ML24348A104
| ML24348A104 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 12/13/2024 |
| From: | Blind A - No Known Affiliation |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57223, 50-255-LA-3, ASLBP 24-986-01-LA-BD01 | |
| Download: ML24348A104 (0) | |
Text
Submittal Date: 12/13/2024 50-255-LA-3 of 1
25 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)
Rebuttal to NRC Staffs Reply With New Comments: Joint Petitioners Brief on Representation, Consolidation of Petitions, and Standing of Our Appointed Consolidated Point of Contact, Alan Blind Prepared By: Alan Blind, Petitioner and Joint Petitioners representative Rebuttal to NRC Staffs Reply With New Comments: December 12, 2024 Titled: NRC STAFF ANSWER TO JOINT PETITIONERS BRIEF ON REPRESENTATION, CONSOLIDATION OF PETITIONS, AND STANDING OF CONSOLIDATED POINT OF CONTACT, ALAN BLIND Introduction For the matters explicitly addressed in the ASLBs November 14, 2024, Memorandum and Order, there is no need or allowance for a reply.
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25 Agreement has been reached with NRC Staff on the standing of Alan Blind, the consolidation of all Joint Petitioners, and the acceptance of supplemental responses into the adjudicatory record. These resolutions fulfill the intent of the ASLB order inviting a brief, and do not require further clarification.
Having said that, the purpose of this submittal is to address new statements raised by the NRC Staff in their response to the ASLB order brief. Petitioners argue this response should be allowed. These statements while not central to the ASLBs original order for a brief, if left unaddressed, would present an incomplete and potentially biased record for future adjudication. To ensure fairness and transparency, this submittal draws on relevant case law and procedural principles to justify the submission of this reply and reinforce the integrity of the adjudicatory process with Joint Petitioners reply to new NRC statements.
The purpose of this submittal is to ensure that the ASLB has a complete and balanced record, particularly in areas where new assertions or interpretations have been introduced, such as by NRC Staff in its reply, that extend beyond the matters specified in the original ASLB order concerning standing. This reply is essential to uphold procedural fairness
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25 and address any mischaracterizations or oversights that could affect the future adjudication of the Joint Petitioners contentions.
It is notable that Holtec, in its reply to the ASLB order brief, restated its original arguments from its reply to Petitioners petition submittals, similarly and by far more so then NRC Staff, exceeding the scope of the ASLBs order for a brief and reply on matters of standing and admissibility of submissions. For matters contained within the ASLBs order, Joint Petitioners will stand on the agreements, with NRC Staff, outlined above to support our standing and other matters as directed to be briefed by the order. For all other additional Holtec reply arguments to the ASLB order brief, and rehashed assertions regarding the admissibility of contentions or procedural requirements, these issues, again, raised by Holtec with no new information or arguments, are now before the ASLB for adjudication along with Joint Petitioner previous reply of not agreeing.
Summary Statement For completeness, his rebuttal highlights areas of agreement between Joint Petitioners and the NRC Staff to confirm that key procedural issues, including standing and representation, have been resolved. However, it also identifies areas of disagreement on new NRC Staff statements, that
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25 require further Joint Petitioner reply, to ensure clarity and fairness in the adjudication of Joint Petitioners original contentions. These arguments are not meant to support the original briefs intent to respond to the ASLB order on standing but to provide the ASLB with additional information to aid its consideration of Joint Petitioners contentions as this process goes forward. This rebuttal does not introduce new information but responds to new arguments or statements raised by NRC Staff.
Areas of Agreement With NRC Staffs Reply 1.
Consolidation of Representation:
The NRC Staff correctly acknowledges the appropriateness of consolidating the petitions and designating Alan Blind as the single point of contact for Joint Petitioners.
2.
Standing of Alan Blind:
The NRC Staff agrees that Alan Blind has demonstrated standing, a key procedural element supporting his role as the consolidated point of contact for Joint Petitioners.
3.
Recognition of Supplemental Filings as Part of the Record:
The NRC Staff concurs that the Joint Petitioners clarified their
Submittal Date: 12/13/2024 50-255-LA-3 of 5
25 knowledge of and support for the Blind Supplements and replies to the answers to the Petition. These pleadings, signed under 10 C.F.R.
§ 2.304(d), should now be considered part of the adjudicatory record.
Areas of Disagreement With NRC Staffs Reply With New Statements Needing Joint Petitioners Reply 1.
Counterargument to NRC Staffs Points on Contentions 2.
