ML25045A183
| ML25045A183 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 02/14/2025 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 57289, ASLBP 24-986-01-LA-BD01, 50-255-LA-3, NRC-0194 | |
| Download: ML25045A183 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Palisades Nuclear Plant Oral Argument Docket Number:
50-255-LA-3 ASLBP Number:
24-986-01-LA-BD01 Location:
teleconference Date:
Wednesday, February 12, 2025 Work Order No.:
NRC-0194 Pages 1-94 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
1 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 HEARING 6
x 7
In the Matter of: : Docket No.
8 HOLTEC DECOMMISSIONING : 50-255-LA-3 9
INTERNATIONAL, LLC, AND :
10 HOLTEC PALISADES, LLC. : ASLBP No.
11
- 24-986-01-LA-BD01 12 (Palisades Nuclear Plant) :
13
x 14 Wednesday, February 12, 2025 15 Video Teleconference 16 17 18 BEFORE:
19 EMILY I. KRAUSE, Chair 20 DR. GARY S. ARNOLD, Administrative Judge 21 DR. ARIELLE J. MILLER, Administrative Judge 22 23 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
2 APPEARANCES:
1 On Behalf of the Petitioning Organizations, 2
Beyond Nuclear, Dont Waste Michigan, Michigan Safe 3
Energy Future, Three Mile Island Alert, and Nuclear 4
Energy Information Services:
5 WALLACE L. TAYLOR, ESQ.
6 4403 1st Ave. S.E.
7 Suite 402 8
Cedar Rapids, Iowa 52402 9
wtaylorlaw@aol.com 10 11 and 12 TERRY J. LODGE, ESQ.
13 316 N. Michigan Street 14 Suite 520 15 Toledo, OH 43604-5627 16 tjlodge@yahoo.com 17 18 On Behalf of the Joint Petitioners:
19 ARTHUR BLIND, pro se 20 1000 West Shawnee Road 21 Baroda, MI 49101 22 a.alan.blind@gmail.com 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
3 On Behalf of the the Applicants, Holtec 1
Decommissioning International, LLC and Holtec 2
Palisades, LLC:
3 M. STANFORD BLANTON, ESQ.
4 ALAN D. LOVETT, ESQ.
5 JASON B. TOMPKINS, ESQ.
6 of:
Balch and Bingham LLP 7
1710 Sixth Avenue North 8
Birmingham, AL 35203 9
sblanton@balch.com 10 alovett@balch.com 11 jtompkins@balch.com 12 On Behalf of the Nuclear Regulatory Commission:
13 MICHAEL A. SPENCER, ESQ.
14 ANITA GHOSH NABER, ESQ.
15 KEVIN D. BERNSTEIN, ESQ.
16 PETER L. LOM, ESQ.
17 of:
Office of the General Counsel 18 Mail Stop - O-14A44 19 U.S. Nuclear Regulatory Commission 20 Washington, D.C. 20555-0001 21 Michael.Spencer@nrc.gov 22 Anita.Ghoshnaber@nrc.gov 23 Kevin.Bernstein@nrc.gov 24 Peter.Lom@nrc.gov 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
4 P-R-O-C-E-E-D-I-N-G-S 1
11:13 a.m.
2 CHAIR KRAUSE: Good morning, thank you all 3
for your patience as we made sure everyone could get 4
connected this morning.
5 Today were hearing oral argument in a 6
license amendment proceeding for Palisades Nuclear 7
Plant, Docket Number 50-255-LA-3.
8 My name is Emily Krause. Im a legal 9
judge and the Chair of this Board. With me on the 10 bench are Judge Gary Arnold, who has a PhD in nuclear 11 engineering, and Judge Arielle Miller, who has a PhD 12 in mechanical engineering and is also a licensed 13 professional engineer in nuclear engineering.
14 I have a few administrative announcements 15 before we begin. Weve made a telephone line 16 available for members of the public to access this 17 proceeding. We also have a court reporter online with 18 us today. This proceeding is being transcribed, and 19 a transcript should be available in the NRCs 20 electronic hearing docket next week.
21 Because we are conducting the conference 22 using the Microsoft Teams platform, please be sure to 23 identify yourself when speaking and minimize any 24 background noise.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
5 Lastly Ill briefly describe the timing 1
system were using for todays argument. During their 2
five minute opening and closing statements, 3
participants will see a screen at the bottom of the 4
Boards video image with a title slide. The slide 5
will then either read opening or closing when the 6
statements begin.
7 At the three minute mark, participants 8
will see a slide that says two minutes remaining. And 9
at the four minute mark, participants will see a slide 10 that says one minute remaining. After that time, the 11 slide will display time expired. We will then turn to 12 Board questions.
13 With our administrative matters out of the 14 way, Ill move on to a brief summary of the 15 proceeding.
16 This licensing board was established to 17 rule on two hearing requests, one filed by a group of 18 nine individuals, collectively Joint Petitioners, and 19 the other filed by five organizations, collectively 20 Petitioning Organizations.
21 Joint Petitioners filed five contentions, 22 one of which theyve withdrawn, and Petitioning 23 Organizations filed seven contentions.
The 24 contentions challenge four license amendment requests 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
6 and a related exemption request filed by Holtec 1
Decommissioning International,
- LLC, and Holtec 2
Palisades, LLC.
3 One of the issues the Board will need to 4
address is whether the exemption request is within the 5
scope of the proceeding.
6 The participants also should be prepared 7
to address whether the staffs issuance of its draft 8
environmental document, the draft environmental 9
assessment, and drat finding of no significant impact, 10 affects any of pending contentions.
11 The purpose of todays pre-hearing 12 conference is to see if the Board understands the 13 arguments in the participants written filings.
14 The Board will hear arguments first from 15 Petitioning Organizations, followed by Joint 16 Petitioners, Applicants, and the NRC staff. Weve 17 allotted approximately 20 minutes to each participant 18 with five minutes for an opening statement and the 19 rest reserved for Board questions.
20 After we hear from each participant, we 21 will take a 15 minute recess, after which we will ask 22 any follow-up questions and begin the time for closing 23 statements.
24 Well now turn to introductions.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
7 Petitioning Organizations, would you please introduce 1
yourselves?
2 MR. TAYLOR: This is Wally Taylor.
3 MR. LODGE: And this Terry Lodge.
4 CHAIR KRAUSE: Good morning, thank you.
5 Joint Petitioners?
6 MR. BLIND: Yes, this is Alan Blind, a 7
representative for the petitioners. And I have with 8
me fellow petitioners who will be listening, Bruce 9
Davis, Jody Flynn, and Tom Flynn. Thank you.
10 CHAIR KRAUSE: Welcome, Thank you.
11 Applicants?
12 MR. BLANTON: Had to unmute, good morning, 13 Im Stan Blanton, appearing for Holtec Decommissioning 14 International. Here in the room with me are Jason 15 Tompkins and Alan Lovett.
16 CHAIR KRAUSE: Good morning, thank you.
17 And NRC staff?
18 MR. SPENCER: Im Michael Spencer for the 19 NRC staff.
20 MS. NABER: I'm Anita Ghosh Naber for the 21 NRC staff.
22 MR. BERNSTEIN: Kevin Bernstein for the 23 NRC staff.
24 MR. LOM: Peter Lom for the NRC staff.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
8 CHAIR KRAUSE: Great, thank you very much.
1 Were now going to turn to the opening 2
statements. And well begin with, well, well begin 3
with Petitioning Organizations for your opening 4
statement and for our Board questioning. As a 5
reminder, you have five minutes. Please begin.
6 MR. TAYLOR: Thank you. This is Wally 7
Taylor.
This case is about approving the 8
unprecedented proposal to attempt to restart a nuclear 9
reactor that has been shut down and is in 10 decommissioning status.
11 Holtec and the NRC admit that NRC 12 regulations do not prescribe a specific regulatory 13 path for reinstating operational authority for a 14 reactor in decommissioning status. So Holtec, with 15 the complicity of the NRC, has cobbled together a plan 16 to use existing regulations to try to accomplish a 17 restart.
18 The linchpin of this plan is an exemption 19 from the regulatory impact of the 10 CFR 50.82 20 certifications for a permanent decommissioning. For 21 all of the reasons set forth in our pleadings, Holtec 22 is not entitled to that exemption.
23 But the first issue this Board must 24 address is the fact that the exemption is not a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
9 licensing action and should not be considered in this 1
proceeding. In fact, Holtec agrees with us on that 2
point.
3 Through a previous intervention petition, 4
and a petition for a declaratory order, the 5
Petitioning Organizations have tried to clarify 6
whether the exemption request must be raised as a 7
contention in an intervention petition or if it can 8
raised in another forum.
9 The NRC has not provided a clear answer 10 except to say that the exemption request is not a 11 basis for requesting a hearing but may be raised as a 12 contention if it is inextricably intertwined with the 13 licensing action.
14 The Indian Point case that we cited in our 15 reply is the clearest statement that the Commission 16 has made on this issue. It is clear from that 17 decision that inextricably intertwined means that the 18 exemption request cannot be granted unless the license 19 amendment is granted.
20 But in our case, the exemption could be 21 granted, but the license amendment could still be 22 denied. And vice versa, it could go the other way.
23 Although the exemption is the first prerequisite for 24 the restart plan as a whole, it is not necessary for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
10 determining if the license amendment should be 1
granted.
2 As we explained, the only reason we 3
included the exemption request as a contention in this 4
case is because we have received unclear statements 5
from the NRC, and we did not want to waive the issue.
6 Ultimately we ask this Board to determine that the 7
exemption is not properly in this proceeding.
8 But even if the Board does consider the 9
exemption in this licensing proceeding, the exemption 10 must be denied as we explained in our pleadings.
11 The other contentions should also be 12 deemed admissible. Restarting a closed reactor in 13 decommissioning mode involves, or should involve, more 14 than just some paper shuffling as Holtec and the NRC 15 suggest. We have presented significant environmental 16 and safety issues that are not being adequately 17 addressed.
18 The NRC has prepared an environmental 19 assessment rather than and environmental impact 20 statement. Our Contention 2 asserts that this project 21 requires an EIS. An EIS is required for a license 22 renewal; surely, this project requires an EIS as well.
23 Contention 3
explains why Holtecs 24 proposal to restart Palisades requires a new operating 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
11 license, not a simple license amendment. Pursuant to 1
Rule 50.82 certifications, Palisades is in the process 2
of permanent cessation of operation and the removal of 3
fuel from the reactor. There is no provision in 50.82 4
for reversing that process. So therefore, a new 5
operating license is required.
6 Contention 4
asserts there is no 7
regulatory pathway to reviving the path of the 8
Palisades operating license. Holtec is relying on 9
Rule 50.59 which allows changes in certain 10 circumstances during decommissioning.
11 But resurrecting a non-operational license 12 requires more than a simple change, nor can the NRC 13 claim that its July 2024 guidance document provides 14 that regulatory pathway. That document was prepared 15 after Holtecs request to restart Palisades, so it is 16 a post hoc attempt to justify giving Holtec what it 17 wants.
18 Contention 5 points out that Holtecs 19 environmental document did not contain a purpose of 20 need statement, and Contention 6 asserts that the 21 environmental document did not contain a discussion of 22 alternatives.
23 The NRC has now submitted an environmental 24 assessment that does contain those two issues. But we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
12 expect to file amendments to those contentions to 1
address the EA thats now been filed just 12 days ago.
2 CHAIR KRAUSE: Mr. Taylor, I realize, 3
since youre connecting on the phone, you may not be 4
able to see our slides, but your five minute time has 5
expired.
6 MR. TAYLOR: Okay.
7 CHAIR KRAUSE: Can you just wrap up your 8
statement here, and then well begin with questions, 9
please. Thanks.
10 MR. TAYLOR: Okay, thank you. The other 11 contentions, for the reasons that weve asserted, are 12 admissible. And we will also be amending Contention 13
- 7. So with that, we look forward to answering the 14 Boards questions. Thank you.
15 CHAIR KRAUSE: Thank you very much. So to 16 begin our questioning, Im going to turn to Judge 17 Arnold.
18 JUDGE ARNOLD: Thank you. You answered my 19 first question in your opening statement, but let me 20 ask you this. Where in the petition do you make the 21 argument that the exemption request is inextricably 22 intertwined with the amendment requests? I could not 23 find the argument.
