ML24347A244
| ML24347A244 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 12/12/2024 |
| From: | Blanton M, Eskelsen G, Lovett A Balch & Bingham, LLP, Holtec Decommissioning International, Holtec Palisades |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57222, 50-255-LA-3, ASLBP 24-986-01-LA-BD01 | |
| Download: ML24347A244 (0) | |
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1 December 12, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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Holtec Decommissioning
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Docket Nos. 50-255-LA-3 International, LLC and
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Holtec Palisades, LLC
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ASLBP No. 24-986-01-LA-BD01
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(Palisades Nuclear Plant)
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APPLICANTS RESPONSE TO JOINT PETITIONERS SUPPLEMENTAL FILINGS Pursuant to the Boards November 14, 2024 Memorandum and Order,1 Holtec Decommissioning International, LLC (HDI) and Holtec Palisades, LLC (Holtec Palisades)
(collectively, Applicants) respond to the supplemental filings by eight individuals (Joint Petitioners) on November 21, 2024, December 2, 2024 and December 8, 2024 (collectively, the Supplements).2 As detailed in Applicants Answer,3 Joint Petitioners request for a hearing4 and 1
Memorandum and Order (Concerning Oral Argument Scheduling and Joint Petitioners Representation) (Nov.
14, 2024) (ML24319A119) (Memorandum and Order).
2 Joint Petitioners Brief on Representation, Consolidation of Petitions, and Standing of Our Appointed Consolidated Point of Contact, Alan Blind (Nov. 21, 2024) (ML24326A014) (November 21 Supplement);
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)
(ML24337A010) (December 2 Supplement); Supplement to Petitioners Rebuttal To NRC Staffs [&]
Applicants Answer[s] Opposing Joint Petitioners Petition for Hearing (Dec. 8, 2024) (ML24343A001)
(December 8 Supplement).
3 Applicants Answer Opposing Joint Petitioners Petition for Hearing (Nov. 4, 2024) (ML24309A303)
(Answer).
4 Petition for Hearing regarding the Holtec Decommissioning International, LLC and Holtec Palisades, LLC Application for License Amendments for Palisades Nuclear Plant (Sept. 9, 2024) (ML24253A185) (Petition).
2 as supplemented,5 should be rejected for many reasons, including their failure to demonstrate standing and their failure to comply with NRCs procedural rules regarding representation in NRC adjudicatory proceedings.6 Nothing in Joint Petitioners Supplements demonstrates that Mr. Blind can be designated as the representative of Joint Petitioners or that Joint Petitioners have standing.
Thus, the Board should reject Joint Petitioners Petition.
As detailed in Applicants Answer, Joint Petitioners purported to designate Mr. Blind as the petition point of contact in their Petition,7 but offered no factual or legal basis for Mr. Blinds representation of their purported interests.8 Mr. Blind is not an attorney.9 Joint Petitioners are not an organization that could be represented by a non-attorney.10 And Mr. Blind did not seek to intervene as a petitioner himself.11 In the Memorandum and Order, the Licensing Board recognized that the NRCs Rules of Practice do not contemplate representation by a non-attorney who is not representing himself or an organization, and postponed the hearing to allow Joint Petitioners an opportunity to address the representation issue.12 5
Joint Petitioners submitted a total of twelve supplements prior to the Boards Memorandum and Order. See Answer at 2, nn. 5 & 6 (listing all such supplements).
6 See Answer at 57-67.
7 Petition at 19.
8 Answer at 59-61.
9 Id.; Joint Petitioners admitted as much in their Petition. See Petition at 13 (This petition has been prepared by Alan Blind.... While Alan is not a lawyer, he is a concerned member of the public.... (emphasis added)).
10 Answer at 59-61.
11 Id. at 62-63; see also Memorandum and Order at 2 (Mr. Blind states that he is not a lawyer, and although he describes himself as a concerned member of the public, he does not appear to include himself among the individuals who comprise Joint Petitioners.).
12 Id. at 1-2.
3 Since that order, Mr. Blind has filed the three Supplements.13 In the November 21 Supplement, Mr. Blind attempts to cure his deficient representational filings by converting himself from a mere point of contact to a full-blown petitioner. But it is too little, too late. Mr. Blind does not establish that he has standing himself. Moreover, his new arguments or bases for arguments introduced for the first time in the other two Supplements are untimely.
I.
