ML25008A279
| ML25008A279 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 01/08/2025 |
| From: | Lom P, Mary Spencer NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57254, 50-255-LA-3, ASLBP 24-986-01-LA-BD01 | |
| Download: ML25008A279 (0) | |
Text
January 8, 2025 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 MOTION TO INCLUDE NRC STAFF REQUEST FOR ADDITIONAL INFORMATION AND APPLICANT RESPONSE INTO THE ADJUDICATION DOCKET Pursuant to 10 C.F.R. § 2.323(c), the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) herein answers the December 31, 2024, motion (RAI Motion) filed by Alan Blind, Jody Flynn, Tom Flynn, Bruce Davis, Karen Davis, Christian Moevs, Mary Huffman, Chuck Huffman, and Diane Ebert (collectively, Joint Petitioners) to include a Staff request for additional information (RAI) and the associated response (RAI Response) from Holtec Decommissioning International, LLC and Holtec Palisades, LLC (collectively, Applicant) in the adjudicatory record.
As explained below, the Staff opposes the RAI Motion because it (1) adds arguments in support of the Joint Petitioners current contentions, contrary to NRC regulations and a licensing board (Board) ruling; (2) does not show that that the RAI and RAI Response support the Joint Petitioners current contentions; (3) would not satisfy the requirements for a new or amended contention even if these requirements were applicable to the RAI Motion (which they are not);
and (4) does not satisfy, in part, the requirement to consult under 10 C.F.R. § 2.323(b).
Therefore, the RAI Motion should be denied.
BACKGROUND The Staff has described the procedural background of this proceeding in other filings, most recently in the Staffs December 18, 2024, answer to the Joint Petitioners motions to supplement their replies to the Staffs and Applicants answers to the hearing request (Staff Answer to Reply Supplement Requests).1 Regarding the instant RAI Motion: On December 25, 2024, the Joint Petitioners initiated consultation by email on a draft motion (Draft RAI Motion) based on a Staff RAI that was sent to the Applicant on November 22, 2024, but made available to the public in ADAMS on December 23, 2024.2 The Joint Petitioners emailed a second draft of the Draft RAI Motion on December 27, 2024, and a third draft of the Draft RAI Motion on December 29, 2024. The December 29, 2024, email explained that this third draft entirely superseded the previous ones. The requests for consultation sought a response from the other participants by January 3, 2025.3 On December 30, 2024, the Staff replied by email that it hoped to respond to the request for consultation by December 31, 2024. Regarding the requested January 3, 2025, response date, the Staff informed the Joint Petitioners that the RAI became available to the public on December 23, 2024, so the ten-day deadline in 10 C.F.R. § 2.323(a) for filing a motion based on that RAI fell on January 2, 2025, not January 3.
Later, on December 30, 2024, the Joint Petitioners filed a motion for extension of time (Motion for Extension of Time) to file a motion based on documents that the Joint Petitioners 1 NRC Staff Answer to Joint Petitioners Requests to Supplement Their Replies to the Answers to Joint Petitioners Hearing Request, at 2-7 (Dec. 18, 2024) (Staff Answer to Reply Supplement Requests).
2 Draft Request for Additional Information Related to the License Amendment Request to Reinstate the Operating Technical Specifications (Nov. 22, 2024) (ADAMS Accession No. ML24358A148) (RAI). The Applicant did not request clarification on the RAI, and as a result the draft became the final version.