24 MR. TAYLOR: No, because we don't think it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
13 is. As I indicated, weve submitted the Contention 1 1
simply because we could not get a clear answer from 2
the NRC as to whether we needed to address it in this 3
proceeding or, as we contend, and as Holtec contends, 4
it is not properly in this proceeding.
5 We think that the Indian Point case that 6
we cited in our reply brief is pretty clear that, 7
unless the license amendment requires the exemption, 8
that it is not inextricably intertwined.
9 And we could have the, the license could 10 be amended without the exemption. The exemption is 11 necessary for the entire restart process, but its not 12 necessary for the license amendments which are the 13 subject of this proceeding.
14 JUDGE ARNOLD: Thank you. Each of the 15 four amendment requests state that a categorical 16 exclusion applies for the requested amendment. An 17 application for which a categorical exclusion applies 18 has no legal obligation to perform an NEPA evaluation.
19 The NRC has not decided that the 20 categorical exclusions do not apply but rather has 21 stated that, despite the categorical exclusions, it 22 will develop an environmental assessment for the 23 overall restart effort.
24 Thus, the categorical exclusion still 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
14 stands, and there appears to be no regulatory 1
requirement for any NEPA analysis. In your petition, 2
do you explicitly challenge the categorical 3
exclusions?
4 MR. TAYLOR: I dont believe so. Perhaps 5
Mr. Lodge could answer that question.
6 MR. LODGE: Good morning. As you see, Im 7
finally making an appearance. We did not argue the 8
categorical exclusions point, Your Honor. We did 9
however raise as a contention that there needs to be 10 an environmental impact statement. And we essentially 11 oppose the notion of a merely voluntary EA that has 12 been produced by the staff.
13 JUDGE ARNOLD: Thank you. Heres the 14 quandary I have. Now, on Pages 3 and 43 of your 15 petition, you stated that Holtec has submitted no 16 environmental report. And my question is, in 17 circumstances under which no environmental report is 18 required, and no environmental report is submitted, 19 how is it possible to challenge the environmental 20 report?
21 MR. LODGE: Well, Your Honor, the staff 22 indicated that it was treating much of the exemption 23 application, the LARs and the exemption application, 24 as if it were an environmental report. And we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
15 considered it thus our obligation to respond to it.
1 And despite the fact that we believe that 2
it is not a complete and full environmental report as 3
contemplated by the regulations, we did accept that 4
treatment of it in raising our petition arguments.
5 JUDGE ARNOLD: Thank you. Thats all my 6
questions for you.
7 CHAIR KRAUSE: Great, so I have a couple 8
questions. So I guess Im going back to Petitioning 9
Organizations statement that you submitted this 10 challenge to the exemption request, but you dont 11 agree that its intertwined.
12 You
- know, theres arguing in the 13 alternative, of course. Were all familiar with that 14 in legal proceedings. But Im wondering does that 15 undermine your contention here whether its within the 16 scope and your ability to demonstrate that its 17 inextricably intertwined with the license amendment 18 requests?
19 MR. TAYLOR: Well, this is Wally Taylor.
20 Thats a good question. And you have very well 21 described our quandary. And as I said, we think, and 22 Holtec thinks, that the exemption should not be a part 23 of this proceeding.
24 But because we got unclear answers from 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
16 the NRC regarding that, we just felt that we needed to 1
at least assert it in this proceeding so that we 2
werent waiving it if the Board ultimately decides 3
that it should be dealt with in this proceeding.
4 So we were kind of on the horns of a 5
dilemma, but we think either way that were in the 6
right here. That, first of all, it should not be in 7
this proceeding, but if it is then it should be 8
admitted as a contention.
9 I dont know if that answers your question 10 or not, but --
11 CHAIR KRAUSE: Yes, and then just also to 12 be clear, if its not in this proceeding, how are you 13 envisioning challenging this, if at all, the exemption 14 request?
15 MR. TAYLOR: In court through an APA 16 action.
17 CHAIR KRAUSE: Okay, thank you. And then 18 another question I have, I guess it really goes to, 19 you know, an overarching argument that Petitioning 20 Organizations are raising about the process thats 21 being used here, the license amendment process, 22 specifically exemptions, license transfers.
23 And I guess, at least in Contention 3, 24 Petitioning Organizations appear to agree that there 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
17 is an operating license in place that is conditioned.
1 So it is in place, its been conditioned. And, well, 2
the agency operates by way of amendments, transfers, 3
exemptions, and various other tools, regulatory tools, 4
when dealing with a license in place.
5 So I guess Im wondering if you could 6
describe for me what is special about this proceeding 7
that would make it so that the NRC cannot use those 8
processes in this type of request, this type of 9
project.
10 MR. TAYLOR: Well, this is Wally Taylor 11 again. Well, lets understand first what 50.82 says.
12 Its the licensee, which was Entergy at the time for 13 Palisades, filed the certifications for permanent 14 cessation of operation, that that starts the process 15 set forth in 50.82 which is totally in terms of 16 proceeding with decommissioning and then ultimately a 17 termination of the license.
18 And apparently, you know, Holtec is 19 proposing to use changes pursuant to Rule 50.59. But 20 if you read that rule, that is regarding the 21 decommissioning process again. And so theres no 22 format or no basis for using a license amendment to 23 restart a closed and decommissioning reactor. And 24 thats our argument.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
18 CHAIR KRAUSE: And just going back, I 1
think you said 50.59 was just for decommissioning, I 2
guess, as I understood it.
3 THE WITNESS: Well, at least it is in this 4
context. I mean, there are other ways you -- other 5
scenarios where you could have the changes pursuant to 6
Rule 50.59. But in this context, it concerns 7
decommissioning.
8 CHAIR KRAUSE: Okay, so just to make sure 9
I understand your position, 50.59, just as a general 10 matter, applies to changes to licenses, you know, 11 changes that can be done outside of the license 12 amendment, changes that could be done by license 13 amendment. But in this particular context, because of 14 the status of the Palisades Plant, its only for 15 decommissioning changes.
16 CHAIR KRAUSE: Is that correct?
17 MR. TAYLOR: Right. And I believe that's 18 what 50.59 says, that it's -- when the plants are 19 decommissioning, you can make changes. But it 20 specifies what kind of changes you can make with or 21 without a license amendment.
22 CHAIR KRAUSE: Okay. One additional 23 question I have involves, specifically, Contention 24 Two. But, you know, you mentioned it in your opening 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
19 statement, just how the draft environmental assessment 1
and draft finding of no significant impact affects 2
your pending environmental contentions. And you 3
indicated that you would be filing amendments to those 4
-- some of the contentions.
5 I guess, I just want to focus on 6
Contention Two, which is more -- to me it seems more 7
like a process contention in terms of, you know, an 8
EIS is required here, but now we know that the staff 9
has prepared an EA, an environmental assessment. And 10 then an EIS would only follow, in that case, if the 11 staff had found significant impacts. And it has now 12 proposed that there are no -- a finding of no 13 significant impacts.
14 So, I guess, could you describe for me how 15 Contention Two might have been impacted by the staff's 16 draft documents?
17 MR. TAYLOR: Sure. This is Wally Taylor 18 again. We probably will amend that because, in 19 reviewing the EA and the FONSI, we will challenge the 20 finding of no significant impact. And, probably, 21 certain aspects of the EA that indicate that the staff 22 made the wrong decision, in our view, of making a 23 FONSI, and that they should have found that they 24 needed to do a full EIS.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
20 CHAIR KRAUSE: Great, thank you. Those 1
are all of my questions. I'll turn now to Judge 2
Miller.
3 JUDGE MILLER: I don't have any questions.
4 CHAIR KRAUSE: Okay, great. So, that's 5
all of our questions for you, counsel.
6 And we will now turn to the representative 7
for Joint Petitioners. We'll hear from Petitioning 8
Organizations again at closing.
9 So Mr. Blind, you may begin --
10 (Simultaneous speaking.)
11 MR. BLIND: Okay, I was just trying to get 12 the -- so, I'll actually begin with my opening.
13 Okay, my name is Alan Blind, representing 14 pro se, a group of local homeowners concerned about 15 the Holtec proposals.
16 We challenge Holtec's amendment request to 17 revise the Permanently Defueled Technical 18 Specifications for resuming power operations, arguing 19 it fails to meet the 10 CFR 50.34, 50.90 and 50.36 20 regulations. Each require an updated Final Safety 21 Analysis Report.
22 Because no NRC regulation specifically 23 addresses returning a
decommissioned plant to 24 operations, Holtec relies on a single sentence from 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
21 the Berka denial, the proposed rulemaking denial.
1
- However, the full denial outlines reasoned 2
prerequisites that must also be applied, we contend.
3 All this imposes an unusual burden on the 4
NRC LAR reviewers, because in order to evaluate 5
Holtec's submittals they must first consult the 6
Commission's guidance from the full PRM denial, 7
instead of using formal NRC guidance or an existing 8
rule. That burden is further compounded by Holtec not 9
providing an updated FSAR for the reviewers' 10 reference. These disputes are all contained in our 11 Contentions One, Two, and Three.
12 Because no NRC regulation specifically 13 addresses returning a
decommissioned plant to 14 operation -- like I say, they are relying on the Berka 15 for its restart, but reduces it to a single sentence 16 to define major Commission policy. That would be an 17 interpretation.
18 Yet the full binding Berka denial, which 19 is not an interpretation, we contend sets forth the 20 reasoned prerequisites that must be met for that 21 denial to be used for this restart.
22 If the entire PRM denial is applied, we 23 agree, it is binding and is, should be, acceptable for 24 the Commission to use to approve the criteria for a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
22 restart. However, using one sentence, as Holtec has 1
proposed, to justify their startup, and in particular 2
how they propose to not submit an updated FSAR, we 3
contend is wrong.
4 We submit that this Board must evaluate 5
the proper implementation of Commission regulations by 6
examining the full Commission-approved and binding 7
Berka PRM denial. We challenge the staff and Holtec's 8
reliance on that single sentence.
9 Let me just give you one item out of the 10 PRM that's being -- has not been mentioned. It says, 11 any such request -- they're referring to a request to 12 restart a plant -- would be reviewed consistent with 13 applicable regulatory requirements, including safety 14 standards, to protect health and safety of the public.
15 Holtec has not addressed this.
16 While the Berka PRM denial outlines a 17 structure for potential restart, it must be applied 18 holistically, not narrowed down to one sentence as 19 Holtec has done. Because Holtec has cited the Federal 20 Register notice in its submittals and answers to Joint 21 Petitioners, the entire notice is now before the 22 Board, not just Holtec's single-line excerpt. And we 23 respectfully request the Board to consult the denial 24 in its entirety, not just one sentence.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
23 Also, NRC answers said that most NRC staff 1
agrees with its Berka allowing a decommissioning 2
reactor to seek amendments and exemptions to resume 3
operations. But most of the staff is not all of the 4
staff, and suggests that there is internal staff 5
disagreements on this. Perhaps they are concerned 6
about the lack of clear guidance.
7 We ask this Board to determine whether 8
Holtec's license amendment request meet all the 9
applicable Part 50 production facility regulations and 10 the Commission -- the full Commission-approved Berka 11 prerequisites. If Holtec cannot demonstrate this, 12 particularly by providing an updated FSAR with its 13 submittals, then the Board may deny or condition the 14 requested admissions.
15 Under 50.3, Office of General Counsel 16 interpretations must improve any interpretation, to be 17 binding. We all know they have not done that in this 18 case. So, if Holtec continues on to use this single 19 sentence, that's an interpretation -- that's not 20 binding on the Commission, nor on this panel.
21 I lost my train of thought. So, I'll just 22 close. Should the Board -- we respectfully request 23 that the Board deny or condition Holtec's license 24 amendments if it fails to meet the applicable 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
24 regulations, and it does not address all of the 1
prerequisite statements in the full Berka denial.
2 Thank you.
3 CHAIR KRAUSE: Thank you. Now we'll turn 4
to Board questions.
5 Judge Arnold?
6 JUDGE ARNOLD: Thank you. Your Contention 7
One that is -- it is summarized on page 24 of your 8
initial petition -- appears to take issue with the 9
review of license amendments and other licensee 10 restart actions. This indicates that you consider 11 other licensee restart actions to be within scope.
