ML25057A395
| ML25057A395 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 02/26/2025 |
| From: | Bernstein K, Mary Spencer NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57301, 50-255-LA-3, ASLBP 24-986-01-LA-BD01 | |
| Download: ML25057A395 (0) | |
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February 26, 2025 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC DECOMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)
Docket No. 50-255-LA-3 NRC STAFF RESPONSE TO PETITIONING ORGANIZATIONS BRIEF ON THE EFFECT OF THE STAFFS DRAFT ENVIRONMENTAL ASSESSMENT AND DRAFT FINDING OF NO SIGNIFICANT IMPACT ON THE ADMISSIBILITY OF THE PROPOSED ENVIRONMENTAL CONTENTIONS INTRODUCTION Pursuant to the Atomic Safety and Licensing Boards (Boards) Memorandum and Order of February 3, 2025 (Briefing Order), the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) provides its response to Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Services (Petitioning Organizations) brief regarding the effect on the proposed environmental contentions of the Staffs Draft Environmental Assessment and Draft Finding of No Significant Impact (Petitioning Organizations Brief) for Palisades Nuclear Plant (Palisades). As discussed below, the Petitioning Organizations do not appear to dispute that Proposed Contentions 5, 6, and 7 are moot. However, Petitioning Organizations request that the Board administratively notice the February 10, 2025 Order and forbear from taking any further action respecting such alleged mootness of any of their Contentions pending Petitioning Organizations filing further pleadings pursuant to said Order. Such actions are unnecessary, and if taken, would amount to Proposed Contentions 5, 6, and 7 being used as placeholder contentions until new or amended contentions are filed. As the Commission disfavors such placeholder contentions and Commission precedent provides that mooted proposed contentions should not be admitted, the Board should reject the Petitioning Organizations request to forbear a decision on the mootness of Proposed Contentions 5, 6, and 7, and find those contentions to be inadmissible as moot.
BACKGROUND On January 31, 2025, the Staff published a notice in the Federal Register requesting comment on the Draft Environmental Assessment (EA) and Draft Finding of No Significant Impact (FONSI) (collectively, Draft EA/FONSI)1 and notified the Board and participants of this fact (Board Notification).2 On February 3, 2025, the Board requested the participants provide their position on the effect of the Draft EA/FONSI on the admissibility of Petitioning Organizations proposed environmental contentions, and provided the participants with the opportunity to file responsive briefs.3 In its initial brief, the NRC staff asserted that Proposed Contention 7 was moot as a challenge to the Draft EA/FONSI, and that Proposed Contentions 2, 5, and 6 remained inadmissible as a challenge to the Draft EA/FONSI.4 The Applicant, in its initial brief, stated that Proposed Contentions 5, 6, and 7 were moot as a challenge to the Draft 1 Draft Environmental Assessment and Draft Finding of No Significant Impact for the Palisades Nuclear Plant Reauthorization of Power Operations Project (Draft for Comment) (Jan. 2025) (ADAMS Accession No. ML24353A157) (Draft EA/FONSI); Holtec Decommissioning International, LLC and Holtec Palisades, LLC; Palisades Nuclear Plant; Draft Environmental Assessment and Draft Finding of No Significant Impact, 90 Fed. Reg. 8721 (Jan. 31, 2025).
2 See Notification of Availability of Draft Environmental Assessment and Draft Finding of No Significant Impact (Jan. 31, 2025) (ML25031A007) (Board Notification).
3 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Scheduling Briefing Concerning the Draft Environmental Assessment and Draft Finding of No Significant Impact), at 1 (Feb. 3, 2025) (unpublished) (ML25034A217) (Briefing Order).
4 NRC Staff Position on the Effect of the Staffs Draft Environmental Assessment and Draft Finding of No Significant Impact on the Admissibility of Petitioning Organizations Proposed Environmental Contentions, at 7-13 (Feb. 19, 2025) (ML25050A569) (Staff Brief).
EA/FONSI.5 Petitioning Organizations, in their initial brief, stated that the Draft EA assuages their concerns of omission and potentially mooted their contentions.6 However, Petitioning Organizations included a request in their initial brief that the Board administratively notice the February 10, 2025 Order and forbear from taking any further action respecting such alleged mootness of any of their Contentions pending Petitioning Organizations filing further pleadings pursuant to said Order.7 DISCUSSION The Board should not grant Petitioning Organizations request to effectively create placeholder contentions by not ruling on the admissibility of Proposed Contentions 5, 6 and 7 until new or amended contentions are filed. Proposed contentions may be mooted at the contention admissibility phase of the proceeding.8 Petitioning Organizations request for this Board to administratively notice the briefing schedule for new and amended contentions and forbear taking any further action to resolve mooted contentions is not supported by Commission precedent. Therefore, this Board should reject Petitioning Organizations request and rule on the admissibility of Proposed Contentions 5, 6, and 7.
