief Supplement at 7, 18-23, 26-27.
construction permits were issued prior to May 21, 1971.67 Therefore, these claims are not material to the required NRC findings to issue the amendment, as required by § 2.309(f)(1)(iv).
But even if the GDC and SRP were requirements for Palisades, the Joint Petitioners have not specifically identified the portions of the application that are deficient, nor have they provided supporting reasons and information sufficient to demonstrate a genuine, material dispute with the application, as required by § 2.309(f)(1)(vi).68 Further, the proposed contentions Mr. Blind and the Joint Petitioners specifically mention in the Brief Supplement, Contentions 2 and 4, are outside the scope of this proceeding and otherwise inadmissible as explained in the NRC Staff Answer.69 In addition, the Brief Supplement is largely based on Alan Blinds opinions regarding how the systematic evaluation program (SEP) was applied to Palisades and how the significance determination process (SDP) was applied to certain nonconformances at Palisades that became 67 NRC Staff Answer at 39-40 (citing 10 C.F.R. § 50.34(h)(3) and Staff RequirementsSECY-92-223 Resolution of Deviations Identified During the Systematic Evaluation Program (Sept. 18, 1992)
(ML003763736) (SRM-SECY-92-223)). The Commission also explained the relationship between licensing standards for pre-GDC plants and GDC plants:
At the time of promulgation of Appendix A to 10 CFR Part 50, the Commission stressed that the GDC were not new requirements and were promulgated to more clearly articulate the licensing requirements and practice in effect at that time. While compliance with the intent of the GDC is important, each plant licensed before the GDC were formally adopted was evaluated on a plant specific basis, determined to be safe, and licensed by the Commission.
SRM-SECY-92-223, at 1. Updated Final Safety Analysis Report (UFSAR) Revision 35, which is referenced in the Primary Amendment Request, compares the Palisades design to the intent of the GDC.
UFSAR Revision 35, § 5.1 (Section 5.1 is at ML21125A291).
68 See also NRC Staff Answer at 38-39. Relatedly, Alan Blind states that he do[es] not have access to the full [Final Safety Analysis Report (FSAR)] Revision 35. Brief Supplement at 8. However, the Primary Amendment Request cites to Palisades UFSAR Revision 35 and provides the ADAMS Accession number for the cover letter and enclosure 1. Primary Amendment Request, Enclosure at 96. The whole of the updated FSAR is in ADAMS under package number ML21125A344 as the Staff previously referenced.
NRC Staff Answer at 39, n.149. To the extent Alan Blind is referring to an inability to access redacted portions of UFSAR Revision 35, he could have requested access to sensitive unclassified information for contention preparation, but the deadline for such requests was August 19, 2024. Amendments Notice, 89 Fed. Reg. at 64,490.
69 NRC Staff Answer at 28-43, 57-63.
apparent as the result of a 2011 event,70 but again, the Joint Petitioners point to no pertinent requirement that the Primary Amendment Request fails to meet. This proceeding is not a forum for disagreeing with the Commissions SEP decisions, and the SDP is a process for evaluating the significance of inspection findings, not for making licensing decisions.71 Regarding the 2011 event, the Joint Petitioners argue that the NRCs basis for a yellow inspection finding demonstrates a significant safety gap in the plant's foundational design basis.72 However, the yellow finding, which concerned the loss of the left train 125-Volt [Direct Current (DC)] safety-related system and loss of both preferred alternating current sources associated with the left train DC system, was caused by a failure to ensure that maintenance work was properly performed, not by a design problem.73 Also, this event was exacerbated by a failure to meet the plants design basis (which resulted in a green inspection finding), not by a problem in the UFSAR or design basis itself.74 The Joint Petitioners further state that if the licensee had not appropriately responded to the event, it could have escalated into a design basis accident,75 but Palisades (and other nuclear power reactors) are designed to withstand 70 See, generally, Brief Supplement.
71 NRC Inspection Manual Chapter 0609, Significance Determination Process, at 1 (Nov. 9, 2020)
(ML20267A146) (stating, The Significance Determination Process (SDP) uses risk insights and other relevant information, as appropriate, to assist U.S. Nuclear Regulatory Commission (NRC) staff in determining the safety or security significance of inspection findings identified within the seven cornerstones of safety at operating reactors).
72 Brief Supplement at 12.
73 Letter from Cynthia D. Pederson, NRC, to Anthony Vitale, Entergy Nuclear Operations, Inc., Final Significance Determination of Yellow and White Findings with Assessment Followup and Notice of Violation NRC Inspection Report Nos. 05000255/2011019 and 05000255/2011020 Palisades Nuclear Plant, Enclosure 3 (Feb. 14, 2012) (ML120450037) (Final NRC Significance Determination and Notice of Violation).
74 Letter from Steven West, NRC, to Anthony Vitale, Entergy Nuclear Operations, Inc., Palisades Nuclear Plant - NRC Special Inspection Team (SIT) Report 05000255/2011014 Preliminary Yellow Finding, Enclosure at 6-7, 14 (Nov. 29, 2011) (ML113330802) (SIT Inspection Report). This green inspection finding was associated with a non-cited violation involving a failure to meet 10 C.F.R. Part 50, Appendix B, Criteria III and IV. Id., Enclosure at 6-7.