12 Where in your petition do you address 13 this? And do you state why the license amendment 14 requests are inextricably intertwined with other 15 restart actions?
16 MR. BLIND: Thank you for that question, 17 Your Honor. In fact, that question has been addressed 18 in our withdrawal of Contention Four.
19 From reading of the answers from Holtec 20 and staff attorneys, we now realize that the restart 21 activities and the license amendment review activities 22 are going forward based on the Berka interpretation.
23 And we agree with that, in terms of the work on site 24 is ongoing at-risk.
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25 They made clear that Holtec is free to 1
make whatever submittals they like. And in 2
particular, they said they can make amendment requests 3
and they can make requests for exemptions. As I said 4
before, most of the staff agrees with that. And that 5
those submittals are under review by the staff, and no 6
determination has been made. We accept that. We 7
didn't understand that until we read those replies.
8 And likewise, Holtec replied, saying they 9
understand that all of the work that they're doing on 10 site is at-risk. Meaning, that at some point in the 11 future it will have to be reconciled with whatever the 12 approved license is.
13 JUDGE ARNOLD: Thank you. My only other 14 question for you is, reading your submittals to me 15 indicates that none of your contentions focus on NEPA 16 issues. Is that correct?
17 MR. BLIND: That means the environmental 18 assessment?
19 JUDGE ARNOLD: Environmental, yes.
20 MR. BLIND: That is correct. We are not 21 referencing that whatsoever, or contending any of its 22 contents.
23 JUDGE ARNOLD: Thank you, I'm done.
24 CHAIR KRAUSE: Okay, great. I have a few 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
26 questions for Joint Petitioners. In your petition and 1
reply, the Joint Petitioners argue that these license 2
amendments are premature. And as you also mentioned 3
in your opening statement, there's this concern about 4
the definition of existing regulatory framework, and 5
what that might mean.
6 But, if we look to the section that's 7
relevant for license amendments, Section 50.92 which 8
says that, you know, the requirements for initial 9
licenses are -- you know, apply here, apply to license 10 amendments.
11 What, in Joint Petitioner's view, would 12 the framework look like, other than what's provided 13 there where it says that it's the requirements for 14 initial licenses, I guess is my question.
15 Is there a practical difference, from 16 Joint Petitioner's position, between what would be 17 applied to the initial license and what's being sought 18 in these license amendment requests?
19 MR. BLIND: Thank you, Your Honor. Again, 20 I think principally that question is also moot, based 21 on our withdrawal of Contention Four. You know, the 22 ripeness doctrine.
23 You know, we from this table, you know, we 24 attended public meetings. And so, we formulated our 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
27 initial understanding of how this process works from 1
those public meetings. And rightfully or wrongfully, 2
our view was, what they were telling us is that the 3
regulations had been decided upon -- you know, of how 4
this process was going to go forward.
5 And so, we argued that we don't think that 6
they've been decided yet. And therefore, you can't 7
process work on site and you can't process amendment 8
reviews until you know what the regulations are ahead 9
of time.
10 Like I said before, we now have a 11 different understanding. That, again, Holtec is free 12 to submit whatever regulations they like. The point 13 of our raising the final safety analysis is to point 14 out that we're focusing in on a dispute to a specific 15 regulation so that we can reach an agreement on what 16 is the point of the dispute.
17 We bring Berka into the equation because 18 we see -- you know, when we look at, what is your 19 authority as a Board -- you don't have an authority to 20 change the denial. That's Commission policy, so we 21 don't dispute that. But you do have the requirement 22 that you have to interpret that the regulations are 23 being applied correctly.
24 So Holtec has submitted their regulations 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
28 to the Commission, or the staff, that they feel are 1
appropriate. And we're simply pointing out that, when 2
you read the entire text of Berka, it has a lot of 3
prerequisites. You know, they say that this could all 4
go on under the existing framework, but they had a lot 5
of discussion of, these are the things that have to be 6
considered and the things that have to be done to 7
enable the existing framework to become applicable.
8 And we think it -- that is then forming, 9
well, what are the -- for your evaluation, the Board's 10 evaluation, in your authority in looking at, have the 11 applicable regulations been applied correctly? You 12 first have to look at Berka, because that's the 13 Commission's policy on what are the applicable 14 regulations, when you look at those prerequisites.
15 So, you have to use a -- you have to look 16 at that and say, okay, did what Holtec submit meet all 17 of those prerequisites in Berka, not just that final 18 sentence?
19 So, that's what we're disputing. And 20 we've narrowed it down, because it had to be from one 21 of our contentions, that they did not include a 22 updated operating Final Safety Analysis Report with 23 their technical specification amendment request.
24 And it seems, when you read the responses 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
29 from -- and maybe they can reply to this -- but it 1
seems like they're replying on that, their ambiguity 2
that they're applying to Berka that says, well --
3 Holtec said, we're going to follow these regulations.
4 Well, we think they should be following these 5
regulations over here. But we have to argue the ones 6
that Holtec presented, rather than the ones we think 7
they should follow.
8 But in the end, it will be the staff that 9
decides which ones are being followed. So, all we're 10 asking for you to do is to apply the full text of 11 Berka in analyzing our dispute on the FSAR not being 12 included with their submittals.
13 You know, they like to say they referred 14 to an earlier version of an FSAR, but when you read 15 the plain language of the regulations -- and again, 16 from the entire body, you know, you've got regulations 17 for plants in construction, for FSAR submittals, safer 18 FSAR, you got operating plants which is primarily the 19 50.59 process. And even the Appendix A general design 20 criteria includes a statement on updating the Safety 21 Evaluation Report.
22 And so, they have to consider all of those 23 in there submittal, not just the one that they like.
24 The one they like happens to be the one that they can 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
30 do, without having to get NRC approval -- you know, 1
ergo the 50.59 process. Okay. Thank you.
2 CHAIR KRAUSE: Okay. And I guess, you 3
know, so those -- when you say that your argument 4
about these amendments being premature has now been 5
withdrawn, that it's moot --
6 MR. BLIND: That's correct.
7 CHAIR KRAUSE: It seems as though in 8
Contentions One, Two and Three that argument is there, 9
as well. So, we should view those contentions, as 10 well, with that lens. That you're not arguing --
11 you're not making that argument for those contentions.
12 Is that correct?
13 MR. BLIND: Well, let me -- I think you're 14 asking me, is the ripeness argument moot? Yes, that's 15 correct.
16 But, as far as everything that I laid out 17 in the opening statement, and I just included in the 18 answer all that other stuff, yeah we're pulling -- you 19 know, admittedly I'm new at this, and I've never done 20 it before. So, looking back I can see how Contentions 21 One, Two and Three were not clear. But I can also 22 look back and see now how it's all there. And I think 23 that's what you're asking me, and I think you're 24 acknowledging -- yes, it's all in there, but not 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
31 particularly clear.
1 So, what I would ask, if you allow, if you 2
ordered me to file a brief, I could provide that 3
clarity in a new brief. If you were to so order.
4 CHAIR KRAUSE: I think we're okay with the 5
written filings as-is, but thank you.
6 MR. BLIND: Okay. You're welcome.
7 CHAIR KRAUSE: There's an -- I have one 8
more question, just in terms of clarification. In 9
your reply you raise a, sort of a competing argument 10 with the staff's interpretation of 50.51(b). Which 11 is, you know, that the operating license continues in 12 effect until the Commission, you know, provides in 13 writing that it's been terminated.
14 Could you explain a little bit more your 15 argument there, with Joint Petitioner's position on 16 the meaning of Section 50.51?
17 MR. BLIND: Yes. The staff argued that 18 this really goes to what is the applicable design 19 basis, and that would become germane for the NRC's 20 review if Holtec does submit an updated Final Safety 21 Analysis Report. You know, the NRC staff would have 22 to review that updated Final Safety Analysis Report.
23 So, one of the questions the staff will 24 have to answer is, do we accept the old design basis 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
32 from 1969? Or do we do something else? Or is there 1
a hybrid -- you know, do we want to look at new issues 2
that may have -- new learnings that we may have had 3
over the last 50 years.
4 So, if you look at that argument about 5
using 50.51(b), the staff would, if they accept that, 6
they would be compelled to use the old licensing 7
basis. We just want the staff to know that they can 8
make that decision, independently.
9 You know, we presented the argument in the 10 in the written response. And it really goes along the 11 lines of, it's just illogical because, you know, they 12 argue that the -- they can go back and use the 13 original design basis up until the point that the 14 license termination letter has been issued. And 15 there's a lot of legal stuff, you know, in there.
16 But from practical terms then, is, you 17 know, Big Rock Point, you know, still has spent fuel 18 on site, and therefore it hasn't been issued its 19 termination letter. So, by that argument, just common 20 sense tells you that, you know, they can't just get 21 the blueprints from Big Rock Point, rebuild it to 22 those blueprints and say we're going to apply for a 23 license using the 1965 design basis for Big Rock 24 Point. It just doesn't pass the common sense test.
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33 I just don't want the NRC staff to feel 1
that they're compelled to use that original design 2
basis that -- you know, we've had 50 years of 3
operating experience and it needs to be -- the 4
judgments need to be made on, we need to update 5
applicable proportions of that.
6 You know, in the submittal I made on the 7
brief for standing I talked about the loss of the DC 8
Distribution Panel. But let me tell -- there's 9
another story. I feel bad about this. I was the 10 Engineering Director at Palisades. I was the author 11 of a document where a design basis inspection team had 12 correctly questioned, our atmospheric dump valves were 13 not safety related.
14 And we relied upon those in the steam 15 generator tube rupture accident and analysis, and they 16 say that's not right. And I was the primary author of 17 the response to that finding, that said you go back to 18 the original '69 design basis. And it says, that was 19 accepted by the SEP, NUREG-0820. And then they also 20 went on to say, yes, but they're going to fail under 21 certain scenarios.
22 And we pointed to our emergency operating 23 procedure. It said, under that scenario we're going 24 to initiate once through cooling on this pressurized 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
34 water reactor, which is -- which means we're going to 1
open up -- operator actions open up the power operated 2
relief valves, blow the rupture disk on the 3
pressurized relief tank, initiating a large break LOCA 4
to ensure that the core remains covered.
5 Well, the inspection team said come on, 6
that just doesn't make sense. How can you possibly do 7
that? We've never seen anything like that before.
8 And they were upset. Well, they submitted that -- I 9
can't -- there's a -- it's documented in ADAMS. They 10 submitted that question to the NRR, and NRR wrote back 11 a very long analysis of that and said, we can't do 12 anything about that because it's ingrained in that old 13 accident -- or in that '69 design basis.
14 I felt terrible about that. And I still 15 feel terrible about it today, that I was a participant 16 in it. And I know those same NRC inspectors from 17 Region Three would tell you, they're just as upset 18 about it today as they were back in 2008.
19 So, I want the NRC staff to have the 20 opportunity, now that they can, to go back and perhaps 21 say hey, you need to make those atmospheric dump 22 valves safety related.
23 CHAIR KRAUSE: Okay, thank you.
24 CHAIR KRAUSE: Judge Miller, do you have 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
35 any questions?
1 JUDGE MILLER: Yes, thank you. Hi, my 2
first question is, where in your submittals can you 3
point to where you make the connection between, I 4
think, how you refer to it as the Berka document and 5
its connection to the license amendment requests and 6
how those two are connected?
7 MR. BLIND: Well, the connection was 8
established in the Holtec submittals. It wasn't my 9
connection. It was the connection that they made. So 10 I just simply researched the basis for how they were 11 making that connection.
12 JUDGE MILLER: I --
13 MR. BLIND: As I think about it, I'm not 14 necessarily disagreeing with that connection. What 15 I'm disagreeing with is they're not using the full PRM 16 denial. They're only using one sentence out of the 17 PRM denial. If they were using, as I say, the full 18 denial which includes all of the conditions that are 19 necessary to be able to use the phrase within the 20 existing regulatory framework, if it was being used in 21 that context, I would not have this dispute. And I 22 submit that you have the authority because they're 23 using an interpretation rather than the full document 24 that are binding on you and you can take a look at it.