Mr. Blind Has Not Established His Own Standing and the Supplements Have Not Cured the Deficiencies in the Joint Petitioners Standing Concluding that Mr. Blinds attempt to represent the Joint Petitioners is not contemplated by the NRCs Rules of Practice, the Memorandum and Order asked them to explain how they might cure the issue.14 The Board even offered possibilities. For example, Joint Petitioners could retain an attorney.15 This they have not done. Alternatively, citing to Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-22 70 NRC 640, 650-51 (2009),
the Memorandum and Order suggested, that if Alan Blind were to represent himself as a petitioner, the other self-represented individuals who comprise the Joint Petitioners could move to consolidate their presentations and designate Mr. Blind as their single point of contact.16 Mr.
Blind attempts this pathway.
The key to door number 2 is that Mr. Blind must be a petitioner, including satisfying all prerequisites such as standing. The NRCs rules allowing consolidation do not relieve a petitioner from those requirements.17 Mr. Blind attempts to become a petitioner based solely on the 13 See supra, n. 2.
14 Memorandum and Order at 3.
15 Id. at 3 n.8.
16 Id.
17 See 10 CFR 2.316 (the presiding officer may order any parties in a proceeding... to consolidate their presentation of evidence) (emphasis added).
4 proximity of his residence to Palisades.18 While he certifies that he lives within 28 miles of the plant,19 proximity alone is not enough to establish standing. Mr. Blind must also demonstrate that the proposed action here quite obvious[ly] entails an increased potential for offsite consequences,20 and then explain some plausible chain of causation, some scenario suggesting how these particular license amendments would result in a distinct new harm or threat to him.21 He has not made that showing in this proceeding. Rather, the Supplements, like the original Petition, continue only to attack the regulatory mechanisms approved by the NRC through which Applicants seek to restart Palisades, stating this supplemental brief aims to provide a more comprehensive explanation of how petitioners contentions directly relate to public safety risks and harm under the NRCs regulatory framework.22 That is beyond the scope of this proceeding, and an issue already addressed by the NRCs 2021 denial of a petition for rulemaking as discussed more fully in Applicants Answer.23 In fact, the November 21 Supplement mentions license amendments just once, in the abstract, stating that under modern General Design Criteria (GDC) standards, [i]f the evaluation [of a plants reliance on manual actions] determines significant 18 See November 21 Supplement at 3-7 (addressing Mr. Blinds proximity to the plant, but providing nothing further on linkage between the specific LARs subject of this proceeding and Mr. Blinds alleged potential for offsite consequences); see also id. at 18 (Declaration of Alan Blind, silent on potential for offsite consequences).
19 Id. at 4, 15.
20 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-04, 49 NRC 185, 191 (1999)
(citing Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 & 2), CLI-89-21, 30 NRC 325, 329-30 (1989)) (internal quotation marks omitted). See also Exelon Generation Company, LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-05-26, 62 NRC 577, 580-81 (2005) (explaining how the Commission considers proximity-based standing in license transfer cases, and stating that [i]f the petitioner fails to show that a particular licensing action raises an obvious potential for offsite consequences, then our standing inquiry reverts to a traditional standing' analysis of whether the petitioner has made a specific showing of injury, causation and redressability) (footnote omitted).
21 Zion, CLI-99-04, 49 NRC at 192.
22 December 2 Supplement at 3 (emphasis added).
23 See Answer at 14-18 (citing NRC Denial of Petition for Rulemaking, Criteria to Return Retired Nuclear Power Reactors to Operations, 86 Fed. Reg. 24,362, 24,363 (May 6, 2021)).
5 impacts on safety margins or technical specifications, NRC approval via a license amendment is required.24 Of course, this statement has nothing to do with the content of the license amendment requests (LARs) that are the subject of this proceeding25, and even if it did, would simply confirm that Holtecs submission of LARs is the appropriate procedural vehicle for this proceeding.
The ultimate restart of power operations at Palisades requires many approvals and processes, and NRC approval of the LARs is necessary, but not sufficient, to restart power operations.26 Ultimately, any proximity-based offsite consequences could only arise from a fueled reactor. That is, [h]ere, given the shutdown and defueled status of the [Palisades reactor],
the license amendments do not on their face present any obvious potential of offsite radiological consequences.27 Even in proceedings involving fueled reactors, the Commission has looked to whether the potential for offsite consequences accompanied a petitioners proximity, and it would be nonsensical to lower the bar in this case involving a defueled reactor.28 Accordingly, Mr. Blind has not demonstrated proximity-based standing.