Alan Blind Implicitly Adopts Previously Filed Contentions, All of Which Are Inadmissible 3.
Public access to Palisades FSAR Revision 35 4.
Rebuttal to NRC Staffs Statements on on the September 2011 Palisades Event These disagreements are addressed below to clarify the procedural and substantive basis for Joint Petitioners contentions.
Counterargument to NRC Staffs Points on Contentions NRC Staffs Argument The NRC Staff argues that the brief, as ordered by the ASLB, constitutes a
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25 new, embedded hearing request and fails to include an admissible contention under 10 C.F.R. § 2.309(f).
Rebuttal The NRC Staff mischaracterizes the intent and content of the brief. The ASLBs November 14, 2024, Memorandum and Order invited Joint Petitioners to file a brief addressing representation issues or clarifying substantive matters. The brief adheres to this directive by:
Focusing on Existing Contentions: It clarifies and explains Contentions One through Five to show Joint Petitioners standing, as raised in the original petition, without introducing new contentions.
Providing Context and Detail: By elaborating on regulatory frameworks such as the Significance Determination Process (SDP), it demonstrates the linkage between the original contentions and petitioner harm, a needed element in establishing petitioner standing.
Avoiding New Contentions: The supplemental brief deliberately avoids raising new contentions, consistent with procedural constraints under 10 C.F.R. § 2.309.
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25 The NRC Staffs assertion that Alan Blind must now independently raise a new contention imposes an unwarranted procedural burden and misinterprets the ASLBs directive.
Alan Blind Implicitly Adopts Previously Filed Contentions, All of Which Are Inadmissible NRC Staffs Argument The NRC Staff claims that Alan Blind implicitly adopts previously filed contentions that are inadmissible under 10 C.F.R. § 2.309(f).
Rebuttal Joint Petitioners dispute this characterization. As outlined in the November 9, 2024, rebuttal to NRC Staff reply, the contentions were formulated based on the information available at the time. The lack of transparency regarding the regulatory framework for Palisades hindered Joint Petitioners ability to evaluate the License Amendment Requests (LARs) against known and specific standards.
The November 9 Joint Petitioners rebuttal to the NRC reply said, the NRC Staffs belated disclosure of the operating plant regulations under Part 50 underscores the procedural disadvantage faced by Joint Petitioners.
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25 This lack of clarity necessitated contentions focused on the regulatory selection process and its implications for public safety, for example allowing the use of §50.59 to re-use FSAR Revision 35.
Access to Palisades FSAR Revision 35 NRC Staffs Argument, page 17, footnote 68 The NRC Staff contends that FSAR Revision 35 is publicly accessible in ADAMS under package number ML21125A344 and disputes Joint Petitioners claims of limited access.
Rebuttal Joint Petitioners have been unable to retrieve FSAR Revision 35 through ADAMS, despite searching for the referenced package number. Further complicating the matter, the April 14, 2021, Energy submittal (ML21125A285) states that the FSAR is available only on enclosed CD-ROMs, suggesting that it is not fully accessible electronically.
This lack of public access undermines petitioners ability to review the LARs and formulate meaningful contentions, in violation of the transparency principles outlined in CLI-00-3, 51 NRC 45 (2000). Joint Petitioners request clarification from the NRC Staff and full electronic
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25 access to FSAR Revision 35. Joint Petitioners do not dispute the NRC Staff is able to access FSAR revision 35, but, point out for some reason the public cannot.
Alan Blind, Petitioner, Reply to NRC Staffs Statements on the September 2011 Palisades Loss of DC Power and Yellow Finding Event NRC Staffs Position The NRC Staffs reply raises several points regarding the relevance of the September 2011 Palisades event and Joint Petitioners supplemental brief arguments, including:
The supplemental brief 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 non-conformances at Palisades (NRC Staff Reply, page 17).
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of 10 25 The event was caused by a failure in maintenance, not a design problem, and thus does not support challenges to the FSAR or design basis.
The SDP process is for evaluating inspection findings, not for making licensing decisions.
The NRCs final conditional core damage probability (CCDP) of 6.5E-5, corresponding to a Yellow finding, does not demonstrate deficiencies in the FSAR or design basis.
Rebuttal 1.
NRC Staff Mischaracterizes the Nature of the Supplemental Brief On Mr. Blinds Accounts of the Event and SDP Process The NRC Staffs assertion that the supplemental brief is based on "opinions" is factually incorrect and mischaracterizes my professional qualifications and firsthand involvement in the 2011 Palisades event. At the time of the event, I served as the Engineering Director at Palisades and directly oversaw the licensees response.