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36 JUDGE MILLER: Thank you. I think what I 1
was trying to ask, though, was where you -- if you 2
could point to where in your submittals you reference 3
the Holtec license amendment request in connection to 4
the argument that you make in one or more of your 5
contentions as it relates to the Berka denial or 6
document.
7 MR. BLIND: Yeah, I'm not sure that I --
8 I think you just repeated the question. So I'm not 9
sure I understand it. Could you rephrase it, please?
10 Because I would just give you the same answer in that 11 case.
12 JUDGE MILLER: No problem. No problem.
13 In your contentions or at least I believe in 14 Contention 1, it might be in another one, you critique 15 the reliance on that one phrase from the document as 16 Holtec uses it. And your argument is it needs to be 17 the larger document.
18 MR. BLIND: One phrase meaning that you 19 could use existing regulatory framework --
20 (Simultaneous speaking.)
21 MR. BLIND: -- on a case-by-case basis.
22 JUDGE MILLER: Yeah.
23 MR. BLIND: Well, Holtec pulled that 24 statement directly from the Federal Register notice.
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37 And they footnoted that in their submittal. So I just 1
simply was providing that statement in my petition so 2
that it could be referenced.
3 My point being is Holtec in their 4
submittals, that's all they ever tell you both in 5
their submittals to the staff. But more importantly 6
in their answers, they only give you, the board, that 7
one sentence. They don't go back and defend all of 8
the other prerequisites that must be in place for that 9
statement to be useable.
10 JUDGE MILLER: Okay. I'm going to jump 11 ahead to you had mentioned in your statement today 12 that you agree that it is up to the staff to decide at 13 the end of the day if Holtec's interpretation of the 14 Berka document is the correct interpretation or not.
15 That is what I understood you to have said when you 16 were speaking just before.
17 MR. BLIND: No, I'm asking the board to 18 weigh in on the need to use the entire Berka document.
19 In terms of the staff, in terms of the answers and my 20 understanding of those answers, and in my withdrawal 21 of Contention 4 I agree with is Holtec is free to 22 submit -- we're going to use Regulation A, B, and C.
23 And the staff will decide whether they agree with A, 24 B, and C.
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38 Now a good example of that is there was an 1
RAI sent from a staff member back to Holtec where they 2
said our reading is we're using not only A, B, and C 3
but we're using D, E, and F. And we want you guys to 4
respond to that. So I'm not sure the staff feels they 5
can interpret Berka.
6 I think if you -- I'm not certain. But if 7
I learned that the staff was using Berka in its 8
entirety so that no interpretation was required, then 9
we would not have an issue. But I think it's going to 10 take the licensing board to tell somebody they need to 11 do that.
12 JUDGE MILLER: Thank you very much. I 13 have no other questions.
14 CHAIR KRAUSE: All right. Thank you, Mr.
15 Blind. We'll hear from you again in your closing 16 statements.
17 MR. BLIND: Thank you, Your Honor.
18 CHAIR KRAUSE: We'll turn now to the 19 Applicants. You may begin your opening statement.
20 MR. BLANTON: Thank you, Judge Krause.
21 Stan Blanton for Holtec. The standards for granting 22 a hearing are well established. The petitioners must 23 have standing and assert at least one admissible 24 contention.
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39 In order to be admissible, a contention 1
must show that there are genuine issues, questions of 2
fact or law that are dispute that are within the scope 3
of this proceeding and are material to the findings 4
NRC must make to approve the license amendments in 5
question. Petitioners must support their factual 6
arguments with evidence, not speculative or conclusory 7
assertions without factual basis. Petitioners' 8
proposed contentions fail to satisfy these strict 9
requirements.
10 In my
- opinion, I
will focus on 11 petitioners' proposed contentions and Mr. Tompkins 12 will address any standing issues during the 13 question-and-answer period that the board might have.
14 At the outset, as has been noted, there are some basic 15 premises for this proceeding that have been 16 mischaracterized by the petitions. First, Palisades 17 does have an operating license.
18 That license was renewed in 2007 and 19 remains in effect today. They have an FSAR attached 20 to that operating license. Second, NRC has not only 21 stated that it has legal authority to restore 22 operations after a license has made a certification 23 under 10 CFR 50.82.
24 The Commission has clearly stated that the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
40 existing regulatory framework including license 1
amendments such as the four under consideration today 2
is a sufficient process for restarting operating 3
authority. These premises undermine almost all of the 4
petitioners' contentions. There are four LARs within 5
the scope of this proceeding, nothing more.
6 This proceeding does not concern any 7
future license amendment or FSAR change that Holtec 8
may seek in the future. Only the changes encompassed 9
by these four LARs are at issue. The contentions are 10 remarkable in their failure to even discuss any 11 specific aspect of these LARs.
12 In
- addition, petitioners have not 13 demonstrated their right to a hearing on Holtec's 14 exemption request. The LARs seek a distinct licensing 15 action and require a different factual and legal 16 analyses than Holtec's request for an exemption. A 17 decision on one does not control the decision on the 18 other.
19 The exemption request is distinguishable 20 from those at issue in cases that created exceptions 21 to the general rule that there is no right to request 22 a hearing on exemption requests. And even if a 23 hearing was available, the petitioners have failed to 24 assert a genuine issue of fact or law that is material 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
41 to the exemption request. As noted earlier, 1
organizational petitioners appear to agree that the 2
exemption request is outside the scope of this 3
proceeding and that no hearing is warranted in this 4
proceeding on the exemption request.
5 Petitioners' contentions fall into three 6
basic categories. First of all, petitioners challenge 7
NRC's authority to authorize a restart and/or NRC's 8
process for re-authorizing full power operation. The 9
petitioners also challenge Holtec's anticipated 10 application of 10 CFR 50.59 in connection with the 11 future reinstatement of operating FSAR provisions.
12 It is well established the contentions 13 that challenge NRC regulations or policies are 14 inadmissible under 10 CFR 2.335. Furthermore, the 15 future application of 10 CFR 50.59 to reinstate FSAR 16 provisions is not within the scope of these LARs. And 17 the proper remedy if petitioner's believe Holtec has 18 misapplied 50.59 would be a petition under 10 CFR 19 2.206.
20
- Finally, petitioners permit several 21 contentions on their general opposition of nuclear 22 power and their disagreement with state or federal 23 policy initiatives supporting the restart of 24 Palisades. Petitioners' view on the economic 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
42 viability of the Palisades restart are immaterial to 1
LARs and to the exemption request. Second, there are 2
a collection of proposed contentions that are based 3
generally on the age or condition of the Palisades 4
facility, including the allegation that Palisades is 5
not designed and licensed to the general design 6
criteria in 10 CFR Part 50, Appendix A.
7 But petitioners don't relate these 8
allegations to a single provision of the LARs or the 9
general design criteria. There's not even a 10 conclusory allegation that these license changes 11 requested do not comply with applicable NRC regulatory 12 requirements. The staff notes in its answer NRC 13 guidance provides that licenses issued prior to the 14 GDC being adopted do not require amendment because 15 older plants were determined to be safe and the GDC 16 only articulates preexisting design requirement.
17 As such, the contentions are no more than 18 immaterial and conclusory speculation that do not 19 create a genuine issue of fact for a hearing.
20 Finally, there's a collection of environmental 21 contentions, some of which are that the NRC 22 environmental assessment is inadequate based on the 23 false premise that an EIS is required because 24 Palisades must apply for a new operating license.
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43 Others are various contentions of omission, each of 1
which is either factually unsupported or moot.
2 This includes Contention 7
of the 3
organizational petitioners which has been mooted by 4
the draft environmental assessment. Accordingly, each 5
of these petitions should be dismissed. Thank you.
6 CHAIR KRAUSE: Thank you. We'll now begin 7
the board's questions. Judge Arnold?
8 JUDGE ARNOLD: Thank you. Do you believe 9
that the exemption request is inextricably intertwined 10 with the amendment requests? And why or why not?
11 MR. BLANTON: No, sir. Not at all. They 12 are two different questions. The decision making and 13 analysis that NRC must pursue to consider the 14 exemption request is entirely different from the 15 issues presented by these four LARs.
16 I think the Petitioning Organizations 17 agree. NRC could grant these license amendment 18 requests without granting the exemption request. Or 19 they could grant the exemption request without 20 granting the LARs.
21 In the cases that the staff cites, the 22 regulation that as to which an exemption is sought is 23 either embedded in the license provision that's being 24 changed or it is the license provision says that the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
44 licensee will comply with a particular regulation for 1
which an exemption is being sought. That's not the 2
case in either of these cases. And we just don't fit 3
within the exceptions to the general rule that the 4
hearing is not available on the exemption request.
5 JUDGE ARNOLD: Thank you. The primary 6
license amendment contains among others license 7
conditions 2(b)(1), 2(b)(2), 2(c)(1) which are 8
impertinent part that 2(b)(1) authorizes Holtec 9
Palisades to possess and use the facility as a 10 utilization facility. 2(b)(2) authorizes Palisades 11 Energy to receive, possess, use, source special 12 nuclear materials as reactor fuel. And 2(c)(1) 13 authorizes Palisades Energy to operate at power levels 14 not in excess of 100 percent rated power.
15 Now given these, that seems to me to 16 recondition the license for operation. If the NRC 17 were to grant that license amendment, why would an 18 exemption to 50.82 be required? And let me give you 19 the analogy that keeps coming to mind for me in this 20 condition.
21 And that is if you're driving down the 22 road and you're coming to an intersection and the 23 light turns red, you come to a stop. But then you see 24 a police officer who's beckoning you to pass through 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
45 the intersection. The light is still red, but you 1
have direction to go and you go. Now what is wrong 2
with that analogy? And why isn't the 50.82 3
certification like that red light that gets overridden 4
by a later directive?
5 MR. BLANTON: I think that's a great 6
analogy, Judge, and a great question. I think to 7
answer in the terms of the analogy, I think the 8
exemption is the police officer waving you through.
9 And we've still got this provision of 50.82 that says 10 after you're certified, after you issue your -- or 11 provide your certification, you are permanently 12 defueled. And the exemption -- and especially 13 considering the inspection manual chapter that staff 14 has now provided to govern their review of restarts, 15 I think the exemption request is just more of an 16 administrative action now to line up the license with 17 the license amendment request that will restore the 18 operation and ability to load fuel with those license 19 conditions.
20 JUDGE ARNOLD: Okay. Thank you. The four 21 amendment requests each states that a categorical 22 exclusion applies to the requested amendment. What is 23 your understanding of a categorical exclusion?
24 MR. BLANTON: It's a provision of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
46 environmental regulations that says NRC is not 1
required to perform a NEPA analysis in order to 2
support the licensing action. And I wish I could tell 3
you by memory what all the conditions are. But it 4
basically says that this is not a major federal action 5
affecting -- significantly affecting the environment 6
that requires a NEPA analysis.
7 JUDGE ARNOLD:
Did you have a
8 responsibility to provide an environmental report with 9
the amendment requests?
10 MR. BLANTON: We took the position that 11 the amendments did fit within the categorical 12 exclusions. And therefore, you would not have to file 13 an environment report. We did supply environmental 14 information that the NRC used to prepare its 15 environmental assessment. But --
16 (Simultaneous speaking.)
17 JUDGE ARNOLD: Was that provided with the 18 amendments?
19 MR. BLANTON: It was not provided with the 20 amendments. It was provided in response -- some was 21 provided with the exemption request and some was 22 provided in response to an RA request.
23 JUDGE ARNOLD: Okay. But you didn't 24 submit something titled environmental report for the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
47 amendments?
1 MR. BLANTON: We did not.
2 JUDGE ARNOLD: To your knowledge, has the 3
NRC decided that the categorical exclusions are not 4
applicable?
5 MR. BLANTON: I do not think that they had 6
made a -- that staff has made a final decision on 7
that. I guess the environmental assessment might moot 8
that to some extent. But certainly if the staff 9
decided that the categorical exclusion did apply, then 10 the environmental assessment would be moot. So I 11 think either way we're covered.
12 JUDGE ARNOLD: To your knowledge, do NRC 13 rules permit petitioners to challenge the contents of 14 a document that is not required and which has not been 15 submitted?
