ML24352A266
| ML24352A266 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 12/17/2024 |
| From: | Gary Arnold, Emily Krause, Miller A Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57228, 50-255-LA-3, ASLBP 24-986-01-LA-BD01 | |
| Download: ML24352A266 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Emily I. Krause, Chair Dr. Gary S. Arnold Dr. Arielle J. Miller In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)
Docket No. 50-255-LA-3 ASLBP No. 24-986-01-LA-BD01 December 17, 2024 MEMORANDUM AND ORDER (Addressing Joint Petitioners Representation and Requesting Information on Availability for Oral Argument)
On November 14, 2024, we provided Joint Petitioners an opportunity to address an apparent issue with their representation under 10 C.F.R. § 2.314(b).1 In Joint Petitioners hearing request, their representative, Alan Blind, characterized himself as the preparer of the hearing request and the designated point of contact, but he did not list himself as a petitioner.2
1 See Licensing Board Order (Concerning Oral Argument Scheduling and Joint Petitioners Representation) (Nov. 14, 2024) at 2-3 (unpublished) (November 14 Licensing Board Order).
The named Joint Petitioners in the hearing request are Jody Flynn, Thomas Flynn, Bruce Davis, Karen Davis, Christian Moevs, Mary and Chuck Huffman, and Dianne Ebert. Joint Petitioners Hearing Request (Sept. 9, 2024) at 15-16, 73-74 (Joint Petitioners Hearing Request). Joint Petitioners filed several supplements to their hearing request dated September 19, 22, 23, 25, 27 and October 3, 4, 5, 2024.
2 See Joint Petitioners Hearing Request at 13, 15, 19, 72-74; see also Petitioners Rebuttal:
NRC Staff Answer to Hearing Request from Individual Petitioners in Palisades Restart Amendment Proceeding (dated Nov. 7, 2024; filed Nov. 8, 2024) at 11.
He also stated that he is not an attorney.3 But as Holtec and the NRC Staff pointed out in their answers,4 section 2.314(b) does not appear to contemplate representation by a non-attorney who is not representing himself or an organization.5 Joint Petitioners filed a brief addressing the representation issue on November 21, 2024, and supplemented their brief on December 2.6 Joint Petitioners assert 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.7 Each of the Joint Petitioners signed declarations to that effect.8 Additionally, Joint Petitioners reference Mr.
Blinds forty-year experience in the nuclear industry and assert that without Mr. Blinds representation, they will be deprived of a meaningful opportunity to participate in the adjudicatory process.9
3 Joint Petitioners Hearing Request at 13.
4 Holtec Answer at 60; Staff Answer at 11-12.
5 See 10 C.F.R. § 2.314(b) (A person may appear in an adjudication on his or her own behalf or by an attorney-at-law. A partnership, corporation, or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law.); Carolina Power
& Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 203 n.3 (1986) (interpreting section 2.713, the precursor to section 2.314); see also Duke Power Co. (Cherokee Nuclear Station, Units 1, 2, and 3),
ALAB-440, 6 NRC 642, 643 n.3 (1977); Consolidated Edison Co. of New York (Indian Point, Unit 2), LBP-82-25, 15 NRC 715, 726 (1982).
6 Joint Petitioners Brief on Representation, Consolidation of Petitions, and Standing of Our Appointed Consolidated Point of Contact, Alan Blind (Nov. 21, 2024) (Joint Petitioners Brief on Representation); Supplemental Filing, Harm Linkage Explanation (Dec. 2, 2024).
7 Joint Petitioners Brief on Representation at 2.
8 Id. at 18-25.
9 Id. at 8-9.
Holtec Decommissioning International, LLC, and Holtec Palisades, LLC (collectively, Holtec) and the NRC Staff timely responded on December 12.10 Holtec argues that Joint Petitioners attempt to cure the representation issue should be rejected as too little, too late.11 According to Holtec, Joint Petitioners ability to cure their representation by identifying Mr. Blind as a petitioner also requires a favorable ruling on Mr. Blinds standing to intervene, the requirements of which, Holtec argues, Mr. Blind has failed to satisfy.12 The Staff asserts that Alan Blind and the Joint Petitioners [have] effectively cure[d] the defects in... Joint Petitioners representation13 and that neither it nor Holtec would be prejudiced by the Boards allowing Joint Petitioners and Mr. Blind to consolidate their briefs and presentations of evidence.14 Indeed, the Staff argues that consolidation would facilitate disposition of this case by enabling all filings to be considered together and allowing a single individual to represent these petitioners.15 At the same time, however, the Staff argues that Joint Petitioners brief contains a new, embedded hearing request by Mr. Blind that does not address or meet the timeliness requirements in 10 C.F.R. § 2.309(c) for contentions filed after the hearing request deadline.16
10 Applicants Response to Joint Petitioners Supplemental Filings (Dec. 12, 2024) (Holtec Response Brief); NRC Staff Answer to Joint Petitioners Brief on Representation, Consolidation of Petitions, and Standing of Consolidated Point of Contact, Alan Blind (Dec. 12, 2024) (Staff Response Brief).