75 Brief Supplement at 32-33.
such accidents. Though the Staff did not agree with certain licensee arguments to credit operator action in response to the event, the NRC's final conditional core damage probability (CCDP) was 6.5E-5, indicating that the finding was of substantial safety significance or Yellow.76 Ultimately, the NRCs significance determination involving the licensees failure to meet NRC requirements was not a finding or determination on the design basis or UFSAR and does not support the Joint Petitioners contentions.
For the reasons given above, the Brief Supplement does not affect the Staffs conclusion that Alan Blinds hearing request fails to proffer an admissible contention and consequently should be denied.
IV.
The Board May Consolidate Joint Petitioners and Alan Blinds Hearing Requests and Appoint Alan Blind as Joint Petitioners Representative and Single Point of Contact Pursuant to 10 C.F.R. § 2.316, the Board may order parties who have substantially the same interest that may be affected by the proceeding and who raise substantially the same questions to consolidate their briefs and presentations of evidence, so long as such consolidation would not prejudice the rights of any party.77 The Board may also direct that common interests be represented by a single spokesperson under 10 C.F.R. § 2.319(c).78 In the Brief, the Joint Petitioners and Alan Blind effectively move to consolidate their petitions under
§ 2.316. Specifically, they state that, following a framework outlined in the Order,79 Joint Petitioners have elected to consolidate their petitions and designate Mr. Blind as their 76 Final NRC Significance Determination and Notice of Violation, Enclosure 1 at 1-2. The different levels of safety significance for inspection findings under the SDP are described on page 3 of NRC Inspection Manual Chapter 0609.
77 10 C.F.R. § 2.316.
78 Id. § 2.319(c).
79 See Order at 3 n.8 (suggesting Joint Petitioners could move to consolidate their presentations and designate Mr. Blind as their single point of contact) (citing 10 C.F.R. § 2.316).
representative and point of contact including all past and future filings.80 This, the Brief asserts, would ensure[] consistent representation and facilitate[] the resolution of complex issues inherent to this case.81 The Joint Petitioners also state that if Alan Blind did not represent them, they would face impossible barriers to participate meaningfully in this highly technical adjudication[,] and that Alan Blinds qualifications ensure that our concerns are raised comprehensively and effectively.82 As explained above, Alan Blind now seeks to intervene in this adjudication, with the Brief thus containing an embedded hearing request. Also as explained above, this hearing request implicitly adopts the contentions previously filed in this proceeding by the Joint Petitioners. As a result, Alan Blind and the Joint Petitioners have substantially the same interest that may be affected by the proceeding and raise substantially the same questions[.]83 In addition, neither the Staff nor the applicant would be prejudiced if the Joint Petitioners and Alan Blind were able to consolidate their briefs and presentations of evidence; to the contrary, consolidation would facilitate disposition of this case by enabling all filings to be considered together and allowing a single individual to represent these petitioners. Therefore, the Staff agrees that the Board may consolidate the Joint Petitioners and Alan Blinds hearing requests and associated filings in accordance with § 2.316. In addition, the Staff agrees that the Board may designate Alan Blind as the Joint Petitioners representative and single point of contact pursuant to §§ 2.316 and 2.319(c), including for purposes of oral argument.
80 Brief at 8.
81 Id.
82 Id. at 9.
83 10 C.F.R. § 2.316.
CONCLUSION As explained above, Alan Blind and the Joint Petitioners address several outstanding issues in their Brief. First, because the Joint Petitioners have clarified that they had knowledge of and supported the Blind Supplements and the replies to the answers to the Petition when they were filed and have effectively signed them under 10 C.F.R. § 2.304(d), those pleadings should now be considered part of the adjudicatory record. Second, given that Alan Blind identifies himself in the Brief as a petitioner and seeks to intervene in this proceeding, the Brief should be read to include an embedded hearing request from Mr. Blind. While he has demonstrated standing to intervene and has implicitly adopted the contentions set forth in the Petition, Mr. Blinds hearing request is untimely, does not address or satisfy the requirements for a petition filed after the deadline, and does not include or adopt an admissible contention.
Because the hearing request does not meet the timeliness and contention admissibility requirements, it should be denied. Third, the Staff agrees that Alan Blinds and the Joint Petitioners presentations may be consolidated, and that Alan Blind may be made the representative and single point of contact for the Joint Petitioners in accordance with 10 C.F.R.
§§ 2.316 and 2.319(c), including for purposes of oral argument.
Respectfully submitted,
/Signed (electronically) by/
Peter L. Lom Counsel for NRC Staff Mail Stop: O14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-1100 Email: Peter.Lom@nrc.gov
/Executed in Accord with 10 CFR 2.304(d)/
Michael A. Spencer Counsel for NRC Staff Mail Stop: O14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9115 Email: Michael.Spencer@nrc.gov Dated December 12, 2024
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 (Palisades Nuclear Plant)
Docket No. 50-255-LA-3 Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that the NRC Staff Answer to Joint Petitioners Brief on Representation, Consolidation of Petitions, and Standing of Consolidated Point of Contact, Alan Blind, has been filed through the NRCs E-Filing System this 12th day of December 2024.
/Signed (electronically) by/
Peter L. Lom Counsel for NRC Staff Mail Stop: O14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-1100 Email: Peter.Lom@nrc.gov Dated December 12, 2024