16 MR. BLANTON: It would be immaterial and 17 out of scope.
18 JUDGE ARNOLD: Do you think that applies 19 in this case?
20 MR. BLANTON: Yes, I do.
21 JUDGE ARNOLD: Okay. That's the end of my 22 questions.
23 MR. BLANTON: Thank you, Judge.
24 CHAIR KRAUSE: Great. So I'll ask a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
48 couple of questions. I'd like to focus a little bit 1
again on the exemption request and the notion of 2
whether it's inextricably intertwined with the license 3
amendments. And in your opening, you explained that 4
the staff has cited examples of cases where the 5
exemptions and the license amendments are sort of 6
expressly required.
7 But in the staff's answer, they say that 8
the exemption request is actually required for the 9
license amendments because otherwise they won't be 10 able to certify that the license amendments are in 11 compliance with the NRC's regulations. So I guess I'm 12 asking the Applicants to respond specifically to that 13 point and how it might impact the Applicants' 14 characterization of what inextricably intertwined 15 means by saying that it's a licensing action that 16 can't be met without receiving the exemption. And as 17 the staff describes it, that seems to have been 18 satisfied here.
19 MR. BLANTON: I have noted that staff 20 argument, Your Honor. And I just have to say I 21 disagree with it. These amendments are necessary 22 because of other amendments that were issued at the 23 time of the 50.82 certification that eliminated some 24 of these requirements that basically adopted these 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
49 defuel tech specs in place of the full power tech 1
specs.
2 So the 50.82 certification did not 3
automatically change our tech specs. It did not 4
automatically change our FSAR to a defueled FSAR. We 5
had to pursue license amendments in order to do that.
6 We had to pursue other exemptions to NRC 7
regulations to get the plant in a state of 8
decommissioning and relax the requirements that were 9
in place for an operating reactor. Well, we're simply 10 seeking to reverse those changes now. And I think 11 that just as the certification under 50.82 did not 12 automatically eliminate all of those operating FSAR 13 provisions and operating tech spec provisions, the 14 restoration of those provisions doesn't require the 15 exemption from 50.82.
16 The Palisades could operate under those 17 operating tech spec provisions in decommissioning.
18 And it would be more expensive and it would make much 19 sense. But there's no requirement that Palisades 20 adopted these defuel tech specs just because they had 21 filed a 50.82 certification.
22 CHAIR KRAUSE: Although because Palisades 23 is now seeking potential restart, 50.82 will not allow 24 you to load fuel. And so that is very specific to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
50 that regulation. And so I guess to me it's different.
1 Maybe there was a disconnect between 50.82 2
and the various license amendments you were seeking 3
for decommissioning. But now that you're seeking 4
restart, it seems like there is sort of a very plain 5
connection between the now because it involves loading 6
fuel and operating the plant.
7 (Simultaneous speaking.)
8 MR. BLANTON: We're not -- I'm sorry. I 9
didn't mean to cut you off, Judge.
10 CHAIR KRAUSE: No, please go ahead.
11 MR. BLANTON: We're not arguing that 12 they're not related and that they're all part of the 13 same process or that the 50.82 exemption is not 14 required to load fuel. What we are arguing is that 15 the 50.82 certification is not required to issue these 16 four amendment which are limited to reediting the 17 emergency plan restoring the full power tech specs, 18 the main steam line -- restoring the main steam line 19 break analysis, and then just some administrative 20 controls in the tech specs. We don't think the 21 exemption is required for the NRC to issue any of 22 those amendments.
23 CHAIR KRAUSE: Okay. Thank you.
24 MR. BLANTON: They would be required for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
51 us to load fuel in the reactor.
1 CHAIR KRAUSE: All right. Thanks. Going 2
also to the exemption request, if we were to find that 3
there's been argument made that the exemption request 4
is within the scope, that it is inextricably 5
intertwined and we start to look at the arguments 6
about challenges to whether the exemption request 7
meets the exemption request rule which is 50.12. And 8
one of the requirements in that rule is the special 9
circumstances criteria.
10 And for those, there is this notion of 11 what the purpose of the rule was when it was adopted.
12 Now when we're evaluating arguments that go to the 13 purpose of the rule, my question for you is, how do we 14 make sure we're not getting to the merits of the case?
15 That's almost a legal question, isn't it? I guess in 16 what way should be viewing the arguments that are 17 raised in relation to the special circumstances 18 criteria?
19 MR. BLANTON: Well, it would be a legal 20 question what the purpose of the rule is. But that is 21 governed by the regulatory basis documents and the 22 Federal Register notice that issued the rule. And 23 they speak for themselves.
24 I mean, there's -- I haven't heard a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
52 supported argument from the petitioners that the 1
purpose of the rule is not to draw a line of 2
demarcation between operating and decommissioning 3
plants. And you can imagine why that rule is 4
necessary because access to the decommissioning fund.
5 And the other amendments that we've made to the tech 6
specs require the plant a certification or a 7
commitment of the licensee to say that the plant is 8
permanent shut down.
9 We've
- defueled, and we're starting 10 decommissioning. If there were a contention of law 11 about what the purpose of the rule is, then this board 12 could decide it either at the contention admissibility 13 stage, I think, or in summary disposition stage. But 14 the petitioners haven't made a reasoned legal argument 15 that the rule means anything other than what it means 16 which is a line of demarcation. The plain language of 17 the rule speaks for itself.
18 CHAIR KRAUSE: Okay. Thank you. Judge 19 Miller --
20 MR. BLANTON: Thank you.
21 CHAIR KRAUSE: -- do you have any 22 questions?
23 JUDGE MILLER: Yes, one. Good afternoon.
24 I have one question, and it is, is there anything in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
53 the list of restart activities that Holtec has listed 1
out in its response to petitioners outside of the 2
license amendment request that you believe might need 3
to be reviewed in tandem or looked at in conjunction 4
with the license amendment requests when they're being 5
reviewed by the staff?
6 MR. BLANTON: I'm not sure I understand 7
the question, Judge Miller.
8 JUDGE MILLER: I'm getting that a lot 9
today. No --
10 MR. BLANTON: I'm not aware of anything 11 that needs to be reviewed with these license amendment 12 requests other than these license amendment requests.
13 Any changes -- any future changes to the FSAR under 10 14 CFR 50.59, for instance, or any future license 15 amendments that might be pursued in order to -- for 16 instance, we just had a steam generator license 17 amendment request issued or filed last night. Those 18 are outside the scope of this proceeding.
19 JUDGE MILLER: I think you answered it 20 very well. Thank you.
21 MR. BLANTON: Thank you.
22 CHAIR KRAUSE: Thank you, and we'll hear 23 from you again at closing. Now we'll turn to the NRC 24 staff. You may begin your opening statement.
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54 MR. SPENCER: May it please the board.
1 I'm Michael Spencer, and with me are Anita Ghosh 2
Naber, Kevin Bernstein, and Peter Lom representing the 3
NRC staff. The staff concludes that none of the 4
contentions are admissible because they either 5
challenge the existing regulatory framework or raise 6
matters outside the scope of the proceeding or 7
otherwise fail to demonstrate a genuine material 8
dispute with the application.
9 With our opening statement, we'll focus on 10 the fundamental facts of this proceeding. First, this 11 proceeding concerns a series of license amendment 12 requests under existing regulations for a plant that 13 is already built and was safely operated under NRC 14 oversight. Second, Entergy's decision to shut down 15 the plant was voluntary and did not extinguish the 16 renewed operating license.
17 Third, Holtec is largely attempting to 18 restore the previous operating license
- basis, 19 including the renewed license term to 2031 that's been 20 covered by previous safety and environmental reviews.
21 Fourth, the notice preceding concerns particular 22 Holtec requests and is not a forum for broader policy 23 debates about restart or how NRC regulations might be 24 changed. And fifth, an admissible contention must 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
55 provide sufficient factual support to show the 1
specific portions of the application fail to meet 2
specific NRC requirements that are applicable to 3
Holtec's requests.
4 Therefore, many arguments made by both 5
petitioners are outside the scope of the proceeding 6
and are immaterial, including those that challenge 7
existing regulatory processes for license amendments 8
and exemptions or that request new processes not in 9
the regulations or that seek to impose inapplicable 10 requirements such as those for license transfers or 11 for constructing and operating new reactors.
12 Similarly, current licensee activities in 13 decommissioning and challenges to the staff's 14 inspection and review processes and the potential 15 future changes under 10 CFR 50.59 are similarly 16 inadmissible because they are immaterial and out of 17 scope. Further, the contentions generally do not 18 challenge specific portions of the application much 19 less offer the focused, well supported material 20 challenge that is necessary for contention 21 admissibility.
22 These consideration are sufficient to 23 resolve the safety contentions before the board. The 24 environmental contentions are also inadmissible.
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56 Petitioning Organizations' argument that an 1
environmental impact statement is required for these 2
license amendments is just not supported by the 3
regulations or by NEPA.
4 The staff's draft environmental assessment 5
is fully consistent with NEPA and the NRC's 6
regulations. The Petitioning Organizations' remaining 7
environmental contentions which are contentions of 8
omission are similarly inadmissible. As explained in 9
the staff's answer, the application as originally 10 filed or as supplemented by Holtec discussed the 11 project purpose and need and alternatives to the 12 proposed action.
13 The staff's draft environmental assessment 14 also discusses these topics. Thus, there is no 15 omission on these topics and the associated 16 contentions are moot. The staff did previously 17 conclude that the climate change contention was 18 admissible in part as a contention of omission because 19 the Holtec's environmental report did not discuss, 20 one, greenhouse gas emissions from the proposed 21 actions, two, how climate change affected the baseline 22 environment for the review, or three, how the proposed 23 action's impacts are affected because of this change 24 to the baseline environment.
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57
- However, the draft environmental 1
assessment discusses all of these matters. And 2
therefore, the climate change contention is now moot.
3 Finally, I will address a basic principle of the 4
hearing process, namely, that the board will decide 5
whether the hearing request itself meets NRC 6
requirements. While petitioners may file new or 7
amended contentions, no one has yet done so in this 8
proceeding.
- Thus, consistent with Commission 9
regulations and precedent, all the new arguments and 10 support that have been filed in replies or even later 11 filings are not actually part of the hearing request 12 and may not be considered as supplying deficiencies in 13 the hearing request as originally submitted.
14 These include new arguments in the 15 Petitioning Organizations' reply and in their February 16 1 submission and also in joint petitioner's various 17 filings after the deadline. Regardless, this new 18 information does not make any of the existing 19 contingents admissible. And with that, my colleagues 20 and I stand ready to answer the board's questions.
21 CHAIR KRAUSE: Thank you. Judge Arnold, 22 would you like to begin the questions?
23 JUDGE ARNOLD: Thank you. Good opening --
24 CHAIR KRAUSE: Judge Arnold, you appear to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
58 be muted.
1 JUDGE ARNOLD: Pardon me. I must've 2
clicked twice fast. What exactly are the effects of 3
the 50.82 certification upon the current licensing 4
basis of the plant? Does it initiate any automatic 5
changes to the license other than it can't use fuel 6
anymore?
7 MR. SPENCER: Your Honor, it does not 8
change the literal words of the license. It doesn't 9
change the FSAR as Holtec said. But it does introduce 10 that prohibition on operating the reactor or even 11 keeping fuel in the reactor. And this is Michael 12 Spencer for the staff.
13 JUDGE ARNOLD: Okay. Let me ask you then.
14 The four licensing amendments that are the subject 15 here, do they change the licensing of the plant in any 16 way such that the plant has more operating authority 17 than it had right after the 50.82 certification?
18 MR. SPENCER: So the license are -- if 19 granted, would change the license to authorize 20 operation of the reactor, the utilization facility at 21 the full power level. And so -- and that is the 22 intent of the license amendments. And that's how the 23 staff is reviewing them as an effort to operate the 24 reactor again.
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59 JUDGE ARNOLD: Okay. So it would be those 1
license conditions I mentioned earlier, 2(b)(1),
2 2(b)(2), and 2(c)(1), 2(c)(1) being the authority to 3
operate up to 100 percent power. Those license 4
conditions give them more operating authority than 5
they had right after the 50.82 certification?
6 MR. SPENCER: Yes, if they are granted.
7 JUDGE ARNOLD: Okay. Now you have 8
indicated that you consider the exemption request to 9
be inextricably intertwined with the four license 10 amendment requests. Is that based upon this specific 11 licensing conditions?