11 Holtec Response Brief at 3.
12 Id. at 3-4 (maintaining that [t]he key to [Joint Petitioners choice of cure] is that Mr. Blind must be a petitioner, including satisfying all prerequisites such as standing (emphasis omitted)).
13 Staff Response Brief at 6.
14 Id. at 20.
15 Id.
16 Id. at 2, 11-12.
As we observed in our November 14 order, if Mr. Blind were to represent himself as a petitioner, the other self-represented individuals who comprise Joint Petitioners could move to consolidate their presentations and designate Mr. Blind as their single point of contact.17 In other proceedings involving multiple self-represented litigants, licensing boards have allowed petitioners to name a single point of contact for clarity and efficiency.18 For these reasons, we grant Mr. Blinds request to represent himself as a petitioner and Joint Petitioners request for Mr. Blind to serve as Joint Petitioners designated point of contact.
Contrary to the Staffs argument, we do not view Joint Petitioners brief as a new hearing request that fails to meet the timeliness requirements for new contentions filed after the hearing request deadline. As the Staff acknowledges, the circumstances presented here are unique.19 In the hearing request as originally filed, Mr. Blind represented that he prepared the request, including the proposed contentions, and expressed his interest in the proceeding yet did not name himself as a petitioner.20 We therefore view our consolidation of Joint Petitioners and Mr.
Blinds presentations as akin to the leniency accorded pro se litigants to address certain procedural defects in their filings,21 particularly where, as here, doing so will facilitate the orderly
17 November 14 Licensing Board Order at 3 n.8 (citing 10 C.F.R. § 2.316; Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-22, 70 NRC 640, 650-51 (2009)).
18 See, e.g., Levy County, LBP-09-22, 70 NRC at 650-51.
19 See Staff Response Brief at 15-16 n.64.
20 See Joint Petitioners Hearing Request at 13, 73-74.
21 See, e.g., USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 313-15 (2005)
(considering supplemental information filed after the hearing request deadline as support for petitioners standing); see also FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, 73 NRC 534, 549 (2011) (concluding that in addition to curing defects in standing, a petitioner may cure a defect in its representation), affd in part and revd in part on other grounds, CLI-12-8, 75 NRC 393 (2012); USEC, Inc. (American Centrifuge Plant),
LBP-05-28, 62 NRC 585, 593 (2005) (considering petitioners subsequent filings in the face of procedural defects given petitioners pro se status), affd, CLI-06-9, 63 NRC 433 (2006).
disposition of this proceeding.22 We also disagree with Holtecs argument that Mr. Blinds status as a petitioner depends upon his meeting the requirements for intervention. A petitioner, by definition, has asserted their interest in a proceeding and has expressed their desire to participate as a party by addressing standing and proffering contentions.23 That person is not yet a party for whom a Board has found standing and admitted at least one contention.
Accordingly, we will consider Joint Petitioners November 21 and December 2 briefs as supplements to their hearing request. We will consider the Staffs and Holtecs December 12 response briefs as supplements to their answers. That said, we do not decide today whether Mr. Blind or any of the other Joint Petitioners has demonstrated standing or raised an admissible contention. We will address Joint Petitioners standing and the admissibility of their contentions in our decision on the pending hearing requests.24 We emphasize that the leniency we accord Joint Petitioners today is limited. The deadline for Joint Petitioners to reply to the Staffs and Holtecs answers to their hearing request passed on November 12, 2024, and the deadline to address their representation passed on December 5, 2024.25 Since that time, Joint Petitioners have filed four additional briefs that appear to supplement their replyone on December 8, two on December 13, and one on December 16. Joint Petitioners assert that fairness requires our consideration of their
22 See 10 C.F.R. § 2.319(c), (g), (h); cf. id. § 2.316.
23 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.); see also id. § 2.4 (definitions of Participant and Potential party).
24 A group of organizations filed a separate hearing request that is also pending before the Board. See Petition to Intervene and Request for Adjudicatory Hearing by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert and Nuclear Energy Information Service (dated Oct. 7, 2024; filed Oct. 10, 2024).
25 Licensing Board Order (Amending Initial Prehearing Order) (Oct. 17, 2024) at 2 (unpublished); November 14 Licensing Board Order at 3.
supplemental filings.26 But fairness requires that all participants, including those appearing without the assistance of counsel, adhere to the NRCs procedural rules and the directives including deadlinesset forth in licensing board and Commission orders.27 We will not entertain further written briefs that provide variations on arguments in support of Joint Petitioners standing or the admissibility of their currently pending contentions.28 Joint Petitioners will have an opportunity to clarify their position on these issues in response to Board questions at oral argument. If Joint Petitioners wish to raise new contentions or amend their proposed contentions, however, they must address and meet the requirements in 10 C.F.R.