Further, bare proximity, unaccompanied by the required showing of an increased potential for offsite consequences, and complaints about the mechanisms approved by the NRC for Palisades restart similarly fail to establish the traditional elements of standing: (1) an actual or 24 November 21 Supplement at 22 ¶ 2.
25 For details on the LARs, see Answer at 3 n.6. For discussions of the scope of this proceeding, see Answer at 29-
- 30.
26 See also id. at 66-67 (the license amendment requests at issue in this proceeding are not sufficient to refuel or restart power operations at the Palisades facility); see also id. at 13-24 (detailing the other regulatory actions that must be taken before power operations can restart).
27 Zion, CLI-99-04, 49 NRC at 191.
28 See St. Lucie, CLI-89-21, 30 NRC at 329 (noting that where the Commission has recognized proximity-based standing, it has done so where the cases involved the construction or operation of the reactor itself, with clear implications for the offsite environment.... (emphasis added)).
6 threatened, concrete and particularized injury (injury-in-fact) that is (2) fairly traceable to the challenged action (causality), and (3) likely to be redressed by a favorable decision (redressability).29 There is no injury-in-fact, because the risk of radiological release posed by a fueled reactor is not present in the defueled Palisades reactorwhich cannot be fueled without additional NRC approvals that are independent of this proceedingmeaning such potential harms are not certainly impending, and real and immediate.30 There is no causality, because approval of all four LARs that are the subject of this proceeding will not result in the resumption of power operations at the Palisades reactor. There is no redressability, because denial of all four LARs by the NRC will leave Mr. Blind in the same position as granting of the four LARsa defueled reactorabsent additional approvals and filings.
All of these failures in Mr. Blinds standing apply with equal force to the Joint Petitioners, for whom Mr. Blind seeks to serve as point of contact pursuant to the November 21 Supplement.31 While the Joint Petitioners submitted declarations averring that they own homes and reside either full or part time, within the Palisades Emergency Planning Zone (EPZ),32 nothing submitted in either the Petition or any of Joint Petitioners numerous supplements demonstrates an increased potential for offsite consequences,33 or some plausible chain of causation, some scenario suggesting how these particular license amendments would result in a distinct new harm or threat 29 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998) (citing Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 103-04 (1998); Kelley v. Selin, 42 F.3d 1501, 1508 (6th Cir. 1995)).
30 See Intl Uranium (USA) Corp. (White Mesa Uranium Mill), LBP-01-15, 53 NRC 344, 349 (2001) (citation omitted), affd, CLI-01-21, 54 NRC 247 (2001) (citations omitted).
31 Nothing in the Memorandum and Order, the November 21 Supplement, 10 C.F.R. § 2.316, nor Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-22, 70 NRC 640, 650-51 (2009) permit Mr. Blind to serve in any capacity other than as a point of contact. Applicants reserve all arguments to the extent that Mr. Blind attempts to adopt any other role on behalf of the Joint Petitioners.
32 Petition at 15-16; Appendix A to the Petition, Petition 73-81.
33 Zion, CLI-99-04, 49 NRC at 191.
7 to [them].34 Likewise, the Petition and Supplements fail to demonstrate the traditional elements of standing, injury-in-fact, causality, and redressability, as to the Joint Petitioners.35 Accordingly, the Joint Petitioners still lack standing.
In short, the Supplements, like the Petition, focus on purported deficiencies in the regulatory framework by which Applicants are working to restart the Palisades plant and, like the Petition, fail to tie alleged potential harms from a fueled reactor to the NRCs approval of the four LARs that are the subject of this proceeding, which are necessary, but insufficient, to restarting the reactor. As a result, the Supplements do not cure the failures of the Petition to establish standing as to either Mr. Blind or the Joint Petitioners.
II.
Joint Petitioners December 2 and December 8 Supplements Are Untimely and Beyond the Scope of the Memorandum and Order On December 8, 2024, Joint Petitioners filed a supplement claiming to address the NRC Staffs interpretation of § 50.82(b) and its misapplication of the NRC Termination of License Certification.36 The December 8 Supplement is untimely and beyond the scope of the limited briefing requested in the Memorandum and Order. The Boards Memorandum and Order requested that the Joint Petitioners file a brief no later than December 5, 2024 only as to whether and how they intend to cure the apparent issue with their representation.37 The December 8 Supplement is therefore three days late, as recognized in the December 8 Supplement itself.38 34 Id. at 192.