12 MS. NABER: Your Honor, this is Anita 13 Ghosh Naber for the staff. As we stated in our brief, 14 the exemption request and the license amendment 15 requests are inextricably intertwined because the 16 staff's position is that the exemption request must be 17 approved in order for the staff to make the necessary 18 findings to issue those amendments that would 19 authorize power operations at Palisades since 20 prohibition would remove -- the prohibition needs to 21 be removed to allow power operations through the 22 exemption request.
23 JUDGE ARNOLD: So it is a conflict between 24 the license conditions and the 50.82 certification?
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60 MS. NABER: Well, as we stated in our 1
request, to make the findings in 50.92, 10 CRF 50.92 2
governs issuance of license amendments. And in 50.92, 3
the Commission stated that the NRC will be guided by 4
the considerations for initial licenses which is in 10 5
CFR 50.57. And 50.57 states that the NRC will make a 6
finding that the facility will operate in conformance 7
with, among other things, the rules and regulations of 8
the Commission.
9 So right now, there is a rule, right, 10 under 50.82(a)(2) that prohibits power operations at 11 Palisades. So in order to issue those amendments and 12 to make those findings under 50.92 and 50.57, the 13 prohibition that exists by rule today must be removed 14 through the exemption requests. And that's the 15 staff's position on why the exemption requests and the 16 license amendments are inextricable intertwined.
17 JUDGE ARNOLD:
- Well, let me say 18 hypothetically if license conditions 2(b)(1), 2(b)(2),
19 and 2(c)(1) were not part of that license amendment so 20 that this amendment would not restore the ability to 21 have fuel in the vessel, would there still be that 22 problem between the license amendments and the 23 exemption request?
24 MS. NABER: I see what you're saying, Your 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
61 Honor. Yeah, it's because the amendments would allow 1
power operations through those conditions.
2 JUDGE ARNOLD: Okay.
3 MS. NABER: And we need to make those 4
findings --
5 JUDGE ARNOLD: Okay.
6 MS. NABER: -- in order to -- yeah.
7 JUDGE ARNOLD: Now does the NRC have the 8
authority to grant one portion of a license amendment 9
request while withholding to another time another 10 portion of that license amendment. And I ask this 11 because I have seen in the past where reactors looking 12 for the initial license got an operating license that 13 was restricted to 5 percent power. They couldn't go 14 up to 100 percent power.
15 So in this case, could the NRC say, yes, 16 we will give you these license amendments but we will 17 not give you those license conditions yet? We will 18 withhold that until we are ready. Does the NRC have 19 the authority to do that?
20 MR. SPENCER: Your Honor, this is Michael 21 Spencer for the staff. The NRC does have authority to 22 grant an amendment application in part just like there 23 was an application for an operating license and we 24 granted a low power license is what you're referring 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
62 to, Your Honor.
1 JUDGE ARNOLD: Right.
2 MR. SPENCER: But the staff isn't planning 3
to do that here. The staff is actually planning --
4 the reviews are proceeding in parallel. But the 5
current staff plan is that for the actions, the 6
license transfer, the four license amendments, and 7
exemption, if the staff were able to find that all of 8
the requirements for those actions were met, the staff 9
would issue those actions on the same day. And that 10 even if the staff somehow changed its plans and issued 11 maybe part of an action before the others, ultimately 12 this notice proceeding is on the entirety of the 13 actions.
14 JUDGE ARNOLD: Okay. Well, my questions 15 relate to the word, inextricably, in inextricably 16 entwined. And it sounds to me as though NRC has the 17 authority to un-intertwine these but it's just not 18 chosen that path. So I'm just questioning whether it 19 is inextricably intertwined.
20 Okay. Let me turn to NEPA. Now all four 21 of the license amendments included a categorical 22 exclusion and did not include an environmental report.
23 Do you agree that with that categorical exclusion, no 24 environmental report was required?
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63 MR. SPENCER: Your Honor, this is Michael 1
Spencer for the staff. There isn't a regulation 2
particularly on point that would require an 3
environmental report for these actions. However, 4
Holtec did submit environmental information.
5 And we considered an environmental report 6
because, as explained in our answer, it meets the 10 7
CFR 51.14 definition of an environmental report. And 8
then they actually referenced that. And I'll just 9
call it the environmental report going forward for 10 simplicity.
11 They referenced that environmental report 12 in three of their four license amendment applications.
13 And in an application, our regulations in 10 CFR 50.32 14 allows an application to reference other documents 15 submitted to the Commission as long as the reference 16 is clear and specific. So we consider that 17 environmental report part of the application.
18 Now with respect to categorical exclusion, 19 I would like to read from a portion of our notice of 20 intent to perform an environmental assessment that was 21 issued in June 27, 2024. And it discusses the 22 categorical exclusion. And it notes that the 23 amendments do reference the categorical exclusions.
24 But the NRC says, the staff has determined 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
64 to prepare an environmental assessment instead of 1
invoking the categorical exclusions.
This 2
determination is based largely on concluding that the 3
submittals, one, are either not covered by the 4
criteria for CATEX or, in the case of the license 5
transfer request, do not fall within the factual basis 6
underlining the corresponding
- CATEX, two, are 7
connected, i.e., interdependent, actions that should 8
be considered together as part of the National 9
Environmental Policy Act review, and three, are not 10 specifically covered by the criteria for preparing an 11 EIS. And I'll leave off the rest of that quote.
12 So we did have reasons for not invoking 13 the categorical exclusions. And so we consider that 14 those aren't really continued relevance to the staff's 15 review and that it's the environmental report that 16 they submitted that was of continued relevance. And 17 that under 10 CFR 2.309(f)(2), the petitioners were 18 obligated to file contentions on that information if 19 they wanted to challenge it.
20 JUDGE ARNOLD: I believe I followed that.
21 Let's see. Having to do with a categorical exclusion, 22 you now have a draft FONSI. And it is the NRC's 23 determination that there are no significant 24 environmental impacts. Now in light of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
65 categorical exclusions which said the same thing, does 1
the FONSI now qualify as new information upon which 2
new contentions can be based?
3 MR. SPENCER: Your Honor, this is Michael 4
Spencer for the staff. The existing Holtec 5
environmental report referenced the license renewal 6
EIS which says that all the impacts were small which 7
is really equivalent to not significant. And then 8
Holtec said it did a new and significant evaluation to 9
determine that there weren't any moderate or large 10 impacts, that they're still small. And so there may 11 be new information in the draft environmental 12 assessment that could be challenged in the new or 13 amended contention. But it has to be materially 14 different from that previous information that did 15 conclude that the impacts were small.
16 JUDGE ARNOLD:
And that previous 17 information is not in the report called an 18 environmental report. It is somewhere in the massive 19 data accumulated by the NRC for environmental 20 assessment.
21 MR. SPENCER: Well, Your Honor, it's data 22
-- it's information in -- that's referenced in the 23 license amendment itself. So it's referenced in the 24 application, and that's allowed under the rules. And 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
66 in accordance with 10 CFR 2.309(f)(2), contentions 1
must be based on documents or other information 2
available at the time the petition is to be filed such 3
as the application.
4 And other examples are environmental 5
report or other supporting document filed by an 6
applicant or licensee or otherwise available to the 7
petitioner. So we see this as referenced in the 8
application. It does meet the -- even though it's not 9
called an environmental report, it does meet that 10 definition. So we think that it is fairly within the 11 scope.
12 JUDGE ARNOLD: My question really concerns 13 new contentions to be filed in the future. And part 14 of the petitioner's responsibility is for saying, what 15 is new? What was the old information? How is it 16 different? And why is it significant enough to be new 17 information?
18 And I'm just saying they may have a 19 difficult time identifying the existing information 20 because it's not in a document titled environmental 21 report. It's in an environmental review document for 22 the exemption request. And some of it may be in 23 answers to RAIs. So I'm just looking for some 24 clarification because I see problems.
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67 MR. SPENCER: Your Honor, I think that the 1
petitioners will not have a problem because they 2
already challenged this document. So they already 3
know what's in it. They already challenged it.
4 So I don't think they would have problems 5
determining what's different between that document and 6
this one. I do want to repeat I know that Holtec said 7
that the document is in the exemption request and that 8
Holtec did supply information in RAI responses. But 9
if you do look at the original license amendment 10 requests, three of the four do cite this -- what we 11 call the environmental report. And so -- and we give 12 those citations at our answer to the hearing request.
13 JUDGE ARNOLD: Okay. Thank you. No more 14 questions.
15 CHAIR KRAUSE: Okay, great. I have a few 16 questions. I'm going to start with standing analysis 17 and the staff's answer to the Petitioning 18 Organizations on standing and specifically three of 19 those organizations. The argument that because the 20 declarations for those organizations appear to only 21 reference the exemption request that there is no 22 standing because somehow it's not within the scope of 23 the proceeding or the standing analysis.
24 And I guess my question is, does that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
68 undermine the staff's later argument that the 1
exemption request is within the scope of the 2
proceeding for contentions, that it's inextricably 3
intertwined? Because I'm seeing a disconnect there 4
that it can be challenged for contentions but it can't 5
be challenged for standing. Could the staff explain 6
its position on that?
7 MR. LOM: Yes, thank you, Your Honor.
8 This is Peter Lom for the NRC staff. So the 9
requirements for standing under 2.309(d) are different 10 from the requirements for contention admissibility 11 under 2.309(f).
12 And the language that the Commission has 13 used when describing the inextricably intertwined 14 doctrine mirrors the language in the contention in the 15 stability regulation. So for example, in CLI 21-1, 16 the Commission stated that where a request exemption 17 raises questions that are material to a proposed 18 licensing action and bear directly on whether the 19 proposed action should be granted, a petitioner may 20 propose exemption-related arguments in the licensing 21 proceeding. So that's a question of the contentions 22 that they can raise.
23 But for purposes of demonstrating 24 standing, they have to articulate the nature and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
69 extent of their, quote, interest in the proceeding, 1
end quote. And I think we're applying the literal 2
words of the regulation for standing at 2.309(d). And 3
that requires an interest in the proceeding. And this 4
proceeding as noticed in the Federal Register on 5
August 7th, 2024 is on four license amendment 6
requests.
7 CHAIR KRAUSE: Although if we say that the 8
exemption request is within the scope of the 9
proceeding, isn't it conceivable that an injury could 10 accrue from that exemption request that the board that 11 could be caused by the exemption request so that the 12 board could redress that injury caused by the 13 exemption request? And therefore, it would meet the 14 standing criteria.
I'm having a
hard time 15 understanding that distinction there, especially when 16 you consider that the staff has already said that the 17 exemption request -- that action on the exemption 18 request is necessary for the license amendment request 19 to go forward. So the actions are basically at issue 20 in this proceeding from the staff's point of view. So 21 I guess could you address that perhaps in your 22 standing argument.
23 MR. LOM: Sure. So the actual injuries 24 that could accrue for the exemption request itself, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
70 there really aren't any because it simply removes a 1
legal prohibition without actually authorizing restart 2
whereas the before licensed amendments together would 3
allow for radioactivity in the reactor core at full 4
power where currently there is none. So the staff is 5
looking at the license amendment requests as being 6
that affirmative legal go ahead to proceed with 7
operations. And that is where the injuries could 8
conceivably flow from whereas when you look at the 9
exemption request itself, it merely removes that 10 prohibition without authorizing restart itself.
11 CHAIR KRAUSE: Okay. I have just one more 12 follow-up on that, though. If the exemption request 13 is not granted, the staff position is that they cannot 14 then get their license amendments that would allow 15 them to load fuel and operate the plant. So I guess 16 what would be your response to that? You still think 17 that the exemption is just a removal of a prohibition?
18 MR. LOM: Yes, that's correct. So the 19 license amendment request themselves are what legally 20 authorize radioactivity in the core. But I, again, 21 would point you to the little words of 2.309(d) and 22 what is required in the hearing request that the 23 petitioner must demonstrate to have standing. And 24 that is an interest in the proceeding. And this 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
71 proceeding is governed by the Federal Register notice 1
that was published last year and that stated that you 2
could request a hearing on the four proposed license 3
amendment requests.