My responsibilities included:
Oversight and responsibility for the licensees Significance Determination Process (SDP) analysis development.
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of 11 25
Presenting the SDP results at the NRC Enforcement Conference chaired by Mr. Jack Geisner, who is now the NRC Region III Administrator.
Engaging in multiple discussions with NRC staff regarding the SDP analysis and outcomes, including the rationale for the NRC's "Yellow" finding vs our, the licensees proposed white finding.
Member of the Palisades Corrective Action Review Board, which approved the Root Cause Evaluation of the event.
2.
These statements are not opinions but are based on my extensive professional experience and firsthand interactions during the event.
Should further validation of my role and expertise be required, Mr.
Jack Geisner, now Region III Regional Administrator, could testify to my qualifications, preparation of the SDP analysis, and the substance of our discussions regarding the NRCs findings and SDP final determination.
3.
The Event Highlights Systemic Weaknesses in FSAR Revision 35 The NRC Staff, in its reply to our brief, characterizes the event as caused by maintenance failures rather than design problems, but
Submittal Date: 12/13/2024 50-255-LA-3
of 12 25 this oversimplification ignores the broader systemic weaknesses in FSAR Revision 35. Specifically:
The cascading failures that occurred during the event were enabled by a design basis that complies with FSAR Revision 35 but lacks the robustness of modern General Design Criteria (GDC) or Standard Review Plan (SRP) standards.
The root cause of the event was the failure to confirm the correct circuit breaker type, a design control process violation, allowing the loss of power to that DC panel and then cascading failures to propagate across multiple safety-related systems. While this was a maintenance initiated event, exacerbated by a lack of design control, it underscores the inadequacies of a design basis that then allowed cascading failures, from a unanticipated malfunction, that then relied on operator actions all occurring because of a design basis that allowed the lack of passive component single-failure-proof design. Malfunctions are mitigated thru defense in depth, which is heavily reduced at Palisades.the point of concern of Joint Petitioners.and the demonstrated linkage between this event and harm.
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of 13 25 4.
Joint Petitioners argue that these weaknesses justify rejecting Holtecs proposed use of 10 C.F.R. § 50.59 to update FSAR Revision 35, as doing so would perpetuate reliance on an outdated licensing basis that fails to align with modern safety standards. Petitioners contend that NRC Staff now has the legal authority to do so, but are electing not to do so. The regulatory arguments NRC Staff now present have flaws, such as it use of the § 50.82(b) NRC Termination of License, to support its allowing Holtecs selection of applicable regulations with no further NRC evaluation, review and approval.
5.
Operator Actions and NRC SDP Conclusions Support Petitioners Arguments The NRC Region III Staff explained to me, in the event enforcement process, that the difference between the NRCs Yellow finding and the licensees proposed White finding rested on the reliance on operator actions to mitigate the event. This is made clear when examining the NRC enforcement SDP worksheets compared to my, the licensees SDP calculation. This reliance highlights a critical deficiency in FSAR Revision 35.
6.
Mr. Blind is not using this process to dispute the 2011 NRC SDP determination, as NRC raises as a new contention in it replay to
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of 14 25 Joint Petitioner ASLB ordered brief. I have never disputed the NRC's final determination nor am I raising this issue again for debate. Rather, I reference the NRC Region III determination to demonstrate an actual event's linkage to harm and to highlight how the design basis should now be evaluated as part of the decision-making process for allowing Palisades to return to service. This context is directly relevant to the issues raised in Joint Petitioners' contentions and establishes a clear connection between the requested ASLB action on those contentions and the harm experienced by Joint Petitioners.
The NRC explicitly rejected the licensees attempt, in our SDP submittal, to credit operator actions in mitigating the event, nearing over fill and over pressurizing the primary coolant system, emphasizing the regulatory preference for passive, engineered safeguards over reliance on human intervention.
Modern SRP standards prioritize engineered systems over procedural reliance, in particular, for high importance and stressful situations, further illustrating the inadequacy of the current FSAR.
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of 15 25 6.
The NRCs findings during the 2001 event SDP process directly support Joint Petitioners contention that FSAR Revision 35 places excessive reliance on operator actions, which are inherently less reliable during high-stress situations. Rejecting Holtecs proposed regulatory framework would ensure that there is a new review of Palisades passive, single-failure-proof systems that are informed with modern safety standards.