3 The December 29, 2024, email requested the participants views on Friday, 12/3/2025, but the Staff understands the 12 to be a typographical error. The previous emails from Joint Petitioners requested participants views by January 3, 2025, and the Joint Petitioners subsequent December 30, 2024, email again referenced a January 3 date.
state became available in ADAMS on December 23 and 30, 2024.4 The Staff received no request for consultation on a motion for extension of time, and the Joint Petitioners did not initiate consultation on a motion regarding the document that became available in ADAMS on December 30, 2024. The Staff filed an answer opposing the Motion for Extension of Time on December 31, 2024.5 On December 31, 2024, the Staff sent the Joint Petitioners an email explaining why the Staff opposed the Draft RAI Motion based on the Staff RAI that became available to the public on December 23, 2024. Later, on December 31, 2024, the Joint Petitioners filed the RAI Motion based on the RAI (which became available to the public on December 23, 2024) and the RAI Response (which became available to the public on December 30, 2024).6 In the RAI Motion, the Joint Petitioners also stated they were withdrawing the Motion for Extension of Time.7 DISCUSSION As discussed below, the RAI Motion should be denied because it (1) adds arguments in support of the Joint Petitioners current contentions, contrary to NRC regulations and a Board ruling; (2) does not show that the RAI and RAI Response support the Joint Petitioners current contentions; (3) would not satisfy the standards for a new or amended contention even if these standards were applicable to the RAI Motion (which they are not); and (4) fails, in part, to satisfy the consultation requirements of 10 C.F.R. § 2.323(b). Therefore, and as further explained below, the Board should deny the RAI Motion.
4 Joint Petitioners Motion for Extension of Time (Dec. 30, 2024) (Motion for Extension of Time).
5 NRC Staff Answer to Joint Petitioners Motion for Extension of Time (Dec. 31, 2024) (Staff Answer to Motion for Extension of Time).
6 Motion to Include NRC Staff LAR Reviewer Request for Additional Information Concerning Updated Operations FSAR and Holtecs Use of 10 C.F.R. § 50.59 Into the Adjudication Docket (Dec. 31, 2024) (RAI Motion). The Applicant submitted a response to the RAI on Dec. 19, 2024. See Response to Request for Additional Information Regarding the License Amendment Request to Reinstate the Operating Technical Specifications (Dec. 19, 2024) (ML24354A111) (RAI Response).
7 RAI Motion at 3.
I.
The Joint Petitioners Seek to Add Arguments to Their Existing Contentions, Which Is Not Permitted by NRC Regulations or the Boards Rulings The Joint Petitioners RAI Motion should be denied because they attempt through their motion to add additional support for their existing contentions, which is not permitted at this stage of the proceeding by NRC regulations or the Boards rulings. In their now withdrawn Motion for Extension of Time, the Joint Petitioners expressly stated that the RAI Motion would not propose new contentions.8 The RAI Motion itself does not purport to add any new contentions and does not address the requirements for contentions under 10 C.F.R. § 2.309(f).
The Joint Petitioners also do not clearly state an intent to amend any contentions nor specify how any of their contentions should be amended or how any amendment satisfies § 2.309(f).9 The Joint Petitioners instead appear to be attempting to add support for their existing contentions.10 The deadline for the Joint Petitioners to file replies to the Staffs and Applicants answers was November 12, 2024.11 Once this deadline passed, NRC regulations provide that [n]o other written answers or replies will be entertained.12 The Staff has already reminded the Joint Petitioners that NRC regulations do not generally permit additional filings once the deadline for 8 Motion for Extension of Time at 4.
9 In this regard, the Staff informed the Joint Petitioners during consultation that they needed to be clear in their intentions, stating, if you do intend to file a new or amended contention, you should make that clear in your filing and address all applicable requirements. RAI Motion, Appendix One, Consultation Response; Counsel for the U.S. Nuclear Regulatory Commission Office of the General Counsel, at 2.
10 See, e.g., RAI Motion at 2 (stating that the RAI directly affects the issues under contention and raises additional questions regarding the adequacy of Holtecs License Amendment Requests[.]); id. at 4-5 (stating, The final RAI and Holtecs response affirms the Joint Petitioners contention that a complete and updated operating Final Safety Analysis Report (FSAR) is necessary for evaluating the Technical Specifications and other aspects of the LAR.)