4 CHAIR KRAUSE: Okay. Thank you. I have 5
another question similar to the question that I asked 6
the Applicants. And that relates again to the 7
exemption
- request, assuming we see that it's 8
inextricably intertwined and therefore within the 9
scope of the proceeding. And then, again, drilling 10 down further, we're looking at the regulation that 11 allows exemption requests so that you use to apply for 12 an exemption request, 50.12.
13 And then one of the requirements in there 14 is a demonstration of special circumstances. And the 15 various criteria being relied upon here involve an 16 analysis of the purpose of the regulation that we're 17 seeking the exemption from, that the Applicants are 18 seeking an exemption from, the purpose of that 19 regulation when it was adopted. And in the staff's 20 answer, the purpose is framed in the way that the 21 applicant has raised it. And so I wanted to ask, does 22 the staff have a position on the purpose of the 23 regulation? And if so, what is it?
24 MS. NABER: Your Honor, this is Anita 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
72 Ghosh Naber for the staff. I believe in our petition, 1
we did reference the applicant's position in the 2
exemption request about the purpose being to provide 3
key information to the NRC and to the public and also 4
to provide, like, a point in time when the licensee 5
would formally enter decommissioning. And this 6
position was that based on the plain reading of this 7
regulation itself, it does appear to be a fair 8
assessment of the purpose.
9 CHAIR KRAUSE: Okay. Thank you. And then 10 a follow-up question to that that I also asked the 11 Applicants is, how do we make sure -- it seems like 12 that's really a legal question, getting into the 13 purpose. How are we, the board, to evaluate these 14 contentions on that issue and make sure that we're not 15 getting to the merits of the contention?
16 MS. NABER: Well, as I had said, I think 17 to some extent, you can look at the plain language of 18 the regulation itself and take the plain meaning of 19 the regulation on its face. But also, some of the 20 arguments that we raised in our brief in terms of more 21 specific to contention and disability and why the 22 petitioners have not met the criteria in 2.309(f)(1) 23 that they haven't provided support for their position 24 or they don't provide a genuine dispute with the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
73 arguments that Holtec has raised in its exemption 1
request. So I think we would rely on our brief for 2
those matters.
3 MR. SPENCER: Your Honor, may I add? This 4
is Michael Spencer for the staff.
5 CHAIR KRAUSE: Yes, please.
6 MR. SPENCER: We think that the board is 7
able to make legal determinations in their decisions 8
on the hearing request. And that would really be 9
getting into the merits. I guess historically how 10 I've seen the merits are more the merits of the 11 factual dispute because ultimately the purpose of 12 deciding to grant a hearing request is to determine 13 whether we're going to an evidentiary hearing or have 14 factual evidence to make decisions. But while legal 15 contentions have been admitted in the past, it's only 16 been done very occasionally. And so I would think 17 ordinarily the board could render a legal decision at 18 the contention admissibility stage.
19 CHAIR KRAUSE: Thank you. Judge Miller, 20 do you have any questions?
21 JUDGE MILLER: Yes, thank you. I have one 22 question and it's similar to the question that I asked 23 the applicant which is, is there anything within the 24 list of restart activities on actions being done by 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
74 the applicant that the staff would rely on in their 1
review of the license amendment requests?
2 MR. SPENCER: Your Honor, the -- this is 3
Michael Spencer for the staff. Ultimately, the staff 4
is going to make its decisions on the amendment 5
application based on the content of the application.
6 So if we needed additional information to make a 7
safety determination, then we would need to ask an RAI 8
potentially.
9 Or somehow the application would have to 10 be supplemented. But ultimately, the exemption is 11 going to be addressed under the exemption criteria.
12 And the transfer is going to be judged under the 13 transfer criteria.
14 I will say one thing is that because we 15 think the exemption is ultimately needed to make the 16 findings for an amendment, then the fact that we've 17 come to a positive safety determination on the 18 exemption is relevant. But the actual special 19 circumstances criteria and the other specific 20 exemption criteria are specific to the exemptions and 21 not for the amendments. Did I answer the question?
22 Did I answer the question?
23 JUDGE MILLER: Yes, yes, you did. No 24 other questions.
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75 CHAIR KRAUSE: Okay, great. Thank you 1
all. The board will now take a 15-minute recess. So 2
that will put us at 1:15. Participants, please stay 3
connected, but remember to mute your microphone and 4
turn off your camera. And again, we'll return at 5
1:15. Thank you.
6 (Whereupon, the above-entitled matter went 7
off the record at 12:59 p.m. and resumed at 1:15 p.m.)
8 CHAIR KRAUSE: Do my colleagues have any 9
additional questions? Judge Arnold? Judge Arnold, 10 you're muted.
11 JUDGE ARNOLD: I have no questions.
12 CHAIR KRAUSE: Thank you. Judge Miller?
13 JUDGE MILLER: I have no questions.
14 CHAIR KRAUSE: I also have no further 15 questions. So we'll now turn to closing statements.
16 Counsel for Petitioning Organizations, you may begin 17 your closing statement. As a reminder, you have five 18 minutes, and then we'll hear from you again with two 19 minutes for rebuttal. You may begin.
20 MR. LODGE: All right. Thank you. May it 21 please the panel and the parties. Petitioning 22 Organizations believe that -- we stand by our position 23 that the exemption remains a separate and distinct 24 determination to be made by the Commission. And we're 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
76 going to confine our closing remarks to the license 1
amendment request argument which were essentially from 2
the opposing parties where that everything here is 3
really about the license amendment requests.
4 The LARs, we think, do require and are 5
impossible to
- achieve, retain without the 6
determination of an exemption. But we also take the 7
position that there are two separate determinations to 8
be made. We believe also that our contentions are all 9
admissible as stated.
10 The argument that has been going on today 11 is sort of at the level of where it appears that the 12 board may be considering arguments of fact and law.
13 And if, indeed, that is the determination that the 14 board is considering dismissing contentions or 15 forbidding them from being advanced in the proceeding, 16 based upon accommodations of law and fact, that's a 17 summary disposition type of ruling. And we believe 18 that due process requires that the rules be followed, 19 that effectively the summary disposition process be 20 followed.
21 I understand and have reviewed the case 22 law cited to me by Mr. Spencer and the NRC staff that 23 says that determination of whether contentions of 24 omission are moot or not can actually be made on the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
77 order of bench rulings by the ASLB. But the cases 1
that he cited also said -- and I believe one of them 2
kind of went in the direction of saying that the 3
preference is for a summary disposition type of 4
determination to be made. And that, indeed, Your 5
Honors, is why we entered into the stipulation that 6
the ASLB has approved which has granted us until March 7
3rd to move to amend or to admit new contentions.
8 There is a little bit of different 9
procedural rigor as to the requirements for allowing 10 an amendment versus allowing a late filed contention.
11 We believe and request that the board not make any 12 dispositive determinations about the contentions of 13 omission and withhold any kind of determination and 14 allow us to exercise what I believe is the Petitioning 15 Organizations' discretion to decide which procedural 16 vehicle to pursue as to that. I'd also point out that 17 the EA FONSI was issued 12 days before this hearing.
18 And I applaud the fact that staff has 19 accelerated its publication. But it's simply a 20 confusing factor at this point which we believe 21 doesn't have to be confusing at all. Simply follow 22 the longstanding procedural accepted regulatory 23 practices that the Commission follows.
24 Allow us a period of time we've all 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
78 stipulated to, to determine what to do next. Also, we 1
just learned today that there was a license amendment 2
request apparently submitted yesterday which would be 3
February 11th on the steam generators that are subject 4
to considerable dispute in this proceeding. That's 5
not a NEPA contention.
6 It is certainly something that we will be 7
taking a hard look at and very likely moving to file 8
another petition for purposes of intervention. The 9
circumstances here warrant -- pardon me. Let me back 10 up.
11 The company wants speedy approval of all 12 of its pending requests. It has actually specified by 13 approximately August 2025 which is about by my count 14 maybe six months away. And the company has created 15 its own needs for speedy determination.
16 The company has heavy investments. It's 17 apparently proceeding at risk. But they're risking an 18 awful lot of public money in their decision to try to 19 restart Palisades.
20 That is not the NRC's problem to solve.
21 The company is going to have to abide by the due 22 processes that are -- extend under the AEA and NEPA.
23 We believe that that is the only prudent path for this 24 licensing board to follow. Thank you very much.
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79 CHAIR KRAUSE: Thank you. We'll turn now 1
to Joint Petitioners. Mr. Blind, you have five 2
minutes, and then we'll hear again from you after that 3
with two minutes for rebuttal. You may begin.
4 MR. BLIND: Thank you, Your Honor. I'd 5
just like to make a couple comments that, again, we're 6
not a
party to the environmental assessment 7
discussion. So anything I saw doesn't apply to that.
8 On the specific exemption, we don't 9
contest that in accordance with the full Berka 10 interpretation or full Berka denial that it would be 11 possible to use the specific exemption request to 12 return Palisades to service. Our Contention 5 was 13 pointing out flaws in the application, in the 14 submittal. And we had researched the reference 15 materials.
16 And in our Contention 5, we identified 17 where those references didn't say what Holtec said.
18 So it could be fixed. All they got to do is make a 19 new application.
20 Okay. Let's talk about the staff's 21 request. Everybody wants our petitions to be 22 categorically dismissed. We're here at the invitation 23 of the Palisades NRC restart panel.
24 At local meetings, they encouraged us to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
80 follow this process in order for our concerns to be 1
heard. And that's what we're doing. So we're alarmed 2
to hear that somebody is thinking -- it's particularly 3
the Office of General Counsel who belongs to the same 4
NRC that they would even entertain the idea that our 5
petitions and our concerns would summarily dismissed.
6 That's concerning.
7 We're in a lose-lose proposition. They 8
say we haven't referenced a regulation for our 9
disputes. Well, that's a lose-lose because there are 10 no regulations.
11 So under that argument, there's no way 12 that we can have a petition that would not be 13 summarily dismissed. And that's why we would divert 14 our attention to the updated FSAR which is a known 15 identifiable issue. But we also point to Berka.
16 Berka is what identifies if you follow the full 17 document how you -- what do you know what the 18 applicable regulations are.
19 Let me just read to you two statements 20 that haven't been addressed in any of Holtec's 21 documents but yet they refer to it. Under resources, 22 based on the complexity of the issue raised by the 23 petitioner, rulemaking on this issue would entail 24 significant expenditures of NRC resources. Any such 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
81 undertaking would likely address a wide variety of 1
technical and regulatory topics, including but not 2
limited to decommissioning status, aging management, 3
quality assurance, equipment maintenance, personnel 4
license, expiration, hearing process, that's what 5
we're here today, and this is most important, the 6
appropriate licensing basis.
7 That's right in Berka. And as we know, 8
they've pointed out we should be dismissed because, 9
yes, we've made errors in 50.2, requirements for this 10 hearing. Yes, we have.
11 But it's right in Berka that that needs to 12 be considered on how this process goes forward. Now 13 on the issue of general design criteria, I've got in 14 my hand SECY 92-223 where Holtec had said, well, by 15 Commission statements that general design criteria 16 don't apply to Palisades because of its construction 17 date. Okay. But let me read to you a statement right 18 out of that SECY letter.
19 The Office of General Counsel believes 20 that the intent of the Commission when promulgating 21 the GDC regulation is not clear. And the Commission 22 can as a matter of safety policy choose to interpret 23 the GDC as applying to all plants with operating 24 licenses after May 1971 or can restrict applicability.
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82 But here's the main sentence.
1 In essence, Office of General Counsel 2
believes the issue is one of policy, not legal 3
interpretation. So that opens up the door, as I said 4
before. If we follow the entire Berka interpretation, 5
that allows NRC staff to elect not to accept the fact 6
that Palisades doesn't meet the GDC criteria. They 7
can look at that as a matter of policy. I want to 8
give you a reference. I talked to you about the 9
atmospheric dump valves.
10 CHAIR KRAUSE: Mr. Blind, your time has 11 expired for your closing.
12 (Simultaneous speaking.)