7.
NRC Inspectors Frustrations with Palisades Grandfathered Licensing Basis During my tenure as Engineering Director, I managed the licensees participation in multiple NRC inspections of Palisades design basis.
These were large team inspections spanning over a month. NRC inspectors frequently expressed frustration with their inability to hold Palisades to GDC and SRP standards as it did at other plants, due to its grandfathered licensing basis under NUREG-0820. I personally provided guidance and oversight to develop licensee responses to these inspector finding, so I know exactly the basis of NRC inspector frustrations and how the current, FSAR based design basis was lacking defense in depth, typical found at other plants.
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These observations further demonstrate the procedural and regulatory challenges associated with Palisades reliance on FSAR Revision 35.
Joint Petitioners argue that NRC Staff has the authority to revise and modernizing the Palisades licensing basis which is essential to align the plant with contemporary safety expectations and operational experience.
Conclusion The September 2011 Palisades event illustrates systemic weaknesses in FSAR Revision 35 and highlights the risks of reliance on operator actions and outdated design standards. The NRC Staffs characterization of my statements as "opinions" is both inaccurate and dismissive of the firsthand expertise and experience I bring to this matter.
Joint Petitioners contentions, which focus on rejecting Holtecs proposed use of 10 C.F.R. § 50.59 to update FSAR Revision 35, and rejection of NRC Staffs reply to Joint Petitioners with a mis-application of § 80.82(b)
Termination of License, directly address these deficiencies, demonstrates a real linkage from Joint Petitioners contention to our harm, and seek to ensure that Palisades undergoes a comprehensive regulatory review
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of 17 25 informed by modern safety standards and lessons learned. This approach is essential for enhancing Defense in Depth and ensuring public safety.
Argument for ASLB Review: NRC Staff's New Statements and Mischaracterizations The petitioners respectfully request that the ASLB accept this supplemental argument pursuant to 10 CFR § 2.309(c)(1). This submission addresses important and new statements introduced by NRC Staff in their reply to the Joint Petitioners brief, which extend beyond the scope of the ASLBs original order. While the NRC Staff has agreed with Joint Petitioners on key points regarding representation and standing, new and materially different assertions made by the NRC Staff, outside the scope of the ASLB order, necessitate this reply to ensure a balanced adjudicatory record.
(i) New Information Introduced by NRC Staff In its reply, NRC Staff mischaracterized the professional expertise and motives of the Joint Petitioners' designated representative, Alan Blind.
Specifically, the NRC Staff challenged Mr. Blinds description of events at
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of 18 25 Palisades as mere "opinions" and assigned incorrect motives to his explanations of Palisades-related events. These assertions harm the Joint Petitioners' arguments in all other contentions raised.
Additionally, NRC Staff introduced new interpretations that were not present in earlier filings, including:
Assertions downplaying the professional qualifications and firsthand experience of Mr. Blind during the September 2011 Palisades event.
Claims that Mr. Blind's explanations and analysis of Palisades' FSAR and design basis lack credibility, ignoring the professional context in which those statements were made.
FSAR Revision 35 is available for public access All Joint Petitioners contentions are un-admissible Alan Blind was required to submit a new Contention (ii) Materially Different and Harmful Assertions These new statements by NRC Staff are materially different from earlier information and directly undermine the credibility of Joint Petitioners, particularly Alan Blind. By framing Mr. Blind's professional experience and technical explanations as subjective opinions, NRC Staff has introduced a
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of 19 25 harmful narrative that could unfairly prejudice the adjudication of Joint Petitioners claims.
Moreover, NRC Staff's reasons for introducing additional, unrelated arguments remain unclear. For instance, the discussion regarding the public availability of FSAR Revision 35 and the lack of raising a new contention were not used to challenge the areas of agreement ordered by the ASLB. However, if left unaddressed, these new assertions could potentially surface as issues in later stages of this adjudication. Therefore, providing a response to these statements now, is necessary to ensure a complete and accurate record.
For example, NRC Staffs characterization of the September 2011 Palisades event as merely a maintenance issue misrepresents the systemic design basis deficiencies that Mr. Blind, as an experienced nuclear professional, identified during that event. By failing to acknowledge these deficiencies, NRC Staff undermines the validity of Joint Petitioners' arguments for an enhanced review of Palisades outdated licensing basis, which is central to ensuring public safety and regulatory compliance.
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of 20 25 (iii) Justification for Supplemental Filing This supplemental filing satisfies the three criteria for late submissions under 10 CFR § 2.309(c)(1):
1.