11 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Amending Initial Prehearing Order) (Oct. 17, 2024) (unpublished) (ML24291A105).
12 10 C.F.R. § 2.309(i)(3).
replies has passed.13 And the Board reinforced the need to adhere to NRC requirements in its December 17, 2024, order, stating, 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.14 In response to the Boards order, the Joint Petitioners stated that they fully understand that no further filings seeking to expand upon or supplement our current standing or contentions will be entertained.15 Yet in filing the RAI Motion, the Joint Petitioners have done just that.
As the Staff has previously explained, replies are limited to responding to the answers to a hearing request, and the answers are available when filed.16 The Staffs and Applicants answers filed on November 4, 2024, provided the bounds of the arguments the Joint Petitioners could make in their replies, and those replies were due by November 12, 2024. After that date, under NRC regulations no additional filings seeking to add support for existing contentions may be entertained. The Joint Petitioners nonetheless seek to do so by filing the RAI Motion.
Consequently, the Board should deny the RAI Motion because it is not permitted by 10 C.F.R.
§ 2.309(i)(3) or the Boards rulings.
II.
The Joint Petitioners Do Not Show that the RAI or RAI Response Supports the Joint Petitioners Existing Contentions Even if the Board entertains the RAI Motion, the Board should still deny it because the Joint Petitioners do not show that the RAI or RAI Response that forms the basis for the RAI Motion support the Joint Petitioners existing contentions. For example, the Joint Petitioners 13 See Staff Answer to Reply Supplement Requests at 2 n.2, 15.
14 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Addressing Joint Petitioners Representation and Requesting Information on Availability for Oral Argument), at 6 (Dec. 17, 2024) (unpublished) (ML24352A266) (citing 10 C.F.R. § 2.309(i)(3)).
15 Joint Petitioners Response to Memorandum and Order (Addressing Joint Petitioners Representation and Requesting Information on Availability for Oral Argument) (Dec. 17, 2024) (emphasis added).
16 Staff Answer to Reply Supplement Requests at 11.
consider the RAIs citation to 10 C.F.R. § 50.34(b) to be significant but do not explain how this supports their existing contentions.17 In its answer to the Joint Petitioners hearing request, the Staff also cited 10 C.F.R. § 50.34(b), in this case to explain that the Joint Petitioners missed their opportunity to provide a sufficiently supported explanation of how the proposed content of the final safety analysis report (FSAR) for operation did not comply with pertinent NRC regulations, including § 50.34(b).18 The Joint Petitioners also state that the RAI further reveals that the NRC LAR Review Staff questioned Holtecs proposed use of 10 C.F.R. § 50.59 to reinstate the updated operating FSAR.19 But the RAI is not directed at implementation of the § 50.59 process, which in any event is outside the scope of this proceeding, as the Staff explained in its answer to the Joint Petitioners hearing request.20 And while proposed Contention 2 addresses the FSAR, the contention does not raise any of the issues addressed by the Staffs RAI. Rather, the RAI requests that the Applicant fully describe any planned differences between the Updated Final Safety Analysis Report (UFSAR) Revision 35 and the Defueled Safety Analysis Report and explain why those differences are acceptable and satisfy regulatory requirements.21 Finally, the Joint Petitioners consider the RAI Response to be significant and assert that it differs substantially from what was included in its Technical Specification LAR submittal.22 Leaving aside whether this assertion is true or not, it does not support the Joint Petitioners existing contentions.
17 RAI Motion at 5.
18 NRC Staff Answer to Hearing Request From Individual Petitioners in Palisades Restart Amendment Proceeding, at 31-32 (Nov. 4, 2024) (ML24309A276) (Staff Answer to Hearing Request).
19 RAI Motion at 7.
20 See Staff Answer to Hearing Request at 29-31, 35-37.
21 RAI at 2.
22 RAI Motion at 7.
Requesting additional information from applicants is a standard and ongoing part of NRC licensing reviews and indicate[s] that the staff is doing its job: making sure that the application, if granted, will result in safe operation of the facility.23 The Joint Petitioners do not show that the RAI or RAI Response at issue supplies support for any of the Joint Petitioners contentions, and therefore on this additional basis the Board should deny the RAI Motion.