35 See generally Answer at 63-67.
36 December 8 Supplement at 2.
37 See Memorandum and Order at 3.
38 December 8 Supplement at 2 (Given this postponement [in oral argument], 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.).
8 More fundamentally, the December 8 Supplement has nothing to do with the apparent issue with [Joint Petitioners] representation by Mr. Blind.39 Rather, it levies new attacks against the NRCs interpretation of 10 CFR 50.82(b) regarding requirements on non-power licensees.40 The same is true of portions of the December 2 Supplement, which attempt to cure deficiencies or further supplement the original petitioners standing demonstration rather than addressing Mr.
Blinds representational capacity. Because the December 2 and December 8 Supplements go beyond addressing the narrow question for which the Board requested additional briefing, the Board may disregard those new arguments. The time for Petitioners to submit substantive briefing in this proceeding has closed, and contrary to Petitioners claim that the Board may consider the December 8 Supplement without impacting the efficiency or timeline of the hearing process,41 such out-of-time, unrequested briefing would, if accepted, necessitate additional substantive briefing by Applicants in rebuttal. Moreover, as set forth in 10 CFR 2.309(c), the NRCs pleading standards are heightened for filings that seek to supplement a partys arguments after the deadline.42 Joint Petitioners December 2 and December 8 Supplements fail to even acknowledge, much less meet, the requirements of 10 CFR § 2.309(c). As a result, acceptance of the untimely 39 See Memorandum and Order at 3.
40 See December 8 Supplement at 6 (This paper specifically critiques NRC Staffs broad and unsupported use of
§ 50.82(b), Termination of License, as a basis for selecting applicable regulations.). Applicants also note that 10 CFR 50.82(b) only applies to non-power reactor licensees, i.e., research and test reactors, but the Palisades Nuclear Plant has been granted a power reactor license and is subject to 10 CFR 50.82(a). Joint Petitioners references to 10 CFR 50.82(b) are thus irrelevant.
41 December 8 Supplement at 2.
42 See 10 CFR 2.309(c); Crow Butte Res., Inc. (In Situ Leach Uranium Recovery Facility), CLI-20-8, 92 NRC 255, 260 (2020) (Under these requirements, new or amended contentions will not be entertained unless the presiding officer determines that there is good cause for the filing, which can be demonstrated if a contention is based on information that: (i) was not previously available; (ii) is materially different from information previously available; and (iii) has been submitted in a timely fashion based on the availability of the subsequent information. (citing 10 CFR 2.309(c)(1)); Holtec International (Hi-Store Consol. Interim Storage Facility),
LBP-20-6, 91 NRC 239, 252 (2020) (Sierra Club fails to demonstrate that Contention 30 is based on new and materially different information, as required by 10 C.F.R. § 2.309(c)(1).).
9 arguments would almost result in additional delay and expense, and should be disregarded, along with any other supplements filed by Mr. Blind or the Joint Petitioners without regard to NRCs adjudicatory rules of process.
Respectfully submitted, Signed (Electronically) by Grant W. Eskelsen Grant W. Eskelsen Balch & Bingham LLP 601 Pennsylvania Ave., NW Suite 825 South Washington, DC 20004 (202) 661-6344 geskelsen@balch.com Executed in Accord with 10 CFR 2.304(d)
M. Stanford Blanton Alan D. Lovett Balch & Bingham LLP 1710 Sixth Avenue North Birmingham, AL 35203 (205) 226-3417 (205) 226-8769 sblanton@balch.com alovett@balch.com Counsel for Holtec Palisades, LLC, and Holtec Decommissioning International, LLC
December 12, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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)
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Holtec Decommissioning
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Docket Nos. 50-255-LA-3 International, LLC and
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Holtec Palisades, LLC
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ASLBP No. 24-986-01-LA-BD01
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(Palisades Nuclear Plant)
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CERTIFICATE OF SERVICE Pursuant to 10 CFR 2.305, I certify that, on this date, a copy of the foregoing Applicants Response to Joint Petitioners Supplemental Filings was served through the Electronic Information Exchange (the NRCs E-Filing System) in the above-captioned docket.
Signed (Electronically) by Grant W. Eskelsen Grant W. Eskelsen Balch & Bingham LLP 601 Pennsylvania Ave., NW Suite 825 South Washington, DC 20004 (202) 661-6344 geskelsen@balch.com Counsel for Holtec Palisades, LLC and Holtec Decommissioning International, LLC