26 Supplemental in Addition to Argument Against NRC Staffs Misuse of § 50.82(b) (Dec. 8, 2024) at 20; Rebuttal to NRC Staffs Reply with New Comments (Dec. 13, 2024) at 2; Supplemental Two Argument: Newly Disclosed Holtec Statement Further Highlights Flaws in NRC Staffs Reliance on § 50.82(b) to Justify Operational Authority and Use of Original Design Basis via § 50.59 (Dec. 13, 2024) at 10; Ensuring a Common Understanding of NRC Terms:
Design Basis, Final Safety Analysis Report (FSAR), and Technical Specifications (Dec. 16, 2024) at 11-12.
27 See 10 C.F.R. § 2.319; Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981) (Fairness to all involved in NRCs adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations. While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.); see also Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998) (expecting licensing boards to enforce adherence to hearing procedures, instill discipline in the hearing process, and ensure a prompt yet fair resolution of contested issues in adjudicatory proceedings).
28 See 10 C.F.R. § 2.309(i)(3) (providing that, after the deadline for answers and replies, [n]o other written answers or replies will be entertained). To allow otherwise could unfairly prejudice the other participants or cause undue delay. See Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (Allowing new claims in a reply not only would defeat the contention-filing deadline, but would unfairly deprive other participants of an opportunity to rebut the new claims.); see also Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-17, 39 NRC 359, 365 n.31 (1994) (denying a request to reply not contemplated by the Commissions rules of practice and reasoning that fairness requires providing opposing parties a similar opportunity to respond, bringing in its wake an unnecessary prolongation of the case).
§ 2.309(c) and (f).29 At this time, we do not address the propriety of Joint Petitioners December 8, December 13, and December 16 filings.
We request that on or before December 19, 2024, each participant file on the docket for this proceeding (1) their preference for either a virtual oral argument or an in-person oral argument at the NRCs Headquarters in Rockville, Maryland, and (2) their availability on January 14, 15, and 16, 2025.30 We will provide additional details regarding the argument in a future order, including instructions for members of the public to access the argument via a listen-only telephone line.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Emily I. Krause, Chair ADMINISTRATIVE JUDGE
/RA/
Dr. Gary S. Arnold ADMINISTRATIVE JUDGE
/RA/
Dr. Arielle J. Miller ADMINISTRATIVE JUDGE Rockville, Maryland December 17, 2024
29 10 C.F.R. § 2.309(c), (f); see also Licensing Board Order (Initial Prehearing Order) (Sept. 19, 2024) at 2 n.5, 4 n.12 (unpublished).
30 The participants should be aware that, if an in-person oral argument is scheduled, the Board might need to conduct either a hybrid or virtual argument if circumstances (e.g., inclement weather) prevent travel in person to NRC Headquarters in Rockville.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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HOLTEC DECOMMISSIONING
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Docket No. 50-255-LA-3 INTERNATIONAL, LLC, AND HOLTEC
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PALISADES, LLC
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(Palisades Nuclear Plant)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Addressing Joint Petitioners Representation and Requesting Information on Availability for Oral Argument) have been served upon the following persons by Electronic Information Exchange, and by email and/or first-class mail as indicated.
U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Emily I. Krause, Chair, Administrative Judge Dr. Gary S. Arnold, Administrative Judge Dr. Arielle J. Miller, Administrative Judge Whitlee Dean, Law Clerk Georgia Rock, Law Clerk Email: Emily.Krause@nrc.gov Gary.Arnold@nrc.gov Arielle.Miller@nrc.gov Whitlee.Dean@nrc.gov Georgia.Rock@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Kevin D. Bernstein, Esq.
Julie G. Ezell Peter L. Lom, Esq.
Anita G. Naber, Esq.
David E. Roth, Esq.
Michael A. Spencer, Esq.
Susan H. Vrahoretis, Esq.
Georgia Hampton, Paralegal Email: Julie.Ezell@nrc.gov Peter.Lon@nrc.gov Anita.ghoshnaber@nrc.gov David.Roth@nrc.gov Michael.Spencer@nrc.gov Susan.Vrahoretis@nrc.gov Geiorgiann.Hampton@nrc.gov Counsel for Holtec Decommissioning International, LLC and Holtec Palisades, LLC Balch and Bingham LLP 1710 Sixth Avenue North Birmingham, AL 35203 M. Stanford Blanton, Esq.
Grant Eskelsen, Esq.
Alan D. Lovett, Esq.
Email: sblanton@balch.com geskelsen@balch.com alovett@balch.com
Palisades Nuclear Plant, Docket No. 50-255-LA-3 MEMORANDUM AND ORDER (Addressing Joint Petitioners Representation and Requesting Information on Availability for Oral Argument) 2 Representative for the Petitioners (who reside within the Palisades Emergency Planning Zone)
Arthur Blind 1000 West Shawnee Road Baroda, MI 49101 Email: a.alan.blind@gmail.com Counsel for Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information services Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 Email: wtaylorlaw@aol.com Terry J. Lodge 316 N. Michigan Street, Suite 520 Toledo, OH 43604-5627 Email: tjlodge@yahoo.com Office of the Secretary of the Commission Dated at Rockville, Maryland, this 17th day of December 2024.
CLARA SOLA Digitally signed by CLARA SOLA Date: 2024.12.17 13:54:10 -05'00'