13 CHAIR KRAUSE: But you can give us that 14 reference in your rebuttal.
15 MR. BLIND: Okay. I'll continue in my 16 rebuttal. Thank you.
17 CHAIR KRAUSE: Thank you. We'll turn now 18 to the Applicants. You have five minutes.
19 MR. BLANTON: Thank you, Judge Krause.
20 Matters of policy and challenges to NRC policy are 21 simply not appropriate subjects for a contention to be 22 admissible in a license amendment proceeding before 23 this board. The Commission had told us how we -- what 24 we would do in order to follow process to restart a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
83 reactor who has been certified and is permanently 1
decommissioned under 50.82.
2 It has stated without -- as clear as it 3
can that the existing regulatory framework -- that's 4
the whole existing regulatory framework that includes 5
license amendment requests. It includes exemption 6
requests. It includes license transfer requests.
7 It's applicable to a restart proceeding.
8 I'm not clear on what the petitioners suggest is not 9
being applied in the petition -- in the denial of the 10 petition for rulemaking. But this staff -- the NRC 11 staff has promulgated Inspection Manual Chapter 25.62 12 which covers all of those issues, including whether 13 the design basis is appropriate, whether the plant is 14 prepared to operate within that design basis, QA.
15 All of the issues that Mr. Blind mentioned 16 are covered in Inspection Manual Chapter 25.62 which 17 is implementing NRC policy. And the process of 18 restarting the reactor that NRC has said should be 19 followed, a challenge to that just does not state an 20 admissible contention in this proceeding. The license 21 amendment request at issue simply restore Palisades to 22 its pre-decommissioning status in terms of the 23 technical specifications in the emergency plan.
24 Those changes will be evaluated by the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
84 staff under the regulations that govern license 1
amendments and technical specifications, and emergency 2
plans. So there's question about what regulations 3
should be followed. The regulation is the one that 4
applies to the licensee action that's being requested.
5 I also want to mention on the exemption, 6
Judge Krause asked a couple of questions about whether 7
a ruling on what the intent of 50.82 is gets into the 8
merits. I think that the board can make a decision, 9
a legal decision on the meaning of a regulation at the 10 contention admissibility stage. It's hard to think of 11 a reason to have a hearing on that given that all the 12 legal argument that you're going to have before you 13 has already been made.
14 And the petitioners' legal argument does 15 not cite any legal authority or even discuss the 16 Federal Register notice on the statement of 17 considerations of 50.82 in any detail. So I think the 18 board is in a perfect position to make a ruling on 19 what the intent of 10 CFR 50.82 is. The disagreement 20 between Holtec and the staff in regards to the 21 inextricably linked issue on the exemption request 22 versus a license amendment request I think is more of 23 a disagreement on what the case is that create an 24 exception to the general rule on that exemption 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
85 requests do not carry with them hearing rights than it 1
is a disagreement about the interplay between the 2
exemption request and the license amendment request.
3 We believe that those cases are fairly --
4 more fairly read to say unless the license amendment 5
is seeking essentially the same relief that the 6
exemption request is, that is the license amendment is 7
we're seeking relief from the application of the 8
regulation. Then that makes them inextricably 9
intertwined, and that's not what we have here. The 10 license amendment request will not authorize fuel to 11 be placed in the reactor or operation without the 12 letter from NRC that the inspection manual chapter 13 that says we have done all the inspections and all the 14 testing and all the other things that are required 15 under IMC 2562 and that the reactor is now authorized 16 to load fuel. Thank you.
17 CHAIR KRAUSE: Thank you. All right.
18 We'll turn to the NRC staff. Five minutes for 19 closing.
20 MR. SPENCER: Thank you, Your Honors.
21 This is Michael Spencer for the NRC staff. In 22 closing, I would just like to cover a few topics that 23 have been raised during this argument but in the 24 framework of the decision the board will ultimately 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
86 make.
1 So I think this is going to come down to 2
whether the proposed contentions are admissible. And 3
the four main criteria that we're looking at are 4
within scope -- are the contentions within scope, are 5
they material, do they sufficient factual support, and 6
do they -- are they actually focused on the 7
application and specific disputes with the 8
application? And that's where the contentions don't 9
meet those requirements.
10 And we covered in our opening statement 11 about the scope of the proceeding, that it's limited 12 to these license amendment requests. So issues about 13 what may be happening during decommissioning or some 14 later point or other processes, those are just out of 15 scope here. Going to materiality, it has to be 16 material to the regulations that apply to the specific 17 request.
18 And as the board noted, there's 50.12 for 19 exemptions. There's 10 CFR 50.92 for license 20 amendments. And that license amendment regulation 21 references as applicable and appropriate the 22 requirements that apply to initial licenses.
23 And so we already have a statement in the 24 regulations about what rules apply. And therefore, it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
87 was up to the petitioners to go look at the specific 1
portions of the application and say, that specific 2
portion of the application doesn't meet this specific 3
requirement for that particular Holtec request. And 4
that's what we're not seeing here.
5 Joint Petitioners cover the general design 6
criteria and their reply. And they cite a 1992 SECY 7
paper. Now they did not cite that SECY paper in their 8
hearing request, so it's not really part of the basis 9
for their hearing request.
10 But that was a SECY paper to the 11 Commission. If you did look at the SECY paper, it 12 would show that there were two alternatives provided 13 for Commission consideration. And ultimately, the 14 Commission and the SRM made the decision that the GDC 15 do not apply to those plants whose construction 16 permits were issued before that specified date of 17 1971.
18 And our answer to the hearing request 19 cited that SRM because that's the operative 20 controlling Commission decision on that question. And 21 so that dispute saying that they need to meet the GDC, 22 that's not a material dispute here. But even if 23 somehow the GDC applied, then they would still under 24 the contention requirement have to go to specific 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
88 portions of the application and say, how does this not 1
meet the GDC?
2 The other -- a few other points. One is 3
the un-mooting of contentions. We're going to address 4
this more in our briefing that the board has 5
requested. But ultimately, the board's decision is 6
whether the contention is admissible, not whether it 7
used to be admissible.
8 And in prior boards and even the 9
Commission itself has found contentions to be 10 inadmissible where the factual basis for the 11 contention was changed by subsequent events. Because 12 the standard is not whether the contention used to be 13 met. It's whether it used to meet the requirements 14 but whether it does currently meet the requirements.
15 And so we'll go into that more in our 16 briefing. But suffice it to say that the contentions 17 are current mooted. The environmental contentions, 5, 18 6, and 7, are currently mooted and they're no longer 19 admissible.
20 Finally, I would like to address the 21 inspection manual chapter cited by Holtec. I do want 22 to clarify a few things. So there was an initial 23 issuance of the Inspection Manual Chapter 2562, and 24 then there was a revision to that a few months later.
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89 The revision is the -- and we cite the 1
revision in our answer to the hearing request. And so 2
that's the revision that the board should consider.
3 And in that revision, it's made clear that it's not 4
intended to be comprehensive guidance on restart.
5 It's an inspection manual chapter, and it 6
concerns inspection and oversight and states that the 7
licensing is discussed only to the extent necessary to 8
provide that context that's needed for the oversight 9
piece. And so we don't see that inspection manual 10 chapter as having the same significance that Holtec 11 does. And with that, Your Honors, we appreciate the 12 opportunity to provide our views to the board and 13 thank you.
14 CHAIR KRAUSE: Thank you. We'll head back 15 to Petitioning Organizations for your two-minute 16 rebuttal.
17 MR. LODGE: Thank you. We are talking 18 about not just an operating license. We are talking 19 about an operating license with conditions, with 20 encumbrances if you will.
21 And those encumbrances are statutory --
22 what are known as statutory regulations. They were 23 regulations promulgated and implemented by the NRC to 24 fill in for any voids. I would say perhaps in the --
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90 even before the Chevron era.
1 But to fulfill the need for explicit 2
guidance that is one and the same time interpretive of 3
what the Atomic Energy Act requires. So it is not 4
simply an OL. It's not -- they can't operate.
5 They can't operate because it's a license 6
that is encumbered with conditions. 50.82 -- pardon 7
me, 10 CFR 50.82 is one of those conditions. That 8
establishes a one-way unidirectional decommissioning 9
procedure which ends in termination of license.
10 There isn't an off ramp to back up, 11 restart, and start the plant up again anew. As I say, 12 it is an operating license that's conditioned. And it 13 is conditioned effectively by statute.
14 I would point out at the end of the 15 decommissioning phase there is a requirement under 16 NEPA for the owner or applicant to provide an up to 17 day environmental statement of the reactor site.
18 There is no contemplated -- pardon me. Within the 19 1996 Federal Register notification on the 20 decommissioning rule, the Commission states that that 21 is to be treated for purposes of allowing public 22 intervention as though it were a licensed amendment.
23 There is no other contemplation of 24 amendment of a decommissioning procedure to turn 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
91 things around and start the reactor back up again. We 1
maintain and have maintained throughout this 2
proceeding that this is a cobbled together ad hoc 3
patchwork licensing -- re-licensing procedure. And we 4
believe that it is not lawful under the Atomic Energy 5
Act. Thank you.
6 CHAIR KRAUSE: Thank you. We'll turn back 7
to Joint Petitioners. Mr. Blind, you'll have two 8
minutes.
9 MR. BLIND: Okay. Thank you. First, on 10 the 2562, we're in agreement with Mike Spencer, the 11 staff's position on that, that it does not set policy.
12 We view it as setting -- allocating NRC inspection 13 resources.
14 But there seems to still be a lot of 15 discussion that our case should be dismissed because 16 complexities -- the artificial complexity of there are 17 no rules. Again, I want to read from Berka which we 18 say needs to be referenced for figuring out how do we 19 do that. That's what the Commission said.
20 And in there, specifically in Berka, they 21 say that the hearing process has to be evaluated 22 specific to this special circumstance. So I'm asking 23 the licensing board to allow us that flexibility. And 24 I know there's also case law that we've cited for per 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
92 se for all the errors that we may have made in our 1
submittals of that same allowance.
2 Let me read to you in closing. In 1979, 3
we had the Three Mile Island accident. Jimmy Carter 4
put together a commission called the Kemeny Commission 5
and said, figure out what went wrong.
6 And here was one of their key findings.
7 Regulations while essential cannot be effective if 8
approached with a compliance only mentality. The 9
intent behind the regulations must guide actions and 10 ensure the highest standards of safety.
11 That was followed up by Zack Pate who led 12 the industry implementing that concept as the 13 president of the Institute for Nuclear Power. And in 14 1989, he made the following statement which is on the 15 wall of all the major buildings and included on all 16 the diplomas. He said, the nuclear professional is 17 thoroughly imbued with a great respect and a sense of 18 responsibility for the reactor core -- for reactor 19 safety -- and all decisions and actions take this 20 unique and grave responsibility into account.
21 This is not a legal process. You need to 22 exercise the flexibility that the case law has given 23 you and the flexibility that Berka itself has given 24 you in saying, hey, there needs to be an examination.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
93 We need to step back.
1 Instead of looking at all these legal 2
theories, look at what are we doing. Does it make 3
sense? It can make sense if it's done right. But if 4
we don't give the NRC staff the tools and the guidance 5
that they need, how do we know it's going to be done 6
right?
7 And we already know that there are some 8
staff who don't agree with this. And that's right 9
within the answers that they gave us to our petition.
10 They said, some staff agree with this. So please 11 don't dismiss our case.
12 CHAIR KRAUSE: Thank you. Before I begin 13 my closing remarks, do my colleagues have anything 14 else they wish to ask or raise? Judge Arnold?
15 JUDGE ARNOLD: I have nothing else.
16 CHAIR KRAUSE: Judge Miller?
17 JUDGE MILLER: I have nothing else.
18 CHAIR KRAUSE: All right. Thank you all 19 for your presentations today. Your responses to our 20 questions will help us in making our decisions on the 21 hearing requests. I'm also grateful for your 22 understanding of our change in plans due to the snow.
23 We did receive snow last night and this morning.
24 I would like to extend a special thanks to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
94 our administrative and IT staff and our law clerks.
1 Your support has been invaluable, especially as we 2
navigated this winter weather. And finally, thank you 3
to our court reporter.
4 We ask the participants to please stay on 5
Teams for a few minutes after we adjourn to answer any 6
clarifying questions from the court reporter. Again, 7
the transcript of today's oral argument should be 8
available in the electronic hearing docket by next 9
week. We are adjourned.
10 (Whereupon, the above-entitled matter went 11 off the record at 1:45 p.m.)
12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com