The Information Was Not Previously Available: The mischaracterizations and new statements introduced by NRC Staff were only included in their December 12, 2024, reply and were not part of or necessary for the original ASLB order for a brief on standing and representation. Joint Petitioners could not have anticipated or addressed these new assertions before their release.
2.
The Information is Materially Different from Previously Available Information: NRC Staffs reply introduces materially different interpretations by questioning Mr. Blinds professional qualifications and motives, which had not been contested in previous filings.
3.
The Filing is Submitted in a Timely Fashion: This supplemental filing is being submitted promptly following the public release of NRC Staffs reply on December 12, 2024. Joint Petitioners have acted expeditiously to address these new assertions and clarify the record.
Conclusion
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of 21 25 The new statements introduced by NRC Staff in their reply require the ASLBs attention to prevent an incomplete or biased adjudicatory record.
The Joint Petitioners argue that NRC Staffs mischaracterizations of Mr.
Blinds experience and motives harm their ability to demonstrate standing and challenge the regulatory framework being applied to Palisades. By accepting this supplemental filing, the ASLB can ensure fairness, transparency, and procedural integrity in its review process. Joint Petitioners respectfully request that this submission be included as part of the adjudicatory record to address the new and materially different assertions made by NRC Staff.
Submittal Conclusion This rebuttal addresses key areas of agreement and disagreement between Joint Petitioners and the NRC Staff. While procedural issues such as standing and representation have been resolved, substantive disagreements regarding the admissibility of contentions, access to FSAR Revision 35, and the implications of past events warrant further consideration.
Joint Petitioners request that the ASLB confirm the supplemental briefs adherence to procedural requirements and reject the NRC Staffs
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of 22 25 assertions that impose unwarranted procedural burdens or fail to account for transparency and accountability in the regulatory process. By addressing these issues, the ASLB can ensure a fair and thorough adjudication of the original contentions.
Case Law Allowing This Submittal The submission of this reply is grounded in the principles of procedural fairness, transparency, and the creation of a complete adjudicatory record.
While the ASLB order did not explicitly invite this rebuttal, established case law supports the legal grounds for submitting such a reply in situations where new facts or arguments raised by an opposing party require clarification or response to ensure a balanced record. Below are key cases that underscore the justification for this reply:
- 1. Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990)
This case emphasizes the importance of a full and transparent record in NRC proceedings. It held that ensuring all relevant issues are properly addressed is essential for fair adjudication. By submitting this reply, Joint Petitioners contribute to the completeness of the record, addressing new arguments raised by NRC Staff that would otherwise remain unchallenged.
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of 23 25
- 2. Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338 (1st Cir.
2004)
This case highlights the need for parties to be afforded a meaningful opportunity to respond to new issues raised in agency proceedings. The court recognized that parties must have the chance to address arguments or facts introduced after their initial filings. Joint Petitioners reply serves this purpose, ensuring that NRC Staffs new arguments and interpretations are not left uncontested.
- 3. Heckler v. Chaney, 470 U.S. 821 (1985)
This decision emphasizes the need for accountability in agency actions.
While the court deferred to the agency's discretion in certain enforcement matters, it underscored the necessity of a reasoned explanation for decisions. By replying to NRC Staffs arguments, Joint Petitioners are seeking accountability and a reasoned response to issues raised outside the scope of the original order.
- 4. Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221 (1st Cir. 1979)
The court in this case emphasized the importance of procedural fairness and ensuring that all parties have the opportunity to present their positions
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of 24 25 fully. Submitting this reply aligns with the principles established in Seacoast, allowing Joint Petitioners to address new NRC Staff arguments that were not part of the original briefing.
- 5. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-00-3, 51 NRC 45 (2000)
This case recognizes the need for transparency and fairness when material information is at issue. In situations where agency filings introduce new facts or legal interpretations, procedural fairness dictates that opposing parties be allowed to respond to maintain the integrity of the adjudicatory process.
Submittal Conclusion These cases collectively establish that the submission of this reply is both procedurally justified and legally supported. By addressing new facts and arguments raised by NRC Staff, this reply ensures the completeness and fairness of the adjudicatory record, upholding principles essential to NRC proceedings and administrative law. The ASLB is encouraged to consider this reply as a necessary step in maintaining a balanced and transparent process. Alan Blind, Petitioner and Joint Petitioners Representative
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of 25 25 Declaration of Alan Blind