Petitioning Organizations appear to agree that Proposed Contentions 5, 6, and 7 are moot but request that the Board should nonetheless decline to find those contentions 5 Applicants Brief in Response to Boards Order Requesting Briefing on Impact of Draft Environmental Assessment and Draft Finding of No Significant Impact, at 5-7 (Feb. 19, 2025) (ML25050A567) (Applicant Brief).
6 Petitioning Organizations Brief on Effects of Environmental Assessment/Finding of No Significant Impact for Palisades Nuclear Power Plant, at 3, 7 (Feb. 19, 2025) (ML25050A618) (Petitioning Organizations Brief).
7 Id. at 8.
8 See, Staff Brief at 6 (citing USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444-45 (2006); Calvert Cliffs Nuclear Power Plant, LLC (Calvert Cliffs Nuclear Power Plant, Units 1 and 2 and Associated Independent Spent Fuel Storage Installation), CLI-22-1, 95 NRC 1, 13, 18 (2022)).
inadmissible because they have arranged to modify and prospectively litigate them further.9 However, keeping these mooted contentions part of the proceeding could allow them to readily be transformed - without basis or support - into a broad series of disparate new claims, which effectively would circumvent NRC contention-pleading standards.10 This is precisely what the Commission warned against and must be rejected.11 Petitioning Organizations also appear to challenge the Boards decision to request briefing, arguing that the Commissions view in Diablo Canyon that the Board may reasonably request briefing on mootness without any party moving for summary disposition is dicta.12 But this statement by the Commission represents the view of the Commission and is entitled to respect.13 Also, past Boards have requested briefing on whether proposed contentions are moot and issued rulings on mootness.14 The agency rules of practice and procedure in 10 C.F.R. Part 2 provide Petitioning Organizations with the opportunity to challenge information that was not previously available that has mooted a contention of omission, but the mooted contention is still inadmissible and must be dismissed. Petitioning Organizations state that Proposed Contentions 5, 6, and 7 are 9 Petitioning Organizations Brief at 7 (Petitioning Organizations say that they are potentially moot but have arranged to modify and prospectively litigate them further.); see also id. at 3 (The Petitioning Organizations maintain that publication of the EA assuages the omissions they alleged in their Contentions 5 and 6, and the omission of discussion of climate change effects claimed in Contention 7.).
10 See Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-11, 83 NRC 524, 539 (2016) (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 383 (2002)).
11 See id.
12 Petitioning Organizations Brief at 6.
13 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), ALAB-577, 11 NRC 18, 29 (1980), revd and vacated, in part, on other grounds, CLI-80-12, 11 NRC 514 (1980).
14 See, e.g., Luminant Generation Co. (Comanche Peak Nuclear Power Plant, Units 3 and 4), LBP Order, (July 1, 2009) (unpublished) (ML091820778) (directing briefing on whether proposed Contention 7 was moot); Luminant Generation Co. (Comanche Peak Nuclear Power Plant, Units 3 and 4), LBP-10-5, 71 NRC 329, 339-40 (2010) (finding proposed Contention 7 to be moot), revd and remanded, in part, on other grounds, CLI-10-25, 72 NRC 469.
moot and they are determining whether they will file new or amended contentions.15 Petitioning Organizations themselves described the process for filing new and amended contentions16 and appear to understand that they may file new or amended contentions so long as they satisfy the criteria for good cause in 10 C.F.R. § 2.309(c)(1).17 The Staff does not dispute that Petitioning Organizations may file new or amended contentions, but, as Petitioning Organizations acknowledge, Proposed Contentions 5, 6, and 7 are moot.18 Since mooted contentions no longer have a factual basis, they no longer demonstrate a genuine, material dispute with the Draft EA/FONSI and must be dismissed.19 Mooted contentions do not, however, prevent Petitioning Organizations from filing new or amended contentions.
The Board should also rule on the admissibility of the proposed environmental contentions presently before the Board because placeholder contentions are not admissible.20 Petitioning Organizations effectively request that Proposed Contentions 5, 6, and 7 be kept alive as placeholders for future contentions by asking the Board to forbear taking any action on Proposed Contentions 5, 6, and 7even though they are moot and no longer raise a genuine, 15 Petitioning Organizations Brief at 7 (stating that the Draft EA/FONSI assuages concerns of raw omission but simultaneously provides additional information that the Petitioners are analyzing to determine whether amendments or new contentions are appropriate).
16 Id. at 3.
17 Id. at 3, 7.
18 Id. at 3 (The Petitioning Organizations maintain that publication of the EA assuages the omissions they alleged in their Contentions 5 and 6, and the omission of discussion of climate change effects claimed in Contention 7.).