III.
The Standards in 10 C.F.R. § 2.309 for New or Amended Contentions Are Neither Applicable Nor Satisfied The Joint Petitioners argue that they satisfy the standards in 10 C.F.R. § 2.309(c), but as explained above, the Joint Petitioners do not appear to be filing new or amended contentions but rather adding support to their existing contentions, rendering § 2.309(c) inapplicable by its terms. Section 2.309(c) governs the filing of hearing requests, intervention petitions, or motions for leave to file new or amended contentions after the deadline for doing so has passed.24 To the extent the Joint Petitioners intended to file new or amended contentions, the Joint Petitioners failed to satisfy the applicable requirements in 10 C.F.R. § 2.309, as explained below.
In their RAI Motion, the Joint Petitioners do not state a proposed contention, much less show that it meets the admissibility criteria of 10 C.F.R. § 2.309(f)(1). Instead, they offer general assertions, such as stating that the RAI and RAI Response affirms the Joint Petitioners contention that a complete and updated [FSAR] is necessary to evaluate the challenged license amendment; that it remains unclear the process Holtec is using to produce an Updated Operating FSAR; and that the RAI cites 10 C.F.R. § 50.34(b)[.]25 They also claim (incorrectly, as explained above), that the Staff questioned Holtecs proposed use of 10 C.F.R. § 50.59 to 23 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 349 (1998), affd sub nom Natl Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000), cert.
denied, 531 U.S. 1070 (2001).
24 10 C.F.R. § 2.309(c)(1).
25 RAI Motion at 4-5.
reinstate the updated operating FSAR.26 They further assert that the RAI Response contains new information about the Applicants plan to update the UFSAR that they assert differs substantially from the information included in the application.27 But such general assertions do not support contention admissibility under § 2.309(f)(1), and the claim regarding the Staffs supposed views on Holtecs proposed use of § 50.59 is incorrect and concerns matters outside the scope of the proceeding.
The Joint Petitioners also do not demonstrate good cause for a new or amended contention as required by § 2.309(c). They cite two prior NRC proceedings before summarily concluding that the Staffs newly issued RAI is new and materially different information within the meaning of 10 C.F.R. § 2.309(f)(2).28 Finally, they assert that because the RAI was issued after the deadline for hearing requests, is relevant to this proceeding, and its inclusion would not unduly delay the proceeding, the Joint Petitioners have good cause under 10 C.F.R.
§ 2.309(c) to file a motion to introduce new information.29 All of these arguments are unavailing.
First, to the extent the Joint Petitioners are seeking to file new or amended contentions, their reliance on 10 C.F.R. § 2.309(f)(2) is misplaced, as the language therein on new or amended contentions pertains to filing amended environmental contentions, not safety 26 Id. at 7.
27 Id. at 7.
28 Id. at 8-9. The Joint Petitioners cite one proceeding in which a licensing board purportedly recognized that newly issued RAIs and the applicants responses may contain new factual information not previously in the record, and thus could support new or amended contentions. Id. (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179 (1998), motion for reconsideration granted in part and denied in part on other grounds, LBP-98-10, 47 NRC 288 (1998)). This case, however, contains no discussion of RAIs. Even if it did, the Joint Petitioners have failed to show how the RAI at issue here presents new information, let alone how the requirements of 10 C.F.R.
§ 2.309(c) have been met.
29 RAI Motion at 9-10.
contentions, and § 2.309(f)(2) otherwise states [c]ontentions must be based on documents or other information available at the time the petition is to be filed, such as the application[.]30 Second, the Joint Petitioners are incorrect in their assertion that the RAI contains new and materially different information because the RAI is based on the application and regulations as they existed at the original October 7, 2024, deadline for hearing requests. The application was available to the Joint Petitioners long before that deadline, and therefore any contentions related to matters raised in the RAI could have been filed by the original October 7, 2024, deadline. Third, to the extent the Joint Petitioners view the RAIs reference to 10 C.F.R.
§ 50.34(b) as new information of significance to the Joint Petitioners contentions, this view is incorrect. Any arguments based on § 50.34(b) could have been made in the Joint Petitioners original hearing request, as discussed above. Fourth, the Joint Petitioners fail to identify the specific information in the RAI Response that differs substantially from the contents of the original application, nor do they explain what those differences are.
Lastly, the RAI itself cannot be the subject of a safety contention because such contentions must be based on the application and not on the Staffs safety review, of which the RAI forms a part.31 As the Commission has previously stated, petitioners who wish to support their contentions with information from RAIs must develop a fact-based argument that actually and specifically challenges the application.32 The Joint Petitioners do not attempt to do this in their RAI Motion. For all of these reasons, the Board should deny the RAI Motion.
30 10 C.F.R. § 2.309(f)(2).
31 See Staff Answer to Hearing Request at 25. See also Calvert Cliffs, CLI-98-25, 48 NRC at 350 ([I]t is the license application, not the NRC staff review, that is at issue in our adjudications); Duke Energy Corp.
(Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 340 (1999) ([T]he staff's ongoing review of [an] application does not provide a basis for a contention).
32 Oconee, CLI-99-11, 49 NRC at 341 (emphasis added).
IV.
The Joint Petitioners Continue to Not Satisfy Consultation Requirement Finally, the portion of the RAI Motion based on the RAI Response must be rejected in accordance with 10 C.F.R. § 2.323(b) because the Joint Petitioners failed to consult with the Staff on inclusion of the RAI Response in the RAI Motion, despite having had sufficient time to do so and despite the Staffs explicit reminder to the Joint Petitioners of their obligations to consult.33 The Joint Petitioners admit that they did not expressly seek consultation on adding Holtecs December 30 RAI response.34 They seek to justify this by pointing to the Staffs existing opposition to the Draft RAI Motion, which they deem to be part of the same new information set as the RAI Response, and concluding that further consultation on including Holtecs reply would be unlikely to yield any different outcome.35 But 10 C.F.R. § 2.323(b) contains no exception allowing movants to avoid their obligation to consult by assuming that consultation will be unsuccessful, and permitting such an exception would swallow the rule whole.
The Joint Petitioners appear to understand that consultation is mandatory and yet continue nonetheless to selectively disregard the requirement. The portion of the RAI Motion based on the RAI Response must be rejected for failure to comply with 10 C.F.R. § 2.323(b).
CONCLUSION As explained above, the Board should deny the RAI Motion because it add arguments in support of the Joint Petitioners current contentions, but this is not permitted by NRC regulations or the Boards rulings. Also, the Joint Petitioners do not show that the RAI or RAI Response supports the Joint Petitioners current contentions. Further, while the Joint Petitioners address 33 See Staff Answer to Motion for Extension of Time at 5. The Draft RAI Motion, on which the Joint Petitioners initiated consultation, did not reference the RAI Response. The Joint Petitioners instead revised the Draft RAI Motion to include the RAI Response and filed the RAI Motion without consulting the Staff.
34 RAI Motion at 3.
35 Id. at 3-4.
some of the requirements for new or amended contentions, these requirements do not apply to the RAI Motion; regardless, they are not satisfied. Finally, the RAI Motion does not satisfy 10 C.F.R. § 2.323(b)s consultation requirement as it relates to arguments based on the RAI Response.
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 January 8, 2025
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 Motion to Include NRC Staff Request for Additional Information and Applicant Response Into the Adjudication Docket, has been filed through the NRCs E-Filing System this 8th day of January 2025.
/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 January 8, 2025