19 See Calvert Cliffs, CLI-22-1, 95 NRC at 19 (stating, Moreover, many of Mr. Bradford's statements concerning decommissioning costs appear to be founded on the presumption that the four facilities previously slated for early retirement will close early, which is no longer accurate given Exelon's update to its application. Therefore, ELPC Contention 2 is inadmissible because it does not raise a material dispute with the application.).
20 Florida Power and Light (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-3, 99 NRC 39, 66 &
n.156 (2024) (citing Union Electric Co. (Callaway Plant, Unit 1), CLI-15-11, 81 NRC 546, 548-50 (2015);
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009)).
material dispute with the applicationuntil Petitioning Organizations file new or amended contentions.21 Because placeholder contentions are not permitted, the Board should not grant Petitioning Organizations request to forbear taking action to find the mooted proposed contentions to be inadmissible.
The Petitioning Organizations cite USEC to argue that a mooted contention should only be deemed inadmissible if the petitioner fails to file a new or amended contention,22 but the Petitioning Organizations confuse the procedural history and holding of that case, which does not support their assertion that the Board should refrain from finding their existing contentions to be moot. In USEC, a licensing proceeding for a fuel enrichment facility, the Board found petitioner Mr. Seas interrelated Contentions 1.1 and 1.2, which asserted an omission of the proper assessment of the cultural resources in the applicants environmental report, to be inadmissible because they were moot, among other reasons.23 However, Petitioning Organizations cite to USEC Sea Contention 2.1, 24 which was deemed inadmissible on grounds unrelated to whether an omission had been cured by new information.25 Therefore, Petitioning Organizations citation to the treatment of Sea Contention 2.1 is immaterial to the briefing requested by the Board here. Further, Petitioning Organizations state that in USEC, since neither disposal nor modification had occurred, the Commission held Seas inaction to be an 21 Petitioning Organizations Brief at 7-8.
22 Id. at 4-5, 6 (citing USEC, CLI-06-9, 63 NRC 433).
23 USEC Inc. (American Centrifuge Plant), LBP-05-28, 62 NRC 585, 624-26 (2005) (concluding for Contention 1.1 that any effects of such an omission have already been cured and for Contention 1.2 that it no longer presents a dispute that can affect the outcome of this proceeding), affd, CLI-06-9, 63 NRC 433. The Commissions discussion of mootness on appeal of LBP-05-28 that is relied on in the Staff Brief was made in the context of Sea Contention 1.2. USEC, CLI-06-9, 63 NRC at 444-45.
24 Petitioning Organizations Brief at 4.
25 USEC, CLI-06-9, 63 NRC at 446-47. See also USEC, LBP-05-28, 62 NRC at 626-27.
additional ground to reject his appeal.26 But this is inaccurate because the Board did dispose of Sea Contentions 1.1, 1.2, and 2.1 by not admitting them for a hearing,27 exactly the action the Board should take here. Moreover, the USEC Commission raised Mr. Seas failure to file new contentions based on the DEIS only in response to his claim on appeal that he had not had an opportunity to address the DEIS.28 Therefore, Petitioning Organizations interpretation of USEC does not support their request for relief. Moreover, once information asserted to have been omitted is supplied, the original contention of omission is moot, and Petitioning Organizations must timely file a new or amended contention in order to raise specific challenges regarding the new information.29 CONCLUSION There appears to be no dispute that Proposed Contentions 5, 6, and 7 are moot and no longer demonstrate a genuine dispute on a material issue with the Draft EA/FONSI. Therefore, Proposed Contentions 5, 6, and 7 should not be admitted. Further, there is no merit to Petitioning Organizations request to effectively treat Proposed Contentions 5, 6, and 7 as placeholder contentions until Petitioning Organizations file new or amended contentions.
26 Petitioning Organizations Brief at 5.
27 USEC, LBP-05-28, 62 NRC at 624, 626, 627.
28 USEC, CLI-06-9, 63 NRC at 444.
29 Comanche Peak, LBP-10-5, 71 NRC at 339-40.
Therefore, the Board should deny the Petitioning Organizations requests in their brief.
Respectfully submitted,
/Signed (electronically) by/
Kevin D. Bernstein Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-1001 Email: Kevin.Bernstein@nrc.gov Executed in Accord with 10 CFR 2.304(d)
Michael Spencer Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9115 Dated February 26, 2025 Email: Michael.Spencer@nrc.gov
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC DECOMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)
Docket No. 50-255-LA-3 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC Staff Response to Petitioning Organizations Brief on the Effect of the Staffs Draft Environmental Assessment and Draft Finding of No Significant Impact on the Admissibility of the Proposed Environmental Contentions, dated February 26, 2025, have been served upon the Electronic Information Exchange (the NRCs E-Filing System) in the captioned proceeding this 26th day of February 2025.
/Signed (electronically) by/
Kevin D. Bernstein Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-1001 Email: Kevin.Bernstein@nrc.gov Dated February 26, 2025